USCA1 Opinion
December 31, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 91-2075
UNITED STATES,
Appellee,
v.
LUIS ALFREDO ALVARADO,
Defendant, Appellant.
__________
No. 91-2076
UNITED STATES,
Appellee,
v.
JUAN EUGENIO LORENZI-PADILLA,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Cyr, Circuit Judge,
_____________
and Boyle,* District Judge.
______________
____________________
Jose F. Quetglas Jordan with whom Eric M. Quetglas Jordan was on
_______________________ _______________________
brief for appellant Luis Alfredo Alvarado.
Eric M. Quetglas Jordan with whom Jose F. Quetglas Jordan was on
_______________________ _______________________
brief for appellant Juan Eugenio Lorenzi-Padilla.
Jose A. Quiles-Espinosa, Assistant United States Attorney, with
________________________
whom Daniel F. Lopez Romo, United States Attorney, and Jeanette
_______________________ ________
Mercado Rios, Assistant United States Attorney, were on brief for
____________
appellee.
____________________
____________________
_____________________
*Of the District of Rhode Island, sitting by designation.
BOYLE, District Judge:
______________
Luis Alvarado and Juan Lorenzi appeal from
judgments of conviction for aiding and abetting the
possession with intent to distribute approximately 267.6
kilograms of cocaine stipulated to be worth between $60
million and $100 million in violation of 46 U.S.C.
1903(a), (c)(1)(d), (f), & 18 U.S.C. 2, and the
importation of cocaine into the customs territory of the
United States in violation of 21 U.S.C. 952(a) & 18 U.S.C.
2. Both appellants claim that there was insufficient
evidence to establish that appellants intentionally
possessed the cocaine with intent to distribute it and that
there was insufficient evidence to show that the cocaine was
imported into the customs territory of the United States.
After careful consideration of the record, we affirm.
I. Background
On the evening of March 19, 1991, a United States
Customs Service aircraft acquired a suspect aircraft on its
radar device and on a Forward Looking Infrared System
("FLIR") approximately 185 miles southwest of Ponce, Puerto
Rico. The suspect aircraft was heading northeast, traveling
without navigation lights at an altitude of about 3000 feet.
-4-
4
The Customs Service aircraft pursued the suspect
aircraft at a distance of half-a-mile. After about one hour
and twenty minutes, the pilot of the Customs Service
aircraft noticed the lights of two vessels in the water.
The vessels were located approximately twenty miles
southwest of Santa Isabel, which is near Ponce. The suspect
aircraft descended to about 300 to 500 feet off the water,
just above the two vessels, and then began a series of hard
maneuvers, sometimes turning ninety degrees or greater.
After about fifteen minutes of maneuvering by the
suspect aircraft, the pilot of the Customs Service aircraft
noticed a string of approximately twenty-five lights in the
water. Based on his experience, the pilot suspected that
the string of lights he observed were chem lights, which are
often attached to narcotic airdrops for visibility.
The pilot reported a possible airdrop, and a
Customs Service Nomad aircraft thereafter took over
surveillance of the two vessels on both radar and FLIR. The
vessels were traveling at about twenty to twenty-five miles-
per-hour in a northbound heading. Both vessels were
traveling without navigation lights. The Nomad began a
half-mile orbit around the vessels and radioed the state
-5-
5
police that two vessels suspected of drug smuggling were
headed towards the shore.
At about 11:30 P.M., the two vessels, which had
been traveling together at a distance of approximately 100
yards, began to separate. The first vessel continued in a
northbound heading, while the second vessel veered off in a
more westerly direction. To maintain surveillance on both
of the diverging vessels, the Nomad kept its FLIR trained on
the first vessel and its radar trained on the second vessel.
A state police helicopter was directed over the
first vessel. The helicopter was well lit and duly
identified as a police helicopter by twelve- to sixteen-inch
lettering spelling "FURA" for police as well as displaying a
coat of arms. A sergeant in the helicopter signalled the
co-defendants aboard the first vessel, Angel Morales and
Wilfredo Cartagena, to cut the engine and stop the boat.
Initially, the co-defendants reduced their speed, but then
accelerated again and continued moving towards the shore.
