United States v. Santana-Rosa

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1679

UNITED STATES,
Appellee,

v.

DOMINGO SANTANA-ROSA,
A/K/A FELIX SANCHEZ-SUAREZ,
Defendant - Appellant.

No. 96-1680

UNITED STATES,
Appellee,

v.

ORLANDO DIAZ-MORLA,
A/K/A JOAQUIN CARPIO-JAVIER,
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,

Lynch, Circuit Judge,

and DiClerico, Jr.,* District Judge.

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

Arthur Joel Berger, with whom Leonard Baer was on brief for

appellants.
Jos A. Quiles-Espinosa, Senior Litigation Counsel, with

whom Guillermo Gil, United States Attorney, Edwin O. V quez,

Assistant United States Attorney, and Nelson P rez-Sosa,

Assistant United States Attorney, were on brief for appellee.

January 6, 1998

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DiClerico, District Judge. The defendants, Domingo
DiClerico, District Judge.

Santana-Rosa and Orlando D az-Morla, were convicted of possessing

cocaine on a vessel within the customs waters of the United

States with intent to distribute it. On appeal they raise issues

pertaining to the jury instructions, the opinion testimony of a

witness, and the sufficiency of the evidence. Having reviewed

the defendants arguments, we affirm the convictions for the

reasons expressed below.

Factual and Procedural Background
Factual and Procedural Background

We review the facts in the light most favorable to the

verdict. See United States v. Cardoza, 129 F.3d 6, , 1997 WL

656296, *1 (1st Cir. Oct. 27, 1997); United States v. Wihbey, 75

F.3d 761, 764 (1st Cir. 1996). On July 6, 1995, a police officer

with the Fajardo Drugs and Narcotics Division of the Puerto Rico

Police Department received two anonymous tips that a shipment of

cocaine was going to be delivered in the Fajardo area. The

government sent aloft a United States Customs Service aircraft

equipped with radar and an infrared night vision system known by

the acronym "FLIR," which means "forward looking infrared." The

FLIR system allows objects to be monitored in complete darkness

based on the heat of the objects.

The aircraft began patrolling the area between Fajardo

and the island of Culebra at an altitude of 1500 feet. At 10:15

p.m. Customs Service Agent John Alpers, who operated the

aircraft's FLIR, located a marine vessel northwest of Culebra at

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1825 degrees latitude and 6526 degrees longitude. The vessel,

approximately thirty feet long and with two engines, was moving

toward Fajardo at a high rate of speed with its navigational

lights out in violation of 19 U.S.C. 1703. When first located,

it was approximately five miles from the nearest land point on

United States territory. During subsequent events, Alpers

tracked the vessel with FLIR and radar, but at no point did he

make direct visual observations of the vessel or its occupants.

The aircraft lost contact with the vessel, but it

reacquired it at 10:56 p.m. At that point, the aircraft

descended to an altitude of 1000 feet and continued to track the

vessel from a distance of one-half to three-quarters of a mile

away. At 11:02 p.m., Agent Alpers, with the aid of the FLIR

system, observed movements of people on the vessel who

"appear[ed] to throw large objects" overboard. At that point,

the vessel was again approximately five miles from the nearest

land point on United States territory. After the objects were

thrown overboard, the vessel departed and headed toward Fajardo

at high speed, leaving the objects in the water. At

approximately 11:20 p.m., the vessel beached in the Cabeza

Chiquita area of Puerto Rico, about nine nautical miles from the

place where the objects were thrown from the vessel. Four

persons then ran from the vessel into a remote area dense with

mangroves. No other boats were in the immediate area of the

vessel throughout this time.

The aircraft requested that a National Guard helicopter

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fly to and mark the area where the objects had been dumped. In

addition, it requested the assistance of other officers in

apprehending the persons who had run from the vessel. A Puerto

Rico police helicopter, a National Guard helicopter, and a police

boat arrived to search the area for the persons who had fled the

vessel.

