United States v. Hilario-Hilario

United States Court of Appeals
For the First Circuit

No. 06-1007

UNITED STATES OF AMERICA,

Appellee,

v.

LEONARDO HILARIO-HILARIO,

Defendant, Appellant.

No. 06-1009

UNITED STATES OF AMERICA,

Appellee,

v.

KENNEDI MARTÍNEZ,

Defendant, Appellant.
_____________________

No. 06-1010

UNITED STATES OF AMERICA,

Appellee,

v.

FERNANDO JOSÉ MILÁN,

Defendant, Appellant.
_____________________
No. 06-1011

UNITED STATES OF AMERICA,

Appellee,

v.

DELGADINO PEGUERO,

Defendant, Appellant.
____________________

No. 06-1013

UNITED STATES OF AMERICA,

Appellee,

v.

SANTIAGO RODRÍGUEZ,

Defendant, Appellant.
______________________

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before
Boudin, Circuit Judge,
Selya, Senior Circuit Judge,
and Keenan,* Senior District Judge.

Michael S. Corona-Muñoz, by appointment of the court, for
appellant Kennedi Martínez.
Juan J. Hernández-López de Victoria, by appointment of the
court, with whom Hernández López de Victoria, PSC was on brief for
appellant Delgadino Peguero.

*
Of the Southern District of New York, sitting by designation.
 Guillermo A. Macari-Grillo, by appointment of the court, for
appellant Leonardo Hilario-Hilario.
Olga M. Shepard-De Mari, by appointment of the court, for
appellant Fernando José Milán.
Eric M. Quetglas-Jordán, by appointment of the court, with
whom Quetglas Law Offices was on brief for appellant Santiago
Rodríguez.
Jacabed Rodríguez-Coss, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Chief, Appellate Division, were on brief for
appellee.

June 20, 2008
 BOUDIN, Chief Judge. On December 3, 2004, a forty-foot-

long wooden yawl carrying ninety-two aliens from the Dominican

Republic capsized off the coast of Vega Alta, Puerto Rico, after a

thirty-hour journey over rough seas from Cabeza del Toro, a beach

in the Dominican Republic. The U.S. Coast Guard and Puerto Rico

authorities brought eighty-five of the passengers safely to shore;

seven others were confirmed dead at the scene.

Based on identifications made by some of the passengers

on the beach, five individuals--Leonardo Hilario-Hilario

("Hilario"), Kennedi Martinez ("Martinez"), Fernando Jose Milan

("Milan"), Delgadino Peguero ("Peguero"), and Santiago Rodriguez

("Rodriguez")--were separated out as those who had conducted the

smuggling venture. Although generally referred to by the

government as "captains," Hilario turned out to be the man in

charge and the others, although sometimes involved in piloting,

were crew.

After further investigation, all five defendants were

charged on May 17, 2005, in a second superseding indictment,

alleging that

aiding and abetting each other, [they] did,
knowingly, willfully and intentionally, bring
and attempt to bring to the United States, for
private financial gain and profit, and by the
use of an unseaworthy and overcrowded yawl
which placed in jeopardy the lives of the
aliens, approximately eighty-seven (87) aliens
. . . . This violation resulted in the death
of [seven passengers]."

-4-
 Fairly read, this formulation, although jumbled, charged

each defendant with both the central offense of smuggling an alien

into the United States or attempting to do so, 8 U.S.C. §

1324(a)(1)(A)(i) (2000), and the separately enumerated offense of

aiding and abetting such an offense, id. § 1324(a)(1)(A)(v)(II).

One who aids and abets is normally liable as a principal, 18 U.S.C.

§ 2 (2000), but the smuggling statute prescribes in certain cases

a lower sentence for mere aiders and abettors. 8 U.S.C. §

1324(a)(1)(B).

The references in the indictment to financial gain,

placing life in jeopardy or committing an offense resulting in

death invoked provisions of the statute's sentencing regime. Each

one of these characteristics raises the maximum sentence available.

8 U.S.C. §§ 1324(a)(1)(B)(i), (iii), (iv). Although pertinent only

to sentencing, a jury determination typically is required to invoke

the higher sentences under familiar precedent. Apprendi v. New

Jersey, 530 U.S. 466 (2000).

