United States v. Angulo-Hernández

United States Court of Appeals
For the First Circuit

Nos. 07-2428; 07-2453; 07-2460; 07-2497

UNITED STATES OF AMERICA,

Appellee,

v.

ALBERTO ANGULO-HERNÁNDEZ; EUSEBIO ESTUPINAN-ESTUPINAN;
GUSTAVO RAFAEL BRITO-FERNÁNDEZ; JOSÉ LUIS CASIANO-JIMÉNEZ,

Defendants, Appellants.

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

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

Before

Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.

Rafael Anglada-López for appellant Alberto Angulo-Hernández.
Jorge E. Rivera-Ortíz for appellant Eusebio Estupinan-
Estupinan.
Jedrick H. Burgos-Amador for appellant Gustavo Rafael Brito-
Fernández.
Frank D. Inserni-Milam for appellant José Luis Casiano-
Jiménez.
Germán A. Rieckehoff, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, were on brief
for appellee.

May 5, 2009
 LYNCH, Chief Judge. Responding to the "serious

international problem" of maritime drug smuggling, 46 U.S.C.

§ 70501, Congress enacted the Maritime Drug Law Enforcement Act

("MDLEA") in 1980. Congress intended the MDLEA to address this

"specific threat to the security and societal well-being of the

United States," id., by providing for the enforcement of our drug

laws outside the territorial jurisdiction of the United States, id.

§ 70503(b). In particular, the MDLEA expanded the drug enforcement

jurisdiction of the United States to include, inter alia, vessels

"registered in a foreign nation if that nation has consented or

waived objection to the enforcement of United States law by the

United States." Id. § 70502(c)(1)(C). Appeals from prosecutions

in the District of Puerto Rico under the MDLEA for drug trafficking

in the Caribbean are frequent in this court. See, e.g., United

States v. Vilches-Navarette, 523 F.3d 1 (1st Cir. 2008); United

States v. Cardona-Sandoval, 518 F.3d 13 (1st Cir. 2008) (per

curiam); United States v. Rodríguez-Durán, 507 F.3d 749 (1st Cir.

2007); United States v. Gil-Carmona, 497 F.3d 52 (1st Cir. 2007);

United States v. Bravo, 489 F.3d 1 (1st Cir. 2007).

In this case, the U.S. Coast Guard intercepted a shipment

of 400 kilograms of cocaine and 25 kilograms of heroin -- worth

several million dollars -- onboard a boat traveling from Colombia

to the Dominican Republic. A jury convicted the captain and three

crewmen from that boat both of aiding and abetting drug possession

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with intent to distribute and of a related conspiracy charge in

federal court in Puerto Rico. That same jury acquitted three other

crewmen. Another crewman was tried and convicted separately.

The convicted defendants' sentences ranged from 360

months' imprisonment for the captain to 151 months' imprisonment

for two of the crew members. On appeal, defendants challenge the

sufficiency of the evidence offered in support of those

convictions, along with various other aspects of their trial and

sentences. We affirm.

I.

On February 4, 2007, the Coast Guard cutter Tahoma was

patrolling in international waters approximately 100 miles north of

the South American shoreline along the border between Colombia and

Venezuela. It came upon the Osiris II, a 120-foot Bolivian flag

vessel, sitting dead in the water.

This was not the Coast Guard's first encounter with the

Osiris II. In November 2006, the Coast Guard boarded the Osiris II

when the boat was experiencing engine problems after leaving

Colombia en route to the Dominican Republic. The Coast Guard

diverted the Osiris II to Puerto Rico, where it inspected the boat

for drugs using dogs and divers. Although the Coast Guard did not

then find any drugs onboard, it considered the Osiris II a

"suspect" vessel.

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 This time, the Osiris II again appeared to be having

propulsion problems. The crew of the Tahoma contacted the Osiris

II to offer assistance. The Osiris II's captain, defendant Eusebio

Estupinan-Estupinan, explained that his boat's main engine was not

working. He initially declined the Coast Guard's offer of help,

saying that a tugboat was on its way. But after the Coast Guard

explained that it had mechanics onboard who could look at the

boat's engine, Estupinan-Estupinan accepted the Coast Guard's offer

and invited the Tahoma's crew to board his vessel. Before

boarding, the Coast Guard obtained permission from the Bolivian

government under the MDLEA to board and search the Osiris II.

Once onboard, the Coast Guard's boarding team performed

an initial safety inspection. Finding no safety hazards, they then

did an at-sea space accountability assessment of the vessel. The

purpose of this search was to ensure that the boat did not contain

any contraband or firearms.

The Coast Guard searched the Osiris II over the course of

several days. Estupinan-Estupinan remained in the pilot house

while the boarding team conducted its search. The other seven

members of the Osiris II's crew -- including defendants Alberto

Angulo-Hernández, Gustavo Rafael Brito-Fernández, and José Luis

Casiano-Jiménez -- stayed on the main deck, where they were guarded

by two members of the boarding team.

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 While searching a closet onboard the Osiris II, Coast

Guard petty officer Sean Andrus discovered a kilogram of a tannish

powder in a trash bag. The substance field-tested positive for

heroin. At trial, however, the parties stipulated that subsequent

laboratory testing revealed that the powder was not a controlled

substance. Andrus secured the area and gathered the Osiris II's

crew in one of the boat's staterooms. Although he did not then

disclose his discovery to the Osiris II's crew, Andrus observed

that they appeared "a little bit nervous at that point in time."

And the longer that the Coast Guard spent searching the boat, the

more nervous the crew members became. Andrus noted that the crew

members appeared especially nervous when, several days later, he

and his team searched the rear portion of the boat.

Searching further, Andrus found a small bag of what

appeared to be cocaine and a tan leafy substance, which field-

tested positive for heroin, in the engineer's stateroom. The

boat's engineer was defendant Angulo-Hernández. Again, the parties

stipulated at trial that subsequent laboratory testing showed that

these items were not controlled substances.1

Having already found smaller quantities of substances

that field-tested positive for cocaine and heroin onboard the

1
Unfortunately, the government's brief to us
misrepresented the evidence presented at trial, saying that "drugs
-- cocaine and heroin -- were found in two (2) of the staterooms,
including the engineer's stateroom." The stipulation at trial
contradicts this assertion.

