UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2187
UNITED STATES,
Appellee,
v.
FREDDY ROMERO,
Defendant - Appellant.
No. 93-2188
UNITED STATES,
Appellee,
v.
ARMANDO TEJEDOR,
Defendant - Appellant.
No. 93-2189
UNITED STATES,
Appellee,
v.
GABRIEL CURVELO,
Defendant - Appellant.
No. 93-2190
UNITED STATES,
Appellee,
v.
ORANIE GALINDO-FORBES,
Defendant - Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jos Antonio Fust , U.S. District Judge]
Before
Torruella, Cyr and Boudin,
Circuit Judges.
Jorge L. Arroyo, by Appointment of the Court, for appellant
Freddy Romero.
Jos A. Le n-Landrau, by Appointment of the Court, for
appellant Armando Tejedor.
Carlos A. V zquez-Alvarez, Assistant Federal Public
Defender, with whom Benicio S nchez-Rivera, Federal Public
Defender, was on brief for appellant Gabriel Curvelo.
Luis A. Medina-Torres, by Appointment of the Court, for
appellant Oranie Galindo-Forbes.
Richard A. Friedman, Attorney, Appellate Section, Criminal
Division, U.S. Department of Justice, with whom Guillermo Gil,
United States Attorney, Rosa E. Rodr guez-V lez, Assistant United
States Attorney, and Antonio R. Baz n, Assistant United States
Attorney, were on brief for appellee.
August 29, 1994
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TORRUELLA, Circuit Judge. In this case, defendants-
appellants Freddy Romero, Gabriel Curvelo, Armando Tejedor, and
Oranie Galindo Forbes appeal their convictions for possessing,
while aboard a vessel subject to the jurisdiction of the United
States, cocaine intended for distribution in violation of 46
U.S.C. App. 1903(a). The defendants challenge the sufficiency
of the evidence and the trial court's jury instructions.
Defendant Romero challenges his sentence. We affirm.
I. BACKGROUND
On the morning of March 29, 1993, a U.S. Navy
surveillance aircraft, a P3 Orion (the "P3"), on routine
narcotics-interdiction patrol, received a signal on its radar
indicating the presence of a vessel in international waters south
of the Dominican Republic. The radar indicated that the area was
free of other surface vessels within a hundred-mile radius.
Crewmen aboard the aircraft subsequently spotted the boat through
observer windows from a distance of five miles. Two crewmen,
pilot Jody Bridges and aft observer William Pikul, recognized the
boat as a low-profile vessel of the type used to smuggle
narcotics.
The P3 circled and proceeded to make several passes
over the boat, which, at that point, abruptly turned around and
accelerated in the opposite direction. During one pass, the
crewmen observed two people on the vessel's deck tossing bales
overboard. Subsequently, small arms tracer rounds came streaming
toward the plane. Throughout this time, the boat was moving at
high speed in an evasive, zig-zag course. The aircraft continued
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to trail the vessel until, six hours later, the boat ran out of
fuel and three of its crew were observed attempting to rig a blue
canvas tarp to act as a sail.
Throughout the surveillance, the crew of the aircraft
maintained the boat in sight through binoculars. The P3 also had
sophisticated surveillance equipment and cameras, and over 200
pictures were taken showing the boat and the bales in the water.
None of the photographs showed bales on the boat, individuals on
the boat, or bales being thrown overboard. The P3 also dropped
special buoys to mark the location of the bales after they were
thrown overboard.
While the occupants of the boat were rigging their
sail, a helicopter from the USS TAYLOR, a Navy frigate, arrived
and kept the boat under surveillance until the TAYLOR itself
reached the boat at dusk. The law-enforcement officer aboard the
TAYLOR, Coast Guard Lieutenant Francisco Alterie, hailed the boat
by megaphone and asked for its nationality because no national
identification was evident. Defendant Forbes, who subsequently
appeared to be in charge, told Alterie that the boat was
Colombian.
Alterie requested by radio that his superiors obtain a
"statement of no objection," which is a statement from the United
States State Department indicating that the country of registry,
in this case Colombia, granted American officials permission to
enforce United States laws aboard that vessel. After obtaining
permission from Colombian officials to board the defendants' boat
for purposes of determining the vessel's nationality and
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conducting a basic inspection, the State Department authorized
Alterie to board the defendants' vessel.
Once on board, Alterie and his boarding party found, in
addition to the four defendants themselves, state-of-the-art
radar and communications equipment, ropes crossing the cargo
area, and a strong smell of gasoline and other indications that
the cargo area had been washed down with gasoline. No drugs or
other contraband were found on the boat or on the defendants.
The boat did not have any identification or registration papers.
Upon being advised of this fact, the Colombian government
"refuted the claim of Colombian registry" for the vessel.
