Singleton v. United States

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-1647

JAMES SINGLETON,

Plaintiff, Appellant,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jos Antonio Fust , U.S. District Judge]

Before

Selya, Cyr and Boudin,

Circuit Judges.

Richard J. Shea for appellant.

Carlos A. P rez, Assistant United States Attorney, with whom

Daniel F. Lopez-Romo, United States Attorney, and Jos A. Quiles-

Espinosa, Senior Litigation Counsel, were on brief for appellee.

June 10, 1994

CYR, Circuit Judge. Petitioner James Singleton appeals
CYR, Circuit Judge.

from a district court order dismissing his motion for post-

conviction relief, see 28 U.S.C. 2255, from a judgment of

conviction for possessing marijuana, with intent to distribute,

in violation of the Maritime Drug Law Enforcement Act (MDLEA).1

See 18 U.S.C. 2; 46 U.S.C. App. 1903(a), (c), (f). Along

with a surfeit of lesser grounds, we must assess whether Single-

ton was denied effective assistance, see Strickland v. Washing-

ton, 466 U.S. 668 (1984), based on trial counsel's failure to

object to a jury instruction which effectively directed a verdict

on an essential element of the crime charged. We affirm the

district court judgment.

I

BACKGROUND

Shortly after midnight on January 5, 1988, the United

States Coast Guard Cutter DAUNTLESS made radar contact with a

vessel approaching on the high seas from the direction of Haiti.

Suspecting that the vessel might contain illegal Haitian

immigrants, the DAUNTLESS attempted to establish radio communica-

tion, but to no avail. Shortly thereafter, Coast Guard Ensign

Pulver approached to within thirty yards of the unidentified

vessel in a boarding craft, and noted the name MARILYN E and the

1Singleton's conviction was upheld on direct appeal in
United States v. Doe, 921 F.2d 340 (1st Cir. 1990).

letters "KA" and "JN" on the stern but no home port designation

or flag. Pulver made voice contact with a person aboard the

MARILYN E who explained that the vessel was en route from King-

ston Bay, Jamaica, and bound for Kaison Bank, in the Bahamas, to

fish. Ensign Pulver obtained consent to board the

MARILYN E from codefendant Willey Gordon, the master. Pulver and

the boarding crew found Gordon, Singleton and four others on

board the MARILYN E. The MARILYN E was leaky and in serious

disrepair. The scant fishing gear on board was inoperable and

the vessel was not provisioned for an extended voyage.

Shortly after boarding, Pulver asked the master for the

certificate of documentation. Gordon asserted that though the

MARILYN E was of Jamaican registry, she was carrying no documen-

tation. At that point, codefendant Earl McLeish volunteered that

he knew where the documentation papers were kept, and soon

produced a Coast Guard "bill of sale" form and an expired United

States Certificate of Documentation.2 Asked what was in the

hold, Gordon responded that it contained ice. Whereupon Pulver

requested and received permission to open the hold, which was

2Though both documents suggested United States registry,
neither the bill of sale nor the expired certificate of documen-
tation constituted proper documentation of registry. The bill of
sale memorialized a 1986 sale of the MARILYN E by one Clyde
Randolph Eubanks to one Hubert Henderson, and was acknowledged in
Cateret County, North Carolina. The certificate of documentation
was registered to Eubanks but had expired more than one and one-
half years earlier.

3

foundtocontainbalesofmarijuanaweighingapproximately3,750 pounds.3

Ensign Pulver requested authorization from the Command-

er of the DAUNTLESS to arrest the captain and crew of the MARILYN

E. But because the procedures to be followed in arresting the

crew, and seizing the vessel, would depend on the nationality of

the MARILYN E, Pulver continued to question Gordon. Asked

whether there were any flags aboard the MARILYN E, Gordon at

first said there were none, but then corrected himself by saying

he believed there was one flag forward. Upon overhearing Ensign

Pulver's question to Gordon, Singleton located a United States

flag and a plain yellow quarantine flag in the fore of the

vessel.4 Thus, it remained unclear whether the MARILYN E was a

United States vessel, as the United States flag and the dated

documentation papers suggested, a Jamaican vessel, as Gordon

claimed, or a stateless vessel.

