
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1324                                    UNITED STATES,                                      Appellee,                                          v.                                MANUEL AMADO GUERRERO,                                Defendant, Appellant,                                _____________________        No. 96-1325                                    UNITED STATES,                                      Appellee,                                          v.                                 CRISPINIANO OSPINA,                                Defendant, Appellant,                                _____________________        No. 96-1326                                    UNITED STATES,                                      Appellee,                                          v.                                    ORLANDO PILCO,                                Defendant, Appellant,                                _____________________        No. 96-1327                                    UNITED STATES,                                      Appellee,                                          v.                                    MANUEL RIVAS,                                Defendant, Appellant,                                _____________________        No. 96-1651                                    UNITED STATES,                                      Appellee,                                          v.                                   DIMAS HERNANDEZ,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Salvador E. Casellas, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Luis  E. Pabon Roca,  by Appointment  of the  Court, for appellant            ___________________        Amado Guerrero.            Peter J. Satz-Hanley,  by Appointment of the Court, for  appellant            ____________________        Crispiniano Ospina.            David A.F.  Lewis,  by  Appointment of  the Court,  for  appellant            _________________        Orlando Pilco.            Miguel A.A.  Nogueras-Castro, Assistant  Federal Public  Defender,            ____________________________        with whom  Gustavo A.  Gelpi, Assistant  Federal Public  Defender, and                   _________________        Benicio  Sanchez Rivera, Federal  Public Defender,  were on  brief for        _______________________        appellant Manuel Rivas.            Irma  R. Valldejuli, by  Appointment of  the Court,  for appellant            ___________________        Hernandez.            Jacabed  Rodriguez  Coss, Assistant  United States  Attorney, with            ________________________        whom  Jose A. Quiles, Assistant United  States Attorney, and Guillermo              ______________                                         _________        Gil, United States Attorney, were on brief for appellee.        ___                                 ____________________                                     May 30, 1997                                 ____________________                      STAHL,   Circuit   Judge.      A   jury   convicted                      STAHL,   Circuit   Judge.                               _______________            defendants-appellants  Manuel   Amado  Guerrero,  Crispiniano            Ospina, Orlando Pilco, Manuel Rivas, and Dimas Hernandez each            of  one  count  of aiding  and  abetting  each  other in  the            possession with  intent to  distribute marijuana on  board an            ocean  vessel  subject  to  the jurisdiction  of  the  United            States,  in  violation of  46  U.S.C. app.    1903(a)  and 18            U.S.C.   2.  On appeal,  the defendants raise various  issues            with respect to their convictions and sentences.  Many of the            issues they ask us to review were not properly brought to the            district  court's  attention.    Finding no  merit  to  their            contentions, we  affirm the district court's  judgment in all            respects.                                          I.                                          I.                                          __                             Facts and Prior Proceedings                             Facts and Prior Proceedings                             ___________________________                      At  trial, the government established the following            facts.1  On the  evening of June 13, 1995, the  United States            Coast  Guard  Cutter MELLON  was  conducting routine  counter            drug-trafficking patrol on the  high seas off Colombia, South            America.    At that  time,  the  weather conditions  included            twenty-knot winds and eight-foot  swells.  Lt. Comdr. Vincent            Morgan   Weber  commanded  the  heavily  armed  378-foot-long            vessel,  which  was  equipped   with  two  smaller  boats:  a                                            ____________________            1.  We recount the trial evidence in the light most favorable            to  the prosecution.   See  United States  v. Ruiz,  105 F.3d                                   ___  _____________     ____            1492, 1495 (1st Cir. 1997).                                         -3-                                          3            motorized surfboat, the MELLON I, and a rigid hull inflatable            boat, the MELLON II.                      At approximately  9:00 p.m., forty  miles north  of            the  Colombia's  Guajira Peninsula,  the  cutter MELLON  made            radar contact  with an unidentified  vessel.2  As  the MELLON            approached the craft, it directed its search lights  upon it.            Given the difficult  seas and the  distance from the  nearest            shore,  Lt. Comdr. Weber  expected to  observe a  cargo boat.            Instead,   he   discerned   a   forty-foot   long,   flagless            recreational craft, travelling in a northeast direction.                      The boat rode low in the water, not more than eight            feet above the surface.  Its cabin was constructed much lower            than  normal for  that  type  of  recreational vessel.    The            vessel's  "low profile"  enabled it  to ride  in the  ocean s            swells and avoid most radar detection.  The fiberglass boat's            hull was light  blue below the waterline and white above.  It            sported  two antennae, a common VHF radio antenna and a high-            frequency  antenna  for long  distance  communications.   The            vessel was operating  without its running  lights on, and  no            one was topside.                      After  several unsuccessful  attempts  to hail  the            vessel,  Lt.  Comdr. Weber  established  radio communications                                            ____________________            2.  The  evidence also suggested  radar contact  with another            vessel,  some two  miles away  from the  first boat,  but the            Coast Guard  chose not  to pursue any  interaction with  that            vessel.                                         -4-                                          4            through  one  of the  cutter's  interpreters.   The  vessel's            master,  Pilco,  informed  the  Coast Guard  that  the  boat,            identified  as  the BLACK  CAT,3  was  of Honduran  registry.            Pilco stated that his last port of call was "Panama" and that            his  next port  of call  was "Honduras."   Weber  found these            statements suspicious  because the BLACK CAT  was headed away            from the stated destination  and because specific cities, not            countries,  usually are identified  as ports of  call.  Pilco            did not respond to Weber's subsequent request to identify the            specific cities in which the ports of call were located.                      When  asked if  the  BLACK CAT  carried any  cargo,            Pilco  answered,  "no."    Lt. Comdr.  Weber  had  just  been            advised, however, that personnel  aboard the MELLON saw cargo            inside  the boat's cabin.   The vessel s low  position in the            water further  belied Pilco's claim.   To clarify  the point,            Weber  again asked Pilco whether or not the BLACK CAT carried            cargo.   Pilco again responded  in the negative.   Weber then            requested permission  to board, to which Pilco replied, in an            agitated  voice,  "wait  a  minute,  wait a  minute,  wait  a            minute."  Weber repeated the request a few minutes later, but            received the same response.                      About the same time, Coast Guard personnel observed            someone  on the BLACK CAT throwing objects overboard.  A boat                                            ____________________            3.  Pilco stated the vessel's  name in Spanish, "GATO NEGRO."            Following the  parties' lead, we use  the English translation            throughout.                                         -5-                                          5            team dispatched on  the MELLON  II retrieved  from the  ocean            pieces of  a navigational  chart depicting the  United States            Virgin  Islands area east of  Puerto Rico.   Lt. Comdr. Weber            then dispatched a boarding  team in the MELLON I  to approach            the BLACK CAT.                       When  the  MELLON  I  came  alongside  the  vessel,            members of  the boarding team noticed  two oversized, custom-            made fuel  tanks covering most of  the aft deck.   In fact, a            person could not enter  the cabin area without crawling  over            the fuel tanks.  Peering into the cabin area with  the aid of            a spotlight, the boarding  team observed several crew members            and numerous white-colored bales.                      