United States v. Romero

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-2187

UNITED STATES,
Appellee,

v.

FREDDY ROMERO,
Defendant - Appellant.

No. 93-2188

UNITED STATES,
Appellee,

v.

ARMANDO TEJEDOR,
Defendant - Appellant.

No. 93-2189

UNITED STATES,
Appellee,

v.

GABRIEL CURVELO,
Defendant - Appellant.

No. 93-2190

UNITED STATES,
Appellee,

v.

ORANIE GALINDO-FORBES,
Defendant - Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Torruella, Cyr and Boudin,

Circuit Judges.

Jorge L. Arroyo, by Appointment of the Court, for appellant

Freddy Romero.
Jos A. Le n-Landrau, by Appointment of the Court, for

appellant Armando Tejedor.
Carlos A. V zquez-Alvarez, Assistant Federal Public

Defender, with whom Benicio S nchez-Rivera, Federal Public

Defender, was on brief for appellant Gabriel Curvelo.
Luis A. Medina-Torres, by Appointment of the Court, for

appellant Oranie Galindo-Forbes.
Richard A. Friedman, Attorney, Appellate Section, Criminal

Division, U.S. Department of Justice, with whom Guillermo Gil,

United States Attorney, Rosa E. Rodr guez-V lez, Assistant United

States Attorney, and Antonio R. Baz n, Assistant United States

Attorney, were on brief for appellee.

August 29, 1994

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TORRUELLA, Circuit Judge. In this case, defendants-

appellants Freddy Romero, Gabriel Curvelo, Armando Tejedor, and

Oranie Galindo Forbes appeal their convictions for possessing,

while aboard a vessel subject to the jurisdiction of the United

States, cocaine intended for distribution in violation of 46

U.S.C. App. 1903(a). The defendants challenge the sufficiency

of the evidence and the trial court's jury instructions.

Defendant Romero challenges his sentence. We affirm.

I. BACKGROUND

On the morning of March 29, 1993, a U.S. Navy

surveillance aircraft, a P3 Orion (the "P3"), on routine

narcotics-interdiction patrol, received a signal on its radar

indicating the presence of a vessel in international waters south

of the Dominican Republic. The radar indicated that the area was

free of other surface vessels within a hundred-mile radius.

Crewmen aboard the aircraft subsequently spotted the boat through

observer windows from a distance of five miles. Two crewmen,

pilot Jody Bridges and aft observer William Pikul, recognized the

boat as a low-profile vessel of the type used to smuggle

narcotics.

The P3 circled and proceeded to make several passes

over the boat, which, at that point, abruptly turned around and

accelerated in the opposite direction. During one pass, the

crewmen observed two people on the vessel's deck tossing bales

overboard. Subsequently, small arms tracer rounds came streaming

toward the plane. Throughout this time, the boat was moving at

high speed in an evasive, zig-zag course. The aircraft continued

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to trail the vessel until, six hours later, the boat ran out of

fuel and three of its crew were observed attempting to rig a blue

canvas tarp to act as a sail.

Throughout the surveillance, the crew of the aircraft

maintained the boat in sight through binoculars. The P3 also had

sophisticated surveillance equipment and cameras, and over 200

pictures were taken showing the boat and the bales in the water.

None of the photographs showed bales on the boat, individuals on

the boat, or bales being thrown overboard. The P3 also dropped

special buoys to mark the location of the bales after they were

thrown overboard.

While the occupants of the boat were rigging their

sail, a helicopter from the USS TAYLOR, a Navy frigate, arrived

and kept the boat under surveillance until the TAYLOR itself

reached the boat at dusk. The law-enforcement officer aboard the

TAYLOR, Coast Guard Lieutenant Francisco Alterie, hailed the boat

by megaphone and asked for its nationality because no national

identification was evident. Defendant Forbes, who subsequently

appeared to be in charge, told Alterie that the boat was

Colombian.

Alterie requested by radio that his superiors obtain a

"statement of no objection," which is a statement from the United

States State Department indicating that the country of registry,

in this case Colombia, granted American officials permission to

enforce United States laws aboard that vessel. After obtaining

permission from Colombian officials to board the defendants' boat

for purposes of determining the vessel's nationality and

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conducting a basic inspection, the State Department authorized

Alterie to board the defendants' vessel.

Once on board, Alterie and his boarding party found, in

addition to the four defendants themselves, state-of-the-art

radar and communications equipment, ropes crossing the cargo

area, and a strong smell of gasoline and other indications that

the cargo area had been washed down with gasoline. No drugs or

other contraband were found on the boat or on the defendants.

The boat did not have any identification or registration papers.

Upon being advised of this fact, the Colombian government

"refuted the claim of Colombian registry" for the vessel.

