
USCA1 Opinion

	




                                 ____________________        No. 94-2303                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  ALEJANDRO COLLADO,                                Defendant, Appellant.                                 ____________________        No. 95-1041                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 MIGUEL CRUZ-SORIANO,                                Defendant, Appellant.                                 ____________________        No. 95-1080                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    MIGUEL BRITO,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Jeffrey E. Feiler, P.A. on consolidated brief for appellants.            _______________________            Miguel Brito on supplemental brief pro se.            ____________            Jose   A.  Quiles,   Assistant  United   States  Attorney,  Senior            _________________        Litigation Counsel, Guillermo Gil, United States Attorney, and Jacabed                            _____________                              _______        Rodriguez Coss, Assistant  United States  Attorney on  briefs for  the        ______________        United States.                                 ____________________                                   February 1, 1996                                 ____________________                 CAMPBELL,  Senior Circuit Judge.  This is a consolidated                            ____________________            appeal on behalf of three defendants who were aboard a vessel            that was  intercepted  for narcotics  trafficking  in  Puerto            Rican  waters.    Following  a  four-day  joint  jury  trial,            Alejandro Collado, Miguel Cruz-Soriano, and Miguel Brito were            found guilty of aiding and abetting the possession of cocaine            with intent to distribute, in violation of 21 U.S.C.   841(a)            and 18 U.S.C.   2.1   Each received a sentence of 235  months            of imprisonment to  be followed by  five years of  supervised            release.    On  appeal  they  claim  that  the  evidence  was            insufficient to sustain the jury  verdict.  In a supplemental            brief filed  pro se,  defendant Brito  asserts several  other            errors that allegedly infected the trial and his sentence.            I. Background            I. Background                      We  summarize  the relevant  evidence in  the light            most favorable to the verdict.   See United States v. DeMasi,                                             ___ _____________    ______            40 F.3d  1306, 1310 (1st Cir. 1994), cert. denied, 115 S. Ct.                                                 ____________            947 (1995).  In the early hours of January 27, 1994, the U.S.            Customs Service  Air Branch  dispatched two  aircraft to  the            southeast  of St.  John  in  the  U.S. Virgin  Islands  after                                            ____________________                 1  A second  count  charging  aiding  and  abetting  the            possession  of cocaine with intent to  distribute, on board a            vessel  of the United States and subject to its jurisdiction,            in violation of 46 U.S.C.    1903(a)(1), (a)(2)(C), & (f) and            18 U.S.C.   2, was dismissed following the defendants' motion            for judgment of acquittal pursuant to Fed.R.Crim.P. 29.                                         -3-                                         -3-            learning that  an air drop  of contraband was to  take place.            The plane making  an air drop was not found, but a vessel was            detected in  the suspected  area, east of  Puerto Rico,  by a            Customs  NOMAD  maritime  surveillance  and  search  aircraft            equipped with  a 360-degree radar  ("Omaha 05").   Pilot Mark            Jackson   first  observed  the  vessel  from  his  window  at            approximately  3:33  a.m.,  aided by  bright  moonlight.   He            testified  that the vessel  was traveling without  lights and            quickly,   leaving   behind  observable   waves.     The  air            interdiction   officer  who   assisted   him,  Leslie   Robb,            immediately  located  the  vessel  using  a  forward  looking            infrared  (FLIR) system.   This equipment senses  heat energy            emitted by objects and produces  black and white images which            can be recorded on videotape, as was done here.                      Omaha 05  tracked the  vessel for  about forty-five            minutes until it reached Cayo  Luis Pena, an uninhabited  key            near the  eastern coast of  Puerto Rico.  During  this period            the vessel occasionally stopped; Officer Robb testified  that            smugglers often use this tactic  of going "dead in the water"            (DIW) in order to listen  for surveillance aircraft and avoid            detection.  Omaha  05 lost track of the vessel at least twice            during this  period.   Contact resumed  within a  few minutes            each time, according to the videotape and testimony by Robb.                      After  the vessel reached  Cayo Luis  Pena, Officer            Robb observed  at least three  people moving to and  from the                                         -4-                                         -4-            shore.   