United States v. Amado-Guerrero

United States Court of Appeals
For the First Circuit

No. 96-1324

UNITED STATES,
Appellee,

v.

MANUEL AMADO GUERRERO,
Defendant, Appellant,

No. 96-1325

UNITED STATES,
Appellee,

v.

CRISPINIANO OSPINA,
Defendant, Appellant,

No. 96-1326

UNITED STATES,
Appellee,

v.

ORLANDO PILCO,
Defendant, Appellant,

No. 96-1327

UNITED STATES,
Appellee,

v.

MANUEL RIVAS,
Defendant, Appellant,

No. 96-1651

UNITED STATES,

Appellee,

v.

DIMAS HERNANDEZ,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Stahl, Circuit Judge.

Luis E. Pabon Roca, by Appointment of the Court, for appellant

Amado Guerrero.
Peter J. Satz-Hanley, by Appointment of the Court, for appellant

Crispiniano Ospina.
David A.F. Lewis, by Appointment of the Court, for appellant

Orlando Pilco.
Miguel A.A. Nogueras-Castro, Assistant Federal Public Defender,

with whom Gustavo A. Gelpi, Assistant Federal Public Defender, and

Benicio Sanchez Rivera, Federal Public Defender, were on brief for

appellant Manuel Rivas.
Irma R. Valldejuli, by Appointment of the Court, for appellant

Hernandez.
Jacabed Rodriguez Coss, Assistant United States Attorney, with

whom Jose A. Quiles, Assistant United States Attorney, and Guillermo

Gil, United States Attorney, were on brief for appellee.

May 30, 1997

STAHL, Circuit Judge. A jury convicted
STAHL, Circuit Judge.

defendants-appellants Manuel Amado Guerrero, Crispiniano

Ospina, Orlando Pilco, Manuel Rivas, and Dimas Hernandez each

of one count of aiding and abetting each other in the

possession with intent to distribute marijuana on board an

ocean vessel subject to the jurisdiction of the United

States, in violation of 46 U.S.C. app. 1903(a) and 18

U.S.C. 2. On appeal, the defendants raise various issues

with respect to their convictions and sentences. Many of the

issues they ask us to review were not properly brought to the

district court's attention. Finding no merit to their

contentions, we affirm the district court's judgment in all

respects.

I.
I.

Facts and Prior Proceedings
Facts and Prior Proceedings

At trial, the government established the following

facts.1 On the evening of June 13, 1995, the United States

Coast Guard Cutter MELLON was conducting routine counter

drug-trafficking patrol on the high seas off Colombia, South

America. At that time, the weather conditions included

twenty-knot winds and eight-foot swells. Lt. Comdr. Vincent

Morgan Weber commanded the heavily armed 378-foot-long

vessel, which was equipped with two smaller boats: a

1. We recount the trial evidence in the light most favorable
to the prosecution. See United States v. Ruiz, 105 F.3d

1492, 1495 (1st Cir. 1997).

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motorized surfboat, the MELLON I, and a rigid hull inflatable

boat, the MELLON II.

At approximately 9:00 p.m., forty miles north of

the Colombia's Guajira Peninsula, the cutter MELLON made

radar contact with an unidentified vessel.2 As the MELLON

approached the craft, it directed its search lights upon it.

Given the difficult seas and the distance from the nearest

shore, Lt. Comdr. Weber expected to observe a cargo boat.

Instead, he discerned a forty-foot long, flagless

recreational craft, travelling in a northeast direction.

The boat rode low in the water, not more than eight

feet above the surface. Its cabin was constructed much lower

than normal for that type of recreational vessel. The

vessel's "low profile" enabled it to ride in the ocean s

swells and avoid most radar detection. The fiberglass boat's

hull was light blue below the waterline and white above. It

sported two antennae, a common VHF radio antenna and a high-

frequency antenna for long distance communications. The

vessel was operating without its running lights on, and no

one was topside.

After several unsuccessful attempts to hail the

vessel, Lt. Comdr. Weber established radio communications

2. The evidence also suggested radar contact with another
vessel, some two miles away from the first boat, but the
Coast Guard chose not to pursue any interaction with that
vessel.

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through one of the cutter's interpreters. The vessel's

master, Pilco, informed the Coast Guard that the boat,

identified as the BLACK CAT,3 was of Honduran registry.

Pilco stated that his last port of call was "Panama" and that

his next port of call was "Honduras." Weber found these

statements suspicious because the BLACK CAT was headed away

from the stated destination and because specific cities, not

countries, usually are identified as ports of call. Pilco

did not respond to Weber's subsequent request to identify the

specific cities in which the ports of call were located.

When asked if the BLACK CAT carried any cargo,

Pilco answered, "no." Lt. Comdr. Weber had just been

advised, however, that personnel aboard the MELLON saw cargo

inside the boat's cabin. The vessel s low position in the

water further belied Pilco's claim. To clarify the point,

Weber again asked Pilco whether or not the BLACK CAT carried

cargo. Pilco again responded in the negative. Weber then

requested permission to board, to which Pilco replied, in an

agitated voice, "wait a minute, wait a minute, wait a

minute." Weber repeated the request a few minutes later, but

received the same response.

About the same time, Coast Guard personnel observed

someone on the BLACK CAT throwing objects overboard. A boat

3. Pilco stated the vessel's name in Spanish, "GATO NEGRO."
Following the parties' lead, we use the English translation
throughout.

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team dispatched on the MELLON II retrieved from the ocean

pieces of a navigational chart depicting the United States

Virgin Islands area east of Puerto Rico. Lt. Comdr. Weber

then dispatched a boarding team in the MELLON I to approach

the BLACK CAT.

When the MELLON I came alongside the vessel,

members of the boarding team noticed two oversized, custom-

made fuel tanks covering most of the aft deck. In fact, a

person could not enter the cabin area without crawling over

the fuel tanks. Peering into the cabin area with the aid of

a spotlight, the boarding team observed several crew members

and numerous white-colored bales.

