304 F.3d 1088 (11th Cir. 2002), 01-11012, U.S. v. Tinoco

Docket Nº:01-11012.
Citation:304 F.3d 1088
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Pedro Luis Christopher TINOCO, et al., Defendants, Manuel Hernandez, Tito Daniel Estupinan, Defendants-Appellants.
Case Date:September 04, 2002
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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304 F.3d 1088 (11th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellee,

v.

Pedro Luis Christopher TINOCO, et al., Defendants,

Manuel Hernandez, Tito Daniel Estupinan, Defendants-Appellants.

No. 01-11012.

United States Court of Appeals, Eleventh Circuit

September 4, 2002

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Stephen A. Leal, Mary A. Mills, Fed. Pub. Def., Sharon Samek, Tampa, FL, for Defendants and Defendants-Appellants.

Todd B. Grandy, Tamra Phipps, Susan Hollis Rothstein-Youakim, Tampa, FL, for Plaintiff-Appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before BIRCH and MARCUS, Circuit Judges, and FULLAM [*] , District Judge.

BIRCH, Circuit Judge:

Defendants-appellants Manuel Hernandez and Tito Daniel Estupinan appeal their convictions under the Maritime Drug Law Enforcement Act, 46 U.S.C. app. § 1901 et seq. (1994 & Supp. V 1999) ("MDLEA"). They were convicted of conspiracy to possess with intent to distribute five kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. app. § 1903(a), (g), and (j), and of possession with intent to distribute five kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. app. § 1903(a), (g) and 18 U.S.C. § 2 (2000). We AFFIRM their convictions.

I. BACKGROUND

A. Factual Background

1. The United States Coast Guard's Interception of the Smuggling Vessel in International Waters

On 18 June 2000, the United States Coast Guard cutter Thetis, a 270-foot ship

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with approximately 90 to 95 crew members, was on a counter-narcotics patrol in the eastern Pacific Ocean. During the patrol, the Thetis encountered a fiberglass vessel approximately 475 nautical miles west of the Columbian/Ecuadorian border in international waters. The vessel was approximately 40 feet in length, equipped with three outboard motors, and low in profile to the water. Thetis crew members later testified that Coast Guard officials refer to such vessels as "go-fast" boats because they can travel at high rates of speed, which makes them a favored vehicle for drug and alien smuggling operations. When the crew first observed the vessel, it was approximately 300 miles from the nearest point of land. Randy Bradley, a law enforcement officer aboard the Thetis, later testified that this type of vessel, when used for recreational purposes, usually would stay within 20 nautical miles of the shore due to its limited fuel capacity. Using binoculars, Thetis crew members did not see any markings of identification or a flag on the vessel. The crew attempted to hail the vessel by way of radio communications in English and Spanish but received no response.

As the Thetis proceeded towards the vessel, the Thetis crew launched a rigid-hull inflatable boat ("RHI") that contained a four-person boarding team that was ordered to intercept and board the vessel. Once the RHI was in the water, the unresponsive vessel changed its previous course and began zigzagging to the left and to the right. While the RHI boarding team was attempting the interception, lookout officers aboard the Thetis observed four individuals on the zigzagging vessel. The individuals later were identified as Pedro Luis Christopher Tinoco, Neil Pomare Hoard, Manuel Hernandez, and Tito Daniel Estupinan, the four criminal defendants in this case,1 The Thetis lookout officers saw one defendant driving the vessel, one defendant walking back and forth on the vessel, and two defendants throwing overboard what were later identified as bales of cocaine and 55-gallon fuel drums. Due to the distance, the Thetis lookout officers were unable to see the faces of the defendants and thus were unable to identify which defendant was performing which activity as the RHI chased the zigzagging vessel. To locate the items thrown overboard by two of the defendants, the Thetis crew threw into the ocean two smoke floats, pyrotechnic devices that emit smoke for two to three hours when immersed in sea water.

As they pursued the zigzagging vessel, the RHI boarding team, like the Thetis lookout officers, observed the defendants aboard the vessel dumping items into the ocean. They saw bales, fuel drums, wooden objects, and the vessel's hatch being thrown overboard. As was true regarding the Thetis lookout officers, however, the RHI boarding team was unable to identify which of the four defendants were involved in dumping the items. Finally, after a 20 to 30 minute chase, the RHI was able to intercept the vessel. RHI Boarding Officers Tim Burke and Shelby Harrington then boarded the vessel and handcuffed the defendants.

