
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-2187                                    UNITED STATES,                                      Appellee,                                          v.                                    FREDDY ROMERO,                                Defendant - Appellant.                                 ____________________          No. 93-2188                                    UNITED STATES,                                      Appellee,                                          v.                                   ARMANDO TEJEDOR,                                Defendant - Appellant.                                 ____________________          No. 93-2189                                    UNITED STATES,                                      Appellee,                                          v.                                   GABRIEL CURVELO,                                Defendant - Appellant.                                 ____________________          No. 93-2190                                    UNITED STATES,                                      Appellee,                                          v.                                ORANIE GALINDO-FORBES,                                Defendant - Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jos  Antonio Fust , U.S. District Judge]                                              ___________________                                 ____________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                _____________________               Jorge L. Arroyo, by Appointment  of the Court, for appellant               _______________          Freddy Romero.               Jos   A.  Le n-Landrau, by  Appointment  of  the Court,  for               ______________________          appellant Armando Tejedor.               Carlos   A.   V zquez-Alvarez,   Assistant  Federal   Public               _____________________________          Defender,   with  whom  Benicio  S nchez-Rivera,  Federal  Public                                  _______________________          Defender, was on brief for appellant Gabriel Curvelo.               Luis  A. Medina-Torres,  by  Appointment of  the Court,  for               ______________________          appellant Oranie Galindo-Forbes.               Richard A.  Friedman, Attorney, Appellate  Section, Criminal               ____________________          Division, U.S.  Department of  Justice, with whom  Guillermo Gil,                                                             _____________          United States Attorney, Rosa E. Rodr guez-V lez, Assistant United                                  _______________________          States Attorney,  and Antonio  R. Baz n, Assistant  United States                                _________________          Attorney, were on brief for appellee.                                 ____________________                                   August 29, 1994                                 ____________________                                         -2-                    TORRUELLA, Circuit  Judge.   In this  case, defendants-                               ______________          appellants Freddy  Romero, Gabriel Curvelo, Armando  Tejedor, and          Oranie Galindo Forbes  appeal their  convictions for  possessing,          while aboard a vessel  subject to the jurisdiction of  the United          States,  cocaine intended  for  distribution in  violation of  46          U.S.C. App.    1903(a).  The defendants challenge the sufficiency          of  the  evidence  and   the  trial  court's  jury  instructions.          Defendant Romero challenges his sentence.  We affirm.                                    I.  BACKGROUND                                    I.  BACKGROUND                                        __________                    On  the  morning  of  March  29,  1993,  a  U.S.   Navy          surveillance  aircraft,  a  P3   Orion  (the  "P3"),  on  routine          narcotics-interdiction  patrol, received  a  signal on  its radar          indicating the presence of a vessel in international waters south          of the Dominican Republic.  The radar indicated that the area was          free  of  other surface  vessels  within  a hundred-mile  radius.          Crewmen aboard the aircraft subsequently spotted the boat through          observer windows from  a distance  of five miles.   Two  crewmen,          pilot Jody Bridges and aft observer William Pikul, recognized the          boat  as a  low-profile  vessel  of  the  type  used  to  smuggle          narcotics.                    The  P3 circled  and proceeded  to make  several passes          over the boat, which,  at that point, abruptly turned  around and          accelerated in  the  opposite direction.   During  one pass,  the          crewmen observed  two people on  the vessel's deck  tossing bales          overboard.  Subsequently, small arms tracer rounds came streaming          toward the plane.   Throughout this time, the boat  was moving at          high speed in an evasive, zig-zag course.  The aircraft continued                                         -3-          to  trail the vessel until, six hours  later, the boat ran out of          fuel and three of its crew were observed attempting to rig a blue          canvas tarp to act as a sail.                    Throughout  the surveillance, the  crew of the aircraft          maintained the boat in sight through binoculars.  The P3 also had          sophisticated  surveillance equipment  and cameras, and  over 200          pictures were  taken showing the boat and the bales in the water.          None  of the photographs showed bales on the boat, individuals on          the boat,  or bales being thrown overboard.   The P3 also dropped          special buoys to mark the location  of the bales after they  were          thrown overboard.                    While  the occupants  of  the boat  were rigging  their          sail, a helicopter from  the USS TAYLOR, a Navy  frigate, arrived          and kept  the  boat under  surveillance until  the TAYLOR  itself          reached the boat at dusk.  The law-enforcement officer aboard the          TAYLOR, Coast Guard Lieutenant Francisco Alterie, hailed the boat          by  megaphone and asked  for its nationality  because no national          identification  was evident.   Defendant Forbes, who subsequently          appeared  to be  in  charge,  told  Alterie  that  the  boat  was          Colombian.                    Alterie requested by radio  that his superiors obtain a          "statement of no objection," which is a statement from the United          States State Department indicating  that the country of registry,          in this  case Colombia, granted American  officials permission to          enforce United States laws  aboard that vessel.   After obtaining          permission from Colombian officials to board the defendants' boat          for  purposes  of   determining  the  vessel's   nationality  and                                         -4-          conducting a  basic inspection,  the State  Department authorized          Alterie to board the defendants' vessel.                    Once on board, Alterie and his boarding party found, in          addition  to the  four  defendants  themselves,  state-of-the-art          radar  and communications  equipment,  ropes crossing  the  cargo          area, and a strong  smell of gasoline and other  indications that          the  cargo area had been washed down  with gasoline.  No drugs or          other contraband were  found on  the boat or  on the  defendants.          The boat did not have  any identification or registration papers.          Upon  being  advised  of  this  fact,  the  Colombian  government          "refuted the claim of Colombian registry" for the vessel.                    Meanwhile,  twenty-one bales  were  recovered from  the          Caribbean during the  afternoon of  March 30 by  the Coast  Guard          Cutter ATTU,  approximately 15  nautical miles from  the location          where  the P3  first spotted  the defendants' vessel  27-28 hours          earlier.   