As the first vessel tried to escape, the police helicopter
alerted land base and seaborne units. The helicopter began
to orbit the vessel while awaiting the arrival of a police
boat. A police boat with flashing lights approached the
first vessel soon thereafter. The co-defendants initially
-6-
6
attempted evasive maneuvers, but were eventually detained
and arrested.
After the police helicopter had reported its
location as overhead the first vessel, the Nomad turned
southwest toward the second vessel and began orbiting it.
The police helicopter flew to the area of the Nomad and the
second vessel once the first vessel was in custody. At that
time, the two vessels were approximately five miles apart.
The helicopter maneuvered itself just above the second
vessel, which still had its navigation lights off. The
police crew illuminated the vessel with a hand-held lamp and
observed appellants Juan Lorenzi and Luis Alvarado and four
bales of possible contraband on board. Appellants initially
ignored police commands to turn off the motor and stop the
boat. After a short pursuit, however, appellants stopped
the vessel. A police sergeant jumped from the police
helicopter onto appellants' vessel and placed appellants
under arrest.
In addition to the four bales of possible
contraband, several chem lights were found hidden in the
stern of the second vessel. Pieces of matching ribbon of
the bales were still attached to the chem lights. Also
found on board the second vessel were two spare gas tanks,
-7-
7
two lamps, and unused fishing equipment. There was no bait
found on board. Appellant Luis Alvarado nevertheless
claimed that he and Juan Lorenzi had laid a fish net that
evening in an area called "El Investigador," which is seven
or eights miles off the coast, when they heard the sounds of
objects falling into the water and saw floating lights.
They headed toward the lights and then heaved the bales onto
the second vessel. Mr. Alvarado admitted that he thought
the bales contained contraband, but claimed that he and Mr.
Lorenzi were en route to the police station where they
intended to relinquish the bales.
On March 20, the day after the arrests, a police
aircraft returned to the airdrop site and observed an
additional seven bales of cocaine floating in the water.
They were only able to retrieve four of these bales. The
substance in these bales as well as the bales found on board
the second vessel later tested positive for cocaine with a
weight of 267.6 kilograms and a purity of ninety-five
percent.
II. Discussion
A. Sufficiency of Evidence of Intent
_________________________________
Appellants contend that there was insufficient
evidence to prove that they intentionally possessed the
-8-
8
cocaine with the intent of importing or distributing it.
This argument fails. We review the convictions only for
clear and gross injustice because appellants failed to renew
their motions for judgments of acquittal under Fed. R. Crim.
P. 29(a) after presenting evidence on their own behalf.
United States v. Hadfield, 918 F.2d 987, 996 (1st Cir.
___________________________
1990); United States v. Clotilda, 892 F.2d 1098, 1102-03
__________________________
(1st Cir. 1989).
Appellants fail to meet this standard. There was
evidence for the jury to conclude that appellants were
guilty beyond a reasonable doubt. Appellants were in one of
two vessels over which a suspect aircraft hovered. The
suspect aircraft met the profile criteria of a drug
transporting aircraft in that it had no lights, no flight
plan, and was flying at a dangerously low altitude. It made
a series of hard maneuvers approximately three hundred to
five hundred feet above the appellants' vessel. Both
vessels appeared to be signalling the suspect aircraft with
their lights. The vessels then turned their navigation
lights off and headed towards the shore once appellants had
retrieved four bales of cocaine from the water. The jury
could reasonably infer that the vessels were attempting to
evade detection by law enforcement officials. This
-9-
9
inference is further strengthened by the fact that
appellants attempted to avoid the police helicopter that was
well lit and clearly identified by lettering, twelve to
sixteen inches high, and a coat of arms on the side.
The jury quite reasonably declined to believe Luis
Alvarado's tale that he and Juan Lorenzi possessed the
cocaine only because they were en route to turn it over to
the police. Appellants importuned the jury to believe that
they heard bales of cocaine drop into the water twenty miles
southwest of Puerto Rico, while they were fishing in "El
Investigador," which is only seven or eight miles off the
coast. Moreover, fishing gear was not in working order and
there was no bait found aboard their vessel. Nor was the
fishing net they cast upon the water recovered in the area
of "El Investigador." The jury could reasonably have found
the appellants' version of the events that night to be
incredible. Since the evidence overwhelmingly supports the
verdicts of the jury, appellants' convictions are not
grossly unjust.
