USCA1 Opinion
March 12, 1993 [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2284
UNITED STATES OF AMERICA,
Appellee,
v.
VICENTE JOAQUIN GONZALEZ,
Defendant, Appellant.
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No. 92-2285
UNITED STATES OF AMERICA,
Appellee,
v.
HECTOR BERRIOS COLON,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
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Before
Torruella, Selya and Cyr, Circuit Judges.
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J. C. Codias for appellants.
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Jose A. Quiles Espinosa, Senior Litigation Counsel, with
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whom Daniel F. Lopez-Romo, United States Attorney, and Warren
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Vazquez, Assistant United States Attorney, were on brief, for
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appellee.
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Per Curiam. Vicente Joaquin Gonzalez and Hector
Per Curiam.
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Berrios Colon appeal their convictions on charges of conspiracy
to import a controlled substance into the United States and
possessing a controlled substance aboard a vessel within the
customs waters of the United States, with intent to distribute
the contraband. They argue primarily that the evidence presented
to the jury was too flimsy to support the guilty verdicts. They
argue secondarily that the trial judge improperly excluded
certain evidence and, moreover, exhibited a bias against them.
We start with bedrock. "The standard of review for
sufficiency challenges is whether the total evidence, taken in
the light most amicable to the prosecution, together with all
reasonable inferences favorable to it, would allow a rational
factfinder to conclude beyond a reasonable doubt that the
defendant was guilty as charged." United States v. Maraj, 947
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F.2d 520, 522-23 (1st Cir. 1991). We have recently applied this
standard to a test of evidentiary sufficiency in an appeal
prosecuted by appellants' codefendant, Alfredo Nueva. See United
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States v. Nueva, 979 F.2d 880 (1st Cir. 1992). No useful purpose
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would be served by canvassing anew the full range of facts set
out therein. See id. at 881-83. It suffices at this juncture to
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say that we found those facts more than adequate to support
Nueva's conviction on both charges. Id. at 883-85. Most of the
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same evidence applies with equal force to the present appellants.
We do not propose to reinvent the wheel. Instead, we
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add only a few brief comments regarding the events at issue. On
the main question evidentiary sufficiency the jury was faced
with conflicting accounts of what transpired off the coast of
Puerto Rico on the night of December 5, 1990. Appellants argued
that they were simply in the wrong place at the wrong time;
during a pre-purchase test drive of a speedboat, in the dark of
night, they experienced engine trouble and were stranded in
precisely the spot chosen by drug dealers for an airdrop of
several bales of cocaine worth an enormous amount of money.
The prosecution, however, did not believe that the long
arm of co(ke)incidence stretched quite so far. It presented a
wealth of surveillance evidence from which a rational jury could
conclude that a small airplane, running with no navigation
lights, signalled appellants' boat (also running without lights)
and then proceeded by prearrangement to drop several large
objects (marked with chemical lights) which the boat's crew
hauled from the sea. When, thereafter, the capture trap began to
close, the three men aboard the boat hastily discarded the
objects and attempted to evade apprehension (although to no
avail). When boarded, the boat's engine was still warm,
indicating recent use and undermining appellants' stranded-at-sea
account. Several bales of cocaine, with chemical lights still
attached, were found floating in the area where the speedboat had
been. There were no other vessels in the vicinity (save for
official watercraft).
We think that the cumulative evidence permitted a
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series of logical inferences: that appellants knowingly set out
to rendezvous with the aircraft; that, being the only individuals
in the area, appellants were the designated receptors for the
smuggle; that, by design, appellants retrieved the cocaine from
the water; and that appellants, knowing that their newly acquired
cargo comprised illegal contraband, jettisoned it when law
enforcement personnel drew near. No more was exigible. As we
recently wrote, "the culpability of [a] defendant's presence
hinges upon whether the circumstances fairly imply participatory
involvement." United States v. Echeverri, No. 92-1426, slip op.
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at 5 (1st Cir. Jan. 5, 1993). Here, a rational factfinder,
drawing plausible inferences as suggested above, could well have
discerned participatory involvement. See, e.g., United States v.
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Morales-Cartagena, Nos. 91-2079, 91-2080, slip op. at 4-6 (1st
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Cir. Feb. 23, 1993); Nueva, 979 F.2d at 883-85; United States v.
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Lopez, 944 F.2d 33, 40 (1st Cir. 1991); United States v.
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Hernandez-Bermudez, 857 F.2d 50, 54 (1st Cir. 1988); United
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States v. Flores Perez, 849 F.2d l, 3 (1st Cir. 1988); United
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States v. Alvarez, 626 F.2d 208, 210 (1st Cir. 1980).
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In sum, the appellants seem to be, literally and
figuratively, in the same boat as Nueva. The jury, the trial
judge, and the Nueva panel believed that the evidence was
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sufficient to convict on all counts, as do we. Although the
government's case was largely circumstantial, the jury, on this
record, could certainly have chosen to believe that the
converging circumstances pointed persuasively toward a sinister
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truth and been convinced thereby beyond any reasonable doubt of
appellants' complicity and guilt. The law, as we have said, "is
not so struthious as to compel a criminal jury to ignore that
which is perfectly obvious." United States v. Ingraham, 832 F.2d
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229, 240 (1st Cir. 1987), cert. denied, 486 U.S. 1009 (1988);
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see also United States v. Smith, 680 F.2d 255, 260 (1st Cir.
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1982) ("Neither juries nor judges are required to divorce
themselves of common sense, but rather should apply to facts
which they find proven such reasonable inferences as are
justified in the light of their experience as to the natural
inclinations of human beings."), cert. denied, 459 U.S. 1110
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(1983).
The other issues raised by appellants deserve scant
comment. The district court's exclusion of the so-called
tracklog was well within its discretion; the record reveals that
appellants never laid a proper foundation for the admission of
this evidence. Lastly, the claim of judicial bias amounts to no
more than shooting from the lip. In any event, the very same
claim was advanced to the Nueva panel and soundly rejected. We
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adopt that panel's assessment. See Nueva, 979 F.2d at 885.
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We need go no further. Our examination of the papers
reveals that appellants' counsel has been using devious
distortions and gross exaggerations as weapons of appellate
advocacy. They are easily belied by the record and do not aid
his clients' cause. For essentially the same reasons as were set
out in the Nueva opinion, the appellants' convictions pass
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muster.
Affirmed.
Affirmed.
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