
USCA1 Opinion

	




          February 23, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-2079                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                            ANGEL LUIS MORALES-CARTAGENA,                                Defendant, Appellant.                                _____________________        No. 91-2080                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               WILFREDO ALVARADO-ORTIZ,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Javier  A.  Morales  Ramos  and  Jeffrey  M.  Williams  with  whom            __________________________       _____________________        Indiano, Williams & Weinstein-Bacal was on brief for appellants.        _______  __________________________            Jeanette  Mercado-Rios,  Assistant United  States  Attorney,  with            ______________________        whom  Daniel F. Lopez-Romo, United States Attorney, and Jose A. Quiles              ____________________                              ______________        Espinosa were on brief for the United States.        ________                                 ____________________                                  February 23, 1993                                 ____________________                 CAMPBELL,   Senior  Circuit   Judge.    Angel   Luis  Morales                             _______________________        Cartagena  and Wilfredo Alvarado  Ortiz were convicted  along with co-        defendants Luis Alfredo  Alvarado and Juan Eugenio  Lorenzi Padilla of        aiding  and  abetting  in  the  unlawful  possession  with  intent  to        distribute  approximately 267  kilograms  of cocaine  aboard a  United        States vessel, 46  U.S.C.   1903(c)(1)(D) and (f), 18  U.S.C.   2, and        aiding and abetting  in the  importation of cocaine  into the  customs        territory of the United States, 21 U.S.C.   952(a), 18 U.S.C.   2.  On        appeal, Morales  and Alvarado  ask us  to  reverse their  convictions,        alleging an  insufficiency of evidence,  erroneous jury  instructions,        and prosecutorial misconduct.  We affirm the convictions.                                          I.                                          I.                 A. Sufficiency of the Evidence                    ___________________________                 Appellants assert that as there was insufficient evidence  of        criminal  intent, the  district  court erroneously  denied their  Rule        29(a) motions  for judgment  of acquittal.    In reviewing  a properly        preserved Rule 29 motion,  we examine the evidence and  all legitimate        inferences  therefrom in the light most favorable to the government to        determine  whether a  rational jury  could have  found guilt  beyond a        reasonable  doubt.  E.g.,  United States v.  Gonzalez-Torres, 980 F.2d                            ____   _____________     _______________        788, 790  (1st Cir. 1992);  United States v.  Clotida, 892 F.2d  1098,                                    _____________     _______        1103 (1st Cir. 1989).                   The government  argues that appellants  waived their Rule  29        motions  by presenting  evidence  after the  government concluded  its        case-in-chief and by failing to renew the motions at the  close of the                                         -2-        evidence.   Were this so, our  review would be for  plain error only.1        E.g.,  United States v. Alfredo Alvarado, Nos. 91-2075, 2076, slip op.        ____   _____________    ________________        at 6 (1st Cir. Dec. 31,  1992); United States v. Arango-Echeberry, 927                                        _____________    ________________        F.2d 35, 37 (1st  Cir. 1991); Clotida, 892 F.2d at 1103.   However, we                                      _______        need not decide whether appellants waived their Rule 29 motions.  Even        assuming they did not, the evidence was sufficient for a rational jury        to find that appellants were guilty beyond a reasonable doubt.                 Appellants urge  that  "mere presence"  at the  scene is  not        enough to convict a defendant of aiding and abetting in the commission        of a  crime.   E.g.,  Clotida, 892  F.2d  at 1104.    They assert  the                       ____   _______        evidence merely showed that they  were present on a vessel in  an area        of the open  sea where an  air drop  of bales of  cocaine took  place.        They  analogize their conviction to  that of innocent  crew members on        board a sailboat  taking part  in the Grand  Regatta Columbus2  solely        because  crew members in another  sailboat in the  regatta committed a        crime.  Appellants' analogy does not wash.                                      ____________________        1.    