
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 95-1843               UNITED STATES,                                      Appellee,                                          v.                              FRANKLYN RIVERA-SANTIAGO,                                Defendant - Appellant.                                 ____________________          No. 95-1844                                    UNITED STATES,                                      Appellee,                                          v.                                  EDWIN ALAMO-SILVA,                                Defendant - Appellant.                                 ____________________                                        ERRATA                                    _____________               The  following change should  be made  in the  opinion dated          March 10, 1997:               Page 14, n.6,  line 10  - insert the  word  on  between  the               words  based  and  its.                             UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1843                                    UNITED STATES,                                      Appellee,                                          v.                              FRANKLYN RIVERA-SANTIAGO,                                Defendant - Appellant.                                 ____________________          No. 95-1844                                    UNITED STATES,                                      Appellee,                                          v.                                  EDWIN ALAMO-SILVA,                                Defendant - Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. H ctor M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                         and DiClerico, Jr.,* District Judge.                                              ______________                                 ____________________                                        ____________________          *  Of the District of New Hampshire, sitting by designation.                                         -2-               Roberto Rold n-Burgos for appellant Franklyn Rivera-Santiago               _____________________          and  Rachel Brill for  appellant Edwin Alamo-Silva  were on joint               ____________          brief.               Jacabed  Rodr guez-Coss, Assistant  United States  Attorney,               _______________________          with  whom Guillermo Gil, United States Attorney, Jos  A. Quiles,                     _____________                          ______________          Senior  Litigation  Counsel,  and  Nelson  P rez-Sosa,  Assistant                                             __________________          United States Attorney, were on brief for appellee.                                  __________________                                    March 10, 1997                                  __________________                                         -3-                    Per Curiam.   Defendants, Franklyn  Rivera-Santiago and                    Per Curiam.                    __________          Edwin  Alamo-Silva,  challenge  their convictions  and  sentences          following a  jury trial.   For  the reasons  discussed below,  we          vacate their convictions and remand for a new trial.                                    I.  Background                                    I.  Background                                        __________                    We recount  only those  facts necessary to  resolve the          instant appeals.  On  January 25, 1995,  a grand jury returned  a          three-count indictment against the defendants, charging them with          aiding and  abetting  each other  in attempting  to possess  with          intent  to  distribute  narcotics   in  violation  of  21  U.S.C.             841(a)(1),  943 and 18  U.S.C.    2; aiding and  abetting each          other in attempting to import narcotics into the United States in          violation of  21 U.S.C.     952(a),  963 and 18  U.S.C.    2; and          aiding and abetting each other  in attempting to possess on board          a vessel of the United States with intent to distribute narcotics          in violation of 46 U.S.C. App.   1903(a), (b)(2)(c), (f), (j) and          18 U.S.C.   2.                    At  trial, the government  elicited testimony from U.S.          Customs Service  air interdiction  officers who were  assigned to          three aircraft operating  off the southeast coast of  Puerto Rico          on the  night of January 4,  1995, and the morning  of January 5,          1995.  The officers were investigating what was perceived to be a          suspicious  aircraft flying  with its  lights  off and  without a          flight  plan  from  South  America  toward  Puerto   Rico.    The          government s  first witness  was  Leslie Robb,  who operated  the                                         -4-          radar and Forward Looking Infrared camera ( FLIR )1 on one of the          aircraft,  Omaha 42.    Robb testified  that  after circling  for          nearly forty  minutes, the  suspicious  aircraft dropped  several          objects into the water at 12:39 a.m. at a point approximately six          miles off the  coast of Patillas, Puerto Rico.  The splashes were          captured  on a videotape of Omaha  42's FLIR, which was submitted          to the jury as  evidence along with videotapes of  the FLIRs from          the  other  two aircraft.    The  videotapes included  the  radio          communications among the air  interdiction officers and other law          enforcement  personnel that  occurred contemporaneously  with the          images  produced  by  the  FLIRs.    These  radio  communications          revealed that  immediately before the airdrop  occurred, a vessel          was seen  flashing its  lights in  the area  near the  suspicious          aircraft, and that the aircraft which had turned its lights on at          some point before the airdrop turned them off shortly thereafter.                    