The boarding team failed in its initial attempts to

get the attention of the crew, which, for a time, remained

inside the cabin. Soon, however, the crew members began to

emerge, one by one, carrying duffel bags. One member placed

his hand underneath his shirt, and others seemed to be

reaching inside their bags. These actions alarmed the

boarding team, which quickly advised the crew (in Spanish and

English) to keep their hands in plain sight. Concerned for

the boarding team's safety, Gunner's Mate Edward West pointed

an M16 service rifle toward the vessel. Perhaps because the

choppy seas made communication difficult, the BLACK CAT's

crew did not comply with the request to keep their hands in

view. When a crew member again began to reach towards his

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duffel bag, the boarding team pulled away from the BLACK CAT

inorder toreassess thesituation anddiffuse therising tension.

When all five crew members of the BLACK CAT were

topside, the MELLON I again pulled up to the vessel. The

boarding team had no weapons drawn at the time, and the

situation was much calmer. Ensign Joseph Sundland, the

boarding officer, told Pilco that the Coast Guard wanted to

perform a safety inspection on the boat. Pilco consented.

The boarding process, however, proved to be somewhat

difficult. There was very little space available on the boat

for boarding, and the rough sea conditions had caused fuel to

spill on the stern, making for unsure footing. Moreover, the

construction of the vessel's cabin left no room to walk

around it on deck. These circumstances made it dangerous for

the BLACK CAT's crew members, who had no life jackets, to

stand topside during the boarding. To facilitate a safe

boarding, the boarding team had the crew lie down on top of

the cabin.

Once on board, members of the boarding team asked

Pilco again if he had any objection to the Coast Guard's

presence on board the vessel. Pilco repeated that he had no

objection. Sundland asked Pilco for permission to go below

into the cabin to check for safety hazards. Pilco consented,

and led Ensign Sundland and Firearm Rafael Rivera (who served

as interpreter) over the fuel tanks and into the cabin.

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Numerous bales covered with white plastic filled almost all

of the interior space, with the exception of a small sleeping

area between the bales and the ceiling and a narrow crawl

space forward. One of the bales had been placed by the helm,

apparently to serve as a seat for the crew member steering

the vessel. The cabin also held many food containers, mostly

unopened, and a cooler almost full of fresh ice and sodas.

Sundland noticed high-quality, expensive radio gear on the

cabin's wall.

The bales emitted no perceptible odor, rather,

intense fumes from fuel leaking out of the poorly constructed

tanks almost overwhelmed the men in the cabin. Ensign

Sundland sought and received Pilco's permission to open one

of the bales. He cut through heavy plastic and a cardboard

box, and discovered nine individually wrapped packages

inside. As he opened one of the smaller, plastic-wrapped

packages, he asked Pilco if he knew what the package

contained. Pilco answered that he thought it was marijuana

and that someone had hired him to take it from Colombia to an

undisclosed location. Field testing verified that the

packages in fact contained marijuana.

Following a radio inquiry to Honduran authorities,

at approximately 9:00 p.m. on June 14 (some twenty-four hours

after the Coast Guard initially contacted the BLACK CAT), the

Honduran government confirmed the vessel's Honduran registry

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and authorized the Coast Guard to enforce United States law

against the vessel and her crew.4 The Coast Guard placed the

defendants under arrest and seized the contraband. After

securing the vessel's crew and cargo aboard the MELLON, the

Coast Guard attempted to tow the BLACK CAT in the MELLON's

wake, but the BLACK CAT took on water and began to sink.

Because the boat's presence just beneath the ocean's surface

would have created a navigation hazard, Coast Guard personnel

sank the vessel completely with machine gun fire.

In total, the Coast Guard seized 100 bales of

marijuana, weighing a total of 5,596 pounds and worth $6-8

million wholesale, $25-41 million retail. Although the Coast

Guard found no weapons on board the BLACK CAT, it seized a

Magellan global positioning system ("GPS"), an electronic

navigation device that determines a vessel's latitude and

longitude position. When asked, Pilco could not present any

cargo manifests or other commercial papers.

According to the government's witnesses, commercial

cargo normally is not transported in the manner in which the

unlabeled bales were bundled and arranged on the BLACK CAT.

On the contrary, the bales had been packed in a manner

typical for contraband. In particular, the evidence

4. At trial, the government introduced a certification from
the United States Secretary of State and his designee to
prove the Honduran government's confirmation of registry and
authorization to enforce U.S. law.

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suggested that the waterproof packaging was intended to

protect the contraband during vessel-to-vessel transfers on

the high seas. Transfers of this type often require the

assistance of long distance radios and sophisticated

navigational equipment, such as the Magellan GPS, to pinpoint

the time and place of the rendezvous.

Following the government's case in chief,

defendants Pilco and Rivas testified on their own behalf.

Pilco asserted that he had been hired to transport what he

thought was a coffee cargo -- at $5 per bale -- to Aruba, and

that he set sail roughly around midnight on June 12, 1995.

He testified that during the initial contact with the cutter

MELLON, he did inform the Coast Guard that the BLACK CAT was

carrying cargo. He also claimed that he had told the Coast

Guard that his last port of call was "Puerto Panama," located

on Colombia's Guajira Peninsula, and that his destination was

"Aruba," not "Honduras." He denied telling Ensign Sundland

that he thought the bales contained marijuana, and stated

that he had no cargo manifests or commercial papers because

the person who hired him, rather than a maritime agency, was

to receive the shipment.

Rivas testified that he was an experienced seaman

who usually worked on merchant ships. For the BLACK CAT

voyage, he had been hired for $200 as a helmsman. He stated

that he met the rest of the crew for the first time after

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being driven to Puerto Panama on the Guajira Peninsula.

