

                      [NOT FOR PUBLICATION]

                  United States Court of Appeals
                      For the First Circuit
                                           

No. 96-1661

                          UNITED STATES,

                            Appellee,

                                v.

                 JUAN R. CASTILLO-DE LOS SANTOS,

                      Defendant - Appellant.

                                           

No. 97-1277

                          UNITED STATES,

                            Appellee,

                                v.

                      MARCOS COPLIN-BRATINI,

                      Defendant - Appellant.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Daniel R. Dom nguez, U.S. District Judge]                                                                 

                                           

                              Before

                      Selya, Circuit Judge,                                                    

              John R. Gibson,* Senior Circuit Judge,                                                             

                    and Lynch, Circuit Judge.                                                      

                                           

     Edgardo  Rodr guez-Quilichini,   Assistant  Federal   Public                                            
Defender, with  whom Lucien  B. Campbell,  Acting Federal  Public                                                  
                                                  

*  Of the Eighth Circuit, sitting by designation.

Defender,  and  Miguel  A.A. Nogueras-Castro,  Assistant  Federal                                                      
Public  Defender, were  on brief  for  appellant Castillo-de  los
Santos.
     Carlos  P rez-Olivo,  by  appointment  of  the  Court,   for                                  
appellant Coplin-Bratini.
     Jacabed  Rodr guez-Coss, Assistant  United States  Attorney,                                      
with  whom Guillermo Gil,  United States  Attorney, and  Jorge E.                                                                           
Vega-Pacheco, Assistant United  States Attorney, Chief,  Criminal                      
Division, were on brief for appellee.

                                           

                        December 16, 1997
                                           

                               -2-

          JOHN   R.  GIBSON,  Senior  Circuit  Judge.    Juan  R.                    JOHN   R.  GIBSON,  Senior  Circuit  Judge.                                                              

Castillo-de  los Santos  and Marcos  Coplin-Bratini appeal  their

convictions for  importing 24.5  kilograms of  cocaine discovered

inside a ballast tank in their vessel, the Miss Gina.   They were                                                              

convicted  on three  counts: possessing  cocaine  with intent  to

distribute, 21 U.S.C.   841(a)(1)(1994) and 18 U.S.C.   2 (1994);

importing cocaine,  21 U.S.C.    952(a)(1994) and 18 U.S.C.    2;

and possessing cocaine  on board a vessel arriving  in the United

States without the cocaine having  been part of the cargo entered

in the manifest  or part of the official supplies  of the vessel,

21 U.S.C.   955 (1994) and 18 U.S.C.   2.  Each argues that there

was insufficient  evidence to  convict him,  and Castillo-de  los

Santos argues that the court  erred in admitting evidence that he

failed to file income tax returns.  We affirm the convictions.

          The Miss Gina  arrived in Puerto Rico with  no cargo on                                 

September  11, 1995, after departing from the Dominican Republic.

The Miss Gina was a small, old commercial vessel owned by the two                       

appellants.1   Castillo-de los  Santos identified himself  as the

captain  of  the  vessel.   The  United  States  Customs  Service

conducted an initial search of  the vessel, and during the search

a trained dog alerted to a black bag belonging to Castillo-de los

Santos.   The  dog's reaction  indicated  that the  bag had  once

contained narcotics, but  at the time of the  customs search, the

                                                  

1  Originally  a third partner had  owned a part interest  in the
vessel;  he relinquished  ownership before  the  events at  issue
here.  

                               -3-

bag  was full  of anabolic  steroids.   The search  revealed more

steroids, which the Customs Service seized. 

          The Customs Inspector  left the ship, but  returned and

informed Castillo-de los Santos that he had to wait for a Customs

Agent  to arrive.    By  this time,  Castillo-de  los Santos  was

preparing to pull the vessel out of the dock.  He became agitated

and  had  to be  ordered  repeatedly  to  turn off  his  engines.

Coplin-  Bratini was also  on board the  vessel.   He also became

agitated and said that he had to  leave the vessel because he had

ulcers.  The  Customs Agent arrived and  arrested Castillo-de los

Santos for possession and importation of steroids. 

          On  September 14, 1995,  the Customs officials returned

and searched the vessel again.  This time the inspectors searched

the cargo hold.  They noticed  that some of the metal hatches  of

the water tanks in the hold had been painted so recently that the

paint was not  yet dry.   Also, the nuts  and bolts of the  hatch

were loose.   In contrast, another hatch in the same area was not

painted, and  the nuts  were rusty, showing  that they  had never

been removed.  The inspectors looked inside one of the tanks with

the newly painted hatch  and found two metal boxes  floating in a

diesel oil  layer above the  water inside  the tank.2   The boxes

contained 24.75 kilograms of cocaine.

          At trial the government  showed that the Miss Gina  had                                                                      

only  conducted  seven  trips  during  the  two  years  that  the
                                                  

2  The government argued in closing  that the layer of diesel oil
was meant to mask the smell of the drugs, so that the drugs would
not be detected by drug-sniffing dogs.

