
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                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-
