USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1679
UNITED STATES,
Appellee,
v.
DOMINGO SANTANA-ROSA,
A/K/A FELIX SANCHEZ-SUAREZ,
Defendant - Appellant.
____________________
No. 96-1680
UNITED STATES,
Appellee,
v.
ORLANDO DIAZ-MORLA,
A/K/A JOAQUIN CARPIO-JAVIER,
Defendant - Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. H ctor M. Laffitte, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Lynch, Circuit Judge, _____________
and DiClerico, Jr.,* District Judge. ______________
_____________________
____________________
* Of the District of New Hampshire, sitting by designation.
Arthur Joel Berger, with whom Leonard Baer was on brief for __________________ ____________
appellants.
Jos A. Quiles-Espinosa, Senior Litigation Counsel, with ________________________
whom Guillermo Gil, United States Attorney, Edwin O. V quez, _____________ ________________
Assistant United States Attorney, and Nelson P rez-Sosa, ___________________
Assistant United States Attorney, were on brief for appellee.
____________________
January 6, 1998
____________________
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DiClerico, District Judge. The defendants, Domingo DiClerico, District Judge. ______________
Santana-Rosa and Orlando D az-Morla, were convicted of possessing
cocaine on a vessel within the customs waters of the United
States with intent to distribute it. On appeal they raise issues
pertaining to the jury instructions, the opinion testimony of a
witness, and the sufficiency of the evidence. Having reviewed
the defendants arguments, we affirm the convictions for the
reasons expressed below.
Factual and Procedural Background Factual and Procedural Background _________________________________
We review the facts in the light most favorable to the
verdict. See United States v. Cardoza, 129 F.3d 6, __, 1997 WL ___ ______________ _______
656296, *1 (1st Cir. Oct. 27, 1997); United States v. Wihbey, 75 _____________ ______
F.3d 761, 764 (1st Cir. 1996). On July 6, 1995, a police officer
with the Fajardo Drugs and Narcotics Division of the Puerto Rico
Police Department received two anonymous tips that a shipment of
cocaine was going to be delivered in the Fajardo area. The
government sent aloft a United States Customs Service aircraft
equipped with radar and an infrared night vision system known by
the acronym "FLIR," which means "forward looking infrared." The
FLIR system allows objects to be monitored in complete darkness
based on the heat of the objects.
The aircraft began patrolling the area between Fajardo
and the island of Culebra at an altitude of 1500 feet. At 10:15
p.m. Customs Service Agent John Alpers, who operated the
aircraft's FLIR, located a marine vessel northwest of Culebra at
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1825 degrees latitude and 6526 degrees longitude. The vessel,
approximately thirty feet long and with two engines, was moving
toward Fajardo at a high rate of speed with its navigational
lights out in violation of 19 U.S.C. 1703. When first located,
it was approximately five miles from the nearest land point on
United States territory. During subsequent events, Alpers
tracked the vessel with FLIR and radar, but at no point did he
make direct visual observations of the vessel or its occupants.
The aircraft lost contact with the vessel, but it
reacquired it at 10:56 p.m. At that point, the aircraft
descended to an altitude of 1000 feet and continued to track the
vessel from a distance of one-half to three-quarters of a mile
away. At 11:02 p.m., Agent Alpers, with the aid of the FLIR
system, observed movements of people on the vessel who
"appear[ed] to throw large objects" overboard. At that point,
the vessel was again approximately five miles from the nearest
land point on United States territory. After the objects were
thrown overboard, the vessel departed and headed toward Fajardo
at high speed, leaving the objects in the water. At
approximately 11:20 p.m., the vessel beached in the Cabeza
Chiquita area of Puerto Rico, about nine nautical miles from the
place where the objects were thrown from the vessel. Four
persons then ran from the vessel into a remote area dense with
mangroves. No other boats were in the immediate area of the
vessel throughout this time.
The aircraft requested that a National Guard helicopter
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fly to and mark the area where the objects had been dumped. In
addition, it requested the assistance of other officers in
apprehending the persons who had run from the vessel. A Puerto
Rico police helicopter, a National Guard helicopter, and a police
boat arrived to search the area for the persons who had fled the
vessel.
