                                                           [PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                 FOR THE ELEVENTH CIRCUIT
                                                           FILED
                                                U.S. COURT OF APPEALS
                                                  ELEVENTH CIRCUIT
                          No. 03-14361                October 26, 2006
                                                   THOMAS K. KAHN
                                                          CLERK
              D. C. Docket No. 02-00435-CR-T-24-EAJ

UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee,


                             versus


VINCENTE REVOLORIO-RAMO,
MISAEL CAMARENO-CAMARENO,
WAGNER HSTI ROTTER,
JUAN ALBERTO PAZ,


                                              Defendants-Appellants,



                          No. 03-14478


               D. C. Docket No. 02-0043-CR-J-24EAJ

UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee,
                                               versus


EDUARDO GARCIA-ESTUPINON

                                                                  Defendant-Appellants,




                      Appeals from the United States District Court
                          for the Middle District of Florida


                                     (October 26, 2006)

Before TJOFLAT and HILL, Circuit Judges, and GRANADE,* Chief District
Judge.

GRANADE, District Judge:

       Vincente Revolorio-Ramo, Misael Camareno-Camareno, Wagner Hsti

Rotter, Juan Alberto Paz, and Eduardo Garcia-Estupinon appeal their convictions

for conspiracy to possess cocaine with intent to distribute it while on board a

vessel subject to the jurisdiction of the United States in violation of 46 U.S.C. app.

§§ 1903(a), 1903(g), and 1903(j), and 21 U.S.C. §960(b)(1)(B)(ii). In this appeal,

we address the district court’s determination that the government’s destruction of



        *Honorable Callie V. S. Granade, Chief United States District Judge for the Southern
District of Alabama, sitting by designation.

                                                 2
allegedly exculpatory evidence did not require dismissal of the indictment.1

                                                  I.

       On October 24, 2002, the U.S. Navy frigate, U.S.S. Boone, intercepted the

“Martita Lau,” a Guatemalan fishing vessel, approximately 200 miles south of

Guatemala. A helicopter from the Navy vessel had spotted the vessel and reported

that the crew on the Martita Lau was not fishing, that the vessel was low in the

water and that there were large containers on deck. The U.S.S. Boone attempted

to hail the vessel, with no response. With high-powered binoculars, officers on

the U.S.S. Boone could see people aboard the fishing vessel running frantically on

deck and throwing objects overboard.

       Officers aboard the U.S.S. Boone, in consultation with a Coast Guard

Command Center in the United States, decided to send a team to board the Martita

Lau. Officers recovered numerous white rectangular objects floating near the


       1
          We affirm, without discussion, all other issues raised by appellants. See 11th Circuit
Rule 36-1. Thus, we conclude that 1) the evidence was sufficient to support the convictions of
Revolorio-Ramo, Camareno-Camereno, Rotter and Paz;
2) the district court did not err in denying the motion to dismiss the indictment as the evidence
supported the finding that Guatemala had consented to the United States exercise of jurisdiction
over the vessel Martita Lau; 3) this Circuit’s case law has established that the Maritime Drug
Law Enforcement Act is not unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000); 4) that the district court did not err in denying all appellants minor or minimal role in the
offense adjustments in calculating the Sentencing Guidelines; and 5) the district court did not err
in finding that Garcia-Estupinan was a supervisor in calculating the Sentencing Guidelines

                                                  3
vessel, and one of the recovered objects tested positive for cocaine. Officers

ultimately recovered 110 bales of cocaine, weighing between 51 and 81 pounds

each - - a total of about 5, 500 pounds. All persons aboard were moved to the

U.S.S. Boone and ultimately transported to Tampa, Florida.

      The boarding party found that there was fuel oil leaking from the engine as

it was running, and a few gallons of oil needed to be added every hour and a half

to keep the engine running. Water was leaking from the housing around the

propeller shaft housing, about 20 gallons per hour. A bilge pump was running to

keep the vessel pumped out.