One of the helicopters illuminated the area with

floodlights to assist the law enforcement officers on the ground

in detaining the individuals. Between 12:02 and 12:09 a.m., the

police arrested three persons. Two of them are the defendants in

this case. Defendant Santana-Rosa was found hiding under water

while holding on to mangrove roots. Defendant D az-Morla and the

third individual were hidden about ten feet from defendant

Santana-Rosa. The fourth person observed leaving the vessel was

not apprehended. Both defendants gave false names when arrested.

Defendant Santana-Rosa asked the arresting officer why so much

government force was being used to catch an illegal alien.

Police recovered twenty-seven bales of ninety-one

percent pure cocaine weighing 970 kilograms at the site where

Alpers witnessed objects being dumped from the vessel. The

defendants were charged with a violation of 46 U.S.C. app.

1903(a), which makes it illegal, inter alia, to possess cocaine

with intent to distribute it on a vessel within the customs

waters of the United States. See 46 U.S.C.A. app. 1903(a),

(c)(1)(D) (West Supp. 1997). The defendants were convicted by

jury after a five-day trial.

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At trial, the main defense was that there was a lack of

direct evidence establishing that the defendants were the

individuals observed on the FLIR system leaving the vessel. One

of the defendants testified on his own behalf, stating that he

was an illegal alien seeking to avoid detection. Alpers

testified that the customs waters of the United States extend for

twelve miles from any land mass that is part of United States

territory and that he observed the vessel within the customs

waters of the United States. Alpers also testified on redirect

over the objection of counsel that, based on his experience, in

his opinion the individuals who were arrested were the ones he

witnessed fleeing the vessel. Following their conviction, the

defendants filed a timely appeal.

Discussion
Discussion

The defendants allege that three errors in the district

court proceedings require our attention. They contend that: (1)

the trial court erred in failing to instruct the jury on the

meaning of the phrase "within the customs waters of the United

States"; (2) the trial court erred in not requiring pretrial

disclosure of the testimony of Customs Service Agent Alpers; and

(3) the evidence was legally insufficient to establish that they

were the persons on the vessel who had dumped cocaine into the

ocean. The court discusses these claims seriatim.

A. Jury Instruction on Customs Waters

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The statute under which the defendants were convicted,

46 U.S.C. app. 1903, makes it "unlawful for any person . . . on

board a vessel subject to the jurisdiction of the United States

. . . to knowingly or intentionally . . . possess with intent to

. . . distribute . . . a controlled substance." 46 U.S.C.A. app.

1903(a) (West Supp. 1997). A vessel is subject to the

jurisdiction of the United States, inter alia, when it is

"located within the customs waters of the United States." Id.

1903(c)(1)(D). The defendants allege that the trial court

erred in failing to instruct the jury on the meaning of the

phrase "within the customs waters of the United States," a

substantive element of the offense for which they were convicted.

The defendants contend that, because the term has a technical

meaning not within the expertise of the jury, the judge's failure

to define it meant that the government was not required to prove

this element of its case beyond a reasonable doubt.

Because the defendants failed to object to the trial

court's instruction, our review is for plain error. See United

States v. Fulmer, 108 F.3d 1486, 1495 (1st Cir. 1997); United

States v. And jar, 49 F.3d 16, 22 (1st Cir. 1995).1 The failure

1 We reject as without merit the defendants' contention that we
should apply a more rigorous standard of review. The defendants
have requested that we adopt a rule that where a charge
conference is not held in open court or on the record, it will be
presumed that a defendant properly objected to any instruction
which he or she wishes to pursue on appeal. However, our
previous decisions establish that a party waives any objection it
might have to a jury instruction by failing to enter that
objection into the record immediately after the judge has
instructed the jury and before the jury begins deliberations.
See, e.g., Kerr-Selgas v. American Airlines, Inc., 69 F.3d 1205,

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to give an instruction may be noticed as plain error when: (1) it

is an error; (2) the error is clear or obvious; and (3) the error

affected the substantial rights of the defendants. See Johnson

v. United States, 117 S. Ct. 1544, 1547 (1997); United States v.

