507 F.3d 749 (1st Cir. 2007), 06-1400, United States v. Rodriguez-Duran

Docket Nº:06-1400, 06-1401, 06-1402, 06-1403, 06-1404, 06-1405, 06-1406, 06-1407, 06-1408.
Citation:507 F.3d 749
Party Name:UNITED STATES of America, Appellee, v. Alcides RODR
Case Date:November 21, 2007
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 749

507 F.3d 749 (1st Cir. 2007)

UNITED STATES of America, Appellee,

v.

Alcides RODRÍGUEZ-DURN, et al. Defendants, Appellants.

Nos. 06-1400, 06-1401, 06-1402, 06-1403, 06-1404, 06-1405, 06-1406, 06-1407, 06-1408.

United States Court of Appeals, First Circuit.

November 21, 2007

Heard June 5, 2007.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO, Hon. José Antonio Fusté, U.S. District Judge.

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Lorenzo J. Palomares for appellant Rodríguez-Durán; Luis M. Cháves Ghigliotty for appellant Cabello-Acuno; Johnny Rivera González for appellant Morelis-Escalona; David W. Roman and Brown & Ubarri on brief for appellant Minoungou; Gary H. Montilla-Brogan and Aldarondo & Lopez-Bras, P.S.C. on brief for appellant Okley; Jorge Luis Gerena-Méndez for appellant De La Rosa; Michael R. Hasse for appellant González-Valero; Luis A. Guzmán Dupont for appellant Padilla-Moreno; Guillermo A. Macari-Grillo for appellant Almonte.

Timothy R. Henwood, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and

Nelson Pérez-Sosa, Assistant United States Attorney, were on brief, for appellee.

Before LIPEZ and NEWMAN, [*] Circuit Judges, and SELYA, Senior Circuit Judge.

LIPEZ, Circuit Judge.

The nine appellants in this case were the captain and crew of the Sea Atlantic, a cargo vessel that drew the attention of the United States Coast Guard as it rendezvoused with a small boat off the coast of South America in the middle of an August night in 2005. Officers boarded the ship and discovered more than 1,800 kilograms of cocaine, worth millions of dollars, in a hidden storage compartment. The captain and his crew, along with a tenth defendant who was not on board and remains a fugitive, were indicted on drug distribution charges. At the end of their joint trial,

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which began just forty days after the grand jury returned the indictment, all nine appellants were convicted of possessing the cocaine with intent to distribute it; the captain and first officer also were convicted of conspiracy. They raise a host of alleged errors in their separate appeals, including a claim asserted by five defendants that the district court improperly denied requests for continuances and rushed them to trial. After careful consideration of each contention, we affirm all nine convictions and sentences.

I.

The facts underlying this case are largely undisputed; to the extent they are contested, we view the evidence in the light most favorable to the jury's verdict. United States v. Downs-Moses, 329 F.3d 253, 257 (1st Cir. 2003).

On the evening of August 25, 2005, a Dutch frigate, the Van Amstel, was patrolling off the coast of South America near Curaçao. Among those on board were several members of a tactical law enforcement team from the United States Coast Guard ("USCG") specializing in law enforcement boardings on the high seas.1 At about 10 p.m., one of the team members, Coast Guard Lieutenant Scott Cieblik, was notified by team members monitoring radar transmissions that two vessels in the area appeared to have altered their courses to come in unusually close proximity to each other. One was a large cargo ship and the other was a small fast-moving boat. A maritime patrol aircraft also noticed the two vessels on radar.2 At this point, they were off the coast of Colombia, near the Venezuelan border.

Surveillance continued, and shortly before midnight, radar transmissions indicated that the cargo ship - later identified as the Sea Atlantic - came into direct contact with the small boat. The small vessel turned off its radar once the two vessels appeared to merge; it was not seen departing the area. The next morning, a helicopter was launched with a Coast Guard law enforcement member on board; the Sea Atlantic was spotted from the helicopter and, at about 7 a.m., the Van Amstel approached the cargo ship. The Sea Atlantic was not flying a flag identifying its nationality, but Cieblik saw the words "La Paz," the name of Bolivia's capital, written on the stern of the ship, below the vessel's name. Cieblik testified that he observed "several things that stood out to me that [were] not normal for a ship that size." He noticed discoloration of the paint on the side of the vessel, which "possibly indicated that another vessel was alongside and it was trying to cover up its scratch marks." He also noted an unusually large quantity of communications equipment, including antennas and radios, that he considered suggestive of smuggling operations.