      The parties disagree as to whether the Martita Lau was properly equipped

for commercial fishing purposes. The government’s position is that a thorough

search uncovered only about ten rusty fishing hooks, and that the small quantity of

bait aboard was frozen solidly into a hold full of ice which took more than 10

hours to remove with pick axes and shovels brought from the Boone. There was

no equipment on board with which the boarding team could remove the ice. The

government states that the hydraulic reel on the boat appeared inoperative and was

in a rusted, poor condition. There were no life jackets on board and no

navigational charts.

      Appellants argue that the Martita Lau was a functional fishing vessel

                                         4
properly equipped for commercial fishing. Four of the appellants testified that

they were employed to crew the vessel as a fishing boat, and that the vessel was

properly outfitted with bait, ice and equipment for fishing. They claimed to have

discovered the true nature of the voyage after they were at sea and when they met

up with the go-fast boat containing the bales of cocaine.

       On instructions from the Coast Guard, an officer from the U.S.S. Boone

recorded images of the vessel and its contents with a digital camera and video

recorder. All parties agree that the video tape is of poor quality and that the

majority of the photographs did not come out. Several photographs were

introduced into evidence that depicted the Martita Lau, and while those

photographs showed that the hull was rusty, they did not have sufficient detail to

show the condition or presence of the fishing equipment.

       The boarding team ultimately determined that the Martita Lau was not

seaworthy and could not feasibly be towed to port. Because the vessel constituted

a hazard to navigation, it was destroyed.

       Appellants, along with four other individuals2 also present on the Martita

       2
          Appellant Garcia-Estupinon was one of the five individuals on board who were not
members of the original crew of the Martita Lau. These five had been the crew of a go-fast boat
that was transporting the cocaine. The go-fast boat experienced mechanical problems, and its
crew transferred the cocaine to the Martita Lau, which apparently was intended to re-fuel the go-
fast boat. The go-fast boat sank prior to the Coast Guard’s interception of the Martita Lau, and
its crew members hid aboard the Martita Lau until discovered by the Coast Guard boarding crew.

                                                5
Lau, were jointly indicted for (1) possession with intent to distribute five

kilograms or more of cocaine while aboard the fishing vessel Martita Lau, a vessel

subject to the jurisdiction of the United States, in violation of 46 U.S.C. App.

§§1903(a) and (g) and 21 U.S.C. §960(b)(1)(B)(ii); and (2) conspiracy to

distribute five kilograms or more of cocaine while on board a vessel subject to the

jurisdiction of the United States, in violation of 46 U.S.C. App. §§1903 (a), (g)

and (j), and 21 U.S.C. § 960(b)(1)(B)(ii). Garcia-Estupinon entered a guilty plea

to the indictment without a plea agreement on May 19, 2003. The other appellants

proceeded to trial, and the jury returned a guilty verdict as to Count 2.

                                          II.

      The district court’s conclusion that no due process violation occurred as a

result of the United States’ destruction of the Martita Lau is a mixed question of

law and fact. We review the court's factual conclusions under the clearly

erroneous standard and the court's legal conclusions de novo. U.S. v. Brown, 9

F.3d 907, 910 (11th Cir. 1993) citing U.S. v. Adams, 1 F.3d 1566, 1577 (11th Cir.

1993).

      Appellants Rotter and Paz specifically argue that the government’s

destruction of the Martita Lau denied them their right to due process. Camareno-

Camareno and Revolorio-Ramo adopt this argument without objection from the

                                          6
government. Garcia-Estupinon does not raise this argument and therefore the

district court’s determinations in his case are affirmed without discussion, as noted

above. Those appellants properly preserving the argument contend that the

government’s destruction of the Martita Lau, with her potentially exculpatory

evidence, violated their due process rights and that the district court should have

granted their motions to dismiss the indictment on these grounds.

