United States Court of Appeals
For the First Circuit
No. 09-1101
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS ELIGIO SANTANA-PÉREZ,
Defendant, Appellant.
No. 09-1150
UNITED STATES OF AMERICA,
Appellee,
v.
AQUILES CARPIO-POURET
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.
Héctor L. Ramos-Vega, Assistant Federal Public Defender, with
whom Joseph C. Laws, Jr., Federal Public Defender, was on brief,
for appellant Luis Eligio Santana-Pérez.
Jesús M. Rivera-Delgado for appellant Aquiles Carpio-Pouret.
William C. Brown, Attorney, Criminal Division, with whom Lanny
A. Breuer, Assistant Attorney General, Criminal Division, and Rosa
E. Rodríguez-Vélez, United States Attorney, were on brief, for
appellee.
September 8, 2010
LIPEZ, Circuit Judge. Defendants Luis Eligio Santana-
Pérez and Aquiles Carpio-Pouret were found guilty of violating 18
U.S.C. § 2237(a)(1), which makes it a crime "for the master,
operator, or person in charge of a vessel of the United States, or
a vessel subject to the jurisdiction of the United States, to
knowingly fail to obey an order by an authorized Federal law
enforcement officer to heave to that vessel."1 They now appeal
their convictions, asserting multiple trial errors and claiming
that the evidence was, in any event, insufficient to support the
jury's verdict. Finding no reversible error, we affirm.
I.
The factual background of this appeal, which we recite in
the light most favorable to the verdict, is uncomplicated. In the
pre-dawn hours of March 15, 2008, the Coast Guard cutter Matinicus
was patrolling the Mona Passage between Puerto Rico and the
Dominican Republic when a member of the crew sighted a small vessel
leaving Mona Island, Puerto Rico and heading toward the Dominican
Republic.2 The crew member reported the sighting to Chief Warrant
1
"Heave to" means "to cause a vessel to slow, come to a
stop, or adjust its course or speed to account for the weather
conditions and sea state to facilitate a law enforcement boarding."
18 U.S.C. § 2237(e)(2). For clarity, we will hyphenate the phrase
in the text except when quoting the statute. Cf. R.H. Dana, Jr.,
The Seaman's Friend 111 (14th ed. 1879).
2
Mona Island lies thirty-eight miles west of the main
island of Puerto Rico, about halfway between the main island and
the Dominican Republic.
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Officer Michael Levecque, who ordered that the Matinicus be brought
about to intercept the vessel. As it later turned out, Santana-
Pérez was operating the small vessel and Carpio-Pouret was also in
the vessel.
At around 5:10 a.m., the crew of the Matinicus activated
its blue law enforcement light on the ship's mast; shined a
spotlight on the defendants' vessel; blew the ship's whistle; and
began directing the defendants to stop in both English and Spanish
using the ship's loud hailer. The defendants did not stop at that
time. A "non-compliant boarding team" launched from the Matinicus
in a small vessel at 5:15 a.m. and arrived alongside the
defendants' vessel one minute later. The boarding team activated
a blue light on its vessel and began commanding the defendants to
"stop the vessel, stop the vessel." The defendants did not stop.
The boarding team made a second approach while repeating the
command to stop, but, again, the defendants did not stop. Finally,
on a third approach, the boarding team told the defendants that
force would be used if they did not stop. The defendants turned
off their motor at that point and were taken into custody. About
twelve minutes elapsed between the time the Matinicus activated its
blue light and the time the defendants stopped.
The defendants were subsequently charged with failing to
obey a federal law enforcement officer's order to heave-to. 18
U.S.C. § 2237(a). The government argued at trial that Santana-
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Pérez should be convicted as a principal and that Carpio-Pouret
should be convicted as an aider and abettor. The jury returned a
verdict of guilty as to both defendants, and the district court
summarily denied a post-trial motion for judgment of acquittal.
This appeal followed.
II.
The defendants raise five claims of error on appeal:
(1) the district court should have entered a judgment of acquittal
because there was insufficient evidence that the defendants heard
and understood the Coast Guard's orders to heave-to; (2) the
district court erroneously ruled that evidence relating to a prior
conviction could be admitted to impeach Santana-Pérez if he
testified at trial; (3) the government improperly vouched for its
own witnesses during closing arguments; (4) the district court
erred in refusing to give a missing evidence instruction; and
(5) the district court engaged in improper questioning during
Carpio-Pouret's testimony. We address each of these arguments in
turn.