Olano, 507 U.S. 725, 732-35; Fed. R. Crim. P. 52(b). When plain

error is found, a reviewing court has discretion to correct it

only when the error "seriously affect[s] the fairness, integrity

or public reputation of judicial proceedings." Olano, 507 U.S.

at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160

(1936)); see Johnson, 117 S. Ct. at 1550. We thus review the

context of the charge as a whole to determine if it contains "an

error that threatens to 'undermine the fundamental fairness of

the trial.'" Fulmer, 108 F.3d at 1495 (quoting United States v.

Josleyn, 99 F.3d 1182, 1197 (1st Cir. 1996), cert. denied sub

nom. Billmyer v. United States, 117 S. Ct. 959 (1997)).

The statute under which the defendants were convicted,

46 U.S.C. app. 1903, is silent as to the definition of the term

customs waters. See 46 U.S.C.A. app. 1903(b)-(c) (West Supp.

1997). Other statutes make clear, however, that the customs

waters of the United States extend for four leagues, or twelve

miles, from United States territory unless another distance has

1212-13 (1st Cir. 1995) (civil context); United States v. Nason,

9 F.3d 155, 160-61 (1st Cir. 1993) (criminal context); see

also Fed. R. Crim. P. 30. We decline the defendants' invitation

to depart from the well-settled rule by adopting the requested
presumption.

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been established by treaty. See 19 U.S.C.A. 1401(j) (West

1980).2 In this case, the judge instructed the jury that one

element of the offense was that the vessel be within the "customs

waters of the United States" but he failed to provide the jury

with a further definition of the term.3

2 The full text of 19 U.S.C. 1401(j) provides:

The term "customs waters" means, in the
case of a foreign vessel subject to a treaty
or other arrangement between a foreign
government and the United States enabling or
permitting the authorities of the United
States to board, examine, search, seize, or
otherwise to enforce upon such vessel upon
the high seas the laws of the United States,
the waters within such distance of the coast
of the United States as the said authorities
are or may be so enabled or permitted by such
treaty or arrangement and, in the case of
every other vessel, the waters within four
leagues of the coast of the United States.

19 U.S.C.A. 1401(j) (West 1980).

3 The relevant portion of the trial judge's instruction is as
follows:

Okay. Let's discuss those statutes that
are charged in the indictment. Let's discuss
46 U.S.C., Section 1903(a). One of the
offenses charged in the indictment under 46
United States Code, Section 903(a) [sic],
provides in the pertinent part as follows:

It is unlawful for any person on board a
vessel subject to the jurisdiction of the
United States to knowingly or intentionally
possess with intent to distribute a
controlled substance.

Section 1903(b) and (D), vessel of the U.S.
defined: Definition of a vessel for the
purpose of this section means (D), capital
(D), parenthesis: A vessel located within the
customs waters of the United States.

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Despite the omission of a definition of the element

from the jury instructions, the jury was not left completely

without guidance on the issue. The government introduced

unrebutted testimony by Alpers as to both what constituted

customs waters and the location of the vessel within customs

waters. At trial, Alpers testified that the vessel was first

picked up on FLIR within five miles of United States territory.

He also testified that the customs waters of the United States

. . . .

Let's discuss the essential elements of
that offense. In order to establish the
offense proscribed by Title 46, U.S. Code,
Section 1903, the government must prove each
of the following elements beyond a reasonable
doubt:

One, that each defendant was on board a
motor vessel located within the custom waters
of the United States.

. . . .

. . . . The superseding indictment in this
case also charges that a vessel is subject to
the jurisdiction of the United States. In
order to find defendants guilty in this case,
you will have to determine, among other
things, if the government proved beyond a
reasonable doubt that the vessel in question
was a vessel within the custom waters of the
United States.

Section 1903(b) and (D): Vessel of the
United States defined means -- for the
purpose of this sections [sic] means a vessel
located within the custom waters of the
United States.

Tr. 706-08.