A fifteen-day jury trial followed at which ten of the

passengers testified. The government relied heavily on eyewitness

testimony to establish that the five defendants operated the

vessel. Several passengers testified that Milan, Peguero, and

Rodriguez piloted the yawl at various points during the journey;

Martinez was identified as having navigated and steered the vessel

with the help of a GPS or similar device, and Hilario was described

-5-
as the "head captain" who gave orders to the others and maintained

contact via cellular telephone with other organizers on land.

The government also presented evidence to show the

unseaworthiness of the vessel. The passengers described the

overcrowded, unsafe, and unsanitary conditions on the vessel.

Three members of the Coast Guard, who had participated in the

rescue efforts, described the conditions of the surf, the

rudimentary construction of the yawl (which had fallen apart in the

surf along the Vega Alta coast), and the vessel's lack of

bathrooms, lights, seats, radio, or appropriate safety or

navigational equipment.

All five defendants were convicted on the indictment

count set forth above.1 Pursuant to a special verdict, the jury

found that all defendants acted for the purpose of financial gain,

and all except Rodriguez placed the lives of the passengers in

jeopardy and had participated in an offense resulting in the death

of seven passengers. The district court later sentenced Hilario to

204 months in prison, Martinez and Peguero to 188 months, Milan to

176 months, and Rodriguez to 120 months.

All five now appeal their convictions and sentences,

arguing that various decisions made by the district judge deprived

them of a fair trial and that their sentences were improper. Some

1
The indictment also included a separate count against Peguero
for intimidating witnesses but the jury acquitted on this count and
it is not at issue on appeal.

-6-
of these arguments are pressed by all five defendants while others

are unique to particular defendants. We begin with the collective

attacks and then turn to the individual ones. The standard of

review varies with the issue.

All five defendants argue that pretrial identification,

by means of the photograph line-up shown to the cooperating

witnesses, was so suggestive that it fatally tainted the

identification evidence at trial. The completed photo line-up

contained fifty-eight color head shots of those taken from the

waters alive, including all of the men; some of the women were

included but others were left out after one of the prosecutors said

that it was unnecessary to include the women.

The fifty-eight photographs were arranged nine per-page

(leaving four for the last page) in the order in which the subjects

were processed by immigration officials. Since the five defendants

had been separated from the remaining detainees, they were

photographed last and appear in the final five photographs in the

set. This was shown to the passengers who were willing to identify

the "captains." Thirty-seven passengers identified Hilario, forty

identified Rodriguez, thirty-five identified Milan, twenty-seven

identified Martinez, and nineteen identified Peguero.

At trial, the defendants sought to have the photo line-up

suppressed and to prohibit in-court identification of the

defendants as tainted. The district court denied the motion and

-7-
the government introduced the line-up and relied heavily at trial

on in-court identification by the testifying passengers. Our

review of the district court's denial of the motion to suppress the

photo identification is plenary save that findings of fact are

reviewed for clear error. United States v. Holliday, 457 F.3d 121,

125 (1st Cir. 2006), cert. denied, 127 S. Ct. 1317 (2007).

The defendants contend that the introduction of this

identification evidence undermined their right to a fair trial.

See Stovall v. Denno, 388 U.S. 293, 301-02 (1967). Of all their

attacks on this piece of evidence, the strongest is that the

defendants' pictures were grouped together as the last five shown;

and four of the defendants appear in the only pictures on the final

page of the line-up. Other criticisms can be dealt with more

briefly.

The Supreme Court says that a court should first look to

the procedure itself to determine whether it was impermissibly

suggestive, United States v. Bouthout, 878 F.2d 1506, 1514 (1st

Cir. 1989) (citing Simmons v. United States, 390 U.S. 377, 384

(1968)); if so, the court determines whether under the totality of

the circumstances the suggestiveness is so pronounced that there is

a serious likelihood of irreparable misidentification. Neil v.

Biggers, 409 U.S. 188, 196-97 (1972).

Suggestiveness is a matter of degree. In principle, a

grouping of the defendants together might suggest an association

-8-
among them; if one were recognized as culpable, this might heighten

the chance that ones next to him might be so identified even if the

witness were doubtful. Location at the end seems no more dangerous

than at the beginning, and the grouping does not appear to be

deliberate tampering; but we will assume, merely arguendo, that the

line-up was suggestive.