A. Sufficiency of the Evidence
To prove a failure to heave-to, the government must show
that (1) the defendant was the master, operator, or person in
charge of the vessel; (2) an authorized federal law enforcement
officer ordered the defendant to heave-to; (3) the defendant failed
to obey that order; and (4) the defendant's failure to obey the
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order was knowing and intentional.3 See 18 U.S.C. § 2237(a)(1),
(b). To establish aiding and abetting liability, the government
must show: (1) that the principal "committed the substantive
offense charged," and (2) that the accomplice "became associated
with [the principal's criminal] endeavor and took part in it,
intending to assure its success." United States v. Gonzalez, 570
F.3d 16, 28-29 (1st Cir. 2009) (internal quotations marks and
citations omitted). On review for sufficiency, we ask whether the
evidence, viewed in the light most favorable to the prosecution,
would permit a reasonable jury to find each element beyond a
reasonable doubt. See United States v. Rosado-Pérez, 605 F.3d 48,
52 (1st Cir. 2010).
3
There must also be proof that the vessel operated by the
defendant was a vessel of the United States or a vessel subject to
the jurisdiction of the United States. See 18 U.S.C. § 2237(a)(1).
In this case, the district court instructed the jury that the
defendants' vessel would be subject to the jurisdiction of the
United States if it was "located within the customs waters of the
United States," an area that "extend[s] for four leagues, or twelve
miles, from United States territory unless another distance has
been established by treaty." United States v. Santana-Rosa, 132
F.3d 860, 863-64 (1st Cir. 1998) (internal quotation marks
omitted); see also 46 U.S.C. § 70502(c)(1)(D) ("[T]he term 'vessel
subject to the jurisdiction of the United States' includes . . . a
vessel in the customs waters of the United States . . . ."). It is
undisputed that the incident here occurred well within twelve miles
of the coast of Mona Island, which is United States territory. We
express no opinion about whether it was proper to submit the
"jurisdictional" issue to the jury. Cf. 46 U.S.C. § 70504(a)
(providing that "[j]urisdictional issues arising under [the
Maritime Drug Law Enforcement Act] are preliminary questions of law
to be determined solely by the trial judge"). Any error in so
doing was harmless. See United States v. Bravo, 489 F.3d 1, 8 (1st
Cir. 2007).
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1. Santana-Pérez
Santana-Pérez challenges only the finding that he had the
requisite mens rea. He contends that he could be convicted only on
proof that he was aware of and understood the Coast Guard's orders.
We agree. The statute penalizes those who "knowingly" disobey an
order to heave-to, a term that ordinarily goes to the defendant's
"knowledge of the facts that constitute the offense." Bryan v.
United States, 524 U.S. 184, 193 (1998). The issuance of an order
to heave-to is one of the facts constituting the offense in this
case. To prove that a defendant knew that an order to heave-to was
given, it will typically be necessary to prove that he was aware of
the order and comprehended its essential message.
Santana-Pérez points to Carpio-Pouret's trial testimony
in support of his argument that he lacked the necessary knowledge.
Carpio-Pouret testified that he and Santana-Pérez saw the
Matinicus's spotlight but did not hear the orders to stop. In
addition, both Santana-Pérez and Carpio-Pouret denied hearing the
orders in post-arrest statements given to an immigration official.
However, the jury heard substantial testimony undermining
the defendants' story. Levecque testified that when he and the
crew "lit [the defendants] up with a spotlight and started blowing
our horn, they kind of turned and obviously looked -- looked behind
them. I'm sure -- they looked very surprised." There was
testimony that the order to stop was given in Spanish and English
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over the loud hailer, which was audible at a distance of 100 to 200
feet, and that the defendants' vessel was less than 150 feet from
the Matinicus at the time. Further testimony established that the
boarding crew repeated the order to stop during its first two
passes, which brought the crew within 15 to 25 feet of the
defendants' vessel, and that the defendants stopped only when they
were warned that force would be used.
In addition, Santana-Pérez acknowledged in a post-arrest
statement that he saw the "flashing lights" and admitted: "We
were . . . spotted by the Coast Guard and I tried to outrun them."
He acknowledged having been detained on previous occasions (as did
Carpio-Pouret) and stated that he did not stop because he "was
scared and did not want to go to jail." Finally, when Carpio-
Pouret was asked, "When you saw the Coast Guard boat what
happened?" he responded, "I told [Santana-Pérez] that they were
coming." Viewed as a whole, the evidence was more than sufficient
for the jury to find that Santana-Pérez heard and understood the
orders to stop.