Meanwhile, twenty-one bales were recovered from the
Caribbean during the afternoon of March 30 by the Coast Guard
Cutter ATTU, approximately 15 nautical miles from the location
where the P3 first spotted the defendants' vessel 27-28 hours
earlier. The bales contained numerous two-kilogram packages of
cocaine. The Coast Guard had notified the ATTU of the bales on
the previous afternoon (March 29) and the ATTU had reached the
general location of the drop and the buoys left by the P3 at
approximately midnight. The ATTU was unable to find the bales
during the night, but it did find them the next day after a Coast
Guard patrol aircraft located them 15 miles away.
After retrieving the bales of cocaine, the ATTU
rendezvoused with, and then relieved, the TAYLOR at the site of
the defendants' vessel. On March 31, the State Department
authorized defendants' arrest. Coast Guard officials on the ATTU
then arrested the defendants and brought them and their boat to
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the port of Mayaguez, Puerto Rico. Officials with a mobile
laboratory conducted tests to determine if drugs were present on
the defendants and on the boat at that time. Both the defendants
and their vessel tested positive for traces of cocaine.
II. ANALYSISA. Sufficiency of the
Evidence
The defendants challenge the sufficiency of the
evidence supporting their convictions. In particular, they claim
the government did not establish that they ever possessed the
cocaine that the Coast Guard recovered from the ocean and that
the government later submitted as evidence at trial. One of the
elements of an offense under 46 U.S.C. App. 1903 is that the
defendants knowingly or intentionally possessed a controlled
substance. United States v. Piedrahita-Santiago, 931 F.2d 127,
130 (1st Cir. 1991).
In reviewing whether the evidence is sufficient to
establish that the defendants possessed the bales of cocaine, we
must consider all the evidence in the record as a whole,
including all reasonable inferences therefrom, in the light most
favorable to the verdict, with a view to whether a rational trier
of fact could have found the element of possession beyond a
reasonable doubt. United States v. O'Brien, 14 F.3d 703, 706
(1st Cir. 1994); United States v. Matiz, 14 F.3d 79, 82 (1st Cir.
1994); United States v. Sep lveda, 15 F.3d 1161, 1173 (1st Cir.
1993). We must also defer to the jury with respect to all
credibility determinations. O'Brien, 14 F.3d at 706.
The government's evidence of possession was ample, as
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it supported a reasonable inference that the bales observed being
thrown overboard from defendants' boat were the same bales later
recovered by the Coast Guard from the water in the vicinity where
the boat had been seen. Crewmen from the P3 testified that they
saw people aboard the defendants' boat throw bales from the
vessel overboard into the water. Crewman Pikul testified that
the bales presented in evidence at trial were the same ones he
witnessed being tossed overboard. Photographs from the P3 showed
the same bales in the water that were present in the courtroom.
Both Pikul and the P3's pilot, Bridges, testified that the
defendants' boat tried to evade the P3 and even fired upon the
surveillance aircraft. Both also testified that the boat was of
the type commonly used for drug smuggling.
Lieutenant Alterie and his boarding party found lines
crossing the cargo area of defendants' boat indicating that
something had been tied there. They also found that the cargo
area of the defendants' boat had been washed down with gasoline,
a tactic which several government witnesses explained was a
common technique among narcotics smugglers to eradicate traces of
contraband substances. Thomas Friend, a Navy helicopter pilot
and search and rescue officer, testified that the bales of
cocaine were found the following day within a predictable area of
where one would expect them to be had they come from defendants'
boat. Friend based this conclusion on a consideration of the
wind conditions, water currents, and elapsed time. The radar on
the P3 and on the TAYLOR's helicopter showed that no other boats
were within a 100-mile radius of defendants' boat. This evidence
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was sufficient, even without any consideration of the fact that
defendants and their boat tested positive for cocaine after they
were brought to the port of Mayaguez, to establish that
defendants knowingly possessed cocaine in violation of 46 U.S.C.
1903.
Defendants argue that (1) the eyewitness accounts of
the P3's crewmen that defendants threw the bales overboard should
not be credited because the aircraft failed to take any pictures
of the event, and because the P3's principal observer
misidentified the color of the recovered bales; (2) the testimony
concerning the likelihood that the bales recovered from the ocean
came from defendants' boat in light of ocean and weather
conditions was inherently unreliable; and (3) the tests showing
traces of cocaine on the defendants and their boat were
inaccurate due to unreliable equipment and careless procedures
allowing for contamination of the test subjects.
Defendants' first claim is that no reasonable jury
could credit the testimony of the P3 crewmen because the very
sophisticated photographic equipment in the P3 did not yield a
single photograph of individuals on the vessel, bales on the
vessel, bales being thrown from the vessel, or bales in the water
next to the vessel. Defendants point out that the P3 had the
defendants' vessel under continuous surveillance during the
alleged dumping, that the P3 was prepared to, and did, take
photographs throughout its encounter with defendants' boat, and
that one of the P3's cameras produced instant still photos which
allowed the crewmen to make adjustments in the photography while
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they were taking the pictures. These facts conclusively
establish, defendants conclude, that the eyewitness accounts of
the bales on defendants' vessel are not credible.