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Osiris II, Andrus continued to search the boat for a larger drug

stash. He had suspected that the boat's primary purpose was to

smuggle drugs because its legitimate cargo -- 28,011 rolls of

toilet paper, 207 Styrofoam coolers, and 14 pieces of office

furniture, which according to the boat's invoice were together

worth approximately $25,000 -- was, in his view, insufficient to

make the voyage profitable. Beyond that, the boat's cargo was not

stored in a manner consistent with the practices on a typical

commercial vessel. Instead of being stored neatly in boxes or on

pallets, the cargo, including some of the toilet paper, was left

free to move around the cargo hold, potentially making the boat

unstable and threatening to destroy the value of the cargo.

On February 9, 2007, only one portion of the boat

remained for the Coast Guard to search -- a space toward the rear

of the vessel around the aft lube oil tank. Andrus attempted to

enter this space through the crew's living quarters. Andrus

removed the rubber matting from the floor, revealing a layer of

plywood beneath it. The plywood contained a rectangular seam

measuring two feet by four feet. When Andrus could not remove the

plywood with a crowbar, he cut a hole in the wood, striking the

boat's steel deck four inches below. Andrus then removed two

layers of plywood, exposing a metal hatch screwed into the deck

with new-looking screws. Upon removing the screws, the hatch

lifted up easily from the deck. The space below contained several

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plastic bags. In one bag, the Coast Guard found a .380-caliber

MAC-10 submachine gun, a fourteen-round loaded magazine, and a

silencer for that weapon. The other bags contained approximately

400 bricks of cocaine and 25 bricks of heroin. These drugs would

have had a street value of approximately $8 million in Puerto Rico.

The boarding team immediately arrested the Osiris II's

entire crew. Andrus testified: "Once we detained them, put them

in handcuffs, their mood changed drastically. They seemed

dejected. They hung their heads low. They just knew they were

caught." This testimony is a subject of these appeals. The Coast

Guard then towed the Osiris II to San Juan, Puerto Rico.

On April 4, 2007, all eight persons onboard the Osiris II

were charged in a three-count superseding indictment with

(1) conspiracy to possess with intent to distribute the drugs

seized from the boat, see 46 U.S.C. § 70506(b); (2) aiding and

abetting drug possession with intent to distribute, see 18 U.S.C.

§ 2(a); 46 U.S.C. § 70503(a)(1); and (3) aiding and abetting

possession of a machine gun, see 18 U.S.C. §§ 2(a),

924(c)(1)(B)(ii).

After a six day trial, a jury convicted Angulo-Hernández,

Estupinan-Estupinan, Brito-Fernández, and Casiano-Jiménez on all

three counts. The jury acquitted the other three crew member co-

defendants. The eighth crew member of the Osiris II was tried

separately and convicted on all three counts. At sentencing, the

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district court granted a judgment of acquittal as to the gun

possession charge for each defendant. Defendants timely appealed

from their convictions. Angulo-Hernández and Estupinan-Estupinan

also contest their sentences on appeal.

II.

A. Sufficiency of the Evidence

All defendants challenge the sufficiency of the evidence.

Where, as here, the defendant has preserved his sufficiency

challenge by moving for a post-verdict judgment of acquittal, our

review is de novo. United States v. Carrasco, 540 F.3d 43, 49-50

(1st Cir. 2008). We review the evidence in the light most

favorable to the government, drawing all reasonable inferences

consistent with the jury's verdict. Id. at 50. "If a reasonable

jury could have found that the government had proven each element

of the crime beyond a reasonable doubt, we will affirm the

conviction." Id. We do not atomize our analysis. "[W]e 'consider

the evidence in its totality, not in isolation, and the government

need not negate every theory of innocence.'" United States v. Lee,

549 F.3d 84, 92 (2d Cir. 2008) (quoting United States v. Autuori,

212 F.3d 105, 114 (2d Cir. 2000)); see also United States v.

Roberson, 459 F.3d 39, 47 (1st Cir. 2006).

Defendants argue that they are entitled to a judgment of

acquittal because three of their co-defendants were acquitted, even

though, they assert, the "evidence presented by the government and

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the defendants was exactly the same as to all of the seven

defendants." This argument misses the point. The pertinent

question is whether a reasonable jury could have found these

defendants guilty beyond a reasonable doubt based upon the evidence

presented. What the jury ultimately decided as to their similarly

situated co-defendants is not relevant. Cf. United States v.

Powell, 469 U.S. 57, 67 (1984) (recognizing that review of a

sufficiency challenge "should be independent of the jury's

determination that evidence on another count was insufficient").

Even if we were to view this as an inconsistency in the jury's

verdict, which we do not, that is not a basis for overturning a

conviction that is sufficiently supported by the evidence. See

United States v. DeCologero, 530 F.3d 36, 69 (1st Cir. 2008).

Here, the evidence offered was more than sufficient to

support each of the defendants' convictions. To prove guilt on the

aiding and abetting drug possession charge, the government needed

to show beyond a reasonable doubt that the defendants participated

in the drug venture and sought by their actions to make it succeed.

Rodríguez-Durán, 507 F.3d at 758-59. Specifically, a violation of

46 U.S.C. § 70503(a)(1) requires proof that (1) the defendants'

vessel was subject to the jurisdiction of the United States, (2)

the material found onboard the boat was a controlled substance, and

(3) the defendants knowingly or intentionally possessed the drugs

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with the intent to distribute them. Rodríguez-Durán, 507 F.3d at

759.

Defendants focus on the third prong, arguing that the

government proved only their mere proximity to the drugs, which was

insufficient to support their convictions. Of course, a

defendant's mere presence at the scene of the crime alone is

generally insufficient proof of his participation in the crime.

United States v. Guerrero, 114 F.3d 332, 342 (1st Cir. 1997). But

this is not a "mere presence" case; the evidence strongly indicates

that the convicted defendants knew about the drugs onboard the

Osiris II.

The evidence against Estupinan-Estupinan, the boat's

captain, is particularly strong. "[J]uries may reason that a

captain normally knows what his ship contains." Carrasco, 540 F.3d

at 50 (alteration in original) (quoting United States v. Steuben,

850 F.2d 859, 865 (1st Cir. 1988)). Here, the evidence presented

supports this common sense conclusion. For example, the Coast

Guard found a sketch of the Osiris II in the captain's quarters

with a mark indicating where the drugs were hidden. And Estupinan-

Estupinan initially refused help from the Coast Guard, even though

his boat's engine had failed in the open water. A jury could

reasonably infer that his reluctance was motivated by a desire to

keep the Coast Guard from discovering the drugs onboard his boat.