Meanwhile, twenty-one bales were recovered from the

Caribbean during the afternoon of March 30 by the Coast Guard

Cutter ATTU, approximately 15 nautical miles from the location

where the P3 first spotted the defendants' vessel 27-28 hours

earlier. The bales contained numerous two-kilogram packages of

cocaine. The Coast Guard had notified the ATTU of the bales on

the previous afternoon (March 29) and the ATTU had reached the

general location of the drop and the buoys left by the P3 at

approximately midnight. The ATTU was unable to find the bales

during the night, but it did find them the next day after a Coast

Guard patrol aircraft located them 15 miles away.

After retrieving the bales of cocaine, the ATTU

rendezvoused with, and then relieved, the TAYLOR at the site of

the defendants' vessel. On March 31, the State Department

authorized defendants' arrest. Coast Guard officials on the ATTU

then arrested the defendants and brought them and their boat to

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the port of Mayaguez, Puerto Rico. Officials with a mobile

laboratory conducted tests to determine if drugs were present on

the defendants and on the boat at that time. Both the defendants

and their vessel tested positive for traces of cocaine.

II. ANALYSISA. Sufficiency of the

Evidence

The defendants challenge the sufficiency of the

evidence supporting their convictions. In particular, they claim

the government did not establish that they ever possessed the

cocaine that the Coast Guard recovered from the ocean and that

the government later submitted as evidence at trial. One of the

elements of an offense under 46 U.S.C. App. 1903 is that the

defendants knowingly or intentionally possessed a controlled

substance. United States v. Piedrahita-Santiago, 931 F.2d 127,

130 (1st Cir. 1991).

In reviewing whether the evidence is sufficient to

establish that the defendants possessed the bales of cocaine, we

must consider all the evidence in the record as a whole,

including all reasonable inferences therefrom, in the light most

favorable to the verdict, with a view to whether a rational trier

of fact could have found the element of possession beyond a

reasonable doubt. United States v. O'Brien, 14 F.3d 703, 706

(1st Cir. 1994); United States v. Matiz, 14 F.3d 79, 82 (1st Cir.

1994); United States v. Sep lveda, 15 F.3d 1161, 1173 (1st Cir.

1993). We must also defer to the jury with respect to all

credibility determinations. O'Brien, 14 F.3d at 706.

The government's evidence of possession was ample, as

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it supported a reasonable inference that the bales observed being

thrown overboard from defendants' boat were the same bales later

recovered by the Coast Guard from the water in the vicinity where

the boat had been seen. Crewmen from the P3 testified that they

saw people aboard the defendants' boat throw bales from the

vessel overboard into the water. Crewman Pikul testified that

the bales presented in evidence at trial were the same ones he

witnessed being tossed overboard. Photographs from the P3 showed

the same bales in the water that were present in the courtroom.

Both Pikul and the P3's pilot, Bridges, testified that the

defendants' boat tried to evade the P3 and even fired upon the

surveillance aircraft. Both also testified that the boat was of

the type commonly used for drug smuggling.

Lieutenant Alterie and his boarding party found lines

crossing the cargo area of defendants' boat indicating that

something had been tied there. They also found that the cargo

area of the defendants' boat had been washed down with gasoline,

a tactic which several government witnesses explained was a

common technique among narcotics smugglers to eradicate traces of

contraband substances. Thomas Friend, a Navy helicopter pilot

and search and rescue officer, testified that the bales of

cocaine were found the following day within a predictable area of

where one would expect them to be had they come from defendants'

boat. Friend based this conclusion on a consideration of the

wind conditions, water currents, and elapsed time. The radar on

the P3 and on the TAYLOR's helicopter showed that no other boats

were within a 100-mile radius of defendants' boat. This evidence

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was sufficient, even without any consideration of the fact that

defendants and their boat tested positive for cocaine after they

were brought to the port of Mayaguez, to establish that

defendants knowingly possessed cocaine in violation of 46 U.S.C.

1903.

Defendants argue that (1) the eyewitness accounts of

the P3's crewmen that defendants threw the bales overboard should

not be credited because the aircraft failed to take any pictures

of the event, and because the P3's principal observer

misidentified the color of the recovered bales; (2) the testimony

concerning the likelihood that the bales recovered from the ocean

came from defendants' boat in light of ocean and weather

conditions was inherently unreliable; and (3) the tests showing

traces of cocaine on the defendants and their boat were

inaccurate due to unreliable equipment and careless procedures

allowing for contamination of the test subjects.

Defendants' first claim is that no reasonable jury

could credit the testimony of the P3 crewmen because the very

sophisticated photographic equipment in the P3 did not yield a

single photograph of individuals on the vessel, bales on the

vessel, bales being thrown from the vessel, or bales in the water

next to the vessel. Defendants point out that the P3 had the

defendants' vessel under continuous surveillance during the

alleged dumping, that the P3 was prepared to, and did, take

photographs throughout its encounter with defendants' boat, and

that one of the P3's cameras produced instant still photos which

allowed the crewmen to make adjustments in the photography while

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they were taking the pictures. These facts conclusively

establish, defendants conclude, that the eyewitness accounts of

the bales on defendants' vessel are not credible.

