U.S. v. Mieres-Borges, MIERES-BORGES and O

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore FAY and JOHNSON; FAY; JOHNSON
Citation919 F.2d 652
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robertosvaldo Becerra-Flores, Defendants-Appellants.
Decision Date18 December 1990
Docket NumberMIERES-BORGES and O,No. 89-5643

Page 652

919 F.2d 652
UNITED STATES of America, Plaintiff-Appellee,
v.
Roberto MIERES-BORGES and Osvaldo Becerra-Flores,
Defendants-Appellants.
No. 89-5643.
United States Court of Appeals,
Eleventh Circuit.
Dec. 18, 1990.

Page 653

Richard C. Gagliano, Miami, Fla., for Mieres-Borges.

Simon T. Steckel, Coral Gables, Fla., Mark King Leban, Miami, Fla., for Becerra-Flores.

William C. Healy, Linda Collins-Hertz and Dawn Bowen, Asst. U.S. Attys., Miami, Fla., for U.S.

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

Before FAY and JOHNSON, Circuit Judges, and ALLGOOD *, Senior District Judge.

FAY, Circuit Judge:

Defendants-appellants Roberto Mieres-Borges and Osvaldo Becerra-Flores appeal their convictions in federal district court for conspiracy to possess with intent to distribute in excess of five kilograms of cocaine and for possession with intent to distribute in excess of five kilograms of cocaine. Both appellants challenge the sufficiency of the evidence to support the jury verdicts against them. Because we find that the evidence presented at trial was insufficient to establish the guilt of Appellant Osvaldo Becerra-Flores beyond a reasonable doubt, we REVERSE his conviction

Page 654

on both counts. Because we find that the evidence presented at trial would allow a reasonable factfinder to conclude that Appellant Roberto Mieres-Borges was guilty beyond a reasonable doubt, we SUSTAIN his conviction on both counts. In the alternative, Appellant Mieres-Borges challenges his conviction on the ground that the weight of the cocaine he possessed was not established at trial beyond a reasonable doubt. Because we find that the government was not required to establish the weight of the cocaine seized as an element of the offenses charged, we SUSTAIN his conviction on this ground as well. Finally, Appellant Mieres-Borges challenges the district court's determination of his base offense level under the United States Sentencing Guidelines. Mieres-Borges maintains that the district court erred in refusing to require proof of the weight of the cocaine beyond a reasonable doubt for purposes of sentencing, and that it erred in refusing to reduce his base offense level by two points for his minor role in the offense. For the reasons that follow, we AFFIRM the refusal of the district court to require proof of the weight of the cocaine possessed by Mieres-Borges beyond a reasonable doubt. In addition, we AFFIRM the district court's refusal to reduce the base offense level of Mieres-Borges under section 3B1.2 of the Sentencing Guidelines.

Procedural History

Appellants Roberto Mieres-Borges and Osvaldo Becerra-Flores were indicted by a federal grand jury on two counts. Count one charged appellants with possession with intent to distribute in excess of five kilograms of cocaine in violation of 46 U.S.C.App. Secs. 1903(a) and 1903(g) and 18 U.S.C. Sec. 2. Count two charged appellants with conspiracy to possess with intent to distribute in excess of five kilograms of cocaine in violation of 46 U.S.C.App. Secs. 1903(j) and 1903(g). Appellants and a co-defendant 1 were convicted by a jury on both counts. At a bifurcated trial, the jury first returned a verdict against Becerra-Flores. This verdict was sealed while the government presented additional evidence of a statement made by Mieres-Borges to a criminal investigator for the United States Customs Service. Considering this statement in addition to the evidence already presented against Becerra-Flores, the jury then returned a verdict against Mieres-Borges. Both appellants are currently incarcerated.

Factual History

On the evening of November 7, 1988, a United States Customs Service sensor aircraft 2 was launched from Homestead Air Force Base in response to information that an air drop of narcotics was to take place in the Cay Sal Bank area. 3 While conducting a radar patrol of the area, the pilot, David Sherry, responded to a specific report of an aircraft going over Cuba and flying very low to the ground. Arriving at an area just south of Cay Sal, at approximately twenty minutes before dusk, Sherry saw an aircraft circling over a vessel at a very low altitude and dropping bales. The boat was circling in the same manner as the plane and was picking up the bales as they were dropped. Sherry counted twenty bales that were dropped from the plane into the water.

