U.S. v. Nueva

• Decision Date: 29 July 1992
• Docket Number: No. 91-2150,91-2150
• Citation: 979 F.2d 880
• Parties: UNITED STATES, Appellee, v. Alfredo NUEVA, Defendant, Appellant. First Circuit. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 880

979 F.2d 880

UNITED STATES, Appellee, v. Alfredo NUEVA, Defendant, Appellant.

No. 91-2150.

United States Court of Appeals,First Circuit.

Heard July 29, 1992.

Decided Nov. 4, 1992.

Raymond Rivera, by Appointment of the Court, with whom J.C. Codias was on brief, for defendant, appellant.

Jose A. Quiles, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty. and Warren Vazquez, Asst. U.S. Atty., were on brief, for appellee.

Before SELYA and STAHL, Circuit Judges, and SKINNER, ^* District Judge.

STAHL, Circuit Judge.

Defendant-appellant Alfredo Nueva appeals his conviction ¹ on charges of conspiracy to import a controlled substance into the United States and possession with intent to distribute a controlled substance in a vessel within the customs waters of the United States. In so doing, Nueva argues: (1) that his trial jury was presented with evidence legally insufficient to convict him; and (2) that the bias of the trial judge violated his right to a fair trial and to effective assistance of counsel as guaranteed by the Sixth Amendment of the United States Constitution. Finding neither argument persuasive, we affirm.

Factual Background

We summarize the evidence in the light most favorable to the government. United States v. Abreu, 952 F.2d 1458, 1460 (1st Cir.), cert. denied --- U.S. ----, 112 S.Ct. 1695, 118 L.Ed.2d 406 (1992). The events leading up to Nueva's prosecution began in late November 1990, when Nueva, a Miami, Florida resident, contacted one Briant Rodriguez in Puerto Rico, in response to the latter's advertisement of a speedboat for sale. This inquiry was made despite the fact that such boats are generally more expensive in Puerto Rico than those available in Florida. Nueva told Rodriguez that he desired to test the boat. In order to do so, Nueva paid the boat's one hundred dollar registration fee and a two thousand dollar deposit to Rodriguez. Nueva, accompanied by co-defendants Berrios-Colon and Gonzalez, launched the boat from Palmas del Mar, Puerto Rico some time after 5:15 p.m. on December 5, 1990. ²

Early that evening, United States Customs authorities were beginning to act on information they had received regarding a narcotics air drop that was expected that night in the waters east of Puerto Rico. In anticipation, Customs Special Agent Hector Marte deployed two Customs speed boats to the expected drop area, one of which he was to occupy for the duration of that evening's events. In addition to the two Customs boats, five law enforcement aircraft eventually became involved in this drug interdiction operation--two Customs Nomad aircraft ("Omaha 28" and "Omaha 05"), a Coast Guard Falcon jet, a Customs Cessna Citation jet, and a Coast Guard Dolphin helicopter. In addition, the Coast Guard deployed a United States Navy hydrofoil to the suspected drop site, while an Air Force Airborne Warning and Control Systems (AWACS) plane surveilled the entire scene. The Nomads were equipped with Forward Looking Infrared Radar (FLIR). While FLIR operates much like a camera, it does not take photographs, but instead captures images by measuring the difference in temperature between particular objects and their surroundings. As a result, the FLIR enables the Nomad crew to "see" activities taking place in the dark. In addition, "FLIR-ed" images can be videotaped, as was done in this case.

At approximately 6:30 p.m. Omaha 28 was ordered ³ to fly from the Borinquen Air Base in Aguadilla, Puerto Rico--near the northwestern corner of the island--to an area off the southern coast near Ponce. The Omaha 28 crew had been advised that other law enforcement aircraft had observed and targeted a suspect aircraft, flying on a northeasterly course from South America toward the Puerto Rico coast. At about 8:25 p.m., Omaha 28, using the FLIR, spotted the suspect aircraft flying eastbound at low altitude, without lights, within a mile or two of Puerto Rico's southern coast. Omaha 28 followed the suspect plane to an area off the southeast coast of the island, at which point both the pilot and co-pilot observed, unaided by the FLIR, spotlights from below flashing on the water. The spotlight flashes were immediately followed by flashes from the target plane's strobe light. Omaha 28 continued to follow the suspect aircraft over the area where the crew had seen the spotlights, and saw, via FLIR, the plane fly over a boat (hereinafter "the suspect boat") and then begin to circle. Soon thereafter, an object was seen being dropped from the suspect plane, a splash was observed near the suspect boat, and Omaha 28's pilot and co-pilot were able to see "chemical lights" floating on the water. ⁴ As Omaha 28 began orbiting over the area of the suspect boat and chemical lights, crew members used the FLIR to see the suspect boat moving in the direction of the chemical lights. They next saw three individuals on the boat retrieving objects from the water. Meanwhile, a different Customs plane followed the suspect aircraft away from the scene in a south-southwesterly direction. The suspect plane was tracked by radar and found to be headed toward Colombia.

