
USCA1 Opinion

	




          December 31, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-2075                                    UNITED STATES,                                      Appellee,                                          v.                                LUIS ALFREDO ALVARADO,                                Defendant, Appellant.                                      __________        No. 91-2076                                    UNITED STATES,                                      Appellee,                                          v.                            JUAN EUGENIO LORENZI-PADILLA,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                                 Cyr, Circuit Judge,                                      _____________                             and Boyle,* District Judge.                                         ______________                                 ____________________            Jose F. Quetglas Jordan with whom  Eric M. Quetglas Jordan  was on            _______________________            _______________________        brief for appellant Luis Alfredo Alvarado.            Eric M. Quetglas Jordan  with whom Jose F. Quetglas Jordan was  on            _______________________            _______________________        brief for appellant Juan Eugenio Lorenzi-Padilla.            Jose  A. Quiles-Espinosa,  Assistant United  States Attorney, with            ________________________        whom  Daniel  F.  Lopez  Romo, United  States  Attorney,  and Jeanette              _______________________                                 ________        Mercado Rios,  Assistant United  States  Attorney, were  on brief  for        ____________        appellee.                                  ____________________                                 ____________________        _____________________        *Of the District of Rhode Island, sitting by designation.             BOYLE, District Judge:                    ______________                       Luis   Alvarado  and  Juan   Lorenzi  appeal  from             judgments  of   conviction  for  aiding  and   abetting  the             possession  with  intent to  distribute  approximately 267.6             kilograms  of cocaine  stipulated  to be  worth between  $60             million  and  $100  million  in  violation  of  46 U.S.C.                1903(a),   (c)(1)(d),  (f),  &  18   U.S.C.     2,  and  the             importation  of cocaine  into the  customs territory  of the             United States in violation of 21 U.S.C.   952(a) & 18 U.S.C.                2.   Both  appellants claim  that there  was insufficient             evidence   to   establish   that  appellants   intentionally             possessed the cocaine with intent  to distribute it and that             there was insufficient evidence to show that the cocaine was             imported into  the customs  territory of the  United States.             After careful consideration of the record, we affirm.                                    I. Background                       On the evening of March 19, 1991,  a United States             Customs Service aircraft acquired  a suspect aircraft on its             radar  device  and  on  a Forward  Looking  Infrared  System             ("FLIR") approximately 185 miles southwest of  Ponce, Puerto             Rico.  The suspect aircraft was heading northeast, traveling             without navigation lights at an altitude of about 3000 feet.                                         -4-                                          4                       The Customs Service  aircraft pursued the  suspect             aircraft at a distance of half-a-mile.  After about one hour             and  twenty  minutes,  the  pilot  of  the  Customs  Service             aircraft  noticed the  lights of two  vessels in  the water.             The   vessels  were   located  approximately   twenty  miles             southwest of Santa Isabel, which is near Ponce.  The suspect             aircraft descended to about  300 to 500 feet off  the water,             just  above the two vessels, and then began a series of hard             maneuvers, sometimes turning ninety degrees or greater.                       After about fifteen minutes  of maneuvering by the             suspect aircraft, the pilot  of the Customs Service aircraft             noticed a string of  approximately twenty-five lights in the             water.  Based  on his experience,  the pilot suspected  that             the string of lights he observed were chem lights, which are             often attached to narcotic airdrops for visibility.                       The  pilot reported  a  possible  airdrop,  and  a             Customs   Service  Nomad   aircraft  thereafter   took  over             surveillance of the two vessels on both radar and FLIR.  The             vessels were traveling at about twenty to twenty-five miles-             per-hour  in  a  northbound  heading.    Both  vessels  were             traveling  without navigation  lights.   The  Nomad began  a             half-mile  orbit around  the vessels  and radioed  the state                                         -5-                                          5             police  that two  vessels suspected  of drug  smuggling were             headed towards the shore.                       