We need recount only a few of the many potentially

reasonable inferences that a jury could make in crediting the

government's eyewitness testimony in the absence of photographs

directly linking the bales of cocaine to the defendants. The

jury could reasonably infer that the photographer (who did not

testify at trial) simply missed the opportunity to take pictures

at the crucial time when the bales were being thrown overboard

because of the position of the aircraft (which made a number of

"passes" over the boat) or because of the position and readiness

of the camera equipment. The jury could also rationally conclude

that the photographer failed to take the "missing" pictures by

mistake, perhaps because he did not use the equipment properly,

had poor aim, or because he improperly developed the film and

ruined the crucial photographs. Pikul and Bridges testified that

one of the two cameras on the P3, a special high-speed camera,

was broken and that none of its photographs came out. It would

be perfectly rational for a jury to conclude that this broken

camera was the camera used for the crucial photographs and that

the second camera, the one whose pictures were used at trial, was

only used before and after the bales were dumped in the water.

The defendants next claim that Pikul's testimony that

the bales in the courtroom were the same bales that he had seen

earlier on defendants' boat cannot be credited by a reasonable

jury because Pikul said in an earlier statement that the bales

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were "yellow" when in fact the bales were closer to a brownish

color. At trial, Pikul described the bales as a "yellowish-

brown" in order to mask, defendants' allege, the "contradiction"

between the earlier statement and the appearance of the evidence

in court.

Credibility determinations are firmly within the jury's

realm, O'Brien, 14 F.3d at 706. We will not secondguess the

jury's decision to credit testimony which contains an

inconsistency, especially in a situation like this one where the

inconsistency or "contradiction" is ambiguous. It would usurp

the jury's role to reject its decision to believe or disbelieve a

witness because of such inconsistencies.

Defendants next attempt to poke holes in Friend's

testimony that if the bales were dumped from the defendants'

vessel, they should have been found in the area where they were

actually located, 28 hours later. Defendants claim that, at

trial, Friend was initially unable to provide and explain the

formula used by the Navy and the Coast Guard in their search for

the bales, which was determined prior to the launching of the

search. After a lunch recess at trial, Friend returned to

explain the formula and carried out a sample calculation

demonstrating the area of probability where the bales were found.

Defendants maintain that Friend was unable to explain how the

number 28, representing the number of hours that it took the

combined Navy and Coast Guard task force to locate the bales in

the water upon their having been allegedly dumped from the

suspect vessel, could have been factored into the formula prior

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to the search. The defendants emphasize that that number could

not have been available to the searchers before they calculated

where to attempt to locate the bales.

Defendants further point out that the defendants'

vessel was under constant surveillance in the area during and

after the purported dumping and that the bale area was marked by

buoys. If the bales were indeed dumped from that vessel,

defendants argue, it should not have taken that many ships and

aircraft 28 hours to find them. This, of course, although a

valid argument, is properly made to the jury rather than to an

appellate court.

None of defendants' objections raise colorable

challenges to the sufficiency of the evidence. Despite some

confusion surrounding Friend's rather technical testimony, it was

relatively clear from our reading of the transcript that Friend's

calculations represented an after-the-fact demonstration of (1)

how search patterns are calculated in general and (2) where the

bales in this case should have been found had the defendants in

fact dumped them. Friend stated several times that the actual

search was done by feeding certain information into a computer

which then calculated where to search. Friend testified that the

computer kept track of elapsed time during the actual search.

The jury could conclude from this that the search was properly

conducted at the time and that the bales did originate from

defendants' boat.

As for the 28 hours it took the Navy and the Coast

Guard to find the bales, we cannot tell from the record if this

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is a suspiciously delayed period of time or a relatively quick

period of time to find some bales floating in the ocean. A

reasonable jury, however, could rationally have found that the

bales were recovered relatively quickly and recovered right where

one would expect them to be, had the bales drifted in the

Caribbean for a day after the defendants threw them overboard.

Finally, defendants assert that the two types of tests

used for detecting cocaine on the defendants and their boat, the

Barringer Ion Scan and the Sentor Gas Chromatography, were

inherently unreliable. This assertion is based on the claim

that, although the testing technology has been used for years,

the mobile, in-the-field testing instruments used for the two

tests in Mayaguez were relatively recent creations and had not

yet been proven to be reliable. Defendants also claim that Coast

Guard officials took no prophylactic measures to prevent post-

arrest contamination of the defendants and their boat from the

cocaine bales, which the Coast Guard transported together with

the defendants, and from other potential sources of

contamination.

Defendants do not challenge the admissibility of the

testing evidence. Rather, they maintain the testing evidence is

too unreliable to support a jury verdict. We find that

defendants do raise some legitimate concerns regarding the

government's testing procedures. However, because there was

sufficient evidence to convict without consideration of the test

results, we need not decide how reliable the test results were in

this particular case. As we stated above, the other evidence of

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possession, linking the bales of cocaine to defendants' boat, was

ample. We therefore reject defendants' challenge to the

sufficiency of the evidence. Had the defendants raised a

challenge to the admissibility of the evidence and presented a

well-developed record on the problems with in-the-field testing

equipment, we might have been more inclined to reach the merits

of defendants' objection.

