U.S. v. Downs-Moses
| Decision Date | 27 May 2003 |
| Docket Number | No. 00-2587.,No. 01-1002.,No. 01-1073.,No. 01-1561.,No. 00-2535.,No. 00-2589.,No. 01-1091.,00-2535.,00-2587.,00-2589.,01-1002.,01-1073.,01-1091.,01-1561. |
| Citation | 329 F.3d 253 |
| Parties | UNITED STATES of America, Appellee, v. Radmen DOWNS-MOSES, Ramón Sánchez-Hernández, Raúl Salazar-Uriana, Gerónimo Amparo-Hernández, Larry Ward-Bryan, And Jerry Ward-O'Neill, Defendants, Appellants. |
| Court | U.S. Court of Appeals — First Circuit |
Raymond L. Sánchez Maceira, for appellant Radmen Downs-Moses.
Rafael F. Castro Lang, for appellant Ramón Sánchez-Hernández.
William A. Gilmore, Jr., with whom Azzarito & Gilmore, LLP, was on brief, for appellant Raúl Salazar-Uriana.
Jean Philip Gauthier, for appellant Gerónimo Amparo-Hernández.
H. Ernest Stone, for appellant Larry Ward-Bryan.
Terrance J. McCarthy, for appellant Jerry Ward-O'Neill.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Jorge E. Vega-Pacheco, Assistant United States Attorney, were on brief, for appellee.
Before BOUDIN, Chief Judge, LYNCH and HOWARD, Circuit Judges.
In these consolidated appeals, six defendants challenge their convictions and sentences for aiding and abetting the possession of cocaine with intent to distribute. After a careful review of their arguments, we affirm.
We recite the pertinent facts in the light most favorable to the verdict, see United States v. Valerio, 48 F.3d 58, 60 (1st Cir.1995) (citing United States v. Ortiz, 23 F.3d 21, 23 (1st Cir.1994)), deferring some details to our analysis of the issues raised on appeal.
On December 26, 1998, at approximately 10:30 a.m., a U.S. Customs pilot patrolling the waters off the west coast of Puerto Rico and monitoring a marine emergency radio channel learned that a vessel had capsized approximately seven and a half nautical miles west of Cabo Rojo, Puerto Rico. Aided by coordinates provided by a civilian vessel in the area, the pilot located an overturned vessel, a twenty-one-foot Grand Prix with a yellow fiberglass hull.1 The vessel was registered in Puerto Rico, and known by the name "MARINATHA."2 Agents of the U.S. Coast Guard later arrived at the scene by boat. The agents inspected the MARINATHA and, upon righting the vessel, discovered five bales of a substance later identified as cocaine. The bales were rectangular parcels wrapped in brown burlap bags with red and green stripes. Inside, the cocaine was packaged in bricks, with each brick tightly wrapped in thick balloons of various colors.
Some distance north of the MARINATHA (the record is unclear as to the location), a Coast Guard pilot discovered twenty-one bales floating in the water. A U.S. Border Patrol boat responded to a call for assistance and recovered these bales, also later determined to contain cocaine, which were wrapped in the same manner as those recovered with the MARINATHA.
In the early afternoon, agents with the maritime drug interdiction unit of the Police of Puerto Rico (known as "FURA"), acting on information received via police communication radio, went to yet a third location in the water. Approximately five miles west of Boquerón, Puerto Rico, FURA agents discovered floating in the water defendants-appellants Jerry Ward-O'Neill ("Ward-O'Neill"), his brother Larry Ward-Bryan ("Ward-Bryan"), and Raúl Salazar-Uriana ("Salazar"). The three men wore life vests.
After removing these men from the water, FURA agents spotted three more people floating in the water approximately 200 feet away. One man in this second group, Radmen Downs-Moses ("Downs"), was wearing a life vest identical to the life vest worn by one of the men in the first group. The two other men in this second group, Ramón Sánchez-Hernández ("Sánchez-Hernández") and his cousin Gerónimo Amparo-Hernández ("Amparo-Hernández") were each seen clinging to a burlap-covered bale as a flotation device. As the agents approached, the men pushed the bales away. These bales, also containing cocaine, were wrapped in the same manner as the five bales recovered with the MARINATHA by the Coast Guard and the twenty-one bales recovered by the Border Patrol.
