U.S. v. Garate-Vergara, GARATE-VERGAR

Citation942 F.2d 1543
Decision Date30 September 1991
Docket NumberGARATE-VERGAR,Nos. 87-5851,S,87-5986,s. 87-5851
Parties34 Fed. R. Evid. Serv. 1136 UNITED STATES of America, Plaintiff-Appellant, v. Alejandroantiago Roman-Bernel, Quintin Antivilo, Sergio Roman-Gomez and Manuel Olivares-Bermudez, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellee, v. Orlando LASTRA, Pedro Ramirez Palacios, Rodolfo Castillo Ponce, Danilo Antonio-Contreras, Jorge Domingo Romon-Gomez, Jaime Puebla Lopez, Luis Pacheco Torres, Albo Roman Moras Moraguez, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Thomas A. O'Malley, Asst. U.S. Atty., West Palm Beach, Fla., Linda Collins Hertz and Mayra Reyler Lichter, Asst. U.S. Attys., Miami, Fla., for U.S.

Robert N. Berube, Asst. Federal Public Defender, Ft. Lauderdale, Fla., for Roman-Gomez.

Kathy Hamilton, Coconut Grove, Fla., for Lopez.

Yolanda Morales, Miami, Fla., for Torres.

Lee Weissenborn, Miami, Fla., for Moraguez.

Theodore J. Sakowitz, Robert N. Berube, Asst. Federal Public Defender, Miami, Fla., for Palacios.

Dennis Kainen, Law Offices of Alan Weisberg, Miami, Fla., for Antonio-

Contreras.

Kenneth W. Lipman, Siegel & Lipman, Boca Raton, Fla., for Roman-Bernal.

Ruben M. Garcia, Fort Lauderdale, Fla., for Antivilo.

Ralph Michael Hursey, Ft. Lauderdale, Fla., for Sergio Roman-Gomez.

Ken Lange, Law Office of Ken Lange, Bay Harbor Islands, Fla., for Olivares-Bermudez.

Mario L. Cabello, Miami, Fla., for Garate-Vergara.

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

Before KRAVITCH and BIRCH, Circuit Judges, and DYER, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Appellants and appellees are thirteen Chilean seamen indicted for drug trafficking. After a jury trial and guilty verdicts as to all thirteen, the five appellees successfully moved for acquittal notwithstanding the verdict under Fed.R.Crim.P. 29(c) based on insufficient evidence. The government appeals these Rule 29(c) orders of acquittal. The eight remaining defendants also moved for acquittal under Rule 29(c) at trial, but their motions were denied. They appeal on a number of grounds. We affirm in part and reverse in part.

The Coast Guard first established radar contact with the M/V ATLANTIC TRADER, a cargo freighter, twenty to twenty-five miles from the Florida coast late in the evening of November 2, 1986. The Coast Guard vessel POINT BARNES approached the ATLANTIC TRADER, which had departed Maracaibo, Venezuela thirteen days earlier. The ATLANTIC TRADER altered its course by turning slowly to meet the POINT BARNES. The ATLANTIC TRADER was flying no flag identifying its country of origin; the city name "San Lorenzo," without a country, was printed on the stern. Coast Guard officers, speaking in English, radioed the ATLANTIC TRADER to request the nationality of the vessel. According to testimony at trial, appellant Lastra, the ATLANTIC TRADER captain, answered that both the boat and the crew were Chilean, but he later correctly identified the boat as Honduran. After the Coast Guard requested to board the ATLANTIC TRADER, Lastra requested a half hour delay, allegedly to transfer fuel between tanks. The POINT BARNES continued to follow the ATLANTIC TRADER in a southward direction during the radio exchange.

