U.S. v. Eltayib
| Decision Date | 08 July 1996 |
| Docket Number | 565,567 and 568,Nos. 563,566,564,D,s. 563 |
| Citation | 88 F.3d 157 |
| Parties | 44 Fed. R. Evid. Serv. 1438 UNITED STATES of America, Appellee, v. Abdel ELTAYIB, Jaime Enrique Monsalvo Padilla and Jorge Portocarrero Pena, Defendants-Appellants. ockets (94-1542(L)), 94-1543, 94-1546, 94-1547, 94-1674, 94-1676 and 95-1046. |
| Court | U.S. Court of Appeals — Second Circuit |
Jonathan S. Sack, Assistant United States Attorney, Eastern District of New York, Brooklyn, New York (Zachary W. Carter, United States Attorney, and Peter S. Norling, Assistant United States Attorney, Brooklyn, NY, on the brief), for Appellee United States of America.
David Gordon, Gordon & Horwitz, New York City, for Defendant-Appellant Eltayib.
(David H. Weiss and Georgia J. Hinde, New York City, filed a brief for Defendant-Appellant Pena.)
(Lynne F. Stewart, New York City, filed a brief for Defendant-Appellant Padilla.)
Before: WINTER, JACOBS and PARKER, Circuit Judges.
Through a tip, the government learned that a ship-to-ship transfer of a large cocaine shipment was going to take place 80 miles off the coast of New Jersey. The Coast Guard deployed high-tech aerial surveillance, but the technology failed and the two ships got away. The boat that received the cocaine (over 4700 kilograms of it) had the government's informant aboard, so that boat was easily found and detained later the same day. Two days later, by a stroke of luck, the government found what it believed to be the transferring ship. The ship's nine crew members were arrested, tried before a jury, and convicted of three crimes: possession of cocaine with the intent to distribute, conspiracy to do the same, and conspiracy to import cocaine into this country. Three of the defendants--the captain (Eltayib), the first mate (Pena), and the chief engineer (Padilla)--appeal their convictions and sentences. 1
Most of their contentions on appeal may be summarily rejected. One gives us pause. Eltayib claims that the photo array presented to the government's informant for the purpose of identifying Eltayib was filled with photographs of people who looked nothing like Eltayib. In addition, Eltayib claims that the photographs in the array were altered to highlight the one feature that was central to the informant's on-site description of the suspect: his hair. We agree with Eltayib that the photo array was improperly suggestive, that there is no independent basis of reliability for the identification, and that its admission therefore violated his rights under the Due Process Clause. However, as we explain at length below, the other evidence against Eltayib is sufficiently overwhelming to support his conviction. In the end, then, despite our dismay about the improper photo array, we conclude that this error was harmless and therefore affirm the convictions and sentences of all three defendants.
The Blue Crown, a 203-foot blue and white freighter, sat in port at Puerto Cabello, Venezuela on July 1, 1991. Over the next two days, the ship took on 17 large containers filled (according to its manifest) with toilet paper and napkins. When it left Venezuela on July 3, the Blue Crown set out on its ostensible course northwest through the Caribbean to deliver the paper products to Guatemala. The next day, however, it was rerouted northeast to Barbados--where it was supposedly to take aboard more containers--and then north on the Atlantic to New York for "annual docking." According to Coast Guard officials, this circuitous course along the perimeter of the Caribbean would avoid the Coast Guard anti-narcotics surveillance deployed there.
After six days at sea, the Blue Crown docked in Barbados. Local customs officials conducted a limited search of the ship for drugs, and found none. While there, the Blue Crown received new instructions, sending it to Newark (instead of New York) for "dry docking," purportedly to fix a mechanical problem, despite the fact that dry docking facilities were available nearby in the Caribbean.
As the Blue Crown proceeded north in the Atlantic, drug trafficker Peter Califano was in Brooklyn plotting cocaine importation strategy. As he did, Califano told his friend and commercial-fishing partner Thomas Van Salisbury that a large cocaine shipment arriving from South America by boat would be delivered to Califano in a mid-ocean transfer. Van Salisbury agreed to accompany Califano and to help with the transfer. As the transfer day approached, a nervous Van Salisbury contacted the FBI and told them that a July 20 late-evening rendezvous had been planned. The expected meeting place was somewhere in the Jones Valley, a deep-water spot popular with New York-area fishermen, located about 80 miles east of Atlantic City and about 100 miles south of Montauk on Long Island's eastern tip.
In the early hours of July 19-20, Califano's fishing boat, the Hunter, set sail from its berth near Coney Island. After a bit of afternoon fishing, Califano directed Van Salisbury to head toward a spot in Jones Valley marked on the Hunter's nautical chart, having the coordinates 39? 30' North, 72? 00' West. As they sailed to the spot, one of the ship's metal outriggers, broken earlier in the day and strapped to the radar mast as a quick fix, hung out the port side with its swinging tip extending over the side. At about 9:00 p.m., with Van Salisbury in the engine room, the Hunter approached the rendezvous point and came in sight of the delivering courier ship.