One of the helicopters illuminated the area with
floodlights to assist the law enforcement officers on the ground
in detaining the individuals. Between 12:02 and 12:09 a.m., the
police arrested three persons. Two of them are the defendants in
this case. Defendant Santana-Rosa was found hiding under water
while holding on to mangrove roots. Defendant D az-Morla and the
third individual were hidden about ten feet from defendant
Santana-Rosa. The fourth person observed leaving the vessel was
not apprehended. Both defendants gave false names when arrested.
Defendant Santana-Rosa asked the arresting officer why so much
government force was being used to catch an illegal alien.
Police recovered twenty-seven bales of ninety-one
percent pure cocaine weighing 970 kilograms at the site where
Alpers witnessed objects being dumped from the vessel. The
defendants were charged with a violation of 46 U.S.C. app.
1903(a), which makes it illegal, inter alia, to possess cocaine __________
with intent to distribute it on a vessel within the customs
waters of the United States. See 46 U.S.C.A. app. 1903(a), ___
(c)(1)(D) (West Supp. 1997). The defendants were convicted by
jury after a five-day trial.
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At trial, the main defense was that there was a lack of
direct evidence establishing that the defendants were the
individuals observed on the FLIR system leaving the vessel. One
of the defendants testified on his own behalf, stating that he
was an illegal alien seeking to avoid detection. Alpers
testified that the customs waters of the United States extend for
twelve miles from any land mass that is part of United States
territory and that he observed the vessel within the customs
waters of the United States. Alpers also testified on redirect
over the objection of counsel that, based on his experience, in
his opinion the individuals who were arrested were the ones he
witnessed fleeing the vessel. Following their conviction, the
defendants filed a timely appeal.
Discussion Discussion __________
The defendants allege that three errors in the district
court proceedings require our attention. They contend that: (1)
the trial court erred in failing to instruct the jury on the
meaning of the phrase "within the customs waters of the United
States"; (2) the trial court erred in not requiring pretrial
disclosure of the testimony of Customs Service Agent Alpers; and
(3) the evidence was legally insufficient to establish that they
were the persons on the vessel who had dumped cocaine into the
ocean. The court discusses these claims seriatim. ________
A. Jury Instruction on Customs Waters ______________________________________
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The statute under which the defendants were convicted,
46 U.S.C. app. 1903, makes it "unlawful for any person . . . on
board a vessel subject to the jurisdiction of the United States
. . . to knowingly or intentionally . . . possess with intent to
. . . distribute . . . a controlled substance." 46 U.S.C.A. app.
1903(a) (West Supp. 1997). A vessel is subject to the
jurisdiction of the United States, inter alia, when it is _____ ____
"located within the customs waters of the United States." Id. ___
1903(c)(1)(D). The defendants allege that the trial court
erred in failing to instruct the jury on the meaning of the
phrase "within the customs waters of the United States," a
substantive element of the offense for which they were convicted.
The defendants contend that, because the term has a technical
meaning not within the expertise of the jury, the judge's failure
to define it meant that the government was not required to prove
this element of its case beyond a reasonable doubt.
Because the defendants failed to object to the trial
court's instruction, our review is for plain error. See United ___ ______
States v. Fulmer, 108 F.3d 1486, 1495 (1st Cir. 1997); United ______ ______ ______
States v. And jar, 49 F.3d 16, 22 (1st Cir. 1995).1 The failure ______ _______
____________________
1 We reject as without merit the defendants' contention that we
should apply a more rigorous standard of review. The defendants
have requested that we adopt a rule that where a charge
conference is not held in open court or on the record, it will be
presumed that a defendant properly objected to any instruction
which he or she wishes to pursue on appeal. However, our
previous decisions establish that a party waives any objection it
might have to a jury instruction by failing to enter that
objection into the record immediately after the judge has
instructed the jury and before the jury begins deliberations.
