U.S. v. Ramirez, No. 04-12040. Non-Argument Calendar.

• Decision Date: 30 September 2005
• Docket Number: No. 04-12040. Non-Argument Calendar.
• Citation: 426 F.3d 1344
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel Francisco RAMIREZ, Leonel Gaspar Angulo-Quinones, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1344

426 F.3d 1344

UNITED STATES of America, Plaintiff-Appellee, v. Daniel Francisco RAMIREZ, Leonel Gaspar Angulo-Quinones, Defendants-Appellants.

No. 04-12040. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

September 30, 2005.

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Manuel Gonzalez, Jr. (Court-Appointed), Kathleen, M. Williams and Stewart Glenn Abrams, Fed. Pub. Defenders, Miami, FL, Timothy Cone (Fed. Pub. Def.), Fed. Pub. Defender's Office, Ft. Lauderdale, FL, for Defendants-Appellants.

Laura Thomas Rivero, Anne R. Schultz, Asst, U.S. Atty., Miami, FL, for U.S.

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

Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:

Daniel Francisco Ramirez and Leonel G. Angulo-Quinones appeal their convictions and sentences for conspiracy to possess with intent to distribute five or more kilograms of cocaine, in violation of 46 U.S.C. §§ 1903(a),(g),(j), and 21 U.S.C. § 960(b)(1)(B), and possession with intent to distribute five or more kilograms of cocaine while onboard a vessel subject to United States jurisdiction, in violation of 46 U.S.C.App. §§ 1903(a), (g), 21 U.S.C. § 960(b)(1)(B), and 18 U.S.C. § 2. We AFFIRM their convictions, VACATE their sentences, and REMAND for resentencing.

I. BACKGROUND

On May 30, 2003, the United States Navy Frigate McINERNY intercepted a stranded, flagless, "go-fast" boat off the coast of Colombia. The frigate's crew observed five people, Ramirez, Angulo-Quinones, and their three co-defendants, Rafael Lopez, Omar Riascos, and Elias Santiestevan ("the defendants") on the go-fast boat, apparently trying to start the engine. The crew of the Navy frigate directed the defendants by loudspeaker to raise their hands in the air, and they complied. As a Navy boarding team approached the go-fast boat, four of the defendants, including Angulo-Quinones and Ramirez, jumped overboard into the water. Riascos remained onboard and set fire to the go-fast boat before jumping into the water himself. The crew of the frigate observed numerous packages in the center of the vessel and recovered packages floating near the sinking go-fast boat.

On May 31, 2003, the defendants and cocaine packages were transferred by the United States Coast Guard to the naval base at Guantanamo Bay, Cuba. ION scans of each of the defendants indicated the presence of cocaine residue. These packages of cocaine later were determined to contain 428.1 kilograms of cocaine, with an estimated street value of well over $8,000,000.

The defendants were charged in a two-count indictment with conspiracy to possess with intent to distribute five or more kilograms of cocaine while onboard a vessel subject to United States jurisdiction, in violation of 46 U.S.C.App. §§ 1903(a),(g),(j), and 21 U.S.C. § 960(b)(1)(B) ("Count 1"). They also were charged with possession with intent to distribute five or more kilograms of cocaine while onboard a vessel subject to United States jurisdiction, in violation of 46 U.S.C. § 1903(a),(g),(j), and 21 U.S.C. § 960(b)(1)(B) ("Counter 1"). They also were charged with possession with intent to distribute five or more kilograms of cocaine while onboard a vessel subject to United States jurisdiction, in violation of 46 U.S.C.App. §§ 1903(a), (g), 21 U.S.C. § 2 ("Count 2"). Ramirez and Angulo-Quinones pled not guilty.¹

Prior to trial, the government moved to allow the admission at trial of facts surrounding Angulo-Quinones's prior arrest on drug trafficking charges, and acknowledged that Angulo-Quinones was acquitted of the charges. Specifically, the government sought to introduce evidence that, in 2000, Angulo-Quinones was arrested after being found by the Coast Guard Cutter THETIS in a stranded, flagless, go-fast boat off the coast of Colombia with 2400 kilograms of cocaine floating in the water near the vessel. The government sought to introduce the evidence in order to show Angulo-Quinones's criminal intent and knowledge, planning, preparation, and absence of accident or mistake. Angulo-Quinones filed a motion in limine, requesting that the evidence of his prior arrest be excluded. The district judge reserved ruling on Angulo-Quinones's motion.