The vessel departed  seven to ten minutes  later, at            about 4:30  a.m.   It traveled westward  without lights  at a            gradually increasing speed.  Omaha 05 tracked the vessel  for            about forty  minutes and then  lost contact at 5:09  a.m. for            twelve minutes.  Officer Robb explained at trial that he lost            the  target vessel  when it  went DIW  and his  attention was            focused on the radar, instead  of the FLIR (a manual tracking            system),  in order  to direct  a Customs  marine unit  to the            target vessel.   Robb temporarily  was unable  to detect  any            vessel in the  area.  He then located the Customs marine unit            and  a fuerzas  unidas  rapida accion  (FURA)  vessel of  the                   _______  ______  ______ ______            Puerto Rican Police  Department, and at 5:21  a.m. reacquired            the target vessel on the FLIR.  The vessel was less  than one            mile from the point where  it was lost.  Robb testified  that            no other vessels were detected in the area.                      Omaha 05, assisted by a FURA helicopter, guided the            Customs marine  unit to intercept  the target vessel.   Pedro            Vicens,  a special  agent and  criminal  investigator on  the            Customs  boat, testified  that four individuals2  were aboard            the  twenty-four foot fishing boat which had two seventy-five            horsepower engines.  The vessel had two large gas tanks built            into  the area that  customarily stores fishing  equipment or            bait.  Approaching the vessel, Vicens sensed a strong odor of                                            ____________________                 2 Diogenes Arturo  Marcelino, in whose name the boat was            registered, entered  a guilty  plea before  the trial  of the            three defendants-appellants.                                         -5-                                         -5-            gasoline.  He  soon observed that the boat  was full of fluid            and gasoline: the fuel line had been cut, gas was coming from            the tank,  and individuals aboard appeared to  be bailing out            gasoline  from the bottom of  the vessel and  moving as if to            wash something.    He  testified  that washing  the  deck  to            conceal any  smell  or  residue of  narcotics  was  a  common            practice of drug smugglers.                       The  four  aboard  were   taken  into  custody  and            transported along with  the vessel to  the police station  at            Puerto Chico.   Thereafter,  Pilot Jackson  and Officer  Robb            accompanied  Customs Agents  Vicens  and Hector  Marte (among            others) by helicopter to Cayo Luis Pena, the uninhabited  key            at which Omaha 05 had  observed the vessel stop approximately            three  hours earlier.    There they  searched the  area where            movement had been detected.  They found nine bales containing            261 kilograms  of cocaine,  as a  laboratory test  confirmed.            Upon  return   to  the   station  at   Puerto  Chico,   Marte            photographed  the vessel and retrieved fibers of plastic, red            and  yellow  yarn, green  fluorescent  material, and  plastic            bubble wrapping.   A forensic chemist compared  these samples            to ones taken  from the wrapped bales found at Cayo Luis Pena            and  testified that they  had the same  chemical composition.            Also  found on  the boat  were life  jackets, a  knife, flare            guns, spark plugs, and damp cloth.                                           -6-                                         -6-                      At  the close of the government's case, the defense            moved for a judgment of  acquittal on both counts pursuant to            Fed.R.Crim.P. 29.  The district court denied the motion as to            count  one and  reserved ruling  on  the second  count.   The            defense  rested without  presenting evidence and  again moved            for a judgment of acquittal.   The following day the district            court again denied the motion as to count one, and granted it            as to  count two.   It instructed the  jury on the  charge of            aiding and abetting the possession of  cocaine with intent to            distribute.   A  guilty  verdict  was  returned  against  all            defendants.            II. Discussion            II. Discussion                      Defendants   challenge  the   sufficiency  of   the            evidence  to support their convictions.   They claim that the            government failed to show the shared criminal intent required            for  an  aiding and  abetting  charge.    They add  that  the            temporary  losses  of tracking  on  the FLIR  system  and the            weakness  of the  circumstantial evidence connecting  them to            drug trafficking warrant a reversal of their convictions.                       In reviewing these claims, we consider the evidence            in the record as a whole, including all reasonable inferences            therefrom, in the light most favorable to the  prosecution in            order  to ascertain whether a  rational jury could have found            defendants  guilty beyond  a reasonable  doubt.   