2. Carpio-Pouret
Carpio-Pouret moved for a judgment of acquittal in the
district court on the ground that there was no evidence that he was
the "master, operator, or person in charge" of the small vessel.
18 U.S.C. § 2237(a)(1). The district court denied that motion, and
Carpio-Pouret properly appealed. In this court, however, Carpio-
-8-
Pouret's attorney filed a motion to voluntarily dismiss the appeal.
The attorney stated that he had lost contact with Carpio-Pouret,
who apparently returned to the Dominican Republic after completing
his sentence. We denied the motion because the attorney had not
shown that Carpio-Pouret "affirmatively authorized the withdrawal
of his direct criminal appeal." The attorney then filed a motion
to adopt two of the arguments made in Santana-Pérez's appellate
brief: the sufficiency of the evidence argument, discussed above,
and an argument relating to the district court's aggressive
questioning of witnesses during trial, discussed below. See Fed.
R. App. P. 28(i). No separate appellate brief was filed on Carpio-
Pouret's behalf.
The rule in this circuit is clear: "[a]doption by
reference . . . cannot occur in a vacuum; to be meaningful, the
arguments adopted must be readily transferrable from the
proponent's case to the adopter's case." United States v. David,
940 F.2d 722, 737 (1st Cir. 1991). Santana-Pérez's argument
relating to the district judge's questioning of witnesses is
readily transferable to Carpio-Pouret's case. As noted, we address
that argument below. It is less clear how Santana-Pérez's
sufficiency of the evidence argument might be transferred to
Carpio-Pouret's case. To the extent that Carpio-Pouret means to
argue that he did not hear the order to heave-to, his argument
fails for essentially the reasons discussed above. There was
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sufficient circumstantial evidence for the jury to find that both
defendants heard the order and knowingly disobeyed it.
Other arguments that Carpio-Pouret might have been able
to make on his own are forfeited. They would be unavailing in any
event. The argument that Carpio-Pouret made to the district
court -- that he was not the "master, operator, or person in
charge" of the small vessel -- was beside the point because the
government's theory was that Carpio-Pouret aided and abetted
Santana-Pérez's failure to heave-to. And the jury could reasonably
have interpreted Carpio-Pouret's warning to Santana-Pérez that the
Coast Guard was coming as the sort of encouragement that makes one
an aider and abettor (as in, "They're coming, let's get out of
here!"). See United States v. Mercado, 610 F.3d 841, 846 (3d Cir.
2010) ("One can aid or abet another through use of words or actions
to promote the success of the illegal venture."). The district
court did not err in denying Carpio-Pouret's motion for judgment of
acquittal.
B. Evidence of Prior Conviction
The district court ruled in limine that evidence of
Santana-Pérez's prior drug conviction could be admitted to impeach
him under Federal Rule of Evidence 609(a) if he chose to testify.
Although Santana-Pérez challenges that ruling on appeal, he does so
only to preserve the issue for Supreme Court review. He concedes
that his claim is foreclosed under the Supreme Court's decision in
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Luce v. United States, 469 U.S. 38 (1984), which held that "a
defendant who chooses not to testify at trial loses his right to
appeal the district court's ruling denying his in limine motion to
forbid the impeachment use of a prior conviction." United States
v. Holmquist, 36 F.3d 154 (1st Cir. 1994).4 Santana-Pérez did not
testify at trial, and we therefore reject his argument.
C. Vouching
During closing arguments, the prosecutor rhetorically
asked the jury, "Are you going to give [sic] the testimony of the
United States Coast Guard officers or are you going to believe the
testimony raised by the defendant?" Santana-Pérez lodged an
objection that the government was improperly vouching for its
witnesses, which was overruled.
"Improper vouching occurs when the government places the
prestige of the United States behind a witness by making personal
assurances about the credibility of a witness or implies that the
jury should credit the government's evidence simply because the
government can be trusted." United States v. Robinson, 473 F.3d
387, 396 (1st Cir. 2007) (internal quotation marks and citation
omitted). Viewed in context, it is clear that the prosecutor's
4
Santana-Pérez argues that Luce unfairly "forces
defendants to either take the stand, be impeached even if wrongly
so, and get convicted for the purposes of preserving the error for
appeal; or to forgo the option of telling their story to the jury,
a fundamental right, only to then insulate a trial court's ruling
from review no matter how erroneous it may be."
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rhetorical question did neither of those things. The prosecutor
had just finished outlining the factors he believed undermined
Carpio-Pouret's credibility. He then told the jury, "[t]here's
matters of credibility in this case," and rhetorically asked which
version of the events the jury would choose to believe. Of course,
the implicit message was that the government's case was more
believable than the defendants' case. But "merely asking the
members of the jury to use their common sense in evaluating the
witnesses' testimony" is not improper vouching. United States v.
