U.S. v. Devila, 98-4374

• Decision Date: 27 June 2000
• Docket Number: No. 98-4374,98-4374
• Citation: 216 F.3d 1009
• Parties: (11th Cir. 2000) UNITED STATES of America, Plaintiff-Appellee, v. Bladimir DEVILA, Avery Lightborne, Jurgen Preciado, Rauldino Rivera, Cesar Vallecilla-Orbio, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1009

216 F.3d 1009 (11th Cir. 2000) UNITED STATES of America, Plaintiff-Appellee,
v.
Bladimir DEVILA, Avery Lightborne, Jurgen Preciado, Rauldino Rivera, Cesar Vallecilla-Orbio, Defendants-Appellants. No. 98-4374. United States Court of Appeals,
Eleventh Circuit. June 27, 2000.

Page 1010

Appeals from the United States District Court for the Southern District of Florida.

(No. 98-00565-CR-ASG), Alan S. Gold, Judge.

Before COX, HILL and MESKILL^*, Circuit Judges.

PER CURIAM:

In 1996, defendants/appellants Jurgen Preciado, Bladimir Devila, Rauldino Rivera, Cesar Vallecilla-Orobio and Avery Lightborne were indicted by a federal grand jury in Miami, Florida with conspiracy to possess with intent to distribute marijuana, while crewmembers on board the vessel "Marbella II", a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C.App. 1903(a), (j), and (g) (Count I); and possession with intent to distribute marijuana, in violation of 46 U.S.C.App. 1903(a) and (g), and 18 U.S.C. 2 (Count II).

After a ten-day jury trial in 1997, the jury returned guilty verdicts against all five defendants/appellants on both counts charged. Defendant/appellant Rivera filed post-trial motions for judgment of acquittal (Fed. R.Crim.Proc.29), new trial (Fed. R.Crim.Proc.33) and arrest of judgment (Fed. R.Crim.Proc.34) on the basis that the government failed to prove beyond a reasonable doubt that the United States had jurisdiction over the vessel at issue, Marbella II.¹

In a thoughtful, well-reasoned, twenty-four (24) page opinion dated January 13, 1998, the district court denied all post-trial motions. Final judgments and commitment orders were entered one month later. The defendants/appellants appeal from these final orders.

The only issue raised upon appeal that merits discussion is the same issue addressed in defendants'/appellants' post-trial motions, which is, whether the government failed to prove beyond a reasonable doubt that the United States had jurisdiction over the vessel Marbella II.² For the reasons stated in Sections I and II of the district court order of January 13, 1998, by the Honorable Stanley Marcus, then district judge, denying defendants'/appellants' post-trial motions, which sections are attached hereto as an appendix, the defendants'/appellants' final judgments

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of conviction and commitment orders are AFFIRMED.

AFFIRMED.

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NOTES:

*. Honorable Thomas J. Meskill, U.S. Circuit Judge for the Second Circuit, sitting by designation.

1. Defendant/appellant Rivera's motion was adopted by defendants/appellants Lightborne, Vallecilla-Orobio and Preciado in three separate orders. Defendant/appellant Devila filed a separate motion for judgment of acquittal and a separate motion for new trial. In his motion for judgment of acquittal, defendant/appellant Devila stated that he also wished to adopt defendant/appellant Rivera's motion.

2. All remaining issues raised are devoid of merit and affirmed without opinion. See 11th Cir. R. 36-1.

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APPENDIX

UNITED STATES OF AMERICA, Plaintiff,

v.

JURGEN PRECIADO, et al., Defendants.

NO. 96-0534-CR-MARCUS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA ORDER

THIS CAUSE comes before the Court upon Defendant Rauldino Rivera's Motion for Judgment of Acquittal, Motion for New Trial, and Motion for Arrest of Judgment, filed May 14, 1997¹; Defendant Bladimir Devila's Motion for Judgment of Acquittal, filed May 19, 1997; and Defendant Bladimir Devila's Motion for New Trial, filed May 19, 1997. Defendant Rauldino argues that he is entitled to an acquittal, a new trial, and/or an arrest of judgment because the government failed to prove beyond a reasonable doubt that the United States had jurisdiction over the vessel at issue. Defendant Devila asserts that he is entitled to an acquittal because the evidence against him was insufficient to sustain a conviction. Devila also claims that he is entitled to a new trial on the basis of a remark the prosecutor made at trial concerning his failure to deny knowledge of the contraband on the vessel prior to his arrest. The Court took argument on the motions on August 11, 1997. After a thorough review of the record and pleadings, and having considered the arguments of counsel, Defendant Rauldino Rivera's Motion for Judgment of Acquittal, Motion for New Trial, and Motion for Arrest of Judgment is DENIED; Defendant Bladimir Devila's Motion for Judgment of Acquittal is DENIED; and Defendant Bladimir Devila's Motion for New Trial is DENIED.

I.

On May 26, 1990, a United States Coast Guard Cutter, the U.S.S. Lewis B. Puller, stopped a small vessel in international waters between 30 and 70 miles south of the coast of Haiti. The vessel, approximately 30 feet in length, bore the name "Marbella II" and had two different numbers painted on its hull: (1) ABS46 or AB546 or AB54G; and (2) AGSI2546. The vessel's five passengers were Defendants Jurgen Preciado, Bladimir Devila, Rauldino Rivera, Cesar Vallecilla-Orobio, and Avery Lightborne. According to the evidence presented at trial by the government, Lightborne claimed to be the master of the vessel and initially stated that the boat was registered in the Bahamas; later he changed that account and claimed that the ship was registered in Haiti, and finally he claimed that it was registered in Venezuela. Meanwhile, Preciado told the Coast Guard that he was the true master of the vessel, and that the boat was registered in Venezuela. Moreover, when asked, none of the Defendants was able to produce any registry documents and none was found on the vessel. The crew claimed that the purpose of their voyage was fishing, although the only fishing equipment on the vessel was a tangled net that was bleached from the sun, appearing not to have been used recently. Preciado claimed that the cargo on the vessel consisted of cigarettes, and removed a Marlboro box from one of the holds. He pulled a brick of a green leafy substance that he claimed was tobacco from the box and held it up for the Coast Guard to see. Suspecting that the substance was marijuana, the Coast Guard

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boarding party returned to the U.S.S. Puller to verify the vessel's registration with the government of Venezuela and to seek permission to search the vessel. While awaiting a response from Venezuela, one Coast Guard officer observed Preciado, Lightborne, and Davila retrieving food and beverages from the forward hold.

The Coast Guard requested that the Venezuelan government determine whether or not they had registered a vessel under the name "Mar Bella II," "Mar Bella 2," "Marbella II," or "Marbella 2," or under any of three possible variations on the number painted on one side of the hull (ABS46, AB54G, or AB546). The Coast Guard never asked the government of Venezuela to check the possible registration of a boat under AGSI2546, the number painted on the other side of the "Marbella II"'s hull.

After receiving a statement from the Venezuelan government refuting registry, the Coast Guardsmen returned to the "Marbella II," boarded it, and ran field tests on the bricks, which showed the presence of marijuana. They arrested all five crew members and searched the vessel, finding 63 bales of marijuana weighing 3,906 pounds stacked to the top of the forward and midship holds. They also found that the only food and beverages on board were stored along with the marijuana in the forward hold. The Coast Guard then destroyed the vessel upon determining it to be unseaworthy.

On June 6, 1996, a federal Grand Jury...