U.S. v. Vilches-Navarrete

• Decision Date: 10 April 2008
• Docket Number: No. 06-1942.,06-1942.
• Parties: UNITED STATES of America, Appellee, v. Luis Segundo VILCHES-NAVARRETE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

523 F.3d 1

UNITED STATES of America, Appellee, v. Luis Segundo VILCHES-NAVARRETE, Defendant, Appellant.

No. 06-1942.

United States Court of Appeals, First Circuit.

Heard September 13, 2007.

Decided April 10, 2008.

J. Michael McGuinness, with whom The McGuinness Law Firm was on brief, for appellant.

Mariana E. Bauzá-Almonte, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before TORRUELLA, LYNCH, and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge, opinion of the court except as to Part II(A); dissenting in Part II(A).¹

Appellant Luis Segundo Vilches-Navarrete ("Vilches") was convicted of: (1) possession with intent to distribute five kilograms or more of cocaine, in violation of the Maritime Drug Law Enforcement Act ("MDLEA"), 46 U.S.C. § 70503;² and (2) conspiracy to possess with intent to distribute more than five kilograms of cocaine, in violation of 46 U.S.C. § 70506(b) on multiple grounds. Vilches was apprehended for trafficking drugs in international waters by the United States Coast Guard ("USCG"). On appeal, he makes numerous arguments. He argues that the MDLEA is unconstitutional and that the district court lacked jurisdiction. He also challenges the district court's refusal to suppress evidence, to grant a motion to dismiss, as well as the sufficiency of the evidence upon which he was convicted. He claims that his sentence was unreasonable and that the numerous errors in the case prejudiced his right to a fair trial. After careful consideration, we affirm his conviction and the sentence imposed by the district court.

I. Background³

On January 31, 2005, during a routine drug patrol in the eastern Caribbean Sea, USCG Lieutenant Adam Nolen Berkley, whose boarding team was deployed on the British Royal Fleet's Auxiliary Ship, the Wave Ruler, received information from a maritime patrol aircraft about a vessel of interest in international waters. A cargo vessel heading north had smaller vessels coming alongside it, which raised the suspicion of the USCG. The USCG continued to monitor the vessel.

The next morning, using the British ship's helicopter, the USCG identified the vessel, the Babouth, which was flying the Honduran flag. As the USCG approached and performed a visual inspection, it made radio contact with the crew. Berkley was suspicious of the answers to some of his questions. He noted that the vessel had rub marks along the side; furthermore, it was rocking slowly back and forth. Berkley knew this to be a sign of a very heavy load. Additionally, the Babouth had an unusually large number of antennae, indicative of a great deal of electronic equipment on board for a vessel of this nature. Based on these factors, Berkley believed he had reasonable suspicion to approach the vessel. As he approached the Babouth, he raised the USCG flag, converting the Wave Ruler into a law enforcement vessel. Berkley also faxed a report to the officer on duty at the USCG, Southern District, and followed up with a phone call requesting that the USCG contact the Honduran government for permission to board and search the Babouth. Thereafter, the Honduran government granted permission, first verbally, and later followed by an official, written communication.

The Babouth was fifty nautical miles west of Grenada, traveling in a north, northwesterly direction towards Puerto Rico and St. Croix when the USCG intercepted it. This area is a known drug trafficking area. Petty Officer Michael Christopher Acevedo, who was familiar with the area and its history of drug trafficking, boarded the Babouth with the permission of both the Government of Honduras and Vilches, its captain. Acevedo remained on the vessel for the duration of the search and was the officer in charge.

Upon inspection, Berkley noticed that the Babouth had too much free board. He also noticed that the vessel was rusty and looked to be in poor repair. The Babouth also had drums commonly used by drug traffickers, including a 500-gallon fuel container that smelled strongly of, and contained what looked like, gasoline. Vilches told the officers that it was a septic tank for the toilets. The officers inspected the tank, and observed that it did not lead to a toilet but to the back of the boat and over the side.