Yet the risk of prejudice was minimal. This is not a

case in which a marginal identification--e.g., by a witness who

only glimpsed the perpetrator of a crime--may have been bolstered

by suggestive identification procedures. See id. at 199-200.

Here, the witnesses identifying the defendants had traveled with

them for thirty hours at a close distance and without any attempt

by any of the defendants to conceal their appearances during the

trip.

Further, the photo array was shown to the passengers on

the same day as their arrival in Puerto Rico while their memories

of the trip were still fresh. And defense counsel were given ample

time at trial to explore any defects in the identification

procedure--including whether other individuals not pictured in the

photo array were the true leaders of the smuggling venture--and to

argue those defects to the jury in summation. The photo array did

not create a serious risk of misidentification.

As for the other criticisms, we are unable to discern the

"marked differences in skin color, clothing, and contrast of

-9-
coloring" that defendants claim rendered the line-up suggestive.

While some of the photographs, as the district court pointed out,

do "look more like mug shots," none of these depicts any of the

defendants. Nor were the latter identifications tainted when the

government at the beach--based on passenger identification--

conspicuously separated the defendants from the other passengers.

The defendants also object to the admission of certain

testimony given by two Coast Guard officers involved in the rescue,

Lieutenants Lahcen Armstrong and William Nunes. Armstrong

testified extensively about the size and appearance of the yawl,

the number of passengers, and sea conditions at the time. Over

objection he was allowed to testify about what safety equipment

such a vessel should have had (but here didn't) and the maximum

number of passengers that could safely be carried.

Specifically, Armstrong said that such a vessel required

"properly maintained engines . . . navigational lights and

equipment . . . life preservers, for all the people on board,

navigational charts and potentially GPS electronic devices, [and]

VHS/FM radios" and that he "would expect a vessel that size to have

no more than 20 to 30 people on board safely." Nunes stated that

a vessel the size of the yawl could not sustain the swells and

rough surf it encountered.

The objection, duly preserved, is that neither officer

was specified as an expert in advance of trial, as is required by

-10-
governing rules. Fed. R. Crim. P. 16(a)(1)(G). The government

argues that no notice was required because the lieutenants

delivered only lay opinion testimony, which is not subject to Rule

16's disclosure requirements. The recurring problem is that "the

same witness--for example, a law enforcement officer--may be

qualified to 'provide both lay and expert testimony in a single

case.'" United States v. Ayala-Pizarro, 407 F.3d 25, 28 (1st

Cir.), cert. denied, 546 U.S. 902 (2005) (quoting Fed. R. Evid.

701, advisory committee's note).

There is no bright-line rule to separate lay opinion from

expert witness testimony; circuits, and indeed decisions within a

circuit, are often in some tension. But we think it is quite

arguable, and proceed on that arguendo premise, that some of

Armstrong's testimony as to specific necessary safety precautions

and vessel capacity seems to be based on specialized knowledge and

also to reflect the heightened sophistication normally associated

with expert testimony.

But "[t]o succeed in obtaining a reversal on appeal, a

defendant must prove both an abuse of discretion and prejudice."

United States v. Alvarez, 987 F.2d 77, 85 (1st Cir.), cert. denied,

510 U.S. 849 (1993). Given the lack of any safety or fixed

navigation equipment and the extraordinary overcrowding, the vessel

was patently dangerous to life. Indeed, defense counsel objected

to the introduction of testimony from other Coast Guard officers on

-11-
the ground that it was "irrelevant or cumulative" because "there

[was] no issue that there were unsafe conditions on the boat."

The defendants do not complain that the witnesses were

not formally qualified as experts, presumably because their

qualifications were apparent. This does not automatically mitigate

a Rule 16 violation if one occurred; the rule helps the opponent to

develop cross examination and to retain a counter-expert. But on

the present facts, the witnesses were quite unlikely to be

impeached on their main points and defendants knew at the outset

that unseaworthiness was a critical issue.

