U.S. v. Alvarado

• Decision Date: 05 May 1992
• Docket Number: D,Nos. 91-2075,91-2076,LORENZI-PADILL,s. 91-2075
• Citation: 982 F.2d 659
• Parties: UNITED STATES, Appellee, v. Luis Alfredo ALVARADO, Defendant, Appellant. UNITED STATES, Appellee, v. Juan Eugenioefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 659

982 F.2d 659

UNITED STATES, Appellee, v. Luis Alfredo ALVARADO, Defendant, Appellant.

UNITED STATES, Appellee, v. Juan Eugenio LORENZI-PADILLA, Defendant, Appellant.

Nos. 91-2075, 91-2076.

United States Court of Appeals First Circuit.

Heard May 5, 1992.

Decided Dec. 31, 1992.

Jose F. Quetglas Jordan with whom Eric M. Quetglas Jordan, San Juan, PR, was on brief, for defendant, appellant Luis Alfredo Alvarado.

Eric M. Quetglas Jordan with whom Jose F. Quetglas Jordan, San Juan, PR, was on brief for defendant, appellant Juan Eugenio Lorenzi-Padilla.

Jose A. Quiles-Espinosa, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., and Jeanette Mercado Rios, Asst. U.S. Atty., Hato Rey, PR, were on brief, for appellee.

Before BREYER, Chief Judge, CYR, Circuit Judge, and BOYLE, ^* District Judge.

FRANCIS J. BOYLE, District Judge:

Luis Alvarado and Juan Lorenzi appeal from judgments of conviction for aiding and abetting the possession with intent to distribute approximately 267.6 kilograms of cocaine stipulated to be worth between $60 million and $100 million in violation of 46 U.S.C. App. § 1903(a), (c)(1)(D), (f), & 18 U.S.C. § 2, and the importation of cocaine into the customs territory of the United States in violation of 21 U.S.C. § 952(a) & 18 U.S.C. § 2. Both appellants claim that there was insufficient evidence to establish that appellants intentionally possessed the cocaine with intent to distribute it and that there was insufficient evidence to show that the cocaine was imported into the customs territory of the United States. After careful consideration of the record, we affirm.

I. Background

On the evening of March 19, 1991, a United States Customs Service aircraft acquired a suspect aircraft on its radar device and on a Forward Looking Infrared System ("FLIR") approximately 185 miles southwest of Ponce, Puerto Rico. The suspect aircraft was heading northeast, traveling without navigation lights at an altitude of about 3000 feet.

The Customs Service aircraft pursued the suspect aircraft at a distance of half-a-mile. After about one hour and twenty minutes, the pilot of the Customs Service aircraft noticed the lights of two vessels in the water. The vessels were located approximately twenty miles southwest of Santa Isabel, which is near Ponce. The suspect aircraft descended to about 300 to 500 feet off the water, just above the two vessels, and then began a series of hard maneuvers, sometimes turning ninety degrees or greater.

After about fifteen minutes of maneuvering by the suspect aircraft, the pilot of the Customs Service aircraft noticed a string of approximately twenty-five lights in the water. Based on his experience, the pilot suspected that the string of lights he observed were chem lights, which are often attached to narcotic airdrops for visibility.

The pilot reported a possible airdrop, and a Customs Service Nomad aircraft thereafter took over surveillance of the two vessels on both radar and FLIR. The vessels were traveling at about twenty to twenty-five miles-per-hour in a northbound heading. Both vessels were traveling without navigation lights. The Nomad began a half-mile orbit around the vessels and radioed the state police that two vessels suspected of drug smuggling were headed towards the shore.

At about 11:30 P.M., the two vessels, which had been traveling together at a distance of approximately 100 yards, began to separate. The first vessel continued in a northbound heading, while the second vessel veered off in a more westerly direction. To maintain surveillance on both of the diverging vessels, the Nomad kept its FLIR trained on the first vessel and its radar trained on the second vessel.

A state police helicopter was directed over the first vessel. The helicopter was well lit and duly identified as a police helicopter by twelve- to sixteen-inch lettering spelling "FURA" for police as well as displaying a coat of arms. A sergeant in the helicopter signalled the co-defendants aboard the first vessel, Angel Morales and Wilfredo Cartagena, to cut the engine and stop the boat. Initially, the co-defendants reduced their speed, but then accelerated again and continued moving towards the shore. As the first vessel tried to escape, the police helicopter alerted land base and seaborne units. The helicopter began to orbit the vessel while awaiting the arrival of a police boat. A police boat with flashing lights approached the first vessel soon thereafter. The co-defendants initially attempted evasive maneuvers, but were eventually detained and arrested.

