U.S. v. Steuben, s. 86-1542

• Decision Date: 02 May 1988
• Docket Number: Nos. 86-1542,s. 86-1542
• Citation: 850 F.2d 859
• Parties: UNITED STATES of America, Appellee, v. Robert STEUBEN, Defendant, Appellant. UNITED STATES of America, Appellee, v. Guillermo CARO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Edilberto SALAZAR, Defendant, Appellant. UNITED STATES of America, Appellee, v. Derrick NEIRO, a/k/a Derrick Jovan Kreyen, Defendant, Appellant. to 86-1545. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 859

850 F.2d 859

UNITED STATES of America, Appellee, v. Robert STEUBEN, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Guillermo CARO, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Edilberto SALAZAR, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Derrick NEIRO, a/k/a Derrick Jovan Kreyen, Defendant, Appellant.

Nos. 86-1542 to 86-1545.

United States Court of Appeals First Circuit.

Heard May 2, 1988.

Decided July 11, 1988.

Benicio Sanchez Rivera, San Juan, P.R., by Appointment of the Court, for defendant, appellant Robert Steuben.

Jose R. Aguayo, Hato Rey, P.R., by Appointment of the Court, for defendant, appellant Guillermo Caro.

Robert J. Sicilia, Santurce, P.R., by Appointment of the Court, for defendant, appellant Edilberto Salazar.

Benjamin Hiller, by Appointment of the Court, with whom Pressman, Hiller & Kruskal, Cambridge, Mass., was on brief for defendant, appellant Derrick Neiro.

Jorge E. Vega-Pancheco, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., and Luis A. Plaza, Asst. U.S. Atty., Criminal Div., San Juan, P.R., were on brief, for appellee.

Before CAMPBELL, Chief Judge, COFFIN and BREYER, Circuit Judges.

COFFIN, Circuit Judge.

Defendants Robert Steuben, Derrick Neiro, Guillermo Caro, and Edilberto Salazar were convicted, after a jury trial, on one We find this to be a close case as to the sufficiency of the evidence. We conclude that the evidence supporting the convictions of Steuben, Neiro, and Caro is sufficient but that the evidence as to Salazar's involvement is insufficient. Since the alleged errors of the district court separately asserted by Steuben and Salazar were not preserved for our review, and the alleged errors are not "plain," see United States v. Williams, 809 F.2d 75, 82 (1st Cir.1986), we do not address them.

count of aiding and abetting the possession of marijuana with intent to distribute, and one count of aiding and abetting the possession of marijuana with intent to import it into the United States. All defendants appeal their convictions on the ground that the government failed to present sufficient evidence for the jury to find them guilty beyond a reasonable doubt on each count. Defendants Steuben and Salazar also contend that the district court committed certain errors that deprived them of fair trials.

FACTS

On October 18, 1985, at a location approximately 145 miles northwest of the Guajira Penninsula, Colombia, the United States Coast Guard Cutter Unimak approached the tugboat Zeus III, which was towing a barge with a cable about 600 to 700 feet in length. The tug and the barge were not underway. The Coast Guard made radio contact with Zeus III and spoke with defendant Steuben, a German national, who identified himself as the master and captain of the vessel.

Steuben, speaking English, informed the Coast Guard that Zeus III was registered in Panama; that the crewmen were Cuban, Colombian, Antiguan, Haitian, and West German; that their "last port of call" was Bonaire, an island off the coast of Venezuela, which they had left on October 14th; and that their "next port of call" was Aruba. Steuben told the Coast Guard that the purpose of the voyage was to deliver a dredge barge. He said that they had been "in the water" for four days due to a "hot bearing" or "oil clog."

The Coast Guard asked Steuben if he was in need of assistance, and he replied that he did not need assistance because he had on board a mechanic who could fix the engine. Steuben asked the Coast Guard if they could tell him his exact position. They replied that they could not do so on the radio. The Coast Guard requested permission to board Zeus III for the purpose of providing Steuben with his exact position and checking documentation. Steuben granted the Coast Guard permission to board.

