U.S. v. Pretel, 90-3610
| Decision Date | 06 August 1991 |
| Docket Number | No. 90-3610,90-3610 |
| Citation | 939 F.2d 233 |
| Parties | 33 Fed. R. Evid. Serv. 1040 UNITED STATES of America, Plaintiff-Appellee, v. Fernando Segura PRETEL, Abraham Valencia Codognotto, Orlando Enriquez Munoz Herrera, Gregorio Jose Carrasquilla Garrido, Arsenio Marin Pineda, Alvaro German Salgado-Caballero, and Orlando Barrero Morales, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Mark McTernan, New Orleans, La. (court-appointed), for Pretel.
Daniel A. McGovern, IV, Federal Public Defender, New Orleans, La. (court-appointed), for Codognotto.
Brian M. Begue, Federal Public Defender, New Orleans, La. (court-appointed), for Herrera.
Robert P. Early, Federal Public Defender, New Orleans, La. (court-appointed), for Garrido.
John Simmons, Jr., Federal Public Defender, Covington, La. (court-appointed), for Pineda.
Milton Masinter, Federal Public Defender, New Orleans, La. (court-appointed), for Orlando B. Morales.
Dwight M. Doskey, Federal Public Defender, Harvey, La. (court-appointed), for Amaya.
John T. Mulvehill, Federal Public Defender and Robert F. Barnard, Asst. Federal
Public Defender, New Orleans, La. (court-appointed), for Salgado-Caballero.
Michael E. McMahon, Peter G. Strasser, Eileen G. Shaver, Asst. U.S. Attys., and John P. Volz, U.S. Atty., New Orleans, for U.S.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before WISDOM, KING, and DUHE, Circuit Judges.
The appellants, all crew members of the vessel Zedom Sea, challenge their convictions for possession of cocaine with intent to distribute while on board a vessel subject to the jurisdiction of the United States. They contend that the court erred in determining jurisdiction as a matter of law, in failing to dismiss the indictment based on the government's alleged destruction of evidence, and in admitting purportedly irrelevant and prejudicial evidence. In addition to joining his coappellants in contesting the sufficiency of the evidence to support the verdict, appellant Pineda also contends the trial court issued an erroneous jury instruction. Finding no error, we affirm.
While on routine patrol in international waters near the Yucatan Peninsula, the Coast Guard cutter Cushing, a specially equipped armament in the War on Drugs, spotted the supply vessel Zedom Sea. Noting that the vessel flew a Panamanian flag, the Coast Guard inquired via radio as to its home port, the nature of its cargo, its last port of call, its destination, and the size of its crew. The ship's master, appellant Pineda, replied that the Zedom Sea was bound from Barranquilla, Columbia, carrying cement, gelatin, and a crew of nine to Tampico, Mexico.
Suspicious of the vessel's stop in Columbia, the Coast Guard requested, and was granted, permission to board the vessel to check its manifest. When that check revealed discrepancies between the information relayed by Pineda and that contained in the documents, the Coast Guard requested permission to search the vessel. The master consented to a generalized search but professed that he had neither the authority to authorize a search of the padlocked cargo containers nor the keys to access them. Coast Guard personnel searched all other areas of the vessel, finding neither contraband, weapons, nor keys to the padlocks. They did note, however, the peculiarity of having padlocked containers on such a vessel, as well as the presence of a white powdery substance near the doors of two of the containers.
After returning to the Cushing, the Coast Guard followed the Zedom Sea as it resumed its westward journey, its lights illuminating the cargo deck of the supply vessel. The Cushing then radioed the mainland, requesting a "statement of no objection" from the Panamanian government authorizing a full search of the cargo containers. Relying upon permission received from then-deposed Panamanian president Eric Arturo Delvalle, Coast Guard personnel re-boarded the Zedom Sea, and opened the cargo containers with bolt cutters. As the vessel's crew looked on stoically, the searchers gleefully produced six tons of cocaine from beneath the bags of cement in two of the eight cargo containers. That quantity of drugs, worth approximately 600 million dollars, represents the largest maritime drug seizure in history.