Moreover, Estupinan-Estupinan did not run his boat in a manner

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consistent with a commercial shipping operation. The boat's

legitimate cargo was carelessly stowed in the hold, potentially

compromising both the stability of the boat and the integrity of

the cargo.2 Based upon the evidence presented, a reasonable jury

could easily have found that Estupinan-Estupinan knew there were

drugs on his boat.

The government also presented sufficient evidence to

sustain the convictions against crew members Brito-Fernández and

Casiano-Jiménez. Supporting factors may include "the length of the

voyage, the size and condition of the vessel, the quantity of

[drugs aboard], and the absence of a legitimate purpose for the

voyage." Carrasco, 540 F.3d at 50 (alteration in original)

(quoting Guerrero, 114 F.3d at 342). Here, the Osiris II was on a

voyage between Colombia, a primary source of drugs, and the

Dominican Republic. A large quantity of drugs was seized from a

hidden compartment accessible through the crew's berthing area.

The quantity of drugs seized itself suggests strongly that each of

the crew members knew about the boat's drug smuggling purpose

because "drug traffickers would not entrust a multi-million-dollar

shipment to anyone in whom they did not have confidence."

Rodríguez-Durán, 507 F.3d at 760; see also Guerrero, 114 F.3d at

2
Other items seized from the boat suggest that Estupinan-
Estupinan was not running a legitimate business. For example,
Estupinan-Estupinan kept his captain's log in a child's notebook,
which had trucks on the cover and the title "Super Trucks."

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344 ("[U]nwitting bystanders would not have been hired to

participate in the [boat's] obvious illegal transport of millions

of dollars' worth of contraband); United States v.

Piedrahita-Santiago, 931 F.2d 127, 131 (1st Cir. 1991); United

States v. Cuevas-Esquivel, 905 F.2d 510, 515 (1st Cir. 1990) ("It

is entirely reasonable for the jury to conclude the conspirators,

engaged in conduct which by its nature is kept secret from

outsiders, would not allow the presence of innocent bystanders.").

And the practical difficulties involved with concealing such a

quantity of drugs makes it unlikely that the crew members were

unaware of the drugs onboard the boat. See Carrasco, 540 F.3d at

51.

Beyond that, the screws on the hatch leading to that

compartment were not tarnished, indicating that the space had been

sealed shut recently. This evidence is probative of the crew

members' knowledge of the drugs because the more recently that the

drugs were placed onboard the boat, the more likely it is that the

crew members either witnessed the loading or participated in it.

Finally, a reasonable jury could have concluded that the

crew members knew the purported legitimate purpose of the voyage

was a ruse, given the self-evident low value of the cargo and the

unprofessional manner in which it was transported. Indeed, as even

the defendants' only witness acknowledged, the toilet paper was

stored in a manner that could have destroyed its value, making it

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obvious that the boat's primary purpose was something other than

delivering toilet paper. The evidence in total was sufficient for

a jury to conclude the crew members knew of the Osiris II's drug

smuggling purpose.

The evidence demonstrating the other crew members' guilt

applies with equal force to Angulo-Hernández, the boat's engineer.

But one additional fact makes the government's case against Angulo-

Hernández even stronger. Angulo-Hernández had been on a previous

crew list for the Osiris II, making it even more unlikely that he

was unaware of the boat's secret compartment and its contents. His

sufficiency claim also fails.

Likewise, because the jury could have found that each

defendant had knowledge of the drugs onboard the Osiris II, it

could have inferred that they had agreed to transport the drugs for

the purpose of distributing them at their destination, which is the

essence of the conspiracy charge. See Carrasco, 540 F.3d at 51.

B. Lay Opinion Testimony

All defendants challenge the admission of Andrus's

testimony regarding the crew's demeanor when they were arrested.

Specifically, Andrus testified: "Once we detained them, put them

in handcuffs, their mood changed drastically. They seemed

dejected. They hung their heads low. They just knew they were

caught." Defendants argue that Andrus's statement was not properly

admissible as a lay opinion under Fed. R. Evid. 701.

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 Even assuming without deciding that Andrus offered an

improper lay opinion, any possible error was harmless. A non-

constitutional evidentiary error is harmless if it is "highly

probable that the error did not influence the verdict." Roberson,

459 F.3d at 49 (quoting United States v. Flemmi, 402 F.3d 79, 95

(1st Cir. 2005)). Here, the district court immediately clarified

that Andrus's statement should be interpreted as a statement about

the defendants' visible frustration at the situation, which is a

permissible subject of lay opinion testimony. See 29 Wright &

Gold, Federal Practice and Procedure § 6255, at 160 (1997) ("[L]ay

opinion traditionally has been received as to the mental, emotional

or physical condition of a person observed by the witness."). The

district court then minimized the force of Andrus's statement by

stating that it was merely Andrus's interpretation of the

situation. These efforts, coupled with the weight of the evidence

against the convicted defendants, convince us that any error that

may have occurred here was harmless.

C. The District Court's Questioning of Witnesses and
Commentary During the Trial

Each of the four defendants complains that he was

seriously prejudiced by various instances of the district court's

questioning of witnesses and commentary during the trial.3 They

3
To give a few examples, defendants argue that the
district court improperly commented on Andrus's testimony regarding
the change in the crew members' moods upon their arrest.
Specifically, when responding to defense counsels' objection to

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argue that the district court's participation in trial demonstrated

a bias in favor of the government. On balance, we reject their

arguments.

Andrus's testimony on the basis that he lacked personal knowledge
of the crew members' moods, the district court said: "Well,
obviously, he was the one who caught them. So how can you say
that? The mood changed drastically."
Later, on cross-examination, defense counsel asked
Andrus: "So your main objective that afternoon . . . was not to go
help the captain with the mechanics of the vessel? Yes or no?"
Andrus responded: "I can't answer that yes or no, sir. I have to
explain it." When defense counsel persisted in trying to make
Andrus give a yes or no answer, the district court said to Andrus:
"There is no question about the fact that your mission was not
necessarily being a Good Samaritan. You had a law enforcement
mission." Andrus replied: "Yes, sir." The district court then
said: "There you go."
Defendants also claim that the district court frequently
interrupted the testimony of their only witness, José L. Rivera, a
harbor pilot. In particular, when the government was cross-
examining Rivera regarding the common practices for storing cargo
on a boat, the following exchange occurred:
THE COURT: Isn't it a fact that, usually,
this kind of commodity is
packed in cardboard boxes or in
pallets? Otherwise, you are
going to ruin it.
THE WITNESS: Well, Your Honor, they normally
come in -- from what we see in
the United States, they come in
boxes. This one is wrapped in,
obviously, plastic. So it
could have been that one of the
packets opened or ruined and
the other stuff was loose and
unprotected.
THE COURT: It is not the typical
arrangement you would find a
commercial cargo intended for
commercial purposes?
THE WITNESS: No.

