U.S. v. Clotida, s. 88-1902

• Decision Date: 05 May 1989
• Docket Number: Nos. 88-1902,88-2039,s. 88-1902
• Parties: UNITED STATES of America, Appellee, v. Erwin Pascacio CLOTIDA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Olivia Gertrude CHATTEN, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1098

892 F.2d 1098

UNITED STATES of America, Appellee, v. Erwin Pascacio CLOTIDA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Olivia Gertrude CHATTEN, Defendant, Appellant.

Nos. 88-1902, 88-2039.

United States Court of Appeals First Circuit.

Heard May 5, 1989.

Decided Dec. 20, 1989.

Ramon E. Dapena, for appellant Erwin Pascacio-Clotida.

Frank Catala Morales, Bayamon, P.R., for appellant Olivia Gertrude Chatten.

Jose A. Quiles, Asst. U.S. Atty., Chief, Criminal Div., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief for the U.S.

Before SELYA and ALDRICH, Circuit Judges, and RE, ^* Judge.

RE, Chief Judge:

Appellants, Erwin Clotida and Olivia Chatten, appeal from a judgment of conviction entered on August 15, 1988, following a jury trial in the United States District Court for the District of Puerto Rico. Clotida and Chatten were convicted of aiding and abetting each other in the possession with the intent to distribute cocaine, importation of cocaine, and possession of cocaine on board an aircraft in violation of United States Code, Title 18, Section 2, and Title 21, Sections 841(a)(1), 952(a), and 955.

Clotida and Chatten contend that the district court erred in denying their respective motions for acquittal made at the close of the government's case-in-chief pursuant to Rule 29 of the Federal Rules of Criminal Procedure. Clotida also contends that the trial judge "committed a reversible error by allowing the prosecutor to present, as rebuttal evidence, a substantial part of his case in chief, [a] ... confession by the appellant[,] ... Clotida."

The threshold question as to both Clotida and Chatten is whether they waived their rights on their Rule 29 motion because of their failure to have renewed the motion at the close of all the evidence. A question is also presented as to whether, under the circumstances of this trial, the government's use of Clotida's inculpatory statements in rebuttal rendered the trial unfair by unconstitutionally impairing his fifth amendment right to testify in his own defense.

Since, after having offered his own testimony as a defense, Clotida failed to renew his motion for acquittal at the close of all the evidence, his motion is deemed waived. His conviction, therefore, may only be reviewed under a "manifest injustice" standard. Upon an examination of all the evidence presented at trial, we find the evidence against Clotida to be sufficient to sustain a verdict of guilty. Since we find his contention as to the government's rebuttal evidence to be without merit, Clotida's judgment of conviction is affirmed.

Since Chatten did not offer any evidence in her own defense, her Rule 29 motion is not deemed waived. Therefore, only evidence presented in the government's case-in-chief may be considered. Since the evidence against Chatten "is largely circumstantial the test is 'whether the total evidence, including reasonable inferences, when put together is sufficient to warrant a jury to conclude that defendant is guilty beyond a reasonable doubt.' " United States v. Mehtala, 578 F.2d 6, 10 (1st Cir.1978) (quoting Dirring v. United States, 328 F.2d 512, 515 (1st Cir.1964)). The total evidence presented by the government in its case-in-chief against Chatten fails to support the jury's verdict of guilty beyond a reasonable doubt. Since her Rule 29 motion should have been granted, the judgment of conviction is reversed.

BACKGROUND

Clotida and Chatten, residents of the Netherlands, went on vacation in Ecuador to "look for a beach." At trial, during cross-examination, Clotida, in response to questions by the prosecutor, admitted that he had purchased the airline tickets in Amsterdam on February 16, 1988, with his own money.

Clotida testified that he and Chatten arrived in Quito, Ecuador on February 27, 1988. While in Quito, Clotida claims to have been introduced to Serapio by a certain Vivian, who had travelled with Clotida and Chatten from Amsterdam to Quito. Serapio asked Clotida if he would take some luggage back to Amsterdam for him. Serapio told Clotida that he would receive a "reward" if he delivered the luggage at the airport in Amsterdam to "someone there who would have a sign in his hand with the name Serap[io] on it and [Clotida would] give it to that person." Clotida stated that because he was "broke," he accepted Serapio's offer.

Clotida testified that Serapio gave him "two pieces of luggage with clothing...." According to Clotida, he did not check the contents of the suitcases until the night before he left Quito, March 5, 1988. Clotida testified that he opened the suitcases "[t]o make sure that there were only clothes in there, and that was so, there were only clothes in there."

