U.S. v. Romero
| Decision Date | 10 June 1994 |
| Docket Number | GALINDO-FORBE,D,Nos. 93-2187,s. 93-2187 |
| Parties | 40 Fed. R. Evid. Serv. 951 UNITED STATES, Appellee, v. Freddy ROMERO, Defendant-Appellant. UNITED STATES, Appellee, v. Armando TEJEDOR, Defendant-Appellant. UNITED STATES, Appellee, v. Gabriel CURVELO, Defendant-Appellant. UNITED STATES, Appellee, v. Oranieefendant-Appellant. to 93-2190. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Jorge L. Arroyo, by Appointment of the Court, for appellant Freddy Romero.
Jose A. Leon-Landrau, by Appointment of the Court, for appellant Armando Tejedor.
Carlos A. Vazquez-Alvarez, Asst. Federal Public Defender, with whom Benicio Sanchez-Rivera, Federal Public Defender, was on brief, for appellant Gabriel Curvelo.
Luis A. Medina-Torres, by Appointment of the Court, for appellant Oranie Galindo-Forbes.
Richard A. Friedman, Atty., Appellate Section, Crim. Div., U.S. Dept. of Justice, with whom Guillermo Gil, U.S. Atty., Rosa E. Rodriguez-Valez, and Antonio R. Bazan, Asst. U.S. Attys., were on brief, for appellee.
Before TORRUELLA, CYR and BOUDIN, Circuit Judges.
In this case, defendants-appellants Freddy Romero, Gabriel Curvelo, Armando Tejedor, and Oranie Galindo Forbes appeal their convictions for possessing, while aboard a vessel subject to the jurisdiction of the United States, cocaine intended for distribution in violation of 46 U.S.C.App. Sec. 1903(a). The defendants challenge the sufficiency of the evidence and the trial court's jury instructions. Defendant Romero challenges his sentence. We affirm.
On the morning of March 29, 1993, a U.S. Navy surveillance aircraft, a P3 Orion (the "P3"), on routine narcotics-interdiction patrol, received a signal on its radar indicating the presence of a vessel in international waters south of the Dominican Republic. The radar indicated that the area was free of other surface vessels within a hundred-mile radius. Crewmen aboard the aircraft subsequently spotted the boat through observer windows from a distance of five miles. Two crewmen, pilot Jody Bridges and aft observer William Pikul, recognized the boat as a low-profile vessel of the type used to smuggle narcotics.
The P3 circled and proceeded to make several passes over the boat, which, at that point, abruptly turned around and accelerated in the opposite direction. During one pass, the crewmen observed two people on the vessel's deck tossing bales overboard. Subsequently, small arms tracer rounds came streaming toward the plane. Throughout this time, the boat was moving at high speed in an evasive, zig-zag course. The aircraft continued to trail the vessel until, six hours later, the boat ran out of fuel and three of its crew were observed attempting to rig a blue canvas tarp to act as a sail.
Throughout the surveillance, the crew of the aircraft maintained the boat in sight through binoculars. The P3 also had sophisticated surveillance equipment and cameras, and over 200 pictures were taken showing the boat and the bales in the water. None of the photographs showed bales on the boat, individuals on the boat, or bales being thrown overboard. The P3 also dropped special buoys to mark the location of the bales after they were thrown overboard.
While the occupants of the boat were rigging their sail, a helicopter from the USS TAYLOR, a Navy frigate, arrived and kept the boat under surveillance until the TAYLOR itself reached the boat at dusk. The law-enforcement officer aboard the TAYLOR, Coast Guard Lieutenant Francisco Alterie, hailed the boat by megaphone and asked for its nationality because no national identification was evident. Defendant Forbes, who subsequently appeared to be in charge, told Alterie that the boat was Colombian.
Alterie requested by radio that his superiors obtain a "statement of no objection," which is a statement from the United States State Department indicating that the country of registry, in this case Colombia, granted American officials permission to enforce United States laws aboard that vessel. After obtaining permission from Colombian officials to board the defendants' boat for purposes of determining the vessel's nationality and conducting a basic inspection, the State Department authorized Alterie to board the defendants' vessel.
Once on board, Alterie and his boarding party found, in addition to the four defendants themselves, state-of-the-art radar and communications equipment, ropes crossing the cargo area, and a strong smell of gasoline and other indications that the cargo area had been washed down with gasoline. No drugs or other contraband were found on the boat or on the defendants. The boat did not have any identification or registration papers. Upon being advised of this fact, the Colombian government "refuted the claim of Colombian registry" for the vessel.