The bales contained numerous  two-kilogram packages of          cocaine.  The Coast Guard  had notified the ATTU of the  bales on          the  previous afternoon (March 29)  and the ATTU  had reached the          general  location of  the drop and  the buoys  left by  the P3 at          approximately  midnight.  The ATTU  was unable to  find the bales          during the night, but it did find them the next day after a Coast          Guard patrol aircraft located them 15 miles away.                    After  retrieving  the  bales   of  cocaine,  the  ATTU          rendezvoused with, and then  relieved, the TAYLOR at the  site of          the  defendants'  vessel.   On  March  31,  the State  Department          authorized defendants' arrest.  Coast Guard officials on the ATTU          then arrested the defendants  and brought them and their  boat to                                         -5-          the  port  of Mayaguez,  Puerto Rico.    Officials with  a mobile          laboratory conducted tests to determine  if drugs were present on          the defendants and on the boat at that time.  Both the defendants          and their vessel tested positive for traces of cocaine.                                    II.  ANALYSISA.    Sufficiency  of  the                                    II.  ANALYSISA.    Sufficiency  of  the                                         ________          Evidence          Evidence                    The  defendants  challenge   the  sufficiency  of   the          evidence supporting their convictions.  In particular, they claim          the government  did not  establish that  they ever  possessed the          cocaine  that the Coast Guard  recovered from the  ocean and that          the government later submitted as evidence at  trial.  One of the          elements of  an offense under 46  U.S.C. App.   1903  is that the          defendants  knowingly or  intentionally  possessed  a  controlled          substance.   United States v. Piedrahita-Santiago,  931 F.2d 127,                       _____________    ___________________          130 (1st Cir. 1991).                    In  reviewing whether  the  evidence  is sufficient  to          establish  that the defendants possessed the bales of cocaine, we          must  consider all  the  evidence  in  the  record  as  a  whole,          including all reasonable inferences  therefrom, in the light most          favorable to the verdict, with a view to whether a rational trier          of  fact  could have  found the  element  of possession  beyond a          reasonable doubt.   United States  v. O'Brien, 14  F.3d 703,  706                              _____________     _______          (1st Cir. 1994); United States v. Matiz, 14 F.3d 79, 82 (1st Cir.                           _____________    _____          1994); United States v.  Sep lveda, 15 F.3d 1161, 1173  (1st Cir.                 _____________     _________          1993).   We must  also  defer to  the jury  with  respect to  all          credibility determinations.  O'Brien, 14 F.3d at 706.                                        _______                    The government's evidence  of possession was  ample, as                                         -6-          it supported a reasonable inference that the bales observed being          thrown overboard from defendants' boat  were the same bales later          recovered by the Coast Guard from the water in the vicinity where          the boat had been seen.  Crewmen from the P3  testified that they          saw people  aboard  the defendants'  boat  throw bales  from  the          vessel overboard  into the water.   Crewman Pikul  testified that          the bales  presented in evidence at  trial were the  same ones he          witnessed being tossed overboard.  Photographs from the P3 showed          the same  bales in the water that  were present in the courtroom.          Both  Pikul and  the  P3's  pilot,  Bridges, testified  that  the          defendants' boat tried  to evade the P3  and even fired upon  the          surveillance  aircraft.  Both also testified that the boat was of          the type commonly used for drug smuggling.                    Lieutenant Alterie and his  boarding party found  lines          crossing  the  cargo area  of  defendants'  boat indicating  that          something had  been tied there.   They also found that  the cargo          area  of the defendants' boat had been washed down with gasoline,          a  tactic  which several  government  witnesses  explained was  a          common technique among narcotics smugglers to eradicate traces of          contraband substances.   Thomas  Friend, a Navy  helicopter pilot          and search  and  rescue  officer,  testified that  the  bales  of          cocaine were found the following day within a predictable area of          where one would expect them to be had they come from  defendants'          boat.  Friend  based this  conclusion on a  consideration of  the          wind  conditions, water currents, and elapsed time.  The radar on          the  P3 and on the TAYLOR's helicopter showed that no other boats          were within a 100-mile radius of defendants' boat.  This evidence                                         -7-          was sufficient,  even without any consideration of  the fact that          defendants and their boat tested  positive for cocaine after they          were  brought  to  the  port  of  Mayaguez,  to   establish  that          defendants knowingly possessed cocaine  in violation of 46 U.S.C.            1903.                    Defendants  argue that  (1) the eyewitness  accounts of          the P3's crewmen that defendants threw the bales overboard should          not  be credited because the aircraft failed to take any pictures          of   the  event,   and  because   the  P3's   principal  observer          misidentified the color of the recovered bales; (2) the testimony          concerning the likelihood that the bales recovered from the ocean          came  from  defendants'  boat  in  light  of  ocean  and  weather          conditions was  inherently unreliable; and (3)  the tests showing          traces  of  cocaine  on  the  defendants  and   their  boat  were          inaccurate due  to unreliable  equipment and  careless procedures          allowing for contamination of the test subjects.                    Defendants'  first  claim is  that  no  reasonable jury          could credit the  testimony of  the P3 crewmen  because the  very          sophisticated photographic equipment  in the P3  did not yield  a          single  photograph of  individuals on  the vessel,  bales on  the          vessel, bales being thrown from the vessel, or bales in the water          next to the  vessel.  Defendants  point out that  the P3 had  the          defendants'  vessel  under  continuous  surveillance  during  the          alleged  dumping,  that the  P3 was  prepared  to, and  did, take          photographs  throughout its encounter  with defendants' boat, and          that  one of the P3's cameras produced instant still photos which          allowed the crewmen to make  adjustments in the photography while                                         -8-          they  were  taking  the   pictures.    These  facts  conclusively          establish, defendants  conclude, that the eyewitness  accounts of          the bales on defendants' vessel are not credible.                    We  need recount  only a  few of  the  many potentially          reasonable  inferences that a  jury could  make in  crediting the          government's eyewitness testimony  in the absence  of photographs          directly linking the  bales of  cocaine to the  defendants.   The          jury  could reasonably infer  that the photographer  (who did not          testify at trial) simply missed  the opportunity to take pictures          at  the crucial time when  the bales were  being thrown overboard          because of the position  of the aircraft (which made a  number of          "passes"  over the boat) or because of the position and readiness          of the camera equipment.  