The boarding team failed in its initial attempts to            get  the attention of the  crew, which, for  a time, remained            inside the cabin.   Soon, however, the crew members  began to            emerge,  one by one, carrying duffel bags.  One member placed            his  hand  underneath  his  shirt, and  others  seemed  to be            reaching  inside  their  bags.   These  actions  alarmed  the            boarding team, which quickly advised the crew (in Spanish and            English) to keep their  hands in plain sight.   Concerned for            the boarding team's safety, Gunner's Mate Edward West pointed            an  M16 service rifle toward the vessel.  Perhaps because the            choppy seas  made  communication difficult,  the BLACK  CAT's            crew did not comply with  the request to keep their  hands in            view.   When a crew member  again began to reach  towards his                                         -6-                                          6            duffel  bag, the boarding team pulled away from the BLACK CAT            inorder toreassess thesituation anddiffuse therising tension.                      When all  five crew members  of the BLACK  CAT were            topside, the MELLON  I again pulled  up to the  vessel.   The            boarding  team  had no  weapons drawn  at  the time,  and the            situation  was  much calmer.    Ensign  Joseph Sundland,  the            boarding  officer, told Pilco that  the Coast Guard wanted to            perform  a safety inspection  on the boat.   Pilco consented.            The   boarding  process,  however,   proved  to  be  somewhat            difficult.  There was very little space available on the boat            for boarding, and the rough sea conditions had caused fuel to            spill on the stern, making for unsure footing.  Moreover, the            construction  of  the vessel's  cabin  left no  room  to walk            around it on deck.  These circumstances made it dangerous for            the BLACK CAT's  crew members,  who had no  life jackets,  to            stand  topside during  the boarding.   To  facilitate  a safe            boarding, the boarding team  had the crew lie down on  top of            the cabin.                      Once on  board, members of the  boarding team asked            Pilco  again if  he had  any objection  to the  Coast Guard's            presence  on board the vessel.  Pilco repeated that he had no            objection.   Sundland asked Pilco for permission  to go below            into the cabin to check for safety hazards.  Pilco consented,            and led Ensign Sundland and Firearm Rafael Rivera (who served            as  interpreter)  over the  fuel  tanks and  into  the cabin.                                         -7-                                          7            Numerous bales  covered with white plastic  filled almost all            of the interior space, with the exception of a small sleeping            area between the  bales and  the ceiling and  a narrow  crawl            space forward.  One of the bales had been placed by the helm,            apparently  to serve as a  seat for the  crew member steering            the vessel.  The cabin also held many food containers, mostly            unopened,  and a cooler almost  full of fresh  ice and sodas.            Sundland noticed high-quality,  expensive radio  gear on  the            cabin's wall.                      The  bales emitted  no  perceptible  odor,  rather,            intense fumes from fuel leaking out of the poorly constructed            tanks  almost  overwhelmed the  men  in  the cabin.    Ensign            Sundland sought  and received Pilco's permission  to open one            of the bales.   He cut through heavy plastic  and a cardboard            box,  and  discovered   nine  individually  wrapped  packages            inside.   As he  opened one  of the smaller,  plastic-wrapped            packages,  he  asked  Pilco  if  he  knew  what  the  package            contained.  Pilco answered  that he thought it was  marijuana            and that someone had hired him to take it from Colombia to an            undisclosed  location.    Field  testing  verified  that  the            packages in fact contained marijuana.                      Following  a radio inquiry to Honduran authorities,            at approximately 9:00 p.m. on June 14 (some twenty-four hours            after the Coast Guard initially contacted the BLACK CAT), the            Honduran  government confirmed the vessel's Honduran registry                                         -8-                                          8            and authorized the Coast  Guard to enforce United  States law            against the vessel and her crew.4  The Coast Guard placed the            defendants  under arrest  and seized  the contraband.   After            securing the  vessel's crew and cargo aboard  the MELLON, the            Coast  Guard attempted to tow  the BLACK CAT  in the MELLON's            wake, but the  BLACK CAT  took on  water and  began to  sink.            Because the boat's presence  just beneath the ocean's surface            would have created a navigation hazard, Coast Guard personnel            sank the vessel completely with machine gun fire.                      In  total,  the Coast  Guard  seized  100 bales  of            marijuana,  weighing a total  of 5,596 pounds  and worth $6-8            million wholesale, $25-41 million retail.  Although the Coast            Guard found  no weapons on board  the BLACK CAT,  it seized a            Magellan global  positioning  system ("GPS"),  an  electronic            navigation  device  that determines  a vessel's  latitude and            longitude position.   When asked, Pilco could not present any            cargo manifests or other commercial papers.                      According to the government's witnesses, commercial            cargo  normally is not transported in the manner in which the            unlabeled bales were  bundled and arranged on the  BLACK CAT.            On  the contrary,  the  bales had  been  packed in  a  manner            typical  for  contraband.     In  particular,  the   evidence                                            ____________________            4.  At trial, the government introduced a  certification from            the  United States  Secretary  of State  and his  designee to            prove the Honduran government's confirmation of registry  and            authorization to enforce U.S. law.                                         -9-                                          9            suggested  that  the  waterproof  packaging was  intended  to            protect  the contraband during  vessel-to-vessel transfers on            the  high seas.   Transfers  of this  type often  require the            assistance   of  long   distance  radios   and  sophisticated            navigational equipment, such as the Magellan GPS, to pinpoint            the time and place of the rendezvous.                      Following   the   government's   case   in   chief,            defendants  Pilco and  Rivas testified  on their  own behalf.            Pilco  asserted that he had  been hired to  transport what he            thought was a coffee cargo -- at $5 per bale -- to Aruba, and            that  he set sail roughly  around midnight on  June 12, 1995.            He testified that during the  initial contact with the cutter            MELLON, he  did inform the Coast Guard that the BLACK CAT was            carrying cargo.   He also claimed that he had  told the Coast            Guard that his last port of call was "Puerto Panama," located            on Colombia's Guajira Peninsula, and that his destination was            "Aruba," not  "Honduras."  He denied  telling Ensign Sundland            that  he thought  the bales  contained marijuana,  and stated            that he had no  cargo manifests or commercial  papers because            the  person who hired him, rather than a maritime agency, was            to receive the shipment.                      Rivas testified that  he was an experienced  seaman            who  usually worked  on merchant  ships.   For the  BLACK CAT            voyage, he had been hired for  $200 as a helmsman.  He stated            that he met  the rest of  the crew for  the first time  after                                         -10-                                          10            being  driven  to Puerto  Panama  on  the Guajira  Peninsula.            Rivas  could not state  with any specificity  the location of            Puerto  Panama.   He  asserted that  the  bales were  already            inside the cabin when he arrived at the boat dock and that he            noticed nothing unusual about them.   Rivas also claimed that            he did not hear the word "marijuana"  until it was uttered by            one of the Coast Guard officers.                      At  the close  of  all the  evidence, the  district            court   denied  the   defendants'   motions  for   acquittal.            Subsequently, the jury found  each defendant guilty, under 46            U.S.C. app.   1903(a),  of aiding and abetting each  other in            the possession --  with intent to distribute  -- of marijuana            on  board a  vessel.   On  appeal,  Pilco contends  that  the            involuntariness of his statements to the Coast Guard rendered            the  statements  inadmissible  against  him at  trial.    All            defendants argue  that a certification from  the Secretary of            State   was  inadmissible   to   prove  the   United  States'            jurisdiction over the vessel.   