U.S. v. Morales-Cartagena

• Decision Date: 04 November 1992
• Docket Number: D,91-2080,MORALES-CARTAGEN,ALVARADO-ORTI,Nos. 91-2079,s. 91-2079
• Citation: 987 F.2d 849
• Parties: UNITED STATES of America, Appellee, v. Angel Luisefendant, Appellant. UNITED STATES of America, Appellee, v. Wilfredoefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 849

987 F.2d 849

UNITED STATES of America, Appellee, v. Angel Luis MORALES-CARTAGENA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Wilfredo ALVARADO-ORTIZ, Defendant, Appellant.

Nos. 91-2079, 91-2080.

United States Court of Appeals First Circuit.

Heard Nov. 4, 1992.

Decided Feb. 23, 1993.

Javier A. Morales Ramos and Jeffrey M. Williams with whom Indiano, Williams & Weinstein-Bacal was on brief, for appellants.

Jeanette Mercado-Rios, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., and Jose A. Quiles Espinosa were on brief, for U.S.

Before TORRUELLA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

Angel Luis Morales Cartagena and Wilfredo Alvarado Ortiz were convicted along with co-defendants Luis Alfredo Alvarado and Juan Eugenio Lorenzi Padilla of aiding and abetting in the unlawful possession with intent to distribute approximately 267 kilograms of cocaine aboard a United States vessel, 46 U.S.C.App. § 1903(c)(1)(D) and (f), 18 U.S.C. § 2, and aiding and abetting in the importation of cocaine into the customs territory of the United States, 21 U.S.C. § 952(a), 18 U.S.C. § 2. On appeal, Morales and Alvarado ask us to reverse their convictions, alleging an insufficiency of evidence, erroneous jury instructions, and prosecutorial misconduct. We affirm the convictions.

A. Sufficiency of the Evidence

Appellants assert that as there was insufficient evidence of criminal intent, the district court erroneously denied their Rule 29(a) motions for judgment of acquittal. In reviewing a properly preserved Rule 29 motion, we examine the evidence and all legitimate inferences therefrom in the light most favorable to the government to determine whether a rational jury could have found guilt beyond a reasonable doubt. E.g., United States v. Gonzalez-Torres, 980 F.2d 788, 790 (1st Cir.1992); United States v. Clotida, 892 F.2d 1098, 1103 (1st Cir.1989).

The government argues that appellants waived their Rule 29 motions by presenting evidence after the government concluded its case-in-chief and by failing to renew the motions at the close of the evidence. Were this so, our review would be for plain error only. ¹ E.g., United States v. Alfredo Alvarado, 982 F.2d 659, 662 (1st Cir.1992); United States v. Arango-Echeberry, 927 F.2d 35, 37 (1st Cir.1991); Clotida, 892 F.2d at 1103. However, we need not decide whether appellants waived their Rule 29 motions. Even assuming they did not, the evidence was sufficient for a rational jury to find that appellants were guilty beyond a reasonable doubt.

Appellants urge that "mere presence" at the scene is not enough to convict a defendant of aiding and abetting in the commission of a crime. E.g., Clotida, 892 F.2d at 1104. They assert the evidence merely showed that they were present on a vessel in an area of the open sea where an air drop of bales of cocaine took place. They analogize their conviction to that of innocent crew members on board a sailboat taking part in the Grand Regatta Columbus ² solely because crew members in another sailboat in the regatta committed a crime. Appellants' analogy does not wash.

Rather than being aboard only one of hundreds of vessels taking part in a regatta, appellants were in one of two vessels over which a suspect aircraft was seen to hover. Flying at night without lights and with no flight plan, the aircraft made tight circles about 300 to 500 feet above the two vessels. A Customs Service pilot following the suspect aircraft testified to having seen moving lights from the vessels. From this a reasonable jury could infer that the vessels wished to be visible to the aircraft. Bales of cocaine were dropped in proximity to the vessels from the aircraft, after which the vessels began heading north towards the shore with their navigation lights turned off. At first the two boats traveled together at a distance of about 100 yards. After the second vessel veered off in a westerly direction, a police helicopter was directed over the first vessel, occupied by the appellants. The helicopter was lit and identified as a police helicopter by the letters "FURA," which were twelve to sixteen inches long. A police sergeant aboard the helicopter gestured for appellants to stop. Appellants looked up, reduced speed, and then accelerated. When a police marine vessel subsequently approached, appellants' vessel veered off in order, it might be inferred, to get away. While other explanations were offered, a jury could reasonably conclude from this conduct that appellants were conscious of having engaged in criminal activity and were more than mere inadvertent bystanders at the drug drop. United States v. Lopez, 944 F.2d 33, 40 (1st Cir.1991); United States v. Hernandez-Bermudez, 857 F.2d 50, 54 (1st Cir.1988); United States v. Flores Perez, 849 F.2d 1, 3 (1st Cir.1988); United States v. Alvarez, 626 F.2d 208, 210 (1st Cir.1980).