The defendants further assert that they are entitled to

a new trial because the jury selection process did not adequately

probe jurors' prejudices. They say that the district court erred

in refusing to ask eighty proposed voir dire questions designed to

uncover, among other things, potential jurors' biases concerning

illegal immigrants, immigration in general, individuals hailing

from the Dominican Republic, and prior exposure to the case through

the media.

While the trial judge did not ask the precise questions

requested, he conducted a thorough and searching voir dire,

covering inter alia whether the jurors had pre-existing views of

the defendants' guilt or innocence; whether they had learned

anything about the case through any media; whether any jurors would

be prejudiced by evidence of the seven deaths; and, importantly,

-12-
whether the jurors had feelings about Dominican nationals or

illegal immigrants that would impair the ability to come to a fair,

impartial, and just decision.

Nor did the district court err, as the defendants now

argue, by failing to question all members of the venire

individually. Individual questioning may sometimes be appropriate,

but this decision, like most in the conduct of the voir dire, rests

in the district court's sound judgment. United States v. Orlando-

Figueroa, 229 F.3d 33, 43 (1st Cir. 2000). Defendants are also far

from showing that they were prejudiced by the district court's

handling of the venire. See United States v. Misla-Aldarondo, 478

F.3d 52, 60-61 (1st Cir.), cert. denied, 128 S. Ct. 132 (2007).

Next, defendants assail the district court's refusal to

enjoin the government from speaking to the press. At trial,

Martinez and Hilario filed separate motions seeking a court order

to enjoin the prosecution from making further statements to the

press; both motions referred to an article published by the San

Juan Star on May 9, 2005, in which the government confirmed the

date of the upcoming trial and the penalties the government was

seeking.

In subsequent motions the parties disputed whether other

statements in the article--including the claim that "dozens of

survivors identified the accused as the organizers of the ill-fated

crossing"--were properly attributed to the government in violation

-13-
of local rules prohibiting prosecutors from publicly commenting on

the evidence presented at trial. We found no recorded ruling by

the court; conceivably, the matter was dealt with in chambers or

simply dropped.

In all events, while defendants refer to the

"unprecedented media coverage" following the rescue and call the

publicity "inflammatory," they do not show that the government was

responsible for anything beyond a description of the trial date and

penalties sought. Under these circumstances, we see no basis for

saying that the failure to issue the requested injunction resulted

in harmful publicity or otherwise prejudiced the defendants.

We turn now to the objections made by individual

defendants, starting with Milan's claim that his fifth and sixth

amendment rights were violated by the admission of statements he

made to federal agents who interrogated him after his arrest.

Milan was interviewed after his arrest by federal agents in the

early morning hours of December 4, 2004, and again interrogated by

two agents and two prosecutors on the afternoon of December 5,

2004. In each case he was given Miranda warnings and signed waiver

forms.

During these interviews, Milan admitted to being involved

in the smuggling venture and confirmed that he had, at times,

piloted the vessel. He gave other details about the trip and

identified from a photo spread the pictures of the other

-14-
individuals involved and specified those who had controlled the

engines. At trial, the district judge allowed the statements to be

used against Milan, redacting references to other defendants to

comply with Bruton v. United States, 391 U.S. 123 (1968). See

Richardson v. Marsh, 481 U.S. 200, 211 (1987).

Milan says that the second interrogation occurred after

a criminal complaint and an arrest warrant had been filed on

December 4, 2004, so it was improper not only under Miranda but

because the questioning occurred in the absence of counsel after

adversarial proceedings had commenced. But whether or not a

criminal complaint begins adversarial proceedings triggering a

right to counsel, cf. Brewer v. Williams, 430 U.S. 387 (1977), a

defendant can still waive that right. Patterson v. Illinois, 487

U.S. 285, 290-91 (1988).

As for Milan's claim that both interviews were unlawful

because his Miranda waivers were not knowing and intelligent, the

district judge held a hearing, heard from three of the agents, and

considered a proffer from Milan. Milan cited his limited

education, experience with police in his own country and the trauma

of the boat foundering; the agents described Milan's calm demeanor,

lack of handcuffing and the agents' conduct during the interviews.

The judge concluded that the waivers were valid.

