
USCA1 Opinion

	




          March 12, 1993        [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT          No. 92-2284                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              VICENTE JOAQUIN GONZALEZ,                                Defendant, Appellant.                                                                                     _________________________          No. 92-2285                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                HECTOR BERRIOS COLON,                                Defendant, Appellant.                                                                                     _________________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                                                                     _________________________                                        Before                      Torruella, Selya and Cyr, Circuit Judges.                                                ______________                                                                                     _________________________               J. C. Codias for appellants.               ____________               Jose  A. Quiles  Espinosa, Senior  Litigation  Counsel, with               _________________________          whom  Daniel F.  Lopez-Romo, United  States Attorney,  and Warren                _____________________                                ______          Vazquez,  Assistant United  States Attorney,  were on  brief, for          _______          appellee.                                                                                     _________________________                                                                                     _________________________                    Per  Curiam.    Vicente  Joaquin  Gonzalez  and  Hector                    Per  Curiam.                    ___________          Berrios Colon  appeal their convictions on  charges of conspiracy          to  import a  controlled  substance into  the  United States  and          possessing  a controlled  substance  aboard a  vessel within  the          customs  waters of the  United States, with  intent to distribute          the contraband.  They argue primarily that the evidence presented          to the jury was too flimsy to support the guilty  verdicts.  They          argue  secondarily  that  the  trial  judge  improperly  excluded          certain evidence and, moreover, exhibited a bias against them.                    We  start with  bedrock.  "The  standard of  review for          sufficiency challenges  is whether  the total evidence,  taken in          the light  most amicable to  the prosecution,  together with  all          reasonable  inferences favorable  to it,  would allow  a rational          factfinder  to  conclude  beyond  a  reasonable  doubt  that  the          defendant  was guilty as charged."   United States  v. Maraj, 947                                               _____________     _____          F.2d 520, 522-23 (1st Cir. 1991).   We have recently applied this          standard  to  a test  of  evidentiary  sufficiency  in an  appeal          prosecuted by appellants' codefendant, Alfredo Nueva.  See United                                                                 ___ ______          States v. Nueva, 979 F.2d 880 (1st Cir. 1992).  No useful purpose          ______    _____          would be served  by canvassing anew  the full range of  facts set          out therein.  See id. at 881-83.  It suffices at this juncture to                        ___ ___          say  that  we found  those facts  more  than adequate  to support          Nueva's conviction  on both charges.  Id. at 883-85.  Most of the                                                ___          same evidence applies with equal force to the present appellants.                    We do not propose  to reinvent the wheel.   Instead, we                                          3          add only a few brief comments regarding the events at  issue.  On          the  main question   evidentiary sufficiency   the jury was faced          with conflicting  accounts of what  transpired off  the coast  of          Puerto  Rico on the night of December 5, 1990.  Appellants argued          that  they were  simply in  the wrong  place at  the wrong  time;          during  a pre-purchase test drive of  a speedboat, in the dark of          night,  they  experienced engine  trouble  and  were stranded  in          precisely  the  spot chosen  by drug  dealers  for an  airdrop of          several bales of cocaine worth an enormous amount of money.                      The prosecution, however, did not believe that the long          arm  of co(ke)incidence stretched quite  so far.   It presented a          wealth of surveillance evidence from which a rational  jury could          conclude  that  a  small  airplane, running  with  no  navigation          lights, signalled  appellants' boat (also running without lights)          and  then  proceeded  by  prearrangement to  drop  several  large          objects  (marked  with chemical  lights)  which  the boat's  crew          hauled from the sea.  When, thereafter, the capture trap began to          close,  the  three men  aboard  the  boat hastily  discarded  the          objects  and  attempted to  evade  apprehension  (although to  no          avail).    