Faced with the choice of whether to pursue the boat or the plane, Sherry followed the aircraft as it travelled west along Cuban airspace. Fearful of an encounter with a Cuban fighter plane, Sherry eventually abandoned his pursuit and returned to the Cay Sal Bank area to look for the vessel. When he returned after 40 minutes, the vessel could not be relocated.

Sherry described the boat as white, 40 to 50 feet in length, with tuna towers and a number of antennas. He admitted at trial, however, that there were numerous boats

Page 655

in the area of southern Florida to the Bahamas matching that description. Further, the evidence at trial showed that the Customs plane was flying at an altitude of 2500 feet 4 and that visibility was not optimal. For these reasons, Sherry was unable to ascertain the name of the vessel.

A second Customs plane was launched to search for the boat at six a.m. the following morning, approximately twelve hours after Sherry first spotted the vessel. When he arrived at Cay Sal, the pilot, William Radtke, saw only one boat which resembled the vessel described by Sherry. Radtke described the boat as a 30 to 40 foot sportfishing vessel with a tuna tower, sitting approximately ten feet off of the south beach of Cay Sal. The name of the boat was the "Wilfred" from Miami, Florida.

Radtke left the boat to go to the drop point from the night before and returned to Cay Sal when he didn't see any bales or any other vessels. As he approached Cay Sal, he noticed the Wilfred was underway and heading away from the island with a cover 5 over the back of the transom hiding the name of the boat. The boat was headed toward Cuba, travelling at 30 knots. 6 Radtke then flew over Cay Sal and saw numerous rectangular bales wrapped in white plastic and stacked on the high water mark of the beach. 7 He described a set of roundtrip like footprints leading from the water to where the bales were stacked and back to the water again. The footprints leading to and from the water were in the area where the Wilfred was originally sighted by Radtke.

Radtke admitted at trial that there was a discrepancy between the size of the Wilfred, which he described as 30 to 40 feet in length, and the size of the vessel spotted by Sherry the evening before, which was described as 40 to 50 feet in length. Although Radtke testified that he saw no other boats within a 30-mile radius of the Cay Sal beach where the Wilfred was spotted, he stated that he was conducting only a visual search of the area without the benefit of radar. In addition, Radtke admitted that a boat like the Wilfred could have travelled 360 miles in the twelve hours between the time that the unidentified boat was spotted by Sherry picking up bales, and the time that the Wilfred was first identified off of Cay Sal. Radtke never saw any contraband aboard the Wilfred.

Radtke radioed Chief Quartermaster Rafael Lewis, of the United States Coast Guard, to intercept the Wilfred. Lewis spotted the Wilfred between nine and nine-thirty a.m. heading toward Cuban territorial waters at a speed of ten to fifteen knots. 8 Lewis contacted the Wilfred by radio and asked a series of standard preboarding questions. Lewis first asked what was the Wilfred's latest port of call. The captain of the Wilfred 9 responded three times that they had been at Cayo Blanco. 10 The fourth time 11 the captain changed his answer and stated that he had departed Key Largo, Florida. When Lewis asked what the Wilfred's next port of call was, the captain stated that they were headed back to Key Largo. Finally, when Lewis inquired as to the purpose of the

Page 656

Wilfred's voyage, the captain responded that they were fishing. The Coast Guard then boarded the Wilfred to check documentation and compliance with safety regulations. Lewis testified that when asked to point to a position on the nautical chart where he had been fishing, the captain was very vague and didn't pinpoint any particular position. In addition, the captain of the Wilfred kept no nautical log on board that indicated where the Wilfred had been. 12

A three to four hour inspection of the Wilfred revealed no contraband aboard the vessel. The Wilfred had fishing equipment on board, although the equipment was not rigged. The boat's outriggers were also not rigged. While there were no freshly caught fish on board, there was ice in the fishing box, as well as two unopened containers of bait. There was scuba gear on board, and there were fishing rigs out on deck, which were not baited. A temporary fishing license was found on the vessel, which allowed the Wilfred to fish in American waters. 13 The Wilfred's captain stated that they were fishing for dolphin. 14

