United States v. Rivera-Santiago

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1843 UNITED STATES,

Appellee,

v.

FRANKLYN RIVERA-SANTIAGO,

Defendant - Appellant.

No. 95-1844
UNITED STATES,

Appellee,

v.

EDWIN ALAMO-SILVA,

Defendant - Appellant.

ERRATA

The following change should be made in the opinion dated
March 10, 1997:

Page 14, n.6, line 10 - insert the word on between the
words based and its.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1843
UNITED STATES,

Appellee,

v.

FRANKLYN RIVERA-SANTIAGO,

Defendant - Appellant.

No. 95-1844

UNITED STATES,

Appellee,

v.

EDWIN ALAMO-SILVA,

Defendant - Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. H ctor M. Laffitte, U.S. District Judge]

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and DiClerico, Jr.,* District Judge.

* Of the District of New Hampshire, sitting by designation.

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Roberto Rold n-Burgos for appellant Franklyn Rivera-Santiago

and Rachel Brill for appellant Edwin Alamo-Silva were on joint

brief.
Jacabed Rodr guez-Coss, Assistant United States Attorney,

with whom Guillermo Gil, United States Attorney, Jos A. Quiles,

Senior Litigation Counsel, and Nelson P rez-Sosa, Assistant

United States Attorney, were on brief for appellee.

March 10, 1997

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Per Curiam. Defendants, Franklyn Rivera-Santiago and
Per Curiam.

Edwin Alamo-Silva, challenge their convictions and sentences

following a jury trial. For the reasons discussed below, we
vacate their convictions and remand for a new trial.

I. Background
I. Background

We recount only those facts necessary to resolve the

instant appeals. On January 25, 1995, a grand jury returned a

three-count indictment against the defendants, charging them with

aiding and abetting each other in attempting to possess with

intent to distribute narcotics in violation of 21 U.S.C.

841(a)(1), 943 and 18 U.S.C. 2; aiding and abetting each

other in attempting to import narcotics into the United States in

violation of 21 U.S.C. 952(a), 963 and 18 U.S.C. 2; and

aiding and abetting each other in attempting to possess on board

a vessel of the United States with intent to distribute narcotics
in violation of 46 U.S.C. App. 1903(a), (b)(2)(c), (f), (j) and

18 U.S.C. 2.

At trial, the government elicited testimony from U.S.

Customs Service air interdiction officers who were assigned to

three aircraft operating off the southeast coast of Puerto Rico

on the night of January 4, 1995, and the morning of January 5,

1995. The officers were investigating what was perceived to be a

suspicious aircraft flying with its lights off and without a

flight plan from South America toward Puerto Rico. The

government s first witness was Leslie Robb, who operated the

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radar and Forward Looking Infrared camera ( FLIR )1 on one of the

aircraft, Omaha 42. Robb testified that after circling for

nearly forty minutes, the suspicious aircraft dropped several
objects into the water at 12:39 a.m. at a point approximately six

miles off the coast of Patillas, Puerto Rico. The splashes were

captured on a videotape of Omaha 42's FLIR, which was submitted

to the jury as evidence along with videotapes of the FLIRs from

the other two aircraft. The videotapes included the radio

communications among the air interdiction officers and other law

enforcement personnel that occurred contemporaneously with the

images produced by the FLIRs. These radio communications

revealed that immediately before the airdrop occurred, a vessel

was seen flashing its lights in the area near the suspicious

aircraft, and that the aircraft which had turned its lights on at

some point before the airdrop turned them off shortly thereafter.

The government s second witness, Raul Antonio Rivera-
Calleja ( Rivera ), operated the radar and FLIR systems on a

second plane, Omaha 02, which began looking for marine targets

after the airdrop had occurred. At approximately 1:04 a.m.,

Rivera acquired a vessel on radar approximately two miles from

the site of the airdrop. This target was the only one that

Rivera was able to locate on his radar, which covered a twenty-

five-mile radius around the aircraft. Rivera testified that

after he had located the vessel on radar, his fellow crew members

1 The FLIR produces video images of objects based on the amount
of heat they emit. The FLIR can be integrated with a plane s
radar system to provide images of targets found on radar.