Ramirez filed a motion for severance, on the ground that a joint trial would prevent the jury from making a reliable judgment about his guilt or innocence because of the significant disparity in the government's evidence against Angulo-Quinones vis-a-vis Ramirez, and the risk of undue, spillover prejudice from the intended introduction of evidence of Angulo-Quinones's prior, similar acts. Ramirez argued that unfair prejudice would arise from evidence that Angulo-Quinones was arrested in 2000 in connection with an incident involving a stranded, flagless, go-fast boat off the coast of Colombia with four other crewmen and a substantial amount of cocaine floating in the water. The district judge denied Ramirez's motion. The judge ultimately allowed the government to question Angulo-Quinones during cross-examination regarding the facts surrounding his 2000 arrest. The judge then instructed the jury that the information with respect to the event in 2000 could not be considered concerning Ramirez and could not be considered as evidence of Angulo-Quinones's guilt in the charged offense.

Angulo-Quinones testified that he had been a fisherman his entire life. He was traveling by bus to another city to look for work, when a group of uniformed men stopped the bus and searched its passengers. The uniformed men took Angulo-Quinones's documentation identifying him as the captain of a fishing vessel and forced him and nine other men into a truck. Angulo-Quinones's captors held him under armed guard in a house for two weeks and ordered him to make a trip for them. When Angulo-Quinones refused his captors' demand, they beat him and threatened to kill his daughters until he acquiesced. His captors took him to a beach and ordered him to take a boat to a particular Colombian island, where he was to contact an individual named "Peso" by radio for final instructions on delivering the boat to Peso. R5 at 196-98. Angulo-Quinones was brought to a go-fast boat with a crew of four men that he did not know. He was the captain and operated the boat. Id. at 208, 215-17. Angulo-Quinones testified that he alerted the others to the presence of the United States Coast Guard and that he did not know any of the other crewmen on the vessel.

The government asked on cross-examination whether Angulo-Quinones had been stopped on a go-fast boat in 2000 and taken aboard the Coast Guard Cutter THETIS. He responded affirmatively. R5 at 225-26. When asked whether, on that same day, codefendant Santiestevan was taken aboard the Coast Guard Cutter THETIS and transported along with Angulo-Quinones to Guantanamo Bay, Cuba, Angulo-Quinones responded that he did not know. On re-direct examination, Angulo-Quinones testified that, in 2000, Santiestevan was not on his own go-fast boat, and that he never learned the names of the others picked up by the Coast Guard. Angulo-Quinones agreed that authorities found 2,400 pounds of cocaine floating near his boat on that occasion. R4 at 44. On redirect examination, Angulo-Quinones stated that there were three boats in the area at the time of his arrest in 2000, that no cocaine was found on his boat, and that he had been acquitted of all charges.

Ramirez testified that he had been a fisherman for thirty-four years, was a member of the Caribena Federation of Fishermen, and had a valid fisherman's license. He was traveling by bus to another city to look for work, when a group of heavily armed military personnel stopped the bus in a jungle area prone to guerilla activity. The armed individuals took Ramirez's nationality card and fisherman's documentation, and forced him into a jeep. Ramirez testified that his captors had held him in a house in the mountains for four days, before taking him to a beach, forcing him onto a boat, threatening him, and instructing him to help transport the boat. R7 at 258-60. Ramirez drove the go-fast boat for three to six hours. He testified that Angulo-Quinones told him in which direction to drive using a compass. Id. at 281. Ramirez further testified that Angulo-Quinones was giving directions to the four people on the boat. Id. at 278. Ramirez testified that he changed a fuel tank at Angulo-Quinones's instruction. Id. at 280.

Ramirez testified initially that he jumped into the water because the boat was on fire. The government then introduced a videotape depicting Ramirez jumping into the water when there was no fire on the boat. The government asked Ramirez if he had been detained with codefendant Riascos who had pled guilty, thus informing the jury of Riascos's guilty plea in the process. R6 at 45. Ramirez's counsel had not finished enumerating all of his objections to the question, including leading, when the judge sustained it. Id.

At the close of the evidence, the district judge instructed the jury that "anything the lawyers say is not evidence in the case." R7 at 348. The court also instructed the jury that evidence of acts by Angulo-Quinones committed on another occasion and similar to the acts charged in the indictment must not be considered in deciding if Angulo-Quinones committed the acts charged in the indictment, but only to determine Angulo-Quinones's state of mind, intent, plan, preparation, accident or mistake. Id. at 350-51.

During deliberation, the jury sent the judge a written question: "Is this the fishing license a copy or original of the document taken off Ramirez at the time of the incident?" R1-87. The judge returned a written reply: "Your question has no bearing on, or connection with, any issue in this case." Id. The jury convicted Angulo-Quinones and Ramirez on both counts. Ramirez subsequently filed a motion for new trial and a motion for judgment of acquittal. The...