Shortly thereafter, about twenty minutes after the initial contact, Coast Guard officers noticed about thirty duffel bags floating in the water trailing behind and to the port side of the ATLANTIC TRADER. Although they never saw the bags being pitched overboard, they assumed that they came from the ATLANTIC TRADER. The Coast Guard retrieved eleven of the bags and found that their contents tested positive as cocaine. The ATLANTIC TRADER then encountered engine trouble and stopped in the water. The POINT BARNES caught up with the ATLANTIC TRADER again and was joined by another Coast Guard vessel, the CAPE CURRENT. After further radio contact and a delay of several hours, Coast Guard officials boarded the ATLANTIC TRADER at about 6:45 a.m. and arrested the thirteen men on board. After an extensive search, Coast Guard officers found that one of the three cargo holds contained 1,800 tons of gypsum rock and that the other holds were empty. The bulkhead of the hold with the gypsum was covered with silver paint, one portion of which appeared freshly painted. Cans of silver paint, Bondo metal filler, a ladder and sanding equipment were found nearby. After scraping away the fresh paint, an officer found a layer of Bondo filler and an access panel secured by several one-inch tack welds. The officer removed the panel and found an empty cargo space beneath the gypsum measuring 25 by 35 by 7 feet. No narcotics were found in the hold or elsewhere on the vessel. One officer testified that he found a lock in the captain's quarters engraved with oriental characters and the figure of a bird, which was similar to eight of the eleven locks found on the retrieved duffel bags. The Coast Guard then transferred the arrestees to a Coast The eleven duffel bags retrieved at sea contained 224 kilograms of cocaine. Later that month 400 more kilograms of cocaine were discovered along Florida's east coast in similar duffel bags and plastic packaging. Defendants were indicted for possession and conspiracy to possess with intent to distribute at least five kilograms of cocaine on a vessel subject to the jurisdiction of the United States, 21 U.S.C. §§ 955a(a), 955c [recodified at 46 U.S.C.App. § 1903] and 18 U.S.C. § 2. The jury found all 13 defendants guilty. The trial judge ordered acquittal under Fed.R.Crim.P. 29(c) for five of them based on the insufficiency of the evidence: Quintin Antivilo, Alejandro Garate-Vergara, Manuel Olivares-Bermudez, Santiago Roman-Bernal, and Sergio Roman-Gomez ("appellees"). The government appeals. The eight remaining appellants also appeal: Orlando Lastra, Pedro Ramirez-Palacios, Rodolfo Castillo-Ponce, Danilo Antonio-Contreras, Jorge Domingo Roman-Gomez, Jaime Puebla-Lopez, Luis Pacheco-Torres, Aldo Ramon Moras-Moraquez ("appellants").

                Guard station in Ft. Lauderdale, where Drug Enforcement Administration Agent Keaney stated that he noticed silver paint on several of the crew members.   The Coast Guard also confiscated the crew's passports, U.S. currency and used plane tickets. 1
                
SUFFICIENCY OF THE EVIDENCE

As to all thirteen defendants we review the evidence, viewed in the light most favorable to the government, to see if a reasonable jury could find them guilty of the charged offenses. We review the evidence under this standard for both the eight appellants and five appellees because a trial court's judgment notwithstanding the verdict is reviewed de novo. See United States v. Battle, 892 F.2d 992, 998 (11th Cir.1990). 2

To prove conspiracy the government must demonstrate that an agreement existed between two or more persons and that the defendant knowingly and voluntarily participated in it; these elements may be proved by circumstantial evidence. See Battle, 892 F.2d at 998; United States v. Alvarez, 837 F.2d 1024, 1027 (11th Cir.), cert. denied, 486 U.S. 1026, 108 S.Ct. 2003, 100 L.Ed.2d 234 (1988). A defendant's presence, although not determinative, is a material factor when weighing evidence of conspiracy. See 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). In reviewing the sufficiency of the evidence, we draw all reasonable inferences in favor of the jury's verdict and then consider whether a reasonable jury could find guilt beyond a reasonable doubt. See Alvarez, 837 F.2d at 1028.

This court considered at length the special factors applicable to drug conspiracy and possession cases involving narcotics-laden vessels at sea in United States v. Cruz-Valdez, 773 F.2d 1541 (11th Cir.1985) (en banc), cert. denied sub nom. Ariza-Fuentes v. United States, 475 U.S. 1049, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986). It outlined a number of factors to determine whether the jury may conclude that a defendant was guilty of conspiracy and possession or was merely present on the vessel: 1) probable length of the voyage, 2) the size of the contraband shipment, 3) the necessarily close relationship between captain and crew, 4) the obviousness of the contraband, and 5) other factors, such as suspicious behavior or diversionary maneuvers before apprehension, attempts to flee, inculpatory statements made after apprehension, witnessed participation of the crew, and the absence of supplies or equipment necessary to the vessel's intended use. Id. at 1546-47. The court also noted that size of the vessel is relevant in determining Our standard was further defined in United States v. Vidal-Hungria, 794 F.2d 1503 (11th Cir.1986), in which we affirmed the conviction of the vessel's captain but reversed the convictions of the crew. We held, after examining the facts by the Cruz-Valdez standard, that the government had not offered sufficient evidence that the crew knew of a marijuana shipment that was hidden in a tightly sealed compartment aboard a 156-foot freighter. Id. at 1516; see also United States v. Ospina, 823 F.2d 429 (11th Cir.1987) (per curiam) (applying Cruz-Valdez factors), cert. denied, 485 U.S. 964, 108 S.Ct. 1232, 99 L.Ed.2d 432 (1988).

                the relative quantity of the contraband and its obviousness.  Id. at 1546.   The court stated that the circumstances required to establish voluntary participation were not reducible to a formula, but stated that given a large contraband shipment, the government's burden of proving participation by the crew is "relatively light."  Id. at 1546-47
                

In the present case, the government offered the following as evidence of conspiracy and possession of the cocaine recovered from the duffel bags: that the ATLANTIC TRADER's gypsum...

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