B. Admissibility of the "Certification of Denial"

Under 46 U.S.C. App. 1903, it is unlawful for anyone

"on board a vessel subject to the jurisdiction of the United

States," 46 U.S.C. App. 1903(a), to possess with intent to

distribute a controlled substance. Vessels subject to United

States jurisdiction include vessels "without nationality." 46

U.S.C. App. 1903(c)(1)(A). The indictment in this case alleged

that jurisdiction existed because the defendants' vessel was a

"vessel without nationality" within the meaning of 46 U.S.C. App.

1903(c)(1)(A).

A "vessel without nationality" (also called a

"stateless vessel") includes "a vessel aboard which the master or

person in charge makes a claim of registry, which claim is denied

by the flag nation whose registry is claimed." 46 U.S.C. App.

1903(c)(2)(A). A claim of registry can include a verbal claim of

nationality or registry by the master or person in charge. 46

U.S.C. App. 1903 (c)(3)(C). United States v. Maynard, 888 F.2d

918, 922-25 (1st Cir. 1989); United States v. Potes, 880 F.2d

1475, 1478-79 (1st Cir. 1989).

There is no dispute in this case that a "person in

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charge," namely defendant Forbes, made a claim of nationality by

stating that the defendants' vessel was from Colombia. Since a

claim of nationality was made, the vessel can be classified as

"stateless" only if the claim is denied by the flag nation whose

registry is claimed. 46 U.S.C. App. 1903(c)(2)(A). Maynard,

888 F.2d at 925. Section 1903(c)(2) provides that:

A claim of registry under subparagraph
(A) may be verified or denied by radio,
telephone, or similar oral or electronic
means. The denial of such claim of
registry by the claimed flag nation may

be proved by certification of the

Secretary of State or the Secretary's

designee.

46 U.S.C. App. 1903(c)(2) (emphasis added).

To satisfy the jurisdictional requirement under 1903,

the government presented a "certification of denial" from the

State Department as proof that defendants' claim of registry was

denied by Colombia. That certificate was signed by the Acting

Secretary of State and stated: "I Certify That Peter J. Boynton,

whose name is subscribed to the document hereunto annexed, was at

the time of subscribing the Maritime Law Enforcement Officer [at

the State Department], and that full faith and credit should be

given to his acts as such." The annexed statement by Boynton

attested to the fact that Boynton had been designated by the

Secretary of State to make certifications of denial pursuant to

46 U.S.C. App. 1903. Boynton stated that on March 30, 1993, he

contacted the Defense Attache of the United States Embassy in

Colombia to obtain permission from Colombian officials to board

defendants' vessel and to determine its nationality. Boynton

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then recounted the following series of events: The American

Defense Attache obtained permission to board the vessel from an

Admiral H.G. Ram rez, Commandant of the Colombian Navy. The

Attache then related this to U.S. Coast Guard officials who

authorized a boarding of the vessel and who subsequently

determined that the vessel had no indicia of nationality. This

information was relayed back to Colombian officials, and on March

31, 1993, Admiral Ram rez wrote a letter to the American Attache

refuting the defendants' claim of Colombian registry.* Boynton

did not have personal knowledge of any of these events; rather,

he was informed of them as the events unfolded by various State

Department and Coast Guard officials. The actual letter from

Admiral Ram rez refuting defendants' claim of nationality was

never presented at trial.

At issue on appeal is defendants' allegation that the

State Department certificate was inadmissible because it included

double and triple hearsay concerning the fact of Colombia's

denial of registry of defendants' boat, and because the form of

the certificate -- with Boynton's annexed statement containing

critical facts that were not within Boynton's personal knowledge

* The critical language in this case is Boynton's statement:

4. I certify the following:
. . .
(e) Later on March 31, 1993, LCDR Dale of
the U.S. Embassy in Bogot contacted
LT Pete DeCola of the Department of State
and informed him that the Government of
Colombia had refuted the claim of
Colombian registry for the un[n]amed
vessel, by letter signed by ADM Ram rez,
Commandant of the Colombian Navy.

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-- was inherently unreliable.** Defendants argue that Boynton

had no personal knowledge of any of the relevant facts that may

have occurred in Colombia with respect to the request for

boarding the vessel or the Colombian government's reply to that

request, including Colombia's refutation of the nationality of

defendants' boat. Defendants conclude that the district court

erred in admitting the Department of State certificate and that

the government, therefore, failed to establish the element of

jurisdiction under 1903.

The district court did not err in admitting the

Department of State Certificate because there was no hearsay or

other admissibility problem with that piece of evidence. Section

1903(c)(2) specifically provides that "the denial of such a claim

of registry by the claimed flag nation may be proved by

certification of the Secretary of State or the Secretary's

designee." The statute was designed to ease evidentiary

requirements for the government by avoiding the time-consuming

and burdensome task of obtaining official documentation from the

claimed country of registry which was previously required to

prove jurisdiction over a stateless vessel. See United States v.