At about  11:30 P.M.,  the two vessels,  which had             been traveling  together at a distance  of approximately 100             yards, began to separate.   The first vessel continued  in a             northbound heading, while the second vessel veered off  in a             more westerly  direction.  To maintain  surveillance on both             of the diverging vessels, the Nomad kept its FLIR trained on             the first vessel and its radar trained on the second vessel.                       A state  police helicopter  was directed  over the             first  vessel.    The  helicopter  was  well  lit  and  duly             identified as a police helicopter by twelve- to sixteen-inch             lettering spelling "FURA" for police as well as displaying a             coat  of arms.  A  sergeant in the  helicopter signalled the             co-defendants aboard  the first  vessel,  Angel Morales  and             Wilfredo Cartagena,  to cut  the engine  and stop the  boat.             Initially, the  co-defendants reduced their speed,  but then             accelerated again  and continued  moving towards  the shore.             As the first vessel  tried to escape, the  police helicopter             alerted  land base and seaborne units.  The helicopter began             to orbit the vessel  while awaiting the arrival of  a police             boat.   A  police boat with  flashing lights  approached the             first vessel soon thereafter.   The co-defendants  initially                                         -6-                                          6             attempted  evasive maneuvers,  but were  eventually detained             and arrested.                       After  the  police  helicopter  had  reported  its             location  as overhead  the  first vessel,  the Nomad  turned             southwest toward  the second  vessel and began  orbiting it.             The police helicopter flew  to the area of the Nomad and the             second vessel once the first vessel was in custody.  At that             time, the  two vessels were approximately  five miles apart.             The  helicopter maneuvered  itself  just  above  the  second             vessel,  which  still had  its navigation  lights off.   The             police crew illuminated the vessel with a hand-held lamp and             observed appellants Juan Lorenzi  and Luis Alvarado and four             bales of possible contraband on board.  Appellants initially             ignored police commands to  turn off the motor and  stop the             boat.   After a  short pursuit, however,  appellants stopped             the vessel.    A  police sergeant  jumped  from  the  police             helicopter onto  appellants'  vessel and  placed  appellants             under arrest.                       In  addition  to   the  four  bales  of   possible             contraband,  several chem  lights were  found hidden  in the             stern  of the second vessel.   Pieces of  matching ribbon of             the  bales were  still attached  to the  chem lights.   Also             found on board the  second vessel were two spare  gas tanks,                                         -7-                                          7             two  lamps, and unused fishing equipment.  There was no bait             found  on  board.    Appellant  Luis  Alvarado  nevertheless             claimed that he  and Juan Lorenzi had  laid a fish  net that             evening in an area called "El Investigador," which is  seven             or eights miles off the coast, when they heard the sounds of             objects  falling into  the  water and  saw floating  lights.             They headed toward the lights and then heaved the bales onto             the  second vessel.   Mr. Alvarado admitted  that he thought             the bales  contained contraband, but claimed that he and Mr.             Lorenzi  were  en route  to  the police  station  where they             intended to relinquish the bales.                       On March 20,  the day after the  arrests, a police             aircraft  returned  to  the  airdrop site  and  observed  an             additional  seven bales  of cocaine  floating in  the water.             They were only  able to retrieve four  of these bales.   The             substance in these bales as well as the bales found on board             the second vessel later tested  positive for cocaine with  a             weight  of  267.6  kilograms  and a  purity  of  ninety-five             percent.                                    II. Discussion             A. Sufficiency of Evidence of Intent                _________________________________                       Appellants  contend  that  there was  insufficient             evidence  to  prove  that they  intentionally  possessed the                                         -8-                                          8             cocaine  with the  intent of  importing or  distributing it.             This argument  fails.   We review the  convictions only  for             clear and gross injustice because appellants failed to renew             their motions for judgments of acquittal under Fed. R. Crim.             P.  29(a) after  presenting  evidence on  their own  behalf.             United  States v.  Hadfield,  918 F.2d  987,  996 (1st  Cir.             ___________________________             1990);  United States  v. Clotilda,  892 F.2d  1098, 1102-03                     __________________________             (1st Cir. 1989).                       Appellants fail to meet  this standard.  There was             evidence  for  the jury  to  conclude  that appellants  were             guilty beyond a reasonable doubt.  Appellants were in one of             two  vessels over  which a  suspect aircraft  hovered.   The             suspect  aircraft  met  the   profile  criteria  of  a  drug             transporting aircraft  in that it  had no lights,  no flight             plan, and was flying at a dangerously low altitude.  It made             a series  of hard  maneuvers approximately three  hundred to             five  hundred  feet  above  the appellants'  vessel.    Both             vessels appeared to be  signalling the suspect aircraft with             their  lights.   The  vessels then  turned their  navigation             lights  off and headed towards the shore once appellants had             retrieved  four bales of cocaine  from the water.   The jury             could reasonably  infer that the vessels  were attempting to             evade  detection  by  law   enforcement  officials.     This                                         -9-                                          9             inference   is  further   strengthened  by  the   fact  that             appellants attempted to avoid the police helicopter that was             well  lit and  clearly  identified by  lettering, twelve  to             sixteen inches high, and a coat of arms on the side.                       The jury quite reasonably declined to believe Luis             Alvarado's  tale  that he  and  Juan  Lorenzi possessed  the             cocaine only because they were  en route to turn it over  to             the police.  Appellants importuned the jury  to believe that             they heard bales of cocaine drop into the water twenty miles             southwest of Puerto  Rico, while  they were  fishing in  "El             Investigador,"  which is only  seven or eight  miles off the             coast.   Moreover, fishing gear was not in working order and             there was no  bait found aboard  their vessel.  Nor  was the             fishing net they cast  upon the water recovered in  the area             of "El Investigador."  The jury could reasonably  have found             the  appellants'  version of  the  events that  night  to be             incredible.  Since the  evidence overwhelmingly supports the             verdicts  of  the  jury,  appellants'  convictions  are  not             grossly unjust.             B.  Importation                 ___________                       Appellants'   second  claim   of  error   is  more             meaningful.    Appellants contend  that  the district  judge             incorrectly  instructed  the  jury  as  to  the  element  of                                         -10-                                          10             importation.  Appellants,  however, neither objected  to the             trial  court's  instructions  nor  proffered  additional  or             different  instructions   of  their  own.     As  a  result,             appellants forfeited  the right to ordinary review.   We can             reverse  their  convictions   only  if  the  lower   court's             instructions  amount to  plain error.  See United  States v.                                                    ___ _________________             Natanel, 938 F.2d  302, 311 (1st  Cir. 1991), cert.  denied,             _______                                       _____  ______             112  S.Ct.  986 (1992).   As  we  have stated  before, plain             errors are   "those errors  so shocking that  they seriously             affect the  fundamental fairness and basic  integrity of the             proceedings conducted below." United  States v. Griffin, 818                                           _________________________             F.2d 97, 100  (1st Cir.  1987), cert. denied,  484 U.S.  844                                             _____ ______             (1987).   "It follows, unsurprisingly, that  the plain error             exception is to be used 'sparingly,' only to prevent justice             from miscarrying." United States v. Hunnewell, 891 F.2d 955,                                __________________________             956 (1st Cir. 1989).                        The relevant  statute, 21 U.S.C.    952(a), states             that "[i]t  shall be  unlawful to  import  into the  customs             territory  of  the  United  States from  any  place  outside             thereof  (but within the  United States), or  to import into             the  United  States  from  any place  outside  thereof,  any             controlled substance . . ."  Thus, a critical element of the             offense of importation is that a defendant imports or causes                                         -11-                                          11             to  be  imported a  controlled  substance  into the  customs             territory of the  United States.  United States  v. Nusraty,                                               _________________________             867  F.2d 759, 766 (2d  Cir. 1989); United  States v. Samad,                                                 _______________________             754 F.2d  1091, 1096  (4th  Cir. 1984).  