               Not for Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit


No. 02-1028

                     UNITED STATES OF AMERICA,

                                Appellee,

                                     v.

                       BASILIO INIRIO-CASTRO,

                        Defendant, Appellant.


No. 02-1029

                     UNITED STATES OF AMERICA,

                                Appellee,

                                     v.

                            ISIDRO ROSARIO,

                        Defendant, Appellant.


          APPEALS FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

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


                                  Before

                     Torruella, Circuit Judge,
                  Coffin, Senior Circuit Judge,
                    and Selya, Circuit Judge.
     Zygmunt G. Slominski, by Appointment of the Court, on brief
for appellant Inirio-Castro.
     H. Manuel Hernandez, by Appointment of the Court, for
appellant Rosario.
     Jared Lopez, Assistant United States Attorney, with whom H. S.
Garcia, United States Attorney, Sonia I. Torres-Pabon and Nelson
Perez-Sosa, Assistant United States Attorneys, were on brief, for
appellee.



                          March 31, 2003
       COFFIN, Senior Circuit Judge. These are two appeals from

judgments of conviction for possession of more than five kilograms

of cocaine, with intent to distribute, in violation of 21 U.S.C. §

841(a)(1).     Each of the defendants, Basilio Inirio-Castro and

Isidro Rosario, has raised a challenge to the sufficiency of the

evidence. Inirio-Castro also asserts a separate issue based on the

alleged inconsistency between the jury's general verdict and its

answer to a special interrogatory that Inirio-Castro claims was

improperly submitted to the jury.

       Despite an able and spirited defense in both cases, we affirm.

       Both appellants and the government agree, as do we, that our

task in evaluating sufficiency is to consider whether all the

evidence, circumstantial as well as direct, taken in the light most

favorable to the prosecution, including reasonable inferences,

enables a rational jury to reach a judgment of guilty beyond a

reasonable doubt.       See, e.g., United States v. Ortiz de Jesus, 230

F.3d 1,5 (1st Cir. 2000).       Appellants, however, argue that this is

a case where the evidence for and against guilt is so nearly equal

that   a   reasonable    jury   could    not   have   found   guilt   beyond   a

reasonable doubt.       See United States v. Morillo, 158 F.3d 18, 22

(lst    Cir. 1998).     But, as Morillo and the case law on which it

relies make clear, all the evidence – that pointing to innocence as

well as that pointing to guilt – must be reviewed in the light most




                                        -3-
favorable to the prosecution.          Id.    With this in mind, we set forth

the essentials.

     On September 5, 2000, appellant Inirio-Castro returned from

visiting family members in the Dominican Republic and, with                       his

cousin, appellant Rosario, left at a little after 6 p.m. from

Fajardo on the east coast of Puerto Rico ostensibly to go fishing.

Their destination was the area of Las Paulinas beach, between

Luquillo and Fajardo.

     At about 9:30 p.m., a U.S. Customs officer using aircraft

infrared radar spotted a small boat powered by twin outboards,

showing no running lights but bearing two individuals, moving

slowly some 50 to 75 feet from shore.             He maintained radar contact

with this vessel as it moved further away from the beach.                    Turning

his attention     to   the    beach,    he    observed      people    moving    large

packages away from the shoreline, and others moving packages toward

a van.    Later in the evening, a police officer on land discovered

eight    bales   of   cocaine     on   the    beach   and,   the     next   morning,

seventeen more bales were found near the truck.

     Meanwhile, a unit of the Puerto Rico Rapid Action United

Forces pursued the target vessel and boarded it at about 11 p.m.,

about one half to three quarters of a mile off shore.                          It was

anchored   but   showed      no   anchor     light;   the    two   occupants     were

apparently fishing.       It had started raining intensely.                 There was

some fishing gear aboard (two rods, a reel, ten to fifteen bait


                                        -4-
fish) but no weights, nets, fishing flyers, or gloves . . . and no

caught fish.    The boat bore a Virgin Islands registration and both

appellants had fishing licenses. Inirio-Castro said that he earned

from $1000 to $3000 a month from fishing.        The boat carried no cell

phones,   radios,    GPS   (Global     Positioning     System)   or   other

navigational aid, and no firearms.         Appellant Rosario was found to

have sand in his pocket and the two appellants were carrying cash

totaling almost $1000.

     A gaff, used to land fish and retrieve other objects from the

water, was found to have a white powdery substance on its tip.

This was subjected to a field test and reacted positively to

cocaine. Fourteen of the twenty-five bales were found to have been

punctured or pierced by a sharp object.              White plastic burlap

strips found on the gaff, under a seat, around wiring, tubing,

hoses, battery line, and engine were given laboratory testing,

which revealed similar physical and chemical characteristics to

those on five bales found on the beach.

     Appellants seek to characterize their case as one of equal or

near equal weight to that of the prosecution, making the following

arguments.     They point out that they were not at the beach, that

others could have delivered the packages, and that they were being

prosecuted for "mere presence."            They point out that the only

special equipment on the boat was consistent with fishing, the boat

carried a registration, both appellants had valid fishing licenses,


                                     -5-
no equipment associated with drug smuggling was on board, and that,

unlike an outlaw boat, the vessel was proceeding very slowly.

Finally, field tests were known sometimes to register "false

positive" results       and   the     white   plastic    strips   had    not   been

subjected   to   the    further     lab   analysis      that   could    positively

identify them as coming from the bales on the beach.

