U.S. v. Guerrero-Guerrero, GUERRERO-GUERRER

• Decision Date: 09 September 1985
• Docket Number: Nos. 84-1904 and 84-1941,D,GUERRERO-GUERRER,s. 84-1904 and 84-1941
• Parties: UNITED STATES, Appellee, v. Hector Marioefendant, Appellant. UNITED STATES, Appellee, v. John DOE, a/k/a Diafanor Mosquera, Defendant, Appellant. UNITED STATES, Appellee, v. John DOE, a/k/a Jesus Idelfonso-Ortiz, Defendant, Appellant. UNITED STATES, Appellee, v. John DOE, a/k/a Juan de Dios Cabeza-Mejia, Defendant, Appellant. UNITED STATES, Appellee, v. John DOE, a/k/a Orlando Porras-Flores, Defendant, Appellant. UNITED STATES, Appellee, v. John DOE, a/k/a Dunoy Torres-Paternina, Defendant, Appellant. UNITED STATES, Appellee, v. John DOE, a/k/a Arnulfo Valencia-Aspirilla, Defendant, Appellant. UNITED STATES, Appellee, v. John DOE, a/k/a Felix Chica-Castano, Defendant, Appellant. UNITED STATES, Appellee, v. John DOE, a/k/a Cresenciano Vazquez-Consuegra, Defendant, Appellant. UNITED STATES, Appellee, v. Jane DOE, a/k/a Julie Guerrero-Soto, Defendant, Appellant. UNITED STATES, Appellee, v. John DOE, a/k/a Rafael Perez, Defendant, Appellant. UNITED STATES, Appellee, v. John DOE, a/k/a Silvio Ferrin-Molineros, Defendant, Appellant. UNITED STATES, Appellee, v. John DOE, a/k/a Heriberto Enrique Mendibil-Manjarrez, Defendant, Appellant. UNITED STATES, Appellee, v. John DOE, a/k/a Juan Alejandro-Sisa, Defendant, Appellant. to 84-1953. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1071

776 F.2d 1071

UNITED STATES, Appellee, v. Hector Mario GUERRERO-GUERRERO, Defendant, Appellant.

UNITED STATES, Appellee, v. John DOE, a/k/a Diafanor Mosquera, Defendant, Appellant.

UNITED STATES, Appellee, v. John DOE, a/k/a Jesus Idelfonso-Ortiz, Defendant, Appellant.

UNITED STATES, Appellee, v. John DOE, a/k/a Juan de Dios Cabeza-Mejia, Defendant, Appellant.

UNITED STATES, Appellee, v. John DOE, a/k/a Orlando Porras-Flores, Defendant, Appellant.

UNITED STATES, Appellee, v. John DOE, a/k/a Dunoy Torres-Paternina, Defendant, Appellant.

UNITED STATES, Appellee, v. John DOE, a/k/a Arnulfo Valencia-Aspirilla, Defendant, Appellant.

UNITED STATES, Appellee, v. John DOE, a/k/a Felix Chica-Castano, Defendant, Appellant.

UNITED STATES, Appellee, v. John DOE, a/k/a Cresenciano Vazquez-Consuegra, Defendant, Appellant.

UNITED STATES, Appellee, v. Jane DOE, a/k/a Julie Guerrero-Soto, Defendant, Appellant.

UNITED STATES, Appellee, v. John DOE, a/k/a Rafael Perez, Defendant, Appellant.

UNITED STATES, Appellee, v. John DOE, a/k/a Silvio Ferrin-Molineros, Defendant, Appellant.

UNITED STATES, Appellee, v. John DOE, a/k/a Heriberto Enrique Mendibil-Manjarrez,

Defendant, Appellant.

UNITED STATES, Appellee, v. John DOE, a/k/a Juan Alejandro-Sisa, Defendant, Appellant.

Nos. 84-1904 and 84-1941 to 84-1953.

United States Court of Appeals First Circuit.

Heard Sept. 9, 1985.

Decided Nov. 15, 1985.

Francisco M. Dolz Sanchez, San Juan, P.R., for appellant Guerrero-guerrero.

David W. Roman, First Asst. Federal Public Defender, with whom Gerardo Ortiz Del Rivero, Federal Public Defender, San Juan, P.R., was on brief, for appellants Mosquera, Cabeza-Mejia, Porras-Flores, Torres-Paternina, Valencia-Aspirilla, Chica-Castano, Vazquez-Consuegra, Guerrero-Soto, Perez, Ferrin-Molineros, Mendibil-Manjarrez and Alejandro-Sisa.

Harry R. Segarra Arroyo, Santurce, P.R., by appointment of the Court, for appellant Idelfonso-Ortiz.

Charles E. Fitzwilliam, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., San Juan, P.R., was on brief, for appellee.

Before COFFIN, Circuit Judge, WISDOM, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

BREYER, Circuit Judge.

The captain and thirteen crew members of the ship STECARIKA appeal from their convictions for possessing marijuana with an intent to distribute it and import it into the United States. See 21 U.S.C. Sec. 955a(c), (d)(1), (f); 18 U.S.C. Sec. 2. They basically claim the evidence was insufficient to support an inference necessary to a verdict of 'guilty,' namely, that they knew their ship contained the 22,000 pounds of marijuana that customs officials found aboard it. After reviewing the record evidence in a light most favorable to the government, see United States v. Quejada-Zurique, 708 F.2d 857, 859 (1st Cir.), cert. denied, 464 U.S. 855, 104 S.Ct. 173, 78 L.Ed.2d 156 (1983), we find it sufficient to allow a reasonable juror to find guilt beyond a reasonable doubt, see id. Rephrasing this legal conclusion with the caution that the record warrants, we do not believe we can set aside this verdict without impermissibly invading that province of factfinding and commonsense inference that the law reserves to a jury. A review of the evidence will help explain both our caution and our conclusion.