"The voluntariness of a waiver . . . has always depended

on the absence of police overreaching, not on 'free choice' in any

-15-
broader sense of the word." Colorado v. Connelly, 479 U.S. 157,

170 (1986). The district court's ruling rested on a factual

evaluation of what had occurred and the application of a general

standard to the particular facts found. The district court's

evaluation is reasonable, is reviewed with deference, United States

v. Downs-Moses, 329 F.3d 253, 267 (1st Cir.), cert. denied sub nom.

Ward-O'Neill v. United States, 540 U.S. 916 (2003), and must be

sustained here.

Milan also says that the redacting of his references to

co-defendants unfairly exaggerated his own role. Redaction is a

judgment call, primarily within the discretion of the trial judge,

United States v. Thuna, 786 F.2d 437, 441 n.7 (1st Cir.), cert.

denied, 479 U.S. 825 (1986), and the standard is not friendly to

the dissatisfied party. United States v. Simonelli, 237 F.3d 19,

28 (1st Cir.), cert. denied, 534 U.S. 821 (2001). Other trial

testimony amply established the involvement of other defendants,

and the redaction was not an abuse of discretion.

Nor did the court violate Milan's right to confront

witnesses against him when he was not allowed to question the

agents to bring out his own admissions implicating other

defendants. "Since the deletion of the [redacted testimony] was

not prejudicial . . . it was within the district court's discretion

to so limit cross-examination, and no independent sixth amendment

issue is raised." Thuna, 786 F.2d at 442 n.10. The agents, of

-16-
course, had no first hand knowledge of the relevant events and

Milan was himself free to testify first hand about the involvement

of others if he chose.

Martinez says that the district court should have granted

his motions for acquittal and for a new trial. Martinez says that

based on the evidence he was no more than a passenger on the yawl

and did not participate in the smuggling venture. On this claim,

we view the evidence in the government's favor and affirm the

conviction if a rational jury could conclude that the prosecution

proved all elements of the offense beyond a reasonable doubt.

United States v. Beltran, 503 F.3d 1, 2 (1st Cir. 2007).

At trial, nine of the ten witnesses testified against

Martinez, saying (for example) that he assisted with the navigation

of the vessel and received payment from one of the passengers. (In

fact, Martinez was identified by many more but the judge limited

witness testimony as cumulative.) The motion to acquit was

properly denied and the denial of a new trial was not an abuse of

discretion.

Hilario claims that the government tainted his conviction

by intimating, in its closing statement, that Hilario refused to

bring the yawl ashore because he had not yet confirmed that each

passenger had a friend or family member waiting on land to pay the

trip organizers. The prosecutor claimed "that profit, that profit

that they were going to make off this trip was why defendant

-17-
Leonardo Hilario-Hilario would not allow that yawl to come to land

until contact was made with the people on land."

There was evidence that travelers were to be held ashore

until further payments were made and that Hilario was heard

discussing the matter on a cellular telephone. Possibly the

prosecutor's inference was a step beyond what was proved; but there

was no contemporaneous objection, meaning that review is for plain

error only. United States v. Allen, 469 F.3d 11, 16 (1st Cir.

2006), cert. denied, 128 S. Ct. 41 (2007). We have no reason to

think that this single comment altered the outcome.

This brings us to the defendants' attacks on their

sentences. By far the most important is one advanced by Rodriguez,

namely, that his ten-year sentence exceeds the maximum allowed

under the statute; he asks that we remand his case to the district

court for re-sentencing subject to a statutory maximum of only five

years. Statutory context is required to grasp his argument.

The governing statute, 8 U.S.C. § 1324, defines

prohibited conduct as, among other things, knowingly "bring[ing] to

or attempt[ing] to bring to the United States [an alien] at a place

other than a designated port of entry," id. § 1324(a)(1)(A)(i), or

aiding and abetting the commission of prohibited acts, id. §

1324(a)(1)(A)(v)(II). Subsection (a)(1)(B) provides the pertinent

maximum sentences, which vary based on the circumstances

surrounding the crime's commission.

