United States v. Saavedra

United States Court of Appeals
For the First Circuit

No. 99-1631

UNITED STATES,

Appellee,

v.

MARIO SAAVEDRA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Chief Judge,

Coffin and Campbell, Senior Circuit Judges.

George F. Gormley for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with
whom Guillermo Gil, United States Attorney, and Jorge E. Vega-
Pacheco, Assistant United States Attorney, Chief, Criminal
Division, were on brief for appellee.

May 22, 2001
 CAMPBELL, Senior Circuit Judge. Defendant Mario

Saavedra’s five-day jury trial ended with a verdict of guilty on

all three of the following counts: (1) conspiring to possess

with intent to distribute multi-kilogram quantities of cocaine

on board a vessel subject to United States jurisdiction in

violation of 46 U.S.C. § 1903; (2) conspiring to import cocaine

into the United States from a place outside thereof in violation

of 21 U.S.C. § 963; and (3) attempting to import cocaine into

the United States, also in violation of 21 U.S.C. § 963.

Saavedra was sentenced on each count to 324 months in prison,

the sentences to run concurrently. He appeals, asserting

various errors by the district court. We affirm.

I.

The drug conspiracy at issue involved the

transportation of cocaine aboard the M/V DAYBREAK, a vessel

registered in the state of Florida. After many false starts

(due to mechanical troubles, missed contacts and customs

difficulties in different ports of call), the vessel finally

stalled completely on July 26, 1994, off the coast of Puerto

Rico. The crew (which did not include the defendant, who was

not on board) was rescued by the United States Coast Guard. The

Coast Guard found over 297 kilos of cocaine on the M/V DAYBREAK

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and arrested its crew of three. These crew members eventually

cooperated with the government, naming Maria Saavedra and a man

named Christopher Munoz as the leaders in the drug smuggling

operation. An indictment issued against both Saavedra and Munoz

on November 15, 1995.1

Although not on board the DAYBREAK when the Coast Guard

seized it, Saavedra did not dispute his participation in the

drug smuggling operation. He admitted helping Munoz with the

logistics of the venture, primarily from his home in Santo

Domingo in the Dominican Republic. Saavedra’s duties included

looking after the vessel’s mechanical systems and serving as

liaison between the crew and Munoz. Saavedra acknowledged a

past history with the United States Drug Enforcement Agency

(“DEA”). He had served time in federal prison in the late 1980s

and early 1990s for drug smuggling (after which he was deported

to his home in the Dominican Republic) and, prior to that, he

had served as a paid informant for the DEA aiding in surveilling

1 Saavedra and Munoz were tried separately, in part because
Saavedra was not arraigned until 1997. This is because as of
January 11, 1996, Saavedra was incarcerated in the Netherlands
awaiting trial on charges of cocaine importation, charges
different from those at issue here. In spring of 1997, he was
extradited to the United States, arrested and arraigned before
the United States District Court for the District of Puerto Rico
for the crimes described in the first paragraph of this opinion.

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and curtailing drug smuggling operations into the United States

through Central and South America.

Saavedra’s chief defense at trial was that based on

assurances from Munoz, he thought that he and Munoz were

participating in the drug venture in order once again to aid the

DEA -- in particular a DEA agent named Kazerowsky -- in the

investigation of drug smuggling operations into the United

States. Saavedra testified that Munoz had spoken with Agent

Kazerowsky and that Munoz had instructed Saavedra that when the

M/V DAYBREAK arrived in Puerto Rico, he was to inform Agent

Kazerowsky that the vessel was carrying about 270 kilos of

cocaine in cargo. Allegedly, Agent Kazerowsky would “take it

from there.”

By convicting Saavedra, the jury indicated that it was

unimpressed with his defense that he thought he was working

undercover for the DEA. Substantial evidence at trial provided

an ample basis for the jury’s non-acceptance of Saavedra’s

contention along these lines. Agent Kazerowsky testified that

he had not been involved with Saavedra and Munoz in the instant

smuggling venture.2 Another DEA agent testified that when

2 It was nevertheless undisputed that prior to Saavedra’s
incarceration for drug smuggling in the late 1980s, Agent
Kazerowsky had worked with and paid Saavedra and Munoz as
informants in other drug smuggling operations. After being
released from prison in 1991 and deported to the Dominican

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Saavedra was first detained in Puerto Rico after his

extradition, he said nothing about a DEA investigation and

claimed only to be helping Munoz fix the boat. Also, Saavedra

admitted at trial that “this time” he was not being paid by the

DEA for his purported informant role. He further admitted that

the Munoz team of which he was a member was to retain the

proceeds from the sale of 15-20 kilos of the cocaine -- the

difference between the amount allegedly to be disgorged to the

DEA and the total amount actually on board the M/V DAYBREAK.