Pérez-Ruiz, 353 F.3d 1, 10 (1st Cir. 2003); see also United States
v. Rodríguez, 215 F.3d 110, 123 (1st Cir. 2000) ("[A]n argument
that does no more than assert reasons why a witness ought to be
accepted as truthful by the jury is not improper witness
vouching."); 6 Wayne R. LaFave et al., Criminal Procedure § 24.7(e)
(3d ed. 2009) ("[T]he prosecutor is not prohibited from explaining
to the jury why it should conclude the defendant was guilty or
accept or reject a particular witness' testimony.").
The defendants argue that the prosecutor's "tone and
inflection" suggested to the jury that the Coast Guard witnesses
should be believed "simply because they are Coast Guard officers."
We take that to mean that the prosecutor placed special emphasis on
the words "United States Coast Guard officers." If that is true,
it might be troubling because such emphasis could be taken to
"impl[y] that the jury should credit the government's evidence
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simply because the government can be trusted." Robinson, 473 F.3d
at 396 (internal quotation marks omitted). But we have no way to
judge the accuracy of the defendants' characterization from the
trial transcript. On this record, we must necessarily defer to the
district court's on-the-spot assessment of that issue. Cf. Reagan
v. Brock, 628 F.2d 721, 723 (1st Cir. 1980) (noting that "our
ability to comprehend how [a] question was understood in the
courtroom is vastly inferior to the district judge's" because the
judge "hears the question with counsel's inflection, perceives the
length and character of the pause between question and answer, and
rules on the party's objection within the context of prior
questioning and strategies").
D. Adverse Inference Instruction
Chief Warrant Officer Levecque testified that the
Matinicus's radar equipment was supposed to have recorded a video
of the chase. For technical reasons, however, the video did not
record properly and could not be played. The government made a
number of efforts to play the video, including bringing it back to
the Matinicus to play it on the cutter's recording system. When
none of those efforts worked, the government notified the
defendants of the technical problem, one month before the trial
began.
At trial, the defendants asked the district court to give
what they call a missing evidence instruction, which would have
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advised the jury that it could infer that the video would have been
unfavorable to the government based on the government's failure to
produce it. The district court refused to give the instruction,
citing the lack of evidence that the government acted in bad faith
and the impossibility of producing the video. It told the
defendants they could argue to the jury that the government should
have produced the video. The defendants challenge that ruling on
appeal. We review for abuse of discretion. United States v. Rose,
104 F.3d 1408, 1417 (1st Cir. 1997).
In some circumstances, a party's failure to produce
evidence may justify an inference that the evidence would have been
unfavorable to the non-producing party.5 This general rule of
evidence encompasses everything from the decision not to call a
witness to the intentional destruction of documents. The party
seeking the instruction has the burden of laying an appropriate
evidentiary foundation. United States v. Laurent, 607 F.3d 895,
902 (1st Cir. 2010). Although the particulars of the required
showing vary from situation to situation, the basic thrust is
always the same: the circumstances must be such that a reasonable
jury could conclude that the evidence in question was unfavorable
to the non-producing party. See Laurent, 607 F.3d at 902
5
This question is distinct from the question of whether
the government's failure to preserve or produce evidence resulted
in a denial of due process, see, e.g., Illinois v. Fisher, 540 U.S.
544 (2004) (per curiam), which is not raised in this appeal.
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(spoliation); United States v. Myerson, 18 F.3d 153, 159 (2d Cir.
1994) (missing witness).
In this case, there is no basis for such an inference.
The government gave a satisfactory explanation for its failure to
produce the radar video: the video did not properly record because
of a technical mishap. Defendants have placed nothing in the
record to suggest that the government's explanation was untrue.
Under the circumstances, there is no reason to suppose that the
video might have been unfavorable to the government. The district
court did not abuse its discretion in refusing to give an adverse
inference instruction.
E. Questioning by the District Court
Defendants claim that the district court engaged in
questioning of Carpio-Pouret on the witness stand that was overly
aggressive and signaled to the jury that the judge disbelieved
Carpio-Pouret's testimony. There was no objection at trial, see
Fed. R. Evid. 614(c), so we review for plain error only. United
States v. Paz Uribe, 891 F.2d 396, 400 (1st Cir. 1989).