With the exception of  Pilco,            the defendants also claim that the government failed to prove            their knowing participation in  the drug trafficking offense.            Ospina, Rivas, and Hernandez claim  error in the court s jury            instructions,  and  Hernandez further  argues that  the Coast            Guard's eventual  destruction of the vessel  violated his due            process rights.  Last, Rivas and Ospina challenge the court s            sentencing determinations.                                         -11-                                          11                                         II.                                         II.                                         ___                       Admission of Pilco's Statements at Trial                       Admission of Pilco's Statements at Trial                       ________________________________________                      Pilco contends that he did not voluntarily make the            incriminatory  statements  to  the  Coast  Guard  after  they            boarded  the  BLACK CAT  and that  the  use of  those alleged            statements  at  trial  violated  his right  to  due  process.            Specifically,  Pilco  relies on  the  following  facts.   The            cutter  was over 370-feet  long and  heavily armed  while the            BLACK CAT was only 40-feet long and unarmed.  At one point, a            member  of the Coast Guard boarding team pointed an M16 rifle            at  the BLACK CAT crew.  Finally, upon boarding, the boarding            team had the  crew lie down on top of the boat because of the            dangerous seas.                      Following  a voluntariness  hearing pursuant  to 18            U.S.C.    3501(a),5 during  which Ensign  Sundland testified,            the district court found  that Pilco voluntarily consented to            both the boarding and the  subsequent cabin inspection.   The            court ruled that the boarding, coupled with Ensign Sundland's            non-threatening  inquiries, amounted  neither to  custody nor            coercion.   The court further  observed that, at  the time of            the statement,  Pilco could have requested  the boarding team            to leave, and the team would  have complied.  Thus, the court                                            ____________________            5.  18  U.S.C.    3501 requires  a trial  judge to  conduct a            hearing  out   of  the  jury's  presence   to  determine  the            voluntariness  and admissibility  of  a confession  or  self-            incriminating statement made during detention or arrest.                                         -12-                                          12            concluded, the statement was  voluntary within the meaning of              3501.6                      The ultimate voluntariness determination involves a            question  of law subject to plenary review.  United States v.                                                         _____________            Cleveland,  106  F.3d  1056,  1064   (1st  Cir.  1997).    We            _________            "scrutinize[] a district  court's factual findings, including            its credibility  determinations, for traces of  clear error."            United States v. Valle, 72 F.3d 210, 213-14 (1st Cir. 1995).            _____________    _____                      Upon careful examination of the evidence introduced            at  the   3501 hearing, we find no clear error in the court's            subsidiary  factual findings  regarding the  voluntariness of            Pilco's   statement.     Ensign  Sundland's   testimony,  the            credibility of which was  a matter for the court,  see Valle,                                                               ___ _____            72 F.3d at 214, plausibly  established that the boarding team            members  had no  weapons drawn  at the  time of  the boarding            request,  that Pilco  freely  consented to  the boarding  and            search, and that his demeanor was "very calm" when he granted            Ensign Sundland permission to inspect the cabin and to open a            bale.  Examining the totality of the circumstances, we cannot            say  that Pilco's will  was "overborne so  that the statement            was  not his  free  and voluntary  act."   United  States  v.                                                       ______________            Jackson,  918  F.2d  236,   241  (1st  Cir.  1990)  (internal            _______                                            ____________________            6.  We note  that Pilco only challenges  the voluntariness of            his statements under 18 U.S.C.   3501.  His argument does not            touch upon the absence  of Miranda warnings or the  manner in                                       _______            which any potential Miranda issue affects his   3501 claim.                                _______                                         -13-                                          13            quotation marks  and citation  omitted).  See  Schneckloth v.                                                      ___  ___________            Bustamonte, 412 U.S. 218, 225-27 (1973) (discussing totality-            __________            of-circumstances approach when determining voluntariness of a            confession);  see also United States v. Kimball, 25 F.3d 1, 8                          ___ ____ _____________    _______            (1st Cir.  1994) (finding  consent voluntary where  defendant            expressly  agreed  to  accompany  police  to  station,  never            indicated  an  unwillingness to  do  so, and  police  did not            coerce or intimidate defendant into going with them).                      Therefore,  we agree with  the district  court that            Pilco's  statement was  voluntary,  and thus,  admissible  at            trial.7                                         III.                                         III.                                         ____                             Sufficiency of the Evidence                             Sufficiency of the Evidence                             ___________________________                      The  government charged the  defendants with aiding            and  abetting each other in  the violation of  46 U.S.C. app.              1903(a).  To prove  the defendants' violation of   1903(a),            the government  needed to  prove, beyond a  reasonable doubt,                                            ____________________            7.  18  U.S.C.   3501  does  not require  the suppression  of            involuntary statements unless the person was "under arrest or            other  detention"  at the  time he  made  the statement.   18            U.S.C.    3501(d).   Because we  find that  Pilco voluntarily            made  the incriminating  statement, we  need not  address the            question  whether he  was in  custody within  the  meaning of              3501(d).  We  note, however, that the  consensual nature of            the  boarding   renders  the  existence  of   this  threshold            requirement highly  unlikely.   Cf. United States  v. Elkins,                                            ___ _____________     ______            774 F.2d 530,  535 n.3  (1st Cir. 1985)  (defendants not  "in            custody" during routine boarding  and inspection of  American            flagship even though crew was "confined to one section of the            boat  during the  lengthy  Coast  Guard inspection");  United                                                                   ______            States  v. Lopez,  709  F.2d 742,  745  n.3 (1st  Cir.  1983)            ______     _____            (suggesting similar conclusion).                                         -14-                                          14            that: (1) the BLACK  CAT was "subject to the  jurisdiction of            the  United States"; (2) the material found on the vessel was            a controlled  substance; and (3) the  defendants knowingly or            intentionally  possessed  the controlled  substance  with the            intent  to distribute  it.   46 U.S.C.  app.   1903(a).   See                                                                      ___            United States v. Piedrahita-Santiago,  931 F.2d 127, 130 (1st            _____________    ___________________            Cir. 1991).                      The defendants  moved  for judgment  of  acquittal,            pursuant to Fed. R. Crim. P. 29, after  the conclusion of the            government's case in chief  and again after the close  of all            the evidence.  The district court denied both motions.  While            the defendants do not  dispute the evidentiary sufficiency of            the  government's proof  of  the second  element, they  raise            challenges regarding the first and third elements.            A.  Standard of Review            ______________________                      We  review  the  Rule  29  determination  de  novo,                                                                __  ____            resolving any evidentiary conflicts or credibility issues  in            the  government's favor.  See United States v. Ruiz, 105 F.3d                                      ___ _____________    ____            1492,  1495 (1st Cir. 1997).   If the  evidence, viewed under            this  lens, "permits a  rational jury to  find each essential            element of the crime charged  beyond a reasonable doubt, then            the  evidence  is  legally  sufficient."   United  States  v.                                                       ______________            Olbres, 61 F.3d 967, 970 (1st Cir.), cert. denied, 116 S. Ct.            ______                               _____ ______            522 (1995).  