See, e.g., Kerr-Selgas v. American Airlines, Inc., 69 F.3d 1205, ___ ____ ___________ _______________________
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to give an instruction may be noticed as plain error when: (1) it
is an error; (2) the error is clear or obvious; and (3) the error
affected the substantial rights of the defendants. See Johnson ___ _______
v. United States, 117 S. Ct. 1544, 1547 (1997); United States v. _____________ _____________
Olano, 507 U.S. 725, 732-35; Fed. R. Crim. P. 52(b). When plain _____
error is found, a reviewing court has discretion to correct it
only when the error "seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings." Olano, 507 U.S. _____
at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160 _____________ ________
(1936)); see Johnson, 117 S. Ct. at 1550. We thus review the ___ _______
context of the charge as a whole to determine if it contains "an
error that threatens to 'undermine the fundamental fairness of
the trial.'" Fulmer, 108 F.3d at 1495 (quoting United States v. ______ _____________
Josleyn, 99 F.3d 1182, 1197 (1st Cir. 1996), cert. denied sub _______ _________________
nom. Billmyer v. United States, 117 S. Ct. 959 (1997)). ____ ________ _____________
The statute under which the defendants were convicted,
46 U.S.C. app. 1903, is silent as to the definition of the term
customs waters. See 46 U.S.C.A. app. 1903(b)-(c) (West Supp. ___
1997). Other statutes make clear, however, that the customs
waters of the United States extend for four leagues, or twelve
miles, from United States territory unless another distance has
____________________
1212-13 (1st Cir. 1995) (civil context); United States v. Nason, _____________ _____
9 F.3d 155, 160-61 (1st Cir. 1993) (criminal context); see ___
also Fed. R. Crim. P. 30. We decline the defendants' invitation ____
to depart from the well-settled rule by adopting the requested
presumption.
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been established by treaty. See 19 U.S.C.A. 1401(j) (West ___
1980).2 In this case, the judge instructed the jury that one
element of the offense was that the vessel be within the "customs
waters of the United States" but he failed to provide the jury
with a further definition of the term.3
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2 The full text of 19 U.S.C. 1401(j) provides:
The term "customs waters" means, in the
case of a foreign vessel subject to a treaty
or other arrangement between a foreign
government and the United States enabling or
permitting the authorities of the United
States to board, examine, search, seize, or
otherwise to enforce upon such vessel upon
the high seas the laws of the United States,
the waters within such distance of the coast
of the United States as the said authorities
are or may be so enabled or permitted by such
treaty or arrangement and, in the case of
every other vessel, the waters within four
leagues of the coast of the United States.
19 U.S.C.A. 1401(j) (West 1980).
3 The relevant portion of the trial judge's instruction is as
follows:
Okay. Let's discuss those statutes that
are charged in the indictment. Let's discuss
46 U.S.C., Section 1903(a). One of the
offenses charged in the indictment under 46
United States Code, Section 903(a) [sic],
provides in the pertinent part as follows:
It is unlawful for any person on board a
vessel subject to the jurisdiction of the
United States to knowingly or intentionally
possess with intent to distribute a
controlled substance.
Section 1903(b) and (D), vessel of the U.S.
defined: Definition of a vessel for the
purpose of this section means (D), capital
(D), parenthesis: A vessel located within the
customs waters of the United States.
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Despite the omission of a definition of the element
from the jury instructions, the jury was not left completely
without guidance on the issue. The government introduced
unrebutted testimony by Alpers as to both what constituted
customs waters and the location of the vessel within customs
waters. At trial, Alpers testified that the vessel was first
picked up on FLIR within five miles of United States territory.
He also testified that the customs waters of the United States
____________________
. . . .
Let's discuss the essential elements of
that offense. In order to establish the
offense proscribed by Title 46, U.S. Code,
Section 1903, the government must prove each
of the following elements beyond a reasonable
doubt:
One, that each defendant was on board a
motor vessel located within the custom waters
of the United States.
. . . .
. . . . The superseding indictment in this
case also charges that a vessel is subject to
the jurisdiction of the United States. In
order to find defendants guilty in this case,
you will have to determine, among other
things, if the government proved beyond a
reasonable doubt that the vessel in question
was a vessel within the custom waters of the
United States.
Section 1903(b) and (D): Vessel of the
United States defined means -- for the
purpose of this sections [sic] means a vessel
located within the custom waters of the
United States.
Tr. 706-08.
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extend for twelve miles from the territory of the United States.4
____________________
4 Alpers' complete testimony on the issue, made while
illustrating his comments with the aid of a navigational chart
depicting the area in question that was also entered into
evidence, is as follows:
Q: Now, have you marked the initial
sighting in the map?
A: Yes, sir, I have.
Q: Would you -- using this pointer --
MR. QUILES: If I may approach the witness?
Q: (By Mr. Quiles) -- show the jury when --
where is it that you first sighted the
boat.