The principles governing the defendants' claim are easily
stated, if less easily applied. It is well-settled that the
district court is more than a "mere moderator" in a federal jury
trial. Quercia v. United States, 289 U.S. 466, 469 (1933). Among
other things, the court has "the prerogative, and at times the
duty, of eliciting facts he deems necessary to the clear
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presentation of issues." Paz Uribe, 891 F.2d at 400 (quoting Llach
v. United States, 739 F.2d 1322, 1329-30 (8th Cir. 1984)); see also
Fed. R. Evid. 614(b) ("The court may interrogate witnesses, whether
called by itself or by a party."). The trial court's discretion in
this area is broad, and there are many different situations in
which judicial interrogation can be warranted. See 29 Charles Alan
Wright et al., Federal Practice & Procedure: Evidence § 6235 (1st
ed. 1997 & Supp. 2009).
At the same time, the power to interrogate witnesses must
be exercised judiciously, particularly when the witness is a
defendant in a criminal case. United States v. Melendez-Rivas, 566
F.3d 41, 50 (1st Cir. 2009). Each intervention raises the
possibility that the jury will perceive the court as biased toward
one party or another. The court must therefore take pains to
"preserve[] an attitude of impartiality and guard[] against giving
the jury an impression that the court believes the defendant is
guilty." Paz Uribe, 891 F.2d at 400-01 (quoting Llach, 739 F.2d at
1329-30).
In this case, the district court aggressively questioned
witnesses on both sides. However, the court's questioning of
Carpio-Pouret differed in tenor from his questioning of the
government's witnesses. Whereas the questions directed at the
government's witnesses by and large related to technical matters,
many of the questions directed at Carpio-Pouret focused on
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perceived gaps and inconsistencies in his story. An excerpt in
which the court pressed Carpio-Pouret to explain how he ended up
near Mona Island during a fishing trip will illustrate the general
tone of the questioning:
THE COURT: And how far from the coastline
were the [fishing] traps?
DEFENDANT: Well, I can't tell you how far
away those traps were because, as
I stated earlier, I don't know
about measurements out at sea.
[. . .]
THE COURT: How long have you been fishing?
DEFENDANT: All my life.
THE COURT: And you can't tell distances in
the sea? You can't tell me those
traps were ten, 15 miles offshore?
DEFENDANT: No, I can't say.
[. . .]
THE COURT: All right. And when your motor
stopped working, were you near the
other fishermen?
DEFENDANT: Not that close. We were barely
able to see them.
THE COURT: Why didn't you communicate with
them?
DEFENDANT: We didn't have any instruments to
communicate with them. We tried
to signal them with our shirts,
but we were unsuccessful at that.
[. . .]
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THE COURT: When you dropped off the gas, the
motor was still operating?
DEFENDANT: That is correct.
THE COURT: And then you turned around and
headed towards the Dominican
Republic to get the traps; is that
correct?
DEFENDANT: Well, no, sir. We headed somewhat
parallel to -- I don't know. But
we headed -- well, we headed
southeast. I don't know, maybe it
was that. I don't know what
bearing we took.
[. . .]
THE COURT: And that was a course that was not
taking you to the Dominican
Republic.
DEFENDANT: No, sir.
In our view, this exchange and others like it skirted
dangerously close to the line between questioning intended to clear
up muddled or gap-filled testimony, which is permissible, and
questioning that signals the court's disbelief of the witness,
which is not. See United States v. Tilghman, 134 F.3d 414, 416
(D.C. Cir. 1998). The question about distances at sea, in
particular, implies that the court was having trouble believing
Carpio-Pouret's story.
In the end, however, the error, if any, was not plain.
Despite the tenor of the questions, they appear to have been aimed
at clarifying Carpio-Pouret's testimony -- a legitimate goal. See
United States v. Filani, 74 F.3d 378, 386 (2d Cir. 1996); United
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States v. Hickman, 592 F.2d 931, 933 (6th Cir. 1979). Carpio-
Pouret gave only a vague explanation on direct examination and
cross-examination of what he and Santana-Pérez were doing between
the morning of March 14, 2008, when they left to go fishing, and
the morning of March 15, when they encountered the Matinicus. The
district court could reasonably have concluded that the jury would
benefit from a fuller account of the day's events. Also, any
signals the court may have given about its views are susceptible of
multiple interpretations on the cold record. We therefore cannot
say that any error was "clear" or "obvious." United States v.
Olano, 507 U.S. 725, 734 (1993). We also note that the district
court instructed the jury not to "assume from anything [it] may
have said that [it had] any opinion concerning the issues in this
case." The defendants are not entitled to a new trial.
AFFIRMED.
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