Rivas could not state with any specificity the location of

Puerto Panama. He asserted that the bales were already

inside the cabin when he arrived at the boat dock and that he

noticed nothing unusual about them. Rivas also claimed that

he did not hear the word "marijuana" until it was uttered by

one of the Coast Guard officers.

At the close of all the evidence, the district

court denied the defendants' motions for acquittal.

Subsequently, the jury found each defendant guilty, under 46

U.S.C. app. 1903(a), of aiding and abetting each other in

the possession -- with intent to distribute -- of marijuana

on board a vessel. On appeal, Pilco contends that the

involuntariness of his statements to the Coast Guard rendered

the statements inadmissible against him at trial. All

defendants argue that a certification from the Secretary of

State was inadmissible to prove the United States'

jurisdiction over the vessel. With the exception of Pilco,

the defendants also claim that the government failed to prove

their knowing participation in the drug trafficking offense.

Ospina, Rivas, and Hernandez claim error in the court s jury

instructions, and Hernandez further argues that the Coast

Guard's eventual destruction of the vessel violated his due

process rights. Last, Rivas and Ospina challenge the court s

sentencing determinations.

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II.
II.

Admission of Pilco's Statements at Trial
Admission of Pilco's Statements at Trial

Pilco contends that he did not voluntarily make the

incriminatory statements to the Coast Guard after they

boarded the BLACK CAT and that the use of those alleged

statements at trial violated his right to due process.

Specifically, Pilco relies on the following facts. The

cutter was over 370-feet long and heavily armed while the

BLACK CAT was only 40-feet long and unarmed. At one point, a

member of the Coast Guard boarding team pointed an M16 rifle

at the BLACK CAT crew. Finally, upon boarding, the boarding

team had the crew lie down on top of the boat because of the

dangerous seas.

Following a voluntariness hearing pursuant to 18

U.S.C. 3501(a),5 during which Ensign Sundland testified,

the district court found that Pilco voluntarily consented to

both the boarding and the subsequent cabin inspection. The

court ruled that the boarding, coupled with Ensign Sundland's

non-threatening inquiries, amounted neither to custody nor

coercion. The court further observed that, at the time of

the statement, Pilco could have requested the boarding team

to leave, and the team would have complied. Thus, the court

5. 18 U.S.C. 3501 requires a trial judge to conduct a
hearing out of the jury's presence to determine the
voluntariness and admissibility of a confession or self-
incriminating statement made during detention or arrest.

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concluded, the statement was voluntary within the meaning of

3501.6

The ultimate voluntariness determination involves a

question of law subject to plenary review. United States v.

Cleveland, 106 F.3d 1056, 1064 (1st Cir. 1997). We

"scrutinize[] a district court's factual findings, including

its credibility determinations, for traces of clear error."

United States v. Valle, 72 F.3d 210, 213-14 (1st Cir. 1995).

Upon careful examination of the evidence introduced

at the 3501 hearing, we find no clear error in the court's

subsidiary factual findings regarding the voluntariness of

Pilco's statement. Ensign Sundland's testimony, the

credibility of which was a matter for the court, see Valle,

72 F.3d at 214, plausibly established that the boarding team

members had no weapons drawn at the time of the boarding

request, that Pilco freely consented to the boarding and

search, and that his demeanor was "very calm" when he granted

Ensign Sundland permission to inspect the cabin and to open a

bale. Examining the totality of the circumstances, we cannot

say that Pilco's will was "overborne so that the statement

was not his free and voluntary act." United States v.

Jackson, 918 F.2d 236, 241 (1st Cir. 1990) (internal

6. We note that Pilco only challenges the voluntariness of
his statements under 18 U.S.C. 3501. His argument does not
touch upon the absence of Miranda warnings or the manner in

which any potential Miranda issue affects his 3501 claim.

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quotation marks and citation omitted). See Schneckloth v.

Bustamonte, 412 U.S. 218, 225-27 (1973) (discussing totality-

of-circumstances approach when determining voluntariness of a

confession); see also United States v. Kimball, 25 F.3d 1, 8

(1st Cir. 1994) (finding consent voluntary where defendant

expressly agreed to accompany police to station, never

indicated an unwillingness to do so, and police did not

coerce or intimidate defendant into going with them).

Therefore, we agree with the district court that

Pilco's statement was voluntary, and thus, admissible at

trial.7

III.
III.

Sufficiency of the Evidence
Sufficiency of the Evidence

The government charged the defendants with aiding

and abetting each other in the violation of 46 U.S.C. app.

1903(a). To prove the defendants' violation of 1903(a),

the government needed to prove, beyond a reasonable doubt,

7. 18 U.S.C. 3501 does not require the suppression of
involuntary statements unless the person was "under arrest or
other detention" at the time he made the statement. 18
U.S.C. 3501(d). Because we find that Pilco voluntarily
made the incriminating statement, we need not address the
question whether he was in custody within the meaning of
3501(d). We note, however, that the consensual nature of
the boarding renders the existence of this threshold
requirement highly unlikely. Cf. United States v. Elkins,

774 F.2d 530, 535 n.3 (1st Cir. 1985) (defendants not "in
custody" during routine boarding and inspection of American
flagship even though crew was "confined to one section of the
boat during the lengthy Coast Guard inspection"); United

States v. Lopez, 709 F.2d 742, 745 n.3 (1st Cir. 1983)

(suggesting similar conclusion).

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that: (1) the BLACK CAT was "subject to the jurisdiction of

the United States"; (2) the material found on the vessel was

a controlled substance; and (3) the defendants knowingly or

intentionally possessed the controlled substance with the

intent to distribute it. 46 U.S.C. app. 1903(a). See

United States v. Piedrahita-Santiago, 931 F.2d 127, 130 (1st

Cir. 1991).