The district  judge             instructed the jury that:                       Customs  waters  of  the  United  States, as  they                       relate to  a United States vessel,  are the waters                       around  the vessel  irrespective of  distance from                       the United States, within  which the United States                       may enforce its law if the vessel  is hovering off                       the coast of the United States and is suspected of                       smuggling . . .                       A   hovering  vessel  in   the  context   of  this                       instruction, means a vessel  found or kept off the                       coast  of  the  United  States,  if  from history,                       conduct or character or location of the vessel, it                       is reasonable to believe that such vessel is being                       used  or  may be  used  to  introduce, promote  or                       facilitate    the   introduction    or   attempted                       introducing of contraband into the country.                       The  statute  defines  "customs  territory  of the             United  States" as  having  the meaning  assigned  to it  by             general  note 2  of the  Harmonized Tariff  Schedule  of the             United  States.   21 U.S.C.    951(a)(2).   General  note 2,             however,  merely states  that the  customs territory  of the             United  States includes  only  the States,  the District  of             Columbia, and Puerto Rico.  Although general note 2 fails to             provide   a  meaningful   standard   for  determining   what             constitutes the  customs territory of the  United States, it             is  well  settled  that  the outer  limits  of  the  customs                                         -12-                                          12             territory of the United States extend only twelve miles from             the coast.   See United States  v. Lueck, 678 F.2d  895, 905                          ___________________________             (11th Cir. 1982); United  States v. Seni, 662 F.2d  277, 286                               ______________________             (4th Cir.  1981), cert. denied, 455 U.S.  950 (1982); United                               _____ ______                        ______             States  v.  Williams, 617  F.2d  1063,  1073 n.6  (5th  Cir.             ____________________             1980)(en banc).    Thus,  the  jury should  have  been  more             specifically  instructed   that  in  order   to  find   that             appellants  imported  a  controlled  substance   within  the             meaning of 21 U.S.C.   952(a), the contraband must have come             into the twelve-mile outer limit of the customs territory of             the  United States. See United States v. Nueva, No. 91-2150,                                 ___ ______________________             slip op.  at 8  - 9  (1st Cir. November  4, 1992);  see also                                                                 ___ ____             United States v. Goggin, 853 F.2d 843, 845 (11th Cir. 1988).             _______________________             There  is no record, however, that anyone called this to the             attention of the District Judge.                       Although  the  district court's  instructions were             incomplete,  we  must  consider the  instructions  in  their             entirety  and   in  the  context  of  the  entire  trial  in             evaluating  a  claim of  plain error.  See United  States v.                                                    ___ _________________             Weston,  960 F.2d 212, 216 (1st Cir. 1992).  Furthermore, we             ______             must  view the evidence in  the light most  favorable to the             verdict. See United States  v. Batista-Polanco, 927 F.2d 14,                      ___ _________________________________             17  (1st   Cir.  1991).     The  government   contends  that                                         -13-                                          13             appellants'  vessel  entered the  twelve-mile  customs limit             because of evidence that  the police helicopter hovered over             appellants' vessel  at Jobos  Bay, which  is seven  or eight             miles  from  shore.    The  evidence  however  is  that  the             helicopter,  while awaiting  the arrival  of a  police boat,             hovered over the first vessel operated by co-defendants, not             the  second  vessel,  which  was operated  and  occupied  by             appellants.     Appellants'  boat  had  separated  from  co-             defendants' boat  approximately twelve (12)  minutes earlier             and headed  in a  westerly direction, roughly  parallel with             Puerto  Rico's  southern  coast.    Nothing  in  the  record             indicates  that  appellants'  boat  travelled  significantly             further  away  from  the  coastline  after  the  separation.             Accordingly,  the relative position  of co-defendant's boat,             which   was  apprehended  just  minutes  after  the  vessels             separated, is  at least  some evidence that  appellants boat             also crossed the twelve-mile customs territory limit.                          