In this analysis, "[w]e defer, within reason, to            inferences  formulated  by the  jury  in  the  light  of  its                                         -15-                                          15            collective   understanding   of   human   behavior   in   the            circumstances revealed  by the  evidence."  United  States v.                                                        ______________            Passos-Paternina, 918 F.2d 979, 985 (1st Cir. 1990).            ________________                      Because Pilco and Rivas presented a defense (by way            of their  own testimony),  they have  waived review  of their            initial Rule 29 motions, made after the government's  case in            chief.  See Ruiz, 105  F.3d at 1495 n.1.  For that reason, in                    ___ ____            reviewing  their Rule 29  appeal, "we consider,  in the light            most favorable  to the verdict, the evidence presented in the            defense  case."   Id.  (citing 2  Charles A.  Wright, Federal                              ___                                 _______            Practice and Procedure   463, at 643-45 (1982)).8            ______________________            B.  United States Jurisdiction Over the Vessel            ______________________________________________                      The first element of  a   1903 offense requires the            government  to prove that the BLACK CAT was "a vessel subject            to  the jurisdiction  of  the United  States."   See  Passos-                                                             ___  _______            Paternina, 918 F.2d at  981; Piedrahita-Santiago, 931 F.2d at            _________                    ___________________            129  (stating that  the  jury determines  the  jurisdictional            question  under   1903).   Vessels  subject to  United States            jurisdiction include "a vessel registered in a foreign nation                                            ____________________            8.  It  is   unclear  whether   or  not   the  non-testifying            defendants, Guerrero, Ospina, and Hernandez, intended Pilco's            and  Rivas' testimony  to constitute  defense-evidence as  to            them.  While the non-testifying defendants' attorneys did not            participate in the examination of Pilco and Rivas (except for            a couple  of objections),  they also  did not  expressly rest            their case until after Pilco's and Rivas' testimony.  Because            the evidence the government presented in its case in chief is            sufficient to convict the non-testifying defendants, we  need            not resolve the issue.                                         -16-                                          16            where the flag  nation has consented  or waived objection  to            the enforcement of  United States law by the  United States."              1903(c)(1)(C).  Section 1903 specifically provides that the            foreign   nation's  consent   "may  be  obtained   by  radio,            telephone, or  similar oral or  electronic means, and  may be            proved  by certification  of  the Secretary  of State  or the            Secretary's designee."    1903(c)(1).9                      To prove that the government of Honduras authorized            the enforcement  of United States  law against the  BLACK CAT            and her crew, the government introduced various Department of            State documents in which Joseph A. Conroy, Jr., the Secretary            of State's designee for    1903 certifications, certified  to            the  events leading  to the  Honduran government's  waiver of            objection.  In pertinent  part, Conroy certified that Captain            B.J.  Niesen,  Coast  Guard  Liaison  Officer  to  the  State            Department's   Bureau  of  International  Narcotics  and  Law            Enforcement,  contacted  Major John  C.  Sumner  of the  U.S.            Embassy in  Honduras to  request the  Embassy  to inform  the            Honduran government of the contraband on board the BLACK CAT,                                            ____________________            9.  We analyze  this case  under the  pre-1996 version of  46            U.S.C.  app.   1903,  pursuant to  which the  defendants were            tried and convicted.  We acknowledge that the 1996 amendments            to   1903 provide that the Secretary of State's certification            "conclusively" proves a  foreign nation's  consent, and  that            United  States  jurisdiction over  vessels  is  no longer  an            element of an offense, but rather,  a preliminary question of            law for the trial judge.  See 46 U.S.C. app.    1903(c) & (f)                                      ___            (Supp.  1997).    We express  no  opinion  as  to the  scope,            validity or interpretation of these amendments.                                         -17-                                          17            to receive  confirmation of  the claim of  Honduran registry,            and  to  seek authorization  for  the  enforcement of  United            States law.  Conroy  certified that Major Sumner subsequently            contacted Captain Niesen and  reported the following: (1) Lt.            Claudia Castilla, Assistant Director of the Honduran Maritime            Directorate, had -- "on behalf of the Government of Honduras"            --  authorized the boarding and  searching of the vessel; (2)            Javier Ponce  of the  Honduran Merchant Marine  confirmed the            BLACK CAT's Honduran registry;  and (3) Ivan Flores, Head  of            the  Honduran  Maritime Security,  had --  "on behalf  of the            Government of  Honduras"  --  authorized  the  United  States            government to  enforce United States law  against the vessel,            crew and contraband.                      At   trial,  the  defendants   argued  against  the            admissibility  of  these  documents  on hearsay  grounds  and            complained that  the government failed to  produce a document            from   the  Honduran  government   confirming  that  nation's            consent.   The district court disagreed  with the defendants'            position and  admitted the  documents as sufficient  proof of            the  jurisdictional element.    On  appeal, Guerrero,  Rivas,            Hernandez   and   Ospina   perfunctorily  challenge   circuit            precedent    dispensing    with    the   hearsay    argument.            Additionally,  Pilco raises  a  new argument,  viz, that  the                                                           ___            government  failed to  establish  that Lt.  Claudia Castilla,            Javier Ponce,  and  Ivan  Flores had  the  authority  of  the                                         -18-                                          18            Honduran government  to confirm  registry and consent  to law            enforcement action.                      We  have  previously  found  the  hearsay  argument            unavailing both because    1903's language reveals  Congress'            explicit contemplation of the use  of "what might normally be            considered 'hearsay'" to prove jurisdiction, United States v.                                                         _____________            Romero,  32 F.3d 641, 649 (1st Cir. 1994), and because "[t]he            ______            State Department Certification falls squarely  within Fed. R.            Evid.  803(8)(A)," id. at 650.   See Fed.  R. Evid. 803(8)(A)                               ___           ___            (excepting from the hearsay rule public agency statements "in            any  form" setting  forth "the  activities  of the  office or            agency"); see also United States v. Mena, 863 F.2d 1522, 1531                      ___ ____ _____________    ____            (11th   Cir.  1989)  (explaining  that  foreign  government's            expression of consent  "is not  hearsay at all  but rather  a            verbal act,  similar to the  utterances involved in  making a            contract,   to   which    the   law   attaches    independent            significance").  We see no reason to alter Romero's reasoning                                                       ______            in this respect.                      We  also  find  unavailing  the  defendants'  trial            contention that  the government  was required to  procure and            introduce  a  written  statement  of no  objection  from  the            Honduran  government.    While  the government  may  prove  a            foreign government's consent through a number  of alternative            means,  see  Mena, 863  F.2d  at  1531, section 1903  plainly                    ___  ____            indicates   the  sufficiency  of  the  Secretary  of  State's                                         -19-                                          19            certification  to  prove  that  fact.   See  46  U.S.C.  app.                                                    ___              1903(c)(1) (stating that the foreign nation's  consent "may            be proved by certification  of the Secretary of State  or the            Secretary's  designee"); Romero,  32 F.3d at  649 (explaining                                     ______            that   1903  "was designed  to ease evidentiary  requirements            for  the  government  by   avoiding  the  time-consuming  and            burdensome task of obtaining  official documentation from the            claimed country of registry").                      