439 F.3d 1149 (9th Cir. 2006), 02-50084, United States v. Perlaza

Docket Nº:02-50084, 02-50089, 02-50093, 02-50102, 02-50108, 02-50133, 02-50136, 02-50188, 02-50199, 02-50200, 02-50207.
Citation:439 F.3d 1149
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Leonar Nellino Segura PERLAZA, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Gustavo Salazar Palacios, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Hugo Marquez, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jose Walter Roman So
Case Date:March 14, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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439 F.3d 1149 (9th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Leonar Nellino Segura PERLAZA, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Gustavo Salazar Palacios, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Hugo Marquez, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Jose Walter Roman Solis-Barnaza, aka Jose Walter Rodman Solis Barnaza, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Manuel Placido Rengifo-Audiver, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Carlos Julio Valencia-Sanchez, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Jose Neffer Castro-Carvajal, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Dionasio Aborno, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Fernando Lopez, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

David Murillo, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Abrual Recio Carrasco, Defendant-Appellant.

Nos. 02-50084, 02-50089, 02-50093, 02-50102, 02-50108, 02-50133, 02-50136, 02-50188, 02-50199, 02-50200, 02-50207.

United States Court of Appeals, Ninth Circuit.

March 14, 2006.

Argued and Submitted Feb. 23, 2004. [*]

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Jeanne G. Knight (brief), Janice Deaton (brief & argued), Michael J. McCabe (brief & argued), John Lanahan (brief & argued), Michael J. Messina, Trost, Woods & Messina (brief), Beverly A. Barnett (brief), Ezekiel E. Cortez (brief), D. Chipman Venie (brief), Casey Donovan, (brief & argued) Donovan & Donovan, Lori B. Schoenberg (brief & argued), and Mark Fleming (argued), San Diego, CA, for the defendants-appellants.

William V. Gallo (argued), Assistant United States Attorney; Patrick K. O'Toole (argued), Assistant United States Attorney; and Jay Alvarez (brief), Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, D.C. Nos. CR-00-03209-TJW, CR-00-03209-W Thomas J. Whelan, District Judge, Presiding.

Before BETTY B. FLETCHER, HARRY PREGERSON, and MELVIN BRUNETTI, Circuit Judges.

PREGERSON, Circuit Judge:

Throughout the late Summer of 2000, the USS De Wert, a Navy frigate, and other United States Navy and Coast Guard ships were engaged in maritime surveillance of vessels suspected of drug trafficking in the Eastern waters of the Pacific off the coasts of Ecuador, Colombia, and Peru. On September 11, 2000, the De Wert's radar alerted its crew and members of a United States Coast Guard Law Enforcement Detachment team aboard it to suspicious activity by a speedboat and a Colombian fishing vessel, the Gran Tauro, twenty miles away. The De Wert's helicopter was dispatched to the site of the suspicious activity. Once the speedboat's crew realized that they had been detected, they jettisoned cargo (later determined to be approximately 2,000 kilograms of cocaine) and 55-gallon gasoline drums before crashing the speedboat into the stern of

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the Gran Tauro in an apparent attempt to scuttle the speedboat and destroy evidence of illegal activity. United States Navy and Coast Guard personnel suspected that the Gran Tauro served as a logistical support vessel for the speedboat by providing gasoline for the speedboat's run from Colombia to Central Mexico.

The five speedboat crew members and seven crew members of the Gran Tauro were prosecuted under the Maritime Drug Law Enforcement Act. Two members of the speedboat crew pled guilty, and the remaining ten Defendants opted for a jury trial and were convicted on all charges. These consolidated appeals followed.

We have jurisdiction. See 28 U.S.C. § 1291. We reverse the convictions of all ten Defendants who opted for trial and direct the district court to dismiss the indictment because the district court erroneously exercised jurisdiction over them without first requiring the Government to allege in the indictment and prove to a jury beyond a reasonable doubt certain facts necessary to establish jurisdiction. We also hold alternatively that, even if the district court had jurisdiction over these Defendants, reversal of their convictions would still be required because the Government committed prosecutorial misconduct during closing argument and the district court failed to adequately cure it. Our reversal is without prejudice to re-indictment and retrial because we find that the Government's evidence was sufficient to sustain these Defendants' convictions and that the Government's improper closing argument did not trigger the Double Jeopardy Clause's bar to retrial. We affirm the conviction of one speedboat crew member who pled guilty, but nonetheless appeals, because the sole challenge to his conviction properly before us lacks merit.