-18-
 Importantly, a defendant convicted of smuggling an alien

is subject to a ten-year maximum, id. § 1324(a)(1)(B)(i), but--

quite unusually--one convicted solely of aiding or abetting can be

imprisoned for no more than five years, id. § 1324(a)(1)(B)(ii).2

Stiffer maximums are provided for jeopardizing the life of another

or causing serious bodily injury (twenty-year maximum) or for

committing an offense resulting in death (maximum of life

imprisonment). Id. §§ 1324(a)(1)(B)(iii), (iv).

The indictment (quoted above) charged the five defendants

in a single count with violating section 1324(a)(1)(A)(i)'s

prohibition on the smuggling of aliens as well as section

1324(a)(1)(A)(v)(II)'s aiding and abetting prohibition; it further

alleged that the defendants had acted for purposes of financial

gain and that the smuggling venture had jeopardized the lives of

the passengers, resulting in the death of seven of them, triggering

enhanced penalties under sections 1324(a)(1)(B)(iii) and (iv).

The district court gave instructions to the jury covering

both smuggling and aiding and abetting that offense, and asked

whether each defendant was guilty or not guilty "[a]s to count one

of the indictment." It also gave the jury special verdict

2
The ordinary rule, in the absence of such a distinction in
the substantive statute, is that an aider and abettor is treated as
a principal, 18 U.S.C. § 2, and is punishable accordingly. See
United States v. Bryan, 483 F.2d 88, 95 (3d Cir. 1973) ("[A]n aider
and abettor is a principal and can be punished as such.") (internal
quotation omitted). Normally only an accessory after the fact gets
a fifty percent discount on the maximum sentence. 18 U.S.C. § 3.

-19-
questions directed to financial gain, jeopardizing the lives of

passengers, and death; but, probably because such a distinction

ordinarily does not matter (see note 2, above), it did not ask the

jury to determine whether each defendant was guilty of smuggling or

merely aiding and abetting.

As to the defendants other than Rodriguez, this makes no

difference because the jury's special verdict determined that each

had jeopardized the lives of others and that death had resulted,

triggering imprisonment for "any term of years or for life . . . ."

Id. §§ 1324(a)(1)(B)(iii), (iv). But no such jury finding was made

against Rodriguez; and, if only an aider and abettor, his maximum

term should be five years. Compare id. § 1324(a)(1)(B)(i) with

(ii).

Rodriguez did not raise this issue at sentencing but

raises it now on appeal, so our review is only for plain error and

we may reverse only if we conclude that the error was plain and

prejudicial, and (if uncorrected) would cause a miscarriage of

justice. United States v. Olano, 507 U.S. 725, 734 (1993). Facts

raising the statutory maximum penalty must be found by a jury,

Jones v. United States, 526 U.S. 227, 232 (1999), and here we

cannot tell from the jury verdict that Rodriguez was convicted of

smuggling (rather than aiding and abetting).

So the ten-year sentence was error and prejudicial but

was it a miscarriage of justice? Ordinarily, we will treat a

-20-
sentence that nakedly exceeds the statutory maximum as plain

error;3 but that assumes that the defendant could not lawfully have

been given that sentence. Here, Rodriguez could have been given

that sentence if the evidence allowed him to be convicted as a

principal and the jury so found. It might be enough to negate

miscarriage if the evidence were compelling and the jury likely so

found. See United States v. Portes, 505 F.3d 21, 26 (1st Cir.),

cert. denied, 128 S. Ct. 730 (2007).

The jury did have enough evidence to convict Rodriguez as

a principal. Anyone who helped operate the ship could technically

be treated as a principal and there was testimony--albeit

contradicted by another witness--that Rodriguez helped pilot the

vessel. And (as we will see) the evidence would also have

permitted the jury to conclude, as did the trial judge, that

Rodriguez brandished a knife; but again the evidence was mixed and

the jury may well not have viewed it as did the trial judge.

In all events Rodriguez was not in charge--the defendant

most like a captain was Hilario--and, in a group enterprise, a jury

could choose to regard someone whose role seemed to it less

culpable as merely an aider and abettor. Here, for whatever

3
E.g., United States v. Rodriguez, F.3d , 2008 WL
2025066, at *19 (1st Cir. 2008); United States v. Rodriguez, 938
F.2d 319, 322 n.4 (1st Cir. 1991). Compare United States v.
Portes, 505 F.3d 21, 26 (1st Cir.), cert. denied, 128 S. Ct. 730
(2007) (increase of a statutory maximum based on drug quantity
issue not submitted to the jury not reversible for plain error
where evidence of drug quantity was overwhelming).

