U.S. v. Bravo
| Decision Date | 29 May 2007 |
| Docket Number | No. 05-1146.,No. 05-1147.,No. 05-1145.,No. 05-1144.,05-1144.,05-1145.,05-1146.,05-1147. |
| Citation | 489 F.3d 1 |
| Parties | UNITED STATES of America, Appellee, v. Alfre Luis BRAVO and Jesús Antonio Martínez-Rosado, Defendants, Appellants. United States of America, Appellee, v. Luis Antonio Mancilla-Patino, Defendant, Appellant. United States of America, Appellee, v. Josne Said Isaa-Morales, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Before TORRUELLA, Circuit Judge, BALDOCK,* Senior Circuit Judge, and STAHL, Senior Circuit Judge.
On September 7, 2004, a jury found codefendants-appellants Alfre Luis Bravo ("Bravo"), Jesús Antonio Martínez-Rosado ("Martínez"), Luis Antonio Mancilla-Patino ("Mancilla") and José Said Isaa-Morales ("Isaa") (collectively "Appellants") guilty of two offenses: (1) possession with intent to distribute more than one thousand kilograms of marijuana on board a vessel and aiding and abetting, in violation of 46 U.S.C. app. § 1903(a) (repealed 2006), and 18 U.S.C. § 2, and (2) conspiracy to possess with intent to distribute more than one thousand kilograms of marijuana on board a vessel, in violation of 46 U.S.C. app. § 1903(j). Thereafter, the Appellants were sentenced to a term of imprisonment of 120 months followed by five years supervised release as to each count, to be served concurrently.1 The Appellants now appeal their convictions and sentences.
On April 18, 2004, at approximately 4:45 A.M., the United States Coast Guard ("USCG") cutter DEPENDABLE found the M/V EL CONQUISTADOR (the "vessel") riding low and "dead in the water" in international waters 180 nautical miles south of Santo Domingo, Dominican Republic. A Rigid Hulled Inflatable Boat, the ABLE 2, was launched from the DEPENDABLE to approach the vessel.
The ABLE 2 observed that the vessel's name was written on its stern, but the vessel did not have a visible registration number, port identification, or country flag. On board the ABLE 2, Officer Brian Hennessey ("Hennessey"), a technician and federal law enforcement officer with the USCG, requested that the vessel indicate its nationality. The vessel master answered that the vessel was registered in Colombia. He further claimed that the vessel had been fishing for approximately seven to eight days, but that the vessel's engines were broken, and that they had no fish on board and were en route to Haiti.2 Hennessey testified that he perceived a strong smell of marijuana coming from the vessel. Hennessey relayed via radio the information from the vessel master to the DEPENDABLE and waited for permission to board the vessel.
At 7:39 A.M., Sean Connett ("Connett"), an employee with the USCG at the District Command Center in Miami, contacted the Colombian authorities to confirm the registry of the vessel via a written form entitled "Action Request." The Colombian authorities shortly responded with a "Response to the Action" form, indicating that they could neither confirm nor refute that the EL CONQUISTADOR was a Colombian vessel. The Colombian authorities also suggested that the USCG proceed under "international law" and requested that the USCG inform them of the results of the inspection.
Acting on the premise that the vessel was "stateless" or "without nationality," the USCG sought to place the vessel within U.S. jurisdiction. The Maritime Drug Law Enforcement Act ("MDLEA") allows the United States to conduct drug law enforcement outside of the United States, and more specifically, exercise jurisdiction over stateless vessels. 46 U.S.C. app § 1903(c). In accordance with the MDLEA, Connett requested and received a "Statement of No Objection" from the USCG headquarters in Washington, D.C., granting permission to board EL CONQUISTADOR. Connett forwarded the Statement to the USCG office in San Juan, which then forwarded it to the DEPENDABLE.
Upon boarding the vessel, Hennessey observed what appeared to be bales of marijuana, two of which were outside the fish hold, forty-six of which were inside the fish hold.3 He then conducted a field test confirming that the bales were, in fact, marijuana. In order to access the bales, USCG officers broke the fish hold, and transferred the bales onto the DEPENDABLE.4 The vessel's five crew members — the four Appellants and the captain, Joaquín Emilio Cardona-Sandoval ("Cardona-Sandoval") — were also brought on board the DEPENDABLE. The Colombian authorities were notified of the USCG's findings, and upon arrival in San Juan, the Appellants were transferred to U.S. Immigration and Customs Enforcement ("ICE") and detained.
