U.S. v. Molinares Charris, s. 86-1176

• Citation: 822 F.2d 1213
• Decision Date: 29 June 1987
• Docket Number: Nos. 86-1176,s. 86-1176
• Parties: 23 Fed. R. Evid. Serv. 498 UNITED STATES of America, Appellee, v. Orlando MOLINARES CHARRIS, Defendant, Appellant. UNITED STATES of America, Appellee, v. Juan PIMIENTA REDONDO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Santiago MENESES, Defendant, Appellant. UNITED STATES of America, Appellee, v. Alfredo LOZADA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Jaime ISENIA GARCIA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Alfredo PUPO, Defendant, Appellant. to 86-1179, 86-1181, 86-1182.
• Court: U.S. Court of Appeals — First Circuit

Page 1213

822 F.2d 1213

23 Fed. R. Evid. Serv. 498

UNITED STATES of America, Appellee, v. Orlando MOLINARES CHARRIS, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Juan PIMIENTA REDONDO, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Santiago MENESES, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Alfredo LOZADA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Jaime ISENIA GARCIA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Alfredo PUPO, Defendant, Appellant.

Nos. 86-1176 to 86-1179, 86-1181, 86-1182.

United States Court of Appeals, First Circuit.

Argued May 7, 1987.

Decided June 29, 1987.

Jose E. Rossy-Valderrama, San Juan, P.R., on brief, for appellant Orlando Molinares Charris.

Olga M. Shepard, Hato Rey, P.R., for appellant Juan Pimienta Redondo.

Jose M. Ortiz Miller, Hato Rey, P.R., on brief, for appellant Santiago Meneses.

James D. Noel, Hato Rey, P.R., by Appointment of the Court, for appellant Alfredo Lozada.

Benito I. Rodriguez Masso, Caguas, P.R., by Appointment of the Court, for appellant Jaime Isenia Garcia.

Jose A. Fuentes Agostini, by Appointment of the Court, with whom Troncoso & Fuentes-Agostini, San Jose, P.R., was on brief, for appellant Alfredo Pupo.

Warren Vazquez, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee.

Before BOWNES and BREYER, Circuit Judges, and CAFFREY, ^* Senior District Judge.

BOWNES, Circuit Judge.

Appellants are six defendants who were convicted on two counts under 21 U.S.C. Sec. 955a (1982) for possessing marijuana with an intent to distribute it. They were aboard a vessel, which had sailed from Colombia and was intercepted by the Coast Guard near the U.S. Virgin Islands. The Coast Guard found 9,540 pounds of marijuana on board. Appellants contest their two convictions for what they argue was a single offense. They also challenge the sufficiency of the evidence and claim that there were several errors in the trial proceedings. We reverse the convictions on one of the counts because they were based on an erroneous construction of the statute, but find no errors requiring a reversal of the convictions on the remaining count.

I. SUMMARY OF THE FACTS

In the afternoon of May 15, 1984, the Coast Guard cutter Point Whitehorn got underway from St. Thomas, U.S. Virgin Islands, in response to information that there were two vessels in the area suspected of illegal activity. Around 7:00 P.M., when the cutter was approximately seventeen and three-quarters miles off the coast of Anegada Island, the MV Gilfon, which had a home port of San Lorenzo, Honduras, printed on its stern, was observed heading to the northwest.

The Gilfon 's captain granted the Coast Guard's radio request for permission to board. The only materials being carried in the hold of the seventy-five-foot vessel were bricks and rice straw. According to the Gilfon 's captain, the bricks were for ballast and the rice straw was for later use in carrying ice.

About two minutes after boarding, a member of the boarding party notified the boarding officer that he had smelled marijuana near the hatch to the main hold. The boarding officer went to that location and said he also detected it. He said the odor was intermittent, which he attributed to the wind. The Coast Guard's log indicated winds of approximately eighteen knots at the time, measured as the vessel was traveling at fifteen knots.

While searching the lazarette, which is a compartment at the stern of the vessel, the boarding officer smelled wet paint. Some of it rubbed off onto his arm when he brushed against the bulkhead. It was apparent that the hatch covers on access plates leading to fuel tanks had been freshly painted.