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informed him that they saw no lights on the surface of the water,

and that the vessel s navigation lights had to have been turned

off. Rivera further testified that shortly after acquiring the
vessel on radar, his FLIR showed two objects floating in the

water approximately twenty feet from the rear of the vessel.

The government s next witness, David Cruciger, was the

pilot in command of Omaha 02. Cruciger offered the following

description of the airdrop on direct examination:

Once again while flying in this pattern, we
received information from Omaha 42 that a
drop was taking place and that they were
seeing the splashes. Chris Thorton [the co-
pilot aboard Omaha 02] said it, directed my
attention out the right-hand window of the
aircraft. I banked the aircraft over so I
could see out in that direction; and with the
aircraft banked, I could see down into the
water a flashing light. It was described by
Omaha 42. As we watched the light, I saw an
aircraft or what I believed to be an aircraft
turn on its navigation recognition lights and
fly at low altitude over the lights that were
flashing in the water.
When asked during cross-examination whether he had seen the

lights before the drop occurred, Cruciger stated that he

believe[d] it was during the drop.

The government s fourth witness, John Alpers, operated

the radar and FLIR system on the third aircraft, Omaha 38.

Alpers testified that he located a vessel -- the same one next to

which Rivera s FLIR would later detect two objects floating in

the water -- on radar at approximately 12:45 a.m., approximately

two miles from the site of the airdrop, and that, according to

the co-pilot aboard Omaha 38, all of the vessel s lights were

out. Alpers also testified that although he located one object

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on his radar that he believed to be a reef, he located no other

vessels on his twenty-five-mile radar.

The government s witnesses testified that the vessel
remained stationary from the time Alpers acquired it on his FLIR

at 12:54 a.m., approximately three miles from the site of the

airdrop, until a coast guard helicopter arrived at approximately

1:13 a.m. and shined a bright light on it. They further

testified that the vessel began to move toward shore after the

coast guard helicopter illuminated it, and that the defendants

were found aboard the vessel when it arrived on shore and were

promptly arrested. Although no contraband was found aboard the

defendants vessel, the government introduced into evidence four

bales of cocaine that were found floating in the water in the

vicinity of the drop site. The first bale was found at

approximately 2:00 a.m. on January 5, 1996, and three more were

found at approximately 1:30 p.m. the same day tied together with
rope of a type found on the defendants vessel. Two of the

government s witnesses speculated that, following the airdrop,

the defendants had gathered the three bales that were found tied

together and, rather than bringing the bales aboard, placed them

in tow so as to facilitate disposal in the event the defendants

scheme was discovered.

The government also introduced into evidence a business

card found in defendant Rivera-Santiago s wallet, which was

discovered in his car, bearing the coordinates of a spot

approximately seven miles away from the site of the airdrop. In

addition, the government s witnesses testified that they found

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defendant Alamo-Silva s Toyota 4-Runner at his girlfriend s

house, which was accessible via a pathway to the beach and was

located approximately one-quarter of a mile away from the point
where the defendants arrived on shore. The keys to the 4-Runner

were found in the vehicle, which was parked with its back to the

water and its rear seats folded down. Finally, the government s

evidence indicated that the registration number painted on the

back of the vessel on which the defendants were found, which

belonged to defendant Rivera-Santiago, differed by two letters

from the number under which the vessel had been registered with

the Puerto Rico Department of Natural Resources.2

The defendants contended that they were out fishing on

the night of the airdrop and were simply caught in the wrong

place at the wrong time. They elicited testimony concerning

other vessels that might have been in the area at the time of the

airdrop but were not detected on radar, including a vessel found
abandoned on shore on the morning of January 5, 1995, that

contained marijuana residue. Rivera-Santiago testified that his

vessel was operating without navigation lights on the night in

question because the vessel s built-in navigation lights had been

damaged on a previous occasion and because he had stopped using

the portable navigation light he had recently purchased for the

boat. He explained that the portable navigation light wouldn t

stay fixed for a long time, would fall every time the boat

2 The boat was registered under registration number PR0645BB,
but bore the number PR0645DD.

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jumped, and didn t work. 3 His testimony also indicated that he

began fixing one of the engines on the boat at approximately

11:00 p.m. with only the aid of a flashlight, and that the vessel
was already moving when the coast guard helicopter arrived at