In order to ensure the legality of the ensuing arrests

and seizure, Ensign Pulver initiated a formal request to obtain

3To this point, Singleton's only statement to the Coast
Guard had been: "I'm James Singleton and I'm from the United
States."

4Our opinion on direct appeal merely stated that the flag
was yellow. Doe, 921 F.2d at 342. The district court opinion

dismissing appellant's section 2255 motion states that "[t]he
yellow flag was later identified as being a flag from Quebec."
Singleton v. United States, 789 F. Supp. 492, 494 (D.P.R. 1992).

The confusion is entirely understandable, but we note that the
yellow flag in question is a signalling flag indicating "quaran-
tine." Howard L. Andrews & Alexander L. Russell, Basic Boating:

Piloting and Seamanship 65 (2d ed. 1974). In nautical circles,

it is known, colloquially, as "Quebec," the international phonet-
ic representation for the letter "Q," see The ARRL Handbook for

the Radio Amateur 38-4 (Kirk A. Kleinschmidt ed.) (67th ed.

1990).

4

Jamaican consent to the enforcement of United States drug laws

aboard the MARILYN E,5 and simultaneously sought authorization

from the Coast Guard Commandant in Washington, D.C. Several

hours later, with authorization from the Coast Guard Commandant

and the consent of the Jamaican government, the six persons on

board the MARILYN E were arrested and transferred to the DAUNT-

LESS, whereupon Miranda warnings were administered to each.

Shortly thereafter, the Coast Guard Cutter MOHICAN rendezvoused

with the DAUNTLESS, took custody of the MARILYN E, and set out to

tow her to Puerto Rico. The MARILYN E proved unseaworthy,

however, and she sank (with most of her illicit cargo) en route.

II

DISCUSSION

A. The Erroneous Jury Instruction

Singleton contends that the trial judge effectively

withdrew from the jury a material element of the crime charged

under 46 U.S.C. App. 1903(a); viz., whether the MARILYN E was

5Had Gordon's unsubstantiated claim of Jamaican registry
proven valid, Jamaican "consent" would have been necessary to
secure jurisdiction under the criminal statute pursuant to which
Singleton and the other defendants were indicted. See 46 U.S.C.

App. 1903(c)(1)(C) (authorizing enforcement of United States
drug laws on, inter alia, "a vessel registered in a foreign

nation where the flag nation has consented or waived objection to
the enforcement of United States law by the United States").

5

"a vessel subject to the jurisdiction of the United States,"

within themeaning of theMDLEA.6 The jury wasinstructed asfollows:

Well, in this particular case, one of the
elements that you will have to decide is
whether this was a vessel of the United
States and there is no real controversy in my

own mind about that. The parties, the evi-

dence is there. There is [sic] exhibits that

tell you that this vessel was registered,

documented in the United States . . . .

[46 U.S.C. App. 1903] says basically
this, it is unlawful for any person on board
a vessel of the United States or on board a
vessel subject to the jurisdiction of the
United States and in this particular case, I
already pointed to you out [sic.] the fact
that there is no real controversy about that

fact . . . That is what you have to decide,

possess with the intent to manufacture and
distribute a controlled substance and then
sub-section C is the one that defines a ves-
sel subject to the jurisdiction of the United
States and I have already told you that the

Marilyn E, with the papers that we have on

hand, is a vessel subject to the jurisdiction

of the United States. . . .

. . . If I were to read the elements of
this offense, I would tell you as follows: I
would tell you that you would have to find in
each particular case that each defendant was
located on board a vessel subject to the
jurisdiction of the United States when this
happened. . . .