We upheld the convictions of co-defendants Luis Alfredo Alvarado        and  Juan  Eugenio   Lorenzi  Padilla  against  a   challenge  to  the        sufficiency  of  the evidence  under the  plain  error standard.   See                                                                           ___        United States v. Alfredo Alvarado, Nos. 91-2075, 2076, slip op. at 5-7        _____________    ________________        (1st  Cir. Dec. 31, 1992).   The opinion in that  case contains a more        exhaustive  account than  we provide  here of  the relevant  facts and        circumstances surrounding the convictions  of appellants and their co-        defendants.        2.      The Grand  Regatta Columbus  was  a celebration  of  the 500th        anniversary of  Columbus' discovery  of America  in which  hundreds of        vessels  from dozens of  nations took part  in a  five-month race from        Europe to America and  back in the  spring and summer  of 1992.   M.E.        Malone,  CADIZ  to Boston;  Grand  regatta  pays  homage to  Columbus'                 _____________________________________________________________        voyage, Boston Globe, July 5, 1992.        ______                                         -3-                 Rather  than  being aboard  only one  of hundreds  of vessels        taking part in a regatta,  appellants were in one of two  vessels over        which a suspect  aircraft was seen to hover.   Flying at night without        lights and with no flight plan, the aircraft made tight  circles about        300  to  500 feet  above the  two vessels.    A Customs  Service pilot        following the suspect aircraft testified to having seen  moving lights        from the  vessels.  From this  a reasonable jury could  infer that the        vessels wished to be visible  to the aircraft.  Bales of  cocaine were        dropped in proximity to the vessels from the aircraft, after which the        vessels began heading  north towards the  shore with their  navigation        lights turned  off.  At  first the  two boats traveled  together at  a        distance of about  100 yards.  After the second vessel veered off in a        westerly direction, a  police helicopter was  directed over the  first        vessel,  occupied by  the  appellants.   The  helicopter was  lit  and        identified  as a police helicopter  by the letters  "FURA," which were        twelve  to  sixteen  inches  long.    A  police  sergeant  aboard  the        helicopter  gestured for appellants  to stop.   Appellants  looked up,        reduced  speed, and  then accelerated.   When  a police  marine vessel        subsequently approached,  appellants' vessel  veered off in  order, it        might  be  inferred,  to get  away.    While  other explanations  were        offered,  a jury  could  reasonably conclude  from  this conduct  that        appellants were  conscious of having engaged in  criminal activity and        were  more than mere inadvertent bystanders  at the drug drop.  United                                                                        ______        States v.  Lopez, 944 F.2d  33, 40 (1st  Cir. 1991); United  States v.        ______     _____                                     ______________        Hernandez-Bermudez,  857 F.2d 50, 54 (1st Cir. 1988); United States v.        __________________                                    _____________                                         -4-        Flores Perez, 849 F.2d 1, 3 (1st Cir. 1988); United States v. Alvarez,        ____________                                 _____________    _______        626 F.2d 208, 210 (1st Cir. 1980).                 The fishing  gear found  aboard both vessels  was wrapped  up        and  not prepared for fishing.   No bait or fish  were found on either        vessel.   No  fishing nets were  found in  the area.   As  fishing was        apparently not their purpose, the jury could infer that appellants had        another purpose for  their nighttime sojourn on the  sea.  Although no        cocaine  was found aboard  appellants' vessel,  four bales  of cocaine        were discovered on the companion vessel.  A connection between the two        vessels  was suggested not only by their proximity when first seen but        by  evidence that appellant Wilfredo Alvarado Ortiz was related to co-        defendant  Luis Alfredo  Alvarado.   "While innocent  association with        those involved in illegal activities can never form the sole basis for        a conviction, . . .  the existence of  a close relationship  between a        defendant and  others involved in criminal activity  can, as part of a        larger  package  of  proof,  assist  in  supporting  an  inference  of        involvement  in illicit activity."   United States v.  