All nine crew members were indicted for possession of cocaine with intent to distribute while on board a vessel subject to the jurisdiction of the United States, a violation of 46 U.S.C.App. Sec. 1903. After the jury returned a verdict convicting all crew members, the trial court denied their motions for acquittal. However, the court reconsidered its ruling after sentencing and entered a judgment of acquittal as to the vessel's cook. The remaining convicted seamen take this appeal. 1
The appellants argue that the trial court improperly decided as a matter of law that the United States had criminal jurisdiction over the vessel rather than submitting the jurisdictional question to the jury. We find no error.
Possession of controlled substance on a vessel "subject to the jurisdiction of the United States" is proscribed by 46 U.S.C.App. Sec. 1903. For the purposes of the statute, such a vessel includes:
(C) a flag vessel registered in a foreign nation where the flag nation has consented or waived objection to the enforcement of United States law by the United States....
The section continues:
Consent or waiver of objection by a foreign nation to the enforcement of United States law by the United States under subparagraph (C) ... of this paragraph may be obtained by radio, telephone, or similar oral or electronic means, and may be proved by certification of the Secretary of State or the Secretary's designee.
Pursuant to this statute, the United States asserted jurisdiction over the vessel under the authority of a statement of no objection (SNO) issued by then-deposed Panamanian president Eric Arturo Delvalle. Although Manuel Noriega had replaced Delvalle with a puppet ruler by the time of the seizure of the Zedom Sea, the American ambassador to Panama testified that the U.S. State Department had declined to diplomatically recognize the new leadership. That fact notwithstanding, the appellants contend the SNO should have been obtained from the Noriega government. Furthermore, they argue that the validity of the SNO was a factual question that should have been submitted to the jury rather than decided by the court as a matter of law.
As both parties concede, the law interpreting section 1903 and its predecessor, section 955a, is in a state of disarray. Compare United States v. Bent-Santana, 774 F.2d 1545, 1548 (11th Cir.1985) () with United States v. Ayarza-Garcia, 819 F.2d 1043 (11th Cir.), cert. denied, 484 U.S. 969, 108 S.Ct. 465, 98 L.Ed.2d 404 (1987) ().
In support of their argument, the appellants rely upon United States v. Aikins, 923 F.2d 650 (9th Cir.1990), a case decided under section 1903. Acknowledging that the fact-versus-law question "has been a matter of debate," Id. at 657, the court concluded:
[w]hen a jurisdictional fact is at issue, the court should determine the existence or not of the fact.... Where the jurisdictional fact is disputed, as it is here, the court should rule only after a full presentation of the evidence.
Id. (citations omitted).
Implicit in the court's holding is the notion that any jurisdictional fact at issue must be one within the authority of the judicial branch to resolve. Unlike other cases, in which the factual dispute was within the reach of the court's constitutional competence, 2 the fact at issue here involved whether Delvalle, the exiled Panamanian leader, had the capacity to issue a valid SNO. The Supreme Court has previously noted that "[w]hat government is to be regarded here as representative of a foreign sovereign state is a political rather than a judicial question, and is to be determined by the political department of the government." Guaranty Trust Co. v. United States, 304 U.S. 126, 137, 58 S.Ct. 785, 791, 82 L.Ed. 1224 (1938). Accordingly, because the ambassador testified that Delvalle was the leader recognized by the U.S. State Department at the time of the vessel's seizure, the trial court correctly determined the jurisdictional reach of the statute without submission of the issue to the jury. 3
In reviewing a challenge to the sufficiency of the evidence, this court must determine whether "a rational trier of fact could have found that the evidence established guilt beyond a reasonable doubt." United States v. Carrasco, 830 F.2d 41, 43 (5th Cir.1987). It is not necessary that the evidence exclude every hypothesis of innocence, and "a jury is free to choose among reasonable constructions of the evidence." United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982). We view all inferences and credibility choices in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).
Conviction for the charged offense requires proof that the appellants knowingly possessed the drugs with the intent to distribute them. United States v. Williams-Hendricks, 805 F.2d 496, 500 (5th Cir.1986). Proof of constructive possession is sufficient; thus any showing that the appellants exercised ownership, dominion, or control over the contraband will suffice. United States v. Hernandez-Palacios, 838 F.2d 1346, 1349 (5th Cir.1988). Furthermore, we have held that distribution includes all acts in furtherance of a sale, including offloading drugs from a mother ship. United States v. Pool, 660 F.2d 547, 561 (5th Cir. Unit B 1981).
Central to the government's case was proof of its theory...
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