Leuro-Rosas, 952 F.2d 616, 619-20 (1st Cir. 1991), cert. denied,

112 S. Ct. 1598 (1992). Thus, to establish jurisdiction in the

case of a vessel claiming foreign registry, the government need

** The government argues that some of the defendants did not
join defendant Romero's objection to the district court's
admission in evidence of the State Department certification.
Because we find no merit to the substance of Romero's objection,
we need not determine whether all the defendants have preserved
this ground for appeal.

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not prove that the vessel is in fact without registry in another

country, nor must it prove that the foreign nations' denial or

refutation of registry is valid, legitimate, or otherwise

properly made. In fact, such issues may be irrelevant for

purposes of jurisdiction under 1903 once it is established that

the State Department certifies the vessel is stateless. See 46

U.S.C. 1903(d) ("A claim of failure to comply with international

law in the enforcement of this chapter may be invoked solely by a

foreign nation, and a failure to comply with international law

shall not divest a court of jurisdiction or otherwise constitute

a defense to any proceeding under this chapter); Leuro-Rosas, 952

F.2d at 621-22.***

*** We say that proof of actual registry or of the illegitimacy
of a foreign nation's denial may be irrelevant because the

statute can be read as defining jurisdiction solely in terms of
what the State Department certifies, regardless of whether or not
a defendant's boat is actually registered in a foreign nation.
The government insists that 1903(d) confirms this by stating
that jurisdiction exists even in the face of an alleged violation
of international law. According to the government, a defendant
who wants to assert that his vessel is truly registered in a
foreign nation or that that nation did not properly deny his
claim registry, must protest to the foreign nation itself and
have that nation take up the matter with the State Department on
the defendant's behalf. We are not so sure that the statute
indeed imposes such a burden. It is possible that proving the
registry of a vessel for purposes of jurisdiction under the
statute is not the same thing as contesting a violation of
international law and thus not barred by 1903. See United

States v. Aikins, 946 F.2d 608, 615 (9th Cir. 1990) (noting in

dicta that defendants can rebut the facts presented in a State
Department certification). Anyway, we are not presented with
such a situation in this case -- defendants did not try to
establish at trial that their vessel was in fact Colombian.
Therefore, we do not decide the issue of whether efforts to prove
a vessel's actual registry would be irrelevant under 1903 or
barred by 1903(d).

This case does not, of course, present a challenge to the
authenticity of the government's proffered State Department

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Jurisdiction exists under 1903 if the State

Department determines a vessel is stateless through the receipt

of a denial of registry from a foreign nation. Section

1903(c)(2) allows for proof of this determination by way of a

"certification" of the Secretary or his or her designee. The

presence of what might normally be considered "hearsay" in the

certification is explicitly contemplated by the statute, which

states that a claim of registry "may be verified or denied by

radio, telephone, or similar oral or electronic means." 46

U.S.C. 1903(c)(2). Congress recognized that the State

Department would be using non-documentary, non-self-

authenticating means of obtaining a denial and attesting to this

fact in its certification. Thus, the statute specifically

authorizes as proof of the jurisdictional component of 1903

precisely what the government presented here. The State

Department certification recited with specificity the steps that

resulted in the Department's understanding that "the Government

of Colombia had refuted the claim of Colombian registry for the

un[n]amed vessel, by letter signed by ADM Ram rez, Commandant of

the Colombian Navy." This is sufficientto establish jurisdiction.

certification on the grounds that, for example, the certification
was fraudulently prepared (e.g., untruthful in saying that a
foreign nationa's denial had been received) or presented in bad
faith (e.g., accepting the denial of a janitor in a foreign
nation's public agency instead of a public officer in that
agency). We therefore reserve the question of whether 1903(d),
or any other provisions of 1903, would bar the presentation of
evidence relating to the facts of registry or the actions of
foreign nations in situations that might warrant determination,
probably by the court, as to whether a proper certification was
being offered.

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There is no hearsay or other problem with the form of

the certification in this case. The attachment of a declaration

by Boynton to the Secretary of State's certification is perfectly

acceptable because Boynton constitutes the "Secretary's designee"

under 1903(c)(2). Several courts have accepted declarations

attached to certificates as proper and admissible

"certifications" under 1903. United States v. Aikins, 946 F.2d

608, 614 (9th Cir. 1990); United States v. Mena, 863 F.2d 1522,

1531 (11th Cir.), cert. denied, 493 U.S. 834 (1989) (finding

admissible a letter from Honduran Navy attached to certification

from United State Embassy in Honduras); cf. Leuro-Rosas, 952 F.2d

at 618-21 (expressing approval of certification under 1903 in

the same form as the certification in this case).

