U.S. v. Ramirez-Ferrer

• Decision Date: 27 March 1996
• Docket Number: Nos. 94-1016,SUAREZ-MAY,D,RAMIREZ-FERRE,TROCHE-MATO,94-1017 and 94-1018,s. 94-1016
• Citation: 82 F.3d 1131
• Parties: UNITED STATES, Appellee, v. Felipeefendant-Appellant. UNITED STATES, Appellee, v. Jorge L.efendant-Appellant. UNITED STATES, Appellee, v. Raulefendant-Appellant. . Re
• Court: U.S. Court of Appeals — First Circuit

Page 1131

82 F.3d 1131

64 USLW 2635

UNITED STATES, Appellee, v. Felipe RAMIREZ-FERRER, Defendant-Appellant.

UNITED STATES, Appellee, v. Jorge L. SUAREZ-MAYA, Defendant-Appellant.

UNITED STATES, Appellee, v. Raul TROCHE-MATOS, Defendant-Appellant.

Nos. 94-1016, 94-1017 and 94-1018.

United States Court of Appeals, First Circuit.

Reargued Sept. 13, 1995.

Decided March 27, 1996.

Appeals from the United States District Court for the District of Puerto Rico; Hon. Juan M. Perez-Gimenez, U.S. District Judge.

Roxana Matienzo-Carrion, by Appointment of the Court, Hato Rey, PR, for appellant Felipe Ramirez-Ferrer.

Ramon Garcia-Garcia, Santruce, PR, for appellant Jorge L. Suarez-Maya.

Francisco Serrano-Walker, New York City, for appellant Raul Troche-Matos.

Kathleen A. Felton, Attorney, Department of Justice, Washington, DC, with whom Guillermo Gil, United States Attorney, Washington, DC, Jose A. Quiles-Espinosa, Senior Litigation Counsel, Hato Rey, PR, and Epifanio Morales-Cruz, Assistant United States Attorney, Caguas, PR, were on supplemental brief for appellee.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, SELYA, CYR, BOUDIN, STAHL and LYNCH, Circuit Judges, En Banc.

TORRUELLA, Chief Judge.

Defendants-appellants (collectively, "defendants") Felipe Ramirez-Ferrer ("Ramirez-Ferrer"), Jorge L. Suarez-Maya ("Suarez-Maya") and Raul Troche-Matos ("Troche-Matos") appeal to this court their convictions on drug and firearm charges. A panel of this court: 1) affirmed the convictions of all defendants for possession of cocaine with intent to distribute; 2) affirmed the convictions of Suarez-Maya and Ramirez-Ferrer for using a firearm in relation to a drug trafficking offense, but reversed the conviction of Troche-Matos on a similar charge; and 3) reversed the convictions of all defendants for importation of narcotics into the United States. Thereafter, the full court reheard the case en banc. The en banc court now reverses the convictions of all defendants for importation of narcotics into the United States and remands the firearm convictions for further consideration in light of an intervening Supreme Court decision.

I. BACKGROUND

The evidence, taken in the light most favorable to the government, United States v. Abreu, 952 F.2d 1458, 1460 (1st Cir.), cert. denied, 503 U.S. 994, 112 S.Ct. 1695, 118 L.Ed.2d 406 (1992), permitted the jury to find the facts that follow. We emphasize the facts pertinent to the importation charge. On March 13, 1993, the Police of Puerto Rico ("POPR") received an anonymous telephone call. The caller informed the POPR that defendant Suarez-Maya and three other individuals had left for Mona Island, Puerto Rico, in a boat belonging to a relation of Suarez-Maya, and that the four men were going to acquire a load of cocaine and ferry it to the main island of Puerto Rico. Mona Island is one of numerous small islands near Puerto Rico's main island, and is part of the Municipality of Cabo Rojo, which also includes part of the main island's southwest corner. ¹ Mona Island is physically separated Prior to 1989, the boundaries of the United States extended three miles offshore. United States v. Williams, 617 F.2d 1063, 1073 n. 6 (5th Cir.1980). In that year, they were extended by Presidential Proclamation with qualifications to 12 miles. Proclamation No. 5928, 54 Fed.Reg. 777 (1989) (citing the 1982 United Nations Convention on the Law of the Sea, to which the U.S. is a signatory, but which the U.S. had not ratified as of February, 1996). Thus, given the 12-mile limit, to travel from Mona Island to the main island of Puerto Rico requires that a vessel cross international waters.

by about 39 miles of water from the main island of Puerto Rico.

After verifying that the boat in question was indeed away from its mooring, the United States Customs Service (USCS) and POPR flew to Mona Island on a USCS helicopter. The authorities located the subject boat and Suarez-Maya, accompanied by three other men as described. At approximately 12:30 p.m. the next day, the authorities learned that the boat was leaving Mona Island. The boat was interdicted about one mile off the southwest coast of Puerto Rico.

