U.S. v. Corpus, SEGUNDO-JUVINA
| Decision Date | 27 February 1989 |
| Docket Number | SANTOS-HIMITOL,Nos. 88-1383--88-1391,D,SEGUNDO-JUVINA,MEZA-NAVARR,s. 88-1383--88-1391 |
| Parties | UNITED STATES of America, Appellee, v. Jose CORPUS, Defendant, Appellant. UNITED STATES of America, Appellee, v. Marcosefendant, Appellant. UNITED STATES of America, Appellee, v. Luis GONZALEZ, Defendant, Appellant. UNITED STATES of America, Appellee, v. Orlando TORO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Eliezer VALDERIANQUES, Defendant, Appellant. UNITED STATES of America, Appellee, v. Jose DE LOSefendant, Appellant. UNITED STATES of America, Appellee, v. Walberefendant, Appellant. UNITED STATES of America, Appellee, v. Pedro GUERRERO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Alfonso GONZALEZ, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Nydia Maria Diaz-Buxo, Caguas, P.R., by Appointment of the Court, for defendants, appellants Walber Meza-Navarro, Jose De Los Santos-Himitola and Alfonso Gonzalez.
Nydia Maria Diaz-Buxo, Caguas, P.R., by Appointment of the Court, on brief for defendant, appellant Pedro Guerrero.
Ayxa Rey Diaz, Hato Rey, P.R., by Appointment of the Court, for defendant, appellant Luis Gonzalez.
Julia M. Garriga, by Appointment of the Court, for defendants, appellants Orlando Toro and Eliezer Valderianques.
Julia M. Garriga, by Appointment of the Court, on brief for appellant Marcos Segundo-Juvinao.
William Arias, by Appointment of the Court, for defendant, appellant Jose Corpus.
Luis A. Plaza, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief for U.S.
Before BREYER and TORRUELLA, Circuit Judges, and CAFFREY, * Senior District Judge.
This is a consolidated appeal on behalf of nine defendants who were the captain and crew of the Panamanian-registered vessel COLOSO II. After a two-day jury trial, the defendants were found guilty of aiding and abetting the possession of marijuana, with an intent to distribute it, in violation of 18 U.S.C. Sec. 2 and 46 U.S.C.App. Sec. 1903(a) (recodifying 21 U.S.C. Sec. 955a). 1 Defendants appeal from their convictions, arguing among other things, that the evidence adduced at trial was insufficient to establish that they were in knowing possession of the disputed marijuana. We affirm.
We recite the relevant facts in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); United States v. Campbell, 874 F.2d 838, 839 (1st Cir.1989). On September 23, 1987, the United States Navy frigate MCCLOY encountered the tugboat COLOSO II on the high seas. The vessel was not flying a flag and was riding "heavy," with its weight shifted forward. 2 After the Coast Guard officers on board the MCCLOY made repeated attempts to communicate with the COLOSO II, the captain, Jose Corpus, eventually responded. Corpus indicated that the vessel was travelling from Aruba to St. Thomas for the purpose of picking up a barge in St. Thomas. The vessel was navigating far off course from its alleged route, however, and Corpus was unable to provide the name of his agent in St. Thomas. He advised officers of the MCCLOY that the COLOSO II was a Panamanian vessel and provided its registration number. After Corpus denied Officer Rodriquez's request to board the tugboat, the MCCLOY requested a statement of no objection from the government of Panama.
While the officers were awaiting the statement of no objection, the MCCLOY pursued the COLOSO II, with spotlights directed at the stern of the tugboat and the surrounding water. At some point, numerous bales appeared floating in the water in the wake of the COLOSO II. Officer Rodriquez radioed the COLOSO II and asked the captain what was being thrown over the side of the tugboat. Corpus denied that the crew was throwing anything overboard. A small boat was lowered into the water from the MCCLOY and one of the officers retrieved three of the bales. The parties stipulated at trial that the three bales were marijuana.
