

                                         

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), &amp; (f) and
18 U.S.C.   2, was dismissed following the defendants' motion
for judgment of acquittal pursuant to Fed.R.Crim.P. 29.

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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

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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.

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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.  

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          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                                                                         

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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 &amp; 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

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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

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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.

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          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

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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.  

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