Ortiz, 966 F.2d                                             _____________     _____        707, 713  (1st Cir. 1992) (citing  Nye & Nissen v.  United States, 336                                           ____________     _____________        U.S. 613, 619 (1949)), cert. denied, 61 U.S.L.W. 3479 (1993).                                ____________                 Criminal   intent   may,  of   course,   be   inferred   from        circumstantial evidence.  E.g., United States v. Gomez-Villamizar, No.                                  ____  _____________    ________________        92-1228, slip op.  at 9 (1st Cir. Dec.  23, 1992); Ortiz, 966  F.2d at                                                           _____        711; United States v. Rodriguez- Alvarado, 952 F.2d 586, 590 (1st Cir.             _____________    ___________________        1991).   Here, numerous factors, including  the unlighted, clandestine        airplane  maneuvering over the two  boats, the lights  on the vessels,                                         -5-        their proximity to the cocaine when dropped, the fact that appellants'        vessel was running without navigational lights, the finding of cocaine        bales on the companion vessel, and the lack of support for their being        engaged  in fishing  or  some other  innocent occupation,  constituted        substantial evidence  from which  a jury  could infer  that appellants        possessed  the requisite criminal intent.   See Alfredo Alvarado, Nos.                                                    ___ ________________        2075, 2076, slip op. at 6-7 (1st Cir. Dec. 31, 1992).                 B. Jury Instructions                    _________________                 Appellants contend  that the district court's instructions to        the  jury  were  erroneous,  misleading,  and  created   impermissible        mandatory presumptions of  guilt.  Pointing to isolated  excerpts from        assorted instructions  regarding intent to distribute, possession, and        aiding  and abetting, appellants complain that the jury was allowed to        convict appellants  for merely being  present at  the scene of  a drug        drop.                   We review  a  district court's  charge  as  a whole,  not  in        isolated excerpts.   E.g., United States v.  Hallock, 941 F.2d 36,  42                             ____  _____________     _______        (1st  Cir. 1991);  United States  v.  Boylan, 898  F.2d 230,  244 (1st                           _____________      ______        Cir.), cert. denied, 111  S. Ct. 139 (1990); United States v. Cintolo,               ____________                          _____________    _______        818  F.2d 980, 1003  (1st Cir.),  cert. denied,  484 U.S.  913 (1987).                                          ____________        Viewing the charge  in this manner, appellants'  arguments have little        force.    For  example,  appellants  object  to  the  district court's        definition  of possession  with intent  to distribute.   The  district        court  defined this element as  possessing "with intent  to deliver or        transfer  possession of a controlled  substance to another person with                                                                          ____                                         -6-        or without any financial interest in the transaction."  We see nothing        ____________________________________________________        wrong  in this.  See Pattern Jury Instructions (Criminal Cases), Fifth                         ___        Circuit, Instruction  45, at  III-73 (1991); Federal  Judicial Center,        Pattern Criminal  Jury Instructions  (1987), Instruction 112,  at 147.        Appellants contend that the instruction would permit a jury to convict        appellants  and  their co-defendants  for  delivering  cocaine to  the        police.   This argument, however,  ignores the fact  that the district        court  clearly  and correctly  defined  the  elements of  willfulness,        intent, and knowledge elsewhere in the charge.  Considering the charge        as  a whole,  we find  nothing that  would cause  the jury  to convict        appellants without finding the requisite criminal intent.                  Appellants  make  a  similar  argument  as  to  the  district        court's  definition   of  constructive   possession.     According  to        appellants,  the  definition  was   misleading  because  the  required        intentional  aspects  were  only  vaguely   and  ambiguously  defined.        Because  appellants failed  to make  this objection  to the  charge at        trial, we  will reverse only upon  a showing of "plain  error."  E.g.,                                                                         ____        United States v. De La Cruz, 902 F.2d 121, 122 (1st Cir. 1990); United        _____________    __________                                     ______        States v. Nazzaro, 889 F.2d 1158, 1166 (1st Cir. 1989);  Fed. R. Crim.        ______    _______        P.  30.  Appellants  have not shown  plain error.   The district court        defined constructive  possession as "knowingly [having]  the power and                                             _________        the intention, at a given time, to exercise dominion or control over a            _________        thing,  either directly or through  another person or  persons."  This        definition,  which  clearly required  both  knowledge  and intent,  is        similar to one we have approved in the past.  See, e.g., United States                                                      _________  _____________                                         -7-        v. Garcia, Nos. 92-1427, 1428, slip op. at 6 (1st  Cir. Feb. 4, 1993);           ______        United States v. Akinola, No. 92-1587, slip op. at 9 (1st Cir. Feb. 2,        _____________    _______        1993); United States v.  Ocampo-Guarin, 968 F.2d 1406, 1409  (1st Cir.               _____________     _____________        1992).   Moreover, as already  noted, the district  court elsewhere in        its  charge made  clear that,  to convict  appellants of  the offenses        charged,  the  jury  had  to  find  that  appellants acted  knowingly,        intentionally,  and  willfully.     See  Hallock,   941  F.2d  at   42                                            ___  _______        (constructive possession instruction without any  mention of knowledge        or intent  is  not plain  error if  knowledge and  intent are  defined        elsewhere in jury instructions).  We see no instructional error, plain        or  otherwise,  that could  have  confused  the  jury into  convicting        appellants without finding the requisite criminal intent.                 Appellants  additionally contend  that  the  district court's        opening remarks  to the  jury on  the concept  of aiding  and abetting        created an impermissible mandatory presumption.  During these remarks,        the district court stated  that "[a]iding and abetting means  when two        or more persons assist each other, basically,  in the commission of an        offense,  . .  . all of  them are  presumed to be  responsible for the        whole  acts committed together."  This statement, while not a complete        explanation  of the concept  of aiding and abetting,  did not create a        mandatory  presumption of guilt.   Instead, it merely  explained, in a        preliminary fashion, that  aiding and abetting is a form  of agency in        which  the law holds a  defendant criminally responsible  for the acts        and conduct of another person  even though the defendant may  not have        personally  committed every act constituting  the offense alleged.  Of                                         -8-        course,  before a defendant may  be held criminally  responsible as an        aider  and  abettor, the  government  must  prove  that the  defendant        "associated himself with the underlying venture, participated in it as        something he wished to bring about, and sought by his  actions to make        it succeed."  United States  v. Clifford, 979 F.2d 896, 899  (1st Cir.                      _____________     ________        1992); United States v.  O'Campo, 973 F.2d 1015, 1020 (1st  Cir. 1992)               _____________     _______        ("In  order for aiding and abetting liability  to be applicable, . . .        the evidence  must establish  that the defendant  knowingly, willfully        and  intentionally  sought  by his  action  or  presence  to make  the        principal's criminal  transaction succeed.").  The  district court, in        its  subsequent charge, accurately instructed the jury in this regard.        We find  no error in  the district court's  instruction on  aiding and        abetting  or  in any  of the  other  instructions to  which appellants        object.3                 C. Prosecutorial Misconduct                    ________________________                 Appellants'  final  assertion  of   error  involves   alleged        prosecutorial  misconduct.   Appellants  complain that  the prosecutor        misstated  the evidence during argument  of the Rule  29 motion before        the  trial  judge4   and  during  closing   argument  to  the   jury.5                                    ____________________        3.    Appellants did not object  to the district court's definition of        importation,  which we  held, in  their co-defendants'  appeal,  to be        error, but not plain error.  See Alfredo Alvarado, Nos. 91-2075, 2076,                                     ___ ________________        slip op. at 9-11 (1st Cir. Dec. 31, 1992).        