The defendants moved for judgment of acquittal,

pursuant to Fed. R. Crim. P. 29, after the conclusion of the

government's case in chief and again after the close of all

the evidence. The district court denied both motions. While

the defendants do not dispute the evidentiary sufficiency of

the government's proof of the second element, they raise

challenges regarding the first and third elements.

A. Standard of Review

We review the Rule 29 determination de novo,

resolving any evidentiary conflicts or credibility issues in

the government's favor. See United States v. Ruiz, 105 F.3d

1492, 1495 (1st Cir. 1997). If the evidence, viewed under

this lens, "permits a rational jury to find each essential

element of the crime charged beyond a reasonable doubt, then

the evidence is legally sufficient." United States v.

Olbres, 61 F.3d 967, 970 (1st Cir.), cert. denied, 116 S. Ct.

522 (1995). In this analysis, "[w]e defer, within reason, to

inferences formulated by the jury in the light of its

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collective understanding of human behavior in the

circumstances revealed by the evidence." United States v.

Passos-Paternina, 918 F.2d 979, 985 (1st Cir. 1990).

Because Pilco and Rivas presented a defense (by way

of their own testimony), they have waived review of their

initial Rule 29 motions, made after the government's case in

chief. See Ruiz, 105 F.3d at 1495 n.1. For that reason, in

reviewing their Rule 29 appeal, "we consider, in the light

most favorable to the verdict, the evidence presented in the

defense case." Id. (citing 2 Charles A. Wright, Federal

Practice and Procedure 463, at 643-45 (1982)).8

B. United States Jurisdiction Over the Vessel

The first element of a 1903 offense requires the

government to prove that the BLACK CAT was "a vessel subject

to the jurisdiction of the United States." See Passos-

Paternina, 918 F.2d at 981; Piedrahita-Santiago, 931 F.2d at

129 (stating that the jury determines the jurisdictional

question under 1903). Vessels subject to United States

jurisdiction include "a vessel registered in a foreign nation

8. It is unclear whether or not the non-testifying
defendants, Guerrero, Ospina, and Hernandez, intended Pilco's
and Rivas' testimony to constitute defense-evidence as to
them. While the non-testifying defendants' attorneys did not
participate in the examination of Pilco and Rivas (except for
a couple of objections), they also did not expressly rest
their case until after Pilco's and Rivas' testimony. Because
the evidence the government presented in its case in chief is
sufficient to convict the non-testifying defendants, we need
not resolve the issue.

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where the flag nation has consented or waived objection to

the enforcement of United States law by the United States."

1903(c)(1)(C). Section 1903 specifically provides that the

foreign nation's consent "may be obtained by radio,

telephone, or similar oral or electronic means, and may be

proved by certification of the Secretary of State or the

Secretary's designee." 1903(c)(1).9

To prove that the government of Honduras authorized

the enforcement of United States law against the BLACK CAT

and her crew, the government introduced various Department of

State documents in which Joseph A. Conroy, Jr., the Secretary

of State's designee for 1903 certifications, certified to

the events leading to the Honduran government's waiver of

objection. In pertinent part, Conroy certified that Captain

B.J. Niesen, Coast Guard Liaison Officer to the State

Department's Bureau of International Narcotics and Law

Enforcement, contacted Major John C. Sumner of the U.S.

Embassy in Honduras to request the Embassy to inform the

Honduran government of the contraband on board the BLACK CAT,

9. We analyze this case under the pre-1996 version of 46
U.S.C. app. 1903, pursuant to which the defendants were
tried and convicted. We acknowledge that the 1996 amendments
to 1903 provide that the Secretary of State's certification
"conclusively" proves a foreign nation's consent, and that
United States jurisdiction over vessels is no longer an
element of an offense, but rather, a preliminary question of
law for the trial judge. See 46 U.S.C. app. 1903(c) & (f)

(Supp. 1997). We express no opinion as to the scope,
validity or interpretation of these amendments.

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to receive confirmation of the claim of Honduran registry,

and to seek authorization for the enforcement of United

States law. Conroy certified that Major Sumner subsequently

contacted Captain Niesen and reported the following: (1) Lt.

Claudia Castilla, Assistant Director of the Honduran Maritime

Directorate, had -- "on behalf of the Government of Honduras"

-- authorized the boarding and searching of the vessel; (2)

Javier Ponce of the Honduran Merchant Marine confirmed the

BLACK CAT's Honduran registry; and (3) Ivan Flores, Head of

the Honduran Maritime Security, had -- "on behalf of the

Government of Honduras" -- authorized the United States

government to enforce United States law against the vessel,

crew and contraband.

At trial, the defendants argued against the

admissibility of these documents on hearsay grounds and

complained that the government failed to produce a document

from the Honduran government confirming that nation's

consent. The district court disagreed with the defendants'

position and admitted the documents as sufficient proof of

the jurisdictional element. On appeal, Guerrero, Rivas,

Hernandez and Ospina perfunctorily challenge circuit

precedent dispensing with the hearsay argument.

Additionally, Pilco raises a new argument, viz, that the

government failed to establish that Lt. Claudia Castilla,

Javier Ponce, and Ivan Flores had the authority of the

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Honduran government to confirm registry and consent to law

enforcement action.

We have previously found the hearsay argument

unavailing both because 1903's language reveals Congress'

explicit contemplation of the use of "what might normally be

considered 'hearsay'" to prove jurisdiction, United States v.

Romero, 32 F.3d 641, 649 (1st Cir. 1994), and because "[t]he

State Department Certification falls squarely within Fed. R.

Evid. 803(8)(A)," id. at 650. See Fed. R. Evid. 803(8)(A)

(excepting from the hearsay rule public agency statements "in

any form" setting forth "the activities of the office or

agency"); see also United States v. Mena, 863 F.2d 1522, 1531

(11th Cir. 1989) (explaining that foreign government's

expression of consent "is not hearsay at all but rather a

verbal act, similar to the utterances involved in making a

contract, to which the law attaches independent

significance"). We see no reason to alter Romero's reasoning

in this respect.

