U.S. v. Angulo-Hernandez

• Decision Date: 05 May 2009
• Docket Number: No. 07-2453.,No. 07-2460.,No. 07-2428.,No. 07-2497.,07-2428.,07-2497.,07-2453.,07-2460.
• Citation: 565 F.3d 2
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellee, v. Alberto ANGULO-HERNÁNDEZ; Eusebio Estupinan-Estupinan; Gustavo Rafael Brito-Fernández; José Luis Casiano-Jiménez, Defendants, Appellants.

565 F.3d 2

UNITED STATES of America, Appellee, v. Alberto ANGULO-HERNÁNDEZ; Eusebio Estupinan-Estupinan; Gustavo Rafael Brito-Fernández; José Luis Casiano-Jiménez, Defendants, Appellants.

No. 07-2428.

No. 07-2497.

No. 07-2453.

No. 07-2460.

United States Court of Appeals, First Circuit.

Heard March 2, 2009.

Decided May 5, 2009.

Rafael Anglada-López for appellant Alberto Angulo-Hernández.

Jorge E. Rivera-Ortíz for appellant Eusebio Estupinan-Estupinan.

Jedrick H. Burgos-Amador for appellant Gustavo Rafael Brito-Fernández.

Frank D. Inserni-Milam for appellant José Luis Casiano-Jiménez.

Germán A. Rieckehoff, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, were on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

LYNCH, Chief Judge.

Responding to the "serious international problem" of maritime drug smuggling, 46 U.S.C. § 70501, Congress enacted the Maritime Drug Law Enforcement Act ("MDLEA") in 1980. Congress intended the MDLEA to address this "specific threat to the security and societal well-being of the United States," id., by providing for the enforcement of our drug laws outside the territorial jurisdiction of the United States, id. § 70503(b). In particular, the MDLEA expanded the drug enforcement jurisdiction of the United States to include, inter alia, vessels "registered in a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States." Id. § 70502(c)(1)(C). Appeals from prosecutions in the District of Puerto Rico under the MDLEA for drug trafficking in the Caribbean are frequent in this court. See, e.g., United States v. Vilches-Navarrete, 523 F.3d 1 (1st Cir.2008); United States v. Cardona-Sandoval, 518 F.3d 13 (1st Cir.2008) (per curiam); United States v. Rodríguez-Durán, 507 F.3d 749 (1st Cir.2007); United States v. Gil-Carmona, 497 F.3d 52 (1st Cir.2007); United States v. Bravo, 489 F.3d 1 (1st Cir.2007).

In this case, the U.S. Coast Guard intercepted a shipment of 400 kilograms of cocaine and 25 kilograms of heroin—worth several million dollars—onboard a boat traveling from Colombia to the Dominican Republic. A jury convicted the captain and three crewmen from that boat both of aiding and abetting drug possession with intent to distribute and of a related conspiracy charge in federal court in Puerto Rico. That same jury acquitted three other crewmen. Another crewman was tried and convicted separately.

The convicted defendants' sentences ranged from 360 months' imprisonment for the captain to 151 months' imprisonment for two of the crew members. On appeal, defendants challenge the sufficiency of the evidence offered in support of those convictions, along with various other aspects of their trial and sentences. We affirm.

I.

On February 4, 2007, the Coast Guard cutter Tahoma was patrolling in international waters approximately 100 miles north of the South American shoreline along the border between Colombia and Venezuela. It came upon the Osiris II, a 120-foot Bolivian flag vessel, sitting dead in the water.

This was not the Coast Guard's first encounter with the Osiris II. In November 2006, the Coast Guard boarded the Osiris II when the boat was experiencing engine problems after leaving Colombia en route to the Dominican Republic. The Coast Guard diverted the Osiris II to Puerto Rico, where it inspected the boat for drugs using dogs and divers. Although the Coast Guard did not then find any drugs onboard, it considered the Osiris II a "suspect" vessel.

This time, the Osiris II again appeared to be having propulsion problems. The crew of the Tahoma contacted the Osiris II to offer assistance. The Osiris II's captain, defendant Eusebio Estupinan-Estupinan, explained that his boat's main engine was not working. He initially declined the Coast Guard's offer of help, saying that a tugboat was on its way. But after the Coast Guard explained that it had mechanics onboard who could look at the boat's engine, Estupinan-Estupinan accepted the Coast Guard's offer and invited the Tahoma's crew to board his vessel. Before boarding, the Coast Guard obtained permission from the Bolivian government under the MDLEA to board and search the Osiris II.

Once onboard, the Coast Guard's boarding team performed an initial safety inspection. Finding no safety hazards, they then did an at-sea space accountability assessment of the vessel. The purpose of this search was to ensure that the boat did not contain any contraband or firearms.