A: Okay. It's right here, ladies and
gentlemen, right in this area here.
That's when we first acquired the
vessel, again traveling lights-out, high
rate of speed, heading 260 towards this
area here, heading this direction
approximately here.
Q: Now, sir, were you able to -- are you
able to tell the members of the jury at
what coordinates was that boat --
A: Yes, sir.
Q: -- located at once you first locked into it?
A: Right. Approximate coordinates, 1825
and 6526. Again, that's a latitude and
a longitude. Again, that was in this
area right here. You can see Culebra,
of course mainland Puerto Rico, and it
was between both of those, north of this
small island chain here.
Q: As a customs officer was that within the
customs waters of the United States?
A: Yes, sir. That was within the U.S. Customs
waters.
Q: How far out do the customs waters of the
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Alpers' testimony did not, however, mention that the twelve-mile
limit can be modified by treaty.
Given this testimony, the defendants have failed to
meet their burden to show that the omitted instruction affected
their substantial rights. We agree with the defendants that the
term "customs waters of the United States" is outside the
experience of lay jurors, and that in the usual case the district
court must give at least an instruction concerning the ordinary
definition of that term, i.e., that the defendants' vessel must
have been within four leagues or twelve nautical miles of the
nearest land territory of the United States. However, because
the evidence was uncontroverted that the defendants' vessel was
well within this limit, we cannot see how this omission could
have affected their substantial rights, as required under Olano. _____
The defendants did not argue that the twelve-mile limit
was inapplicable because their vessel was covered by a treaty
that contracted the ordinary limit. In fact, such treaties
____________________
United States extend from any land point
belonging to the United States?
A: Twelve miles.
Q: And there are -- are how many land
points there in that area that you know
of that belong to the United States?
A: That is all U.S. territory. Culebra,
the island chain, of course Puerto Rico.
And the vessel, when first acquired, was
approximately five miles north of a land
mass, thus in U.S. Customs waters.
Tr. Vol I, p. 67-69.
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ordinarily expand the twelve-mile limit. See, e.g., United ___ ____ ______
States v. Doe, 860 F.2d 488, 490 (1st Cir. 1988). We do not ______ ___
decide under what circumstances a defendant is entitled upon
proper request to an instruction concerning the treaty exception
to the twelve-mile limit. In this case, however, it is clear
that such an omission cannot, at the very least, rise to the
level of "plain error." Given the failure of the defense to
suggest that the exception was at all relevant, the omission is
not "plain error"; certainly it did not "seriously affect[] the
fairness, integrity or public reputation of judicial
proceedings." United States v. Johnson, 117 S. Ct. 1544, 1550 _____________ _______
(1997) (quoting Olano, 507 U.S. at 736) (internal quotation marks _____
omitted).5
B. Testimony of Customs Service Agent Alpers _____________________________________________
The defendants next contend that the trial court erred
in not requiring pretrial disclosure of Alpers' opinion testimony
that the defendants were the same individuals whom he observed
____________________
5 The defendants have requested that we temporarily refrain from
deciding this case to await the Supreme Court's decision in
United States v. Rogers, 94 F.3d 1519 (11th Cir. 1996), cert. _____________ ______ _____
granted in part, 117 S. Ct. 1841 (U.S. May 27, 1997) (No. 96- ________________
1279). However, in that case the Supreme Court certified only
the following question: "Whether a district court's failure to
instruct the jury on an element of an offense is harmless error
where, at trial, the defendant admitted that element." Rogers, ______
117 S. Ct. at 1841. Because, inter alia, that case deals with _____ ____
harmless error rather than plain error, we do not find it
necessary or desirable to await the Court's opinion in that case.
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fleeing the vessel.6 The defendants claim that Alpers' testimony
was expert testimony, and thus the government's failure to comply
with the expert disclosure requirements constituted a discovery
violation. The government contends that Alpers testimony was
notexpert testimony,butrather constitutedapermissible layopinion.
The central issue in the trial was whether the three
men who were arrested were three of the same four men who fled
the vessel when they grounded it. On direct examination, Alpers
testified as to the events he witnessed with the aid of the FLIR
system. On cross-examination, defense counsel sought to
undermine Alpers' assertion that the defendants were the same
people whom he had observed on the vessel with the FLIR system.