Boynton's reliance on the actions and statements of

other State Department officials in certifying Colombia's denial

of registry does not raise admissibility problems under the

hearsay rule. The State Department Certification falls squarely

within Fed. R. Evid. 803(8)(A) which excepts from the hearsay

rule public-agency statements "in any form" setting forth "the

activities of the office or agency." Fed. R. Evid. 803(8)(A);

Mena, 863 F.2d at 1531. The State Department's declaration that

it received a denial of defendants' claim of registry from

Colombia was a statement by a public agency setting forth a

routine activity of that agency. The hearsay exception under

Fed. R. Evid. 803(8)(A) accounts for all of the subsidiary

statements relayed by the State Department operatives to the

declarant, Boynton. See Aikins, 946 F.2d at 614-15 (noting that

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the authority of a certifying official who relies on the

statements of functionaries for his information "is not diluted,

and the admissibility of his certificate is not diminished,

because he indicated the basis for his statement"; and stating

that "the Secretary of State could properly rely on those in his

chain of command. A probability of trustworthiness attends the

statement of the certifying officer; it is equally probable that

the officer has taken reasonable measures to assure himself of

the fact he certifies").

C. Jury Instructions

Defendants argue that the district court's "reasonable

doubt" instructions and its instructions on the elements of the

crime were erroneous. Before trial, the district court judge

described for the jury the reasonable doubt standard by comparing

it to the civil, preponderance of the evidence standard. The

judge instructed the jurors:

The government must prove each defendant
guilty beyond a reasonable doubt. The
defendants have no burden to prove their
innocence or to present evidence or to
testify. The law forbids you from
considering the silence of an accused,
his failure to testify, in reaching a
verdict. That is a right that a
defendant has. You cannot consider the
silence of an accused in the face of an
accusation. That is illegal. You cannot
do that.

The government, as I said, must prove the
case beyond a reasonable doubt. And let
me explain in very simple terms what this
means. Usually, at this stage of the
case, what we judges do is concur [sic]
the two standards, the one that applies
in the civil case and one that applies in
a criminal case, so that you will have an

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idea of the difference. At the end of
the case I will explain this again to
you.

In the civil case we say that a plaintiff
prevails if he proves the case against
the defendant by the preponderance of the
evidence. Assume, then, a graphic
example. A scale, an even scale. You
will put the evidence of the plaintiff
and the evidence of the defendant, if
any, on the two sides and you see what
happens to the scale. If the scale just
moves a little bit to the plaintiff's
side, the plaintiff is prevailing in the
context of a civil case. That could be a
car accident case, a contracts case,
preponderance of the evidence.

In the criminal context we say the
government must prove each defendant
guilty beyond a reasonable doubt. That

implies a heavier burden. Assume, then

that the scale must tip more to the

government's side, heavier burden.

Why? Because liberty is involved and, of
course, the wise people who devised the
system understood that the evidence would
be received under a different standard,
as we say, beyond a reasonable doubt.

I will explain this once again for your
benefit at the end of the case; but if
you have ever served in a civil case, you
should disregard the particular notion of
preponderance. Here we say beyond a
reasonable doubt. (emphasis added).

No objections were made at this time, or subsequently, concerning

these instructions. After closing arguments, the court stated:

Each defendant is presumed to be
innocent. Each defendant had no duty to
testify or present any evidence or prove
their innocence.

The government had the burden to prove
each defendant guilty beyond a reasonable
doubt, and that you know from the
beginning.

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What is this business of "reasonable
doubt"? "Reasonable doubt" is a doubt
based upon reason and common sense and
may arise from a careful and impartial
consideration of all the evidence in the
case, or the lack of evidence in the
case.

Proof beyond a reasonable doubt is proof
that leaves you firmly convinced that the
defendants are guilty.

. . . .

So, proof beyond a reasonable doubt is
proof that leaves you firmly convinced
that had a given defendant has been
proven guilty beyond a reasonable doubt
[sic].

At the end of this charge, the defense attorneys approached the

bench but no one objected to the reasonable doubt instructions.

Defendants argue that the instruction concerning the

"even scale" is faulty for two reasons. First, it dilutes the

degree of persuasion required to convict a defendant in a

criminal case. Second, the "even scale" mechanism presupposes

that the criminal defendant will submit evidence so as to balance

the scale. According to the defendants, the fact that the

government would usually submit more evidence than the defendant

will, in the eyes of a reasonable juror, forcibly tip the scale

to the government's side, even when such tipping is not

sufficient to convict beyond a reasonable doubt. In comparing

the criminal standard to the civil one, defendants contend that

the court actually defined proof beyond a reasonable doubt as

preponderance of the evidence, but with a "heavier burden."

Defendants conclude that this dilutes the meaning of reasonable

doubt.

-22-

Because defendants failed to raise this objection at

trial, we must review the trial court's instructions for plain

error. Fed. R. Crim. P. 52(b). We will find plain error only

when (1) there is an "error," (2) that is "clear" or "obvious"

and (3) that affects "substantial rights." United States v.

Olano, 113 S. Ct. 1770, 1776-77 (1993); United States v. Col n-

Pag n, 1 F.3d 80, 81 (1st Cir. 1993).