The fishing gear found aboard both vessels was wrapped up and not prepared for fishing. No bait or fish were found on either vessel. No fishing nets were found in the area. As fishing was apparently not their purpose, the jury could infer that appellants had another purpose for their nighttime sojourn on the sea. Although no cocaine was found aboard appellants' vessel, four bales of cocaine were discovered on the companion vessel. A connection between the two vessels was suggested not only by their proximity when first seen but by evidence that appellant Wilfredo Alvarado Ortiz was related to co-defendant Luis Alfredo Alvarado. "While innocent association with those involved in illegal activities can never form the sole basis for a conviction, ... the existence of a close relationship between a defendant and others involved in criminal activity can, as part of a larger package of proof, assist in supporting an inference of involvement in illicit activity." United States v. Ortiz, 966 F.2d 707, 713 (1st Cir.1992) (citing Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949)), cert. denied, --- U.S. ----, 113 S.Ct. 1005, 122 L.Ed.2d 154 (1993).

Criminal intent may, of course, be inferred from circumstantial evidence. E.g., United States v. Gomez-Villamizar, 981 F.2d 621, 624 (1st Cir.1992); Ortiz, 966 F.2d at 711; United States v. Rodriguez-Alvarado, 952 F.2d 586, 590 (1st Cir.1991). Here, numerous factors, including the unlighted, clandestine airplane maneuvering over the two boats, the lights on the vessels, their proximity to the cocaine when dropped, the fact that appellants' vessel was running without navigational lights, the finding of cocaine bales on the companion vessel, and the lack of support for their being engaged in fishing or some other innocent occupation, constituted substantial evidence from which a jury could infer that appellants possessed the requisite criminal intent. See Alfredo Alvarado, 982 F.2d at 662-63 (1st Cir.1992).

B. Jury Instructions

Appellants contend that the district court's instructions to the jury were erroneous, misleading, and created impermissible mandatory presumptions of guilt. Pointing to isolated excerpts from assorted instructions regarding intent to distribute, possession, and aiding and abetting, appellants complain that the jury was allowed to convict appellants for merely being present at the scene of a drug drop.

We review a district court's charge as a whole, not in isolated excerpts. E.g., United States v. Hallock, 941 F.2d 36, 42 (1st Cir.1991); United States v. Boylan, 898 F.2d 230, 244 (1st Cir.), cert. denied, 498 U.S. 849, 111 S.Ct. 139, 112 L.Ed.2d 106 (1990); United States v. Cintolo, 818 F.2d 980, 1003 (1st Cir.), cert. denied, 484 U.S. 913, 108 S.Ct. 259, 98 L.Ed.2d 216 (1987). Viewing the charge in this manner, appellants' arguments have little force. For example, appellants object to the district court's definition of possession with intent to distribute. The district court defined this element as possessing "with intent to deliver or transfer possession of a controlled substance to another person with or without any financial interest in the transaction." We see nothing wrong in this. See Pattern Jury Instructions (Criminal Cases), Fifth Circuit, Instruction 45, at III-73 (1991); Federal Judicial Center, Pattern Criminal Jury Instructions (1987), Instruction 112, at 147. Appellants contend that the instruction would permit a jury to convict appellants and their co-defendants for delivering cocaine to the police. This argument, however, ignores the fact that the district court clearly and correctly defined the elements of willfulness, intent, and knowledge elsewhere in the charge. Considering the charge as a whole, we find nothing that would cause the jury to convict appellants without finding the requisite criminal intent.

Appellants make a similar argument as to the district court's definition of constructive possession. According to appellants, the definition was misleading because the required intentional aspects were only vaguely and ambiguously defined. Because appellants failed to make this objection to the charge at trial, we will reverse only upon a showing of "plain error." E.g., United States v. De La Cruz, 902 F.2d 121, 122 (1st Cir.1990); United States v. Nazzaro, 889 F.2d 1158, 1166 (1st Cir.1989); Fed.R.Crim.P. 30. Appellants have not shown plain error. The district court defined constructive possession as "knowingly [having] the power and the intention, at a given time, to exercise dominion or control over a thing, either directly or through another person or persons." This definition, which clearly required both knowledge and intent, is similar to one we have approved in the past. See, e.g., United States v. Garcia, 983 F.2d 1160, 1164 (1st Cir.1993); United States v. Akinola, 985 F.2d 1105, 1109 (1st Cir.1993); United States v. Ocampo-Guarin, 968 F.2d 1406, 1409 (1st Cir.1992). Moreover, as already noted, the...