4.    Since  the jury was not present during  the prosecutor's Rule 29        argument,  appellants cannot  claim  that any  part  of that  argument        improperly  influenced the  jury.   The statements  made to  the judge        alone were,  for the most part,  fully supported by the  record.  Only        one seems unsupported.   That involved whether appellants'  vessel was        stationary  when the FURA helicopter  first approached.   We find this                                         -9-        Appellants' arguments are severely  hampered by their failure  to have        made  contemporaneous objections to  the allegedly  offensive remarks.        Absence of objection to a prosecutor's remarks limits appellate review        to  the plain error standard.   E.g., United  States v. Panet-Collazo,                                        ____  ______________    _____________        960  F.2d 256, 260  (1st Cir.), cert.  denied sub nom.  Diaz v. United                                        ______________________  ____    ______        States, 113 S. Ct. 220 (1992); United States v. Rodriguez-Cardona, 924        ______                         _____________    _________________        F.2d 1148, 1154 (1st Cir.), cert. denied, 112 S. Ct. 54 (1991); United                                    ____________                        ______        States  v. Griffin, 818 F.2d 97, 99-100  (1st Cir.), cert. denied, 484        ______     _______                                   ____________        U.S. 844 (1987); Fed. R. Crim. P. 52(b).  This standard is not an easy        one to meet.  We may not "'consider the ordinary  backfires -- whether        or  not  harmful to  a  litigant's  cause --  which  may  mar a  trial        record.'"  United States v. Mejia-Lozano, 829 F.2d 268,  272 (1st Cir.                   _____________    ____________        1987) (quoting  Griffin, 818  F.2d at  100)).  Under  the plain  error                        _______                                    ____________________        statement  so isolated and insignificant  that it could  not amount to        plain  error even if it had been uttered  in the presence of the jury.        See,  e.g., United  States v.  Panet-Collazo, 960  F.2d 256,  260 (1st        __________  ______________     _____________        Cir.),  cert. denied sub  nom. Diaz v.  United States, 113  S. Ct. 220                ______________________ ____     _____________        (1992); United States v. Prouse, 945 F.2d 1017, 1025 (8th Cir. 1991).                 _____________    ______        5.       Appellants  also  contend  that   the  prosecutor's  improper        introduction of hearsay evidence constituted prosecutorial misconduct.        Appellants complain  specifically of the testimony  of Customs Service        radar operator Richard Cunnicelli  that he saw flashing lights  in the        water as the suspect  aircraft approached the two vessels.   On cross-        examination, Cunnicelli  admitted that he never  actually saw anything        in the  water because his  eyes were  focused on the  radar equipment.        Instead, he heard  the pilot say,  "I see  lights."  Appellants  argue        that they were prevented from  effectively objecting to this testimony        by  the prosecutor's failure  to provide  Cunnicelli's rough  notes to        appellants during  discovery.   Unlike  their co-defendants,  however,        appellants never requested  these notes;  nor did they  object to  the        admission of  this testimony at trial; nor did they move to strike the        hearsay testimony.  We are therefore  foreclosed from considering this        issue on appeal  absent plain  error, which appellants  are unable  to        establish.   See United  States v. Serrano,  870 F.2d 1,  11 n.11 (1st                     ___ ______________    _______        Cir. 1989).                                         -10-        standard, we will reverse  a conviction only "'in  those circumstances        in  which a miscarriage of  justice would otherwise  result.'"  United                                                                        ______        States  v. Santana-Camacho, 833 F.2d 371, 373 (1st Cir. 1987) (quoting        ______     _______________        United States v. Young, 470 U.S. 1, 15 (1985)).        _____________    _____                 In determining  whether a prosecutor's misstatements amounted        to  plain error,  we  consider the  prosecutor's  comments within  the        framework and context of the entire case.  Rodriguez-Cardona, 924 F.2d                                                   _________________        at  1154; Santana-Camacho, 833 F.2d  at 373; United  States v. Fuller,                  _______________                    ______________    ______        768  F.2d 343,  347 (1st  Cir. 1985).   