The jury could also rationally conclude          that  the photographer failed  to take the  "missing" pictures by          mistake, perhaps because he  did not use the equipment  properly,          had poor aim,  or because  he improperly developed  the film  and          ruined the crucial photographs.  Pikul and Bridges testified that          one of  the two cameras on  the P3, a  special high-speed camera,          was  broken and that none of its  photographs came out.  It would          be perfectly rational  for a  jury to conclude  that this  broken          camera was the camera  used for the crucial photographs  and that          the second camera, the one whose pictures were used at trial, was          only used before and after the bales were dumped in the water.                    The defendants next  claim that Pikul's testimony  that          the  bales in the courtroom were the  same bales that he had seen          earlier  on defendants' boat  cannot be credited  by a reasonable          jury  because Pikul said in  an earlier statement  that the bales                                         -9-          were "yellow" when in  fact the bales  were closer to a  brownish          color.   At  trial, Pikul  described the  bales as  a "yellowish-          brown" in order to  mask, defendants' allege, the "contradiction"          between the earlier  statement and the appearance of the evidence          in court.                    Credibility determinations are firmly within the jury's          realm, O'Brien,  14 F.3d  at 706.   We will  not secondguess  the                 _______          jury's   decision  to   credit   testimony   which  contains   an          inconsistency, especially in a situation  like this one where the          inconsistency or  "contradiction" is  ambiguous.  It  would usurp          the jury's role to reject its decision to believe or disbelieve a          witness because of such inconsistencies.                     Defendants next  attempt  to  poke  holes  in  Friend's          testimony that  if  the bales  were dumped  from the  defendants'          vessel, they should have  been found in the area  where they were          actually  located,  28 hours  later.   Defendants claim  that, at          trial, Friend  was initially  unable to provide  and explain  the          formula used by the Navy and  the Coast Guard in their search for          the bales, which  was determined  prior to the  launching of  the          search.   After  a  lunch recess  at  trial, Friend  returned  to          explain  the  formula  and   carried  out  a  sample  calculation          demonstrating the area of probability where the bales were found.          Defendants  maintain that Friend  was unable  to explain  how the          number  28, representing  the number  of hours  that it  took the          combined Navy and Coast Guard  task force to locate the bales  in          the  water  upon their  having  been  allegedly  dumped from  the          suspect vessel, could  have been factored into  the formula prior                                                                      _____                                         -10-          to the search.   The defendants emphasize that that  number could          not have been  available to the searchers  before they calculated          where to attempt to locate the bales.                    Defendants  further  point  out  that  the  defendants'          vessel  was under constant  surveillance in  the area  during and          after the purported dumping and that the bale area  was marked by          buoys.    If  the bales  were  indeed  dumped  from that  vessel,          defendants  argue, it should not  have taken that  many ships and          aircraft  28 hours  to find them.   This,  of course,  although a          valid argument, is  properly made to the  jury rather than  to an          appellate court.                    None   of   defendants'   objections  raise   colorable          challenges  to the  sufficiency of  the evidence.    Despite some          confusion surrounding Friend's rather technical testimony, it was          relatively clear from our reading of the transcript that Friend's          calculations represented an  after-the-fact demonstration of  (1)          how search patterns are  calculated in general and (2)  where the          bales in this case should  have been found had the  defendants in          fact  dumped them.  Friend  stated several times  that the actual          search was  done by feeding  certain information into  a computer          which then calculated where to search.  Friend testified that the          computer kept  track of  elapsed time  during the actual  search.          The  jury could conclude from  this that the  search was properly          conducted  at  the time  and that  the  bales did  originate from          defendants' boat.                    As  for the  28 hours  it took the  Navy and  the Coast          Guard to find  the bales, we cannot tell from  the record if this                                         -11-          is  a suspiciously delayed period  of time or  a relatively quick          period  of time  to find  some bales  floating in  the ocean.   A          reasonable jury,  however, could  rationally have found  that the          bales were recovered relatively quickly and recovered right where          one  would expect  them  to  be, had  the  bales  drifted in  the          Caribbean for a day after the defendants threw them overboard.                    Finally, defendants assert that  the two types of tests          used  for detecting cocaine on the defendants and their boat, the          Barringer  Ion  Scan  and  the Sentor  Gas  Chromatography,  were          inherently unreliable.   This  assertion  is based  on the  claim          that, although  the testing technology  has been used  for years,          the  mobile, in-the-field  testing instruments  used for  the two          tests in Mayaguez  were relatively recent  creations and had  not          yet been proven to be reliable.  Defendants also claim that Coast          Guard officials  took no  prophylactic measures to  prevent post-          arrest contamination of  the defendants and  their boat from  the          cocaine bales,  which the  Coast Guard transported  together with          the   defendants,   and   from   other   potential   sources   of          contamination.                    Defendants  do not  challenge the admissibility  of the          testing evidence.  Rather, they maintain the testing  evidence is          too  unreliable  to  support  a  jury  verdict.    We  find  that          defendants  do  raise  some  legitimate  concerns  regarding  the          government's  testing  procedures.   However,  because  there was          sufficient evidence to convict  without consideration of the test          results, we need not decide how reliable the test results were in          this particular case.  As we  stated above, the other evidence of                                         -12-          possession, linking the bales of cocaine to defendants' boat, was          ample.    We  therefore   reject  defendants'  challenge  to  the          sufficiency  of  the  evidence.    Had  the  defendants raised  a          challenge to the  admissibility of the  evidence and presented  a          well-developed record  on the problems  with in-the-field testing          equipment, we might have  been more inclined to reach  the merits          of defendants' objection.                      B.  Admissibility of the "Certification of Denial"                     B.  Admissibility of the "Certification of Denial"                     Under  46 U.S.C. App.   1903, it is unlawful for anyone          "on  board a  vessel subject  to the  jurisdiction of  the United          States,"  46 U.S.C.  App.    1903(a), to  possess with  intent to          distribute  a controlled  substance.   Vessels subject  to United          States  jurisdiction include  vessels "without nationality."   