1. On June 18, 1984, a Coast Guard cutter, the DALLAS, while cruising the high seas south of Puerto Rico, found the STECARIKA lying dead in the water, tethered to a stationary sailing vessel, the ESPERANZA. Guerrero, the STECARIKA's captain, gave the Coast Guard permission to board. The boarding party first conducted a "personnel sweep"--a quick walk through the vessel to make sure everyone on board knew the Coast Guard was present. The Coast Guard officers noticed that the two cargo decks, running virtually the whole length and breadth of the ship, were empty. On the lower cargo deck, however, they noticed a smell of marijuana--a smell one of them described as "noticeable" and another as "very faint."

They went back up to the bridge area of the ship and, with an interpreter's help, questioned the captain and examined the ship's documents. They learned the STECARIKA had sailed from Cartagena, Colombia, with a crew of fourteen on June 2, 1984. It contained no cargo. The captain said he was sailing to Savannah, Georgia, where he would pick up a cargo for transport to the Virgin Islands. He said he did not know the nature of the cargo, or who in Savannah would supply it. He added that the ship had broken down six or seven days earlier, and that about three days earlier, he had called the ESPERANZA for assistance. The papers revealed that the STECARIKA is 317 feet long, that it has two cargo decks (vast empty spaces) which together can accommodate about 1600 tons of cargo, that the size of the crew (fourteen) was no larger than normal for the ship, and that the crew members had signed on board on May 30, 1984.

The captain then led the Coast Guard on a more thorough tour of the STECARIKA. The officers found it dirty and run-down. They found the crew's gear strewn about the various staterooms on the main deck, and a mattress on the bridge. They found the single wooden lifeboat unusable, and noticed that the cargo loading booms and winches were rusted and probably would not work.

Upon reaching the second (lower) cargo deck, the Coast Guard officers approached the forward wall and asked what lay on the other side. The captain said he was unsure, but it might be a water tank. One of the officers noticed a valve on the wall, which he opened. At that point, the smell of marijuana, which had previously seemed "noticeable," suddenly became "much more noticeable." When questioned further, the captain summoned Juan Alejandro-Sisa, the ship's chief mechanic (and another defendant here), who told the officers that there was nothing on the other side of the wall. The officers were unable to find out from either man how to get into the room behind the wall. They then brought on board a device called a boroscope that allowed them to peer through the valve hole; they detected burlap fibers inside the room.

Informed of this discovery, Captain Guerrero told the officers they would have to leave. But, by this time, the Coast Guard had received permission to search the ship from Great Britain, its country of registry, so they continued the search. And, to make a long story short, they eventually managed to extract a small amount of marijuana through the valve hole. They arrested captain and crew, and took the ship to Puerto Rico.

Customs officials in Puerto Rico located the entrance to the room--a hatch on the floor of the first (upper) cargo deck that had been sealed with a putty-like substance. Removing the hatch, they found a ladder descending into a room that houses the ship's 'bow thruster' apparatus--equipment that moves the bow sideways when the ship is entering or leaving port. The room contained 347 sacks of marijuana, each apparently measuring about 27 inches by 14 inches by 12 inches, and which must have contained on average about 65 pounds of marijuana each, or 22,000 pounds altogether. Diagrams of the ship suggest the room was about eleven feet high and nine feet wide, and it must have been eight or more feet long. An air vent ran from the room to the ship's main deck.

After considering this and other evidence, and after taking a tour of the ship itself, the jury convicted all defendants--thirteen crew members and the captain--on both counts. (The fourteenth crew member had previously pleaded guilty to the charge of possession with intent to distribute; the importation charge against him was dropped.)

2. The critical question before us is whether a reasonable juror could conclude, beyond a reasonable doubt, that each of these defendants knew the STECARIKA contained marijuana. We do not find this question difficult in respect to the captain. The jury might have reasoned that a captain normally knows what his ship contains, at least in a relatively significant room such as that containing the bow thruster machinery. See United States v. Elkins, 774 F.2d 530, 539 (1st Cir.1985); United States v. Willis, 639 F.2d 1335, 1339 (5th Cir. Unit A 1981). Additional support for the jury's inference of guilty knowledge comes from the captain's assertion that he did not know who would supply him with cargo in Savannah or what the cargo was, from his false statement that the room in front of the cargo-deck wall contained water, and from his abrupt termination of the Coast Guard search once the officers learned the room did not contain water. Similarly, there was 'special' evidence of the guilt of the chief mechanic, who told the Coast Guard that "nothing" lay beyond the wall. But, what about the other members of the crew--the oilers, the ordinary sailors, the cook--who neither testified at trial nor were mentioned specifically by the government's witnesses?

In our view, the following facts and accompanying inferences, when taken together, support the conclusion that these defendants did possess the requisite knowledge. To begin with, the shipment was large, the voyage was long, and the marijuana was perceptible (through at least a "faint" or "noticeable" odor) to persons on board. The jurors might reasonably have believed that smugglers simply would not have tried to import 22,000 pounds of marijuana, worth millions of dollars, without assuring themselves of the 'reliability' of the crew, when the smell of marijuana could have been detected on the cargo deck or possibly through an air vent linking the main deck with the room containing the marijuana, and when the crew would be together at sea for quite a few days.

Second, the marijuana was stashed inside the room that houses the STECARIKA's bow thruster. The appellants argue that the smugglers put the marijuana there in order to conceal it from the crew, whose quarters were some distance from the room. The jury, however, could have reasoned...