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extend for twelve miles from the territory of the United States.4

4 Alpers' complete testimony on the issue, made while
illustrating his comments with the aid of a navigational chart
depicting the area in question that was also entered into
evidence, is as follows:

Q: Now, have you marked the initial
sighting in the map?

A: Yes, sir, I have.

Q: Would you -- using this pointer --

MR. QUILES: If I may approach the witness?

Q: (By Mr. Quiles) -- show the jury when --
where is it that you first sighted the
boat.

A: Okay. It's right here, ladies and
gentlemen, right in this area here.
That's when we first acquired the
vessel, again traveling lights-out, high
rate of speed, heading 260 towards this
area here, heading this direction
approximately here.

Q: Now, sir, were you able to -- are you
able to tell the members of the jury at
what coordinates was that boat --

A: Yes, sir.

Q: -- located at once you first locked into it?

A: Right. Approximate coordinates, 1825
and 6526. Again, that's a latitude and
a longitude. Again, that was in this
area right here. You can see Culebra,
of course mainland Puerto Rico, and it
was between both of those, north of this
small island chain here.

Q: As a customs officer was that within the
customs waters of the United States?

A: Yes, sir. That was within the U.S. Customs
waters.

Q: How far out do the customs waters of the

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Alpers' testimony did not, however, mention that the twelve-mile

limit can be modified by treaty.

Given this testimony, the defendants have failed to

meet their burden to show that the omitted instruction affected

their substantial rights. We agree with the defendants that the

term "customs waters of the United States" is outside the

experience of lay jurors, and that in the usual case the district

court must give at least an instruction concerning the ordinary

definition of that term, i.e., that the defendants' vessel must

have been within four leagues or twelve nautical miles of the

nearest land territory of the United States. However, because

the evidence was uncontroverted that the defendants' vessel was

well within this limit, we cannot see how this omission could

have affected their substantial rights, as required under Olano.

The defendants did not argue that the twelve-mile limit

was inapplicable because their vessel was covered by a treaty

that contracted the ordinary limit. In fact, such treaties

United States extend from any land point
belonging to the United States?

A: Twelve miles.

Q: And there are -- are how many land
points there in that area that you know
of that belong to the United States?

A: That is all U.S. territory. Culebra,
the island chain, of course Puerto Rico.
And the vessel, when first acquired, was
approximately five miles north of a land
mass, thus in U.S. Customs waters.

Tr. Vol I, p. 67-69.

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ordinarily expand the twelve-mile limit. See, e.g., United

States v. Doe, 860 F.2d 488, 490 (1st Cir. 1988). We do not

decide under what circumstances a defendant is entitled upon

proper request to an instruction concerning the treaty exception

to the twelve-mile limit. In this case, however, it is clear

that such an omission cannot, at the very least, rise to the

level of "plain error." Given the failure of the defense to

suggest that the exception was at all relevant, the omission is

not "plain error"; certainly it did not "seriously affect[] the

fairness, integrity or public reputation of judicial

proceedings." United States v. Johnson, 117 S. Ct. 1544, 1550

(1997) (quoting Olano, 507 U.S. at 736) (internal quotation marks

omitted).5

B. Testimony of Customs Service Agent Alpers

The defendants next contend that the trial court erred

in not requiring pretrial disclosure of Alpers' opinion testimony

that the defendants were the same individuals whom he observed

5 The defendants have requested that we temporarily refrain from
deciding this case to await the Supreme Court's decision in
United States v. Rogers, 94 F.3d 1519 (11th Cir. 1996), cert.

granted in part, 117 S. Ct. 1841 (U.S. May 27, 1997) (No. 96-

1279). However, in that case the Supreme Court certified only
the following question: "Whether a district court's failure to
instruct the jury on an element of an offense is harmless error
where, at trial, the defendant admitted that element." Rogers,

117 S. Ct. at 1841. Because, inter alia, that case deals with

harmless error rather than plain error, we do not find it
necessary or desirable to await the Court's opinion in that case.