We also find unavailing the defendants' trial

contention that the government was required to procure and

introduce a written statement of no objection from the

Honduran government. While the government may prove a

foreign government's consent through a number of alternative

means, see Mena, 863 F.2d at 1531, section 1903 plainly

indicates the sufficiency of the Secretary of State's

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certification to prove that fact. See 46 U.S.C. app.

1903(c)(1) (stating that the foreign nation's consent "may

be proved by certification of the Secretary of State or the

Secretary's designee"); Romero, 32 F.3d at 649 (explaining

that 1903 "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").

We are equally unpersuaded by Pilco's attempt to

transform his trial argument into his present contention:

that the certification was inadmissible because the

government did not show the authoritative status of the

persons in Honduras who authorized United States' law-

enforcement action. Because Pilco failed to raise this

argument below, we review for "plain error" and reverse only

if an "obvious" or "clear" error exists that affects

"substantial rights." United States v. Olano, 507 U.S. 725,

734 (1993). See Fed. R. Crim. P. 52(b).

In Romero, the Colombian government refuted a claim

of Colombian registry, thus rendering the vessel "stateless"

and therefore subject to United States jurisdiction under 46

U.S.C. app. 1903(c)(1)(A). See 32 F.3d at 647-48. The

government proved the jurisdictional element through a State

Department certification, much like the one at issue here,

explaining the events leading up to Colombia's refutation of

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registry. See id. at 648. We reasoned that the statutory

scheme of permitting proof of certain jurisdictional facts

through certification meant that "the government need 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." Id. at 649. We declined to decide whether a

defendant's endeavor to prove actual registry facts would be

irrelevant under the statutory scheme, and expressly reserved

the questions whether and when a defendant may challenge "the

actions of foreign nations in situations that might warrant

determination, probably by the court, as to whether a proper

certification was being offered." Id. at 649 n.3.

In this case, Pilco seeks to question the validity

of the Honduran government's consent by requiring

clarification of the source's authority. His challenge

touches upon the preserved issue in Romero, i.e., whether and

to what extent a defendant may look behind the State

Department's certification to challenge its representations

and factual underpinnings. We have not yet had occasion to

resolve the issue, and the "plain error" standard of review

does not call upon us to correct unobvious errors. See

Johnson v. United States, 117 S. Ct. 1544, , No. 96-203,

1997 WL 235156, at *6 (U.S. May 12, 1997) (indicating that,

to be "plain," the error must be clear at least at the time

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of appellate review ). Moreover, Pilco does not raise a

colorable claim that the certification was prepared

fraudulently or in bad faith. See Romero, 32 F.3d at 649

n.3. Thus, we decline to decide whether a defendant may

contest the authority of the source of the consent or whether

Congress intended to leave that matter to the State

Department's expertise.

In the absence of error, plain or otherwise, in the

district court's admission of the Secretary of State's

certification, we find the evidence sufficient to prove the

first element of 18 U.S.C. 1903(a).

C. Knowing Participation

Rivas, Guerrero, Ospina, and Hernandez claim that

the government failed to prove the third element of a

1903(a) offense, their knowing possession of a controlled

substance with the intent to distribute it. While they do

not dispute the fact that they were hired as crew members to

assist in the BLACK CAT's shipping of cargo, they assert that

the evidence was insufficient to establish that they knew the

bales contained contraband. Absent that knowledge, they

argue, their "mere presence" aboard the BLACK CAT could not

rise to the level of aiding and abetting the drug-trafficking

offense.

To prove aiding and abetting liability under 18

U.S.C. 2, the government needed to establish that the

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defendants "'participated in the venture and sought by their

actions to make it succeed.'" United States v. Steuben, 850

F.2d 859, 864 (1st Cir. 1988) (quoting United States v.

Quejada-Zurique, 708 F.2d 857, 859 (1st Cir. 1983)). "'Mere

presence at the scene or even knowledge that the crime is

being committed is generally insufficient to establish aiding

and abetting.'" Steuben, 850 F.2d at 864 (quoting Quejada-

Zurique, 708 F.2d at 859).

The question whether the evidence sufficiently

establishes a defendants' knowledge of the presence of a

controlled substance is distinct from, although related to,

the issue of a defendant's level of participation in a drug-

trafficking venture. Thus, for example, even when the

government proves that a defendant knew that her residence

was used by a co-occupant to sell drugs, the government must

additionally prove that she participated criminally in the

venture. See United States v. Ocampo, 964 F.2d 80, 82 (1st

Cir. 1992) (involving conspiracy charge); United States v.

Hyson, 721 F.2d 856, 862-63 (1st Cir. 1983) (same). In such

cases, proof of sufficient participation in the crime, as

well as knowledge of it, is required to convict; the

defendant's "mere presence" at the scene of criminal activity

is not enough. By like token, where, as here, a defendant

actively participates in a venture, but denies any knowledge

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23

of the venture's illegal nature, the government must

adequately prove knowledge, more so than participation.

With the exception of its case against Pilco, the

government largely relied upon circumstantial evidence to

prove the defendants' knowing participation in the

transportation a controlled substance. In circumstantial

cases such as this one, the evidence is sufficient to convict

if it adequately supports "the requisite 'two-step

inference'": (1) that the vessel was engaged in obviously

illegal activity and (2) that each defendant was ready to

assist in the criminal enterprise. United States v. Jimenez-

Perez, 869 F.2d 9, 11 (1st Cir. 1989) (quoting Steuben, 850

F.2d at 867). We refrain from second-guessing the jury's

inferences and ensuing conclusions drawn from circumstantial

evidence where "the inferences derive support from a

plausible rendition of the record" and where "the conclusions

flow rationally from those inferences." United States v.