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 "[A] trial judge in the federal system retains the common

law power to question witnesses and to analyze, dissect, explain,

summarize, and comment on the evidence." Logue v. Dore, 103 F.3d

1040, 1045 (1st Cir. 1997). Yet there are limits on this power.

"[T]he judge's participation must be balanced; he cannot become an

advocate or otherwise use his judicial powers to advantage or

disadvantage a party unfairly." Id. "With allegations of judicial

bias, we consider whether the comments were improper and, if so,

whether the complaining party can show serious prejudice."

DeCologero, 530 F.3d at 56.

We have carefully evaluated whether the court's rather

frequent questioning and commentary crossed the line. These

incidents of alleged improper participation were, on the whole,

efforts by the district court to clarify testimony, respond to

defense counsels' objections, determine the qualifications of

expert witnesses, and expedite the trial, all legitimate purposes.

We also note that the district court instructed the jury at the

outset of trial that

I am not here to lead you into a particular
result. I am not here to insinuate to you or
tell you what your answer should be to the
factual questions of the case. So you should
disregard any comment that I may make,
anything that I may do or say that has nothing
to do with rulings or with the applicable law.

Cf. Logue, 103 F.3d at 1046-47 (explaining that jury instructions

may be "sufficient to palliate any untoward effects" of the

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district court's participation in the trial). While district

courts must be cautious about such intrusions, we find no

prejudicial error here.

D. Constitutional Challenge to Jurisdiction Under the MDLEA

Angulo-Hernández and Casiano-Jiménez argue that the MDLEA

is unconstitutional. As best we can tell, their argument is that

due process requires that the government prove a jurisdictional

nexus between the defendants' criminal conduct and the United

States. That argument has been rejected by this court for at least

a decade. "[D]ue process does not require the government to prove

a nexus between a defendant's criminal conduct and the United

States in a prosecution under MDLEA when the flag nation has

consented to the application of United States law to the

defendants." United States v. Cardales, 168 F.3d 548, 553 (1st

Cir. 1999). And the MDLEA itself contains no jurisdictional nexus

requirement. Bravo, 489 F.3d at 7.

Here, the Coast Guard complied with the MDLEA's

jurisdictional requirements by obtaining consent from the Bolivian

government to enforce the laws of the United States against those

onboard the Osiris II. See 46 U.S.C. § 70502(c)(1). This was

proven in court through a certificate from the U.S. State

Department. See id. § 70502(c)(2) ("Consent or waiver of objection

by a foreign nation to the enforcement of United States law by the

United States . . . is proved conclusively by certification of the

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Secretary of State or the Secretary's designee."). The defendants'

jurisdictional challenge is meritless.

Defendants also argue on appeal that the MDLEA violates

the Confrontation Clause because it allows jurisdiction under the

statute to be proven conclusively through a certificate from the

State Department without allowing the defendants an opportunity to

cross-examine the certifying declarant. See id. § 70502(c)(2)(B).

Jurisdiction under the MDLEA is not an element of the offense; it

is a "preliminary question[] of law to be determined solely by the

trial judge," id. § 70504(a); see also Vilches-Navarrete, 523 F.3d

at 20.

Here, the prosecution asserted that there was

jurisdiction under the MDLEA through a motion in limine, which

included the State Department's certificate as an attachment. The

prosecution's motion recognized that jurisdiction under the MDLEA

is "not an issue that should be litigated during trial or before

the jury." The district court agreed and ultimately rejected,

before trial, the defendants' jurisdictional challenge.

Despite this ruling, defendants persisted at trial in

contesting the district court's jurisdiction under the MDLEA,

arguing that the State Department's certificate lacked sufficient

indicia of reliability. In response, the government offered the

State Department's certificate as a trial exhibit, which the

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district court accepted over the defendants' hearsay objection.

Defendants did not object on Confrontation Clause grounds.

The district court later instructed the jury that "as a

matter of law, . . . the Motor Vessel Osiris II was subject to the

jurisdiction of the United States." Following that instruction,

defendants renewed their objection to giving the jury a copy of the

State Department's certificate, presumably on the same ground of

inadmissible hearsay. The district court overruled their

objection. Defendants again never objected to the admission of the

State Department's certificate under the Confrontation Clause. Our

review of their newfound appellate claim is for plain error.

United States v. Ziskind, 491 F.3d 10, 14 (1st Cir. 2007). To meet

the plain error standard, defendants must show: "(1) the occurrence

of an error; (2) that the error is obvious or clear under current

law; (3) that the error affected [their] substantial rights; and

(4) that it seriously impaired the fairness, integrity, or public

reputation of the judicial proceedings." Id.

There was no plain error in the admission of the State

Department's certificate. To start, the certificate was relevant

to the jurisdictional issue before the court. It was admissible

under the hearsay exception for public records, see Fed. R. Evid.

803(8), and was self-authenticating, see Fed. R. Evid. 902(1).

There was no need to publish it to the jury; defendants brought

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that on themselves by trying to raise the certificate as an issue

at trial.

We seriously doubt that defendants can mount a

Confrontation Clause challenge to the admission of the State

Department's certificate. Any cross-examination of the certifying

declarant would have been irrelevant because the State Department's

certificate conclusively proved jurisdiction under the MDLEA. See

46 U.S.C. § 70502(c)(2)(B). For purposes of plain error review, we

do not decide the Confrontation Clause question because the "error"

alleged by defendants was not "obvious or clear under current law,"

Ziskind, 491 F.3d at 14. Defendants have cited no case which holds

that a State Department certificate is testimonial within the

meaning of the Confrontation Clause. Indeed, the caselaw is to the

contrary. See Pandales-Angulo v. United States, No. 01-CR-294-T-

17MSS, 2006 WL 1540259, at *5 (M.D. Fla. May 31, 2006).

E. Denial of Request for Continuance

Casiano-Jiménez challenges the district court's denial of

his multiple requests for a continuance. The essential argument is

that the holding of trial within three months of his initial

indictment was too fast to allow him to mount a defense. Our

review is for abuse of discretion. DeCologero, 530 F.3d at 78-79.

