838 F.3d 1179 (11th Cir. 2016), 14-14991, United States v. Wilchcombe

Docket Nº:14-14991
Citation:838 F.3d 1179, 26 Fla.L.Weekly Fed. C 860
Opinion Judge:WALKER, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARIO WILCHCOMBE, NATHANIEL ERSKINE ROLLE, ALTEME HIBERDIEU BEAUPLANT, Defendants - Appellants
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Phillip Drew DiRosa, U.S. Attorney's Office, FORT LAUDERDALE, FL; Christopher Barrett Browne, Assistant U.S. Attorney, Wifredo A. Ferrer, Daren Grove, Kurt K. Lunkenheimer, Kathleen Mary Salyer, U.S. Attorney's Office, MIAMI, FL. For MARIO WILCH...
Judge Panel:Before MARCUS, JORDAN and WALKER,[*] Circuit Judges. JORDAN, Circuit Judge, concurring, in which WALKER, Circuit Judge, joins. JORDAN, Circuit Judge, concurring, in which WALKER, Circuit Judge, joins:
Case Date:October 04, 2016
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
SUMMARY

Defendants Wilchcombe, Rolle, and Beauplaint appealed their convictions for conspiring to possess with intent to distribute and possessing with intent to distribute five kilograms or more of cocaine and 100 kilograms or more of marijuana while on board a vessel subject to U.S. jurisdiction. Rolle also appeals his conviction for failing to obey a lawful order to heave to his vessel of which he... (see full summary)

 
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Page 1179

838 F.3d 1179 (11th Cir. 2016)

26 Fla.L.Weekly Fed. C 860

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

MARIO WILCHCOMBE, NATHANIEL ERSKINE ROLLE, ALTEME HIBERDIEU BEAUPLANT, Defendants - Appellants

No. 14-14991

United States Court of Appeals, Eleventh Circuit

October 4, 2016

Page 1180

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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          Appeals from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:14-cr-20367-CMA-2.

         For UNITED STATES OF AMERICA, Plaintiff - Appellee: Phillip Drew DiRosa, U.S. Attorney's Office, FORT LAUDERDALE, FL; Christopher Barrett Browne, Assistant U.S. Attorney, Wifredo A. Ferrer, Daren Grove, Kurt K. Lunkenheimer, Kathleen Mary Salyer, U.S. Attorney's Office, MIAMI, FL.

         For MARIO WILCHCOMBE, Defendant - Appellant: Martin Alan Feigenbaum, Martin A. Feigenbaum, Esq., SURFSIDE, FL.

         For NATHANIEL ERSKINE ROLLE, Defendant - Appellant: Jordan M. Lewin, Jordan M. Lewin, PA, CORAL GABLES, FL.

         For ALTEME HIBERDIEU BEAUPLANT, Defendant - Appellant: Simon Patrick Dray, S. Patrick Dray, PA, MIAMI, FL.

         Before MARCUS, JORDAN and WALKER,[*] Circuit Judges. JORDAN, Circuit Judge, concurring, in which WALKER, Circuit Judge, joins.

          OPINION

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          WALKER, Circuit Judge:

         Defendants Mario Wilchcombe, Nathaniel Erskine Rolle, and Alteme Hiberdieu Beauplant appeal from a judgment entered in the United States District Court for the Southern District of Florida (Altonaga, J. ) following a jury trial convicting (1) all defendants of conspiring to possess with intent to distribute and possessing with intent to distribute five kilograms or more of cocaine and 100 kilograms or more of marijuana while on board a vessel subject to U.S. jurisdiction, in violation of 46 U.S.C. § § 70503(a) and (b) and 70506(a), 21 U.S.C. § § 960(b)(1)(B) and (2)(G) and 18 U.S.C. § 2; and (2) Rolle individually of failing to obey a lawful order to heave to his vessel of which he was the master, operator, and person in charge, in violation of 18 U.S.C. § 2237(a)(1). The district court sentenced Beauplant and Wilchcombe principally to 120 months' imprisonment and Rolle to 135 months' imprisonment.

         On appeal, the defendants argue that (A) the district court lacked subject matter jurisdiction over the prosecution; (B) the evidence was insufficient to support Wilchcombe's conviction; (C) the district court erred in failing to declare a mistrial based on improper prosecutorial comment on Rolle's and Beauplant's post-custody, pre- Miranda silence; (D) the district court erred in denying Beauplant's motion to dismiss on the basis of the unavailability of favorable evidence; and (E) the district court abused its discretion in admitting uncharged misconduct evidence against Beauplant. Finding no merit in any of these arguments, we AFFIRM.

         I.

         A.

         Keno Wade Russell, a Bahamian fisherman and cooperating witness, and members of the Coast Guard testified to the following facts.

         In April 2014, Russell met in the Bahamas with a drug smuggler known as Kool Aid, Rolle, and two other men. During the meeting, Rolle agreed to use his small fishing boat, located in Haiti, to bring drugs from Haiti to the Bahamas. Kool Aid gave Rolle money to fly to Haiti and arranged to travel with Russell to Haiti via freighter. The men agreed that once Kool Aid and Russell arrived in Haiti, they would meet with Rolle; Mario Wilchcombe, a longtime acquaintance of Russell; and another drug smuggler named Enoch.