6At the time of Singleton's arrest and conviction, the MDLEA
provided:
It is unlawful for any person on board a vessel of the
United States, or on board a vessel subject to the
jurisdiction of the United States, to knowingly or
intentionally manufacture or distribute, or to possess
with intent to manufacture or distribute, a controlled
substance.
46 U.S.C. App. 1903(a) (Supp. 1987). A subsequent amendment
extended jurisdiction over a "citizen of the United States . . .
aboard any vessel." See Pub. L. 100-690, 7402(a), Oct. 21,

1988, 102 Stat. 4181 (amending 46 U.S.C. App. 1903(a)).

6

(Emphasis added.)7

In its ruling dismissing Singleton's section 2255

motion, see Singleton v. United States, 789 F. Supp. 492, 495

(D.P.R. 1992), the district court recognized the fair import of

the challenged instruction to be that the jurisdictional element

of the crime charged had been established to the satisfaction of

the court. See United States v. Potes, 880 F.2d 1475, 1478 n.1

(1st Cir. 1989) ("Because this jurisdictional requirement was an

element of the offense, and because it depended upon factual as

well as legal determinations, it was for the jury to decide

whether it had been satisfied."). The district court ruled,

nonetheless, that any error was harmless. Id. at 501-04.8 On

appeal, Singleton insists that this instructional error could not

have been harmless since it relieved the jury of its

responsibility to determine whether the government had proven an

essential element of the crime beyond a reasonable doubt.

We observe at the outset that the established "princi-

ple that collateral review is different from direct review

resounds throughout our habeas jurisprudence." Brecht v. Abra-

hamson, 113 S. Ct. 1710, 1719 (1993). A presumption of finality

7Singleton's trial counsel neither requested an instruction
on the jurisdictional element, nor objected to the instruction
given.

8The harmlessness ruling was based on the conclusion that
the MARILYN E was a "vessel of the United States" under 46 U.S.C.
12111(c)(1), which provides that "until a certificate of
documentation is surrendered with the approval of the Secretary,
a documented vessel is deemed to continue to be documented . . .
." The government concedes that the quoted provision was enacted
after these events took place.

7

attaches to criminal convictions once all direct appeals have

been exhausted. Barefoot v. Estelle, 463 U.S. 880, 887 (1983);

United States v. Frady, 456 U.S. 152, 164-65 (1982). Post-

conviction relief on collateral review is an extraordinary

remedy, available only on a sufficient showing of fundamental

unfairness. Brecht, 113 S. Ct. at 1719. Trial errors, even those

that implicate Seventh Amendment concerns, are subject to strin-

gent "harmless error" review in a collateral proceeding. Id. at

1723 (Stevens, J., concurring).

We recently had occasion to survey the developing

"harmless error" jurisprudence in a section 2254 case where the

petitioner sought to overturn his state court conviction on the

basis of an erroneous jury instruction. See Libby v. Duval, 19

F.3d 733, 738-40 (1st Cir. 1994). In Libby, we identified the

appropriate "harmless error" inquiry as whether the government

can demonstrate that the erroneous instruction "did not have a

substantial and injurious effect or influence in determining the

jury's verdict." Id. at 18 & n.15; see also Brecht, 113 S. Ct. at

1722 (quoting Kotteakos v. United States, 328 U.S. 750, 776

(1946)).9 The "actual prejudice" review required under Brecht

9Libby and Brecht arose under 28 U.S.C. 2254. Thus, one

significant element in the rationale underlying Brecht namely,

comity concerns based in federalism is plainly lacking in a
collateral proceeding arising under 28 U.S.C. 2255. Neverthe-
less, we think the Brecht rationale fundamentally anchored in

traditional concerns for finality operates with like vigor in
the federal habeas context: "granting habeas relief merely
because there is a 'reasonable possibility' that trial error
contributed to the verdict, Chapman v. California, 386 U.S. 18,

24, is at odds with the historic meaning of habeas corpus -- to
afford relief to those whom society has 'grievously wronged.'"