"We grant 'broad discretion' to a trial court to decide a

continuance motion and will only find abuse of that discretion with

a showing that the court exhibited an 'unreasonable and arbitrary

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insistence upon expeditiousness in the face of a justifiable

request for delay.'" United States v. Rodriguez-Marrero, 390 F.3d

1, 21-22 (1st Cir. 2004) (quoting United States v. Rodriguez

Cortes, 949 F.2d 532, 545 (1st Cir. 1991)).

Casiano-Jiménez and his co-defendants filed five motions

for a continuance because, in their view, "there had not been

enough time to verify the discovery announced by the prosecution

[or] to carefully examine, analyze and obtain evidence needed for

an adequate defense." Specifically, Casiano-Jiménez wanted

additional time to obtain "a certification by the Embassy of

Bolivia to the fact that on February 4, 2007 it had not authorized

the boarding by the U.S. Coast Guard."

On March 30, 2007, the government provided defendants

with the State Department's certification of Bolivia's statement of

no objection, which conclusively proved the Coast Guard's authority

to board the Osiris II. See 46 U.S.C. § 70502(c)(2)(B). The

defendants' trial did not start until May 7, 2007. Casiano-Jiménez

has failed to explain how any additional time would have allowed

him to challenge this document, and we find no abuse of discretion

in the district court's decision to proceed with the trial as

scheduled. See Rodríguez-Durán, 507 F.3d at 766-67 (rejecting a

nearly identical challenge to a denial of a motion for a

continuance).

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F. Fair Cross-Section Challenge

Angulo-Hernández argues that he was denied his Sixth

Amendment right to a jury drawn from a fair cross-section of the

community because a substantial percentage of the population in

Puerto Rico lacks the English language proficiency required to

serve on a federal jury. We have rejected this argument before.

See United States v. Rodríguez-Lozada, 558 F.3d 29, 38 (1st Cir.

2009); United States v. González-Vélez, 466 F.3d 27, 40 (1st Cir.

2006); United States v. Dubón-Otero, 292 F.3d 1, 17 (1st Cir.

2002). Even if we were not bound by precedent, we would reach the

same result.

G. Sentencing Issues

Angulo-Hernández and Estupinan-Estupinan challenge their

sentences. Angulo-Hernández, the boat's engineer, received 292

months' imprisonment, a sentence at the low end of his Guidelines

Sentencing Range ("GSR"). Estupinan-Estupinan, the boat's captain,

received 360 months' imprisonment, a sentence in the middle of his

GSR.

Estupinan-Estupinan and Angulo-Hernández both argue that

their sentencings were procedurally defective because the district

court did not explain on the record its reasons for selecting the

sentences it chose. Yet explicit reasons are not needed where "a

court's reasoning can . . . be inferred by comparing what was

argued by the parties or contained in the pre-sentence report with

-22-
what the judge did." United States v. Jiménez-Beltre, 440 F.3d

514, 519 (1st Cir. 2006) (en banc). Here, we can infer that the

district court's sentencing decision was motivated in large part by

the seriousness of the offense -- a multi-million dollar drug

smuggling operation involving a machine gun. And in any event, the

district court provided an explanation for Estupinan-Estupinan. It

said that it chose 360 months for Estupinan-Estupinan because he

had two prior drug crime convictions.

Angulo-Hernández and Estupinan-Estupinan also challenge

the substantive reasonableness of their sentences. We review the

substantive reasonableness of their sentences under an abuse of

discretion standard, considering the totality of the circumstances.

United States v. Gibbons, 553 F.3d 40, 47 (1st Cir. 2009).

Estupinan-Estupinan argues that his sentence was

unreasonably harsh given his age; he was 62 years old at the time

of his sentencing. The district court found this factor was

outweighed by the severity of Estupinan-Estupinan's current offense

and history of drug crimes. "We will not disturb a well-reasoned

decision to give greater weight to particular sentencing factors

over others," id., and the district court here did not abuse its

discretion in choosing not to exercise leniency in light of

Estupinan-Estupinan's age.

Angulo-Hernández argues that his sentence was

unreasonable because his co-defendant crew members received only

-23-
151 months' imprisonment and at least one of them has a criminal

record similar to his. But Angulo-Hernández did not present this

argument about a sentencing disparity to the district court, and

our review is for plain error. United States v. King, 554 F.3d

177, 180 (1st Cir. 2009). There was no error here, let alone plain

error. The evidence presented at trial indicated that Angulo-

Hernández likely had a more substantial role in the conspiracy than

his crew member co-defendants, given that his name appeared on a

previous crew list. Because of this difference, we cannot say that

Angulo-Hernández received a disparate sentence.

III.

The defendants' convictions and sentences are affirmed.

-Opinion Concurring in Part and Dissenting in Part Follows-

-24-
 TORRUELLA, Circuit Judge (concurring in part and

dissenting in part). I dissent from the majority's conclusion that

the evidence was sufficient as to crew-members José Luis Casiano-

Jiménez and Gustavo Rafael Brito-Fernández. I also write

separately to state my conclusion that the statement "they just

knew they had been caught" is inadmissible, and to note my view of

the jurisdictional issue. I join the majority in affirming the

conviction and sentence of engineer Alberto Angulo-Hernández and

captain Eusebio Estupinan-Estupinan.

I. Sufficiency

Although there is no doubt that circumstantial evidence

can be enough to support a conviction, the circumstantial evidence

in this case is not sufficient to sustain the charges against

Casiano-Jiménez and Brito-Fernández. Notwithstanding that the

majority recognizes that mere presence at a location where

contraband is discovered is insufficient proof of participation, it

proceeds to effectively circumvent this rule by finding the

evidence presented by the government here sufficient to convict

crew-members Casiano-Jiménez and Brito-Fernández.