We need recount only a few of the many potentially
reasonable inferences that a jury could make in crediting the
government's eyewitness testimony in the absence of photographs
directly linking the bales of cocaine to the defendants. The
jury could reasonably infer that the photographer (who did not
testify at trial) simply missed the opportunity to take pictures
at the crucial time when the bales were being thrown overboard
because of the position of the aircraft (which made a number of
"passes" over the boat) or because of the position and readiness
of the camera equipment. The jury could also rationally conclude
that the photographer failed to take the "missing" pictures by
mistake, perhaps because he did not use the equipment properly,
had poor aim, or because he improperly developed the film and
ruined the crucial photographs. Pikul and Bridges testified that
one of the two cameras on the P3, a special high-speed camera,
was broken and that none of its photographs came out. It would
be perfectly rational for a jury to conclude that this broken
camera was the camera used for the crucial photographs and that
the second camera, the one whose pictures were used at trial, was
only used before and after the bales were dumped in the water.
The defendants next claim that Pikul's testimony that
the bales in the courtroom were the same bales that he had seen
earlier on defendants' boat cannot be credited by a reasonable
jury because Pikul said in an earlier statement that the bales
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were "yellow" when in fact the bales were closer to a brownish
color. At trial, Pikul described the bales as a "yellowish-
brown" in order to mask, defendants' allege, the "contradiction"
between the earlier statement and the appearance of the evidence
in court.
Credibility determinations are firmly within the jury's
realm, O'Brien, 14 F.3d at 706. We will not secondguess the
jury's decision to credit testimony which contains an
inconsistency, especially in a situation like this one where the
inconsistency or "contradiction" is ambiguous. It would usurp
the jury's role to reject its decision to believe or disbelieve a
witness because of such inconsistencies.
Defendants next attempt to poke holes in Friend's
testimony that if the bales were dumped from the defendants'
vessel, they should have been found in the area where they were
actually located, 28 hours later. Defendants claim that, at
trial, Friend was initially unable to provide and explain the
formula used by the Navy and the Coast Guard in their search for
the bales, which was determined prior to the launching of the
search. After a lunch recess at trial, Friend returned to
explain the formula and carried out a sample calculation
demonstrating the area of probability where the bales were found.
Defendants maintain that Friend was unable to explain how the
number 28, representing the number of hours that it took the
combined Navy and Coast Guard task force to locate the bales in
the water upon their having been allegedly dumped from the
suspect vessel, could have been factored into the formula prior
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to the search. The defendants emphasize that that number could
not have been available to the searchers before they calculated
where to attempt to locate the bales.
Defendants further point out that the defendants'
vessel was under constant surveillance in the area during and
after the purported dumping and that the bale area was marked by
buoys. If the bales were indeed dumped from that vessel,
defendants argue, it should not have taken that many ships and
aircraft 28 hours to find them. This, of course, although a
valid argument, is properly made to the jury rather than to an
appellate court.
None of defendants' objections raise colorable
challenges to the sufficiency of the evidence. Despite some
confusion surrounding Friend's rather technical testimony, it was
relatively clear from our reading of the transcript that Friend's
calculations represented an after-the-fact demonstration of (1)
how search patterns are calculated in general and (2) where the
bales in this case should have been found had the defendants in
fact dumped them. Friend stated several times that the actual
search was done by feeding certain information into a computer
which then calculated where to search. Friend testified that the
computer kept track of elapsed time during the actual search.
The jury could conclude from this that the search was properly
conducted at the time and that the bales did originate from
defendants' boat.
As for the 28 hours it took the Navy and the Coast
Guard to find the bales, we cannot tell from the record if this
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is a suspiciously delayed period of time or a relatively quick
period of time to find some bales floating in the ocean. A
reasonable jury, however, could rationally have found that the
bales were recovered relatively quickly and recovered right where
one would expect them to be, had the bales drifted in the
Caribbean for a day after the defendants threw them overboard.
Finally, defendants assert that the two types of tests
used for detecting cocaine on the defendants and their boat, the
Barringer Ion Scan and the Sentor Gas Chromatography, were
inherently unreliable. This assertion is based on the claim
that, although the testing technology has been used for years,
the mobile, in-the-field testing instruments used for the two
tests in Mayaguez were relatively recent creations and had not
yet been proven to be reliable. Defendants also claim that Coast
Guard officials took no prophylactic measures to prevent post-
arrest contamination of the defendants and their boat from the
cocaine bales, which the Coast Guard transported together with
the defendants, and from other potential sources of
contamination.
Defendants do not challenge the admissibility of the
testing evidence. Rather, they maintain the testing evidence is
too unreliable to support a jury verdict. We find that
defendants do raise some legitimate concerns regarding the
government's testing procedures. However, because there was
sufficient evidence to convict without consideration of the test
results, we need not decide how reliable the test results were in
this particular case. As we stated above, the other evidence of
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possession, linking the bales of cocaine to defendants' boat, was
ample. We therefore reject defendants' challenge to the
sufficiency of the evidence. Had the defendants raised a
challenge to the admissibility of the evidence and presented a
well-developed record on the problems with in-the-field testing
equipment, we might have been more inclined to reach the merits
of defendants' objection.