8

must encompass the record as a whole. Id.; Libby, 19 F.3d at

740. Under the well-seasoned Kotteakos standard, therefore,

trial error is deemed harmless only if the record as a whole

permits the reviewing court to conclude:

"with fair assurance, after pondering all
that happened without stripping the erroneous
action from the whole, that the judgment was
not substantially swayed by the error."
[Kotteakos, 328 U.S. at 765. This test] "is

satisfied if it is 'highly probable' that the
challenged action did not affect the judg-
ment." United States v. Hernandez-Bermudez,

857 F.2d 50, 53 (1st Cir. 1988).

United States v. Wood, 924 F.2d 399, 402 (1st Cir. 1991) (quoting

United States v. Ladd, 885 F.2d 954, 957 (1st Cir. 1989)). Thus,

the Singleton conviction can withstand collateral review only if

it is determined, based on the entire trial record, that the

government has demonstrated that a reasonable jury would have

found that the jurisdictional element required for conviction

under section 1903 was established beyond a reasonable doubt

notwithstanding the erroneous instruction.

The present inquiry under Kotteakos and Brecht requires

close examination of the MDLEA and its jurisdictional predicates.

The MDLEA in force in January 1988 proscribed possession, with

intent to distribute, marijuana "on board a vessel of the United

States or a vessel subject to the jurisdiction of the United

States." 46 U.S.C. App. 1903(a) (Supp. 1987) (emphasis added).

Section 1903(c) provides in pertinent part that the term "vessel

subject to the jurisdiction of the United States" includes:

Brecht, 113 S. Ct. at 1721 (secondary citations omitted).

9

(A) A vessel without nationality;
(B) A vessel assimilated to a vessel without
nationality, in accordance with Article 6(2)
of the 1958 Convention on the High Seas; and
(C) A vessel registered in a foreign nation where
the flag nation has consented or waived
objection to the enforcement of United States
law by the United States.

See 46 U.S.C. App. 1903(c). Thus, jurisdiction would exist

under the MDLEA if the MARILYN E were (1) American, as a vessel

of the United States; (2) Jamaican, since Jamaican authorities

consented to her boarding; (3) a vessel without nationality; or

(4) a vessel assimilated to a vessel without nationality.10

Section 1903(c)(1)(B) provides that a "vessel assimi-

lated to a vessel without nationality" in accordance with Article

6(2) of the Convention on the High Seas comes within the ambit of

the MDLEA. United States v. Passos-Paternina, 918 F.2d 979, 982

(1st Cir. 1990), cert. denied, 499 U.S. 982 (1991), and cert.

denied 111 S. Ct. 2809 (1991). Article 6(2) provides that "[a]

ship which sails under the flags of two or more States, using

them according to convenience, may not claim any nationalities in

question with respect to any other state, and may be assimilated

to a ship without nationality." Convention on the High Seas,

Art. 6(2), opened for signature, Apr. 29, 1958, 13 U.S.T. 2312,

T.I.A.S. No. 5200, quoted in United States v. Ayaraza-Garcia, 819

10The trial record amply supports the district court finding
that section 1903 jurisdiction was never contested at trial.
Indeed, the government and the defendants paid little attention
to it. Although there can be no doubt that the jury instruction
was premised, however improvidently, on the correct impression
that section 1903 jurisdiction was a non-issue as far as the
parties were concerned, this weakness in the government's trial
presentation is no less vigorously pressed on collateral review.

10

F.2d 1043, 1046-47 (11th Cir.), cert. denied, 484 U.S. 969

(1987); see also United States v. Garate-Vergara, 942 F.2d 1543,

1554-55 (11th Cir. 1991), modified, 991 F.2d 662 (11th Cir.),

cert. denied, 114 S. Ct. 481 (1993); Passos-Paternina, 918 F.2d

at 982 ("the clear purport of [Article 6(2)] requires that a

vessel which sails under the authority of two or more nations be

considered 'assimilated to a vessel without nationality.'"). In

the context of the MDLEA, Article 6(2) is broadly interpreted,

and reaches beyond the literal thrust of its "flying two flags"

language to encompass conduct amounting to conflicting claims of

nationality. Id. (surveying cases).