The MCCLOY received the statement of no objection on the morning of September 24, 1987. After Officer Rodriquez communicated this to Corpus, the COLOSO II stopped and officers boarded the vessel and placed the captain and crew under arrest. During the officers' search of the vessel, they discovered a compartment with a metal hatch behind the "front forward most water tank." They observed soapy water covering the bottom of the compartment and observed a hole in the compartment which appeared to have been recently cut out. Wet residue was collected from the compartment and, after it was dried, the residue tested positive for marijuana. The living quarters of the COLOSO II included only seven places for people to sleep, although there were nine men aboard. Though the 85-foot tugboat was allegedly on route to pick up a barge in St. Thomas, there was insufficient equipment on board to perform such a tow. The only towing equipment discovered on board consisted of some rusty shackles and some wire cable which was in need of repair. No fenders, which would generally be required for a towing assignment, were found on board the COLOSO II. Appellants were charged in a September 30, 1987 Indictment with violations of 18 U.S.C. Sec. 2 and 46 U.S.C.App. Sec. 1903(a).
Appellants moved for a judgment of acquittal under Fed.R.Crim.P. 29 at the close of the government's case. They failed to renew the motion at the close of all the evidence, however, and therefore waived the traditional sufficiency of the evidence challenge. See United States v. Greenleaf, 692 F.2d 182, 185 (1st Cir.1982) (). In order to win a reversal based on insufficiency of the evidence, appellants must demonstrate that their convictions represent a "clear and gross" injustice. Id. We conclude that there is substantial evidence in the record upon which to base the convictions and they are therefore not clearly and grossly unjust.
Appellants argue at great length that the government failed to prove that the bales of marijuana observed floating in the water, in the wake of the COLOSO II, were in their possession. They contend that the bales must have been connected in some way with another vessel that was in the general vicinity of the MCCLOY and the COLOSO II late on the evening of September 23, 1989.
There was ample evidence adduced at trial to allow the jury reasonably to find that the numerous bales observed floating in the water were in appellants' possession on board the COLOSO II. There was testimony from a Coast Guard officer aboard the MCCLOY that he observed the bales "leaving the COLOSO II and hitting the water" over a period of approximately one hour and fifteen minutes. Officer Evans testified that he was able to count 256 bales while he was positioned on the MCCLOY's signal bridge and assisted by binoculars and spotlights. He further testified that members of the crew of COLOSO II were looking back at the MCCLOY throughout that period. Appellants submitted no concrete evidence to establish the proximity of the other vessel alleged to be somewhere in their general vicinity and there was no evidence that would suggest the bales were discarded from the MCCLOY. 3 Furthermore, once on board the tugboat, the officers discovered the empty compartment at the bow of the vessel which appeared to have recently been washed with soapy liquid. Residue was collected from the bottom of the compartment, which once dried, tested positive for marijuana. A jury could reasonably find that the government proved a sufficient nexus between the bales of marijuana and the empty compartment to establish that appellants were in possession of the drugs.
The appellants also argue that the government failed to prove that they all knowingly participated in the alleged crime. The government was required to prove that appellants associated themselves with the venture, that they participated in it as something they wished to bring about, and that they sought by their actions to make it succeed. United States v. Campa, 679 F.2d 1006, 1010 (1st Cir.1982) (citations omitted). Notwithstanding appellants' protestations to the contrary, knowing participation in a criminal venture may be inferred from circumstantial evidence. United States v. Molinares Charris, 822 F.2d 1213, 1218 (1st Cir.1987); United States v. Smith, 680 F.2d 255, 259 (1st Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 738, 74 L.Ed.2d 960 (1983); United States v. Campa, 679 F.2d at 1010. The attendant facts and circumstances of the voyage in the present case strongly suggest knowing participation by the entire crew. The jury was, therefore, entitled to find that the government satisfied the requisite burden of proof as to all appellants.
A reasonable inference of knowing participation in a criminal venture by crew members on a vessel containing illegal cargo can be supported by a variety of factors. These factors include: the length of the voyage, United States v. Beltran, 761 F.2d 1, 6-7 (1st Cir.1985); the quantity of contraband on board the vessel, United States v. Cruz-Valdez, 773 F.2d 1541, 1546 (11th Cir.1985) (en banc); the close relationship of the crew, United States v. Lopez, 709 F.2d 742, 746-47 (1st Cir.), cert. denied, 464 U.S. 861, 104 S.Ct. 187, 78 L.Ed.2d 166 (1983); the presence of extra crew members, United States v. Robinson, 843 F.2d 1, 9 (1st Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 93, 102 L.Ed.2d 69 (1988); and the lack of an apparent legitimate purpose for the voyage, United States v. Molinares Charris, 822 F.2d at 1219. There was testimony at trial that suggests the COLOSO II left Panama on or about September 17 and stopped in Aruba before being boarded by officers of the...
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