1:13 a.m. Finally, the defendants elicited testimony concerning

the maximum speed of Rivera-Santiago s vessel, suggesting that it

might have been difficult for the boat to retrieve at least three

bales of cocaine and travel approximately two miles, as the

government s evidence suggested, during the six-minute interval

between the airdrop and the time Alpers detected Rivera-

Santiago s vessel on radar. They also argued this point to the

jury.4

The jury began deliberating late in the afternoon on

April 10, 1995, and, at 7:50 p.m. the following day, informed the

trial judge that it was unable to reach a verdict but wanted to

come back the next day to continue its deliberations. The next
morning, the jury submitted the following message to the court:

We wish to obtain the following information
from the transcription notes to clarify some doubts:

3 During the government s rebuttal, the law enforcement agent
who impounded and operated the vessel following the defendants
arrest testified that he had no trouble using the portable
navigation light.

4 Counsel for defendant Alamo-Silva argued during closing
argument that Rivera-Santiago s vessel remained stationary from
12:45 a.m. until approximately 1:13 a.m. However, our review of
the record indicates, and the defendants brief acknowledges,
that Alpers acquired the vessel on radar approximately two miles
from the site of the airdrop at 12:45 a.m., and that he located
the vessel on his FLIR approximately three miles from the airdrop
at 12:54 a.m., by which time the vessel had stopped moving.

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1. The first time the suspect air craft
was detected in the fishing area (the
hour)

2. The time of the air drop
3. The time the suspect vessel was
detected in the fishing area

4. If there were any sign of
flashing lights from the suspect
aircraft and suspect vessel.

After trial counsel for defendant Alamo-Silva unsuccessfully

argued that providing answers to any of the jury s questions

would invade the province of the jury, the parties and the court

agreed on the responses to the first three questions. In

response to the fourth question, and at the government s request,

the trial judge elected to read back to the jury part of David

Cruciger s testimony. This decision came over the objection of

counsel for each of the defendants. Noting that Cruciger was the

only witness who testified that he saw flashing lights,5 defense
counsel asked that testimony from the witnesses who did not see

flashing lights be read into evidence, and further argued that it

was not clear what the jury meant by suspect vessel.

The trial judge addressed the jury as follows:

I have your four questions. Let me say that
the answer to two of your questions you have
to see the [videotape of the] FLIR; you
should see the FLIR. But I m going to answer
two questions. The first -- your first
question is the first time the suspect

5 Although the audio portion of the FLIR videotapes contains
references to flashing lights from sea level and to a temporarily
illuminated light on the suspect aircraft, Cruciger was the only
witness to testify at trial that he saw lights from either
source.

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aircraft was detected in the fishing area,
the hour. That you may look into the FLIRs.

Then the time of the airdrops, there s
stipulation that it s 12:39 a.m., 12:39 a.m.,
time of the airdrop.
The third question, the time the suspect
vessel was detected in the fishing area, that
you have to look it up in the -- from the
FLIR tapes.

Fourth -- I m going to answer that question
now -- if there -- if there were any sign of
flashing lights from the suspect aircraft and
the suspect vessel, I m going to read you the
testimony of David Cruciger. Listen
carefully. [The court reporter then read back
the following portion of Cruciger s
testimony.]:

Once again while flying in this pattern,
we received information from Omaha 42
that a drop was taking place and that
they were seeing the splashes. Chris
Thorton, Officer Thorton said it,
directed my attention out the right-hand
window of the aircraft. I banked the
aircraft over so I could see out in that
direction; and with the aircraft banked,
I could see down into the water a
flashing light. It was described by
Omaha 42. As we watched the light, I saw
an aircraft or what I believed to be an
aircraft turn on its navigation
recognition lights and fly at low
altitude over the lights that were
flashing in the water.