-21-
reason, the jury assigned Rodriguez a lesser role than the other

defendants since it found him alone not responsible for endangering

the passengers or culpable for the deaths. So we have no reason to

think it convicted him of the substantive offense of smuggling.

The government, which could have asked for a special

verdict to establish that each defendant was a smuggler and not

merely an aider and abettor, simply says that the evidence was

sufficient for the former designation. This does not show that the

jury convicted Rodriguez as a smuggler, or inevitably would have

convicted him on this basis if it had been asked to choose. Nor

does the government offer any alternative to Rodriguez' proposed

remedy, namely, a remand for re-sentencing him within the five-year

maximum.

The government does not argue that the district judge

could now substitute his own determination for one that the Supreme

Court has said must be made by the jury. Jones, 526 U.S. at 251-

52. Nor, given double jeopardy principles, is it clear that the

penalty issue could now be re-submitted to a new jury. But see

United States v. Williams, 449 F.3d 635, 646 (5th Cir. 2006).

Absent any alternative suggestion from the government, the

straightforward course is to remand for re-sentencing Rodriguez

within the statutory maximum of five years in prison.

In computing Rodriguez' guideline range, the district

judge imposed on him a four-level upward adjustment for brandishing

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a dangerous weapon. U.S.S.G. § 2L1.1(a)(4)(B) (2004). Rodriguez

claims that he used what he calls a "kitchen knife," and the

government calls a machete, merely to cut salami to distribute to

the passengers during the trip. But the district court found that

the knife was brandished and there is evidence to support this

view.

One witness claimed that Rodriguez first used the knife

only to cut salami, but later wielded the knife during a

confrontation, telling passengers to "get down if you don't want us

to cut your neck;" a second said that Rodriguez "pressured" the

passengers to remain calm by "carrying a machete in his hand" in an

aggressive manner. A third witness said that Rodriguez used the

knife only to cut salami--but conceded that "there was one time he

was speaking to the people telling them to relax with that knife in

his hands."

The conduct described by the first two witnesses amounts

to "brandishing" under the definition that "all or part of the

weapon was displayed, or the presence of the weapon was otherwise

made known to another person, in order to intimidate that person,"

U.S.S.G. § 1B1.1, cmt. n.1(c); see United States v. LaFortune, 192

F.3d 157, 161-62 (1st Cir. 1999), cert. denied, 528 U.S. 1129

(2000). To overturn the finding would require a showing of clear

error by the sentencing judge, United States v. Thongsophaporn, 503

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F.3d 51, 57-58 (1st Cir. 2007), cert. denied, 128 S. Ct. 1294

(2008), so we sustain the adjustment as to Rodriguez.

This may not matter as to Rodriguez given the five-year

maximum. But it does matter to the other defendants to whom

Rodriguez' use of the knife was attributed based on guideline rules

applicable to "jointly undertaken criminal activity" that is

"reasonably foreseeable" to other actors. U.S.S.G. §

1B1.3(a)(1)(B). That the group was engaged in "jointly undertaken

criminal activity" is obvious; the harder question is whether the

use of the knife in aid of the endeavor was "reasonably

foreseeable" to the other defendants.

The defendants say that the knife was brought on board

innocently and that smuggling of illegal aliens does not normally

involve coercion or violence. But the knife was still a weapon

and, in this operation, the passengers were not to be released

until additional sums were paid to the organizers upon their

arrival--resistance being a real possibility in such a situation.

Under these circumstances we cannot say that it was clear error to

find that misuse of the knife was reasonably foreseeable. See

United States v. Santiago, 2006 WL 2946882, at *4 (11th Cir. 2006)

(unpublished decision).

Hilario argues for himself that the district court

improperly applied a three-level increase to his offense level

based on his role as a "manager or supervisor" of the smuggling

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operation. Such an enhancement is appropriate "if there is

evidence that a defendant, in committing the crime, exercised

control over, or was otherwise responsible for overseeing the

activities of, at least one other person." United States v.

Voccola, 99 F.3d 37, 44 (1st Cir. 1996) (quoting United States v.