After the boat was seized, it was found to be carrying about 16 kilograms of cocaine. A subsequent inventory search of the boat turned up a firearm. The seized firearm, a loaded revolver, was found covered by a T-shirt, behind a storage compartment near the location where Ramirez-Ferrer had been seated at the time of the interdiction. The search also revealed evidence linking the vessel to a relative of Suarez-Maya.

On March 31, 1993, a grand jury indicted defendants, charging all three in each of three separate counts. The indictment charged each with possessing approximately 16 kilograms of cocaine with intent to distribute (count 1), 21 U.S.C. § 841(a)(1) (1994); with importing such cocaine into the United States (count 2), id. § 952(a) (1994); and with possessing and carrying a firearm in relation to a drug trafficking crime (count 3), 18 U.S.C. § 924(c)(1) (1994). A superseding indictment corrected the description of the seized firearm in count 3.

On September 28, 1993, a jury convicted all three defendants on each count. On counts 1 and 2, relating to possession and importation of cocaine, Suarez-Maya was sentenced to life imprisonment, Ramirez-Ferrer to a term of 240 months, and Troche-Matos to a term of 120 months. The sentences of Suarez-Maya and Ramirez-Ferrer were enhanced under 21 U.S.C. §§ 841(b) and 960(b) on account of prior drug crimes. On count 3, the gun count, each appellant was sentenced to a mandatory minimum term of 60 months to be served consecutively, as required by the statute.

In a decision released April 27, 1995, United States v. Ramirez-Ferrer, 1995 WL 237041 (1st Cir.1995), a panel of this court reversed all three defendants' importation convictions, reversed Troche-Matos' firearm conviction, and affirmed the remaining convictions. On June 26, 1995, this court agreed to rehear the case en banc on the issue of the importation statute's interpretation. Additionally, the court asked the parties to address again the firearms convictions of Ramirez-Ferrer and Suarez-Maya. The en banc court heard oral argument on September 13, 1995. While the case was pending before the en banc court, the Supreme Court on December 6, 1995 issued its opinion in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), overturning precedent in this and other circuits as to the proper construction of the term "use" in section 924(c)(1).

II. THE POSSESSION CHARGE AND THE FIREARM CHARGE

On the possession charge under count 1, the panel concluded that the evidence was sufficient to show that the defendants knowingly possessed the drugs or aided and abetted their possession. Among other evidence, the testimony permitted the jury to conclude that the drugs were stored in a bag with a broken zipper and that the drugs were plainly visible from outside the bag, easily seen by anyone on the 20-foot boat. The en banc court did not request further argument on this issue.

On the firearm charge, the story is more complicated. Section 924(c)(1) is directed The panel had more difficulty with the question of whether a reasonable jury could find that each of the defendants knew that the gun was present; unlike the drugs, the gun was not in plain view. The panel upheld the conviction of Ramirez-Ferrer, since the revolver was located behind a compartment adjacent to his seat and served an obvious purpose to protect the cocaine. The panel also upheld the conviction of Suarez-Maya, who was the central figure in the drug venture and the captain of the boat. As to Troche-Matos, the court ruled that a reasonable jury could not infer that he knew of the weapon.

                against anyone who "uses or carries a firearm during and in relation to a drug trafficking crime" and the district court charged the jury with the language of the statute, defining "use" in accordance with circuit precedent. 2  Assuming that each appellant was aware of the revolver, its presence on the vessel made it available for use to protect the drugs.   The panel ruled that, assuming knowledge of the firearm, its proximity and potential for use permitted the jury to convict under the so-called "fortress" theory previously adopted by this court and others.   See, e.g., United States v. Wilkinson, 926 F.2d 22, 25-26 (1st Cir.), cert. denied, 501 U.S. 1211, 111 S.Ct. 2813, 115 L.Ed.2d 985 (1991)
                

In their petitions for rehearing on this issue, Suarez-Maya and Ramirez-Ferrer drew our attention to United States v. Torres-Maldonado, 14 F.3d 95 (1st Cir.1994), arguing that on somewhat similar facts a panel of this court had found the evidence insufficient to support convictions under section 924(c)(1). In that case, the weapon was found in a zippered opaque tote bag on a sofa in a room in which drugs and money were also found, and the court concluded the evidence was not adequate to establish that two of the individuals in the room actually or constructively possessed the weapon. Id. at 102. Despite its differing outcome, Torres-Maldonado does not conflict with the original Ramirez-Ferrer panel on the proper legal standards to be applied.

Although the en banc court agreed to rehear the case as a whole, sufficiency of the evidence is not normally a question for en banc consideration unless a mistaken legal standard has been used. Any possible tension between the panel opinion and the decision in Torres-Maldonado stems from their appraisals of their own respective facts. But given the kaleidoscope of different facts presented in drug and gun cases and the varying compositions of panels in the court, the en banc court was, and remains, of the view that differences in weighing evidence are inevitable in cases of this kind even within a single circuit. Nothing will produce perfect harmony among outcomes unless the court chooses...