B. Admissibility of the "Certification of Denial"
Under 46 U.S.C. App. 1903, it is unlawful for anyone
"on board a vessel subject to the jurisdiction of the United
States," 46 U.S.C. App. 1903(a), to possess with intent to
distribute a controlled substance. Vessels subject to United
States jurisdiction include vessels "without nationality." 46
U.S.C. App. 1903(c)(1)(A). The indictment in this case alleged
that jurisdiction existed because the defendants' vessel was a
"vessel without nationality" within the meaning of 46 U.S.C. App.
1903(c)(1)(A).
A "vessel without nationality" (also called a
"stateless vessel") includes "a vessel aboard which the master or
person in charge makes a claim of registry, which claim is denied
by the flag nation whose registry is claimed." 46 U.S.C. App.
1903(c)(2)(A). A claim of registry can include a verbal claim of
nationality or registry by the master or person in charge. 46
U.S.C. App. 1903 (c)(3)(C). United States v. Maynard, 888 F.2d
918, 922-25 (1st Cir. 1989); United States v. Potes, 880 F.2d
1475, 1478-79 (1st Cir. 1989).
There is no dispute in this case that a "person in
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charge," namely defendant Forbes, made a claim of nationality by
stating that the defendants' vessel was from Colombia. Since a
claim of nationality was made, the vessel can be classified as
"stateless" only if the claim is denied by the flag nation whose
registry is claimed. 46 U.S.C. App. 1903(c)(2)(A). Maynard,
888 F.2d at 925. Section 1903(c)(2) provides that:
A claim of registry under subparagraph
(A) may be verified or denied by radio,
telephone, or similar oral or electronic
means. The denial of such claim of
registry by the claimed flag nation may
be proved by certification of the
Secretary of State or the Secretary's
designee.
46 U.S.C. App. 1903(c)(2) (emphasis added).
To satisfy the jurisdictional requirement under 1903,
the government presented a "certification of denial" from the
State Department as proof that defendants' claim of registry was
denied by Colombia. That certificate was signed by the Acting
Secretary of State and stated: "I Certify That Peter J. Boynton,
whose name is subscribed to the document hereunto annexed, was at
the time of subscribing the Maritime Law Enforcement Officer [at
the State Department], and that full faith and credit should be
given to his acts as such." The annexed statement by Boynton
attested to the fact that Boynton had been designated by the
Secretary of State to make certifications of denial pursuant to
46 U.S.C. App. 1903. Boynton stated that on March 30, 1993, he
contacted the Defense Attache of the United States Embassy in
Colombia to obtain permission from Colombian officials to board
defendants' vessel and to determine its nationality. Boynton
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then recounted the following series of events: The American
Defense Attache obtained permission to board the vessel from an
Admiral H.G. Ram rez, Commandant of the Colombian Navy. The
Attache then related this to U.S. Coast Guard officials who
authorized a boarding of the vessel and who subsequently
determined that the vessel had no indicia of nationality. This
information was relayed back to Colombian officials, and on March
31, 1993, Admiral Ram rez wrote a letter to the American Attache
refuting the defendants' claim of Colombian registry.* Boynton
did not have personal knowledge of any of these events; rather,
he was informed of them as the events unfolded by various State
Department and Coast Guard officials. The actual letter from
Admiral Ram rez refuting defendants' claim of nationality was
never presented at trial.
At issue on appeal is defendants' allegation that the
State Department certificate was inadmissible because it included
double and triple hearsay concerning the fact of Colombia's
denial of registry of defendants' boat, and because the form of
the certificate -- with Boynton's annexed statement containing
critical facts that were not within Boynton's personal knowledge
* The critical language in this case is Boynton's statement:
4. I certify the following:
. . .
(e) Later on March 31, 1993, LCDR Dale of
the U.S. Embassy in Bogot contacted
LT Pete DeCola of the Department of State
and informed him that the Government of
Colombia had refuted the claim of
Colombian registry for the un[n]amed
vessel, by letter signed by ADM Ram rez,
Commandant of the Colombian Navy.
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-- was inherently unreliable.** Defendants argue that Boynton
had no personal knowledge of any of the relevant facts that may
have occurred in Colombia with respect to the request for
boarding the vessel or the Colombian government's reply to that
request, including Colombia's refutation of the nationality of
defendants' boat. Defendants conclude that the district court
erred in admitting the Department of State certificate and that
the government, therefore, failed to establish the element of
jurisdiction under 1903.
The district court did not err in admitting the
Department of State Certificate because there was no hearsay or
other admissibility problem with that piece of evidence. Section
1903(c)(2) specifically provides that "the denial of such a claim
of registry by the claimed flag nation may be proved by
certification of the Secretary of State or the Secretary's
designee." The statute was designed to ease evidentiary
requirements for the government by avoiding the time-consuming
and burdensome task of obtaining official documentation from the
claimed country of registry which was previously required to
prove jurisdiction over a stateless vessel. See United States v.