As to the registry of the vessel, the record reveals

that Captain Gordon was evasive, claiming at various times that

the MARILYN E carried neither flags nor documentation. Although

the captain asserted that the MARILYN E was of Jamaican registry,

and a crew member claimed to have sailed out of Kingston Bay, the

scant documentation, and the only flags found on board, suggested

United States registry. Further, the MARILYN E was not flying

the flag of any nation at the time she was sighted, nor did she

bear her home port designation or other registry information.

See United States v. Matute, 767 F.2d 1511, 1513 (11th Cir. 1985)

(finding absence of home port designation "a clear indication

that the crew wanted to be able to manipulate the vessel's

'nationality' on short notice"). Section 1903(c)(1)(B) was meant

to encompass this precise sort of ambivalent behavior. See id.

(holding that use of Colombian flag and Venezuelan registry

11

papers is "precisely" what statute and Article 6(2) contemplat-

ed); Passos-Paternina, 918 F.2d at 981-83 (holding that conflict-

ing claims of registry and carrying different flags "were tanta-

mount to sailing under the authority of more than one nation

under convenience").

The uncontroverted evidence that the captain and crew

repeatedly provided the Coast Guard with equivocal and

contradictory registry information satisfies us that a properly

instructed jury would have concluded that the United States met

its burden of proving, beyond a reasonable doubt, that the

MARILYN E was a "vessel subject to the jurisdiction of the United

States" within the meaning of 46 U.S.C. 1903.

B. Ineffective Assistance of Counsel

The Sixth Amendment provides that criminal defendants

are entitled to the effective assistance of trial counsel.

Strickland, 466 U.S. at 687. "But 'the Constitution does not

guarantee a defendant a letter-perfect defense or a successful

defense; rather the performance standard is that of reasonably

effective assistance under the circumstances then obtaining.'"

Lema v. United States, 987 F.2d 48, 50 (1st Cir. 1993) (quoting

United States v. Natanel, 938 F.2d 302, 309-10 (1st Cir. 1991)).

"The habeas court must evaluate the [challenged] conduct from

counsel's perspective at the time, considering the totality of

the circumstances before it, and making every effort to eliminate

the distorting effects of hindsight." Id. (citations and quota-

tions omitted). We indulge "a strong presumption that counsel's

12

conduct falls within a wide range of reasonable professional

assistance." Id. (citing Strickland, 466 U.S. at 689). Besides

bearing the burden of proving that trial counsel's performance

was not within this wide range of reasonable professional assis-

tance, Singleton must establish that counsel's performance was

sufficiently prejudicial to undermine confidence in the outcome

of the trial. Strickland, 466 U.S. at 693-94. Singleton asserts

prejudice from several alleged lapses on the part of trial

counsel.11

First, he points out that trial counsel did not attempt

to suppress the evidence seized aboard the MARILYN E. The uncon-

troverted record evidence reveals, however, that the master of

the MARILYN E consented to the Coast Guard boarding. Moreover,

the MARILYN E was subject to boarding simply on the basis of a

reasonable pre-boarding suspicion that she was a stateless

vessel. See United States v. Alvarez-Mena, 765 F.2d 1259, 1268

(5th Cir. 1985) ("Coast Guard need have only a 'reasonable

suspicion' that a vessel is subject to United States law before

effecting a seizure of the vessel in international waters.");

accord Potes, 880 F.2d at 1478 (dicta). As the MARILYN E flew no

flag, bore no home port designation, and could not be raised by

radio, there was an adequate basis for the reasonable suspicion

needed to stop and board her. See Alvarez-Mena, 765 F.2d at 1268

11As it resulted in no "prejudice" within the meaning of
Strickland, see supra pp. 5-12, we need give no further consider-

ation to the "ineffective assistance" claim that trial counsel
failed to challenge the jury instruction on section 1903 juris-
diction.

13

(finding abundant reasonable suspicion where, inter alia, vessel

"flew no flag, and had no stern markings indicating home port or

country"). And, of course, Ensign Pulver obtained Captain

Gordon's permission before opening the hold.