After the police helicopter had reported its location as overhead the first vessel, the Nomad turned southwest toward the second vessel and began orbiting it. The police helicopter flew to the area of the Nomad and the second vessel once the first vessel was in custody. At that time, the two vessels were approximately five miles apart. The helicopter maneuvered itself just above the second vessel, which still had its navigation lights off. The police crew illuminated the vessel with a hand-held lamp and observed appellants Juan Lorenzi and Luis Alvarado and four bales of possible contraband on board. Appellants initially ignored police commands to turn off the motor and stop the boat. After a short pursuit, however, appellants stopped the vessel. A police sergeant jumped from the police helicopter onto appellants' vessel and placed appellants under arrest.

In addition to the four bales of possible contraband, several chem lights were found hidden in the stern of the second vessel. Pieces of matching ribbon of the bales were still attached to the chem lights. Also found on board the second vessel were two spare gas tanks, two lamps, and unused fishing equipment. There was no bait found on board. Appellant Luis Alvarado nevertheless claimed that he and Juan Lorenzi had laid a fish net that evening in an area called "El Investigador," which is seven or eight miles off the coast, when they heard the sounds of objects falling into the water and saw floating lights. They headed toward the lights and then heaved the bales onto the second vessel. Mr. Alvarado admitted that he thought the bales contained contraband, but claimed that he and Mr. Lorenzi were en route to the police station where they intended to relinquish the bales.

On March 20, the day after the arrests, a police aircraft returned to the airdrop site and observed an additional seven bales of cocaine floating in the water. They were only able to retrieve four of these bales. The substance in these bales as well as the bales found on board the second vessel later tested positive for cocaine with a weight of 267.6 kilograms and a purity of ninety-five percent.

II. Discussion

A. Sufficiency of Evidence of Intent

Appellants contend that there was insufficient evidence to prove that they intentionally possessed the cocaine with the intent of importing or distributing it. This argument fails. We review the convictions only for clear and gross injustice because appellants failed to renew their motions for judgments of acquittal under Fed.R.Crim.P. 29(a) after presenting evidence on their own behalf. United States v. Hadfield, 918 F.2d 987, 996 (1st Cir.1990); United States v. Clotida, 892 F.2d 1098, 1102-03 (1st Cir.1989).

Appellants fail to meet this standard. There was evidence for the jury to conclude that appellants were guilty beyond a reasonable doubt. Appellants were in one of two vessels over which a suspect aircraft hovered. The suspect aircraft met the profile criteria of a drug transporting aircraft in that it had no lights, no flight plan, and was flying at a dangerously low altitude. It made a series of hard maneuvers approximately three hundred to five hundred feet above the appellants' vessel. Both vessels appeared to be signalling the suspect aircraft with their lights. The vessels then turned their navigation lights off and headed towards the shore once appellants had retrieved four bales of cocaine from the water. The jury could reasonably infer that the vessels were attempting to evade detection by law enforcement officials. This inference is further strengthened by the fact that appellants attempted to avoid the police helicopter that was well lit and clearly identified by lettering, twelve to sixteen inches high, and a coat of arms on the side.

The jury quite reasonably declined to believe Luis Alvarado's tale that he and Juan Lorenzi possessed the cocaine only because they were en route to turn it over to the police. Appellants importuned the jury to believe that they heard bales of cocaine drop into the water twenty miles southwest of Puerto Rico, while they were fishing in "El Investigador," which is only seven or eight miles off the coast. Moreover, fishing gear was not in working order and there was no bait found aboard their vessel. Nor was the fishing net they cast upon the water recovered in the area of "El Investigador." The jury could reasonably have found the appellants' version of the events that night to be incredible. Since the evidence overwhelmingly supports the verdicts of the jury, appellants' convictions are not grossly unjust.

B. Importation

Appellants' second claim of error is more meaningful. Appellants contend that the district judge incorrectly instructed the jury as to the element of importation. Appellants, however, neither objected to the trial court's instructions nor proffered additional or different instructions of their own. As a result, appellants forfeited the right to ordinary review. We can reverse their convictions only if the lower court's instructions amount to plain error. See United States v. Natanel, 938 F.2d 302, 311 (1st Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 986, 117 L.Ed.2d 148 (1992). As we have stated before, plain errors are "those errors so shocking that they seriously affect the fundamental fairness and basic integrity of the proceedings conducted below." United States v....