Given the jury’s adverse resolution of this factual

issue, Saavedra’s claim to have been aiding the DEA cannot serve

as an effective ground for challenging his conviction on appeal.

Accordingly, Saavedra now argues that the government failed to

prove a supposedly essential element of the first count of the

indictment, namely, that Saavedra knew the M/V DAYBREAK to be a

“vessel of the United States” or otherwise “subject to the

jurisdiction of the United States.” 46 U.S.C. § 1903(a).

Saavedra also argues that the court’s jury instructions were, in

context, prejudicially confusing as between the crimes of

conspiring to import and attempting to import cocaine (Counts II

and III) and the crime of conspiring to possess with intent to

Republic, as far as Kazerowsky knew, Saavedra had no further
contact with the DEA.

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distribute cocaine on board a vessel subject to United States

jurisdiction (Count I).

II.

Section 1903 of Title 46 of the United States Code, the

substantive criminal statute allegedly violated by the

conspiracy charged in the first count of the indictment,

provides that “[i]t is unlawful for any person on board a vessel

of the United States, or on board a vessel subject to the

jurisdiction of the United States, . . . to knowingly or

intentionally manufacture or distribute, or to possess with

intent to manufacture or distribute, a controlled substance.”

46 U.S.C. § 1903(a).3 While conceding that the government’s

proof was “overwhelming” that the M/V DAYBREAK was a “vessel of

the United States,”4 Saavedra contends that the government erred

3 Defendant was convicted under this statute pursuant to
its subsection (j), which states that “[a]ny person who attempts
or conspires to commit any offense defined in this chapter shall
be subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the attempt
or conspiracy.” 46 U.S.C. § 1903(j).
4 Among the bases for qualification as a “vessel of the
United States” is documentation under chapter 121 of Title 46 or
numbering as provided in chapter 123 of Title 46. See U.S.C. §
1903(b)(1). Chapter 123 of Title 46 provides for the numbering
of vessels by states with identification systems approved by
the United States Secretary of Transportation. See 46 U.S.C. §
12301-12309. It is undisputed that the M/V DAYBREAK was
registered at relevant times in Florida, a state whose numbering

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in failing to prove, as an additional element of the conspiracy,

that he actually knew that the vessel was “of the United States”

or otherwise subject to United States jurisdiction. Because no

evidence was put before the jury of Saavedra’s knowledge, he

contends that the district court committed reversible error in

not granting his motion for acquittal based on an insufficiency

of the evidence to convict him of participating in a conspiracy

to violate 46 U.S.C. § 1903.

In support of his contention that a conspirator’s

knowledge of United States jurisdiction over the vessel must be

alleged and proven beyond a reasonable doubt, Saavedra points to

the fact that in 1996, after his arrest, the substantive statute

was amended to include the following statement: “Jurisdiction

of the United States with respect to vessels subject to this

chapter is not an element of any offense. All jurisdictional

issues arising under this chapter are preliminary questions of

law to be determined solely by the trial judge.” 46 U.S.C. §

1903(f)(1996). Defendant argues that this statutory amendment

shows that prior to 1996, the jurisdictional requirement was an

element of the criminal offense the government had to prove to

the jury beyond a reasonable doubt.

system is approved by the United States Secretary of
Transportation. See 46 U.S.C. §§ 12101(b)(1), 12302; 33 C.F.R.
173, App. A.

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 But assuming this is so – that before 1996 it was for

the jury to pass upon the jurisdiction of the United States with

respect to the vessel and that this was an element of the crime

– the statute neither then nor now expressly made defendant’s

knowledge that a vessel belonged to or was otherwise subject to

the jurisdiction of the United States either an element of the

crime or a jurisdictional prerequisite to conviction. Cf.

United States v. Guerrero, 114 F.3d 332, 339 & n.9 (1st Cir.