Spinney, 65 F.3d 231, 234 (1st Cir. 1995).

1. Knowledge of Controlled Substance

The defendants place great weight on the absence of

evidence that the bales emitted any odor of marijuana. They

reason that without this evidence, a jury could not

rationally infer their knowledge of the bales' contents. We

have eschewed, however, a myopic inquiry into whether "one

particular indication of knowledge (such as a smell) did, or

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24

did not, exist." United States v. Robinson, 843 F.2d 1, 8

(1st Cir. 1988). Instead, we must "look[] at the evidence as

a whole in the light most favorable to the government, and

leav[e] to the jury the power to make any reasonable set of

common sense assumptions about the working of human nature."

Id. (internal quotation marks and citations omitted). See

United States v. Molinares-Charris, 822 F.2d 1213, 1220 (1st

Cir. 1987) (finding circumstantial evidence of defendant's

active participation in illegal cargo transport sufficient to

prove knowing participation even assuming marijuana "was

hidden in scent as well as in sight").

Thus, in the absence of evidence of marijuana odor,

we turn to other factors to determine whether or not the

government sufficiently established the crew's knowledge of

the presence of a controlled substance. We have previously

looked to factors such as the closeness of the crew's

relationship, the length of the voyage, the size and

condition of the vessel, the quantity of marijuana, and the

absence of a legitimate purpose for the voyage. See

Robinson, 843 at 8-9; see also Molinares-Charris, 822 F.2d at

1219-20; United States v. Lopez, 709 F.2d 742, 747 (1st Cir.

1983). These factors, while not exhaustive, indicate that

where the circumstantial evidence permits a jury to conclude

that activities aboard a vessel concern the obvious presence

of contraband, the jury reasonably may infer the crew's

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25

knowing participation in the venture. See Molinares-Charris,

822 F.2d at 1218; Quejada-Zurique, 708 F.2d at 859-860.

In this case, although the bales of marijuana had

been packaged carefully and emitted no odor, the surrounding

facts permit a jury finding that the BLACK CAT was

conspicuously involved in the illegal transport of a

controlled substance. According to the trial evidence, the

vessel's low-profile construction signalled its plain purpose

to avoid detection. See United States v. Romero, 32 F.3d

641, 644 (1st Cir. 1994) (involving similarly constructed

vessel). The vessel had been equipped with expensive and

sophisticated radio and navigational gear that, the testimony

suggested, was generally intended to assist in long-distance

voyages and unusual for this small recreational vessel. See

id.; Passos-Paternina, 918 F.2d at 985. The

disproportionately large fuel tanks awkwardly placed on the

aft deck and the plentiful, undepleted food supply indicated

that the BLACK CAT had recently embarked on what was expected

to be a long journey.10 The use of a recreational craft to

10. The government introduced evidence that it would have
taken only twenty hours to travel from the point of
interception to Aruba, the purported destination. This
evidence suggested that the plentiful food and fuel supply
would have been unnecessary for the claimed voyage. The
evidence also established that had the vessel departed from
Panama as originally claimed, the voyage would have taken two
to three days and at least one-half of the fuel would have
been used to reach the point of interception, some 400 miles
away from the nearest Panamanian port.

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26

carry the large shipment, without commercial documentation,

beyond the normal area of operation for such a vessel further

evinced the voyage's illegitimate purpose. Cf. Robinson, 843

F.2d at 9 (involving a "'mudboat,' a vessel that normally

supplies oil rigs in the Gulf of Mexico," found near

Bermuda).

Perhaps most telling for the purposes of this case

were the numerous unlabeled bales, wrapped in a fashion

typical for controlled-substances likely to be off-loaded at

sea. The bales were so ubiquitous that they left no room to

stand or sit in the cramped cabin. Compare Piedrahita-

Santiago, 931 F.2d at 131 ("[A] relatively small vessel

carrying a large quantity of drugs is indicative of knowledge

and involvement on the part of the crew."); with Steuben, 850

F.2d at 868-69 (reversing conviction where, inter alia, the

government failed to produce evidence that defendant knew the

illegal nature of cargo concealed in barge towed behind tug).

The rough seas and the limited space to stand on deck

permitted the inference that the crew spent its time together

below, among the bales.11 Finally, the crew's emergence from

11. The proximity of the crew on board the BLACK CAT is also
indicative of the closeness of their relationship. See

Robinson, 843 F.2d at 8 (noting evidence that crew member had

spent time on captain's deck as probative of close
relationship). The evidence further suggested that the crew
may have been larger than necessary to operate the small
vessel during its stated journey. See Piedrahita-Santiago,

931 F.2d at 130 (involving seven crew members on forty-foot
vessel that "would ordinarily require a crew of only three or

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27

the cabin area with their belongings in hand upon the Coast

Guard's approach permits the inference that they knew they

had been caught in an illegal venture, and would eventually

be arrested.

Although these facts, in isolation, do not

necessarily lead to the conclusion that the crew members knew

the bales contained a controlled substance, in combination,

they constitute more than enough evidence to support a

finding of positive knowledge, or at least deliberate

ignorance,12 of that fact. See Robinson, 843 F.2d at 9; see

also United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.

1992) (explaining that "juries are not required to examine

the evidence in isolation, for 'individual pieces of

evidence, insufficient in themselves to prove a point, may in

cumulation prove it. The sum of an evidentiary presentation

may well be greater than its constituent parts.'") (quoting

Bourjaily v. United States, 483 U.S. 171, 179-80 (1987)).

four" and explaining that "[a] larger crew than ordinarily
needed for navigation purposes suggests that the crew was
hired for the purpose of loading and unloading cargo rather
than merely steering the vessel").

12. Where "'the facts suggest a conscious course of
deliberate ignorance,'" a jury is warranted in finding the
defendants' deliberate ignorance of criminal events, which is
tantamount to knowledge. United States v. Cassiere, 4 F.3d

at 1006, 1023-24 (1st Cir. 1993) (quoting United States v.

