144 F.3d 1249 (9th Cir. 1998), 96-50551, United States v. Klimavicius-Viloria

Docket Nº:96-50551, 96-50552, 96-50553, 96-50554, 96-50556.
Citation:144 F.3d 1249
Party Name:Serv. 4048, 98 Daily Journal D.A.R. 5612 UNITED STATES of America, Plaintiff-Appellee, v. Richard KLIMAVICIUS-VILORIA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Oscar CAICEDO-PINEDA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Edilberto FERRARO-MONTESDEOCA, Defendant-Appellant. UNITED STATES of
Case Date:May 29, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1249

144 F.3d 1249 (9th Cir. 1998)

Serv. 4048,

98 Daily Journal D.A.R. 5612

UNITED STATES of America, Plaintiff-Appellee,

v.

Richard KLIMAVICIUS-VILORIA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Oscar CAICEDO-PINEDA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Edilberto FERRARO-MONTESDEOCA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Freddy Queney RIVAS-LERMA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Felix OTERO-ESTUPINAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Ruben Dario PALMA-ROBAYO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Leoncio Alberto MORCILLO-VIDAL, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Daniel PAYAN-SOLIS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Arnulfo ROJAS-RENTRIA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Dagoberto LERMA-LERMA, Defendant-Appellant.

Nos. 96-50546, 96-50547, 96-50548, 96-50549, 96-50550,

96-50551, 96-50552, 96-50553, 96-50554, 96-50556.

United States Court of Appeals, Ninth Circuit

May 29, 1998

Argued and Submitted Dec. 2, 1997.

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John Dillon Clarke, San Diego, CA, for appellant Klimavicius-Viloria.

Robert Carriedo, San Diego, CA, for appellant Lerma-Lerma.

Michael E. Burke, San Diego, CA, for appellant Caicedo-Pineda.

Daniel Casillas, San Diego, CA, for appellant Ferraro-Montesdeoca.

D. Wayne Brechtel, Solano Beach, CA, for appellant Rivas-Lerma.

Inge Brauer, San Diego, CA, for appellant Otero-Estupinan.

James Matthew Brown, San Diego, CA, for appellant Palma-Robayo.

Mark A. Chambers, Escondido, CA, for appellant Morcillo-Vidal.

Douglas C. Brown, San Diego, CA, for appellant Payan-Solis.

William R. Burgener, San Diego, CA, for appellant Rojas-Rentria.

William V. Gallo and Gonzalo Curiel, Asst. U.S. Attys, San Diego, CA, for the appellee.

Appeals from the United States District Court for the Southern District of California; Marilyn L. Huff, District Judge, Presiding.

Before: FERGUSON, THOMPSON and O'SCANNLAIN, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

On July 28, 1995, the United States Coast Guard seized the vessel Nataly I and the twelve tons of cocaine it was carrying. The Coast Guard arrested the entire crew: Richard Klimavicius-Viloria ("Klimavicius"), master of the ship; Dagoberto Lerma-Lerma, chief engineer; and Oscar Caicedo-Pineda, Edilberto Ferraro-Montesdeoca, Freddy Queney Rivas-Lerma, Felix Otero-Estupinan, Ruben Palma-Robayo, Leoncio Morcillo-Vidal, Daniel Payan-Solis, and Arnulfo Rojas Rentria, collectively the "Crew Members." After a jury trial, Klimavicius, Lerma-Lerma, and all Crew Members were found guilty of possession of cocaine with intent to distribute on board a vessel, 46 U.S.C. app. §§ 1903(a), (c)(1)(C) and (f) (1994). Klimavicius and Lerma-Lerma were also found guilty of conspiracy to possess cocaine with intent to distribute on board a vessel, 46 U.S.C. app. § 1903(j) (1994).

Klimavicius, Lerma-Lerma and the Crew Members appeal. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

FACTS

The Nataly I, a Panamanian-registered vessel, was equipped as a long-line fishing vessel. A long line is a buoyed line five to fifty miles long which is strung with shorter lines holding baited hooks. This type of fishing is used primarily to catch large fish, such as tuna.

On June 9, 1995, when Klimavicius arrived to captain the Nataly I, it was being repaired in a secure, closed dock in Panama. The rest of the crew were already on board. With the exception of one three-day trip which Klimavicius made to Cali, Columbia, he and the entire crew stayed on board the Nataly I without interruption. On July 18, 1995, Klimavicius maneuvered the ship through the Panama Canal and out into the ocean.