1997) (stating that the first element of 46 U.S.C. § 1903(a), as

it stood in 1995, “requires the government to prove that the

[vessel] was ’a vessel subject to the jurisdiction of the United

States’”); United States v. Passos-Paternina, 918 F.2d 979, 981

(1st Cir. 1990) (stating only that the jury determines the

jurisdictional question under § 1903).5

5 It is not uncommon for federal criminal statutes to
contain jurisdictional prerequisites which do not require
defendant’s knowledge of their fulfillment in order to secure a
conviction. See, e.g., 18 U.S.C. § 922(g) (unlawful possession
of a firearm, which requires proof that the firearm has been
transported through interstate commerce). This court held in
United States v. Corey, 207 F.3d 84, 88 (1st Cir. 2000), that
the "interstate nexus" element required to convict under
922(g)(1) was met when the government demonstrated that
defendant possessed the shotgun in a state other than the one in
which it was manufactured, not that defendant had to know that
the shotgun had in fact traveled in interstate commerce. See
also Scarborough v. United States, 431 U.S. 563, 575 (1977)
(concluding that section 922(g) requires only "the minimal nexus
that the firearm have been, at some time, in interstate
commerce"). The federal bank robbery statute, 18 U.S.C. § 2113
has a similar jurisdictional aspect, requiring the bank’s

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 Not only is there no mention in § 1903 that a defendant

must know of the vessel’s nationality, but the wording of the

statute suggests Congress’s deliberate omission of any such

requirement. The plain language of the statute proscribes being

“on board a vessel of the United States or . . . subject to the

jurisdiction of the United States[] . . . [and] . . . knowingly

or intentionally manufactur[ing] or distribut[ing] or

possess[ing] with intent to . . . distribute . . . a controlled

substance.” 46 U.S.C. § 1903(a)(1996)(emphasis added). The

placement of the word “knowingly” before the acts of

manufacturing, distributing and possessing and not before the

phrase “on board a vessel of the United States or . . . subject

to the jurisdiction of the United States” indicates that

knowledge of United States jurisdiction over the vessel is not

an additional element of the crime. See, e.g., Lopez-Soto v.

Hawayek, 175 F.3d 170, 172 (1st Cir. 1999) (“We start our search

for the meaning of the words that Congress wrote with an

appraisal of the statutory text and structure, mindful that if

deposits be FDIC-insured. See 18 U.S.C. § 2113(f)(defining
“bank” as used in the statute as “any institution the deposits
of which are insured by the Federal Deposit Insurance
Corporation”); United States v. Mojica-Baez, 229 F.3d 292, 299
(1st Cir. 2000)(stating that conviction under 18 U.S.C. § 2113
requires “the government to prove that the money taken during
the robbery was insured by the FDIC,” and not that the defendant
knew it was so insured).

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the plain language of the statute points unerringly in a single

direction, an inquiring court ordinarily should look no

further.”) (citation omitted). Had Congress wanted to make

defendant’s knowledge of United States jurisdiction over the

vessel an element of the crime, it could readily have inserted

“knowingly” before “on board” as it did before “manufacture or

distribute, or to possess.” “Courts in applying criminal laws

generally must follow the plain and unambiguous meaning of the

statutory language.” United States v. Albertini, 472 U.S. 675,

680 (1985). “’[O]nly the most extraordinary showing of contrary

intentions’ in the legislative history will justify a departure

from that language.” Id. (quoting Garcia v. United States, 469

U.S. 70, 75 (1984)). No such showing has been made here.

We add that to require a knowing drug smuggler to also

know whether his vessel is under United States jurisdiction

would make the statute virtually unenforceable in some

instances. A vessel may be “of the United States,” or otherwise

be subject to United States jurisdiction, for a variety of

reasons, federal or qualifying state documentation being only

two. For example, under 46 U.S.C. § 1903(c)(1)(E), a foreign

nation’s consent to United States jurisdiction over a vessel in

the former’s territorial waters may be “obtained by radio,

telephone or similar oral or electronic means and is

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conclusively proved by certification of the Secretary of State

or the Secretary’s designee.” 46 U.S.C. § 1903(c)(1). A crew

person aboard the drug smuggling vessel might well not know

whether the nation-state in whose waters the vessel was

operating had consented to the enforcement of United States law

by the United States. See also 46 U.S.C. § 1903(b)(2)(D)

(defining “vessel of the United States” as a “vessel owned in

whole or in part by . . . a corporation created under the laws

of the United States or any State . . . ”); 46 U.S.C. §

1903(c)(1)(C) (defining “vessel subject to the jurisdiction of

the United States” as “a vessel registered in a foreign nation

where the flag nation has consented or waived objection to the

enforcement of United States law by the United States”). A

defendant’s knowledge of one or another of the foregoing factors

would, in many cases, be difficult if not impossible to prove.