[The trial judge continued.] Okay. Very
well. You may go back to your deliberations.

The jury returned guilty verdicts against the

defendants on all counts approximately two hours after the trial

judge answered its questions, apparently having eaten lunch in

the interim. Defendant Alamo-Silva was sentenced to prison for

295 months. Defendant Rivera-Santiago was sentenced to prison

for life.

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II. Discussion
II. Discussion

A. The Trial Judge s Response to the Jury s Fourth
A. The Trial Judge s Response to the Jury s Fourth

Question
Question

We first address the defendants contention that the
trial judge committed reversible error when, in response to the

jury s fourth question, he selected a portion of Cruciger s

testimony and had it read to the jury.

The Sixth Amendment guarantees a defendant in a

criminal case the right to a trial by jury. We have previously

noted that [u]ndeniably inherent in the constitutional guarantee

of trial by jury is the principle that a court may not step in

and direct a finding of contested fact in favor of the

prosecution regardless of how overwhelmingly the evidence may

point in that direction. United States v. Argentine, 814 F.2d

783, 788 (1st Cir. 1987) (quoting United States v. Martin Linen

Supply Co., 430 U.S. 564, 573 (1977)). Although the district

court may, at its discretion, reread testimony where the jury

makes a request to have specific testimony reread, see, e.g.,

United States v. Bennett, 75 F.3d 40, 46 (1st Cir.), cert.

denied, 117 S. Ct. 130 (1996); United States v. Aubin, 961 F.2d

980, 983-84 (1st Cir.), cert. denied, 506 U.S. 886 (1992), we

have noted that the culling of testimony in response to a jury s

open-ended question may, in effect, make the court a finder of

fact, see Aubin, 961 F.2d at 983 (quoting United States v.

Almonte, 594 F.2d 261, 265 (1st Cir. 1979)), and have found

constitutional error where a district court s answer to a jury s

factual question had the effect of mandating that the jury reach

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a conclusion on a particular issue. Argentine, 814 F.2d at 787-

88.

Our analysis of the trial judge s answer to the jury s
fourth question in the context of the evidence elicited during

the course of the trial compels us to conclude that the trial

judge usurped the jury s factfinding role as to the subject

matter of that question, and, in so doing, deprived the

defendants of their right to trial by jury. In reaching this

conclusion, we note that two of the vices we identified in

Argentine are not present here. First, the trial judge did not

expressly represent that the parties had reached an agreement as

to the subject matter of the jury s question. Second, rather

than presenting his answer to the jury s question as

accomplished fact, the trial judge informed the jury that the

evidence he was recounting was the testimony of a particular

witness. See id. at 787. However, it is evident from a review

of the record that the substance of the court s answer together

with the context in which it was delivered brought about the same

prohibited result that we found in Argentine for three reasons.

First, the trial judge selected only a part of

Cruciger s testimony given on direct examination to be read in

response to the jury s question and, in so doing, necessarily

suggested to the jury that this testimony would provide the

answer to the jury s question. This suggestion had the effect of

both encouraging the jury to believe Cruciger and discouraging

the jury from considering and possibly crediting alternative

accounts of the events surrounding the airdrop. The record

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contains evidence that was inconsistent with, if not

contradictory to, Cruciger s assertion that he saw an exchange of

lights during the airdrop between the suspicious aircraft and an
object in the water. For example, Cruciger s testimony was at

odds with Rivera-Santiago s assertions that his vessel s built-in

navigation lights were not working and that he had stopped using

the portable navigation light that he had recently purchased. In

addition, Cruciger testified on direct examination that he began

looking for flashes of light from sea level after the suspect

aircraft had begun dropping objects into the water and then

stated on cross-examination that he believed he saw lights during

the airdrop. However, the audio portion of the videotape

indicates that unidentified air interdiction officers viewed

flashing lights before any objects were dropped, and contains no

mention of lights from sea level during or after the airdrop. At

a minimum, these inconsistencies raise questions about when or
whether Cruciger saw flashing lights from sea level and, if he

saw lights, whether those lights came from Rivera-Santiago s

vessel or from another vessel.