On the morning of July 25, 1995, the U.S.S. Cape St. George, a United States Navy vessel, encountered the Nataly I in international waters near the Galapagos Islands approximately 780 miles off the coast of Peru. The sea near the Galapagos Islands is one of the most prolific fishing areas in the world.

Embarked upon the Cape St. George was a U.S. Coast Guard Law Enforcement Detachment. Coast Guard Officer Jose Vizcaino, the boarding officer, hailed the Nataly I via radio, and asked Klimavicius several pre-boarding questions. Klimavicius willingly answered the questions, explaining that the Nataly I was a Panamanian registered vessel, that he and the crew were all Colombians, that the purpose of the voyage was to fish, and that they might be at sea for three

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months. Klimavicius also gave the Coast Guard permission to board.

Once aboard, the Coast Guard boarding team did a preliminary search of the vessel. A test, called the Sherwood spray test, detected the presence of cocaine on one of the access covers in the forward berthing area, where the crew slept. Klimavicius then gave permission to search the three forward tanks. The team also searched a number of other tanks that day, but found no cocaine.

During the inspection, the team noticed things that were inconsistent with a fishing voyage. First, there were no fish on board. Klimavicius explained this by stating that the ship had just arrived at the fishing grounds. Second, there were only fifty pounds of squid bait in the fish house, much less than normal for long-line fishing. Third, there was only a small amount of ice in the fish house and the ice was dirty. Fishing vessels use clean ice to preserve the fish. Although there was an ice maker, it was not making enough ice to properly supply the fish house. Finally, the inspection team found an industrial scale, which was of a type not used to weigh fish, because it was not a hanging scale and because a large tuna or swordfish would weigh more than the maximum weight on the scale.

The inspection team then left the Nataly I for the night. The Coast Guard contacted the Government of Panama to obtain permission to search the vessel, and if cocaine were found, to arrest the crew and seize the ship. Panama gave permission for the search, but deferred on the question of whether to enforce United States or Panamanian law. During the night, the Nataly I's crew fished for squid bait and caught 400-500 pounds, an amount of bait which would supply one day's long-line fishing.

The next morning the Coast Guard team reboarded the Nataly I. When the search resumed, Klimavicius drew a map of the vessel's storage tanks. This revealed that tanks six and seven (where the cocaine was eventually found) were located mid-ship. The access covers for these tanks were concealed by wood planks and several fifty-five gallon drums. Coast Guard Officer David Adcock had previously thought this area suspicious, because it was particularly clean, with soap residue on it. Adcock now inspected the area more closely and noticed that the bolts securing the access covers to these two tanks were shiny and appeared new, indicating that the access plates had been recently removed. In order to inspect the access covers, the planks directly over them had to be removed, as well as several fifty-five gallon drums. Adcock tried to enlist the crew's help in moving the drums. Because he spoke no Spanish, Adcock pointed to the drums and pointed to the place where he wanted them moved. The crew did not respond and looked away from him. At that point, Chief Engineer Lerma-Lerma became very nervous; he wrung his hands and looked like he was about to cry. Crew members Montesdeoca and Morcillo made eye contact, then Montesdeoca shook his head and turned while Morcillo turned around and looked over the side of the boat. The rest of the crew would not look at Adcock.

After the access covers were opened, the inspection team found dirty fuel in tank six. Vizcaino asked Klimavicius for permission to transfer the dirty fuel in tank six to the forward tanks, which were empty. Klimavicius objected, claiming that the forward tanks contained clean fuel, which would be contaminated. In fact, those tanks already contained a residue of dirty fuel. Vizcaino ordered the fuel transferred.

When requested, Klimavicius produced a portable pump to transfer the fuel. Although Klimavicius claimed there was no other pump on board, there was another pump, which worked after a minor repair.

Four Navy engineers were then brought on board to ensure that the fluids were safely transferred among the fifteen tanks. No cocaine was found that day. Because the Government of Panama had given its consent, the Coast Guard took over the Nataly I and left a contingent on board during the night.

The cocaine was found the next day. After all the fuel was transferred out of tank six, Coast Guard personnel searched the tank and found a sealed baffle, or partition, and an access plate right behind the baffle wall. When Vizcaino asked Klimavicius about the access plate, Klimavicius said it probably connected tank six to tank eight, because

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that area was originally one large tank. Vizcaino then asked Lerma-Lerma about the baffle in the tank. Lerma-Lerma appeared to be frightened and responded that "he didn't know, to please stop asking him any more questions about the tanks themselves." Lerma-Lerma was the chief engineer. He was responsible for...

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