We conclude that defendant’s interpretation requiring

a conspirator to have known that the M/V DAYBREAK was a “vessel

of the United States” or was otherwise subject to the

jurisdiction of the United States is incorrect, being both

implausible and contrary to the plain language of 46 U.S.C. §

1903, which calls for no such knowledge. All the government had

to prove jurisdictionally was that the United States did in fact

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have jurisdiction over the vessel at issue. This the government

accomplished without any dispute, because, as noted earlier, see

supra note 4, the evidence at trial was uncontradicted that the

M/V DAYBREAK was registered in Florida, and was therefore a

“vessel of the United States” as defined by 46 U.S.C. § 1903(b),

hence within United States jurisdiction. Defendant’s conviction

under Count I is affirmed.

III.

Defendant’s last two claims of error are equally

lacking in merit. Both concern the accuracy of the district

court’s jury instructions and neither was preserved below. We

therefore review for plain error. See United States v. Savinon-

Acosta, 232 F.3d 265, 268 (1st Cir. 2000).

Defendant complains that the district court’s

instructions to the jury were plainly erroneous in two ways.

First, he contends that it was error not to instruct the jury

that in order to convict it must find beyond a reasonable doubt

that Saavedra knew that the vessel on board which he was

conspiring to distribute cocaine was a vessel over which the

United States had jurisdiction. For reasons we have discussed

above, there is no such requirement; defendant’s contention on

this score is simply incorrect. Second, defendant contends that

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the jury instructions on the crimes of importation (conspiring

to import and to attempt to import cocaine, Counts II and III

under 21 U.S.C. § 963) and the crime of conspiring to possess

with intent to distribute cocaine on board a vessel subject to

United States jurisdiction (Count I under 46 U.S.C. § 1903) were

prejudicially confusing. On this theory, Saavedra contends that

(1) had the jurors believed that he was working for the DEA, and

(2) had they not been misled by the instructions that he

contends insufficiently distinguished between the two crimes, he

would have been acquitted of possession with intent to

distribute all of the 297 kilos aboard the M/V DAYBREAK, leaving

him responsible only for the importation of 15-20 kilos that he

and his team planned to import and sell as compensation for

their roles in the venture. This would have resulted in a much

reduced sentence from the 324 months that he received for the

297 kilos of cocaine on all three counts.

The government admits that elements of Count I and

Count II overlap (as they are both conspiracy charges).

Nevertheless, the government argues, the district court’s

instructions on each of these charges were correct. Indeed, the

defendant does not contest the accuracy of the instructions,

only that in the peculiar circumstances of this case the overlap

of elements and instructions thereon prejudiced his defense to

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Count I (that he had authority to possess 270 kilos aboard the

vessel as he was aiding the DEA in their investigations). In

other words, defendant claims that despite accurate

instructions, by not treating the two conspiracies separately in

the instructions to the jury, that is, serially, the district

court confused the jury and allowed them to convict on

conspiracy to possess with intent to distribute for Count I once

they found a conspiracy to import for Count II.

The short answer to Saavedra’s argument is that the

court did not commit plain error simply because, in hindsight,

instructions can be conceived that would have better served the

defense’s strategy. The defense did not request instructions of

the type it now says should have been given. The instructions

actually given here were adequate and correct. Defendant falls

far short of pointing to the commission of plain error. See,

e.g., United States v. Alicea, 205 F.3d 480, 484 (1st Cir. 2000)

(stating that failing defendant’s contemporaneous objection at

trial to the district court’s jury instructions, an appellate

court reviews for plain error, a type of review that “entails

inquiry into whether affirmance would skew[ ] the fundamental

fairness or basic integrity of the proceeding below in some

major respect so as to result in a miscarriage of justice”)

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(alterations in the original) (quotation marks and citations

omitted).

Moreover, the failure of the jury to acquit Saavedra

of the crime charged in Count I can be attributed to the

substantial proof contradicting Saavedra’s claim of cooperation

with the DEA. As no inaccuracy in the jury charge has been

pointed to, nor was the evidence lacking in proof beyond

reasonable doubt of the government’s case, there is no reason to

upset the judgment below. See United States v. Woodward, 149

F.3d 46, 68-69 (1st Cir. 1998) (stating that a Court of Appeals

looks “at the entire charge, in light of the evidence, and

determine[s] whether, taken as a whole, the court's instructions

fairly and adequately submit[ted] the issues in the case to the

jury”) (internal quotation marks omitted) (alterations in the

original).

Affirmed.

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