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.
-5-
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
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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-
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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.
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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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