I. FACTUAL BACKGROUND1

The preferred method of smuggling cocaine from South America to the United States in the Eastern Pacific requires the use of speedboats to transfer and land drugs2 and larger logistical support vessels ("LSVs") to serve as roving refueling stations.3 lSVs are typically discovered in three transit corridors between the source of the narcotics (typically, Colombia) and the narcotics' destination (typically, Central Mexico). The first route is along the territorial sea of South and Central American countries. The second is a straight line from Colombia to Mexico. The third route, least used because of distance and cost, is in the Middle Pacific, sufficiently west of the Central and South America coasts to make detection unlikely.

Federal law enforcement has learned that, upon departure, Go-Fast crews are

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typically given coordinates so they know where to meet their LSVs. At the rendezvous location, a member of the LSV crew provides coordinates for the next LSV meeting. The Go-Fasts and LSVs use global positioning satellite ("GPS") devices to coordinate proper rendezvous. Because of the altitude at which surveillance aircraft fly, neither the United States Coast Guard ("Coast Guard") nor the United States Navy ("Navy") has ever seen an LSV refueling a Go-Fast. Nonetheless, each has seen Go-Fasts rendezvous with LSVs in the Eastern Pacific, and confidential informants have confirmed such events.

A. Early September 2000 Surveillance of the Gran Tauro

In late-Summer 2000, the De Wert was conducting a counter-narcotics patrol in the Eastern Pacific off the coasts of Colombia, Ecuador, and Peru. A Coast Guard Law Enforcement Detachment ("LEDET") team and Navy personnel aboard the De Wert had information that the Gran Tauro, a fishing vessel flying the Colombian flag, was possibly an LSV and one of six vessels possibly involved in drug smuggling. On September 1, 2000, the De Wert's helicopter located the Gran Tauro drifting or moving at a very slow speed. Nobody aboard the vessel was fishing. The same observations were made the following evening. On September 3, 2000, the De Wert again observed the Gran Tauro . Under 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 "Bilateral Agreement"), the LEDET team received permission from the Colombian government to board the Gran Tauro . The team approached the Gran Tauro in a rigid hull inflatable boat ("boarding boat") that can be lowered from and lifted onto a frigate. Coast Guard Chief Warrant Officer Christopher Van Pelt, the boarding officer, noticed the intense smell of gasoline. Once aboard, Van Pelt located the Gran Tauro's master, Defendant José Walter Roman Solis-Barnaza ("Barnaza"), who gave Van Pelt the crew manifest and vessel documentation. Van Pelt identified as members of the crew Defendants Manuel Placido Rengifo-Audiver ("Audiver"), José Neffer Castro-Carvajal ("Carvajal"), Hugo Marquez ("Marquez"), Gustavo Salazar Palacios ("Palacios"), Leonar Nellino Segura Perlaza ("Perlaza"), Carlos Julio Valencia-Sanchez ("Sanchez"), and a fifteen-year-old juvenile. Van Pelt inspected the vessel and noted that its nets were in poor condition, that there was no bait in the fish hold, and that the ice in the fish hold was clean with only one fish visible on top.

Included among the documents that Van Pelt obtained from Barnaza was a zarpe 4 that indicated that the Gran Tauro had left Buenaventura, Colombia, on August 25, 2000, and was supposed to return on September 25, 2000. The zarpe restricted the Gran Tauro to fishing in only Buenaventura Zones 2 and 3 and, because the Gran Tauro ran on diesel, to carrying only two 55-gallon drums of gasoline for its generators and pumps. Barnaza told Van Pelt that the Gran Tauro's only gasoline was in one blue 55-gallon drum on the Gran Tauro's fantail, but Van Pelt found approximately 6,000 gallons of gasoline in a tank aboard the vessel. The information obtained by Van Pelt regarding the Gran Tauro's gasoline supply was relayed to the

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Colombian government, which asked the LEDET team to order the Gran Tauro to return to Buenaventura and report to the Port Captain.

B. Continued Surveillance of the Gran Tauro

After the September 3, 2000 boarding, the De Wert refueled at Golfito, Costa Rica, and was out of contact with the Gran Tauro until the De Wert's helicopter reestablished surveillance on September 7, 2000. Using the De Wert's helicopter's Forward Looking Infra-Red Camera ("infra-red camera"), on September 7, 9, and 10, 2000, the helicopter's pilot observed the Gran Tauro ....

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