Second, the context in which the trial judge gave his

response to the jury s fourth question had the effect of placing

his imprimatur on the facts contained in that portion of

Cruciger s testimony that was read to the jury. It is

significant that the jury was posing questions in order to obtain

information from the record to clarify some doubts. In

answering the first three questions, the trial judge either

provided an unequivocal statement of fact to which the parties

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had stipulated (question no. 2) or directed the jury to the FLIR

videotapes where the answer to their questions could be found

(question nos. 1 & 3). However, in responding to the jury s
fourth question the trial judge began by stating I m going to

answer that question now, and then had part of Cruciger s

testimony read. The net effect of what the trial judge did was

to focus the jury s attention on only part of Cruciger s

testimony concerning flashing lights and away from other evidence

given by Cruciger and others that was relevant to a resolution of

the doubts the jury expressed in its note about the existence of

flashing lights from the air and from sea level.

Finally, by referring the jury to Cruciger s testimony,

the trial judge suggested to the jury that the suspect vessel

(the term used in the jury s question and throughout the trial to

describe the boat on which the defendants were found), and not

another vessel, was the source of the light that Cruciger claimed
to have seen. Although, as noted above, Rivera and Alpers

testified that Rivera-Santiago s vessel was the only one that

showed up on radar at the time of the airdrop, the defendants

presented evidence suggesting that there were other vessels in

the area. The trial judge s answer to the question confirmed an

assumption inherent in the jury s question, i.e., that the vessel

seen flashing its lights was the same suspect vessel that

Alpers picked up on radar six minutes after the airdrop occurred

and approximately two miles away.

For the foregoing reasons, we conclude that the trial

judge s response to the jury s fourth question invaded the

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province of the jury.6 We must next turn our attention to the

question of whether the district court s error can be termed

harmless. As we noted in Argentine, in cases involving errors

of constitutional dimension the harmless-error inquiry focuses on

the existence of a reasonable possibility that the error at issue

influenced the jury in reaching the verdict. Argentine, 814 F.2d

at 789 (citing Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)).

Phrased another way, we must now determine whether the

constitutional error was harmless beyond a reasonable doubt. Id.

at 789; see also Sullivan v. Louisiana, 508 U.S. 275, 279 (1993);

Chapman v. California, 386 U.S. 18, 23-24 (1967); United States

v. Trenkler, 61 F.3d 45, 60 n.22 (1st Cir. 1995).7

As we have previously noted, the jury in its message to

the trial judge sought specific factual information to clarify

some doubts. Therefore, we can reasonably infer from the

6 While trial judges have discretion as to the manner in which
they respond to questions from a jury, great caution must be
exercised when a jury asks a factual question concerning the
evidence in a case. In view of the evidence presented during the
trial of this
case, an appropriate response to the jury s question would have
been an instruction to the jury that it must take its own
recollection of the evidence. See, e.g., Aubin, 961 F.2d at 983

(trial judge did not abuse discretion where, in response to
factual question, he instructed the jury that as finder of fact
it was its responsibility to weigh and interpret evidence);
United States v. Hyson, 721 F.2d 856, 865 (1st Cir. 1983) (no

abuse of discretion where, in response to factual question, judge
declined to reread relevant testimony and instructed jury to make
findings based on its recollection of the evidence).

7 The defendants do not contend that the district court s error
falls into the narrow category of constitutional defects that
foreclose all harmless error review. See Arizona v. Fulminante,

499 U.S. 279, 306-12 (1991) (distinguishing between trial errors
that abridge defendant s constitutional rights and structural
defects affecting framework in which trial proceeds).

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context in which the jury asked the fourth question that some or

all of the jurors, after deliberating for a little more than one

day, entertained some doubts about the existence of flashing
lights from the suspect aircraft and suspect vessel. That

the jury had doubts about this issue is significant for two

reasons. First, the existence or non-existence of flashing

lights, their location, their source, and their timing are

matters that were central both to the government s and the

defendants theories of the case.

