U.S. v. Gonzalez, 86-7155
| Decision Date | 26 February 1987 |
| Docket Number | No. 86-7155,86-7155 |
| Citation | 810 F.2d 1538 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jose GONZALEZ, Jose D. Ramirez, Juan Payan, Bismark Wilson Arragon, Raul A. Medina, Jaime Brekeman, Juan Pacheco, Defendants-Appellants. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
John Furman, Mobile, Ala., for Jose Gonzalez.
Arthur J. Madden, III, Mobile, Ala., for Jose D. Ramirez.
Rose A. McPhillips, Mobile, Ala., for Juan Payan.
Desmond B. Toler, Mobile, Ala., (Court-appointed), for Bismark W. Arragon.
John M. Tyson, Jr., Mobile, Ala., (Court-appointed), for Raul Medina.
C. Christopher Clanton, Mobile, Ala., (Court-appointed), for Jaime Brekeman.
Richard L. Watters, Mobile, Ala., (Court-appointed), for Juan Pacheco.
J.B. Sessions, U.S. Atty., Gloria A. Bedwell, Asst. U.S. Atty., Mobile Ala., for U.S.
Appeal from the United States District Court for the Southern District of Alabama.
Before FAY, ANDERSON and EDMONDSON, Circuit Judges.
This marijuana-smuggling case arises from the seizure of a vessel containing over 13,000 pounds of marijuana. The eight defendants-appellants were convicted by a jury of violating 21 U.S.C.A. sec. 963 (), 21 U.S.C.A. sec. 955a(a) (), 21 U.S.C.A. sec. 955a(d) (), and 21 U.S.C.A. 955c (). We affirm.
Appellants were arrested on board the GRAMA J, 1 a 75 foot fishing vessel that contained over 13,000 pounds of marijuana when seized. 2 The Coast Guard first sighted the GRAMA J on September 27, 1985, although it lost track of the vessel after only a few hours surveillance. Subsequently, on September 30, 1985, the Coast Guard spotted and boarded a smaller fishing vessel, the CLOUDS. After a search of the CLOUDS revealed a large amount of marijuana, 3 its three-man crew was arrested.
Two days later the GRAMA J again was sighted by a Coast Guard surveillance plane; the same cutter that seized the CLOUDS was dispatched to intercept the GRAMA J. On October 2, 1985, that Coast Guard cutter made radio contact with the GRAMA J and was informed by appellant Jose Ramirez that the vessel's master had left the vessel the night before. Ramirez also told the Coast Guard that the boat was the GRAMA J and was of Honduran registry. The boat's name plate stated that it was the GRAMA J; the vessel flew no flag. After receiving permission from Ramirez to board and search, the Coast Guard boarding party searched the boat and eventually discovered a large quantity of marijuana in a locked hold. 4 They also found an envelope that contained Colombian registration papers for a vessel named the ALVAREZ REAL; the envelope had the name "Jairo" written on it.
Appellants first contend that the trial court erroneously allowed the government to introduce evidence about the activities and seizure of the CLOUDS--evidence that appellants maintain is irrelevant or unduly prejudicial or both. See Fed.R.Evid. 401, 402, 403. The government proffered the evidence to demonstrate that the GRAMA J was a so-called "mother ship" that had offloaded marijuana onto the CLOUDS. 5
In brief summary, evidence was adduced that linked the two ships in the following ways: the marijuana bales on board the CLOUDS would have filled that part of the GRAMA J's hold not containing marijuana; the two boats were close enough to one another that an earlier rendezvous was physically possible; one of the crewmen on the CLOUDS was a Colombian named Jairo Gomez who claimed he lived in Florida but could not give an address in that state; the envelope containing registration papers for the ALVAREZ REAL, which was found on board the GRAMA J, had the name "Jairo" on it; the GRAMA J had red "rub marks" on its hull and the CLOUDS had a red "rub rail;" 6 and the red rub marks on the GRAMA J were approximately where they would naturally occur had the two vessels actually tied together at sea.