Leuro-Rosas, 952 F.2d 616, 619-20 (1st Cir. 1991), cert. denied,
112 S. Ct. 1598 (1992). Thus, to establish jurisdiction in the
case of a vessel claiming foreign registry, the government need
** The government argues that some of the defendants did not
join defendant Romero's objection to the district court's
admission in evidence of the State Department certification.
Because we find no merit to the substance of Romero's objection,
we need not determine whether all the defendants have preserved
this ground for appeal.
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not prove that the vessel is in fact without registry in another
country, nor must it prove that the foreign nations' denial or
refutation of registry is valid, legitimate, or otherwise
properly made. In fact, such issues may be irrelevant for
purposes of jurisdiction under 1903 once it is established that
the State Department certifies the vessel is stateless. See 46
U.S.C. 1903(d) ("A claim of failure to comply with international
law in the enforcement of this chapter may be invoked solely by a
foreign nation, and a failure to comply with international law
shall not divest a court of jurisdiction or otherwise constitute
a defense to any proceeding under this chapter); Leuro-Rosas, 952
F.2d at 621-22.***
*** We say that proof of actual registry or of the illegitimacy
of a foreign nation's denial may be irrelevant because the
statute can be read as defining jurisdiction solely in terms of
what the State Department certifies, regardless of whether or not
a defendant's boat is actually registered in a foreign nation.
The government insists that 1903(d) confirms this by stating
that jurisdiction exists even in the face of an alleged violation
of international law. According to the government, a defendant
who wants to assert that his vessel is truly registered in a
foreign nation or that that nation did not properly deny his
claim registry, must protest to the foreign nation itself and
have that nation take up the matter with the State Department on
the defendant's behalf. We are not so sure that the statute
indeed imposes such a burden. It is possible that proving the
registry of a vessel for purposes of jurisdiction under the
statute is not the same thing as contesting a violation of
international law and thus not barred by 1903. See United
States v. Aikins, 946 F.2d 608, 615 (9th Cir. 1990) (noting in
dicta that defendants can rebut the facts presented in a State
Department certification). Anyway, we are not presented with
such a situation in this case -- defendants did not try to
establish at trial that their vessel was in fact Colombian.
Therefore, we do not decide the issue of whether efforts to prove
a vessel's actual registry would be irrelevant under 1903 or
barred by 1903(d).
This case does not, of course, present a challenge to the
authenticity of the government's proffered State Department
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Jurisdiction exists under 1903 if the State
Department determines a vessel is stateless through the receipt
of a denial of registry from a foreign nation. Section
1903(c)(2) allows for proof of this determination by way of a
"certification" of the Secretary or his or her designee. The
presence of what might normally be considered "hearsay" in the
certification is explicitly contemplated by the statute, which
states that a claim of registry "may be verified or denied by
radio, telephone, or similar oral or electronic means." 46
U.S.C. 1903(c)(2). Congress recognized that the State
Department would be using non-documentary, non-self-
authenticating means of obtaining a denial and attesting to this
fact in its certification. Thus, the statute specifically
authorizes as proof of the jurisdictional component of 1903
precisely what the government presented here. The State
Department certification recited with specificity the steps that
resulted in the Department's understanding that "the Government
of Colombia had refuted the claim of Colombian registry for the
un[n]amed vessel, by letter signed by ADM Ram rez, Commandant of
the Colombian Navy." This is sufficientto establish jurisdiction.
certification on the grounds that, for example, the certification
was fraudulently prepared (e.g., untruthful in saying that a
foreign nationa's denial had been received) or presented in bad
faith (e.g., accepting the denial of a janitor in a foreign
nation's public agency instead of a public officer in that
agency). We therefore reserve the question of whether 1903(d),
or any other provisions of 1903, would bar the presentation of
evidence relating to the facts of registry or the actions of
foreign nations in situations that might warrant determination,
probably by the court, as to whether a proper certification was
being offered.
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There is no hearsay or other problem with the form of
the certification in this case. The attachment of a declaration
by Boynton to the Secretary of State's certification is perfectly
acceptable because Boynton constitutes the "Secretary's designee"
under 1903(c)(2). Several courts have accepted declarations
attached to certificates as proper and admissible
"certifications" under 1903. United States v. Aikins, 946 F.2d
608, 614 (9th Cir. 1990); United States v. Mena, 863 F.2d 1522,
1531 (11th Cir.), cert. denied, 493 U.S. 834 (1989) (finding
admissible a letter from Honduran Navy attached to certification
from United State Embassy in Honduras); cf. Leuro-Rosas, 952 F.2d
at 618-21 (expressing approval of certification under 1903 in
the same form as the certification in this case).