Omaha 28's pilot then directed three law enforcement boats--the hydrofoil and the two Customs speedboats--to the specific area of the drop. As the hydrofoil neared the site, its crew illuminated a navigation light to better enable Omaha 28 to direct it, while Omaha 28 did the same, in order to be more visible to all other law enforcement air and sea craft. When the various navigation lights went on, the Omaha 28 crew observed, through the FLIR, people on board the suspect boat dropping articles into the water. After some thirty-five minutes, during which the suspect boat attempted to evade the hydrofoil, the Coast Guard helicopter was able to capture the suspect boat in a spotlight. The Customs boats were then able to see and intercept the suspect boat. The hydrofoil was then directed to the area where the chemical lights had previously been seen in the water, where Omaha 5 had been orbiting during the interception of the suspect boat. The hydrofoil located and retrieved five bales from the water, to which chemical lights were attached. Each bale contained an identical inscription, "32ORO." A field test on the contents of one of the bales yielded positive results for cocaine. ⁵

Meanwhile, Special Agent Marte, aboard one of the Customs boats, boarded the suspect boat. Appellant Nueva, after identifying himself as the captain, said he was testing the suspect boat. Co-defendant Berrios-Colon stated that he was a crew member, while co-defendant Gonzalez reported that he had observed an aircraft throwing packages into the water. Although the suspect boat's engine was hot to Agent Marte's touch, indicating that it had been recently functioning, it would not start and had to be towed, along with its "crew," to shore. ⁶

In the early hours of December 6, 1990, the three men were arrested. Two weeks later, a grand jury indicted each of them on two counts: Count I, conspiracy to import approximately 199 kilograms of cocaine into the United States from a place outside thereof, in violation of 21 U.S.C. §§ 952, 960 and 963; and Count II, aiding and abetting each other in the knowing and intentional possession of cocaine, with the intent to distribute the same, while on board a motor vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. app. § 1903(a), (c)(1)(D) ⁷ and 18 U.S.C. § 2. At trial, defendants argued that they were simply in the wrong place at the wrong time--stranded at sea in a boat with a failed engine--while the intended recipients of the cocaine escaped into the night. The jury found otherwise, convicting all three men on both counts. Appellant Nueva was sentenced, inter alia, to twenty years in prison.

Appellant's Claims

I. Sufficiency of the Evidence

Our standard of review when faced with a challenge to the sufficiency of the evidence is a familiar one. We must "look[ ] to the evidence as a whole, including all reasonable inferences drawn from it, in the light most favorable to the verdict, to determine whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." United States v. Plummer, 964 F.2d 1251, 1254 (1st Cir.1992) cert. denied, --- U.S. ----, 113 S.Ct. 350, 121 L.Ed.2d 265 (1992) (emphasis added); United States v. Lopez, 944 F.2d 33, 39 (1st Cir.1991). Moreover, the prosecution need not exclude every reasonable hypothesis of innocence, so long as the total evidence permits a conclusion of guilty beyond a reasonable doubt. Plummer, 964 F.2d at 1255 (quoting United States v. Hilton, 894 F.2d 485, 487 (1st Cir.1990)). Finally, and especially relevant to the case at bar, all issues of credibility must be resolved in favor of the verdict. Id. at 1254.

To prove Nueva guilty of Count I, the government had to show the existence of a conspiracy--that is, an agreement to commit the substantive offense coupled with the intent to do so--plus Nueva's knowing and voluntary participation in it. United States v. Rodriguez Cortes, 949 F.2d 532, 538 (1st Cir.1991). In order to prove that Nueva belonged to and participated in the conspiracy, the government had to prove that he intended to agree and that he intended to commit the substantive offense. Id., (citing United States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir.1989)). The substantive offense, importation of a controlled substance into the United States, requires proof that the "defendant [conspired to bring] cocaine into the country from international waters or from airspace in excess of twelve geographical miles outward from the coastline." United States v. Goggin, 853 F.2d 843, 845 (11th Cir.1988) (citation omitted). The agreement to import may be express or tacit, may be proven by direct or circumstantial evidence, and the government need not prove that the defendant knew all the details or all the members of the conspiracy. In the...