46          U.S.C. App.   1903(c)(1)(A).  The indictment in this case alleged          that jurisdiction  existed because  the defendants' vessel  was a          "vessel without nationality" within the meaning of 46 U.S.C. App.            1903(c)(1)(A).                    A   "vessel  without   nationality"   (also  called   a          "stateless vessel") includes "a vessel aboard which the master or          person in charge makes a claim of registry, which claim is denied          by the flag nation whose registry  is claimed."  46 U.S.C. App.            1903(c)(2)(A).  A claim of registry can include a verbal claim of          nationality or registry by  the master or  person in charge.   46          U.S.C. App.   1903 (c)(3)(C).  United States v. Maynard, 888 F.2d                                         _____________    _______          918, 922-25 (1st  Cir. 1989);  United States v.  Potes, 880  F.2d                                         _____________     _____          1475, 1478-79 (1st Cir. 1989).                    There  is no  dispute in  this case  that a  "person in                                         -13-          charge," namely defendant Forbes, made a claim of nationality  by          stating that the defendants'  vessel was from Colombia.   Since a          claim  of nationality was made,  the vessel can  be classified as          "stateless"  only if the claim is denied by the flag nation whose          registry is claimed.   46 U.S.C. App.   1903(c)(2)(A).   Maynard,                                                                   _______          888 F.2d at 925.  Section 1903(c)(2) provides that:                      A  claim  of registry  under subparagraph                      (A)  may be verified  or denied by radio,                      telephone, or similar oral  or electronic                      means.    The  denial  of  such  claim of                      registry by  the claimed flag  nation may                                                            ___                      be   proved   by  certification   of  the                      _________________________________________                      Secretary  of  State  or the  Secretary's                      _________________________________________                      designee.                       ________          46 U.S.C. App.   1903(c)(2) (emphasis added).                    To satisfy the jurisdictional requirement under   1903,          the  government presented  a "certification  of denial"  from the          State Department as proof that defendants' claim of registry  was          denied  by Colombia.  That  certificate was signed  by the Acting          Secretary  of State and stated: "I Certify That Peter J. Boynton,          whose name is subscribed to the document hereunto annexed, was at          the time of subscribing the Maritime Law  Enforcement Officer [at          the State Department], and  that full faith and credit  should be          given to  his acts as  such."  The  annexed statement by  Boynton          attested  to the  fact that  Boynton had  been designated  by the          Secretary of State  to make certifications of  denial pursuant to          46 U.S.C. App.   1903.  Boynton stated that on March 30, 1993, he          contacted the  Defense Attache  of the  United States  Embassy in          Colombia to  obtain permission from Colombian  officials to board          defendants'  vessel and  to determine  its nationality.   Boynton                                         -14-          then recounted  the following  series  of events:   The  American          Defense Attache obtained  permission to board the  vessel from an          Admiral  H.G. Ram rez,  Commandant  of the  Colombian Navy.   The          Attache  then  related this  to  U.S. Coast  Guard  officials who          authorized  a  boarding  of   the  vessel  and  who  subsequently          determined that the vessel  had no indicia of nationality.   This          information was relayed back to Colombian officials, and on March          31,  1993, Admiral Ram rez wrote a letter to the American Attache          refuting the  defendants' claim of Colombian  registry.*  Boynton          did not have personal  knowledge of any of these  events; rather,          he was informed of  them as the events unfolded by  various State          Department and  Coast Guard officials.   The  actual letter  from          Admiral Ram rez  refuting defendants'  claim  of nationality  was          never presented at trial.                    At issue  on appeal is defendants'  allegation that the          State Department certificate was inadmissible because it included          double  and  triple hearsay  concerning  the  fact of  Colombia's          denial of registry of  defendants' boat, and because the  form of          the certificate  -- with Boynton's  annexed statement  containing          critical facts that were  not within Boynton's personal knowledge                                        ____________________          *  The critical language in this case is Boynton's statement:                      4. I certify the following:                                        . . .                       (e) Later on March 31, 1993, LCDR Dale of                      the  U.S.  Embassy  in  Bogot   contacted                      LT Pete DeCola of the Department of State                      and informed him  that the Government  of                      Colombia   had   refuted  the   claim  of                      Colombian  registry   for  the  un[n]amed                      vessel,  by letter signed by ADM Ram rez,                      Commandant of the Colombian Navy.                                         -15-          -- was  inherently unreliable.**   Defendants argue  that Boynton          had  no personal knowledge of any of  the relevant facts that may          have  occurred  in  Colombia  with  respect  to  the request  for          boarding  the vessel or the  Colombian government's reply to that          request, including  Colombia's refutation of  the nationality  of          defendants' boat.   Defendants  conclude that the  district court          erred in admitting the  Department of State certificate  and that          the  government, therefore,  failed to  establish the  element of          jurisdiction under   1903.                    The  district  court  did  not  err  in  admitting  the          Department of State  Certificate because there was  no hearsay or          other admissibility problem with that piece of evidence.  Section          1903(c)(2) specifically provides that "the denial of such a claim          of  registry  by  the  claimed  flag  nation  may  be  proved  by          certification  of  the  Secretary  of State  or  the  Secretary's          designee."    The  statute   was  designed  to  ease  evidentiary          requirements for the  government by  avoiding the  time-consuming          and burdensome task of  obtaining official documentation from the          claimed  country of  registry  which was  previously required  to          prove jurisdiction over a stateless vessel.  See United States v.                                                       ___ _____________          Leuro-Rosas, 952 F.2d 616, 619-20 (1st Cir. 1991),  cert. denied,          ___________                                         ____  ______          112 S. Ct. 1598 (1992).   Thus, to establish jurisdiction  in the          case of a vessel claiming  foreign registry, the government  need                                        ____________________          **   The government argues  that some  of the defendants  did not          join  defendant  Romero's  objection  to  the   district  court's          admission  in evidence  of  the  State Department  certification.          Because  we find no merit to the substance of Romero's objection,          we  need not determine whether  all the defendants have preserved          this ground for appeal.                                         -16-          not prove that the vessel is in fact without registry in  another          country,  nor must it prove  that the foreign  nations' denial or          refutation  of  registry  is  valid,   legitimate,  or  otherwise          properly  made.   In  fact, such  issues  may be  irrelevant  for          purposes of jurisdiction under   1903 once it is established that          the State Department certifies  the vessel is stateless.   See 46                                                                     ___          U.S.C. 1903(d) ("A claim of failure  to comply with international          law in the enforcement of this chapter may be invoked solely by a          foreign nation,  and a failure  to comply with  international law          shall not divest a court of jurisdiction or otherwise  constitute          a defense to any proceeding under this chapter); Leuro-Rosas, 952                                                           ___________          F.2d at 621-22.***                                        ____________________          ***  We say that proof  of actual registry or of the illegitimacy          of  a  foreign  nation's  denial may  be  irrelevant  because the                                           _______          statute can be read  as defining jurisdiction solely in  terms of          what the State Department certifies, regardless of whether or not          a defendant's  boat is actually  registered in a  foreign nation.          The government insists  that   1903(d)  confirms this by  stating          that jurisdiction exists even in the face of an alleged violation          of international law.   According to the government,  a defendant          who wants  to assert  that his vessel  is truly  registered in  a          foreign  nation or  that that  nation did  not properly  deny his          claim  registry, must protest  to the  foreign nation  itself and          have that nation take up the  matter with the State Department on          the  defendant's behalf.   We are  not so  sure that  the statute          indeed imposes such  a burden.   It is possible that  proving the          registry  of  a vessel  for  purposes of  jurisdiction  under the          statute  is not  the  same thing  as  contesting a  violation  of          international law  and thus  not barred  by    1903.   See United                                                                 ___ ______          States v. Aikins,  946 F.2d 608, 615  (9th Cir. 1990) (noting  in          ______    ______          dicta  that defendants can rebut  the facts presented  in a State          Department  certification).   Anyway, we  are not  presented with          such a  situation in  this  case --  defendants  did not  try  to          establish  at trial  that  their vessel  was  in fact  Colombian.          Therefore, we do not decide the issue of whether efforts to prove          a  vessel's actual registry would  be irrelevant under    1903 or          barred by   1903(d).            This  case  does not,  of course,  present  a challenge  to the          authenticity  of  the  government's  proffered  State  Department                                         -17-                    Jurisdiction  exists   under      1903  if   the  State          Department determines  a vessel is stateless  through the receipt          of  a  denial  of  registry  from  a  foreign  nation.    Section          1903(c)(2) allows for  proof of  this determination by  way of  a          "certification" of the  Secretary or  his or her  designee.   The          presence of  what might normally  be considered "hearsay"  in the          certification is  explicitly contemplated  by the statute,  which          states that  a claim of  registry "may  be verified or  denied by          radio,  telephone, or  similar  oral or  electronic  means."   46          U.S.C.     1903(c)(2).     Congress  recognized  that  the  State          Department    would    be   using    non-documentary,   non-self-          authenticating means of obtaining a denial and attesting  to this          fact  in  its  certification.   Thus,  the  statute  specifically          authorizes  as proof of  the jurisdictional  component of    1903          precisely  what  the  government   presented  here.    The  State          Department certification recited with  specificity the steps that          resulted in the  Department's understanding that "the  Government          of Colombia had refuted  the claim of Colombian registry  for the          un[n]amed vessel, by letter signed by ADM Ram rez, Commandant  of          the Colombian Navy." This is sufficientto establish jurisdiction.                                        ____________________          certification on the grounds that, for example, the certification          was  fraudulently prepared  (e.g.,  untruthful in  saying that  a          foreign nationa's denial had been  received) or presented in  bad          faith  (e.g.,  accepting the  denial of  a  janitor in  a foreign          nation's  public  agency  instead of  a  public  officer  in that          agency).  We therefore reserve the question of whether   1903(d),          or any other provisions of   1903, would  bar the presentation of          evidence  relating to  the facts  of registry  or the  actions of          foreign nations  in situations that  might warrant determination,          probably by the court,  as to whether a proper  certification was          being offered.                                         -18-                    There is no hearsay  or other problem with the  form of          the  certification in this case.  The attachment of a declaration          by Boynton to the Secretary of State's certification is perfectly          acceptable because Boynton constitutes the "Secretary's designee"          under    1903(c)(2).   Several courts have  accepted declarations          attached    to   certificates    as    proper   and    admissible          "certifications" under   1903.  United States v. Aikins, 946 F.2d                                          _____________    ______          608, 614 (9th  Cir. 1990); United States v. Mena,  863 F.2d 1522,                                     _____________    ____          1531  (11th Cir.),  cert. denied,  493 U.S.  834 (1989)  (finding                              ____  ______          admissible a letter from  Honduran Navy attached to certification          from United State Embassy in Honduras); cf. Leuro-Rosas, 952 F.2d                                                  __  ___________          at  618-21 (expressing approval of certification  under   1903 in          the same form as the certification in this case).                    Boynton's  reliance on  the actions  and  statements of          other State Department officials  in certifying Colombia's denial          of  registry  does not  raise  admissibility  problems under  the          hearsay rule.  The  State Department Certification falls squarely          within Fed.  R. Evid.  803(8)(A) which  excepts from  the hearsay          rule public-agency  statements "in  any form" setting  forth "the          activities  of the office or  agency."  Fed.  R. Evid. 803(8)(A);          Mena,  863 F.2d at 1531.  The State Department's declaration that          ____          it received  a  denial  of defendants'  claim  of  registry  from          Colombia  was  a statement  by a  public  agency setting  forth a          routine  activity of  that agency.   The hearsay  exception under          Fed.  R.  Evid.  803(8)(A) accounts  for  all  of the  subsidiary          statements  relayed by  the  State Department  operatives to  the          declarant,  Boynton.  See Aikins, 946 F.2d at 614-15 (noting that                                ___ ______                                         -19-          the  authority  of  a  certifying  official  who  relies  on  the          statements of functionaries for  his information "is not diluted,          and  the  admissibility of  his  certificate  is not  diminished,          because he indicated  the basis for  his statement"; and  stating          that "the Secretary of State could  properly rely on those in his          chain of command.   