Meanwhile, twenty-one bales were recovered from the Caribbean during the afternoon of March 30 by the Coast Guard Cutter ATTU, approximately 15 nautical miles from the location where the P3 first spotted the defendants' vessel 27-28 hours earlier. The bales contained numerous two-kilogram packages of cocaine. The Coast Guard had notified the ATTU of the bales on the previous afternoon (March 29) and the ATTU had reached the general location of the drop and the buoys left by the P3 at approximately midnight. The ATTU was unable to find the bales during the night, but it did find them the next day after a Coast Guard patrol aircraft located them 15 miles away.
After retrieving the bales of cocaine, the ATTU rendezvoused with, and then relieved, the TAYLOR at the site of the defendants' vessel. On March 31, the State Department authorized defendants' arrest. Coast Guard officials on the ATTU then arrested the defendants and brought them and their boat to the port of Mayaguez, Puerto Rico. Officials with a mobile laboratory conducted tests to determine if drugs were present on the defendants and on the boat at that time. Both the defendants and their vessel tested positive for traces of cocaine.
The defendants challenge the sufficiency of the evidence supporting their convictions. In particular, they claim the government did not establish that they ever possessed the cocaine that the Coast Guard recovered from the ocean and that the government later submitted as evidence at trial. One of the elements of an offense under 46 U.S.C.App. Sec. 1903 is that the defendants knowingly or intentionally possessed a controlled substance. United States v. Piedrahita-Santiago, 931 F.2d 127, 130 (1st Cir.1991).
In reviewing whether the evidence is sufficient to establish that the defendants possessed the bales of cocaine, we must consider all the evidence in the record as a whole, including all reasonable inferences therefrom, in the light most favorable to the verdict, with a view to whether a rational trier of fact could have found the element of possession beyond a reasonable doubt. United States v. O'Brien, 14 F.3d 703, 706 (1st Cir.1994); United States v. Matiz, 14 F.3d 79, 82 (1st Cir.1994); United States v. Sepulveda, 15 F.3d 1161, 1173 (1st Cir.1993). We must also defer to the jury with respect to all credibility determinations. O'Brien, 14 F.3d at 706.
The government's evidence of possession was ample, as it supported a reasonable inference that the bales observed being thrown overboard from defendants' boat were the same bales later recovered by the Coast Guard from the water in the vicinity where the boat had been seen. Crewmen from the P3 testified that they saw people aboard the defendants' boat throw bales from the vessel overboard into the water. Crewman Pikul testified that the bales presented in evidence at trial were the same ones he witnessed being tossed overboard. Photographs from the P3 showed the same bales in the water that were present in the courtroom. Both Pikul and the P3's pilot, Bridges, testified that the defendants' boat tried to evade the P3 and even fired upon the surveillance aircraft. Both also testified that the boat was of the type commonly used for drug smuggling.
Lieutenant Alterie and his boarding party found lines crossing the cargo area of defendants' boat indicating that something had been tied there. They also found that the cargo area of the defendants' boat had been washed down with gasoline, a tactic which several government witnesses explained was a common technique among narcotics smugglers to eradicate traces of contraband substances. Thomas Friend, a Navy helicopter pilot and search and rescue officer, testified that the bales of cocaine were found the following day within a predictable area of where one would expect them to be had they come from defendants' boat. Friend based this conclusion on a consideration of the wind conditions, water currents, and elapsed time. The radar on the P3 and on the TAYLOR's helicopter showed that no other boats were within a 100-mile radius of defendants' boat. This evidence was sufficient, even without any consideration of the fact that defendants and their boat tested positive for cocaine after they were brought to the port of Mayaguez, to establish that defendants knowingly possessed cocaine in violation of 46 U.S.C.App. Sec. 1903.
Defendants argue that (1) the eyewitness accounts of the P3's crewmen that defendants threw the bales overboard should not be credited because the aircraft failed to take any pictures of the event, and because the P3's principal observer misidentified the color of the recovered bales; (2) the testimony concerning the likelihood that the bales recovered from the ocean came from defendants' boat in light of ocean and weather conditions was inherently unreliable; and (3) the tests showing traces of cocaine on the defendants and their boat were inaccurate due to unreliable equipment and careless procedures allowing for contamination of the test subjects.
Defendants' first claim is that...
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