FURA agents also recovered a white bucket floating in the water near where the defendants were found. The bucket contained, among other things, a cellular telephone,3 a protective case for a global positioning system, razor blades labeled "Gillette of Colombia, S.A.," and a laminated piece of paper with writing on it. The notations on the paper included two sets of coordinates (one set of which was close to where the capsized MARINATHA was found), as well as the name "Moreno." FURA agents found no fishing or diving gear in the vicinity.
The six men were taken to the FURA office in Boquerón and placed under arrest. Customs agents read each his Miranda rights, and each signed a written waiver. In the interviews that followed, the men told stories that were at times incredible and contradictory. The three men in the first group, all Colombian nationals claimed to know each other, but denied knowing anyone in the second group. Ward-O'Neill claimed that he and the other two in the first group had been near Puerto Rico for twenty-four days on the ALEXANDER,4 allegedly a forty-two-foot fishing vessel under the command of one Captain Alejandro. He said that he and seven others (including Ward-Bryan and Salazar) went out on a smaller twenty-foot fishing boat that had engine problems and capsized. He could not identify any of the other people who had been with them in the smaller boat. He denied knowing the men in the second group picked up by FURA, or knowing anything about the nearby bales of cocaine.
Ward-Bryan told a similar story, but could not recall the name of the forty-two-foot vessel on which he had been a passenger for twenty-four days. Salazar's version of the story differed—he stated that a total of five people boarded the smaller boat, and that they had done so because the larger vessel was having engine problems, not to go fishing. According to his story, the small boat capsized when its passengers attempted to tow the larger vessel. They then tried to swim back to the larger vessel to be rescued, but it abandoned the three of them (but apparently not the other passengers who had been in the small boat) in the water before they could reach it.
In the second group, Sánchez-Hernández, a Dominican national residing in Puerto Rico, told agents that he and his cousin left to go fishing in a small boat the previous evening. He said their boat took on water and sank that night at approximately 10:00 or 10:30 p.m. He denied knowing any of the four other men picked up in the water or even where they had come from, but stated that if any of the other men said he was on "the yellow boat," then that person was lying. Sánchez-Hernández admitted that he was known by the nickname "Moreno," a name that appeared on the piece of paper found in the white bucket. His cousin, Amparo-Hernández, told a similar story, but said their fishing boat had hit a rock, and that this was what caused it to sink. Despite being found using a bale of cocaine to keep him afloat, Amparo-Hernández denied having any knowledge of the bales found with him and Sánchez-Hernández.
The third person in the second group was Downs, a Nicaraguan national who claimed not to know any of the other men found at sea. He told the agents that he had been a stowaway on a Costa Rican container ship, and that when he was discovered on board the day before, the captain put a life vest on him, brought the ship close to the coast of Puerto Rico, and threw him overboard. Downs identified for the agents the life vest he had been wearing, and signed the life vest in their presence. The life vest was identical to one of the life vests worn by one of the men in the first group.
On December 30, 1998, a grand jury indicted the six men on a single count of aiding and abetting each other in knowingly, intentionally, and unlawfully possessing with intent to distribute approximately 978 kilograms of cocaine on board a vessel of the United States, in violation of 46 U.S.C. App. § 1903(a),(b)(1) and (f), and 18 U.S.C. § 2.
The defendants were tried before a jury in April 2000, with testimony offered over the course of six days. In addition to evidence introduced by the government, the parties stipulated that the chain of custody of the evidence recovered on December 26, 1998 would be completed through the testimony of certain identified law enforcement agents. They also stipulated that a forensic chemist would testify to the fact that the bales contained cocaine hydrochloride (a Schedule II narcotic), weighing a total of 975 kilograms, and having a strength or purity of 83 percent.5
On April 11, 2000, the district court read closing instructions to the jury in open court. Among other things, the jury was instructed that only a "measurable amount" of cocaine must be proven by the government beyond a reasonable doubt, not the actual amount charged in the indictment. Although this stage of the proceedings was not recorded by the court reporter, the exchange between the court and counsel immediately thereafter was transcribed, and reflected that the court gave defense counsel the opportunity to object to the instructions. Other than an objection by counsel for Ward-Bryan on the ground that the minimum and maximum penalty should have been read to the jury (a request denied by the district court), counsel made no objections to the jury instructions.
The jury returned verdicts of guilty as to all defendants. Sánchez-Hernández and Amparo-Hernández were each sentenced to a term of imprisonment of 200 months; Ward-Bryan and Ward-O'Neill (following a 2-point adjustment in his base offense level on re-sentencing in March 2001) were...
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