A probability of trustworthiness attends  the          statement of the certifying officer; it  is equally probable that          the  officer has taken  reasonable measures to  assure himself of          the fact he certifies").                    C.  Jury Instructions                    C.  Jury Instructions                    Defendants argue that the district  court's "reasonable          doubt"  instructions and its instructions on  the elements of the          crime were  erroneous.   Before trial,  the district court  judge          described for the jury the reasonable doubt standard by comparing          it to the  civil, preponderance  of the evidence  standard.   The          judge instructed the jurors:                      The government must prove  each defendant                      guilty  beyond a  reasonable doubt.   The                      defendants have no  burden to prove their                      innocence  or to  present evidence  or to                      testify.     The  law  forbids  you  from                      considering  the  silence of  an accused,                      his failure  to  testify, in  reaching  a                      verdict.    That   is  a  right  that   a                      defendant has.   You cannot  consider the                      silence of  an accused in the  face of an                      accusation.  That is illegal.  You cannot                      do that.                      The government, as I said, must prove the                      case beyond a reasonable doubt.   And let                      me explain in very simple terms what this                      means.   Usually,  at this  stage of  the                      case, what  we judges do is  concur [sic]                      the  two standards, the  one that applies                      in the civil case and one that applies in                      a criminal case, so that you will have an                                         -20-                      idea of  the difference.   At the  end of                      the  case I  will  explain this  again to                      you.                      In the civil case we say that a plaintiff                      prevails  if he  proves the  case against                      the defendant by the preponderance of the                      evidence.    Assume,   then,  a   graphic                      example.   A scale,  an even scale.   You                      will  put the  evidence of  the plaintiff                      and  the evidence  of  the defendant,  if                      any, on  the two  sides and you  see what                      happens to the scale.   If the scale just                      moves  a little  bit  to the  plaintiff's                      side, the plaintiff is prevailing  in the                      context of a civil case.  That could be a                      car  accident  case,  a  contracts  case,                      preponderance of the evidence.                      In  the  criminal   context  we  say  the                      government  must   prove  each  defendant                      guilty beyond a  reasonable doubt.   That                                                           ____                      implies a  heavier burden.   Assume, then                      _________________________________________                      that  the  scale  must tip  more  to  the                      _________________________________________                      government's side, heavier burden.                      _________________________________                      Why? Because liberty is involved  and, of                      course, the wise  people who devised  the                      system understood that the evidence would                      be received under  a different  standard,                      as we say, beyond a reasonable doubt.                      I will explain  this once again for  your                      benefit at  the end  of the case;  but if                      you have ever served in a civil case, you                      should disregard the particular notion of                      preponderance.   Here  we  say  beyond  a                      reasonable doubt.  (emphasis added).          No objections were made at this time, or subsequently, concerning          these instructions.  After closing arguments, the court stated:                      Each   defendant   is   presumed  to   be                      innocent.  Each defendant  had no duty to                      testify  or present any evidence or prove                      their innocence.                      The  government had  the burden  to prove                      each defendant guilty beyond a reasonable                      doubt,   and  that  you   know  from  the                      beginning.                                           -21-                      What  is  this  business  of  "reasonable                      doubt"?   "Reasonable  doubt" is  a doubt                      based  upon reason  and common  sense and                      may  arise from  a careful  and impartial                      consideration of all  the evidence in the                      case,  or  the  lack of  evidence  in the                      case.                      Proof beyond a reasonable doubt  is proof                      that leaves you firmly convinced that the                      defendants are guilty.                                       . . . .                       So,  proof beyond  a reasonable  doubt is                      proof  that  leaves you  firmly convinced                      that  had  a  given  defendant  has  been                      proven guilty beyond  a reasonable  doubt                      [sic].          At the end of  this charge, the defense attorneys  approached the          bench but no one objected to the reasonable doubt instructions.                    Defendants  argue that  the instruction  concerning the          "even  scale" is faulty  for two reasons.   First, it dilutes the          degree  of persuasion  required  to  convict  a  defendant  in  a          criminal case.   Second,  the "even scale"  mechanism presupposes          that the criminal defendant will submit evidence so as to balance          the  scale.   According  to the  defendants,  the fact  that  the          government would usually submit  more evidence than the defendant          will, in  the eyes of a reasonable  juror, forcibly tip the scale          to  the  government's  side,  even  when  such  tipping   is  not          sufficient to convict  beyond a reasonable  doubt.  In  comparing          the criminal standard to the  civil one, defendants contend  that          the  court actually  defined proof  beyond a reasonable  doubt as          preponderance  of  the evidence,  but  with  a "heavier  burden."          Defendants conclude  that this dilutes the  meaning of reasonable          doubt.                                         -22-                    Because defendants  failed to  raise this  objection at          trial, we  must review the  trial court's instructions  for plain          error.   Fed. R. Crim. P. 52(b).   We will find  plain error only          when  (1) there is an  "error," (2) that  is "clear" or "obvious"          and (3)  that  affects "substantial  rights."   United States  v.                                                          _____________          Olano, 113 S. Ct. 1770,  1776-77 (1993); United States v.  Col n-          _____                                    _____________     ______          Pag n, 1 F.3d 80, 81 (1st Cir. 1993).          _____                    In   this   case,   although   the   reasonable   doubt          instructions  may be  erroneous,  we cannot  find  that they  are          clearly  and obviously  so.   Reasonable  doubt instructions  are          erroneous  when,  taken  as  a whole,  they  have  a  "reasonable          likelihood" of misleading the jury to believe that it can convict          on some lesser  standard of  proof than that  required under  the          reasonable  doubt standard.  