Boynton's reliance on the actions and statements of
other State Department officials in certifying Colombia's denial
of registry does not raise admissibility problems under the
hearsay rule. The State Department Certification falls squarely
within Fed. R. Evid. 803(8)(A) which excepts from the hearsay
rule public-agency statements "in any form" setting forth "the
activities of the office or agency." Fed. R. Evid. 803(8)(A);
Mena, 863 F.2d at 1531. The State Department's declaration that
it received a denial of defendants' claim of registry from
Colombia was a statement by a public agency setting forth a
routine activity of that agency. The hearsay exception under
Fed. R. Evid. 803(8)(A) accounts for all of the subsidiary
statements relayed by the State Department operatives to the
declarant, Boynton. See Aikins, 946 F.2d at 614-15 (noting that
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the authority of a certifying official who relies on the
statements of functionaries for his information "is not diluted,
and the admissibility of his certificate is not diminished,
because he indicated the basis for his statement"; and stating
that "the Secretary of State could properly rely on those in his
chain of command. A probability of trustworthiness attends the
statement of the certifying officer; it is equally probable that
the officer has taken reasonable measures to assure himself of
the fact he certifies").
C. Jury Instructions
Defendants argue that the district court's "reasonable
doubt" instructions and its instructions on the elements of the
crime were erroneous. Before trial, the district court judge
described for the jury the reasonable doubt standard by comparing
it to the civil, preponderance of the evidence standard. The
judge instructed the jurors:
The government must prove each defendant
guilty beyond a reasonable doubt. The
defendants have no burden to prove their
innocence or to present evidence or to
testify. The law forbids you from
considering the silence of an accused,
his failure to testify, in reaching a
verdict. That is a right that a
defendant has. You cannot consider the
silence of an accused in the face of an
accusation. That is illegal. You cannot
do that.
The government, as I said, must prove the
case beyond a reasonable doubt. And let
me explain in very simple terms what this
means. Usually, at this stage of the
case, what we judges do is concur [sic]
the two standards, the one that applies
in the civil case and one that applies in
a criminal case, so that you will have an
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idea of the difference. At the end of
the case I will explain this again to
you.
In the civil case we say that a plaintiff
prevails if he proves the case against
the defendant by the preponderance of the
evidence. Assume, then, a graphic
example. A scale, an even scale. You
will put the evidence of the plaintiff
and the evidence of the defendant, if
any, on the two sides and you see what
happens to the scale. If the scale just
moves a little bit to the plaintiff's
side, the plaintiff is prevailing in the
context of a civil case. That could be a
car accident case, a contracts case,
preponderance of the evidence.
In the criminal context we say the
government must prove each defendant
guilty beyond a reasonable doubt. That
implies a heavier burden. Assume, then
that the scale must tip more to the
government's side, heavier burden.
Why? Because liberty is involved and, of
course, the wise people who devised the
system understood that the evidence would
be received under a different standard,
as we say, beyond a reasonable doubt.
I will explain this once again for your
benefit at the end of the case; but if
you have ever served in a civil case, you
should disregard the particular notion of
preponderance. Here we say beyond a
reasonable doubt. (emphasis added).
No objections were made at this time, or subsequently, concerning
these instructions. After closing arguments, the court stated:
Each defendant is presumed to be
innocent. Each defendant had no duty to
testify or present any evidence or prove
their innocence.
The government had the burden to prove
each defendant guilty beyond a reasonable
doubt, and that you know from the
beginning.
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What is this business of "reasonable
doubt"? "Reasonable doubt" is a doubt
based upon reason and common sense and
may arise from a careful and impartial
consideration of all the evidence in the
case, or the lack of evidence in the
case.
Proof beyond a reasonable doubt is proof
that leaves you firmly convinced that the
defendants are guilty.
. . . .
So, proof beyond a reasonable doubt is
proof that leaves you firmly convinced
that had a given defendant has been
proven guilty beyond a reasonable doubt
[sic].
At the end of this charge, the defense attorneys approached the
bench but no one objected to the reasonable doubt instructions.
Defendants argue that the instruction concerning the
"even scale" is faulty for two reasons. First, it dilutes the
degree of persuasion required to convict a defendant in a
criminal case. Second, the "even scale" mechanism presupposes
that the criminal defendant will submit evidence so as to balance
the scale. According to the defendants, the fact that the
government would usually submit more evidence than the defendant
will, in the eyes of a reasonable juror, forcibly tip the scale
to the government's side, even when such tipping is not
sufficient to convict beyond a reasonable doubt. In comparing
the criminal standard to the civil one, defendants contend that
the court actually defined proof beyond a reasonable doubt as
preponderance of the evidence, but with a "heavier burden."
Defendants conclude that this dilutes the meaning of reasonable
doubt.
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Because defendants failed to raise this objection at
trial, we must review the trial court's instructions for plain
error. Fed. R. Crim. P. 52(b). We will find plain error only
when (1) there is an "error," (2) that is "clear" or "obvious"
and (3) that affects "substantial rights." United States v.
Olano, 113 S. Ct. 1770, 1776-77 (1993); United States v. Col n-
Pag n, 1 F.3d 80, 81 (1st Cir. 1993).