We  are equally unpersuaded  by Pilco's  attempt to            transform  his trial  argument  into his  present contention:            that  the   certification   was  inadmissible   because   the            government  did  not show  the  authoritative  status of  the            persons  in  Honduras  who  authorized  United  States'  law-            enforcement  action.   Because  Pilco  failed  to raise  this            argument below, we review for "plain error" and  reverse only            if  an  "obvious"  or   "clear"  error  exists  that  affects            "substantial rights."  United States v. Olano,  507 U.S. 725,                                   _____________    _____            734 (1993).  See Fed. R. Crim. P. 52(b).                         ___                      In Romero, the Colombian government refuted a claim                         ______            of Colombian registry, thus  rendering the vessel "stateless"            and therefore subject to  United States jurisdiction under 46            U.S.C. app.   1903(c)(1)(A).   See  32 F.3d at  647-48.   The                                           ___            government proved the jurisdictional element through  a State            Department certification,  much like  the one at  issue here,            explaining the events leading  up to Colombia's refutation of                                         -20-                                          20            registry.   See id. at  648.  We reasoned  that the statutory                        ___ ___            scheme  of permitting proof  of certain  jurisdictional facts            through  certification meant  that  "the government  need not            prove  that the vessel is in fact without registry in another            country, nor must  it prove that the  foreign nations' denial            or refutation of registry  is valid, legitimate, or otherwise            properly made."  Id. at 649.  We declined to decide whether a                             ___            defendant's endeavor to prove  actual registry facts would be            irrelevant under the statutory scheme, and expressly reserved            the questions whether and when a defendant may challenge "the            actions of  foreign nations in situations  that might warrant            determination, probably by the court,  as to whether a proper            certification was being offered."  Id. at 649 n.3.                                               ___                      In this case, Pilco  seeks to question the validity            of   the   Honduran   government's   consent   by   requiring            clarification  of  the  source's  authority.   His  challenge            touches upon the preserved issue in Romero, i.e., whether and                                                ______            to  what  extent  a  defendant  may  look  behind  the  State            Department's certification to  challenge its  representations            and factual underpinnings.   We have not yet had  occasion to            resolve the issue,  and the "plain error"  standard of review            does  not  call upon  us to  correct  unobvious errors.   See                                                                      ___            Johnson v. United States,  117 S. Ct. 1544, ___,  No. 96-203,            _______    _____________            1997 WL 235156, at  *6 (U.S. May 12, 1997)  (indicating that,            to  be "plain," the error must be  clear at least at the time                                         -21-                                          21            of  appellate review  ).   Moreover, Pilco  does not  raise a            colorable  claim   that   the  certification   was   prepared            fraudulently or  in bad faith.   See  Romero, 32 F.3d  at 649                                             ___  ______            n.3.   Thus,  we decline  to decide  whether a  defendant may            contest the authority of the source of the consent or whether            Congress  intended   to  leave  that  matter   to  the  State            Department's expertise.                      In the absence of error, plain or otherwise, in the            district  court's  admission  of  the  Secretary  of  State's            certification, we  find the evidence sufficient  to prove the            first element of 18 U.S.C.   1903(a).            C.  Knowing Participation            _________________________                      Rivas, Guerrero, Ospina,  and Hernandez claim  that            the  government  failed  to  prove the  third  element  of  a              1903(a) offense, their  knowing possession of a  controlled            substance  with the intent to  distribute it.   While they do            not dispute the fact that they were  hired as crew members to            assist in the BLACK CAT's shipping of cargo, they assert that            the evidence was insufficient to establish that they knew the            bales  contained contraband.    Absent  that knowledge,  they            argue, their "mere  presence" aboard the BLACK  CAT could not            rise to the level of aiding and abetting the drug-trafficking            offense.                      To  prove aiding  and  abetting liability  under 18            U.S.C.    2,  the government  needed  to  establish that  the                                         -22-                                          22            defendants "'participated in the  venture and sought by their            actions  to make it succeed.'"  United States v. Steuben, 850                                            _____________    _______            F.2d  859, 864  (1st  Cir. 1988)  (quoting  United States  v.                                                        _____________            Quejada-Zurique, 708 F.2d 857, 859 (1st Cir. 1983)).   "'Mere            _______________            presence at the  scene or  even knowledge that  the crime  is            being committed is generally insufficient to establish aiding            and  abetting.'"  Steuben, 850  F.2d at 864 (quoting Quejada-                              _______                            ________            Zurique, 708 F.2d at 859).            _______                      The  question  whether  the  evidence  sufficiently            establishes  a defendants'  knowledge  of the  presence of  a            controlled substance is  distinct from, although  related to,            the  issue of a defendant's level of participation in a drug-            trafficking  venture.    Thus,  for example,  even  when  the            government proves  that a  defendant knew that  her residence            was  used by a co-occupant to sell drugs, the government must            additionally  prove that she  participated criminally  in the            venture.  See United  States v. Ocampo, 964 F.2d 80,  82 (1st                      ___ ______________    ______            Cir.  1992) (involving  conspiracy charge); United  States v.                                                        ______________            Hyson, 721 F.2d 856,  862-63 (1st Cir. 1983) (same).  In such            _____            cases,  proof of  sufficient participation  in the  crime, as            well  as  knowledge  of  it,  is  required  to  convict;  the            defendant's "mere presence" at the scene of criminal activity            is not  enough.  By  like token, where, as  here, a defendant            actively participates in a  venture, but denies any knowledge                                         -23-                                          23            of  the  venture's   illegal  nature,  the  government   must            adequately prove knowledge, more so than participation.                      With the  exception of its case  against Pilco, the            government  largely  relied upon  circumstantial  evidence to            prove   the   defendants'   knowing   participation   in  the            transportation  a controlled  substance.   In  circumstantial            cases such as this one, the evidence is sufficient to convict            if   it   adequately   supports   "the   requisite  'two-step            inference'":  (1) that  the vessel  was engaged  in obviously            illegal activity and  (2) that  each defendant  was ready  to            assist in the criminal enterprise.  United States v. Jimenez-                                                _____________    ________            Perez, 869 F.2d 9,  11 (1st Cir. 1989) (quoting  Steuben, 850            _____                                            _______            F.2d  at 867).   We refrain  from second-guessing  the jury's            inferences and ensuing conclusions drawn  from circumstantial            evidence  where  "the   inferences  derive  support  from   a            plausible rendition of the record" and where "the conclusions            flow  rationally from  those inferences."   United  States v.                                                        ______________            Spinney, 65 F.3d 231, 234 (1st Cir. 1995).            _______                      1.  Knowledge of Controlled Substance                      _____________________________________                      The defendants place great weight on the absence of            evidence  that the bales emitted any odor of marijuana.  They            reason  that   without  this  evidence,  a   jury  could  not            rationally infer their knowledge of  the bales' contents.  We            have eschewed,  however, a  myopic inquiry into  whether "one            particular indication of  knowledge (such as a smell) did, or                                         -24-                                          24            did not,  exist."  United  States v. Robinson, 843  F.2d 1, 8                               ______________    ________            (1st Cir. 1988).  