The government s  second witness, Raul  Antonio Rivera-          Calleja  ( Rivera ), operated  the radar  and FLIR  systems on  a          second  plane, Omaha 02,  which began looking  for marine targets          after the  airdrop  had occurred.   At  approximately 1:04  a.m.,          Rivera acquired  a vessel on  radar approximately two  miles from          the  site of  the airdrop.   This  target was  the only  one that          Rivera was able to locate  on his radar, which covered a  twenty-          five-mile  radius around  the  aircraft.   Rivera testified  that          after he had located the vessel on radar, his fellow crew members                                        ____________________          1  The FLIR produces video  images of objects based on the amount          of  heat they emit.   The FLIR  can be integrated  with a plane s          radar system to provide images of targets found on radar.                                         -5-          informed him that they saw no lights on the surface of the water,          and that the vessel s navigation  lights had to have been  turned          off.  Rivera  further testified that shortly after  acquiring the          vessel on  radar, his  FLIR showed  two objects  floating in  the          water approximately twenty feet from the rear of the vessel.                    The government s next witness, David  Cruciger, was the          pilot  in command of  Omaha 02.   Cruciger offered  the following          description of the airdrop on direct examination:                    Once again while flying  in this pattern,  we                    received  information from  Omaha  42 that  a                    drop  was  taking place  and  that they  were                    seeing the splashes.   Chris Thorton [the co-                    pilot aboard  Omaha 02] said  it, directed my                    attention  out the  right-hand window  of the                    aircraft.   I banked  the aircraft over  so I                    could see out in that direction; and with the                    aircraft banked, I  could see  down into  the                    water a flashing light.   It was described by                    Omaha 42.  As we watched the light, I saw  an                    aircraft or what I believed to be an aircraft                    turn on its navigation recognition lights and                    fly at low altitude over the lights that were                    flashing in the water.          When  asked  during cross-examination  whether  he  had seen  the          lights  before  the  drop   occurred,  Cruciger  stated  that  he           believe[d] it was during the drop.                     The government s fourth  witness, John Alpers, operated          the  radar and  FLIR  system on  the  third  aircraft, Omaha  38.          Alpers testified that he located a vessel -- the same one next to          which Rivera s  FLIR would later  detect two objects  floating in          the  water -- on radar at approximately 12:45 a.m., approximately          two miles  from the site of  the airdrop, and that,  according to          the co-pilot  aboard Omaha 38,  all of  the vessel s lights  were          out.  Alpers also testified  that although he located one  object                                         -6-          on  his radar that he believed to be  a reef, he located no other          vessels on his twenty-five-mile radar.                    The  government s witnesses  testified that  the vessel          remained stationary from the time Alpers acquired it on his  FLIR          at 12:54  a.m., approximately  three miles from  the site  of the          airdrop, until a coast  guard helicopter arrived at approximately          1:13  a.m.  and  shined a  bright  light  on  it.   They  further          testified that the  vessel began to  move toward shore after  the          coast guard  helicopter illuminated  it, and that  the defendants          were found  aboard the vessel  when it arrived on  shore and were          promptly arrested.   Although no contraband was  found aboard the          defendants  vessel, the government introduced into  evidence four          bales of  cocaine that were  found floating  in the water  in the          vicinity  of  the  drop  site.   The  first  bale  was  found  at          approximately 2:00 a.m.  on January 5, 1996, and  three more were          found at approximately 1:30 p.m. the same day  tied together with          rope  of a  type found  on the  defendants  vessel.   Two  of the          government s  witnesses speculated  that, following  the airdrop,          the defendants had gathered the three bales that were found  tied          together and, rather than bringing  the bales aboard, placed them          in tow so as to facilitate disposal in the  event the defendants           scheme was discovered.                    The government also introduced into evidence a business          card found  in  defendant  Rivera-Santiago s  wallet,  which  was          discovered  in  his  car,  bearing  the  coordinates  of  a  spot          approximately seven miles away  from the site of the airdrop.  In          addition, the government s  witnesses testified  that they  found                                         -7-          defendant  Alamo-Silva s  Toyota  4-Runner  at  his  girlfriend s          house, which  was accessible via a  pathway to the beach  and was          located approximately one-quarter  of a mile away from  the point          where the defendants arrived  on shore.  The keys to the 4-Runner          were found in the vehicle, which  was parked with its back to the          water and its rear seats folded down.   