Singleton v. U.S.

• Decision Date: 02 August 1993
• Docket Number: No. 92-1647,92-1647
• Citation: 26 F.3d 233
• Parties: James SINGLETON, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 233

26 F.3d 233

James SINGLETON, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee.

No. 92-1647.

United States Court of Appeals First Circuit.

Heard Aug. 2, 1993.

Decided June 10, 1994.

Richard J. Shea, Boston, MA, for appellant.

Carlos A. Perez, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., and Jose A. Quiles-Espinosa, Senior Litigation Counsel, Hato Rey, PR, were on brief, for appellee.

Before SELYA, CYR and BOUDIN, Circuit Judges.

CYR, Circuit Judge.

Petitioner James Singleton appeals from a district court order dismissing his motion for post-conviction relief, see 28 U.S.C. Sec. 2255, from a judgment of conviction for possessing marijuana, with intent to distribute, in violation of the Maritime Drug Law Enforcement Act (MDLEA). ¹ See 18 U.S.C. Sec. 2; 46 U.S.C.App. Sec. 1903(a), (c), (f). Along with a surfeit of lesser grounds, we must assess whether Singleton was denied effective assistance, see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), based on trial counsel's failure to object to a jury instruction which effectively directed a verdict on an essential element of the crime charged. We affirm the district court judgment.

I BACKGROUND

Shortly after midnight on January 5, 1988, the United States Coast Guard Cutter DAUNTLESS made radar contact with a vessel approaching on the high seas from the direction of Haiti. Suspecting that the vessel might contain illegal Haitian immigrants, the DAUNTLESS attempted to establish radio communication, but to no avail. Shortly thereafter, Coast Guard Ensign Pulver approached to within thirty yards of the unidentified vessel in a boarding craft, and noted the name MARILYN E and the letters "KA" and "JN" on the stern but no home port designation or flag. Pulver made voice contact with a person aboard the MARILYN E who explained that the vessel was en route from Kingston Bay, Jamaica, and bound for Kaison Bank, in the Bahamas, to fish. Ensign Pulver obtained consent to board the MARILYN E from codefendant Willey Gordon, the master. Pulver and the boarding crew found Gordon, Singleton and four others on board the MARILYN E. The MARILYN E was leaky and in serious disrepair. The scant fishing gear on board was inoperable and the vessel was not provisioned for an extended voyage.

Shortly after boarding, Pulver asked the master for the certificate of documentation. Gordon asserted that though the MARILYN E was of Jamaican registry, she was carrying no documentation. At that point, codefendant Earl McLeish volunteered that he knew where the documentation papers were kept, and soon produced a Coast Guard "bill of sale" form and an expired United States Ensign Pulver requested authorization from the Commander of the DAUNTLESS to arrest the captain and crew of the MARILYN E. But because the procedures to be followed in arresting the crew, and seizing the vessel, would depend on the nationality of the MARILYN E, Pulver continued to question Gordon. Asked whether there were any flags aboard the MARILYN E, Gordon at first said there were none, but then corrected himself by saying he believed there was one flag forward. Upon overhearing Ensign Pulver's question to Gordon, Singleton located a United States flag and a plain yellow quarantine flag in the fore of the vessel. ⁴ Thus, it remained unclear whether the MARILYN E was a United States vessel, as the United States flag and the dated documentation papers suggested, a Jamaican vessel, as Gordon claimed, or a stateless vessel.

                Certificate of Documentation. 2  Asked what was in the hold, Gordon responded that it contained ice.  Whereupon Pulver requested and received permission to open the hold, which was found to contain bales of marijuana weighing approximately 3,750 pounds. 3
                

In order to ensure the legality of the ensuing arrests and seizure, Ensign Pulver initiated a formal request to obtain Jamaican consent to the enforcement of United States drug laws aboard the MARILYN E, ⁵ and simultaneously sought authorization from the Coast Guard Commandant in Washington, D.C. Several hours later, with authorization from the Coast Guard Commandant and the consent of the Jamaican government, the six persons on board the MARILYN E were arrested and transferred to the DAUNTLESS, whereupon Miranda warnings were administered to each. Shortly thereafter, the Coast Guard Cutter MOHICAN rendezvoused with the DAUNTLESS, took custody of the MARILYN E, and set out to tow her to Puerto Rico. The MARILYN E proved unseaworthy, however, and she sank (with most of her illicit cargo) en route.