      “In order to show that the loss of evidence by the government constitutes a

denial of due process, the defendant must show that the evidence was likely to

significantly contribute to his defense. California v. Trombetta, 467 U.S. 479, 488,

104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984).” U.S. v. Brown, 9 F.3d 907, 910

(11th Cir. 1993). “To meet this standard of constitutional materiality, evidence

must both possess an exculpatory value that was apparent before the evidence was

destroyed, and be of such a nature that the defendant would be unable to obtain

comparable evidence by other reasonably available means.” Id. (quoting

Trombetta at 489). “ [F]ailure to preserve this ‘potentially useful evidence’ does

not violate the due process clause ‘unless a criminal defendant can show bad faith

on the part of the police’ ” Illinois v. Fisher, 540 U.S.544, 547-548, 124 S. Ct.

1200, 1202 (2004), quoting Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct.

333, 337, 103 L. Ed. 2d 281 (1988).

                                          7
      The parties disagree as to the quantity and quality of commercial fishing

equipment and supplies aboard the Martita Lau. Appellants maintain that there

was a large quantity of bait and hooks aboard and that the hydraulic reel was fully

functional. The government contends the amount and condition of the hooks and

bait, and the inoperable condition of the hydraulic reel demonstrated that no

fishing trip was in progress. In addition, the government argues that Appellants’

allegations, if true, would have provided potentially exculpatory evidence only to

the limited extent that it may have bolstered the argument at trial that appellants

were hapless fishermen unknowingly ensnared in a multinational drug running

operation.

      This case is not a situation where no evidence of commercial fishing was

available. The evidence at trial showed that there were hooks and bait aboard the

vessel. It is instead a question of the quantity and quality of commercial fishing

equipment and supplies aboard. Any potentially exculpatory evidence aboard the

Martita Lau would have, at best, bolstered an existing argument that was presented

to the jury through the testimony of the defendants, rather than enabling the

defense to present argument not otherwise available.

      Despite the potentially exculpatory nature of the destroyed evidence, the

record demonstrates that the defendants had the opportunity to cross-examine the

                                          8
law enforcement officers who viewed the contents of the Martita Lau to “attempt

to raise doubts in the mind of the factfinder.” California v. Trombetta, 467 U.S.

479, 490, 104 S.Ct. 2528, 2535 (1984). This opportunity, coupled with the

testimony of the appellants, and the evidence of commercial fishing equipment

successfully documented, constitutes comparable evidence.

      The government attempted to preserve evidence of the condition of the

vessel by taking both still and video photographs. Though the agent in charge of

documenting the evidence in question did a singularly poor job of obtaining digital

images of the allegedly exculpatory evidence aboard the Martita Lau, and the vast

majority of the images were unusable, there is no credible argument advanced to

support the contention that this failure stemmed from bad faith on the part of the

government. In their briefs, appellants concede that the condition of the boat

could have been discerned by examining videotape and photographs, if they had

been properly documented. Appellants thus place fault not with the decision to

record the condition of the unseaworthy boat prior to sinking her, but rather with

the incompetent manner in which this task was performed.

      As in Trombetta, “[t]he record contains no allegation of official animus

towards respondents or of a conscious effort to suppress exculpatory evidence.”

California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413

                                         9
(1984). The Coast Guard district office directed the boarding team to remove any

navigation equipment and evidence that could be used in constructing a defense

from the Martita Lau and to document the vessel through pictures and videotape.

The fact that these instructions were carried out very poorly does not rise to the

standard of an intentional bad faith act. Appellants have never, through brief or

oral argument, proffered an explanation for how the case agent could have

selectively prevented certain photographs from properly transferring from a digital

camera or video camera to an alternative media.

      In short, the government clearly attempted, albeit unsuccessfully and

perhaps incompetently, to document the contents of a vessel deemed unseaworthy

by the Coast Guard prior to destroying her. There is no evidence to suggest that

the mechanical defects resulting in the failure of the majority of the pictures to

accurately capture the intended image was the result of an intentional act.

      We conclude, therefore, that the Due Process Clause of the Fourteenth

Amendment was not violated by the destruction of the Martita Lau and that the

district court appropriately refused to dismiss the indictment on that ground.

Accordingly, the judgment of the district court is affirmed.

      AFFIRMED.




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