Officer Richard Young, a linguist who was part of the enforcement team, then initiated radio contact with the captain of the Sea Atlantic, appellant Alcides Rodríguez-Durán. The captain reported that the vessel was registered in Bolivia, its last port of call was Curaçao, its next port of call was Vera Cruz, Mexico, and the purpose of the current voyage was to carry cargo. However, when asked the nature of the cargo, Rodríguez-Durán explained that he was bringing the ship to Mexico to

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be sold. The inconsistencies in the captain's report raised Cieblik's suspicions, and he told the USCG Command Center in Miami, Florida - Coast Guard District 7 - that he wanted to board the vessel. The Coast Guard secured the necessary permission from the Bolivian government, 3 and upon boarding, Cieblik and his team directed most of the Sea Atlantic crew members to remain together at the front of the vessel while the officers conducted their inspection.4

The investigation turned up a variety of information and items of interest, including a nautical chart of the Caribbean with two markings, one of which was the approximate location where the Sea Atlantic and the small boat had appeared to rendezvous. The USCG officers also noticed that two sets of blueprints for the vessel showed different uses for one particular area and, upon a close examination of the ship's layout and measurements, they detected a space below a berthing room - a crew bedroom - that was not readily accessible. A strong odor of fresh paint emanated from the room, which had new carpet and new walls - unlike the other berthing rooms on the vessel. Officer Young testified that he removed a drawer from beneath the bottom bunk, revealing sawdust and fresh paint, "still tacky to the touch," on the floor. After Cieblik obtained permission from District 7 to perform a "minimally intrusive search," the team removed wooden boards and the carpet from under the bed. Cieblik testified that, beneath the carpet, "the glue was fresh and still sticky and tacky, like the carpet had just been laid down fairly recently, within the last several hours." After scraping away paint, they discovered a metal plate with a hatch that was an entry point to the space below. In that space were dozens of large bales wrapped in burlap sacks; the bales contained brick-sized packages of compressed cocaine. Sixty-eight bales, containing 1,854 kilograms of cocaine, ultimately were recovered.

An ion scan of the vessel showed traces of cocaine in various locations, 5 including in multiple berthing areas and the ship's galley, and on a forklift inside the cargo hold. Tests performed on the crew members and their clothing showed cocaine on the hands of two of them, Padilla and Cabello. Through testimony at trial from multiple USCG officers, the government suggested that the test results may have understated

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the actual presence of cocaine. Officer Young testified that, during the surveillance that occurred before the enforcement team boarded the vessel, he observed a crew member with a bottle of liquid that resembled Clorox. Officer Ríos reported that Clorox could prevent the ion scan machine from detecting residue. The scan also may not be accurate if an individual handling narcotics wore gloves or changed his clothes after handling them.

According to Young, when the first bale was brought on deck, in view of the crew members, their previous lighthearted demeanor changed and they became silent and seemingly dejected. The men were detained in the bow area as the USCG officers directed the ship to Puerto Rico, a trip that took more than a week. On September 3, 2005, after the Sea Atlantic reached Puerto Rico, a search of the vessel produced three items of evidence introduced at trial. First, a piece of paper found in the cabin occupied by appellant Cabello bore two telephone numbers and the notation "Jose Luis" - the first names of the tenth defendant in this case, Jose Luis Tejeiro-García ("Tejeiro").6 A second piece of paper was found in a cardboard box used as a trash can in Cabello's berth; it contained the words "code on board," and displayed a list that identified the code name for Rodríguez-Durán as "Alpha" and the code name for Cabello as "Charlie." Cabello admitted that he created the list.

On a third piece of paper, found on the nightstand in Rodríguez-Durán's berth, was the word "encuentro," which means "meeting," and some coordinates that appeared to designate a location in the ocean. Rodríguez-Durán admitted that the paper belonged to him.

After their arrival in Puerto Rico, the crew members were interviewed by Immigration and Customs Enforcement ("ICE") agents. Special Agent José Rosado-Santiago ("Santiago") testified at trial that Morelis told him that he had been hired in Venezuela by a man named Tejeiro to work as a longshoreman on the Sea Atlantic for $600 per month. Morelis reported that Tejeiro told him the vessel would travel from Venezuela to Curaçao and that a load of illegal merchandise would be delivered by boat. Payment for transporting the contraband would be...

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