In this case, although the reasonable doubt

instructions may be erroneous, we cannot find that they are

clearly and obviously so. Reasonable doubt instructions are

erroneous when, taken as a whole, they have a "reasonable

likelihood" of misleading the jury to believe that it can convict

on some lesser standard of proof than that required under the

reasonable doubt standard. V ctor v. Nebraska, 114 S. Ct. 1239,

1243, 1251 (1994). Although the court's statement that "the

scale must tip more to the government's side" may, if taken in

isolation, suggest a somewhat diluted burden of proof, the court

was clear that the reasonable doubt standard was distinct from,

and imposed a "heavier burden" than, the preponderance standard

used in civil trials. The court also told the jury several times

that the defendants had no burden to prove their innocence, and

that they did not have to present any evidence. This decreased

the likelihood that the jury would improperly weigh the evidence

or lack thereof.

What little explanation the court gave on the term

"reasonable doubt" was harmlessly circular. There was no mention

in the final charge of the preponderance of the evidence

-23-

standard. Although the use of the scale analogy has the

potential for misleading the jury into applying a diluted burden

of proof, we do not see in this case, with all the instructions

taken as a whole, a clear and obvious likelihood that the jury

would be so misled.

Defendants also argue that the district court erred in

its instructions with respect to the elements of the crime

because the instructions might have suggested to the jury that

jurisdiction was not an element of an offense under 1903.

According to the defendants, the court's confusing instructions

effectively failed to inform the jury that it must find that

defendants' vessel was subject to the jurisdiction of the United

States beyond a reasonable doubt. As with the reasonable doubt

instruction, no objection was made at trial to the court's

instructions on the elements of the crime.

We need not reach the substance of defendants'

objection on this issue because the defendants presented no

evidence at trial to refute the government's proof that the

defendants' vessel was stateless and thus subject to the

jurisdiction of the United States. Other than defendants'

attempt to prevent the admission of the State Department

certification, the issue of United States jurisdiction over their

vessel was not contested. We agree with the Third Circuit that

there is no plain error in a situation such as this one. United

States v. Mart nez-Hidalgo, 993 F.2d 1052, 1057 (3d Cir. 1993),

cert. denied, 114 S. Ct. 699 (1994) (finding no plain error when

court refused to instruct jury on jurisdiction as an element to

-24-

be proved under 1903). Because the undisputed evidence

conclusively established jurisdiction, the court did not

undermine the fundamental fairness of the trial or contribute to

a miscarriage of justice by failing to instruct the jury on that

element of the crime. Id. Moreover, unlike in Mart nez-Hidalgo,

the court in the present case at least attempted to give an

instruction to the jury on the element of jurisdiction. There is

thus less likelihood of plain error in this case than in

Mart nez-Hidalgo.

D. Sentencing of Romero

Defendant Romero argues that the district court erred

in finding that, as a matter of law, it was precluded from

granting a downward departure in sentencing for "extraordinary

family circumstances" under 5K2.0 of the Sentencing Guidelines.

Romero testified at his sentencing hearing that the mother of his

children was murdered in Colombia in 1988. His three children

presently live with his sister in Santa Marta, Colombia. The

sister has four children of her own to take care of. They all

live together in a small two-bedroom house. The sister's husband

works only periodically. Romero's eldest daughter was suspended

from school because Romero's sister and her husband could not

make the monthly payments that the school required. Romero's

son, Ronald Romero, suffers from a rare blood disease. Ronald's

doctor recommended treatment with special pills and food as well

as a blood transfusion. Romero did not know if his son Ronald

had ever received the recommended treatments.

Following Romero's testimony, the court rejected any

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downward departure based on 5K2.0 for unique family

circumstances. The court stated:

You are going to 5K2.0, basically, and
asking me to read within the context of
this case a departure for unique family
circumstances of the kind not normally or
not taken into consideration by the
Sentencing Commission when they drafted
the guidelines.

But I do not think that that's the case.
As a matter of fact, your request falls
within the category that discourages
departures that pertain to such things as
family ties and family responsibilities,
etcetera. I do not think that this case
is so different from what I see in 90
percent of the cases. Take a look at
what happened here today this afternoon.
We have visions that are as terrible and
as depressing and as sad as the ones that
he has now.

I cannot, on the basis of what I know of
this record, and on the basis of what I
heard here, make a substantial departure
under that particular section . . . .

I do not think -- I do not think that
this stands as a situation that is so
different from that that we see on a
daily basis, which are very sensitive
situations. Assuming no diseases,
assuming no circumstances of that kind --
the mere fact that a father, that of
itself is extraordinary, but that is not
what the law allows me to consider.

Romero's Attorney then stated:

Well, your Honor, precisely your Honor
stated "assuming no diseases," and that
is precisely why we raised the matter.
It is what the probation officer called
"a rare blood disease," and that is why
we had, at the outset of our allocution,
explained to your Honor the problems that
we have encountered.

The court responded:

-26-

That's okay. But I am not assuming that
that is true. I am assuming that what
the child has is sickle-cell anemia. It
could be sickle-cell anemia, it could be
leukemia, but those two factors are not
enough for me to depart.