Officer Burke testified at trial that, once on board, he asked the vessel's driver, later identified as Defendant Tinoco, about the vessel's country of origin. Tinoco answered that the vessel was from Colombia.

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In a statement introduced by the defendants at trial,2 Officer Harrington stated that she spoke with the defendant later identified as Hoard, who told her that the vessel's crew was from San Andreas, Colombia, and that the vessel was from Buena Venture, Colombia. Hoard also told her that the vessel was en route to the Galapagos Islands. When asked which of the four defendants was the vessel's master, Hoard pointed to Tinoco. After Officers Burke and Harrington spoke with Tinoco and Hoard, the RHI boarding team conducted a search of the vessel. The passports of the four defendants were obtained. Despite a thorough search, however, the RHI boarding team was unable to find any identifying marks or registration documents that would confirm the claims made by Tinoco and Hoard that the vessel was Colombian in origin. The only other items found on board were spare engine parts, navigational and communication equipment, approximately 30 fuel drums, food and beverages, and clothing.

Following the search of the vessel, the defendants were transferred to the Thetis cutter. Several members of the Thetis crew then proceeded to search the waters where the smoke floats had been thrown, using the vessel that had been seized to conduct the recovery operation.3 Approximately 97.5 wrapped bales were retrieved from the water. The bales subsequently were transferred to a Drug Enforcement Administration ("DEA") warehouse in Miami, Florida. Scott Goodlin, a DEA forensic chemist, then sampled the bales and tested them for the presence of a controlled substance, finding that they contained cocaine. At trial, Goodlin estimated that, based on his sampling technique, the net weight of cocaine contained in the seized bales was 1,807 kilograms. The market value in the United States of this amount of cocaine, at the time the trial occurred, would have ranged from $12,000 to $29,000 per kilogram, according to the trial testimony of Adalberto Rivera, a drug agent at the Federal Bureau of Investigation ("FBI").

2. The United States Coast Guard's Communications with the Colombian Navy

At the time the aforementioned events were occurring in the Eastern Pacific Ocean, a series of diplomatic communications took place between the Coast Guard and the Colombian Navy. After RHI Boarding Officers Burke and Harrington spoke with Tinoco and Hoard about the nationality of the vessel and its crew, Officer Harrington relayed a radio communication to Christopher Barrows, an operations officer onboard the Thetis. She informed him about the verbal claims made by the defendants that the vessel was from Colombia and that the crew was of Colombian nationality. The Coast Guard was to use this information to brief the Colombian Navy about the interception.

After receiving the information from Officer Harrington, Officer Barrows communicated with, and sent a series of situation reports to, a Lieutenant Jelin from the Coast Guard District 11, who subsequently provided the information to the Coast

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Guard headquarters and the United States Department of State in Washington, D.C. Pursuant to the terms of the "Agreement between the Government of the United States of America and the Government of the Republic of Colombia to Suppress Illicit Traffic by Sea," the Coast Guard then contacted the Colombian Navy, briefed it about the situation, and requested that the Colombian Navy attempt to verify the verbal claims by the defendants that their vessel was registered in Colombia. The purpose of these communications was to determine whether the vessel was a "vessel subject to the jurisdiction of the United States" as defined in the MDLEA, 46 U.S.C, app. § 1903(c), which would permit the United States to exercise jurisdiction over the case.

Shortly thereafter, the Colombian Navy responded that it needed the name and registration number of the vessel before it could confirm or refute the verbal claims that the vessel was of Colombian origin. The Coast Guard then informed the Colombian Navy that it was unable to provide any additional information, given the absence of any identifying marks on the vessel and of any registration documents found on board. The Coast Guard also told the Colombian Navy that "the four crewman aboard the vessel refused to provide any information pertaining to their personal identification or that of the vessel." Schultz Decl., R2-122 Exh. 20 at 3.4 Based on the information provided by the Coast Guard, the Colombian Navy stated that it was unable to confirm or refute the verbal claims made by the defendants that their vessel was of Colombian registry. As a result, the Coast Guard "assimilated the vessel to stateless status." Id. In terms of the MDLEA, the vessel was treated as a "vessel without nationality," as defined in §...

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