Instead, we must "look[] at the evidence as            a  whole in the light  most favorable to  the government, and            leav[e] to  the jury the power to  make any reasonable set of            common sense assumptions about  the working of human nature."            Id. (internal  quotation marks  and citations omitted).   See            ___                                                       ___            United States v. Molinares-Charris,  822 F.2d 1213, 1220 (1st            _____________    _________________            Cir.  1987) (finding  circumstantial evidence  of defendant's            active participation in illegal cargo transport sufficient to            prove  knowing participation  even  assuming  marijuana  "was            hidden in scent as well as in sight").                      Thus, in the absence of evidence of marijuana odor,            we  turn to  other factors  to determine  whether or  not the            government  sufficiently established the  crew's knowledge of            the  presence of a controlled substance.   We have previously            looked  to  factors such  as  the  closeness  of  the  crew's            relationship,  the  length  of   the  voyage,  the  size  and            condition of the vessel,  the quantity of marijuana, and  the            absence  of  a  legitimate  purpose  for  the  voyage.    See                                                                      ___            Robinson, 843 at 8-9; see also Molinares-Charris, 822 F.2d at            ________              ___ ____ _________________            1219-20;  United States v. Lopez, 709 F.2d 742, 747 (1st Cir.                      _____________    _____            1983).   These factors,  while not exhaustive,  indicate that            where the circumstantial evidence  permits a jury to conclude            that activities aboard a  vessel concern the obvious presence            of  contraband,  the jury  reasonably  may  infer the  crew's                                         -25-                                          25            knowing participation in the venture.  See Molinares-Charris,                                                   ___ _________________            822 F.2d at 1218; Quejada-Zurique, 708 F.2d at 859-860.                              _______________                      In this  case, although the bales  of marijuana had            been packaged carefully and  emitted no odor, the surrounding            facts  permit  a   jury  finding  that  the   BLACK  CAT  was            conspicuously  involved   in  the  illegal  transport   of  a            controlled substance.   According to the  trial evidence, the            vessel's low-profile construction signalled its plain purpose            to avoid detection.   See  United States v.  Romero, 32  F.3d                                  ___  _____________     ______            641,  644 (1st  Cir.  1994) (involving  similarly constructed            vessel).   The vessel  had been equipped  with expensive  and            sophisticated radio and navigational gear that, the testimony            suggested, was generally intended  to assist in long-distance            voyages and unusual for this  small recreational vessel.  See                                                                      ___            id.;   Passos-Paternina,   918    F.2d   at    985.       The            ___    ________________            disproportionately  large fuel tanks  awkwardly placed on the            aft deck and the  plentiful, undepleted food supply indicated            that the BLACK CAT had recently embarked on what was expected            to  be a long journey.10  The  use of a recreational craft to                                            ____________________            10.  The government  introduced evidence  that it  would have            taken  only  twenty  hours  to   travel  from  the  point  of            interception  to  Aruba,  the purported  destination.    This            evidence suggested  that the  plentiful food and  fuel supply            would have  been unnecessary  for the  claimed  voyage.   The            evidence also  established that had the  vessel departed from            Panama as originally claimed, the voyage would have taken two            to three days  and at least  one-half of the fuel  would have            been  used to reach the point of interception, some 400 miles            away from the nearest Panamanian port.                                         -26-                                          26            carry the large  shipment, without commercial  documentation,            beyond the normal area of operation for such a vessel further            evinced the voyage's illegitimate purpose.  Cf. Robinson, 843                                                        ___ ________            F.2d  at 9  (involving a "'mudboat,'  a vessel  that normally            supplies  oil  rigs  in  the  Gulf  of  Mexico,"  found  near            Bermuda).                      Perhaps most telling for  the purposes of this case            were  the  numerous unlabeled  bales,  wrapped  in a  fashion            typical for controlled-substances likely to be  off-loaded at            sea.  The bales were so ubiquitous that they left  no room to            stand or  sit  in the  cramped  cabin.   Compare  Piedrahita-                                                     _______  ___________            Santiago,  931  F.2d at  131  ("[A]  relatively small  vessel            ________            carrying a large quantity of drugs is indicative of knowledge            and involvement on the part of the crew."); with Steuben, 850                                                        ____ _______            F.2d at  868-69 (reversing conviction where,  inter alia, the                                                          _____ ____            government failed to produce evidence that defendant knew the            illegal nature of cargo concealed in barge towed behind tug).            The  rough  seas  and the  limited  space  to  stand on  deck            permitted the inference that the crew spent its time together            below, among the bales.11  Finally, the crew's emergence from                                            ____________________            11.  The proximity of the crew on board the BLACK CAT is also            indicative  of  the closeness  of  their  relationship.   See                                                                      ___            Robinson, 843 F.2d at 8 (noting evidence that crew member had            ________            spent  time   on  captain's   deck  as  probative   of  close            relationship).  The evidence  further suggested that the crew            may  have  been larger  than necessary  to operate  the small            vessel during  its stated journey.   See Piedrahita-Santiago,                                                 ___ ___________________            931 F.2d at  130 (involving seven crew members  on forty-foot            vessel that "would ordinarily require a crew of only three or                                         -27-                                          27            the cabin area with  their belongings in hand upon  the Coast            Guard's approach  permits the  inference that they  knew they            had been caught  in an illegal venture,  and would eventually            be arrested.                      Although   these  facts,   in  isolation,   do  not            necessarily lead to the conclusion that the crew members knew            the bales  contained a controlled substance,  in combination,            they  constitute  more  than  enough evidence  to  support  a            finding  of  positive  knowledge,  or  at   least  deliberate            ignorance,12  of that fact.  See Robinson, 843 F.2d at 9; see                                         ___ ________                 ___            also  United States  v. Ortiz,  966 F.2d  707, 711  (1st Cir.            ____  _____________     _____            1992) (explaining  that "juries  are not required  to examine            the  evidence   in  isolation,  for  'individual   pieces  of            evidence, insufficient in themselves to prove a point, may in            cumulation prove it.  The sum of an  evidentiary presentation            may well  be greater than its  constituent parts.'") (quoting            Bourjaily  v. United  States, 483  U.S. 171,  179-80 (1987)).            _________     ______________                                            ____________________            four" and  explaining that  "[a] larger crew  than ordinarily            needed  for navigation  purposes suggests  that the  crew was            hired  for the purpose of loading  and unloading cargo rather            than merely steering the vessel").            12.  Where  "'the   facts  suggest  a   conscious  course  of            deliberate ignorance,'"  a jury  is warranted in  finding the            defendants' deliberate ignorance of criminal events, which is            tantamount to knowledge.   United States v. Cassiere, 4  F.3d                                       _____________    ________            at 1006,  1023-24 (1st Cir.  1993) (quoting United  States v.                                                        ______________            Littlefield, 840 F.2d  143, 148  n.3 (1st Cir.  1988)).   The            ___________            district  court   instructed  the  jury  on   the  deliberate            ignorance, or  willful blindness,  theory of knowledge.   See                                                                      ___            infra Part IV.            _____                                         -28-                                          28            The  government's  proof  need  not  have  "exclude[d]  every            reasonable hypothesis of innocence," Robinson-Munoz, 961 F.2d                                                 ______________            at  305, and  the evidence  permitted a  reasonable inference            that  unwitting  bystanders  would  not have  been  hired  to            participate in  the BLACK CAT's obvious  illegal transport of            millions of dollars' worth of contraband.  See  United States                                                       ___  _____________            v. Cuevas-Esquivel, 905 F.2d 510, 515 (1st Cir. 1990); United               _______________                                     ______            States  v. Luciano-Pacheco, 794  F.2d 7, 11  (1st Cir. 1986);            ______     _______________            United States v. Guerrero-Guerrero,  776 F.2d 1071, 1076 (1st            _____________    _________________            Cir.  1985).  While the  jury could have  found that the crew            sincerely believed that the bales contained legitimate cargo,            the evidence certainly did not compel that conclusion.                      2.  Participation                      _________________                      We  now turn  to  the  defendants' contention  that            their  "mere presence" aboard the  BLACK CAT did  not rise to            the level  of aiding  and abetting.   For the most  part, the            evidence establishing  their knowledge of  the illegal nature            of  the cargo  disposes  of this  issue.   Additionally,  the            evidence permitted the reasonable conclusion that the purpose            of  each defendant's presence aboard the vessel was to assist            in  the transport  and handling  of the  illegal cargo.   For            example, the  large quantity of cargo made  travel aboard the            vessel uncomfortable, thus belying any lawful purpose such as                                         -29-                                          29            pleasure-cruising,  educational  experience, or  adventure.13            Because  the crew's presence  on board the  BLACK CAT evinced            more  than  a  coincidental  association  with  the  criminal            venture, a jury could rationally infer that the circumstances            "fairly imply participatory involvement."   United States  v.                                                        _____________            Echeverri, 982 F.2d 675, 678 (1st Cir. 1993) (also explaining            _________            that  the "mere presence" argument  holds no water "where the            'mere' is lacking").                      We find, therefore, that the evidence supported the            requisite two-step  inference: (1) the BLACK  CAT was engaged            in the  obvious transportation of a  controlled substance and            (2) each defendant  was ready to participate  in the venture.            See Jiminez-Perez, 869  F.2d at  11.  The  defendants do  not            ___ _____________            dispute that  the large  quantity of  marijuana on  board the            vessel permitted the inference of an intent to distribute the            controlled substance.  See Echeverri, 982 F.2d at 678.  Thus,                                   ___ _________            we  conclude that the  evidence was sufficient  to prove that            the defendants,  aiding and  abetting  each other,  knowingly                                            ____________________            13.  Cf. United States v.  Mehtala, 578 F.2d 6, 10  (1st Cir.                 ___ _____________     _______            1978)  (finding no  criminal  participation given  the  small            packages of easily concealable  contraband and the absence of            evidence  indicating that  defendant "embarked on  the voyage            for any purpose other than a pleasure cruise"); United States                                                            _____________            v. Francomano, 554  F.2d 483, 486 (1st  Cir. 1977) (reversing               __________            convictions  of  crew  members  on same  voyage  involved  in            Mehtala  and noting that crew consisted  of "young men, short            _______            of  funds,  seeking  travel  for  educational  experience and            adventure").                                         -30-                                          30            possessed a controlled substance, marijuana,  with the intent            to distribute it.                      In  light of  the above,  we find  no error  in the            district court's denial of defendants' motions for acquittal.                                         IV.                                         IV.                                         ___                                  Jury Instructions                                  Jury Instructions                                  _________________                      Ospina,  Hernandez,  and   Rivas  argue  that   the            district court committed reversible error  in instructing the            jury on  reasonable  doubt, deliberate  ignorance,  and  mere            presence.  Although the defendants raised their concerns both            during  a formal charge  conference and in  writing, they did            not renew their  objection after the court  charged the jury.            This procedural  default triggers only "plain  error" review.            See United States v. Mendoza-Acevedo, 950 F.2d 1, 4 (1st Cir.            ___ _____________    _______________            1991).                      Citing  United States  v. Andujar,  49 F.3d  16, 23                              _____________     _______            (1st Cir. 1995), the  defendants requested the district court            to include  the following  jury  instruction when  discussing            "reasonable doubt":  "If you jurors, view the evidence in the            case as  reasonably permitting  either of two  conclusions --            one  of innocence, the other  of guilt --  the jury should of            course  adopt  the  conclusion  of  innocence."    The  court            rejected the proposed instruction.                      In Andujar,  we explained that  an appellate  court                         _______            must  reverse  a conviction  on  the  grounds of  evidentiary                                         -31-                                          31            insufficiency  "where  an equal  or  nearly  equal theory  of            guilty and a theory of innocence is supported by the evidence            viewed in the light most favorable  to the verdict."  49 F.3d            at 20  (internal quotation marks and citations  omitted).  In            such cases,  "a reasonable jury must  necessarily entertain a            reasonable  doubt."   Id.   Our explanation  of the  scope of                                  ___            appellate  review,  however, does  not  necessarily translate            into  a proper  jury instruction.   The  defendants' proposed            instruction comes close to making a comparison between "guilt            or  innocence," which,  if  suggested as  equal alternatives,            "'risks  undercutting the  government's burden  by suggesting            that they should find  the defendant guilty if they  think he            is  not   innocent  --  regardless  of   how  convincing  the            government's proof has  been.'"  Id. at  24 (quoting Mendoza-                                             ___                 ________            Acevedo,  950 F.2d  at  4).   Given  our repeated  admonition            _______            against  overdefining  "reasonable  doubt,"  see  id.  at  23                                                         ___  ___            (noting  that attempts to  clarify the  concept may  serve to            obfuscate  it), we find no plain error in the court's refusal            to adopt the proposed instruction.14                                            ____________________            14.  At oral argument before  us, Hernandez suggested for the            first time that the court erred in using the phrase "hesitate            to act" when  discussing reasonable doubt.   Despite the fact            that new issues raised at  oral argument are normally  deemed            waived, see United States v.  De Leon Ruiz, 47 F.3d  452, 455                    ___ _____________     ____________            n.1  (1st Cir. 1995), out of an  abundance of caution we have            carefully  reviewed  the  court's   charge.    Although   the            "hesitate to act" language is "arguably unhelpful," Gilday v.                                                                ______            Callahan, 59 F.3d 257, 264 (1st Cir. 1995), cert. denied, 116            ________                                    _____ ______            S. Ct. 1269 (1996), under our reasoning set forth in Andujar,                                                                 _______            49 F.3d at 23-24, we find no error.                                           -32-                                          32                      Hernandez  further  complains  that   the  district            court's  instruction  on  "deliberate   ignorance,"  followed            immediately  by   its  charge  concerning   "mere  presence,"            confused the  jury regarding  the requirements of  aiding and            abetting liability.   We disagree.  The  court instructed the            jury that a defendant's knowledge of a particular fact may be            inferred  from proof that he  deliberately closed his eyes to            the  obvious.  