Littlefield, 840 F.2d 143, 148 n.3 (1st Cir. 1988)). The

district court instructed the jury on the deliberate
ignorance, or willful blindness, theory of knowledge. See

infra Part IV.

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28

The government's proof need not have "exclude[d] every

reasonable hypothesis of innocence," Robinson-Munoz, 961 F.2d

at 305, and the evidence permitted a reasonable inference

that unwitting bystanders would not have been hired to

participate in the BLACK CAT's obvious illegal transport of

millions of dollars' worth of contraband. See United States

v. Cuevas-Esquivel, 905 F.2d 510, 515 (1st Cir. 1990); United

States v. Luciano-Pacheco, 794 F.2d 7, 11 (1st Cir. 1986);

United States v. Guerrero-Guerrero, 776 F.2d 1071, 1076 (1st

Cir. 1985). While the jury could have found that the crew

sincerely believed that the bales contained legitimate cargo,

the evidence certainly did not compel that conclusion.

2. Participation

We now turn to the defendants' contention that

their "mere presence" aboard the BLACK CAT did not rise to

the level of aiding and abetting. For the most part, the

evidence establishing their knowledge of the illegal nature

of the cargo disposes of this issue. Additionally, the

evidence permitted the reasonable conclusion that the purpose

of each defendant's presence aboard the vessel was to assist

in the transport and handling of the illegal cargo. For

example, the large quantity of cargo made travel aboard the

vessel uncomfortable, thus belying any lawful purpose such as

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pleasure-cruising, educational experience, or adventure.13

Because the crew's presence on board the BLACK CAT evinced

more than a coincidental association with the criminal

venture, a jury could rationally infer that the circumstances

"fairly imply participatory involvement." United States v.

Echeverri, 982 F.2d 675, 678 (1st Cir. 1993) (also explaining

that the "mere presence" argument holds no water "where the

'mere' is lacking").

We find, therefore, that the evidence supported the

requisite two-step inference: (1) the BLACK CAT was engaged

in the obvious transportation of a controlled substance and

(2) each defendant was ready to participate in the venture.

See Jiminez-Perez, 869 F.2d at 11. The defendants do not

dispute that the large quantity of marijuana on board the

vessel permitted the inference of an intent to distribute the

controlled substance. See Echeverri, 982 F.2d at 678. Thus,

we conclude that the evidence was sufficient to prove that

the defendants, aiding and abetting each other, knowingly

13. Cf. United States v. Mehtala, 578 F.2d 6, 10 (1st Cir.

1978) (finding no criminal participation given the small
packages of easily concealable contraband and the absence of
evidence indicating that defendant "embarked on the voyage
for any purpose other than a pleasure cruise"); United States

v. Francomano, 554 F.2d 483, 486 (1st Cir. 1977) (reversing

convictions of crew members on same voyage involved in
Mehtala and noting that crew consisted of "young men, short

of funds, seeking travel for educational experience and
adventure").

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possessed a controlled substance, marijuana, with the intent

to distribute it.

In light of the above, we find no error in the

district court's denial of defendants' motions for acquittal.

IV.
IV.

Jury Instructions
Jury Instructions

Ospina, Hernandez, and Rivas argue that the

district court committed reversible error in instructing the

jury on reasonable doubt, deliberate ignorance, and mere

presence. Although the defendants raised their concerns both

during a formal charge conference and in writing, they did

not renew their objection after the court charged the jury.

This procedural default triggers only "plain error" review.

See United States v. Mendoza-Acevedo, 950 F.2d 1, 4 (1st Cir.

1991).

Citing United States v. Andujar, 49 F.3d 16, 23

(1st Cir. 1995), the defendants requested the district court

to include the following jury instruction when discussing

"reasonable doubt": "If you jurors, view the evidence in the

case as reasonably permitting either of two conclusions --

one of innocence, the other of guilt -- the jury should of

course adopt the conclusion of innocence." The court

rejected the proposed instruction.

In Andujar, we explained that an appellate court

must reverse a conviction on the grounds of evidentiary

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insufficiency "where an equal or nearly equal theory of

guilty and a theory of innocence is supported by the evidence

viewed in the light most favorable to the verdict." 49 F.3d

at 20 (internal quotation marks and citations omitted). In

such cases, "a reasonable jury must necessarily entertain a

reasonable doubt." Id. Our explanation of the scope of

appellate review, however, does not necessarily translate

into a proper jury instruction. The defendants' proposed

instruction comes close to making a comparison between "guilt

or innocence," which, if suggested as equal alternatives,

"'risks undercutting the government's burden by suggesting

that they should find the defendant guilty if they think he

is not innocent -- regardless of how convincing the

government's proof has been.'" Id. at 24 (quoting Mendoza-

Acevedo, 950 F.2d at 4). Given our repeated admonition

against overdefining "reasonable doubt," see id. at 23

(noting that attempts to clarify the concept may serve to

obfuscate it), we find no plain error in the court's refusal

to adopt the proposed instruction.14

14. At oral argument before us, Hernandez suggested for the
first time that the court erred in using the phrase "hesitate
to act" when discussing reasonable doubt. Despite the fact
that new issues raised at oral argument are normally deemed
waived, see United States v. De Leon Ruiz, 47 F.3d 452, 455

n.1 (1st Cir. 1995), out of an abundance of caution we have
carefully reviewed the court's charge. Although the
"hesitate to act" language is "arguably unhelpful," Gilday v.