                               -4-

appellants owned  it, and  that on each  trip the  vessel carried

cargo  to the  Dominican  Republic, but  returned to  Puerto Rico

empty.   The vessel's marine  agent testified that it  was common

for commercial vessels to carry cargo from the Dominican Republic

to "the  islands"; after delivering  their cargo to  the islands,

such vessels would arrive at Puerto Rico empty, ready to pick  up

a new cargo.   However, the Miss  Gina had not carried  any cargo                                                

from the Dominican Republic.  

          Castillo-de  los  Santos,   Coplin-Bratini,  and  their

partner  had  bought the  vessel  for  $45,000.   The  government

introduced testimony and  financial records of the  ship's agent,

which it summarized as showing  that during the two years  of the

appellants'  ownership,  the  Miss  Gina  had  expenses exceeding                                                  

$75,000, but grossed less than  $35,000.  The ship's marine agent

testified that during those  two years, the ship  had accumulated

more than  $25,000 in bills to the agent,  and that the bills had

been paid in cash on every occasion but one, in denominations  of

twenties, tens, fives, and ones.

          The  government also  introduced Coplin-Bratini's  last

five tax  returns, which apparently  showed an average  income of

$15,000.   Castillo-de los Santos  had not filed any  tax returns

with the Puerto Rico Treasury Department. 

          The wholesale value of the cocaine seized from the Miss                                                                           

Gina was $15,500 per kilogram, or a total of $379,750.  The value              

of  the cocaine  once cut  and  prepared for  retail distribution

would have been $4.9 million.

                               -5-

          Coplin-Bratini  testified.   On cross-examination,  the

government showed  that he spent  more money than he  reported as

income in his  income tax returns and  that he had assets  out of

proportion to his reported income level.

          Castillo-de los  Santos  also testified.   He  admitted

that, before the  trip,  he checked  the water tanks to  see that

they  were  working. He  said he  did  not know  who  painted the

hatches and suggested that they were not painted when he left the

Dominican  Republic,  but  perhaps were  painted  by  the sailors

without his knowledge during the twenty-four hour voyage from the

Dominican Republic to Puerto Rico.  

          The  jury  found both  men  guilty.    They  were  both

sentenced to 188 months imprisonment  on each count, to be served

concurrently, five years  supervised release, and a  $50 monetary

assessment on each count.

                                I.

          Both  appellants contend  that  there was  insufficient

evidence to convict  them, specifically, that the  government did

not prove they knew of the cocaine's presence on the vessel.

          We must uphold  the convictions if the  evidence, taken

in the  light most  favorable to the  government, is  adequate to

permit  a rational  jury to  find each  essential element  of the

offenses beyond a reasonable doubt.   See United States v. Valle,                                                                          

72 F.3d 210, 216 (1st Cir. 1995).  All credibility determinations

must  be resolved in the prosecution's favor, and among competing

inferences,  we  must  draw  the inference  that  best  fits  the

                               -6-

prosecution's theory of guilt.   Id. at 216-17.  The  evidence of                                              

knowledge in this case is circumstantial.  However,

            [I]n the  context of  review of  a motion
            for  acquittal,   no  legal   distinction
            exists between circumstantial  and direct
            evidence.        Furthermore,    it    is
            unquestioned  that  direct  evidence need
            not  be  presented.   Judicial  authority
            teaches  that  the   government  can  use
            circumstantial  evidence as  long as  the
            evidence,   viewed   as   a   whole,   is
            sufficient to  warrant a  reasonable jury
            to conclude that the defendant is  guilty
            beyond a reasonable doubt.

United  States v.  Doe,  921  F.2d 340,  343-44  (1st Cir.  1990)                                

(internal quotations and citations omitted).

          The circumstantial evidence that Castillo-de los Santos

and Coplin-Bratini knew that the cocaine was in the water tank is

not  overwhelming.  Cf. United States v. Piedrahita-Santiago, 931                                                                      

F.2d 127,  130-31 (1st  Cir. 1991) (large  cargo of  marijuana on

small  boat, vessel  in  poor repair  and responded  evasively to

attempts to contact  it); United States v.  Passos-Paternina, 918                                                                      

F.2d 979, 984-86  (1st Cir. 1990) (bizarre behavior  of vessel in

storm, avoiding  Coast Guard, evidence that crew had just removed

plates behind which  drugs hidden, no valid  registration, etc.),

cert. denied, 499  U.S. 982 (1991); United States  v. Corpus, 882                                                                      

F.2d  546, 549-50  (1st Cir.)  (as  Coast Guard  sought to  board

tugboat,  bales  of  marijuana suddenly  appeared  in  the water,

tugboat lacked sufficient equipment on board to tow, etc.), cert.                                                                           

denied, 493 U.S. 958 (1989).  However, giving the prosecution the                

benefit  of all  reasonable  inferences,  we  conclude  that  the

evidence is sufficient.

                               -7-

          First, Castillo-de  los Santos and  Coplin-Bratini were

the owners  of the vessel  and were on  board the vessel  when it

arrived in Puerto Rico, with eight men on board.  Castillo-de los

Santos was the  captain.  The hatches  to the tanks in  which the

cocaine was hidden  had been recently painted, so  that the paint

was still sticky.  Castillo-de los Santos admitted he had checked

the water tanks before leaving.  Coplin-Bratini also said that he

had been down in the cargo hold the day  before the ship left the

Dominican Republic.   The  senior  special agent  of the  Customs

Service  stated that  in his  experience investigating  smuggling

cases, given such a large  load of cocaine, somebody with control

over the ship would have to have  knowledge that it was on board.