In this case, although the reasonable doubt
instructions may be erroneous, we cannot find that they are
clearly and obviously so. Reasonable doubt instructions are
erroneous when, taken as a whole, they have a "reasonable
likelihood" of misleading the jury to believe that it can convict
on some lesser standard of proof than that required under the
reasonable doubt standard. V ctor v. Nebraska, 114 S. Ct. 1239,
1243, 1251 (1994). Although the court's statement that "the
scale must tip more to the government's side" may, if taken in
isolation, suggest a somewhat diluted burden of proof, the court
was clear that the reasonable doubt standard was distinct from,
and imposed a "heavier burden" than, the preponderance standard
used in civil trials. The court also told the jury several times
that the defendants had no burden to prove their innocence, and
that they did not have to present any evidence. This decreased
the likelihood that the jury would improperly weigh the evidence
or lack thereof.
What little explanation the court gave on the term
"reasonable doubt" was harmlessly circular. There was no mention
in the final charge of the preponderance of the evidence
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standard. Although the use of the scale analogy has the
potential for misleading the jury into applying a diluted burden
of proof, we do not see in this case, with all the instructions
taken as a whole, a clear and obvious likelihood that the jury
would be so misled.
Defendants also argue that the district court erred in
its instructions with respect to the elements of the crime
because the instructions might have suggested to the jury that
jurisdiction was not an element of an offense under 1903.
According to the defendants, the court's confusing instructions
effectively failed to inform the jury that it must find that
defendants' vessel was subject to the jurisdiction of the United
States beyond a reasonable doubt. As with the reasonable doubt
instruction, no objection was made at trial to the court's
instructions on the elements of the crime.
We need not reach the substance of defendants'
objection on this issue because the defendants presented no
evidence at trial to refute the government's proof that the
defendants' vessel was stateless and thus subject to the
jurisdiction of the United States. Other than defendants'
attempt to prevent the admission of the State Department
certification, the issue of United States jurisdiction over their
vessel was not contested. We agree with the Third Circuit that
there is no plain error in a situation such as this one. United
States v. Mart nez-Hidalgo, 993 F.2d 1052, 1057 (3d Cir. 1993),
cert. denied, 114 S. Ct. 699 (1994) (finding no plain error when
court refused to instruct jury on jurisdiction as an element to
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be proved under 1903). Because the undisputed evidence
conclusively established jurisdiction, the court did not
undermine the fundamental fairness of the trial or contribute to
a miscarriage of justice by failing to instruct the jury on that
element of the crime. Id. Moreover, unlike in Mart nez-Hidalgo,
the court in the present case at least attempted to give an
instruction to the jury on the element of jurisdiction. There is
thus less likelihood of plain error in this case than in
Mart nez-Hidalgo.
D. Sentencing of Romero
Defendant Romero argues that the district court erred
in finding that, as a matter of law, it was precluded from
granting a downward departure in sentencing for "extraordinary
family circumstances" under 5K2.0 of the Sentencing Guidelines.
Romero testified at his sentencing hearing that the mother of his
children was murdered in Colombia in 1988. His three children
presently live with his sister in Santa Marta, Colombia. The
sister has four children of her own to take care of. They all
live together in a small two-bedroom house. The sister's husband
works only periodically. Romero's eldest daughter was suspended
from school because Romero's sister and her husband could not
make the monthly payments that the school required. Romero's
son, Ronald Romero, suffers from a rare blood disease. Ronald's
doctor recommended treatment with special pills and food as well
as a blood transfusion. Romero did not know if his son Ronald
had ever received the recommended treatments.
Following Romero's testimony, the court rejected any
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downward departure based on 5K2.0 for unique family
circumstances. The court stated:
You are going to 5K2.0, basically, and
asking me to read within the context of
this case a departure for unique family
circumstances of the kind not normally or
not taken into consideration by the
Sentencing Commission when they drafted
the guidelines.
But I do not think that that's the case.
As a matter of fact, your request falls
within the category that discourages
departures that pertain to such things as
family ties and family responsibilities,
etcetera. I do not think that this case
is so different from what I see in 90
percent of the cases. Take a look at
what happened here today this afternoon.
We have visions that are as terrible and
as depressing and as sad as the ones that
he has now.
I cannot, on the basis of what I know of
this record, and on the basis of what I
heard here, make a substantial departure
under that particular section . . . .
I do not think -- I do not think that
this stands as a situation that is so
different from that that we see on a
daily basis, which are very sensitive
situations. Assuming no diseases,
assuming no circumstances of that kind --
the mere fact that a father, that of
itself is extraordinary, but that is not
what the law allows me to consider.
Romero's Attorney then stated:
Well, your Honor, precisely your Honor
stated "assuming no diseases," and that
is precisely why we raised the matter.
It is what the probation officer called
"a rare blood disease," and that is why
we had, at the outset of our allocution,
explained to your Honor the problems that
we have encountered.
The court responded:
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That's okay. But I am not assuming that
that is true. I am assuming that what
the child has is sickle-cell anemia. It
could be sickle-cell anemia, it could be
leukemia, but those two factors are not
enough for me to depart.