The Coast Guard searched the Osiris II over the course of several days. Estupinan-Estupinan remained in the pilot house while the boarding team conducted its search. The other seven members of the Osiris II's crew—including defendants Alberto Angulo—Hernández, Gustavo Rafael Brito-Fernández, and José Luis Casiano-Jiménez —stayed on the main deck, where they were guarded by two members of the boarding team.

While searching a closet onboard the Osiris II, Coast Guard petty officer Sean Andrus discovered a kilogram of a tannish powder in a trash bag. The substance field-tested positive for heroin. At trial, however, the parties stipulated that subsequent laboratory testing revealed that the powder was not a controlled substance. Andrus secured the area and gathered the Osiris II's crew in one of the boat's staterooms. Although he did not then disclose his discovery to the Osiris II's crew, Andrus observed that they appeared "a little bit nervous at that point in time." And the longer that the Coast Guard spent searching the boat, the more nervous the crew members became. Andrus noted that the crew members appeared especially nervous when, several days later, he and his team searched the rear portion of the boat.

Searching further, Andrus found a small bag of what appeared to be cocaine and a tan leafy substance, which field-tested positive for heroin, in the engineer's stateroom. The boat's engineer was defendant Angulo-Hernández. Again, the parties stipulated at trial that subsequent laboratory testing showed that these items were not controlled substances.¹

Having already found smaller quantities of substances that field-tested positive for cocaine and heroin onboard the Osiris II, Andrus continued to search the boat for a larger drug stash. He had suspected that the boat's primary purpose was to smuggle drugs because its legitimate cargo—28,011 rolls of toilet paper, 207 Styrofoam coolers, and 14 pieces of office furniture, which according to the boat's invoice were together worth approximately $25,000—was, in his view, insufficient to make the voyage profitable. Beyond that, the boat's cargo was not stored in a manner consistent with the practices on a typical commercial vessel. Instead of being stored neatly in boxes or on pallets, the cargo, including some of the toilet paper, was left free to move around the cargo hold, potentially making the boat unstable and threatening to destroy the value of the cargo.

On February 9, 2007, only one portion of the boat remained for the Coast Guard to search—a space toward the rear of the vessel around the aft lube oil tank. Andrus attempted to enter this space through the crew's living quarters. Andrus removed the rubber matting from the floor, revealing a layer of plywood beneath it. The plywood contained a rectangular seam measuring two feet by four feet. When Andrus could not remove the plywood with a crowbar, he cut a hole in the wood, striking the boat's steel deck four inches below. Andrus then removed two layers of plywood, exposing a metal hatch screwed into the deck with new-looking screws. Upon removing the screws, the hatch lifted up easily from the deck. The space below contained several plastic bags. In one bag, the Coast Guard found a .380-caliber MAC-10 submachine gun, a fourteen-round loaded magazine, and a silencer for that weapon. The other bags contained approximately 400 bricks of cocaine and 25 bricks of heroin. These drugs would have had a street value of approximately $8 million in Puerto Rico.

The boarding team immediately arrested the Osiris II's entire crew. Andrus testified: "Once we detained them, put them in handcuffs, their mood changed drastically. They seemed dejected. They hung their heads low. They just knew they were caught." This testimony is a subject of these appeals. The Coast Guard then towed the Osiris II to San Juan, Puerto Rico.

On April 4, 2007, all eight persons onboard the Osiris II were charged in a three-count superseding indictment with (1) conspiracy to possess with intent to distribute the drugs seized from the boat, see 46 U.S.C. § 70506(b); (2) aiding and abetting drug possession with intent to distribute, see 18 U.S.C. § 2(a); 46 U.S.C. § 70503(a)(1); and (3) aiding and abetting possession of a machine gun, see 18 U.S.C. §§ 2(a), 924(c)(1)(B)(ii).

After a six day trial, a jury convicted Angulo-Hernández, Estupinan-Estupinan, Brito-Fernández, and Casiano-Jiménez on all three counts. The jury acquitted the other three crew member co-defendants. The eighth crew member of the Osiris II was tried separately and convicted on all three counts. At sentencing, the district court granted a judgment of acquittal as to the gun possession charge for each defendant. Defendants timely appealed from their convictions. Angulo-Hernández and Estupinan-Estupinan also contest their sentences on appeal.

II.

A. Sufficiency of the Evidence

All defendants challenge the sufficiency of the evidence. Where, as here, the defendant has preserved his sufficiency challenge by moving for a post-verdict judgment of acquittal, our review is de novo. United States v. Carrasco, 540 F.3d 43, 49-50 (1st Cir.2008). We review the evidence in the light most favorable to the government, drawing all reasonable inferences consistent with the jury's verdict. Id. at 50. "If a reasonable jury could have found that...