The government also cites to the testimony of Luis             Alvarado that appellants had allegedly laid a fishing net in             the  area of "El Investigador", an area seven or eight miles             from  shore.   The jury  obviously did  not believe  certain             aspects of appellant's  "fish tale" or  else they would  not             have  convicted appellants.    No one,  however, denies  Mr.                                         -14-                                          14             Alvarado's statements that,  while headed toward  shore with             cocaine on  board their  vessel, he and  Mr. Lorenzi  passed             through  "El  Investigador",  well  within  the  twelve-mile             limit.  In fact, in his opening statement, appellants' trial             counsel  told the court and  jury "[t]he only  issue in this             case is whether or  not Luis and Juan possessed  those bales             of  cocaine with  the intention  of delivering  them  to the             police authorities in  the police headquarters  in Salinas."             Trial  Transcript at  57.   "At around  6:00 o'clock  in the             afternoon Juan and  Luis left  the coast  on Juan's  fishing             boat  and headed toward El Pescador, a fishing area seven or             eight miles  away from the  coast." Trial Transcript  at 59.             Although counsel's  statements  are not  evidence,  they  do             indicate that counsel had no intention of disputing the fact             that  appellants were  within the  twelve mile  limit.    In             light  of  such  representations, it  would  be particularly             unreasonable to expect the district court to have thought of             the precisely correct instruction on its own.                       Finally,  a  mark made  on an  aeronautical chart,             presented  to   the  jury  as  Joint   Exhibit  1,  provides             additional evidence that  appellants entered the twelve-mile             customs limit.   This mark was made by the radar operator of             the  Nomad in  the course  of testifying  as to  the various                                         -15-                                          15             positions  of  the vessels  after the  airdrop up  until the             arrests.   The government did not specifically ask the radar             operator the distance between the  mark and the Puerto Rican             shoreline.   Using the  chart's mileage scale,  however, the             mark establishes that appellants  were taken into custody at             a point about  seven miles  from the coastline.   The  radar             operator's mark,  taken together with  the relative position             of  co-defendants' boat  and Luis Alvarado's  statement that             appellants  passed through  "El  Investigador", is  credible             evidence  that  the  element of  importation  was  met.   In             contrast, there  is no evidence that  remotely suggests that             appellants  were taken  into custody  at a  point beyond  12             miles from the coast.                       As  we  have  stated  before,  "[t]he  plain error             hurdle is high."   See United States v. Hunnewell,  891 F.2d                                ___ __________________________             955, 956 (1st Cir.  1989).  Appellants have failed  to clear             this height.  To hold differently would permit appellants to             benefit  from their own failure either to object to the jury             instructions  at  trial   or  to   propose  an   appropriate             instruction to  the court.  We  cannot promote "sandbagging"             of this  type.    As  a matter  of  policy,  we  stress  the             importance  of making  contemporaneous  objections  to  jury             instructions and the duty to  assist the court to accomplish                                         -16-                                          16             an  error free trial.  In sum, appellants have not presented             "the rare case in which [a lack of] instruction will justify             reversal of a criminal conviction when no objection has been             made in the trial  court." See Henderson v. Kibbe,  431 U.S.                                        ___ __________________             145, 154 (1977).                                    III. Conclusion.                       The  evidence  overwhelmingly  supports  the  jury             verdicts  as  to  the  charge  of  aiding and  abetting  the             possession with intent to  distribute cocaine, and we affirm             the  appellants'  convictions  under 46  U.S.C.     1903(a),             (c)(1)(d),  (f), & 18 U.S.C.   2.  Furthermore, the district             court's instruction  on the element of  importation does not             amount  to   plain  error.     Therefore,  we   also  affirm             appellants' convictions for the importation of cocaine  into             the  customs territory of the United  States in violation of             21 U.S.C.   952(a) & 18 U.S.C.   2.             Affirmed.             Affirmed             ________                                         -17-                                          17