Second, the manner in which the trial judge culled the

evidence effectively determined the outcome of how the jurors

would resolve their doubts since they were directed to only part

of the evidence concerning lights (i.e., a portion of the

testimony of the only witness who testified that he saw lights)

instead of being instructed to consider and weigh all of the

evidence relating to that issue adduced at trial.8 The
defendants were entitled to have their theory of the case, as

developed through their evidence, presented to the jury on an

equal footing with the government s theory of the case. This did

not occur because the trial judge s response tipped the scales in

favor of the government s theory.

8 The defendants, who contended they were out fishing on the
night in question, adduced evidence that they were operating
without navigation lights because the built-in lights were
previously damaged and the portable navigation light would not
stay fixed, that it was not unusual for fishermen to be without
lights, that there were other vessels in the area including one
found on shore with marijuana residue in it, and that the
government s time line, i.e., the six-minute span within which
certain events were supposed to have occurred, was not
reasonable.

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We also note that the jury had expressed to the trial

judge an inability to reach a verdict the night before posing its

questions and arrived at guilty verdicts two hours after
receiving the answers, raising an inference that the trial

judge s response influenced the verdicts. While such an

inference in and of itself is not controlling in our evaluation

of harmless error, it is a factor that can be weighed along with

other factors.

We have considered the trial judge s error and its

effects, as previously discussed, in the context of the entire

trial record. The government presented significant

circumstantial evidence pointing to the defendants guilt.

However, under the applicable standard the verdicts can stand

only if we find that the error was harmless beyond a reasonable

doubt. We cannot make such a finding. The government s case as

to the identity of the suspect vessel required a close
calculating and comparing of times, coordinates, and distances, a

process that might well have been shortcircuited by injection of

the incriminating aspect of the evidence as to flashing lights.

We conclude that in view of the context in which the fourth

question was asked, the significance of the issue raised by that

question to the outcome of the case, the response that was given,

and the context in which the response was given, there is a

reasonable possibility that the error at issue influenced the

jury in reaching its verdicts in this case. Therefore, the

verdicts cannot stand.

B. Evidentiary Issues
B. Evidentiary Issues

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Several of the evidentiary issues raised by the

defendants are likely to recur in the event of a retrial and

therefore we will addressnforcement officers who, not having been
qualified as experts, offered opinion testimony at trial based on

their experience.9 Specifically, the defendants object to the

testimony of John Alpers and Raul Rivera suggesting that items

dropped from an airplane and not otherwise gathered together

would have been further apart than the objects appearing on

Rivera s FLIR behind the suspect vessel; to U.S. customs agent

Roberto Escobar s testimony suggesting that the reason a wrong

number might be painted on the rear of a vessel would be to

hinder law enforcement authorities from identifying its owner;

and to Escobar s characterization of the coordinates of the

airdrop as being pretty close to those found on the back of the

business card found in Rivera-Santiago s wallet.

In United States v. Paiva, 892 F.2d 148 (1st Cir.

1989), we noted that the modern trend favors the admission of

opinion testimony [from lay witnesses], provided it is well

founded on personal knowledge and susceptible to cross-

examination. Id. at 157 (permitting drug user to express

9 The government contends that the evidence was properly
admitted under Rule 701, which provides:

If the witness is not testifying as an expert, the
witness testimony in the form of opinions or
inferences is limited to those opinions or inferences
which are (a) rationally based on the perception of the
witness and (b) helpful to a clear understanding of the
witness testimony or the determination of a fact in
issue.

Fed. R. Evid. 701.

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opinion that substance she found was cocaine). We further

explained that the individual experience and knowledge of a lay

witness may establish his or her competence, without
qualification as an expert, to express an opinion on a particular

subject outside the realm of common knowledge. Id.; accord

United States v. VonWillie, 59 F.3d 922, 929 (9th Cir. 1995)

(based on experience, police officer could testify as lay witness

that it was common for drug traffickers to use weapons to protect

drugs; opinion was helpful to determination of whether defendant

was involved in drug trafficking).

