837 F.2d 1024 (11th Cir. 1988), 86-5911, United States v. Alvarez

Docket Nº:86-5911.
Citation:837 F.2d 1024
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Marcelino Efrain ALVAREZ, Jose Delgado Ramirez, Juan Ramon Mosquero-Herrera, Juan Ramon Gomez, Defendants-Appellants.
Case Date:February 19, 1988
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1024

837 F.2d 1024 (11th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,


Marcelino Efrain ALVAREZ, Jose Delgado Ramirez, Juan Ramon

Mosquero-Herrera, Juan Ramon Gomez, Defendants-Appellants.

No. 86-5911.

United States Court of Appeals, Eleventh Circuit

February 19, 1988

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Michael G. Smith, Coral Gables, Fla., for Marcelino Alvarez.

Paul M. Korchin, Coral Gables, Fla., for Jose Ramirez.

Carlos A. Rodriguez, Miami, Fla., for Juan Mosquera-Herrera.

Dave Lee Brannon, Henry M. Bugay, Asst. Federal Public Defenders, Miami, Fla., for Juan Gomez.

Leon B. Kellner, U.S. Atty., Lee E. Stapleton, David O. Leiwant, Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY, Chief Judge, HATCHETT, Circuit Judge, and HODGES [*], Chief District Judge.

HATCHETT, Circuit Judge:

In this seizure-of-contraband-on-the-high-seas case, we affirm the judgments in the face of attacks that the trial was defective because the evidence was insufficient to support the convictions, a deliberate ignorance instruction should not have been given, the taking of a foreign deposition should have been allowed, the prosecutor engaged in misconduct, and expert testimony should not have been introduced.

In the southeast Bahamas, United States Coast Guard officers intercepted the "Proud Mary", a sixty-five foot fishing vessel sailing low in the water. A Coast Guard boarding party found the vessel's fishing nets dry and cracking and two trawl doors chained down and not prepared for fishing. The pilot house contained expensive satellite navigation equipment and a navigation chart which looked as though it had been used often for charting the area between the Quehara Peninsula in Colombia and the island of Aruba. Discovered elsewhere aboard the vessel were a welding machine, an electric sander, used putty knives, and Bondo (a filler for metal).

The vessel's hold contained 6,000 pounds of fish which were smelly, rotten, bleached white from age, with sunken eyes. The vessel had no refrigeration system, and the small amount of ice on the fish was melting. The fish appeared to have been unprofessionally loaded and in such a manner as to allow for easy access to the bulkhead area behind the fish bins.

The four appellants, Juan Ramon Gomez, Jose Delgado Ramirez, Juan Ramon Mosquero-Herrera and Marcelino Efrain Alvarez, were the only persons aboard the vessel. Gomez identified himself as the master of the vessel and told the Coast Guard officers he was transporting the fish from Aruba to Miami by way of Nassau, Bahamas. The bill of lading, however, indicated the destination as Nassau, listed no consignee of the fish, and indicated Seamar, an Aruban agency, had loaded the fish.

After five hours of searching and measuring, the Coast Guard officers determined that no access could be gained to a compartment measuring 8-by-20-by-6 feet located behind the fish hold. Gomez said he did not know what was in the compartment, but suggested it might be a large water tank. When a Coast Guard lieutenant informed Gomez that he intended to drill into the compartment, Gomez called the lieutenant "a liar for not believing ... that it was a water tank." Drilling into the tank produced a white powder, the odor of marijuana, and no water. The Coast Guard officers then requested a cutting torch from their vessel. Upon learning of the

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request for a torch, each appellant began packing a bag with clothing. A hole cut through the deck revealed 6,400 pounds of marijuana and 159 pounds of cocaine inside the secret compartment.

The Coast Guard officers then arrested the appellants. They found United States currency in the appellants' possession in the following amounts: Mosquero-Herrera $2,381; Alvarez $1,800; Ramirez $100; Gomez a couple of dollars. After receiving Miranda warnings, each appellant gave a statement.

Gomez stated that he had been hired by a man named Miguel to be the master of the vessel, even though Gomez had no prior nautical experience. Gomez also stated that he would be paid $2,000 to transport the vessel to Nassau and to turn the cargo over to a man named Frank. Gomez said Mosquero-Herrera was second in command on the vessel, and that he did not know any of the other crew members prior to the voyage.

Alvarez stated that Seamar Agency had hired him as an engineer to be paid $1,600 per month for the trip from Aruba to Miami and return. Alvarez claimed, however, that he had never sailed on a boat before.