Romero argues that the court's statement ("that is
extraordinary, but that is not what the law allows me to
consider") evinced the court's perception that it was legally
unable to depart in the absence of "diseases" or "circumstances
of that kind." According to Romero, the court's position was
that on a record which did not include particular medical
conditions, the court was legally precluded from departing. Yet
the court then assumed Romero's son had a blood disease -- either
sickle-cell anemia or leukemia -- and thus that an "unusual
circumstance" was present. The court, however, still did not
depart because, Romero claims, it thought that it could not
legally do so under the circumstances of this case. Romero's
interpretation of the court's decision is mistaken. We therefore
uphold his sentence.
United States Sentencing Guidelines 5K2.0 recognizes
that under 18 U.S.C. 3553(b) "the sentencing court may impose a
sentence outside the range established by the applicable
guideline, if the court finds 'that there exists an aggravating
or mitigating circumstance of a kind, or to a degree, not
adequately taken into consideration by the Sentencing Commission
in formulating the guidelines that should result in a sentence
different from that described.'" U.S.S.G. 5K2.0 (quoting 18
U.S.C. 3553(b)). Family ties and responsibilities are normally
-27-
"discouraged" grounds for departure, U.S.S.G. 5H1.6, because
they are not outside the normal "heartland" case which the
Sentencing Commission has already taken into consideration.
Nonetheless, such factors "could remove a case from the
heartland, but only if they are present in a manner that is
unusual or special, rather than 'ordinary.'" United States v.
Rivera, 994 F.2d 942, 948 (1st Cir. 1993) (emphasis in original).
Thus, a sentencing court may depart downward for purposes of a
defendant's family ties and responsibilities, if, and only if, it
finds those factors to be unusual or special. Id. at 948, 951.
Ordinarily, a district court's refusal to exercise its
discretion to depart downward from the sentencing guidelines is
not reviewable on appeal. United States v. LeBlanc, 24 F.3d 340,
348; United States v. Smith, 14 F.3d 662, 665 (1st Cir. 1994);
United States v. McAndrews, 12 F.3d 273, 276 (1st Cir. 1993).
Appellate jurisdiction does attach, however, where the sentencing
court's decision not to depart is based on the court's mistaken
view that it lacks the legal authority to consider a departure.
LeBlanc, 24 F.3d at 348; Smith, 14 F.3d at 665-66; United States
v. DiIorio, 948 F.2d 1, 8 (1st Cir. 1991). In other words, where
the court errs in determining whether the allegedly special
circumstances are of the "kind" that the Guidelines, in
principle, permit the sentencing court to consider, we may
proceed to review the courts sentencing decision not to depart.
Rivera, 994 F.2d at 950-51. On the other hand, if "we find that
the court properly understood its power to depart, but refused to
exercise that power, we lack jurisdiction to consider the
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appeal." LeBlanc, 24 F.3d at 348; United States v. Lombardi, 5
F.3d 568, 571-72 (1st Cir. 1993).
Thus, the issue on this appeal is whether the district
court exercised its discretion by finding that Romero's family
circumstances, including his son's disease, was not sufficiently
unusual or different from the heartland case to warrant a
departure or whether the court found that the Guidelines did not
allow him to depart for circumstances like the ones present in
this case. Because we find the court did not misunderstand its
authority to depart, its departure decision is not reviewable on
appeal.
It is fairly clear that the court understood its
ability to depart under the guidelines, but found that the facts
of the case prevented the court from doing so. The court
explicitly and correctly noted that it was considering a
discouraged type of departure for unique family circumstances.
The court then found that the facts of this case were not "so
different from what I see in 90 percent of the cases." This
demonstrates that the court knew that it could depart if it found
the facts placed the present case outside of the heartland of
cases that it normally faced.
The court did say: "Assuming no diseases, assuming no
circumstances of that kind -- that mere fact that a father, that
of itself is extraordinary, but that is not what the law allows
me to consider." (emphasis added). In the context of the entire
decision and the court's previous statements, we interpret this
statement simply as a correct expression of the applicable law.
-29-
The court was saying that it could not depart unless it found the
facts of the case were unusual or different than the heartland
case and that the mere fact that Romero was a father and had
children that someone else was caring for did not constitute an
unusual or special situation for which the Guidelines would allow
a departure. After Romero's counsel pointed out that there was
evidence of a special circumstance -- namely Romero's son's blood
disease -- the court stated that it had assumed the son had
either sickle-cell anemia or leukemia, "but that those two
factors are not enough for me to depart." The court was not
saying that the Guidelines prohibited him from considering
Romero's son's disease as the type of factor upon which a
departure decision can be based, he was merely saying that he
considered the disease and that it was "not enough for [him] to
depart." Although the court's language is not a model of
clarity, we are certain that the judge was making a factual and
discretionary determination here; he did not hold that diseases
can never merit a departure under the Guidelines. The court was
thus not mistaken about its power to depart but rather made a
judgment call that we may not review on appeal.
Affirmed.
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