As to these defendants, the majority posits that four

facts establish that the evidence was sufficient to convict them by

proof beyond a reasonable doubt. Specifically, the majority

reasons that (1) the ship was traveling from Colombia, a "primary

source of drugs," (2) the large quantity of drugs seized shows that

-25-
the crew-members knew about the presence of the contraband, since

drug traffickers would not entrust such a large shipment to those

whom they did not trust, (3) the screws on the hatch leading to the

compartment were not tarnished, thus showing that they were placed

recently, and (4) the jury could conclude that the crew-members

would know that the legitimate purpose of the voyage was a ruse

since the cargo was low in value and stored haphazardly. Even

considering these points, I conclude that the circumstantial

evidence was insufficient as to the crew-members Casiano-Jiménez

and Brito-Fernández.4

First, it is not proper to use the fact that the

defendants and the vessel originated in Colombia in a sufficiency

analysis. The nation of Colombia engages in significant legitimate

trade.5 The majority's rule sweeps too broadly in that it allows

a jury to use the vessel's Colombian point of origin as evidence

4
The majority states that the evidence "strongly
indicates" that the convicted defendants knew of the presence of
drugs. But, of course, each of these facts also equally applies to
the acquitted defendants. Yet, the majority also states that it
sees no inconsistency in the jury's verdict. While I agree that
inconsistency in a verdict is no basis for overturning a
sufficiently supported conviction, I think the majority should be
consistent in its appraisal of the evidence and the verdict.
5
At a minimum, Colombia is the world's second largest
exporter of coffee. International Trade Centre, International
Trade Statistics by Product Group and Country, Exports 2001-2005,
http://www.intracen.org/tradstat/sitc3-3d/ep071.htm. It is also
the fourth largest trading partner of the United States in Latin
America. United States Trade Representative, Colombia FTA Facts
(October 2008), http://www.ustr.gov/assets/Trade_Agreements/
Bilateral/Colombia_FTA/asset_upload_file901_13713.pdf.

-26-
that a crew-member must have known the vessel was involved in a

drug transaction. Such an inference is based more on speculation

than on a fact established in this case because such an inference

is not adequately supported in the record. Further, such an

inference cuts against the ideals of fairness and due process

underpinning our system of justice. It stands on the same footing

as saying that because defendants are Colombian they are more

likely to be drug smugglers.

Second, I take issue with the majority's rule that a

large quantity of hidden drugs is enough under all circumstances to

permit an inference that crew-members are aware of the drugs. When

taken to the degree employed by the majority this rule effectively

undoes our rule that mere presence is insufficient to prove

knowledge. Our cases have acknowledged that entrustment with a

large quantity of drugs shows the requisite knowledge. E.g.,

United States v. Rodríguez-Durán, 507 F.3d 749, 760 (1st Cir. 2007)

(pointing to expert evidence presented in that case to the effect

that traffickers "would not entrust a multi-million-dollar shipment

to anyone in whom they did not have confidence" (emphasis added)).

Here, however, there is no evidence establishing that the crew was

entrusted with any responsibility regarding the contraband.

Rather, the evidence is consistent with the inference that the

traffickers entrusted the drugs to the captain, and by allowable

inference also the engineer. The facts of this case are

-27-
distinguished from Rodríguez-Durán, where other factors indicated

that the crew knew about the endeavor. In fact, in that case, the

captain testified that he told the crew about the drug shipment

after the voyage was underway, and the crew then became involved in

loading the 1854 kg of cocaine off a boat that met the defendants'

ship on the high seas. Id. at 757. Thus, in Rodríguez-Durán,

there was evidence showing that the crew was entrusted with

responsibilities regarding the drugs. None is present here.

Moreover, the other cases relied upon by the majority are

equally inapposite. In United States v. Guerrero, we stated that

"unwitting bystanders would not have been hired to participate in

the [boat's] obvious illegal transport of millions of dollars'

worth of contraband." 114 F.3d 332, 344 (1st Cir. 1997) (emphasis

added). In that case, 100 plastic-wrapped bales (later discovered

to contain 5,596 pounds of marijuana) were found on board a forty-

foot recreational vessel, which was equipped with sophisticated

radar equipment. Id. at 335, 337. Thus, it would have been

obvious to the crew that the mission was to carry suspect cargo,

which was out in the open, and thus it was fair to conclude that

innocent bystanders were not involved.

Similarly, in United States v. Cuevas-Esquivel, the Coast

Guard recovered 2,795 pounds of marijuana that had been thrown

overboard from a thirty to forty foot vessel by the crew before the

Coast Guard boarded the vessel. 905 F.2d 510, 512, 515 (1st Cir.

-28-
1990). We summed up the evidence by noting that the jury could

"without undue strain conclude that it was simply incredible that

with only four persons on board a relatively small vessel, on its

way to 'nowhere,' with an open cargo hold, surrounded by a sea of

floating marihuana bales which some of the crew had been seen

dumping, that all four were not participants in this criminal

venture." Id. at 515. It was only in this context, that the court

stated, "[i]t is entirely reasonable for the jury to conclude that

conspirators, engaged in conduct which by its nature is kept secret

from outsiders, would not allow the presence of innocent

bystanders." Id. This statement must be read in context as

meaning that in that case, where the volume of obvious marijuana

was overwhelming, the defendants' claims to be an innocent

bystander are unavailing. Cuevas-Esquivel does not support a rule

that presence on a boat carrying a large shipment of drugs is

always enough to rule one out as an innocent bystander. United

States v. Piedrahita-Santiago similarly fits this pattern. 931

F.2d 127, 131 (1st Cir. 1991) (involving a small, overmanned

vessel, containing 9,984 pounds of marijuana which was "not

disguised or inaccessible" and concluding "[t]his court has held

that a relatively small vessel carrying a large quantity of drugs

is indicative of knowledge and involvement on the part of the

crew"). By contrast, in this case, the contraband was so well

-29-
hidden on the 120-foot vessel that it took experienced Coast Guard

agents days of searching to discover it.

Thus, in this case, there is no basis for drawing a

comparable inference that no innocent crew-member could be aboard.

The majority disagrees and reasons, by reference to United States

v. Carrasco, 540 F.3d 43 (1st Cir. 2008), that the "practical

difficulties" involved in concealing "such a quantity of drugs"

makes it unlikely that the crew-members were unaware. But in

Carrasco we found sufficient evidence as to two defendants where

three men were found with 47 kilograms of cocaine and 170 kilograms

of heroin on a twenty-one foot boat. Id. at 45, 49-51. One

defendant, Mala, was the captain. Id. at 50 ("'[J]uries may reason

that a captain normally knows what his ship contains.'" (quoting

United States v. Steuben, 850 F.2d 859, 865 (1st Cir. 1988))). The

other defendant, Carrasco, testified that he had loaded the

containers (that ultimately were found to contain drugs) on the

boat. Id. None of the containers were locked or secured, but were

readily accessible. Id. Thus, the analogy to the present case is

not sound. To be sure, the 425 kilograms of cocaine and heroin

found on the Osiris II is a high-value shipment. But, it is not so

much actual weight as to presume that all eight crew-members would

be needed to complete the task of loading and unloading the cargo.