Finally, the government s          evidence indicated  that the  registration number painted  on the          back of  the vessel  on which  the defendants  were found,  which          belonged to  defendant Rivera-Santiago,  differed by two  letters          from the number  under which the vessel had  been registered with          the Puerto Rico Department of Natural Resources.2                    The defendants contended that  they were out fishing on          the night  of the  airdrop and  were simply  caught in  the wrong          place  at the  wrong time.   They  elicited testimony  concerning          other vessels that might have been in the area at the time of the          airdrop but were not detected on radar, including  a vessel found          abandoned  on  shore on  the  morning of  January  5, 1995,  that          contained marijuana residue.  Rivera-Santiago testified that  his          vessel  was operating without  navigation lights on  the night in          question because the vessel s built-in navigation lights had been          damaged  on a previous occasion and  because he had stopped using          the portable navigation light he  had recently purchased for  the          boat.  He explained that  the portable navigation light  wouldn t          stay  fixed for  a long  time,  would  fall every  time the  boat                                        ____________________          2   The boat  was registered under  registration number PR0645BB,          but bore the number PR0645DD.                                         -8-          jumped, and  didn t work. 3  His testimony also indicated that he          began fixing  one of  the engines  on the  boat at  approximately          11:00 p.m. with only the aid of a flashlight, and that the vessel          was  already moving when  the coast  guard helicopter  arrived at          1:13 a.m.  Finally,  the defendants elicited testimony concerning          the maximum speed of Rivera-Santiago s vessel, suggesting that it          might have been difficult for the boat to retrieve at least three          bales  of cocaine  and  travel approximately  two  miles, as  the          government s evidence  suggested, during the  six-minute interval          between  the  airdrop  and   the  time  Alpers  detected  Rivera-          Santiago s vessel on radar.   They also argued this point to  the          jury.4                    The jury  began deliberating  late in the  afternoon on          April 10, 1995, and, at 7:50 p.m. the following day, informed the          trial judge that  it was unable to reach a  verdict but wanted to          come back the next day to  continue its deliberations.  The  next          morning, the jury submitted the following message to the court:                    We wish to obtain the following   information          from the transcription notes to clarify some doubts:                                                                                     _________________________________________________________________          3  During  the government s rebuttal,  the law enforcement  agent          who impounded  and operated the vessel  following the defendants           arrest  testified  that he  had  no  trouble  using the  portable          navigation light.          4    Counsel  for  defendant Alamo-Silva  argued  during  closing          argument that Rivera-Santiago s  vessel remained stationary  from          12:45  a.m. until approximately 1:13 a.m.  However, our review of          the  record indicates,  and the  defendants   brief acknowledges,          that Alpers acquired the vessel on  radar approximately two miles          from the site  of the airdrop at 12:45 a.m.,  and that he located          the vessel on his FLIR approximately three miles from the airdrop          at 12:54 a.m., by which time the vessel had stopped moving.                                         -9-                      1.  The  first time  the suspect  air craft                          was detected  in the fishing  area (the                          hour)                      2.  The time of the air drop                      3.  The time  the suspect  vessel was                          detected in the fishing area                      4.  If   there   were  any   sign  of                          flashing lights  from the suspect                          aircraft and suspect vessel.          After  trial  counsel  for defendant  Alamo-Silva  unsuccessfully          argued that  providing  answers to  any of  the jury s  questions          would invade the province  of the jury, the parties and the court          agreed  on  the  responses to  the  first  three  questions.   In          response to the fourth question, and at the government s request,          the trial  judge elected to read  back to the jury  part of David          Cruciger s testimony.   This decision came over the  objection of          counsel for each of the defendants.  Noting that Cruciger was the          only witness who testified that  he saw flashing lights,5 defense          counsel asked that  testimony from the witnesses who  did not see          flashing lights be read into evidence, and further argued that it          was not clear what the jury meant by  suspect vessel.                     The trial judge addressed the jury as follows:                    I have your four questions.  Let  me say that                    the answer to two  of your questions you have                    to  see  the  [videotape  of  the]  FLIR; you                    should see the FLIR.  But I m going to answer                    two  questions.    The  first  -- your  first                    question  is  the   first  time  the  suspect                                                                                     _________________________________________________________________          5  Although  the audio  portion of the  FLIR videotapes  contains          references to flashing lights from sea level and to a temporarily          illuminated light on the suspect aircraft, Cruciger was  the only          witness  to testify  at  trial that  he  saw lights  from  either          source.                                         -10-                    aircraft  was detected  in the  fishing area,                    the hour.  That you may look into the FLIRs.                      Then  the  time  of the  airdrops,  there s                    stipulation that it s 12:39 a.m., 12:39 a.m.,                    time of the airdrop.                      The  third question,  the time  the suspect                    vessel was detected in the fishing area, that                    you have to  look it  up in the  -- from  the                    FLIR tapes.                      Fourth -- I m going to answer that question                    now -- if there --  if there were any sign of                    flashing lights from the suspect aircraft and                    the suspect vessel, I m going to read you the                    testimony   of   David  Cruciger.      Listen                    carefully. [The court reporter then read back                    the    following   portion    of   Cruciger s                    testimony.]:                      Once again while  flying in this pattern,                      we  received  information  from  Omaha 42                      that  a drop  was taking  place  and that                      they  were seeing  the  splashes.   Chris                      Thorton,   Officer   Thorton   said   it,                      directed my attention  out the right-hand                      window  of the  aircraft.   I  banked the                      aircraft over so I  could see out in that                      direction; and with the  aircraft banked,                      I  could   see  down  into  the  water  a                      flashing  light.    It was  described  by                      Omaha 42.  As we watched the light, I saw                      an aircraft  or what I believed  to be an                      aircraft    turn   on    its   navigation                      recognition   lights  and   fly   at  low                      altitude  over   the  lights   that  were                      flashing in the water.                    [The trial  judge continued.]    Okay.   Very                    well.  You may go back to your deliberations.                    The   jury  returned   guilty   verdicts  against   the          defendants on all counts approximately  two hours after the trial          judge answered  its questions,  apparently having eaten  lunch in          the interim.  Defendant Alamo-Silva  was sentenced to prison  for          295 months.   Defendant  Rivera-Santiago was sentenced  to prison          for life.                                         -11-                                   II.  Discussion                                   II.  Discussion                    A.  The Trial Judge s Response to the Jury s Fourth                    A.  The Trial Judge s Response to the Jury s Fourth                        _______________________________________________                        Question                        Question                        ________                    We first  address the  defendants  contention  that the          trial judge committed  reversible error when, in response  to the          jury s  fourth  question, he  selected  a  portion of  Cruciger s          testimony and had it read to the jury.                    The  Sixth  Amendment  guarantees  a  defendant  in   a          criminal case the  right to a trial by jury.   We have previously          noted that  [u]ndeniably inherent in the constitutional guarantee          of trial by  jury is the principle  that a court may  not step in          and  direct  a  finding  of  contested  fact  in  favor  of   the          prosecution  regardless  of how  overwhelmingly the evidence  may          point in that  direction.   United States v. Argentine,  814 F.2d                                      _____________    _________          783, 788 (1st Cir. 1987)  (quoting United States v. Martin  Linen                                             _____________    _____________          Supply Co., 430  U.S. 564,  573 (1977)).   Although the  district          __________          court may,  at its  discretion, reread testimony  where the  jury          makes  a request to  have specific  testimony reread,  see, e.g.,                                                                 ___  ____          United  States v.  Bennett,  75 F.3d  40,  46  (1st Cir.),  cert.          ______________     _______                                  _____          denied, 117 S.  Ct. 130 (1996); United States v.  Aubin, 961 F.2d          ______                          _____________     _____          980, 983-84 (1st  Cir.), cert.  denied, 506 U.S.  886 (1992),  we                                   _____________          have noted that  the culling of testimony in response to a jury s          open-ended question may,   in effect, make the court  a finder of          fact,   see Aubin,  961  F.2d at  983 (quoting  United  States v.                  ___ _____                               ______________          Almonte, 594  F.2d  261, 265  (1st Cir.  1979)),  and have  found          _______          constitutional  error where a district court s answer to a jury s          factual question had the effect of mandating that the jury  reach                                         -12-          a conclusion on a particular issue.   Argentine, 814 F.2d at 787-                                                _________          88.                    Our  analysis of the trial judge s answer to the jury s          fourth  question in the  context of the  evidence elicited during          the course  of the  trial compels us  to conclude that  the trial          judge usurped  the  jury s factfinding  role  as to  the  subject          matter  of  that  question,  and,  in  so   doing,  deprived  the          defendants  of their right  to trial by  jury.  