Ramirez stated that he had made previous trips from Aruba to Miami on the Proud Mary. For this trip, a man named Miguel provided him (Ramirez) with money to fly from the United States to Aruba for the voyage. His duties included those of cook and deck hand.

Mosquero-Herrera stated that he had been hired by Miguel as a deck hand, and he would be paid $2,000 for the voyage. He further stated a man named Frank would meet the vessel in Nassau. At trial, Mosquero-Herrera testified that it was merely a coincidence that he and Gomez had flown on the same airplane from Santo Domingo to Aruba.

A four-count indictment charged each of the appellants with conspiracy to possess with intent to distribute marijuana and cocaine, and possession with intent to distribute marijuana and cocaine, in violation of 21 U.S.C. Secs. 955a(a) and 955c, and 18 U.S.C. Sec. 2. A jury returned verdicts of guilty against each of the appellants on all counts.

Appellants contend (1) the evidence was insufficient to convict them; (2) the district court improperly gave a conscious ignorance instruction; (3) the district court improperly denied appellants' motion to take a foreign deposition; (4) the prosecutor made improper remarks during closing argument; and (5) a Drug Enforcement Agency's employee's expert testimony violated Rules 403 and 704(b) of the Federal Rules of Evidence.

Sufficiency of Evidence

Alvarez and Gomez challenge the sufficiency of the evidence to support their convictions for a conspiracy to possess, and actual possession of, marijuana and cocaine, with intent to distribute, in violation of 21 U.S.C. Secs. 955a(a) and 955c and 18 U.S.C. Sec. 2.

To support a conviction for a conspiracy, the government must prove that two or more persons agreed to commit a crime, that the defendant knew of the agreement, and voluntarily became a part of the conspiracy. United States v. Alvarez, 755 F.2d 830, 853 (11th Cir.), cert. denied, 474 U.S. 905, 106 S.Ct. 274, 88 L.Ed.2d 235 (1985). Proof of acts committed in furtherance of the conspiracy may be sufficient to show knowing participation in the conspiracy. United States v. Bain, 736 F.2d 1480, 1485 (11th Cir.), cert. denied, 469 U.S. 937, 105 S.Ct. 340, 83 L.Ed.2d 275 (1984).

Proof of possession of drugs with intent to distribute requires the government to show the defendant knowingly possessed the drugs either actually or constructively, and that he intended to distribute them. United States v. Cruz-Valdez, 773 F.2d 1541, 1544 (11th Cir.1985) (in banc), cert. denied, 475 U.S. 1049, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986). Evidence of surrounding circumstances can prove knowledge. United States v. Vera, 701 F.2d 1349, 1358-59 (11th Cir.1983). Constructive possession may be shown by proof of the knowing exercise of dominion

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and control over the drugs. United States v. Knight, 705 F.2d 432, 433 (11th Cir.1983).

This court has identified several factors as evidence of knowing possession of and conspiracy to possess drugs. These factors include the size of the vessel and quantity of drugs on board; suspicious behavior of the crew; absence of equipment or supplies necessary to the intended use of the vessel; and other factors. There is no set formula. Cruz-Valdez, 773 F.2d at 1546; United States v. Vidal-Hungria, 794 F.2d 1503, 1515 (11th Cir.1986).

In reviewing the sufficiency of the evidence, we first draw all reasonable inferences in favor of the jury's verdict and then consider whether a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt. United States v. Cole, 755 F.2d 748, 755 (11th Cir.1985); United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (in banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

The vessel "Proud Mary" was only 65 feet long and contained over 3 tons of marijuana and over 150 pounds of cocaine. Although the drugs were in a sealed, secret compartment, each of the appellants began packing a bag after the Coast Guard officers drilled into the secret compartment, but before the appellants were told drugs had been discovered. This indicates shared guilty knowledge.

The jury could properly have concluded that Gomez and Ramirez knew the 6,000 pounds of fish was a bogus cargo. The fish was three to four weeks old, bleached white from age, rotting, and smelly. The ice on the fish was melting, and the vessel was not equipped with refrigeration. Other evidence showed the vessel rode low in the water despite the fact the hold was only partially filled with fish. The Coast Guard officers also found welding equipment, an electric sander, used putty knives, and metal filler on board. All of these tools are useful in building--not as useful in fishing or transporting fish.

Furthermore, shortly after his arrest, Gomez told the Coast Guard officers that he did not know any of the other...

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