On redirect examination, Alpers testified over the defendants'
objection that in his opinion and based on his experience, he had
no doubt that they were the same individuals. The defendants
contend that because Alpers' opinion was based not upon direct
observation but instead upon images on the FLIR this was expert
rather than lay testimony. Because the government did not reveal
in its expert report that Alpers would give his opinion regarding
the identity of the defendants as the men who left the boat, the
defendants claim that the government violated discovery rules by
____________________
6 The defendants concede that, rather than outright reversal, on
the record in this case the error would entitle them at most to a
remand to the district court to determine whether a discovery
violation occurred and if so, what the appropriate sanction
should be.
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introducing the testimony.7
We have rejected similar contentions in the past. In
United States v. Rivera-Santiago, 107 F.3d 960, 968 (1st Cir. _____________ _______________
1997), the defendants also claimed that customs agents had
improperly testified as experts. We stated:
In United States v. Paiva, 892 F.2d 148 _____________ _____
(1st Cir. 1989), we noted that the "modern
trend favors the admission of opinion
testimony [from lay witnesses], provided it
is well founded on personal knowledge and
susceptible to cross-examination." Id. at ___
157 (permitting drug user to express opinion
that substance she found was cocaine). We
further explained that "the individual
experience and knowledge of a lay witness may
establish his or her competence, without
qualification as an expert, to express an
opinion on a particular subject outside the
realm of common knowledge." Id.; accord ___ ______
United States v. VonWillie, 59 F.3d 922, 929 _____________ _________
(9th Cir. 1995) (based on experience, police
officer could testify as lay witness that it
was common for drug traffickers to use
weapons to protect drugs; opinion was helpful
to determination of whether defendant was
involved in drug trafficking).
Rivera-Santiago, 107 F.3d at 968. Here, Alpers unquestionably _______________
had experience and knowledge in interpreting FLIR images outside
the realm of the jurors' common knowledge. Because he was able
to form an opinion based on his direct observation and he was
subject to cross-examination, it was permissible for him to offer
his opinion as a lay witness. The defendants' attempt to
distinguish Rivera-Santiago is unavailing. Alpers was not _______________
____________________
7 Because of the court's ruling that Alpers was not offering an
expert opinion, the court need not consider the government's
contention that it effectively complied with the disclosure
requirements by disclosing prior to trial a statement containing
the factual basis for Alpers' opinion.
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presented as an expert and he did not testify as an expert. Thus
it was not error for the trial court to allow him to give his
opinion as to the identity of the individuals whom he had
observed on the FLIR system.
C. Sufficiency of the Evidence _______________________________
Finally, the defendants claim that the evidence was
legally insufficient to establish that they were the persons on
the vessel who had dumped cocaine into the ocean. We review such
a contention taking the facts presented at trial in the light
most favorable to the verdict. See United States v. Rogers, 121 ___ _____________ ______
F.3d 12, 15 (1st Cir. 1997); United States v. Montas, 41 F.3d _____________ ______
775, 778 (1st Cir. 1994). Undoubtedly, no single individual was
able to observe the defendants unimpeded and unassisted from the
time they left the vessel until they were arrested. However, the
circumstantial evidence that the defendants were the ones who had
fled the vessel was sufficient to allow a reasonable juror to
conclude that they had been seen on the vessel dumping the
cocaine. Four individuals were witnessed running into the
mangroves. Three individuals were arrested among the mangroves.
No other individuals were encountered in the area, and there was
testimony that the area where the vessel grounded was remote and
uninhabited. Alpers testified that, in his opinion, the men who
were arrested were the ones who had fled the vessel.
The jury was not required to credit the defendants'
theory that they were illegal aliens seeking to evade
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deportation. The only evidence of this was presented by the
defendants themselves, and it was within the scope of the jury's
factfinding function to disregard this evidence entirely. Thus,
taken in the light most favorable to the verdict, there was ample
evidence, both direct and circumstantial, from which a reasonable
juror could have concluded that the defendants had been on the
vessel, dumped cocaine from the vessel, grounded the vessel, fled
to the mangroves, attempted to evade detection until their
arrest, and then provided a false explanation of their behavior
in light of the likely repercussions of their acts. The
defendants have failed to show that they are entitled to relief
based on the alleged insufficiency of the evidence offered
against them.
Conclusion Conclusion __________
For the reasons stated above, the convictions of the
defendants are affirmed. affirmed ________
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