B. Importation
___________
Appellants' second claim of error is more
meaningful. Appellants contend that the district judge
incorrectly instructed the jury as to the element of
-10-
10
importation. Appellants, however, neither objected to the
trial court's instructions nor proffered additional or
different instructions of their own. As a result,
appellants forfeited the right to ordinary review. We can
reverse their convictions only if the lower court's
instructions amount to plain error. See United States v.
___ _________________
Natanel, 938 F.2d 302, 311 (1st Cir. 1991), cert. denied,
_______ _____ ______
112 S. Ct. 986 (1992). As we have stated before, plain
errors are "those errors so shocking that they seriously
affect the fundamental fairness and basic integrity of the
proceedings conducted below." United States v. Griffin, 818
_________________________
F.2d 97, 100 (1st Cir. 1987), cert. denied, 484 U.S. 844
_____ ______
(1987). "It follows, unsurprisingly, that the plain error
exception is to be used 'sparingly,' only to prevent justice
from miscarrying." United States v. Hunnewell, 891 F.2d 955,
__________________________
956 (1st Cir. 1989).
The relevant statute, 21 U.S.C. 952(a), states
that "[i]t shall be unlawful to import into the customs
territory of the United States from any place outside
thereof (but within the United States), or to import into
the United States from any place outside thereof, any
controlled substance . . ." Thus, a critical element of the
offense of importation is that a defendant imports or causes
-11-
11
to be imported a controlled substance into the customs
territory of the United States. United States v. Nusraty,
_________________________
867 F.2d 759, 766 (2d Cir. 1989); United States v. Samad,
_______________________
754 F.2d 1091, 1096 (4th Cir. 1984). The district judge
instructed the jury that:
Customs waters of the United States, as they
relate to a United States vessel, are the waters
around the vessel irrespective of distance from
the United States, within which the United States
may enforce its law if the vessel is hovering off
the coast of the United States and is suspected of
smuggling . . .
A hovering vessel in the context of this
instruction, means a vessel found or kept off the
coast of the United States, if from history,
conduct or character or location of the vessel, it
is reasonable to believe that such vessel is being
used or may be used to introduce, promote or
facilitate the introduction or attempted
introducing of contraband into the country.
The statute defines "customs territory of the
United States" as having the meaning assigned to it by
general note 2 of the Harmonized Tariff Schedule of the
United States. 21 U.S.C. 951(a)(2). General note 2,
however, merely states that the customs territory of the
United States includes only the States, the District of
Columbia, and Puerto Rico. Although general note 2 fails to
provide a meaningful standard for determining what
constitutes the customs territory of the United States, it
is well settled that the outer limits of the customs
-12-
12
territory of the United States extend only twelve miles from
the coast. See United States v. Lueck, 678 F.2d 895, 905
___________________________
(11th Cir. 1982); United States v. Seni, 662 F.2d 277, 286
______________________
(4th Cir. 1981), cert. denied, 455 U.S. 950 (1982); United
_____ ______ ______
States v. Williams, 617 F.2d 1063, 1073 n.6 (5th Cir.
____________________
1980)(en banc). Thus, the jury should have been more
specifically instructed that in order to find that
appellants imported a controlled substance within the
meaning of 21 U.S.C. 952(a), the contraband must have come
into the twelve-mile outer limit of the customs territory of
the United States. See United States v. Nueva, No. 91-2150,
___ ______________________
slip op. at 8 - 9 (1st Cir. November 4, 1992); see also
___ ____
United States v. Goggin, 853 F.2d 843, 845 (11th Cir. 1988).
_______________________
There is no record, however, that anyone called this to the
attention of the District Judge.
Although the district court's instructions were
incomplete, we must consider the instructions in their
entirety and in the context of the entire trial in
evaluating a claim of plain error. See United States v.