The court  then stated, "[y]ou  have heard the            word[s]  'mere presence'  in this  case," and  explained that            mere  presence at the scene  of a crime,  or mere association            between  the  principal  and  those  accused  of  aiding  and            abetting, is insufficient  to establish guilt.   In our view,            the court's instructions adequately distinguished between the            deliberate-ignorance theory, which relates to the defendants'            knowledge  of a  fact,  and the  mere-presence theory,  which            concerns the level of defendants' participation in the crime.            See United States v. Cassiere, 4 F.3d at 1006, 1023 (1st Cir.            ___ _____________    ________            1993).  Under plain  error review, we  find no clear risk  of            confusion.                                          V.                                          V.                                          __                                Destruction of Vessel                                Destruction of Vessel                                _____________________                      The  Coast Guard's  act  of sinking  the vessel  by            machine  gun fire  because  of its  concern for  navigational            safety is  not unprecedented.   See, e.g.,  United States  v.                                            ___  ____   _____________            Doe, 860  F.2d  488,  490 (1st  Cir.  1988).    Nevertheless,            ___                                         -33-                                          33            Hernandez asserts that  the destruction  was unnecessary  and            suggests that  this  act amounted  to  a deprivation  of  due            process  under Brady v. Maryland, 373 U.S. 83, 87 (1963), and                           _____    ________            Arizona v. Youngblood,  488 U.S. 51,  57 (1988).   Hernandez'            _______    __________            failure to explain the potential materiality or usefulness of            the  vessel  to  his  defense,  and  his  concession that  no            evidence  demonstrates  bad  faith  in  connection  with  the            vessel's  destruction,  render his  argument  specious.   See                                                                      ___            Youngblood, 488 U.S. at 58; United States v. Gallant, 25 F.3d            __________                  _____________    _______            36,  39 (1st Cir. 1994); cf. United States v. Alston, No. 96-                                     ___ _____________    ______            1779, slip op. at 8-10 (1st Cir. May 5, 1997) (finding no due            process  violation  where government  "deliberately alter[ed]            evidence  that, in  its original form,  might have  helped to            exculpate  [defendant],"   but   where  defendant   did   not            demonstrate  that  such  action  significantly  impaired  his            defense).                                         -34-                                          34                                         VI.                                         VI.                                         ___                                  Sentencing Issues                                  Sentencing Issues                                  _________________                      Rivas and  Ospina contend that  the district  court            erred in calculating their sentences.  Because they failed to            raise  their arguments  below, we  review for  "plain error."            See United States v.  Peppe, 80 F.3d 19, 22 (1st  Cir. 1996).            ___ _____________     _____            We discuss each defendant in turn.            A.  Rivas            _________                      At sentencing, the  district court increased Rivas'            base  offense  level upon  finding that  he acted  as "pilot"            aboard  the BLACK CAT.  See U.S. Sentencing Guidelines Manual                                    ___              2D1.1(b)(2)(B)  (requiring  a  two-level increase  if  "the            defendant  acted as  a  pilot,  copilot, captain,  navigator,            flight  officer, or  any other  operation officer  aboard any            craft  or vessel  carrying a  controlled substance").   Rivas            asserts  that   the   guideline  only   applies  to   offense            participants in  a  position of  authority  or command.    He            reasons that the guideline should not apply to him because he            did  not  possess special  navigational  rank  or skills  and            merely steered the vessel upon the master's instruction.15                                            ____________________            15.  The  district court  adopted  the factual  findings  set            forth  in  Rivas'  Presentence  Investigation  Report, which,            though not made  a part of  the appellate record,  presumably            sets forth the facts  leading to the "pilot" finding.   Rivas            did  not object  to  any portion  of  the report  during  his            sentencing hearing and does  not dispute that he  steered the            vessel.                      We  further  note that  at  trial,  over which  the            sentencing judge  presided, Rivas testified that  he had been                                         -35-                                          35                      The sentencing guideline  does not define the  word            "pilot," and  our research  has not revealed  any caselaw  to            inform  our inquiry.    Nevertheless, the  common  dictionary            definition of  "pilot" includes  a  person hired  to steer  a            vessel.     See,  e.g.,  Webster's  Third  New  International                        ___   ____            Dictionary  of the  English  Language  1716 (1986)  (defining            "pilot," inter  alia,  as  "one employed  to  steer  a  ship:                     _____  ____            helmsman").  While the act of steering a forty-foot vessel on            the high seas may or may not involve a skill obtained through            extensive maritime training, we  cannot say that the district            court committed plain error in finding that Rivas "acted as a            pilot"  aboard  the  boat  within  the  meaning  of  U.S.S.G.              2D1.1(b)(2)(B).    Furthermore,  we  disagree  with  Rivas'            contention  that the  guideline  applies only  to those  with            special  command  in  a   criminal  enterprise.    While  the            guideline  may  speak  to  a defendant's  control  over  some            mechanical  aspect  of  a  vessel's operation,  it  does  not            address  the  defendant's  authority over  other  individuals            involved  in  a  criminal  venture.    Cf.  U.S.S.G.    3B1.1                                                   ___                                            ____________________            hired by a  man looking for "any seaman  who was available to            navigate."   When the ship set sail, he complied with Pilco's            instruction to  "take care of  the helm," which  Rivas manned            for  a four  hour  shift.   Furthermore,  when asked  whether            commercial cargo  is usually  labeled so that  those handling            the  cargo are  aware  if its  contents, Rivas  replied, "No,            because that was not my job. . . . I was told I was in charge                                               __________________________            of the helm, which was my profession." (emphasis added).            ____________________________________                                         -36-                                          36            (providing enhancements for a defendant's role as "organizer,            manager, or supervisor").16            B.  Ospina            __________                      Ospina  belatedly  argues that  the  district court            incorrectly calculated his incarcerative sentence based on an            enhanced  statutory  maximum  of thirty  years,  rather  than            twenty  years,  under the  Career  Offender  Guideline.   See                                                                      ___            U.S.S.G.   4B1.1.  Ospina's  argument fails both because  the            statutory maximum term for his offense remained fixed at life            imprisonment  without  any  enhancement,  see  21  U.S.C.                                                          ___            960(b)(1)(G), and  because, in  any event, the  Supreme Court            has  reversed  his  cited  authority, see  United  States  v.                                                  ___  ______________            LaBonte, No. 95-1726,  1997 WL  273644, at *3  (U.S. May  27,            _______            1997) (reversing United States v.  LaBonte, 70 F.3d 1396 (1st                             _____________     _______            Cir. 1995)).                                         VII.                                         VII.                                         ____                                      Conclusion                                      Conclusion                                      __________                      For  the  foregoing reasons,  the  judgment of  the            district court is affirmed.                              affirmed                              ________                                            ____________________            16.  We  note that  the  government  chose  not  to  seek  an            offense-level increase  on the  alternative basis of  "use of            special skill."  U.S.S.G.   3B1.3.  The commentary to   2D1.1            specifies  that   3B1.3  is  inapplicable  if the  sentencing            court,   as    here,    assesses   an    enhancement    under              2D1.1(b)(2)(B).                                         -37-                                          37