V ctor v. Nebraska, 114 S. Ct. 1239,                                       ______    ________          1243, 1251  (1994).   Although the  court's  statement that  "the          scale must  tip more to the  government's side" may, if  taken in          isolation,  suggest a somewhat diluted burden of proof, the court          was clear that  the reasonable doubt standard  was distinct from,          and imposed  a "heavier burden" than,  the preponderance standard          used in civil trials.  The court also told the jury several times          that the defendants had  no burden to prove their  innocence, and          that they did not  have to present any evidence.   This decreased          the likelihood that the jury would improperly  weigh the evidence          or lack thereof.                    What  little explanation  the  court gave  on the  term          "reasonable doubt" was harmlessly circular.  There was no mention          in  the  final  charge  of  the  preponderance  of  the  evidence                                         -23-          standard.   Although  the  use  of  the  scale  analogy  has  the          potential for misleading the jury  into applying a diluted burden          of proof, we  do not see in this case,  with all the instructions          taken  as a whole, a  clear and obvious  likelihood that the jury          would be so misled.                    Defendants also argue that  the district court erred in          its  instructions  with  respect to  the  elements  of the  crime          because  the instructions might  have suggested to  the jury that          jurisdiction  was  not an  element of  an  offense under    1903.          According to the  defendants, the court's confusing  instructions          effectively  failed to  inform the  jury that  it must  find that          defendants' vessel was subject to the jurisdiction of  the United          States beyond a reasonable  doubt.  As with the  reasonable doubt          instruction,  no  objection  was  made at  trial  to  the court's          instructions on the elements of the crime.                    We  need   not  reach  the  substance   of  defendants'          objection  on  this issue  because  the  defendants presented  no          evidence  at trial  to  refute the  government's  proof that  the          defendants'  vessel  was  stateless   and  thus  subject  to  the          jurisdiction  of  the  United  States.   Other  than  defendants'          attempt  to  prevent  the   admission  of  the  State  Department          certification, the issue of United States jurisdiction over their          vessel was not  contested.  We agree with  the Third Circuit that          there is no plain error in a situation such as this one.   United                                                                     ______          States v. Mart nez-Hidalgo, 993  F.2d 1052, 1057 (3d  Cir. 1993),          ______    ________________          cert.  denied, 114 S. Ct. 699 (1994) (finding no plain error when          ____   ______          court refused to instruct  jury on jurisdiction as an  element to                                         -24-          be  proved  under     1903).    Because  the  undisputed evidence          conclusively   established  jurisdiction,   the  court   did  not          undermine the fundamental fairness of the trial or  contribute to          a  miscarriage of justice by failing to instruct the jury on that          element of the crime.  Id.  Moreover, unlike in Mart nez-Hidalgo,                                 __                       ________________          the  court in  the  present case  at least  attempted to  give an          instruction to the jury on the element of jurisdiction.  There is          thus  less likelihood  of  plain  error  in  this  case  than  in          Mart nez-Hidalgo.          ________________                    D.  Sentencing of Romero                    D.  Sentencing of Romero                    Defendant  Romero argues that  the district court erred          in finding  that,  as a  matter  of law,  it  was precluded  from          granting  a downward  departure in sentencing  for "extraordinary          family circumstances" under   5K2.0 of the Sentencing Guidelines.          Romero testified at his sentencing hearing that the mother of his          children  was murdered in Colombia  in 1988.   His three children          presently live with  his sister  in Santa Marta,  Colombia.   The          sister  has four children of  her own to take  care of.  They all          live together in a small two-bedroom house.  The sister's husband          works only periodically.   Romero's eldest daughter was suspended          from school  because Romero's sister  and her  husband could  not          make the  monthly payments  that the  school required.   Romero's          son,  Ronald Romero, suffers from a rare blood disease.  Ronald's          doctor recommended  treatment with special pills and food as well          as a  blood transfusion.  Romero  did not know if  his son Ronald          had ever received the recommended treatments.                    Following  Romero's testimony,  the court  rejected any                                         -25-          downward   departure  based   on      5K2.0  for   unique  family          circumstances.  The court stated:                       You  are going  to 5K2.0,  basically, and                      asking me to read  within the context  of                      this case a  departure for unique  family                      circumstances of the kind not normally or                      not  taken  into  consideration   by  the                      Sentencing  Commission when  they drafted                      the guidelines.                      But I do not  think that that's the case.                      As  a matter of  fact, your request falls                      within  the   category  that  discourages                      departures that pertain to such things as                      family ties  and family responsibilities,                      etcetera.  I do  not think that this case                      is  so different  from what  I see  in 90                      percent  of the  cases.   Take a  look at                      what happened here today  this afternoon.                      We have visions that  are as terrible and                      as depressing and as sad as the ones that                      he has now.                       I cannot, on the basis  of what I know of                      this record,  and on the basis  of what I                      heard here, make a  substantial departure                      under that particular section . . . .                      I do not  think --  I do  not think  that                      this stands  as a  situation  that is  so                      different  from  that that  we  see  on a                      daily  basis,  which  are very  sensitive                      situations.      Assuming  no   diseases,                      assuming no circumstances of that kind --                      the  mere fact  that  a father,  that  of                      itself is extraordinary,  but that is not                      what the law allows me to consider.          Romero's Attorney then stated:                      Well,  your  Honor, precisely  your Honor                      stated "assuming no  diseases," and  that                      is  precisely why  we raised  the matter.                      It is what  the probation officer  called                      "a rare blood  disease," and that is  why                      we had,  at the outset of our allocution,                      explained to your Honor the problems that                      we have encountered.          The court responded:                                         -26-                      That's okay.  But  I am not assuming that                      that is  true.   