     Without in any way denigrating the efforts and competence of

appellants’ counsel, we think that there are just too many bridges

to cross and too many assumptions to be made for these observations

and arguments to rise to the point where we could say that a

rational jury must have a reasonable doubt.                    The temporal and

spatial proximity of the boat and the beach operations may not be

conclusive, but it is significant, particularly in the absence of

evidence suggesting any other source of delivery of the bales.                    A

reasonable jury might question the presence, so close to shore, in

a reef-surrounded area, of a boat bent solely on fishing.                 It might

also find significance in the fact that sand was found in one

appellant’s pocket.

     A   rational      jury   might    also    question    the    likelihood     of

appellants fishing for several hours and, without any visible

success, continuing despite heavy rain.            And it might further give

considerable weight to the positive reaction of the field test on

the gaff and the chemical and physical comparability of the strips

found on the vessel to materials from the bales, even though


                                        -6-
testing for a positive identification of source was not undertaken.

Finally, it might also infer that the holes punched in the bales

had, in the absence of other explanation, been made by the gaff.

     We therefore conclude that the judgments of conviction are

supported by sufficient evidence.

     What remains is Inirio-Castro's argument that the verdicts are

vulnerable based on the special interrogatory answered by the jury.

The facts relevant to this issue are the following.              During the

trial, the jury was read a stipulation signed by all parties that

the twenty-five bales seized on the beach, after chemical analysis,

had been found to contain more than 150 kilograms of cocaine.            When

the case was given to the jurors, they received a verdict form.

There   were   two   items   requiring    jury   action.   The   first    was

registration of its finding of guilt or acquittal:

     WE, THE JURY, FIND DEFENDANT: [NAME]

     ___________________        as charged in COUNT ONE of the
                                Indictment
        GUILTY/NOT GUILTY

Count One of the Indictment described the offense as possession

with intent to distribute five kilograms or more of cocaine.

     Secondly, at the bottom of the form was this instruction and

question:

     If you find the defendant guilty, then proceed to answer the
following question:




                                    -7-
           Do you find that the amount of cocaine involved in
     the offense charged was in an amount of 150 kilograms or
     more?
           ____________         ___________

                 YES                           NO

     The jury returned the form with "Guilty" in the blank of the

first item and "No" as the answer to the question.                     Appellant

Inirio-Castro contends that submitting this question and permitting

this answer amounts to a constructive amendment of the indictment,

violating both the Grand Jury Clause of the Fifth Amendment and the

Sixth Amendment requirement of a jury verdict.             He further argues

that the response invalidates the verdict of guilty, signifying a

rejection of all the evidence of the twenty-five bales on the

beach.

     The argument relies on our decision in United States v. Spock,

416 F.2d 165 (1st Cir. 1969), where we underscored the general

inappropriateness       of   submitting    special    questions   in    criminal

cases.    In that case, ten special questions were put to the jury,

resulting "in a progression of questions each of which seems to

require   an   answer    unfavorable      to   the   defendant,   [leading]    a

reluctant juror . . . to vote for a conviction which, in the large,

he would have resisted."        Id. at 180-82.

     We recognized, however, the existence of an exception for

cases in which "the determination of a particular fact will be

crucial to sentencing," id. at 182 n.41. We have subsequently made

it   clear     that    there   is   no    "mechanical     per     se   rule   of

                                     -8-
unconstitutionality . . . for all special questions in criminal

cases," Heald v. Mullaney, 505 F.2d 1241, 1245 (1st Cir. 1974).   We

have also reaffirmed our recognition that special questions may be

permissible in federal criminal proceedings, "usually in connection

with sentence," id.    We have noted the existence of this genre of

cases specifically in connection with firearms prosecutions where

the severity of sentence would be related to the specific firearm

possessed by a defendant.     See United States v. Ellis, 168 F.3d

558, 562 n.2 (1st Cir. 1999); United States v. Melvin, 27 F.3d 710,

716 (1st Cir. 1994).

     We think the special question asked in this case was of this

nature.   The court apparently was seeking what it thought was

necessary guidance under Apprendi v. New Jersey, 530 U.S. 466

(2000), to determine a fact crucial to sentencing.    Moreover, we

can see no reasonable possibility of prejudice.       The jury had

registered its finding that defendants had possessed over five

kilograms of cocaine with the intent to distribute.    This finding

obviously stemmed from the evidence of the twenty-five bales and

the stipulation that they contained more than 150 kilograms.      Now

the jury was being given an opportunity to limit responsibility to

a lower amount.   This choice clearly benefitted appellants, since

the court, while recognizing that it could impose sentence based on

a much higher quantity of cocaine, respected and followed the

jury's finding in his sentencing calculations.


                                 -9-
     Appellants, however, urge that the answer to the special

question implied a rejection of all the evidence of bales found on

the beach, leaving only the evidence of a trace of cocaine on the

gaff - enough only to justify conviction for simple possession.

This leap of reasoning assumes that the jury was not only reneging

on its verdict of guilt for possession of more than five kilograms

with intent to distribute, but also was ignoring the comparability

of materials found in the boat and on the beach, the punctured

bales, the actions of appellants in the boat, and the absence of

any other explanation for the trace of cocaine found on the gaff.

We do not think that this collection of assumptions falls within

the range of the rational.

     We therefore conclude that the special question and the jury’s

answer did not invalidate the verdict.

     Affirmed.




                               -10-