Further, the evidence suggested that the secret hold was in place

for some time and already well concealed on the 120-foot Osiris II.

-30-
Compare id. 50-51 (repeatedly noting the large quantity of drugs on

the small boat was an important factor). Thus, I do not understand

why the "practical difficulties" involved in "concealing" the drugs

shows involvement by the whole crew. Considering the numbers

involved here, it would be quite practical for a small subgroup of

the crew (or for that matter, non-crew) to load the drugs into the

secret compartment before the crew reported for duty.

In sum, the high value of the drugs, stashed away in a

small secret compartment so difficult to detect that it took the

Coast Guard several days to find it, should not be enough to infer

entrustment and knowledge to the crew-members of a relatively large

freighter. Cf. Steuben, 850 F.2d at 867 (finding, as to two

defendants, insufficient evidence that marijuana being carried in

towed vessel was obvious, insufficient evidence that those

defendants were willing to help evade capture, and insufficient

evidence that the two defendants communicated with the captain,

"the only individual who would have had a special reason to know

about the nature of the voyage" (internal quotation marks

omitted)). Applying the rule that large volume implies knowledge

without requiring evidence of entrustment effectively means that

mere presence near a large volume will be enough to support a

conviction. This is not, and should not be, our rule. Thus, in my

view, the majority's attempt to portray this case as just another

drug boat case mischaracterizes the evidence, finds sufficient

-31-
evidence using less evidence than our previous cases, and has the

effect of undermining our rule that "mere presence" is not enough

to support a conviction. This outcome is a violation of the

constitutional requirement of establishing guilt beyond a

reasonable doubt.

Third, the evidence regarding the screws simply has no

probative weight pertinent to establishing knowledge by the crew

that a secret compartment existed or contained illegal drugs. The

majority essentially reasons that from the shiny appearance of the

screws, a jury could infer that the screws were new; from the fact

that the screws were new, a jury could then infer that the drugs

were placed recently; and from the fact that the drugs were placed

recently, the jury could infer that all crew-members were aware of

the drugs. This is at least one, and perhaps two, inferences too

many, with the final inferential leap being particularly weak.

There is no evidence, or even common-sense reason, that all crew-

members would know about the drugs even if the drugs were loaded

just before departure. Just as the evidence is entirely consistent

with the inference that the captain hired an unaware crew, so is

the evidence equally consistent with the inference that those shiny

screws were put in place without the knowledge of Brito-Fernández

or Casiano-Jiménez. Furthermore, it makes no logical sense to

conclude that the presence of "shiny screws" establishes, even by

-32-
inference, the presence of illegal contraband. It establishes

nothing.

Lastly, as to the question of the legitimacy of the

voyage, the majority again relies too heavily on speculation. The

evidence in the record is to the effect that the value of the cargo

was approximately $25,000. I fail to see how this fact should be

enough to establish that the crew-members must have known that the

voyage was not for a legitimate commercial purpose. Further, the

ship was headed for the Dominican Republic. It is certainly not

beyond the realm of reasonable possibility that it would have

picked up more valuable cargo at its destination. The government

presented no evidence to foreclose this possibility.

Similarly, the majority points out the allegedly

inadequate bookkeeping of the captain. But, while it may be

amusing that the captain's log was kept in a children's notebook,

I fail to see how this fact establishes that the voyage was

illegitimate. Such a log may be consistent with how records are

kept by captains of "tramp" steamers in the Caribbean. The record

certainly does not establish otherwise. Furthermore, the record

establishes that the Osiris II's bills of lading, cargo manifests,

and crew lists were properly prepared. While a jury and a court

reviewing sufficiency of the evidence should not abandon common

sense, neither should they rely on their common sense to speculate

about what would be the normal practices for those in entirely

-33-
foreign situations. In fact, such understanding, outside the ken

of an ordinary jury, is something that should normally be proven by

expert testimony. In this case, the record does not establish that

the state of the Osiris II would be unusual or patently

illegitimate to a typical Colombian seaman who plies his trade on

"tramp" freighter runs in the Caribbean.6 Speculation as to what

life is like for such individuals should not replace the

government's evidentiary burden.

So, a review of the majority's four points shows that all

involve overly speculative inferential leaps. From the fact that

Colombia is a known source of drugs, the majority speculates that

Brito-Fernádez and Casiano-Jiménez must have known they were on a

drug-running mission. From the high value of the contraband, the

majority speculates that every member of the crew must be aware of

the well-hidden drugs. From the shiny screws, the majority infers

they were placed recently and then speculates that every member of

the crew must be complicit. And from the nature of the legitimate

cargo aboard, the majority speculates that the journey would be

6
Petty Officer Andrus did testify that he found the cargo
of the Osiris II suspicious, but he did not testify as an expert on
the matter, did not explain normal shipping practices for such
freighters, and did not rule out the possibility that the freighter
might normally perform part of a run while empty.

Further, contrary to the majority's characterization, he
eventually conceded that the manner in which the Osiris II's actual
cargo was shipped did not pose a risk to the navigation of the
vessel.

-34-
obviously illegitimate to an average seaman and imputes knowledge

of the drugs to all crew-members. With due respect, I believe the

majority opinion draws unfair inferences from speculation, rather

than evidence. Cf. United States v. Valerio, 48 F.3d 58, 64 (1st

Cir. 1995) (vacating certain convictions for lack of evidence

defendant knew about the drugs, and stating, "we are loath to stack

inference upon inference in order to uphold the jury's verdict").

Nonetheless, I agree with the majority that the evidence

as to captain Estupinan-Estupinan is strong, especially considering

the map in his quarters indicating where the drugs were hidden.

The evidence as to the engineer Angulo-Hernández is closer, but

barely sufficient. First, unlike the other crew-members, the

evidence showed that Angulo-Hernández had made a previous voyage on

the vessel. Second the jury could reasonably expect that he, as an

engineer, would have a better understanding of the spaces on his

boat. This is particularly true in this case where there was

evidence that the placement of the secret compartment likely

negatively affected the vessel's maneuverability. Thus, while any

reasonable jury should be left with reasonable doubt as to whether

other crew-members simply signed on to work on a vessel that also

carried a secret cargo of drugs, there is no such doubt as to the

captain and engineer.

-35-
 II. Lay Opinion

Finding any error to be harmless, the majority does not

decide whether Coast Guard petty officer Andrus could permissibly

give lay opinion testimony to the effect that, once detained, the

crew's "mood changed drastically," the crew "seemed dejected," and

"they just knew they were caught." Though I agree that admission

of the evidence was harmless as to Angulo-Hernández and Estupinan-

Estupinan, I write separately to state my view that the admission

of the last statement was error.