Clotida also stated that because he had no suitcases of his own, he intermingled his and Chatten's clothes with those of Serapio. In addition, he testified that he borrowed a large suitcase from Vivian, in exchange for a smaller suitcase which he had brought to Ecuador. On cross-examination, Clotida denied that he detected cocaine in the clothes in the suitcases given to him by Serapio. He admitted, however that he did spray deodorant on his clothes, "so that they wouldn't smell like the others."

In his testimony, Clotida also stated that, on March 6, 1988, he and Chatten boarded an Iberia flight departing from Quito, Ecuador to Amsterdam, the Netherlands, with stop-overs in San Juan and Madrid. In the course of a cargo inspection in San Juan, United States Customs Inspector Hector Albino of the Contraband Enforcement Team (CET) noticed a "heavy" suitcase emitting a "chemical" or "perfume-like odor." Upon opening the suitcase, Inspector Albino found "various clothing which were soaked, that felt moist, wet, sticky to the touch, like they were starched." Inspector Albino made a field test which consisted of cutting a section of the garment and placing it in a tube with a chemical. He obtained a blue color reaction which indicated the presence of cocaine.

Inspector Albino proceeded to notify other members of the CET including the team leader, Juan Otado. Inspector Otado instructed the CET to check all luggage to Amsterdam, and, in particular, to check the baggage tag numbers of the luggage to see if they corresponded with the one containing the contraband. Upon further investigation, Customs Inspectors Nilsa Perez and Luis Gonzalez found two additional suitcases with the same baggage tag numbers. These suitcases were opened, and they too contained clothing which a field test revealed were impregnated with cocaine.

The Customs Inspectors seized the suitcases and proceeded to identify the passengers to whom they belonged. They asked flight attendants to search for passengers whose final destination was Amsterdam. Flight information indicated that, of the three persons who were bound for Amsterdam, one cancelled, leaving only Clotida and Chatten.

The Customs Inspectors went to the preboarding area to find Clotida and Chatten to verify that they were the owners of the suitcases in question. This verification was made by matching the baggage claim tickets Clotida had in his possession with those of the suitcases containing the contraband.

Clotida and Chatten were arrested, and were read their Miranda Rights in English. Because he stated he did not understand English, Clotida was also read his rights in Spanish. On Clotida's person were found the airline tickets, boarding passes, baggage claim tickets, and passports for both him and Chatten. In addition, Clotida was in possession of a formula for sodium carbonate (Na2CO3).

Clotida and Chatten were then taken to the Customs enclosure area where they were given the Miranda Warning in written form. Clotida was also given a "Waiver of Rights" form, which he signed, after he was told he was free to sign it "if he wanted to."

While Clotida was in the Customs enclosure area the seized suitcases were weighed. In answer to Inspector Otado's question as to the weight of the suitcases, Inspector Albino responded that the gross weight of the luggage was 133 lbs. Upon hearing this, Clotida commented "[t]hat's not correct because there's only 32 pieces of clothing that are saturated with cocaine."

At trial, in its case-in-chief, the government called as witnesses Customs Inspectors Albino, Otado, Perez and Gonzalez. They all testified as to their roles and actions as to the discovery and examination of the three suitcases which contained the contraband. Inspectors Albino and Otado also testified as to what took place when Clotida was taken into custody and was brought to the Customs enclosure area.

The government also called Sergeant Hiram Gomez Santini, of the Puerto Rico Police Department, who is assigned to the Drug Enforcement Agency (DEA). Sergeant Gomez testified that he was called to the airport on March 6, 1988, so that the Customs Inspectors could turn over the evidence seized in the arrest of Clotida and Chatten. He also testified as to what was done to the evidence once it came into his possession.

The government's last witness in its case-in-chief was Dorothy Ann Roman, a chemist, of the DEA. After qualifying as an expert, Ms. Roman described the analysis she performed on the contraband. She testified that "the net weight of the cocaine ... extracted [from the clothing] would amount to 5,895 grams." When questioned about the formula for sodium carbonate, which Clotida had on his person, she testified that sodium carbonate was "a common way ... to extract cocaine from another substance."

At the close of the government's case, pursuant to Rule 29 of the Federal Rules of Criminal Procedure, Clotida and Chatten moved for acquittal. Based on the evidence presented in the government's case-in-chief the motions were denied. In denying the motions the district court stated:

Certainly, from that evidence a juror can make reasonable inferences to the effect that they planned this trip to go to a...