See  United                                                              ___  ______                                         -7-                                         -7-            States v. Romero,  32 F.3d 641, 645  (1st Cir. 1994).   In so            ______    ______            doing, we defer  to the jury's determinations  of credibility            and respect its reasonable construction of the evidence.  See                                                                      ___            id.   We  note  that "no  premium  is placed  upon  direct as            __            opposed to  circumstantial evidence,"  and that  "'individual            pieces of  evidence, insufficient  in themselves  to prove  a            point, may in cumulation prove it.'"  United States v. Ortiz,                                                  _____________    _____            966 F.2d  707, 711 (1st Cir. 1992) (citations omitted), cert.                                                                    _____            denied, 113 S. Ct. 1005 (1993).            ______                      Defendants contend that the government had to prove            that they  had a shared  criminal intent and were  not merely            present at or aware of a  criminal act.  See Nye & Nissen  v.                                                     ___ ____________            United States, 336 U.S. 613, 619 (1949) (a defendant who aids            _____________            and  abets must  "in  some sort  associate  himself with  the            venture,  . .  . participate  in it as  in something  that he            wishes to bring about") (citing  United States v. Peoni,  100                                             _____________    _____            F.2d 401, 402 (2d  Cir. 1938)); United States v.  Francomano,                                            _____________     __________            554  F.2d 483,  486 (1st Cir.  1977)  ("mere  presence at the            scene  and knowledge  that a  crime was  to be  committed" is            insufficient to show aiding and abetting) (citation omitted).            They  assert that  no proof was  offered on  the relationship            between them and the apparent captain (in whose name the boat            was  registered), between  the  four  aboard  and  the  three            persons observed offloading at Cayo Luis Pena, or between the            defendants  themselves.  Moreover, no connection to any plane                                         -8-                                         -8-            making an air drop was ever established.  Defendants add that            upon  interception of the vessel, they permitted Agent Vicens            to board and cooperated fully.                      The record, considered as a whole, does not support            defendants'  argument.   The knowledge  element  of a  charge            under                841(a) "can rarely  be established with  direct evidence."            United States v. Gonzalez-Torres, 980 F.2d 788, 791 (1st Cir.            _____________    _______________            1992).  Circumstantial  evidence has been  held to justify  a            finding  of criminal  intent on  facts  quite similar  to the            instant case: i.e., where only a few individuals are aboard a                          ____            small boat,  large or  extra gas tanks  are in  place (rather            than  more typical  bait or  fishing  equipment), the  vessel            periodically runs without lights and goes DIW, an FLIR system            tracks the  vessel to the  site where drugs are  later found,            traces  of material  used to  wrap the  cocaine are  found on            board,  and a legitimate  alternative purpose for  the voyage            appears  lacking.   See,  e.g.,  United  States  v.  Morales-                                ___   ____   ______________      ________            Cartagena, 987 F.2d  849, 852 (1st Cir. 1993);  United States            _________                                       _____________            v. Alvarado,  982 F.2d 659,  661-662 (1st Cir.  1992); United               ________                                            ______            States  v. Cuevas-Esquivel,  905 F.2d  510,  515 (1st  Cir.),            ______     _______________            cert. denied, 498  U.S. 877 (1990); United  States v. Corpus,            ____________                        ______________    ______            882  F.2d 546,  550 (1st  Cir.), cert.  denied, 493  U.S. 958                                             _____________            (1989) and  497 U.S.  1009 (1990).   