Second, Singleton claims prejudice from counsel's

failure to challenge the adequacy of the Miranda warnings. See

Miranda v. Arizona, 384 U.S. 436 (1966). The crew received

Miranda warnings just prior to their transfer to the DAUNTLESS,

moments after their arrests. Although he did speak with Coast

Guard personnel before being formally arrested, Singleton has not

identified any evidence illegally obtained prior to receiving

Miranda warnings. Our review suggests but one possibility; viz.,

Singleton's admission that he was "from the United States," see

supra note 3. But the uncontroverted testimony of Ensign Pulver

makes clear that Singleton volunteered this admission. Thus,

even assuming that Singleton was in "custody," this statement was

not made in response to interrogation. See Miranda, 384 U.S. at

467 (rule applies to "in-custody interrogations"). We find no

colorable basis for a cognizable Miranda claim.

Third, Singleton faults counsel's failure to move for a

separate trial. As a general rule, joinder for trial is proper

if issues of fact and law overlap and the practical benefits of a

joint trial outweigh each defendant's interest in a separate

trial. See, e.g., United States v. Arruda, 715 F.2d 671, 677-81

(1st Cir. 1983). Singleton has not demonstrated that counsel's

14

failure to press for a separate trial was outside the wide range

of reasonable professional assistance.

Significantly, codefendant McLeish unsuccessfully moved

for severance early in the proceedings. Like Singleton, McLeish

pursued a "hitchhiker" defense, claiming that he had been picked

up serendipitously by the MARILYN E while adrift at sea. In

light of the lack of success with which McLeish's request for

severance was met, we cannot say that trial counsel's performance

was deficient under the Sixth Amendment. See United States v.

Pellerito, 878 F.2d 1535, 1540 (1st Cir. 1985) (codefendants'

failed efforts are relevant in assessing other counsel's decision

not to pursue similar tactics). Indeed, the McLeish motion bears

all the earmarks of a stalking-horse strategy. "Effectiveness

does not require that counsel jump through every conceivable

hoop, or engage in futile exercises." Id. (citing United States

v. Cronic, 466 U.S. 648, 656 n.19 (1984) ("useless charade" not

required); United States v. Levy, 870 F.2d 37, 38 (1st Cir. 1989)

(similar)). In any event, there has been no showing of prejudice

to Singleton resulting from the joint trial.

C. Defaulted Claims

Several additional claims advanced by Singleton suffer

from various forms of procedural default, and essentially repre-

sent attempts to recast arguments already rejected in connection

with the "ineffective assistance" claim.12 Singleton attempts,

12The defaulted claims include an attempt to raise the
groundless Miranda claim. See supra p. 14.

15

to no avail, see Lopez-Torres v. United States, 876 F.2d 4, 5

(1st Cir.), cert. denied, 493 U.S. 979 (1989), to revisit the

defaulted claim relating to improper joinder for trial, though it

was neither raised before the trial court nor on direct appeal.

Furthermore, Singleton challenges his 360-month sentence as

having been based on a sentencing guideline determination that he

was responsible for possessing, with intent to distribute, 3,750

pounds of marijuana, whereas there was no evidence that he knew

the weight, and no evidence that the bales lost at sea contained

marijuana. Not only was a substantially similar argument reject-

ed on direct appeal, see Doe, 921 F.2d at 347, but "[i]ssues

disposed of in a prior appeal will not be reviewed again by way

of a 28 U.S.C. 2255 motion," United States v. Dirring, 370 F.2d

862, 864 (1st Cir. 1967), cited in Barrett v. United States, 965

F.2d 1184, 1190 n.11 (1st Cir. 1992). Additionally, this argu-

ment does not appear in the section 2255 motion, but first

emerged in Singleton's supplemental appellate brief. See Dziur-

got v. Luther, 897 F.2d 1222, 1224 (1st Cir. 1990) (holding

claims not raised in section 2255 motion will not be reviewed on

appeal). Finally, further review of Singleton's challenge to the

sufficiency of the evidence, addressed and rejected on direct

appeal, Doe, 921 F.2d at 346, is also foreclosed, Tracey v.

United States, 739 F.2d 679, 682 (1st Cir. 1984).

Affirmed.

16