In  reaching this          conclusion, we  note that  two of  the  vices   we identified  in          Argentine  are not present here.   First, the trial judge did not          _________          expressly represent that the parties  had reached an agreement as          to  the subject matter  of the  jury s question.   Second, rather          than   presenting  his   answer   to  the   jury s  question   as           accomplished fact,  the  trial judge informed the  jury that the          evidence  he was  recounting was  the  testimony of  a particular          witness.   See id. at 787.  However, it  is evident from a review                     ___ ___          of the record that the  substance of the court s answer  together          with the context in which it was delivered brought about the same          prohibited result that we found in Argentine for three reasons.                                             _________                    First,  the  trial  judge   selected  only  a  part  of          Cruciger s  testimony given on  direct examination to  be read in          response  to the jury s  question and,  in so  doing, necessarily          suggested to  the jury  that this  testimony would  provide  the           answer to the jury s question.  This suggestion had the effect of          both encouraging  the jury  to believe Cruciger  and discouraging          the jury  from  considering and  possibly  crediting  alternative          accounts of  the  events surrounding  the  airdrop.   The  record                                         -13-          contains   evidence   that   was  inconsistent   with,   if   not          contradictory to, Cruciger s assertion that he saw an exchange of          lights  during the airdrop between the suspicious aircraft and an          object in the water.   For example,  Cruciger s testimony was  at          odds with Rivera-Santiago s assertions that his vessel s built-in          navigation lights were not working and that he  had stopped using          the portable navigation light that he had recently purchased.  In          addition, Cruciger testified on  direct examination that he began          looking for  flashes of  light from sea  level after  the suspect                                                         _____          aircraft had  begun  dropping objects  into  the water  and  then          stated on cross-examination that he believed he saw lights during          the airdrop.    However,  the  audio  portion  of  the  videotape          indicates  that  unidentified  air interdiction  officers  viewed          flashing lights before any objects  were dropped, and contains no                          ______          mention of lights from sea level during or after the airdrop.  At          a minimum,  these inconsistencies  raise questions about  when or          whether Cruciger  saw flashing lights from  sea level and,  if he          saw  lights, whether  those  lights came  from  Rivera-Santiago s          vessel or from another vessel.                    Second, the context  in which the trial  judge gave his          response to the jury s fourth question had the  effect of placing          his  imprimatur  on  the  facts  contained  in  that  portion  of          Cruciger s  testimony  that  was  read  to   the  jury.    It  is          significant that the jury was posing questions in order to obtain          information  from  the  record   to  clarify  some doubts.     In          answering  the  first three  questions,  the  trial judge  either          provided  an unequivocal statement  of fact to  which the parties                                         -14-          had stipulated (question no. 2) or directed  the jury to the FLIR          videotapes where  the answer  to their  questions could  be found          (question nos.  1 &  3).   However, in  responding to  the jury s          fourth question the trial  judge began by  stating  I m going  to          answer  that  question now,   and  then  had part  of  Cruciger s          testimony read.   The net effect of what the  trial judge did was          to  focus  the  jury s  attention  on  only  part  of  Cruciger s          testimony concerning flashing lights and away from other evidence          given by Cruciger and others that was relevant to a resolution of          the doubts the jury expressed in its note about  the existence of          flashing lights from the air and from sea level.                    Finally, by referring the jury to Cruciger s testimony,          the trial judge suggested  to the jury that the   suspect vessel           (the term used in the jury s question and throughout the trial to          describe the  boat on which  the defendants were found),  and not          another vessel, was the source of the light that Cruciger claimed          to  have  seen.   Although,  as noted  above,  Rivera and  Alpers          testified  that Rivera-Santiago s  vessel was  the only  one that          showed  up on radar  at the time  of the airdrop,  the defendants          presented evidence  suggesting that  there were other  vessels in          the area.  The trial judge s answer to the  question confirmed an          assumption inherent in the jury s question, i.e., that the vessel          seen  flashing its  lights  was the  same   suspect vessel   that          Alpers picked up on radar six minutes after the airdrop  occurred          and approximately two miles away.                    For the  foregoing reasons, we conclude  that the trial          judge s  response  to  the  jury s fourth  question  invaded  the                                         -15-          province of  the jury.6  We  must next turn our  attention to the          question  of whether  the district  court s error  can be  termed           harmless.   As we noted in  Argentine, in cases involving errors                                       _________          of constitutional dimension the harmless-error inquiry focuses on          the existence of a reasonable possibility that the error at issue          influenced the jury in reaching the verdict.  