Sufficiency of the evidence

Whether there was sufficient evidence to support a conviction is a question of law subject to de novo review by this Court. Thus, we owe no special deference to findings of the district court. United States v. Kelly, 888 F.2d 732, 739-40 (11th Cir.1989) (citing United States v. Pareja, 876 F.2d 1567, 1568 (11th Cir.1989)). In reviewing the sufficiency of the evidence to support a jury verdict, we must view the evidence in the light most favorable to the government. United States v. Chotas, 913 F.2d 897, 898 (11th Cir.1990) (per curiam) (citations omitted). Thus, all reasonable inferences and credibility choices are made in the government's favor. United States v. Kelly, 888 F.2d at 740 (citing Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Gregory, 730 F.2d 692, 700...

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  • Holmes v. Kucynda, No. 02-11408.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • February 13, 2003
    ...dominion and control over it. See United States v. Gonzalez, 71 F.3d 819, 834 (11th Cir.1996). See also United States v. Mieres-Borges, 919 F.2d 652, 657 (11th Cir.1990) (noting constructive possession requires "knowing exercise of or the knowing power or right to exercise dominion and cont......
  • U.S. v. Gonzalez, No. 93-5179
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • January 4, 1996
    ...must, in fact, know of the firearm's existence in order to exercise dominion and control over it. See also United States v. Mieres-Borges, 919 F.2d 652, 657 (11th Cir.1990), cert. denied, U.S. , 111 S.Ct. 1633, 113 L.Ed.2d 728 (1991) (noting constructive possession requires "knowing exercis......
  • U.S. v. Jayyousi, No. 08–10494.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • September 19, 2011
    ...a reasonable trier of fact could conclude that the evidence establishes guilt beyond a reasonable doubt.” United States v. Mieres–Borges, 919 F.2d 652, 656 (11th Cir.1990) (internal quotation marks omitted). When a reasonable trier of fact could find that the evidence established guilt beyo......
  • U.S. v. Elgersma, Nos. 89-3926
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 29, 1991
    ...by a preponderance of the evidence. See United States v. Averi, 922 F.2d 765, 766 (11th Cir.1991); United States v. Mieres-Borges, 919 F.2d 652, 660 (11th Cir.1990). See also United States v. Ignancio Munio, 909 F.2d 436, 439 (11th Cir.1990) (preponderance applies to U.S. Sentencing 20 "Cri......
  • Request a trial to view additional results
79 cases
  • Holmes v. Kucynda, No. 02-11408.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • February 13, 2003
    ...dominion and control over it. See United States v. Gonzalez, 71 F.3d 819, 834 (11th Cir.1996). See also United States v. Mieres-Borges, 919 F.2d 652, 657 (11th Cir.1990) (noting constructive possession requires "knowing exercise of or the knowing power or right to exercise dominion and cont......
  • U.S. v. Gonzalez, No. 93-5179
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • January 4, 1996
    ...must, in fact, know of the firearm's existence in order to exercise dominion and control over it. See also United States v. Mieres-Borges, 919 F.2d 652, 657 (11th Cir.1990), cert. denied, U.S. , 111 S.Ct. 1633, 113 L.Ed.2d 728 (1991) (noting constructive possession requires "knowing exercis......
  • U.S. v. Jayyousi, No. 08–10494.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • September 19, 2011
    ...a reasonable trier of fact could conclude that the evidence establishes guilt beyond a reasonable doubt.” United States v. Mieres–Borges, 919 F.2d 652, 656 (11th Cir.1990) (internal quotation marks omitted). When a reasonable trier of fact could find that the evidence established guilt beyo......
  • U.S. v. Elgersma, Nos. 89-3926
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 29, 1991
    ...by a preponderance of the evidence. See United States v. Averi, 922 F.2d 765, 766 (11th Cir.1991); United States v. Mieres-Borges, 919 F.2d 652, 660 (11th Cir.1990). See also United States v. Ignancio Munio, 909 F.2d 436, 439 (11th Cir.1990) (preponderance applies to U.S. Sentencing 20 "Cri......
  • Request a trial to view additional results

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