A jury  could reasonably                   ___            infer from the evidence that each of the defendants possessed                                         -9-                                         -9-            the  requisite  criminal  intent and  aided  and  abetted the            accomplishment of the offense as charged.3                      Defendants  attempt to poke  several other holes in            the prosecution's  case: 1) no  plane making an air  drop was            found;  2)  the   intercepted  vessel  itself   contained  no            contraband; 3)  the residue  particles found  on board  could            have  been tracked  on  by  Agent Marte  after  he helped  to            collect the  cocaine bales from Cayo Luis Pena, especially as            he  did  not  note  the  presence  of  any  residue  when  he            intercepted and boarded  the vessel; 4) Agent Vicens  did not            document any cut fuel line or gasoline  on deck in his report            of the incident; 5) no  description of the vessel is provided            in the audio/videotape;  6) the vessel initially  tracked was            said  to be  traveling toward  Fajardo  on the  east side  of            Puerto Rico, whereas Cayo Luis  Pena is northward; and 7) the            FLIR system lost the suspected  vessel at least three  times,            including  once for a  twelve-minute period, after  which the            vessel was found  within one  mile of  its previous  location            despite testimony as to its capacity for rapid travel.                                              ____________________                 3   As   the  government   notes,   defendants   do  not            specifically  challenge  the   sufficiency  of  the  evidence            relating  to  an  intent  to  distribute.    Proof  beyond  a            reasonable doubt  of knowing  possession for  the purpose  of            distribution is  required for a  charge under   841(a).   See                                                                      ___            United States v. Garcia, 983 F.2d 1160, 1164 (1st Cir. 1993).            _____________    ______            To  the  extent  that  defendants'  challenge  was  meant  to            incorporate  this aspect of intent, our holding is unchanged.            Their  intent to distribute  can reasonably be  inferred from            the large  quantity of  cocaine (261  kilograms), cf.  id. at                                                              ___  ___            1165, which was deposited on the uninhabited key.                                         -10-                                         -10-                      We again find the  above argument unpersuasive when            assessed in light  of the record as a whole.  With respect to            the last  three  points alleging  misidentification of  their            vessel, the jury was free to believe the testimony of Officer            Robb, who operated the radar and FLIR system and detailed the            process  by which  Omaha 05  tracked  the vessel.   The  jury            viewed  much of  the videotape,  including the  twelve-minute            period  when the  Omaha 05  lost  the vessel.   Its  apparent            decision  to credit  Robb's  testimony  that  no  other  non-            governmental vessels  were in the  area at the time  and that            the same vessel was subsequently  located is a plausible view            of the evidence.                        The jury  also could have reasonably concluded that            the vessel  changed direction at  some point  in its  voyage.            The  absence  of  contraband  aboard  is  not  fatal  to  the            prosecution's case, given substantial evidence connecting the            vessel  to the  cocaine (e.g.,  the  videotape, the  positive                                     ____            match of wrapping samples,  the departure of the  vessel from            Cayo Luis Pena without lights at an increasing speed, and the            evidence of  extra fluid  on the vessel  bottom and  the crew            members'  washing motions).  Cf. Cuevas-Esquivel, 905 F.2d at                                         ___ _______________            512,  515 (affirming conviction where no contraband was found            aboard but  a videotape showed  a tarp being thrown  from the            ship and bales  floating nearby); Corpus, 882 F.2d at 549-550                                              ______            (same, where bales were observed  being thrown from the  ship                                         -11-                                         -11-            and floating nearby,  no other vessel was shown  to be in the            area, and  the vessel bottom  appeared to have  been recently            washed).    Nor  do  defendants'  other  contentions  warrant            disturbingthejury'sassessment oftheoverallevidence presented.                      It is well established that the government need not            "disprove every reasonable hypothesis  of innocence, provided            that the  record as  a whole supports  a conclusion  of guilt            beyond a  reasonable doubt."   Cuevas-Esquivel,  905 F.2d  at                                           _______________            514;  Gonzalez-Torres,  980  F.2d  at  790.    We  find  that                  _______________            sufficient  evidence  was  presented  to  sustain the  guilty            verdicts here.4                      The judgments of conviction are affirmed.                                                      ________                                            ____________________                 4  We  have  considered,   in  addition,  the   separate            contentions made  by defendant Brito  in his brief.   We find            these contentions to be without merit.                                           -12-                                         -12-