___ _________________
Weston, 960 F.2d 212, 216 (1st Cir. 1992). Furthermore, we
______
must view the evidence in the light most favorable to the
verdict. See United States v. Batista-Polanco, 927 F.2d 14,
___ _________________________________
17 (1st Cir. 1991). The government contends that
-13-
13
appellants' vessel entered the twelve-mile customs limit
because of evidence that the police helicopter hovered over
appellants' vessel at Jobos Bay, which is seven or eight
miles from shore. The evidence however is that the
helicopter, while awaiting the arrival of a police boat,
hovered over the first vessel operated by co-defendants, not
the second vessel, which was operated and occupied by
appellants. Appellants' boat had separated from co-
defendants' boat approximately twelve (12) minutes earlier
and headed in a westerly direction, roughly parallel with
Puerto Rico's southern coast. Nothing in the record
indicates that appellants' boat travelled significantly
further away from the coastline after the separation.
Accordingly, the relative position of co-defendant's boat,
which was apprehended just minutes after the vessels
separated, is at least some evidence that appellants boat
also crossed the twelve-mile customs territory limit.
The government also cites to the testimony of Luis
Alvarado that appellants had allegedly laid a fishing net in
the area of "El Investigador", an area seven or eight miles
from shore. The jury obviously did not believe certain
aspects of appellant's "fish tale" or else they would not
have convicted appellants. No one, however, denies Mr.
-14-
14
Alvarado's statements that, while headed toward shore with
cocaine on board their vessel, he and Mr. Lorenzi passed
through "El Investigador", well within the twelve-mile
limit. In fact, in his opening statement, appellants' trial
counsel told the court and jury "[t]he only issue in this
case is whether or not Luis and Juan possessed those bales
of cocaine with the intention of delivering them to the
police authorities in the police headquarters in Salinas."
Trial Transcript at 57. "At around 6:00 o'clock in the
afternoon Juan and Luis left the coast on Juan's fishing
boat and headed toward El Pescador, a fishing area seven or
eight miles away from the coast." Trial Transcript at 59.
Although counsel's statements are not evidence, they do
indicate that counsel had no intention of disputing the fact
that appellants were within the twelve mile limit. In
light of such representations, it would be particularly
unreasonable to expect the district court to have thought of
the precisely correct instruction on its own.
Finally, a mark made on an aeronautical chart,
presented to the jury as Joint Exhibit 1, provides
additional evidence that appellants entered the twelve-mile
customs limit. This mark was made by the radar operator of
the Nomad in the course of testifying as to the various
-15-
15
positions of the vessels after the airdrop up until the
arrests. The government did not specifically ask the radar
operator the distance between the mark and the Puerto Rican
shoreline. Using the chart's mileage scale, however, the
mark establishes that appellants were taken into custody at
a point about seven miles from the coastline. The radar
operator's mark, taken together with the relative position
of co-defendants' boat and Luis Alvarado's statement that
appellants passed through "El Investigador", is credible
evidence that the element of importation was met. In
contrast, there is no evidence that remotely suggests that
appellants were taken into custody at a point beyond 12
miles from the coast.
As we have stated before, "[t]he plain error
hurdle is high." See United States v. Hunnewell, 891 F.2d
___ __________________________
955, 956 (1st Cir. 1989). Appellants have failed to clear
this height. To hold differently would permit appellants to
benefit from their own failure either to object to the jury
instructions at trial or to propose an appropriate
instruction to the court. We cannot promote "sandbagging"
of this type. As a matter of policy, we stress the
importance of making contemporaneous objections to jury
instructions and the duty to assist the court to accomplish
-16-
16
an error free trial. In sum, appellants have not presented
"the rare case in which [a lack of] instruction will justify
reversal of a criminal conviction when no objection has been
made in the trial court." See Henderson v. Kibbe, 431 U.S.
___ __________________
145, 154 (1977).
III. Conclusion.
The evidence overwhelmingly supports the jury
verdicts as to the charge of aiding and abetting the
possession with intent to distribute cocaine, and we affirm
the appellants' convictions under 46 U.S.C. 1903(a),
(c)(1)(d), (f), & 18 U.S.C. 2. Furthermore, the district
court's instruction on the element of importation does not
amount to plain error. Therefore, we also affirm
appellants' convictions for the importation of cocaine into
the customs territory of the United States in violation of
21 U.S.C. 952(a) & 18 U.S.C. 2.
Affirmed.
Affirmed
________
-17-
17