Argentine, 814 F.2d                                                        _________          at 789 (citing Fahy v.  Connecticut, 375 U.S. 85, 86-87  (1963)).                         ____     ___________          Phrased  another   way,  we   must  now  determine   whether  the          constitutional error was harmless beyond a reasonable doubt.  Id.                                                                        ___          at 789; see also Sullivan v. Louisiana, 508 U.S. 275, 279 (1993);                  ________ ________    _________          Chapman v. California,  386 U.S. 18, 23-24  (1967); United States          _______    __________                               _____________          v. Trenkler, 61 F.3d 45, 60 n.22 (1st Cir. 1995).7             ________                    As we have previously noted, the jury in its message to          the trial  judge sought specific factual  information  to clarify          some  doubts.    Therefore,  we  can  reasonably  infer from  the                                                                                     _________________________________________________________________          6   While trial judges have discretion  as to the manner in which          they  respond to  questions from  a jury,  great caution  must be          exercised  when a  jury asks  a  factual question  concerning the          evidence in a case.  In view of the evidence presented during the          trial of this          case, an appropriate response to  the jury s question would  have          been  an instruction  to  the  jury that  it  must  take its  own          recollection of the evidence.  See, e.g., Aubin,  961 F.2d at 983                                         ___  ____  _____          (trial judge did not abuse discretion where, in response to          factual question, he instructed  the jury that as finder  of fact          it  was  its responsibility  to  weigh  and interpret  evidence);          United States  v. Hyson, 721  F.2d 856,  865 (1st Cir.  1983) (no          _____________     _____          abuse of discretion where, in response to factual question, judge          declined to reread relevant testimony and instructed jury to make          findings based on its recollection of the evidence).          7  The defendants  do not contend that the district court s error          falls  into the  narrow category  of constitutional  defects that          foreclose all harmless error review.   See Arizona v. Fulminante,                                                 ___ _______    __________          499 U.S. 279, 306-12  (1991) (distinguishing between trial errors          that abridge  defendant s  constitutional rights  and  structural          defects affecting framework in which trial proceeds).                                         -16-          context in which the jury asked the  fourth question that some or          all of the jurors, after deliberating  for a little more than one          day, entertained   some doubts   about the existence  of flashing          lights  from the  suspect  aircraft  and  suspect  vessel.   That          the  jury had  doubts about  this  issue is  significant for  two          reasons.    First, the  existence  or  non-existence of  flashing          lights,  their  location,  their  source, and  their  timing  are          matters  that  were central  both  to  the government s  and  the          defendants  theories of the case.                    Second, the manner in which the trial  judge culled the          evidence  effectively determined  the outcome  of how  the jurors          would resolve  their doubts since they were directed to only part          of  the  evidence  concerning  lights  (i.e.,  a portion  of  the          testimony of  the only witness  who testified that he saw lights)          instead  of being  instructed to  consider and  weigh all  of the          evidence  relating  to  that  issue  adduced  at   trial.8    The          defendants  were entitled to  have their  theory of the  case, as          developed through  their evidence,  presented to the  jury on  an          equal footing with the government s theory of the case.  This did          not occur because the trial judge s response tipped the scales in          favor of the government s theory.                                                                                      _________________________________________________________________          8  The  defendants, who contended  they were  out fishing on  the          night  in question,  adduced  evidence that  they were  operating          without  navigation  lights  because  the  built-in  lights  were          previously damaged  and the  portable navigation light  would not          stay  fixed, that it was not unusual  for fishermen to be without          lights, that there were  other vessels in the area  including one          found  on  shore  with marijuana  residue  in  it,  and that  the          government s time  line, i.e.,  the six-minute span  within which          certain  events   were  supposed   to  have  occurred,   was  not          reasonable.                                         -17-                    We  also note that the jury  had expressed to the trial          judge an inability to reach a verdict the night before posing its          questions  and  arrived  at   guilty  verdicts  two  hours  after          receiving  the  answers,  raising  an inference  that  the  trial          judge s  response  influenced  the   verdicts.    While  such  an          inference  in and of itself is  not controlling in our evaluation          of harmless error, it is a  factor that can be weighed along with          other factors.                    