Romero argues that the court's statement ("that is

extraordinary, but that is not what the law allows me to

consider") evinced the court's perception that it was legally

unable to depart in the absence of "diseases" or "circumstances

of that kind." According to Romero, the court's position was

that on a record which did not include particular medical

conditions, the court was legally precluded from departing. Yet

the court then assumed Romero's son had a blood disease -- either

sickle-cell anemia or leukemia -- and thus that an "unusual

circumstance" was present. The court, however, still did not

depart because, Romero claims, it thought that it could not

legally do so under the circumstances of this case. Romero's

interpretation of the court's decision is mistaken. We therefore

uphold his sentence.

United States Sentencing Guidelines 5K2.0 recognizes

that under 18 U.S.C. 3553(b) "the sentencing court may impose a

sentence outside the range established by the applicable

guideline, if the court finds 'that there exists an aggravating

or mitigating circumstance of a kind, or to a degree, not

adequately taken into consideration by the Sentencing Commission

in formulating the guidelines that should result in a sentence

different from that described.'" U.S.S.G. 5K2.0 (quoting 18

U.S.C. 3553(b)). Family ties and responsibilities are normally

-27-

"discouraged" grounds for departure, U.S.S.G. 5H1.6, because

they are not outside the normal "heartland" case which the

Sentencing Commission has already taken into consideration.

Nonetheless, such factors "could remove a case from the

heartland, but only if they are present in a manner that is

unusual or special, rather than 'ordinary.'" United States v.

Rivera, 994 F.2d 942, 948 (1st Cir. 1993) (emphasis in original).

Thus, a sentencing court may depart downward for purposes of a

defendant's family ties and responsibilities, if, and only if, it

finds those factors to be unusual or special. Id. at 948, 951.

Ordinarily, a district court's refusal to exercise its

discretion to depart downward from the sentencing guidelines is

not reviewable on appeal. United States v. LeBlanc, 24 F.3d 340,

348; United States v. Smith, 14 F.3d 662, 665 (1st Cir. 1994);

United States v. McAndrews, 12 F.3d 273, 276 (1st Cir. 1993).

Appellate jurisdiction does attach, however, where the sentencing

court's decision not to depart is based on the court's mistaken

view that it lacks the legal authority to consider a departure.

LeBlanc, 24 F.3d at 348; Smith, 14 F.3d at 665-66; United States

v. DiIorio, 948 F.2d 1, 8 (1st Cir. 1991). In other words, where

the court errs in determining whether the allegedly special

circumstances are of the "kind" that the Guidelines, in

principle, permit the sentencing court to consider, we may

proceed to review the courts sentencing decision not to depart.

Rivera, 994 F.2d at 950-51. On the other hand, if "we find that

the court properly understood its power to depart, but refused to

exercise that power, we lack jurisdiction to consider the

-28-

appeal." LeBlanc, 24 F.3d at 348; United States v. Lombardi, 5

F.3d 568, 571-72 (1st Cir. 1993).

Thus, the issue on this appeal is whether the district

court exercised its discretion by finding that Romero's family

circumstances, including his son's disease, was not sufficiently

unusual or different from the heartland case to warrant a

departure or whether the court found that the Guidelines did not

allow him to depart for circumstances like the ones present in

this case. Because we find the court did not misunderstand its

authority to depart, its departure decision is not reviewable on

appeal.

It is fairly clear that the court understood its

ability to depart under the guidelines, but found that the facts

of the case prevented the court from doing so. The court

explicitly and correctly noted that it was considering a

discouraged type of departure for unique family circumstances.

The court then found that the facts of this case were not "so

different from what I see in 90 percent of the cases." This

demonstrates that the court knew that it could depart if it found

the facts placed the present case outside of the heartland of

cases that it normally faced.

The court did say: "Assuming no diseases, assuming no

circumstances of that kind -- that mere fact that a father, that

of itself is extraordinary, but that is not what the law allows

me to consider." (emphasis added). In the context of the entire

decision and the court's previous statements, we interpret this

statement simply as a correct expression of the applicable law.

-29-

The court was saying that it could not depart unless it found the

facts of the case were unusual or different than the heartland

case and that the mere fact that Romero was a father and had

children that someone else was caring for did not constitute an

unusual or special situation for which the Guidelines would allow

a departure. After Romero's counsel pointed out that there was

evidence of a special circumstance -- namely Romero's son's blood

disease -- the court stated that it had assumed the son had

either sickle-cell anemia or leukemia, "but that those two

factors are not enough for me to depart." The court was not

saying that the Guidelines prohibited him from considering

Romero's son's disease as the type of factor upon which a

departure decision can be based, he was merely saying that he

considered the disease and that it was "not enough for [him] to

depart." Although the court's language is not a model of

clarity, we are certain that the judge was making a factual and

discretionary determination here; he did not hold that diseases

can never merit a departure under the Guidelines. The court was

thus not mistaken about its power to depart but rather made a

judgment call that we may not review on appeal.

Affirmed.

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