Callahan, 59 F.3d 257, 264 (1st Cir. 1995), cert. denied, 116

S. Ct. 1269 (1996), under our reasoning set forth in Andujar,

49 F.3d at 23-24, we find no error.

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Hernandez further complains that the district

court's instruction on "deliberate ignorance," followed

immediately by its charge concerning "mere presence,"

confused the jury regarding the requirements of aiding and

abetting liability. We disagree. The court instructed the

jury that a defendant's knowledge of a particular fact may be

inferred from proof that he deliberately closed his eyes to

the obvious. The court then stated, "[y]ou have heard the

word[s] 'mere presence' in this case," and explained that

mere presence at the scene of a crime, or mere association

between the principal and those accused of aiding and

abetting, is insufficient to establish guilt. In our view,

the court's instructions adequately distinguished between the

deliberate-ignorance theory, which relates to the defendants'

knowledge of a fact, and the mere-presence theory, which

concerns the level of defendants' participation in the crime.

See United States v. Cassiere, 4 F.3d at 1006, 1023 (1st Cir.

1993). Under plain error review, we find no clear risk of

confusion.

V.
V.

Destruction of Vessel
Destruction of Vessel

The Coast Guard's act of sinking the vessel by

machine gun fire because of its concern for navigational

safety is not unprecedented. See, e.g., United States v.

Doe, 860 F.2d 488, 490 (1st Cir. 1988). Nevertheless,

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Hernandez asserts that the destruction was unnecessary and

suggests that this act amounted to a deprivation of due

process under Brady v. Maryland, 373 U.S. 83, 87 (1963), and

Arizona v. Youngblood, 488 U.S. 51, 57 (1988). Hernandez'

failure to explain the potential materiality or usefulness of

the vessel to his defense, and his concession that no

evidence demonstrates bad faith in connection with the

vessel's destruction, render his argument specious. See

Youngblood, 488 U.S. at 58; United States v. Gallant, 25 F.3d

36, 39 (1st Cir. 1994); cf. United States v. Alston, No. 96-

1779, slip op. at 8-10 (1st Cir. May 5, 1997) (finding no due

process violation where government "deliberately alter[ed]

evidence that, in its original form, might have helped to

exculpate [defendant]," but where defendant did not

demonstrate that such action significantly impaired his

defense).

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VI.
VI.

Sentencing Issues
Sentencing Issues

Rivas and Ospina contend that the district court

erred in calculating their sentences. Because they failed to

raise their arguments below, we review for "plain error."

See United States v. Peppe, 80 F.3d 19, 22 (1st Cir. 1996).

We discuss each defendant in turn.

A. Rivas

At sentencing, the district court increased Rivas'

base offense level upon finding that he acted as "pilot"

aboard the BLACK CAT. See U.S. Sentencing Guidelines Manual

2D1.1(b)(2)(B) (requiring a two-level increase if "the

defendant acted as a pilot, copilot, captain, navigator,

flight officer, or any other operation officer aboard any

craft or vessel carrying a controlled substance"). Rivas

asserts that the guideline only applies to offense

participants in a position of authority or command. He

reasons that the guideline should not apply to him because he

did not possess special navigational rank or skills and

merely steered the vessel upon the master's instruction.15

15. The district court adopted the factual findings set
forth in Rivas' Presentence Investigation Report, which,
though not made a part of the appellate record, presumably
sets forth the facts leading to the "pilot" finding. Rivas
did not object to any portion of the report during his
sentencing hearing and does not dispute that he steered the
vessel.
We further note that at trial, over which the
sentencing judge presided, Rivas testified that he had been

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The sentencing guideline does not define the word

"pilot," and our research has not revealed any caselaw to

inform our inquiry. Nevertheless, the common dictionary

definition of "pilot" includes a person hired to steer a

vessel. See, e.g., Webster's Third New International

Dictionary of the English Language 1716 (1986) (defining

"pilot," inter alia, as "one employed to steer a ship:

helmsman"). While the act of steering a forty-foot vessel on

the high seas may or may not involve a skill obtained through

extensive maritime training, we cannot say that the district

court committed plain error in finding that Rivas "acted as a

pilot" aboard the boat within the meaning of U.S.S.G.

2D1.1(b)(2)(B). Furthermore, we disagree with Rivas'

contention that the guideline applies only to those with

special command in a criminal enterprise. While the

guideline may speak to a defendant's control over some

mechanical aspect of a vessel's operation, it does not

address the defendant's authority over other individuals

involved in a criminal venture. Cf. U.S.S.G. 3B1.1

hired by a man looking for "any seaman who was available to
navigate." When the ship set sail, he complied with Pilco's
instruction to "take care of the helm," which Rivas manned
for a four hour shift. Furthermore, when asked whether
commercial cargo is usually labeled so that those handling
the cargo are aware if its contents, Rivas replied, "No,
because that was not my job. . . . I was told I was in charge

of the helm, which was my profession." (emphasis added).

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36

(providing enhancements for a defendant's role as "organizer,

manager, or supervisor").16

B. Ospina

Ospina belatedly argues that the district court

incorrectly calculated his incarcerative sentence based on an

enhanced statutory maximum of thirty years, rather than

twenty years, under the Career Offender Guideline. See

U.S.S.G. 4B1.1. Ospina's argument fails both because the

statutory maximum term for his offense remained fixed at life

imprisonment without any enhancement, see 21 U.S.C.

960(b)(1)(G), and because, in any event, the Supreme Court

has reversed his cited authority, see United States v.

LaBonte, No. 95-1726, 1997 WL 273644, at *3 (U.S. May 27,

1997) (reversing United States v. LaBonte, 70 F.3d 1396 (1st

Cir. 1995)).

VII.
VII.

Conclusion
Conclusion

For the foregoing reasons, the judgment of the

district court is affirmed.
affirmed

16. We note that the government chose not to seek an
offense-level increase on the alternative basis of "use of
special skill." U.S.S.G. 3B1.3. The commentary to 2D1.1
specifies that 3B1.3 is inapplicable if the sentencing
court, as here, assesses an enhancement under
2D1.1(b)(2)(B).

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37