We  have considered  the  trial judge s  error and  its          effects,  as previously discussed,  in the context  of the entire          trial   record.       The   government    presented   significant          circumstantial  evidence  pointing   to  the  defendants   guilt.          However,  under the  applicable standard  the verdicts  can stand          only if we  find that the error was harmless  beyond a reasonable          doubt.  We cannot make such  a finding.  The government s case as          to  the  identity  of  the   suspect  vessel   required  a  close          calculating and comparing of times, coordinates, and distances, a          process  that might well have been shortcircuited by injection of          the incriminating aspect of the  evidence as to flashing  lights.          We conclude  that in  view  of the  context in  which the  fourth          question was asked, the significance of the issue  raised by that          question to the outcome of the case, the response that was given,          and  the  context in  which the  response was  given, there  is a          reasonable  possibility that  the error  at issue  influenced the          jury  in reaching  its verdicts  in  this case.   Therefore,  the          verdicts cannot stand.                    B.  Evidentiary Issues                    B.  Evidentiary Issues                        __________________                                         -18-                    Several  of  the  evidentiary   issues  raised  by  the          defendants are  likely to  recur in  the event  of a  retrial and          therefore we will addressnforcement officers who, not having been          qualified as experts, offered opinion testimony at trial based on          their experience.9   Specifically,  the defendants object  to the          testimony  of John Alpers  and Raul Rivera  suggesting that items          dropped  from an  airplane  and not  otherwise gathered  together          would  have been  further  apart than  the  objects appearing  on          Rivera s  FLIR behind the  suspect vessel; to  U.S. customs agent          Roberto Escobar s  testimony suggesting  that the reason  a wrong          number  might be  painted on  the rear  of a  vessel would  be to          hinder  law enforcement authorities  from identifying  its owner;          and  to  Escobar s characterization  of  the  coordinates of  the          airdrop as being  pretty close  to those found on the back of the          business card found in Rivera-Santiago s wallet.                      In United  States  v. Paiva,  892  F.2d 148  (1st  Cir.                       ______________     _____          1989), we  noted that the  modern  trend favors the  admission of          opinion  testimony  [from lay  witnesses],  provided  it is  well          founded   on  personal  knowledge   and  susceptible   to  cross-          examination.    Id.   at  157  (permitting drug  user to  express                          ___                                                                                     _________________________________________________________________          9    The  government  contends  that  the  evidence was  properly          admitted under Rule 701, which provides:                    If the witness is not testifying as an expert, the               witness   testimony   in  the   form  of   opinions  or               inferences is limited  to those opinions  or inferences               which are (a) rationally based on the perception of the               witness and (b) helpful to a clear understanding of the               witness  testimony  or the  determination of a  fact in               issue.          Fed. R. Evid. 701.                                         -19-          opinion  that  substance  she  found was  cocaine).    We further          explained that  the individual experience  and knowledge of a lay          witness  may   establish   his   or   her   competence,   without          qualification as an expert, to express an opinion on a particular          subject  outside the  realm of  common knowledge.    Id.;  accord                                                               ___   ______          United States  v. VonWillie,  59 F.3d  922, 929  (9th Cir.  1995)          _____________     _________          (based on experience, police officer could testify as lay witness          that it was common for drug traffickers to use weapons to protect          drugs; opinion was helpful  to determination of whether defendant          was involved in drug trafficking).                    After reviewing  the record,  we find  no error  in the          admission of  the opinions  of Rivera and  Alpers concerning  the          proximity  of  the  bales  to  Rivera-Santiago s  vessel.    Both          witnesses  testified that  they had  extensive experience  as air          interdiction  officers with  the U.S.  Customs Service,  and were          competent  to testify as to the  behavior of objects dropped from          an airplane.   Further,  the testimony  was helpful  both to  the          jury s understanding  of the likelihood that  two objects dropped          from an airplane would be close together after the airdrop and to          the  jury s  resolution  of   the  question  of  the  defendants           involvement in the airdrop.10                                                                                     _________________________________________________________________          10   We reject the  defendants  contention that  the testimony of          Rivera and Alpers,  which suggested  to the jury  that the  bales          might have been dumped overboard,  was impermissibly inconsistent          with the testimony from  other government witnesses who suggested          that the  bales had been tied  together and placed in  tow.  This          inconsistency  is  not  grounds  for the  exclusion  of  relevant          evidence, but, rather,  is a  matter properly to  be explored  on          cross-examination and ultimately to be resolved by the jury.                                         -20-                    Nor do  we  find error  in the  admission of  Escobar s          statement concerning the  numbers painted on the  back of Rivera-          Santiago s  vessel.  Escobar testified at trial that, in addition          to  other  law  enforcement  experience,  he  had  worked  for  a          smuggling unit of the U.S. Marshals Service for two years, during          which  time  he  had   been  involved  in  approximately  fifteen          missions.    As  such,  he  was  entitled  to  draw  on  his  law          enforcement  experience in  conveying  opinion  testimony to  the          jury.   Further, his testimony concerning the significance of the          incorrect  registration number  was  helpful to  the jury,  which          might  not  have  been  aware  of  the  existence  of  a  central          registration  system   for  sea  vessels  similar   to  that  for          automobiles.11                    However, we do find error in the trial judge s decision          to permit  Escobar to testify  that the coordinates found  on the          back of the business card were  pretty close   to the coordinates                                                                                     _________________________________________________________________          11   Although the defendants rely  on United States v. Montas, 41                                                _____________    ______          F.3d 775 (1st Cir.  1994), cert. denied sub nom.  F lix-Montas v.                                     _____________________  ____________          United States, 115 S. Ct. 1986 (1995), to support their argument,          _____________          we believe that Montas is distinguishable from the instant case.                           ______          In  Montas,  a  federal  drug  enforcement  agent  who  had  been              ______          qualified as an expert  testified that in ninety-nine percent  of          the cases in  which he had  worked that involved  the seizure  of          drugs at an  airport, the passenger  involved had been  traveling          under a false name.  He  further testified that it was   obvious           that a passenger  trying to smuggle drugs would use  a false name          to  avoid  detection.   Id.  at  784.    In  concluding that  the                                  ___          admission  of  this testimony  was  likely  beyond the  limit  of          admissibility, we noted the  danger of unfair prejudice resulting          from the use of an expert witness to corroborate the government s          case.   Id.  at 786.    However, the  risk of  prejudice that  we                  ___          identified in Montas is  less severe where, as here,  the witness                        ______          has  not been qualified as  an expert.   Moreover, unlike Montas,                                                                    _______          the testimony at  issue in the  instant case does  not suggest  a          definite correlation between a suspicious characteristic and  any          illegal activity.                                         -21-          of  the  airdrop  site.    Immediately  prior  to  offering  this          conclusion,  Escobar testified  that he  did not  understand what          some of the numbers  on the business card meant  and acknowledged          that he was   not an  expert in coordinates.    In addition,  his          testimony  that the coordinates  were  pretty  close  represented          only his characterization of the distance between the two points.          As  presented,  the  witness s testimony  lacked  an  appropriate          foundation and his conclusion  was of little  aid to the jury  in          understanding the evidence.                    The defendants  also challenge as  unfairly prejudicial          and without foundation  the testimony of a  U.S. drug enforcement          agent,  who, not having  been qualified  as an expert,  stated on          direct examination that the street value  of the cocaine found at          sea may  have exceeded  $18 million.   However, we  have recently          stated  that  [t]here is little dispute that such information may          aid  in proving intent to distribute.    United States v. Rivera,                                                   _____________    ______          68  F.3d 5,  8 (1st  Cir.  1995), cert.  denied, 116  S. Ct.  970                                            _____________          (1996).  In addition,  in this case the evidence  was relevant to          bolster  the government s claim  that a  smuggler would  not drop          valuable property into the water  unless a specific target was in          the  area.   Finally,  as we  noted  in Rivera,   DEA agents  are                                                  ______          especially  qualified, and need  not be certified  as experts, to          testify  about street  value.    Id.    We see  no  error in  the                                           ___          admission of this testimony.                    C.  Sentencing Issues                    C   Sentencing Issues                        _________________                                         -22-                    Since  the court  has determined  that the  defendants                               convictions must  be vacated,  there is  no need  to address  the          sentencing issues raised on appeal.                                         -23-                                   III.  Conclusion                                   III.  Conclusion                                         __________                    The defendants  convictions are vacated.  The cases are                                                    _______          remanded for a new trial.          ________                                         -24-