Upon boarding the vessel, the Coast Guard proceeded with the document check and questioned Steuben further about the crew members, the ship's country of registration, and the nature and purpose of the voyage. Steuben repeated the same answers regarding the nationalities of the crew members, the ship's country of registration, and the purpose of the voyage. In contrast to what he had said over the radio, however, Steuben told the boarding officers that his last port of call was Cartagena, Colombia; that they had left Cartagena on October 8th; and that his next port of call was Bonaire. When questioned about the contents of the barge, Steuben replied that it was empty, and that he was simply transporting the barge from Cartagena to Bonaire. Steuben supplied the Coast Guard with documents indicating that Zeus III had departed Cartagena on October 8, 1985 and that the vessel was sailing under the flag of Panama. He also presented to the Coast Guard a document, issued in Cartagena, listing the names of the crew. Although the number of crew listed corresponded to the number on board Zeus III, three names on the list were inaccurate. Defendant Neiro was not on the crew list, nor were two co-defendants, Perez and Rodelo, who are not before us in this appeal.

Boarding officers also spoke with defendant Neiro, the only other English-speaking crew member, about the nature of the voyage. Neiro explained that they had been at sea for four days, and had been drifting for two days.

The Coast Guard then inspected the engine room of Zeus III. With the assistance The boarding officers next obtained permission to board the barge. They observed that it was riding low in the water and showing no navigation lights. Upon boarding the barge, the Coast Guard officers observed that there was nothing on top of it except some boards in the middle held down by angle irons, pieces of iron bolted to the deck. They took off one of the angle irons and spread the boards out. One officer found a small piece of green leafy matter between two of the boards. Searching between the boards, the officers were able to obtain a fistful of the leafy substance. The officers conducted a field test of the substance; it tested positively for marijuana. They then informed Steuben that they had found marijuana on board the barge, and with his permission, they remained on board Zeus III through the evening.

of defendant Neiro, who served as translator, defendant Caro, the ship's mechanic, showed the officers around the engine room. They inspected holds by unbolting access covers. Caro showed the officers the faulty engine bearing that had caused the engine trouble. The officers inspected two empty fuel oil tanks, but did not check to see how much fuel remained in the other tanks.

That night, officers observed Steuben instructing one of the crew members, Perez, to make radio contact with a party called "Puerto Rico, Puerto Rico." Steuben spoke to Perez in "broken Spanish." Steuben told one officer that they were attempting to make contact with "their agent."

The next morning, October 19, 1985, defendant Neiro spoke to the same officer he had spoken to the day before about the nature of the voyage. He was nervous about the fact that marijuana had been found on board the barge. In contrast to his earlier statement that they had been at sea for four days, he said that they had left Cartagena, Colombia nine to ten days earlier. He also said that when they left Cartagena, there was no barge attached to the tug. He repeated his statement that they had been adrift for two days, but added that their next port of call was Bonaire. He stated that he was hired in Cartagena as a seaman aboard Zeus III for $300 and that he knew navigation.

The boarding officers observed that the tug was not well-maintained. They also observed radio and radar antennas on the tug. There was a long antenna attached to a short wave radio that had been used to contact "Puerto Rico, Puerto Rico."

Two Coast Guard officers, accompanied by Steuben, boarded the barge a second time. The officers discovered four access plates under the boards that they had spread apart the previous evening. Upon removing the access covers, which were new and secured with clean, well-greased bolts, the officers discovered a cargo of marijuana stowed in the main hold of the barge. The marijuana was in bales that were well packed and protected with plastic covering. The "street value" of this marijuana was approximately $42 million.

The officers and Steuben returned to the tug with one of the bales of marijuana. Subsequently, the officers observed the crew members using a long distance radio, attempting to contact a party they referred to as "Puerto Rico, Puerto Rico." This time contact was made. Later in the afternoon of October 19, the entire crew was placed under arrest.

At trial, Coast Guard officers who had intercepted Zeus III testified that all crew members were present when radio contact was made with the party, "Puerto Rico, Puerto Rico." The conversations were in Spanish. According to the testimony of one officer, who spoke Spanish, Perez told the party, "We are unable to continue our voyage at this time because of Coast Guard detainment. We are being searched." When the party asked, "What is your status?" Perez replied, "We have been boarded, they are searching us, they are here with us." The party on the radio then said, "Not to worry, we will rendezvous with you later." Defendant Neiro then spoke on the radio and told the party to "tell our families not to worry, we are okay, and please do not tell them what is happening." Perez then spoke a second time, stating Coast Guard Quartermaster Kinney, who was trained in advanced navigation, was the "Seizing Officer" of the Coast Guard team that boarded Zeus III. He was present when officers asked Steuben on October 18 where he thought the tug was located on October 18. Kinney testified that Steuben pointed to a position on a chart that was laid out on the tug's chart table. According to Kinney, that point was approximately 120 miles south-southeast of the position indicated on...