Andrus's statement that defendants "knew they were

caught" was not rationally based on the perception of the witness,

as is required by Fed. R. Evid. 701. Unlike Andrus's previous

statements, this piece of testimony said much more than that the

defendants appeared dejected. The phrase clearly carries the

meaning that the reason the defendants were dejected was because

they knew about the existence of the hidden drugs and now knew that

the Coast Guard had found the drugs. Thus, this statement confers

Andrus's lay opinion that the defendants had a guilty state of mind

-- in effect had consciousness of guilt. In other words, Andrus

was permitted to testify that the reason the defendants were

dejected was because they knew they were guilty, rather than for

some other reason (such as that they were being arrested by armed

agents of a foreign government).

-36-
 Andrus is entitled to his own speculation about the

defendants' mental state, but such speculation should not rise to

the level of admissible evidence under Rule 701. This is so

because there was no foundation showing that Andrus was qualified

to give his lay opinion on defendants' mental state -- as opposed

to simply their outward behavior. Thus, Andrus's perception could

not rationally support such testimony. See United States v. Kaplan

490 F.3d 110, 118-19 (2d Cir. 2007). Kaplan explains that the

purpose of allowing lay witness opinion testimony is to allow a

witness "to describe the appearance or relationship of persons, the

atmosphere of a place, or the value of an object by reference only

to objective facts" by "testify[ing] in language with which [the

witness] [is] comfortable." Id. at 118 (internal quotation marks

omitted). Thus, describing a defendant's appearance as "dejected"

fits comfortably within the purpose of Rule 701. But, stating an

opinion as to what someone else knows is not so clear-cut. see id.

at 119. Specifically,

lay opinion testimony regarding a defendant's
knowledge will, in most cases, only satisfy
the rationally-based requirement if the
witness has personal knowledge of one or more
objective factual bases from which it is
possible to infer with some confidence that a
person knows a given fact ... includ[ing] what
the person was told directly, what he was in a
position to see or hear, what statements he
himself made to others, conduct in which he
engaged, and what his background and
experience were.

-37-
Id. (internal quotation marks omitted) (modifications in

original). Here, Andrus had only his observations of the

defendants over several days. There is nothing in the record

showing that Andrus was in any position to gain insight into the

defendants' mental state. Thus, such testimony was not rationally

related to Andrus's perception, and so, should be inadmissible.

Though I conclude the error was harmless as to the

captain and engineer,7 I write separately on this issue because I

think that lay opinion testimony like this, which carries such

obvious implications about another's mental state, should receive

more scrutiny regarding the witness's basis for making the

statement. Thus, I differ with the majority in that I would find

admission of this statement to be error and hold that district

courts should consider the witnesses's ability to perceive a

defendant's mental state before allowing lay opinion testimony as

to knowledge.

III. Jurisdiction

I agree with the majority that our caselaw forecloses the

argument that we should require a nexus with the United States --

7
The majority concludes its harmless error analysis by
adding that "the weight of the evidence against the convicted
defendants" also shows that any error was harmless. For the
reasons stated supra Section I, I do not concur that weight of the
evidence was so strong as to bolster the conclusion that the error
harmless. To the contrary, had the district court not explained
Andrus's statement, the evidence would have been highly prejudicial
as the jury might have seen it as the only direct evidence of
knowledge as to the crew-members.

-38-
beyond the fact of Bolivia's consent -- to establish jurisdiction

under the MDLEA. See United States v. Bravo, 489 F.3d 1, 7 (1st

Cir. 2007). Nonetheless, I write separately to note my increasing

hesitation with this approach, as demonstrated by the facts of this

case. Here, armed agents of the United States government seized

the Osiris II and its crews for days while they literally poured

over every inch of the vessel. At the time the Coast Guard

encountered the vessel, the Osiris II was a Bolivian vessel on the

high seas on its way from Colombia to the Dominican Republic.

Other than being on a suspect vessel list, it gave no appearance of

being involved in illegal activity. Aside from the principles of

international law implicated, I have increasing sympathy for the

view that due process requires some nexus with the United States

before our government can be permitted to board such a vessel and

arrest foreign citizens on the high seas for alleged violations of

U.S. laws. See United States v. Zakharov, 468 F.3d 1171, 1177-78

(9th Cir. 2006) ("Due process requires a district court to find

sufficient nexus even when the flag nation has consented to the

application of United States law."). One could argue that any such

nexus requirement is automatically satisfied by the inherent threat

posed by drug trafficking on the high seas. See United States v.

Martínez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir. 1993) (concluding

that not all statutes criminalizing conduct on the high seas are

justified, but upholding the MDLEA on the theory that because drug

-39-
trafficking is universally condemned, it is not "fundamentally

unfair" for Congress to punish traffickers). But, I think that,

from the perspective of the foreign individual on the boat, some

greater indication of that individual's involvement with the United

States should be required before the heavy power of United States

law enforcement can be brought to bear against such an individual.

The United States cannot be the world's policeman.8 If we continue

to extend the natural borders of our national jurisdiction, we can

expect others to do the same against us.9

IV. Conclusion

I would reverse the convictions of crew-members Casiano-

Jiménez and Brito-Fernández for insufficient evidence. I would

affirm the sentences and convictions of engineer Angulo-Hernández

and captain Estupinan-Estupinan because the evidence against them

was sufficient to support their convictions, because the

evidentiary error was harmless, because our jurisdictional law is

clear that no nexus with the United States is required under the

8
See also Eugene Kontorovich, The "Define and Punish"
Clause and the Limits of Universal Jurisdiction, 103 Nw. U. L. Rev.
149 (2009) (arguing that the original understanding of the
constitutional provision giving Congress the power to define and
punish crimes on the high seas was to limit Congress's power to
punish offenses committed outside U.S. territory to those offenses
similar to piracy in terms of universal condemnation).
9
See, e.g., Julian Borger and Dale Fuchs, Spanish judge to
hear torture case against six Bush officials, The Observer, March
29, 2009, available online at http://www.guardian.co.uk/world/2009/
mar/29/guantanamo-bay-torture-inquiry.

-40-
MDLEA, and, as to the other issues, for the reasons articulated by

the majority. I, thus, respectfully dissent as to Casiano-Jiménez

and Brito-Fernández and concur as to Angulo-Hernández and

Estupinan-Estupinan.

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