The captain would have control of the ship, and in this  case the

captain and also the co-owner of  the vessel were on board.   The

vessel  left  the  Dominican Republic  empty,  which  supports an

inference that  there was no  commercial reason for the  trip and

therefore the  captain and  owner must have  known of  an illicit

purpose.   See  Corpus, 882  F.2d at  550.   Moreover,  the drug-                                

sniffing dog alerted to a  bag claimed by Castillo-de los Santos,

indicating that the bag had earlier contained narcotics.

          The  value  of  the cocaine  on  board,  about $400,000

wholesale  or $4.9  million  retail,  supports  an  inference  of

knowledge, since we have before  observed that it is unlikely the

owner of a valuable  cargo would stow it in a  vessel without the

knowledge of  the vessel's  captain.   See Passos-Paternina,  918                                                                     

F.2d at  985.  The  partnership relation between  Castillo-de los

                               -8-

Santos  and Coplin-Bratini supports an inference that they shared

knowledge about the use being made of their jointly owned vessel.

See United States v. Guerrero, 114 F.3d 332, 342 (1st Cir. 1997),                                       

cert.  denied, 118  S. Ct.  320 (1997);  Corpus, 882 F.2d  at 550                                                         

(knowledge established by circumstantial indicia, including close

relationship of  crew); United States  v. Guerrero-Guerrero,  776                                                                     

F.2d  1071, 1077  (1st Cir.  1985), cert.  denied, 475  U.S. 1029                                                           

(1986).

          Finally,  the financial  evidence that  the vessel  had

been operated at  a loss since the appellants had  owned it could

support the  inference that they  had intended to use  the vessel

for smuggling.   They paid substantial  expenses to their  marine

agent  in  cash   --  not  only  in  cash,  but   in  very  small

denominations.   The government's expert on drug smuggling stated

that   drug  transactions   were  usually   conducted   in  cash,

specifically in small denominations.  See United States v. Ariza-                                                                           

Ibarra, 605 F.2d 1216, 1225 (1st Cir. 1979).  There was  evidence                

that  Coplin-Bratini's  living expenses  exceeded  the  amount of

income he reported in his income tax returns  and that his assets

were greater  than what his  reported income would warrant.   The

financial evidence  supports an  inference that he had a practice

of supplementing his legal income with illegal income.

          These facts,  taken together,  would permit  a jury  to

find the essential element of knowledge  of the cocaine.  We must

uphold the jury's verdict. 

                               -9-

                               II.

          Castillo-de los Santos  argues that the court  erred in

admitting evidence  that he  had not filed  tax returns  for five

years.   The  purpose of  this evidence,  as in United  States v.                                                                        

Figueroa, 976 F.2d 1446, 1454  (1st Cir. 1992), cert. denied, 507                                                                      

U.S. 943 (1993), was  to show that he had greater  income than he

was reporting to  the government, and to suggest  that his income

was therefore  derived from an  illegal source that he  dared not

report.

          Castillo-de los  Santos argues that the  government did

not show that he was obliged to report the income, because he had

lived  in the  Dominican  Republic  since 1989  and  had no  such

obligation.   He did not  make this argument before  the evidence

was admitted.   His counsel objected to the use of the income tax

information, but he did not suggest to the court that Castillo-de

los Santos  was not required to file a  return.  His counsel said

only, "[H]e's  a very  humble man who,  like many  people in  our

country,  for whatever reason, he did not  file income tax."  Not

until after  the evidence had  been admitted did  Castillo-de los

Santos's lawyer  attempt to establish  on cross-examination  that

Castillo-de los Santos  did not live in Puerto Rico.   Even then,

the   agent  being   cross-examined  steadfastly   repeated  that

Castillo-de los Santos  had said he lived in Puerto Rico.  At the

time the evidence  was admitted, Castillo-de  los Santos did  not

inform  the  court  of  the  factual  predicate  of  his  present

argument.     We  cannot  require   the  district  court   to  be

                               -10-

clairvoyant.  Because Castillo-de los Santos did not preserve the

objection he  now urges,  we review  only for  plain error.   See                                                                           

Figueroa, 976 F.2d at 1453.  There is no plain error here.                   

          Castillo-de los Santos also contends  that the evidence

suggested to the  jury that he was guilty of another crime -- tax

evasion.  He preserved this objection, so we review the admission

of the  evidence for abuse of discretion.  See  id. at 1454.  The                                                             

court in this  case instructed the jury that  the appellants were

not  charged with income tax violations and that the jury was not

to consider the evidence as showing "a potential problem with his

local  tax returns."   See id. (cautionary  instruction minimized                                       

danger  of prejudice).  This instruction adequately channeled the

jury's use of the evidence  and forestalled any prejudice.  There

was no abuse of discretion. 

          We affirm the convictions.                             

                               -11-