Whether evidence is relevant is a determination that lies within the sound discretion of the trial court. Dallis v. Aetna Life Ins. Co., 768 F.2d 1303, 1305 (11th Cir.1985). Similarly, whether evidence is admissible under Fed.R.Evid. 403 is subject to reversal only for an abuse of discretion. Id. The trial court did not abuse its discretion in holding this evidence relevant and admissible. 7
Appellants next maintain that the trial court improperly concluded that it had jurisdiction over two of the four counts, i.e., those counts involving the possessing and conspiring to possess marijuana that predicate jurisdiction on the stateless nature of the vessel. See 21 U.S.C.A. secs. 955a(a), 955c. Put simply, appellants argue that the government's evidence was insufficient to prove that the GRAMA J was a "stateless vessel." In evaluating this claim we must view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).
During its search of the GRAMA J, the Coast Guard boarding party discovered Colombian registration papers for a vessel named the ALVAREZ REAL; and a postseizure search uncovered a white painted board on which was painted "ALVAREZ ____AL." Moreover, a Colombian police officer familiar with the ALVAREZ REAL testified at trial that a Coast Guard photograph of the seized vessel was a picture of the ALVAREZ REAL. The same Colombian police officer also produced a photograph of the ALVAREZ REAL that he had taken earlier, in Colombia, pursuant to an ongoing investigation of drug smuggling activities in Colombia. The officer testified that the two photographs were of the same boat. The government, however, did not produce any official verification from the Colombian government that the ALVAREZ REAL was of Colombian registry.
A vessel that "sails under the authority of two or more states, and uses them according to convenience ... will be deemed a stateless vessel." United States v. Batista, 731 F.2d 765, 767 (11th Cir.1984). Similarly, a vessel that falsely claims a nationality is deemed to be a stateless vessel. See United States v. Alvarez-Mena, 765 F.2d 1259, 1264 n. 8 (5th Cir.1985).
Appellants' arguments are unavailing. This court has held that "a lack of permanent indicia of name and home port on [a vessel's] hull is also a clear indication that the crew wanted to be able to manipulate the vessel's 'nationality' on short notice", thereby rendering the vessel "stateless." United States v. Matute, 767 F.2d 1511, 1512-13 (11th Cir.1985). The signboards bearing the official documentation number of the GRAMA J were portable, removable and clearly capable of quick manipulation. 8 The defaced ALVAREZ REAL name plate that eventually was uncovered also points to an unacceptably flexible view of nationality. Furthermore, as in Matute, the acting captain of the seized ship stated that the vessel was of one nation's registry, yet the only registration papers found aboard were of a different nation. See id. at 1513.
The evidence adduced was sufficient to establish that the GRAMA J was a stateless vessel.
Appellants next contend that the government adduced insufficient evidence to establish that appellants intended to import the marijuana into the United States. 9 In cases involving such a nexus, the government must prove that the appellant "intended territorial effects within the sovereign territory of the United States." United States v. Loalza-Vasquez, 735 F.2d 153, 156 (5th Cir.1984) (). In evaluating this claim, we must view the evidence available to the jury in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), and determine whether a reasonable jury could have determined beyond a reasonable doubt that the GRAMA J's intended destination was the United States or that the appellants' purpose was to send marijuana into this country. See United States v. Gray, 659 F.2d 1296, 1302 (5th Cir.1981) (Unit B). 10
The evidence submitted by the government was sufficient to convince a reasonable jury that: the GRAMA J was on a course headed to the United States when sighted; the ship changed course once its crew realized the vessel was sighted; and the vessel had acted at least once as a mother ship. Courts have relied on these factors as indicating a sufficient territorial nexus to the United States; 11 they are sufficient to establish the necessary link in this case.
Appellants also challenge whether the evidence was sufficient to prove that they were participants in the various charged conspiracies. To convict a defendant for conspiracy, the government must establish that an agreement existed, that the defendant knew of the general purpose of the agreement, and that the defendant voluntarily participated in the agreement. United States v. Meester, 762 F.2d 867, 881 (11th Cir.1985). Participation in a conspiracy can be proved by direct or circumstantial evidence, United States v. Cole, 755 F.2d 748, 755 (11th Cir.1985), and may be inferred when crewmen are aboard a vessel on which the presence of contraband is obvious. United States v. Cruz-Valdez, 773 F.2d 1541, 1546 (11th Cir.1985), cert. denied sub nom. Ariza-Fuentas, --- U.S. ----, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986).
Voluntary, knowledgeable participation by a crewman in such a situation may be shown in a number of ways; the test is one of reason. Id. The predominant factor present in our cases,...
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