I am assuming  that what                      the child has is  sickle-cell anemia.  It                      could  be sickle-cell anemia, it could be                      leukemia, but  those two factors  are not                      enough for me to depart.                    Romero  argues that  the  court's  statement ("that  is          extraordinary,  but that  is  not  what  the  law  allows  me  to          consider")  evinced the  court's perception  that it  was legally          unable  to depart in the absence  of "diseases" or "circumstances          of that kind."   According  to Romero, the  court's position  was          that  on  a  record  which  did  not include  particular  medical          conditions, the  court was legally precluded from departing.  Yet          the court then assumed Romero's son had a blood disease -- either          sickle-cell anemia  or  leukemia --  and  thus that  an  "unusual          circumstance" was  present.   The court,  however, still  did not          depart  because,  Romero claims,  it  thought that  it  could not          legally do so  under the  circumstances of this  case.   Romero's          interpretation of the court's decision is mistaken.  We therefore          uphold his sentence.                    United States Sentencing Guidelines    5K2.0 recognizes          that under 18 U.S.C.   3553(b) "the sentencing court may impose a          sentence  outside  the   range  established  by  the   applicable          guideline, if the  court finds 'that there exists  an aggravating          or  mitigating  circumstance  of a  kind,  or  to  a degree,  not          adequately  taken into consideration by the Sentencing Commission          in formulating  the guidelines that  should result in  a sentence          different from  that described.'"   U.S.S.G.   5K2.0  (quoting 18          U.S.C.   3553(b)).  Family ties and responsibilities are normally                                         -27-          "discouraged" grounds  for departure,  U.S.S.G.    5H1.6, because          they  are  not outside  the  normal  "heartland" case  which  the          Sentencing  Commission  has  already  taken  into  consideration.          Nonetheless,  such   factors  "could  remove  a   case  from  the                                         _____          heartland,  but only  if they  are present  in a  manner that  is          unusual or  special, rather than  'ordinary.'"  United  States v.                                                          ______________          Rivera, 994 F.2d 942, 948 (1st Cir. 1993) (emphasis in original).          ______          Thus,  a sentencing court may  depart downward for  purposes of a          defendant's family ties and responsibilities, if, and only if, it          finds those factors to be unusual or special.  Id. at 948, 951.                                                         __                    Ordinarily, a district court's refusal to  exercise its          discretion to  depart downward from the  sentencing guidelines is          not reviewable on appeal.  United States v. LeBlanc, 24 F.3d 340,                                     _____________    _______          348;  United States v.  Smith, 14 F.3d 662,  665 (1st Cir. 1994);                _____________     _____          United States v.  McAndrews, 12  F.3d 273, 276  (1st Cir.  1993).          _____________     _________          Appellate jurisdiction does attach, however, where the sentencing          court's decision not to  depart is based on the  court's mistaken          view that it lacks  the legal authority to consider  a departure.          LeBlanc, 24 F.3d at 348; Smith,  14 F.3d at 665-66; United States          _______                  _____                      _____________          v. DiIorio, 948 F.2d 1, 8 (1st Cir. 1991).  In other words, where             _______          the  court  errs in  determining  whether  the allegedly  special          circumstances  are   of  the  "kind"  that   the  Guidelines,  in          principle,  permit  the  sentencing  court to  consider,  we  may          proceed to review the  courts sentencing decision not to  depart.          Rivera, 994 F.2d at 950-51.  On the other hand,  if "we find that          ______          the court properly understood its power to depart, but refused to          exercise  that  power,  we  lack  jurisdiction  to  consider  the                                         -28-          appeal."  LeBlanc,  24 F.3d at 348; United  States v. Lombardi, 5                    _______                   ______________    ________          F.3d 568, 571-72 (1st Cir. 1993).                    Thus, the issue on this appeal is whether  the district          court exercised  its discretion  by finding that  Romero's family          circumstances, including his son's disease, was not  sufficiently          unusual  or different  from  the  heartland  case  to  warrant  a          departure  or whether the court found that the Guidelines did not          allow  him to depart for  circumstances like the  ones present in          this case.   Because we find the  court did not misunderstand its          authority to depart, its departure decision is not reviewable  on          appeal.                    It  is  fairly  clear  that the  court  understood  its          ability  to depart under the guidelines, but found that the facts          of the  case  prevented the  court  from  doing so.    The  court          explicitly  and  correctly  noted   that  it  was  considering  a          discouraged type  of departure  for unique  family circumstances.          The  court then found  that the facts  of this case  were not "so          different from  what I  see in  90 percent of  the cases."   This          demonstrates that the court knew that it could depart if it found          the facts placed  the present  case outside of  the heartland  of          cases that it normally faced.                    The court did  say:  "Assuming no diseases, assuming no          circumstances of that kind -- that mere fact that a father,  that          of  itself is extraordinary, but that is  not what the law allows                                           ________________________________          me to consider."  (emphasis added).  In the context of the entire          ______________          decision and  the court's previous statements,  we interpret this          statement simply as  a correct expression of  the applicable law.                                         -29-          The court was saying that it could not depart unless it found the          facts  of the case were  unusual or different  than the heartland          case and  that the  mere fact  that Romero was  a father  and had          children that someone else  was caring for did not  constitute an          unusual or special situation for which the Guidelines would allow          a departure.  After  Romero's counsel pointed out that  there was          evidence of a special circumstance -- namely Romero's son's blood          disease  -- the  court stated  that it  had assumed  the son  had          either  sickle-cell  anemia  or  leukemia, "but  that  those  two          factors  are not  enough for me  to depart."   The  court was not          saying  that  the  Guidelines  prohibited  him  from  considering          Romero's  son's  disease  as the  type  of  factor  upon which  a          departure decision can  be based,  he was merely  saying that  he          considered the disease and that  it was "not enough for [him]  to          depart."    Although  the court's  language  is  not  a model  of          clarity, we are  certain that the judge was making  a factual and          discretionary determination  here; he did not  hold that diseases          can never  merit a departure under the Guidelines.  The court was          thus not  mistaken about its  power to  depart but rather  made a          judgment call that we may not review on appeal.                    Affirmed.                    ________                                         -30-