Within  that context,  we must        decide  "whether the offending conduct  so poisoned the  well that the        trial's  outcome was likely affected."  Mejia-Lozano, 829 F.2d at 274.                                                ____________        We are  guided in making  this determination by  a number  of factors,        including  the  frequency  and   deliberateness  of  the  prosecutor's        comments, the strength and clarity  of the trial judge's instructions,        and  the strength  of  the government's  case  against the  defendant.        United  States v. Mateos-Sanchez, 864  F.2d 232, 241  (1st Cir. 1988);        ______________    ______________        Mejia-Lozano, 829 F.2d at 274.        ____________                 We need not  recount each of  the allegedly  false statements        made by the prosecutor here.  Suffice it to say that we have carefully        scrutinized   the  record  and  find  that  most  of  these  so-called        misstatements involve controverted facts or reasonable inferences that        the  prosecutor asked  the jury  to draw  from the  facts.   There was        nothing improper in either instance.  See United States  v. Mount, 896                                              ___ _____________     _____        F.2d 612, 625 (1st Cir. 1990);  United States v. Tucker, 820 F.2d 234,                                        _____________    ______        237 (7th Cir. 1987).                                         -11-                 Of  the dozen or so statements challenged by appellants, only        one deserves further comment.  During closing argument, the prosecutor        discussed appellants' attempt to evade apprehension:                      It  is only  as they are  about to  get caught                 that all  of a  sudden one  vessel  starts to  veer                 away.                      Which   vessel?    How  interesting  that  the                 defendant [Alfredo Alvarado] says,  the one that is                 the lightest.  That is the one that went off.  That                 is the one that took off.  That was the  decoy.  It                 could get away quicker.                      And sure enough,  the FURA helicopter in  fact                 went after  the vessel that appeared  to be getting                 away.        To  the  extent that  these  remarks suggest  that  appellants' vessel        veered away, i.e., changed its course  from north to west, the remarks        were misleading.  It was the co-defendants' vessel that  veered off in        a westerly direction, not appellants' vessel.  Nevertheless, the  FURA        helicopter initially pursued appellants'  vessel, which apparently was        lighter and could get away quicker.                 The  above-quoted comments  did not  amount to  plain  error.        They were isolated and,  in relation to the body of  evidence received        during trial,  relatively insignificant.  The jury had heard testimony        from a number  of government witnesses  that appellants' vessel  never        veered  from its northerly direction before or during the helicopter's        pursuit,  whereas  their co-defendants'  vessel  at  some point  began        traveling  in   a  more  westerly  direction.     This  testimony  was        corroborated  by a videotape showing  the tracking and  seizure of the        two vessels.  The jury  also heard several witnesses testify  that the        FURA helicopter  initially pursued appellants' vessel.   Therefore, it                                         -12-        was  unlikely  that  the  jury  would  be  duped  or confused  by  the        prosecutor's misleading statements suggesting that the FURA helicopter        initially chased the  vessel that  had veered away  from its  previous        course.                   The likelihood  of jury  confusion was  further decreased  by        the  judge's repeated,  explicit  instructions to  the  jury that  the        statements and arguments  of counsel  were not evidence  in the  case.        Mateos-Sanchez, 864 F.2d at 241; Mejia-Lozano, 829 F.2d at 274; United        ______________                   ____________                   ______        States v. Giry,  818 F.2d 120, 133 (1st Cir.),  cert. denied, 484 U.S.        ______    ____                                  ____________        855 (1987).  Given  the isolated nature of the  comments, the strength        of  the government's case against  appellants, and the  clarity of the        district  court's  instructions,  it  seems  most  unlikely  that  the        misleading  statements could  have affected the  outcome of  the case.        The plain error standard was not met.                  Affirmed.                     ________                                         -13-