Savoie, 985 F.2d 612, 616 (1st Cir. 1993)).

Hilario used a cellular phone and was overheard

discussing logistics of the operation with another participant; he

was also identified as the captain who gave instructions to other

participants and determined whether and when the boat would be

brought to shore. The district court was entitled to impose the

upward adjustment based on this evidence.4

The same is not so easily said about the two-level

"special skill" adjustment imposed on all defendants save Hilario.

U.S.S.G. § 3B1.3 (permitting for an adjustment where the defendant

"used a special skill[] in a manner that significantly facilitated

the commission or concealment of the offense"). Peguero, Milan and

Rodriguez dispute the district court's conclusion that each of them

possessed a special skill within the meaning of the guidelines. We

review this claim more closely, United States v. Noah, 130 F.3d

4
Hilario's argument that other defendants--namely, Martinez
and Milan--were the true managers of the affair is beside the
point, since the managerial role enhancement does not require the
defendant to "be at the top of a criminal scheme." United States v.
Goldberg, 105 F.3d 770, 777 (1st Cir. 1997).

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490, 499 (1st Cir. 1997), because it turns less on fact finding and

more on what the guideline means by "special skill."

The guidelines define a special skill as "a skill not

possessed by members of the general public and usually requiring

substantial education, training or licensing." U.S.S.G. § 3B1.3,

cmt. n.3 (providing as examples the skills possessed by "pilots,

lawyers, doctors, accountants, chemists, and demolition experts").

The government argued at sentencing "that to pilot a vessel . . .

on rough seas, high waves, traveling for at least 30 hours from the

Dominican Republic towards Puerto Rico" necessarily demonstrated

use of a special skill.

The district court did not specify its basis for pinning

the label to the four defendants. No one other than Martinez

(who, perhaps wisely, does not contest the adjustment as applied to

him) was observed using a GPS or any other navigational device

requiring some degree of sophisticated knowledge. So far as we can

determine from the evidence, the others who received the adjustment

merely took the helm at points during the voyage. The vessel, as

the government pointed out, had none of the standard navigation or

safety equipment that would ordinarily be used for a lengthy sea

voyage.

Captaining a vessel fully equipped for the high seas

doubtless requires special skills, see United States v. Montero-

Montero, 370 F.3d 121, 123-24 (1st Cir. 2004), and certain

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seafaring skills would doubtless qualify (e.g., navigation,

communications, engineering). But steering a simple sailing vessel

along a course, as directed by another, does not appear to us to be

a special skill and the district judge did not say that the three

defendants did any more than this or had the training or expertise

to do more.

Rodriguez is described in the pre-sentence report as a

"lifetime construction worker" with "no other employment history";

Peguero, as a construction worker and a farm worker (the government

conceded that Peguero was not "trained in any matters of the sea").

Milan's pre-sentence report alone contains a reference to his

background as a fisherman in the Dominican Republic but this bare

statement could cover anything from a rowboat to serious sailing;

and some of what he did seemingly involved capturing small crabs at

the beach.

The government points to no evidence that Rodriguez or

Peguero had any sailing or navigational experience or that Milan,

even if he had specialized experience, used it here. Although the

term "yawl" was used at trial, the vessel used here appears to have

been little more than a wooden hull with two outboard motors

affixed. The level of skill required to steer such a vessel under

the direction of a man with a GPS can hardly be compared even to

that needed to keep a sailboat on course. On this record the

special skills adjustment cannot stand, accord United States v.

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Batista De La Cruz, 460 F.3d 466, 469 (3d Cir. 2006), and new

sentences are required with the adjustment deleted.

Our decision has addressed the defendants' colorable

claims; other claims have been considered but require no

discussion. We commend the skillful work of the district judge in

this complicated trial; given the number of defendants and the

variety of issues presented, it is a credit to him that there

remain only a few loose ends as to three sentences that can be

readily resolved on remand.

The convictions of all five defendants are affirmed, as

are the sentences imposed on Hilario and Martinez. The sentences

of the other three defendants (Rodriguez, Milan and Peguero) are

vacated and their cases are remanded for re-sentencing in

accordance with this decision.

It is so ordered.

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