On the aft bulkhead of the main hold, on the port side of the vessel, there was a large area that obviously had been cut and rewelded. Marks on the overhead part of the compartment appeared to have been caused by a cutting torch. An oxygen and an acetylene bottle were found on board, as well as a torch and an arc welder. The paint in the welded area was noticeably different than the paint on the adjacent areas. Containers with paint matching that used on the hatch covers in the lazarette and on the welded area in the main hold were found in the pilot cabinet.

The signs of recent work made the boarding party suspicious that something was hidden behind the bulkheads. It inspected two sounding tubes on the main deck that normally would be used for determining the fuel level in the tanks below. The sounding tubes indicated that the tanks were full, but the level did not vary with the vessel's motion as they normally would. Some fuel was removed from one of the tubes and none returned, indicating that they may have been rigged to conceal false tanks. The Gilfon 's captain attributed these irregularities to valves being closed. As the boarding party was preparing to go to the main hold to check the valves, the Gilfon 's captain said that he was tired and wanted the boarding party to leave. It was approximately 1:30 A.M.; the search had begun around 8:00 P.M. The boarding party left as requested.

The cutter continued to track the Gilfon, which reversed course and started heading to the southeast. Meanwhile, the Coast Guard transmitted a request to Honduras for permission to board the Gilfon and enforce United States law. On the afternoon of May 16, such permission was received in the form of a statement of no objection.

The nine men aboard the Gilfon were mustered on deck while the Coast Guard boarded a second time and resumed its search. Bricks were moved to gain access to the valves mentioned by the Gilfon 's captain; when they were opened no fuel came out and there was no change in the sounding tubes. Two holes were then drilled in the bulkhead near the welding marks. Air was sucked in from behind the bulkhead and there was a strong odor of marijuana. A small amount of what tested to be marijuana was extracted through the holes. The vessel was seized and the crew arrested. Later, access was gained to the false compartments by cutting a hole in the main deck. Large bales of marijuana totalling 9,450 pounds were removed from the compartments.

The nine men who were aboard the Gilfon were tried together. They were all convicted of possessing marijuana with an intent to distribute it. ¹

II. THE TWO CONVICTIONS

21 U.S.C. Sec. 955a provides in pertinent part:

(a) Vessels of United States or vessels subject to jurisdiction of United States on high seas

It is unlawful for any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance.

(b) Citizens of United States

It is unlawful for a citizen of the United States on board any vessel to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance.

(c) Vessels within customs waters of United States

It is unlawful for any person on board any vessel within the customs waters of the United States to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance.

(d) Intent or knowledge of unlawful importation into United States

It is unlawful for any person to possess, manufacture, or distribute a controlled substance--

(1) intending that it be unlawfully imported into the United States; or

(2) knowing that it will be unlawfully imported into the United States.

Each of the four offenses in section 955a focuses on a different jurisdictional basis: the vessel's nationality, the citizenship of those on board, the waters in which the vessel sails, or that it is the United States to which the illegal cargo is intended to be imported.

Appellants were convicted on two counts. Count I charged them with violating subsection (a), which applies to "any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States on the high seas." The district court instructed the jury that a vessel of a foreign nation "may be subject to the jurisdiction of the United States on the high seas" if the foreign nation "consents that the United States enforce its laws upon said vessel." Count II charged appellants with violating subsection (c), which applies to "any person on board any vessel within the customs waters of the United States." The court instructed the jury "that the waters wherein the vessel was located when it was boarded were in fact customs waters of the United States" if it found beyond a reasonable doubt "that there was an arrangement between the government of Honduras and the United States, allowing the United States to board and enforce its laws upon the vessel." Thus, the jury was told in effect that an arrangement between Honduras and the United States could be the jurisdictional basis for a conviction on both counts.

As we construe the statute, however, the consent given by Honduras to the enforcement of United States law against the Gilfon is a jurisdictional basis covered exclusively by subsection (c). Our conclusion is based on the wording of subsections (a) and (c) of section 955a and the legislative history. Subsection (c) focuses on the waters in which the vessel sails. It was "intended to encompass all vessels and persons actually or constructively present within the Customs waters." H.R.Rep. No. 323, 96th Cong., 1st Sess. 10 (1979) (emphasis added). A foreign vessel can be constructively within customs waters, even though it is on the high seas, if there is "a treaty or other arrangement between a foreign government and the United States enabling or permitting the authorities of the United States to board, examine, search, seize, or otherwise to...