Meanwhile, federal law enforcement officials were in the air and sea looking for the two ships. Twice between 9:00 p.m. and 3:00 the next morning, a C-130 cargo plane, equipped with enhanced radar, radioed to three Coast Guard patrol boats the coordinates where (according to the plane's radar) there was a suspected "off-load situation" occurring. The first location was 20 miles southwest of the spot given to federal agents by Van Salisbury, and the second was 25 miles southeast of the first location. At each spot, the patrol boats found empty ocean. During this time, the surveillance plane reported problems with its radar. The radar screen faded in and out and seemed to provide conflicting information. In a test radar reading of one of the Coast Guard boats, the radar was off by five miles. Although the C-130 could not pinpoint the vessels that blipped on its radar screen, it consistently reported seeing two (and at one point three) ships operating right next to one another between about 9:30 p.m. and 3:00 a.m., by which time its radar showed the two ships separating.
In fact, the Hunter and the courier ship did link up around 9:30 p.m. Having spotted the courier boat, Van Salisbury, on directions from Califano, attempted to align the Hunter with the speed and path of the other boat. With the two boats proceeding on parallel courses, two men on the courier boat (one carrying a rifle) shouted angrily at Califano and Van Salisbury that they had originally mistaken the Hunter for a Coast Guard ship. Van Salisbury claims that he saw the faces of the two men at this point. At a subsequent debriefing, he picked Pena (Blue Crown first mate) and Carlos Neira (a Blue Crown crew member, not an appellant here) from two photo arrays, identifying them as the two shouters. At trial, Van Salisbury was able to identify Neira in court, but not Pena.
After the shouting, Van Salisbury tried to bring the Hunter alongside the courier ship, but was "getting real nervous." Approaching the other ship too quickly, the Hunter's port side (with the metal outrigger hanging over the side) slammed into the courier ship's starboard side near the stern. The next approach was better executed, and the boats were tied off. Van Salisbury then left the wheelhouse and came on deck with Califano. For the next several hours, nearly five metric tons of cocaine were tossed off the courier ship in bales onto the deck of the Hunter. At several points during the cocaine transfer, Van Salisbury stood on the deck of the Hunter and saw crew members on the courier ship, one of whom he later identified in a photo array as Eltayib (captain of the Blue Crown). Because our ruling on the admissibility of Van Salisbury's identification of Eltayib depends in large part on a precise understanding of Van Salisbury's opportunity to see Eltayib, we review in detail what transpired after the two ships were lashed together.
When Van Salisbury left the wheelhouse and went on deck, the sea had a "slight roll"; the night was "fairly bright, [but][t]here was no [moon] beams coming down." Standing on the Hunter's deck, Van Salisbury heard what he believed to be large metal plates scraping together on the courier ship, as if its hold was being opened. Just as he was asking Califano how the other boat's crew was going to transfer the cocaine to the Hunter, a bale of cocaine came flying onto the Hunter's deck, nearly bouncing off the deck into the ocean. Califano shouted to the courier ship crew expressing displeasure with the near-mishap. He and Van Salisbury then opened up the Hunter's fish hold where they were to store the cocaine, and Van Salisbury climbed down into it. Van Salisbury's testimony on direct examination suggests that very little time elapsed between the first bale's arrival and his descent into the fish hold. He did not indicate during his direct testimony that he saw anybody on the courier ship's deck during this interval.
As Van Salisbury entered the fish hold, a flying bale of cocaine hit him and broke the ladder he was standing on, dropping him eight to ten feet to the fish hold floor. Possibly dazed, he clambered back onto the deck. He testified that at this point he saw two men on the rail of the courier ship, 35-40 feet away, one of whom he "had a good look at":
To continue reading
Request your trial
-
State v. Chasse
... ... Therefore, it is entirely proper for counsel to appeal to a jury's common sense in closing remarks. See United States v. Eltayib, 88 F.3d 157, 173 (2d Cir.), cert. denied, 519 U.S. 1045, 117 S. Ct. 619, 136 L. Ed. 2d 543 (1996) (prosecutor's appeal to jurors to draw ... Nersesian, supra, 1328 ... Our review of the record leads us to conclude that the alleged misconduct did not rise to the level of substantial prejudice. The prosecutor's remarks were brief, confined to rebuttal ... ...
-
Corchado v. Rabideau
... ... She "had to call for other cars to come up there to assist us." R.21 ... C. The Show-Up Procedure ... When the officers arrived with Corchado in the patrol car, the show-up ... Eltayib, 88 F.3d 157, 166 (2d Cir.1996) (photo array unduly suggestive where witness had described perpetrator as having "a head full of hair, real bushy ... ...
-
United States v. Bansal
... ... Yet in the more than 1,100 pages of briefing submitted to us by both defendants and the government, we have identified not a single instance of reversible error. That the prior rulings and findings in this case ... United States v. Eltayib, 88 F.3d 157, 173 (2d Cir.1996) (citing United States v. Mechanik, 475 U.S. 66, 70, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986)). Bansal contends that the ... ...
-
U.S. v. Gaviria
... ... would not know for sure whether the prepositional phrase "with Bob" modifies the verb "discussed" or the gerund "running." The sentence before us is similar. Drawing upon the often abstruse work of a phalanx of philologists, the appellants argue that the jury listening to (or reading, for the ... United States v. Lemire, 720 F.2d 1327, 1339-41 (D.C.Cir.1983). See United States v. Eltayib, 88 F.3d 157, 170-71 (2d Cir.1996) (although particular part of instruction ambiguous with regard to need to find that defendant participated in ... ...