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fleeing the vessel.6 The defendants claim that Alpers' testimony

was expert testimony, and thus the government's failure to comply

with the expert disclosure requirements constituted a discovery

violation. The government contends that Alpers testimony was

notexpert testimony,butrather constitutedapermissible layopinion.

The central issue in the trial was whether the three

men who were arrested were three of the same four men who fled

the vessel when they grounded it. On direct examination, Alpers

testified as to the events he witnessed with the aid of the FLIR

system. On cross-examination, defense counsel sought to

undermine Alpers' assertion that the defendants were the same

people whom he had observed on the vessel with the FLIR system.

On redirect examination, Alpers testified over the defendants'

objection that in his opinion and based on his experience, he had

no doubt that they were the same individuals. The defendants

contend that because Alpers' opinion was based not upon direct

observation but instead upon images on the FLIR this was expert

rather than lay testimony. Because the government did not reveal

in its expert report that Alpers would give his opinion regarding

the identity of the defendants as the men who left the boat, the

defendants claim that the government violated discovery rules by

6 The defendants concede that, rather than outright reversal, on
the record in this case the error would entitle them at most to a
remand to the district court to determine whether a discovery
violation occurred and if so, what the appropriate sanction
should be.

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introducing the testimony.7

We have rejected similar contentions in the past. In

United States v. Rivera-Santiago, 107 F.3d 960, 968 (1st Cir.

1997), the defendants also claimed that customs agents had

improperly testified as experts. We stated:

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 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).

Rivera-Santiago, 107 F.3d at 968. Here, Alpers unquestionably

had experience and knowledge in interpreting FLIR images outside

the realm of the jurors' common knowledge. Because he was able

to form an opinion based on his direct observation and he was

subject to cross-examination, it was permissible for him to offer

his opinion as a lay witness. The defendants' attempt to

distinguish Rivera-Santiago is unavailing. Alpers was not

7 Because of the court's ruling that Alpers was not offering an
expert opinion, the court need not consider the government's
contention that it effectively complied with the disclosure
requirements by disclosing prior to trial a statement containing
the factual basis for Alpers' opinion.

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presented as an expert and he did not testify as an expert. Thus

it was not error for the trial court to allow him to give his

opinion as to the identity of the individuals whom he had

observed on the FLIR system.

C. Sufficiency of the Evidence

Finally, the defendants claim that the evidence was

legally insufficient to establish that they were the persons on

the vessel who had dumped cocaine into the ocean. We review such

a contention taking the facts presented at trial in the light

most favorable to the verdict. See United States v. Rogers, 121

F.3d 12, 15 (1st Cir. 1997); United States v. Montas, 41 F.3d

775, 778 (1st Cir. 1994). Undoubtedly, no single individual was

able to observe the defendants unimpeded and unassisted from the

time they left the vessel until they were arrested. However, the

circumstantial evidence that the defendants were the ones who had

fled the vessel was sufficient to allow a reasonable juror to

conclude that they had been seen on the vessel dumping the

cocaine. Four individuals were witnessed running into the

mangroves. Three individuals were arrested among the mangroves.

No other individuals were encountered in the area, and there was

testimony that the area where the vessel grounded was remote and

uninhabited. Alpers testified that, in his opinion, the men who

were arrested were the ones who had fled the vessel.

The jury was not required to credit the defendants'

theory that they were illegal aliens seeking to evade

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deportation. The only evidence of this was presented by the

defendants themselves, and it was within the scope of the jury's

factfinding function to disregard this evidence entirely. Thus,

taken in the light most favorable to the verdict, there was ample

evidence, both direct and circumstantial, from which a reasonable

juror could have concluded that the defendants had been on the

vessel, dumped cocaine from the vessel, grounded the vessel, fled

to the mangroves, attempted to evade detection until their

arrest, and then provided a false explanation of their behavior

in light of the likely repercussions of their acts. The

defendants have failed to show that they are entitled to relief

based on the alleged insufficiency of the evidence offered

against them.

Conclusion
Conclusion

For the reasons stated above, the convictions of the

defendants are affirmed.
affirmed

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