         After arriving in Haiti, Kool Aid and Russell met Enoch, Rolle, Wilchcombe, and Beauplant on the Î le de la Tortue, where they remained for a week. Russell, Rolle, Beauplant, and others (not including Wilchcombe) loaded cocaine and marijuana onto Rolle's boat, stacking the bales on the deck and placing drugs in the center console. When the boat was ready for departure, a 17-year-old Haitian named either

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Pepe Anri or Pepe Henri (" Henri" ), arrived at the boat, and Enoch told Rolle to bring Henri to the Bahamas.

         On May 3, 2014, at around seven or eight in the evening, Rolle's boat left Haiti with Rolle, Wilchcombe, Beauplant, Russell, and Henri on board. A few hours later, the crew of the United States Coast Guard cutter Charles Sexton, which was patrolling the ocean between Cuba and Haiti, received a tip that a boat carrying drugs had recently departed from the Î le de la Tortue. Shortly thereafter, the Charles Sexton began tracking Rolle's boat, which was powered by two engines and was heading north at 10 to 15 knots per hour. Because of the boat's relatively high speed, Lieutenant Scott Nichols and four other crewmen left the cutter to pursue the target in a small rubber chase boat.

         As the chase boat approached, Rolle's boat increased its speed and continued to travel with its lights off. The chase boat turned on its lights, spotlight, flashing blue lights, and siren. After the chase boat fixed Rolle's boat in its spotlight, its crewmembers saw that Rolle's boat was not flying a flag. At that point, Petty Officer Michael Irigoyen ordered Rolle's boat to stop. Instead, Rolle further increased the speed of his boat and made a series of evasive turns while repeatedly looking back at the chase boat. During the pursuit, two men in addition to Rolle stood on the deck of Rolle's boat and spent approximately 10 minutes throwing large packages into the water. After they finished, Rolle slowed his boat.

         After the chase boat pulled alongside Rolle's boat, Lieutenant Nichols saw two men on board in addition to Rolle and the two men who had been jettisoning packages. One of the newly-spotted men was near the front and the other was near the back by the engines. It appeared to Lieutenant Nichols that the man near the engines, later identified as Wilchcombe, had been laying on the deck. Russell explained at trial that Wilchcombe had been holding a loose wire in place so that one of the engines, which had malfunctioned during the trip, could continue to function.

         Two members of the Coast Guard boarded Rolle's boat and turned off the engines. They returned to the chase boat and Lieutenant Nichols questioned the men on Rolle's boat to determine the identity of the captain, the boat's country of registration, and its destination. Rolle responded that he was from the Bahamas and owned the boat, which was registered in the Bahamas. He said that two of the other men on the boat were Bahamian and that the other two were Haitian. He said that he was traveling between Bahamian islands. To Lieutenant Nichols, the men on Rolle's boat appeared calm and relaxed. None asked to speak with him privately.

         Lieutenant Nichols radioed the information provided by Rolle back to the cutter, and the Coast Guard requested that the Bahamian Government provide a statement of no objection (" SNO" ), which would allow the Coast Guard to board Rolle's Bahamian-registered boat for law-enforcement reasons. The time between the request and the response was approximately two hours. While the crew of the chase boat waited, Lieutenant Nichols saw Rolle speaking with the man later identified as Russell and directed them to stop.

         After receiving word from the cutter that the Bahamian Government had confirmed that the target vessel was registered in the Bahamas and had provided the SNO, Lieutenant Nichols and Petty Officer Irigoyen boarded Rolle's boat, frisked the occupants, and found several pocketknives on the men and nearly $2,000 in cash in Rolle's waistband. In response to a question, Rolle said that he and two friends were giving a ride to two other

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friends. The Coast Guard took the passengers into custody and Lieutenant Nichols and Petty Officer Irigoyen searched the boat. During the search, Lieutenant Nichols and Petty Officer Irigoyen took photos and seized personal effects. They also inspected Rolle's boat to determine whether it could be towed to port. After determining that this would be neither feasible nor safe, the Coast Guard sank the boat.

         By the time that Lieutenant Nichols and Petty Officer Irigoyen completed the search and returned to the cutter with the suspects, the cutter's crew had recovered 40 packages that had been thrown overboard, along with two duffel bags and a GPS. The packages contained 35 kilograms of cocaine and 860 kilograms of marijuana. The Coast Guard detained the men aboard the cutter for a few days during which time they learned their identities.

         Throughout their detention on the chase boat and the Charles Sexton, the men were placed in leg irons. They were not read their Miranda rights. None were interrogated nor did any ask to speak privately with any members of the Coast Guard. However, at one point, when Petty Officer Irigoyen and Rolle were alone together, Rolle expressed his belief that Petty Officer Irigoyen was the boss and asked him ...

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