After reviewing the record, we find no error in the

admission of the opinions of Rivera and Alpers concerning the

proximity of the bales to Rivera-Santiago s vessel. Both

witnesses testified that they had extensive experience as air

interdiction officers with the U.S. Customs Service, and were

competent to testify as to the behavior of objects dropped from
an airplane. Further, the testimony was helpful both to the

jury s understanding of the likelihood that two objects dropped

from an airplane would be close together after the airdrop and to

the jury s resolution of the question of the defendants

involvement in the airdrop.10

10 We reject the defendants contention that the testimony of
Rivera and Alpers, which suggested to the jury that the bales
might have been dumped overboard, was impermissibly inconsistent
with the testimony from other government witnesses who suggested
that the bales had been tied together and placed in tow. This
inconsistency is not grounds for the exclusion of relevant
evidence, but, rather, is a matter properly to be explored on
cross-examination and ultimately to be resolved by the jury.

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Nor do we find error in the admission of Escobar s

statement concerning the numbers painted on the back of Rivera-

Santiago s vessel. Escobar testified at trial that, in addition
to other law enforcement experience, he had worked for a

smuggling unit of the U.S. Marshals Service for two years, during

which time he had been involved in approximately fifteen

missions. As such, he was entitled to draw on his law

enforcement experience in conveying opinion testimony to the

jury. Further, his testimony concerning the significance of the

incorrect registration number was helpful to the jury, which

might not have been aware of the existence of a central

registration system for sea vessels similar to that for

automobiles.11

However, we do find error in the trial judge s decision

to permit Escobar to testify that the coordinates found on the

back of the business card were pretty close to the coordinates

11 Although the defendants rely on United States v. Montas, 41

F.3d 775 (1st Cir. 1994), cert. denied sub nom. F lix-Montas v.

United States, 115 S. Ct. 1986 (1995), to support their argument,

we believe that Montas is distinguishable from the instant case.

In Montas, a federal drug enforcement agent who had been

qualified as an expert testified that in ninety-nine percent of
the cases in which he had worked that involved the seizure of
drugs at an airport, the passenger involved had been traveling
under a false name. He further testified that it was obvious
that a passenger trying to smuggle drugs would use a false name
to avoid detection. Id. at 784. In concluding that the

admission of this testimony was likely beyond the limit of
admissibility, we noted the danger of unfair prejudice resulting
from the use of an expert witness to corroborate the government s
case. Id. at 786. However, the risk of prejudice that we

identified in Montas is less severe where, as here, the witness

has not been qualified as an expert. Moreover, unlike Montas,

the testimony at issue in the instant case does not suggest a
definite correlation between a suspicious characteristic and any
illegal activity.

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of the airdrop site. Immediately prior to offering this

conclusion, Escobar testified that he did not understand what

some of the numbers on the business card meant and acknowledged
that he was not an expert in coordinates. In addition, his

testimony that the coordinates were pretty close represented

only his characterization of the distance between the two points.

As presented, the witness s testimony lacked an appropriate

foundation and his conclusion was of little aid to the jury in

understanding the evidence.

The defendants also challenge as unfairly prejudicial

and without foundation the testimony of a U.S. drug enforcement

agent, who, not having been qualified as an expert, stated on

direct examination that the street value of the cocaine found at

sea may have exceeded $18 million. However, we have recently

stated that [t]here is little dispute that such information may

aid in proving intent to distribute. United States v. Rivera,

68 F.3d 5, 8 (1st Cir. 1995), cert. denied, 116 S. Ct. 970

(1996). In addition, in this case the evidence was relevant to

bolster the government s claim that a smuggler would not drop

valuable property into the water unless a specific target was in

the area. Finally, as we noted in Rivera, DEA agents are

especially qualified, and need not be certified as experts, to

testify about street value. Id. We see no error in the

admission of this testimony.

C. Sentencing Issues
C Sentencing Issues

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Since the court has determined that the defendants

convictions must be vacated, there is no need to address the

sentencing issues raised on appeal.

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III. Conclusion
III. Conclusion

The defendants convictions are vacated. The cases are

remanded for a new trial.

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