At their joint trial, Appellants testified that they were fisherman in their home country of Colombia and that in 2004 they were recruited in Colombia to participate in a fishing expedition by two individuals known to them as "Paco" and "Roberto." Appellants testified that they were unacquainted with each other when they arrived at the vessel. They further testified that when they arrived, Paco and Roberto, along with others, were armed with weapons, and marijuana was on the vessel. According to Appellants, Paco threatened that Appellants' families would be killed if they did not take the marijuana to Haiti. Appellants testified that they feared for their families. After a few days at sea, the vessel broke down.
On September 7, 2004, a jury found all four Appellants guilty of both counts of the indictment. A pre-sentencing report ("PSR") was then filed on November 18, 2004, recommending that Appellants be granted a two-point reduction in their base offense level of 32 due to their minor roles in the offense. Martínez and Bravo were sentenced individually, and Isaa and Mancilla were sentenced jointly. At Appellants' various sentencing hearings, the government opposed the minor role reduction. The court denied the minor role adjustments, indicating that the evidence was such that it could not state who was a major and who was a minor participant in the case.
At his sentencing hearing, Appellant Martínez raised no objections to the PSR, and accordingly, was not granted any adjustments, and was sentenced to 120 months imprisonment. In the other sentencing hearings, Appellants Bravo, Isaa and Mancilla objected to the PSR and requested a safety-valve benefit, as well as a downward departure for duress. Appellants participated in a government debriefing in order to qualify for the safety-valve benefit, but they each received a sealed motion from the government stating that the safety-valve would not be recommended because the government did not believe that Appellants had provided all available information in a truthful manner.5
Isaa's and Mancilla's joint hearing was held on December 8, 2004. The court granted them an immediate hearing to determine their entitlement to the safety-valve benefit. A DEA special agent testified that, although Appellants' stories coincided in certain aspects, it was abnormal that Appellants did not know the details of how the drug transfer was going to take place. He explained that the scenario was "too risky" to be believable; he had never investigated a case in which a drug trafficker had placed unknown individuals against their wills on a vessel loaded with contraband of such value without providing information about the transfer, or without agreeing to any payment. The agent also noticed that, based on his experience and training, Appellants appeared to easily answer "non-stressful" questions about their families and Colombia, but that a level of stress or deception was perceptible in Appellants' answers to questions regarding the smuggling venture, the drugs, and payments.
The court denied Isaa and Mancilla the safety-valve benefit, indicating that the consistency of Appellants' statements did not overcome the gaps in the logic of their story. The court also denied their requests for a downward departure for duress. Again, the court indicated that it did not find Appellants' stories to be totally truthful. Both Appellants were then sentenced to the statutory mandatory minimum term of 120 months of imprisonment.
Bravo was sentenced a week later, on December 15, 2004. The district court denied Bravo's request for a safety-valve hearing, and subsequently denied him the safety-valve benefit. Neither denial was explained by the court. The court also denied Bravo's request for a downward departure for duress, and sentenced him to the statutory mandatory minimum term of 120 months of imprisonment.
Appellants now appeal a variety of issues regarding their convictions and sentences.
Appellants are neither citizens nor resident aliens of the United States and the vessel involved was not a vessel of the United States. Thus, for Appellants to be prosecuted under the MDLEA, the vessel must be "subject to the jurisdiction of the United States." 46 U.S.C. app. § 1903(a). Whether the district court erred in determining that it had jurisdiction over the vessel, and therefore over Appellants, is a question of law subject to de novo review. See id. § 1903(f) (); see also United States v. González, 311 F.3d 440, 443 (1st Cir.2002)("The term `jurisdiction' . . . evidently refers to the substantive reach of the statute — applying to some vessels but not others — and not to subject matter jurisdiction of the court.").
Under the MDLEA, "a `vessel...
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