II DISCUSSION

A. The Erroneous Jury Instruction

Singleton contends that the trial judge effectively withdrew from the jury a material element of the crime charged under 46 U.S.C.App. Sec. 1903(a); viz., whether the MARILYN E was "a vessel subject to the jurisdiction of the United States," within the meaning of the MDLEA. ⁶ The jury was instructed as follows Well, in this particular case, one of the elements that you will have to decide is whether this was a vessel of the United States and there is no real controversy in my own mind about that. The parties, the evidence is there. There is [sic] exhibits that tell you that this vessel was registered, documented in the United States....

[46 U.S.C.App. Sec. 1903] says basically this, it is unlawful for any person on board a vessel of the United States or on board a vessel subject to the jurisdiction of the United States and in this particular case, I already pointed to you out [sic.] the fact that there is no real controversy about that fact ... That is what you have to decide, possess with the intent to manufacture and distribute a controlled substance and then sub-section C is the one that defines a vessel subject to the jurisdiction of the United States and I have already told you that the Marilyn E, with the papers that we have on hand, is a vessel subject to the jurisdiction of the United States....

... If I were to read the elements of this offense, I would tell you as follows: I would tell you that you would have to find in each particular case that each defendant was located on board a vessel subject to the jurisdiction of the United States when this happened....

(Emphasis added.) ⁷

In its ruling dismissing Singleton's section 2255 motion, see Singleton v. United States, 789 F.Supp. 492, 495 (D.P.R.1992), the district court recognized the fair import of the challenged instruction to be that the jurisdictional element of the crime charged had been established to the satisfaction of the court. See United States v. Potes, 880 F.2d 1475, 1478 n. 1 (1st Cir.1989) ("Because this jurisdictional requirement was an element of the offense, and because it depended upon factual as well as legal determinations, it was for the jury to decide whether it had been satisfied."). The district court ruled, nonetheless, that any error was harmless. Id. at 501-04. ⁸ On appeal, Singleton insists that this instructional error could not have been harmless since it relieved the jury of its responsibility to determine whether the government had proven an essential element of the crime beyond a reasonable doubt.

We observe at the outset that the established "principle that collateral review is different from direct review resounds throughout our habeas jurisprudence." Brecht v. Abrahamson, --- U.S. ----, ----, 113 S.Ct. 1710, 1719, 123 L.Ed.2d 353 (1993). A presumption of finality attaches to criminal convictions once all direct appeals have been exhausted. Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391-92, 77 L.Ed.2d 1090 (1983); United States v. Frady, 456 U.S. 152, 164-65, 102 S.Ct. 1584, 1592-93, 71 L.Ed.2d 816 (1982). Postconviction relief on collateral review is an extraordinary remedy, available only on a sufficient showing of fundamental unfairness. Brecht, --- U.S. at ----, 113 S.Ct. at 1719. Trial errors, even those that implicate Seventh Amendment concerns, are subject to stringent "harmless error" review in a collateral proceeding. Id. at ----, 113 S.Ct. at 1723 (Stevens, J., concurring).

We recently had occasion to survey the developing "harmless error" jurisprudence in a section 2254 case where the petitioner sought to overturn his state court conviction on the basis of an erroneous jury instruction. See Libby v. Duval, 19 F.3d 733, 738-40 (1st Cir.1994). In Libby, we identified the appropriate "harmless error" inquiry as whether the government can demonstrate that the erroneous instruction "did not have a substantial and injurious effect or influence in determining the jury's verdict." Id. at 738 & n. 15; see also Brecht, --- U.S. at ----, 113 S.Ct. at 1722 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). ⁹ The "actual prejudice" review required under Brecht must encompass the record as a whole. Id.; Libby, 19 F.3d at 740. Under the well-seasoned Kotteakos standard, therefore, trial error is deemed harmless only if the record as a whole permits the reviewing court to conclude:

"with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." [Kotteakos, 328 U.S. at 765, 66 S.Ct. at 1248. This test] "is satisfied if it is 'highly probable' that the challenged action did not affect the judgment." United States v. Hernandez-Bermudez, 857 F.2d 50, 53 (1st Cir.1988).

United States v. Wood, 924 F.2d 399, 402 (1st Cir.1991) (quoting United States v. Ladd, 885 F.2d 954, 957 (1st Cir.1989)). Thus, the Singleton conviction can withstand collateral review only if it is determined, based on the entire trial record, that the government has demonstrated that a reasonable jury would have found that the jurisdictional element required for conviction under section 1903 was established beyond a reasonable doubt notwithstanding the erroneous instruction.

The present...