When  boarded,  the  boat's  engine  was  still  warm,          indicating recent use and undermining appellants' stranded-at-sea          account.  Several  bales of cocaine,  with chemical lights  still          attached, were found floating in the area where the speedboat had          been.   There were  no other  vessels in  the vicinity (save  for          official watercraft).                      We  think  that  the  cumulative  evidence  permitted a                                          4          series of logical inferences:  that appellants knowingly set  out          to rendezvous with the aircraft; that, being the only individuals          in the  area, appellants were  the designated  receptors for  the          smuggle; that,  by design, appellants retrieved  the cocaine from          the water; and that appellants, knowing that their newly acquired          cargo  comprised  illegal  contraband,  jettisoned  it  when  law          enforcement personnel  drew near.  No  more was exigible.   As we          recently  wrote, "the  culpability  of  [a] defendant's  presence          hinges upon whether the  circumstances fairly imply participatory          involvement."  United States v. Echeverri, No. 92-1426, slip  op.                         _____________    _________          at  5  (1st Cir.  Jan. 5,  1993).   Here, a  rational factfinder,          drawing plausible inferences as  suggested above, could well have          discerned participatory involvement.  See, e.g., United States v.                                                ___  ____  _____________          Morales-Cartagena, Nos.  91-2079, 91-2080,  slip op. at  4-6 (1st          _________________          Cir.  Feb. 23, 1993); Nueva, 979 F.2d at 883-85; United States v.                                _____                      _____________          Lopez,  944 F.2d  33,  40  (1st  Cir.  1991);  United  States  v.          _____                                          ______________          Hernandez-Bermudez,  857  F.2d 50,  54  (1st  Cir. 1988);  United          __________________                                         ______          States  v. Flores  Perez, 849 F.2d  l, 3 (1st  Cir. 1988); United          ______     _____________                                   ______          States v. Alvarez, 626 F.2d 208, 210 (1st Cir. 1980).              ______    _______                    In  sum,  the  appellants  seem to  be,  literally  and          figuratively, in  the same  boat as Nueva.   The jury,  the trial          judge,  and  the Nueva  panel  believed  that  the  evidence  was                           _____          sufficient to  convict on  all counts, as  do we.   Although  the          government's case  was largely circumstantial, the  jury, on this          record,  could   certainly  have  chosen  to   believe  that  the          converging  circumstances pointed persuasively  toward a sinister                                          5          truth and  been convinced thereby beyond any  reasonable doubt of          appellants' complicity and guilt.   The law, as we have said, "is          not  so struthious as  to compel a  criminal jury  to ignore that          which is perfectly obvious."  United States v. Ingraham, 832 F.2d                                        _____________    ________          229, 240  (1st Cir. 1987), cert.  denied, 486 U.S.   1009 (1988);                                     _____  ______          see also  United States v.  Smith, 680  F.2d 255,  260 (1st  Cir.          ___ ____  _____________     _____          1982)  ("Neither  juries  nor  judges  are  required  to  divorce          themselves  of common  sense, but  rather  should apply  to facts          which  they  find  proven   such  reasonable  inferences  as  are          justified  in the  light of  their experience  as to  the natural          inclinations  of human  beings."),  cert. denied,  459 U.S.  1110                                              _____ ______          (1983).                              The other  issues raised  by  appellants deserve  scant          comment.    The  district  court's  exclusion  of  the  so-called          tracklog was  well within its discretion; the record reveals that          appellants never laid  a proper foundation  for the admission  of          this evidence.  Lastly, the claim of judicial bias  amounts to no          more than  shooting from the  lip.  In  any event, the  very same          claim was advanced  to the Nueva panel and soundly  rejected.  We                                     _____          adopt that panel's assessment.  See Nueva, 979 F.2d at 885.                                          ___ _____                    We need go no  further.  Our examination of  the papers          reveals  that   appellants'  counsel   has  been   using  devious          distortions  and  gross  exaggerations as  weapons  of  appellate          advocacy.   They are easily belied  by the record and  do not aid          his clients' cause.  For essentially the same reasons as were set          out  in  the  Nueva  opinion, the  appellants'  convictions  pass                        _____                                          6          muster.                     Affirmed.                    Affirmed.                    ________                                          7