Acevedo asked Vilches for the registration documents and manifest of the Babouth. Vilches turned over a briefcase with documents for the ship, and provided Acevedo with an affidavit prepared in Trinidad stating that the registration had been lost. Acevedo, however, found the vessel's registration in Vilches's briefcase; it had expired on December 14, 2004.

After a safety inspection and a search for weapons, the officers looked for indicators that the vessel was being utilized for smuggling contraband. They found freshly painted areas, spilled concrete, a bag of concrete mix, and fresh welds, all of which are indicators of hidden compartments. The sweep team also found other items which raised their suspicion about the contents of the vessel and the real purpose for which it was being used. Berkley and Acevedo found communication devices at the ship's bridge, similar to those Acevedo had seen in other drug seizure cases at sea.

The Babouth contained navigational charts without plot marks and a global positioning system ("GPS") that was not being used. Vilches claimed that he did not use them because he was an experienced mariner. Despite this assertion, while on board the Babouth, Acevedo noted that Vilches did utilize the charts and the GPS.

On the third day, another inspection team came to complete a space-accountability inspection. The concrete blocks on board, which Vilches had described as extremely sturdy, fell apart as the officers tried to move them. The inspection team found that the bill of lading for the ship's cargo conflicted with the ship's invoice. Vilches could not provide a satisfactory explanation for the discrepancy even though the ship's forms carried his seal and signature. In addition, Acevedo asked Vilches why they had been traveling so slowly since a cargo vessel would want to deliver its cargo quickly. Vilches blamed the slowness of the vessel on engine problems. He claimed that there was a hydraulic leak in the jacket of the water pump. Acevedo, a qualified mechanic, inspected the engine and found no hydraulic lines used for the jacket of the water pump.

By February 5, 2005, the Babouth was in U.S. waters, and a task force boarded the vessel and continued the search. Vilches consented to the search. For safety reasons, the vessel was taken to the USCG's station in San Juan, Puerto Rico. On February 7, 2005, while still searching the Babouth at the port, one of the Babouth's crew members, Luis Fernando Piedrahita-Calle ("Piedrahita"), communicated by note that he wanted to speak to the DEA.

Piedrahita met with the officers and told them where drugs were hidden and how the plan to smuggle the drugs was executed. Agents reboarded the Babouth and went to the area identified by Piedrahita. Vilches's attitude, which had been cooperative, changed once the agents returned after receiving the note from Piedrahita. As the agents searched the back part of the vessel, Vilches became assertive and questioned the agents about their search. Following Piedrahita's instructions, the agents found a well-hidden hatch under the linoleum floor. Under about six to ten inches of sand, sawdust, and ammonia, the officers found a bolted manhole cover. Inside the manhole, they found several white burlap sacks which tested positive for cocaine. The agents recovered thirty-five bales of cocaine, weighing approximately 950 kilograms.⁴ Earlier, a canine had detected a narcotic odor in the area later identified by Piedrahita.

A. Indictment and Trial

After the USCG found the drugs on the boat, Vilches was arrested and charged with possession with the intent to distribute under the § 70503 of the MDLEA and with conspiracy to possess with intent to distribute under § 70506(b). On July 26, 2005, Vilches joined a co-defendant's motions to suppress the evidence and dismiss the indictment. The district court denied the motions.

Mardonio Chávez-Senti ("Chávez"), one of Vilches's co-defendants, pled guilty and testified at trial on behalf of the Government. He provided details of the conspiracy and of the day that the Babouth was intercepted by the USCG.

According to his testimony, Chávez, a naval mechanical engineer, met with Pedro Valleadares, Antonio Ruiz, Aldo Lara, and José Sandoval, and agreed to participate in the drug trafficking venture for $30,000. He testified that Vilches joined them in Haiti to help prepare for the drug run; the Babouth left Haiti for Tortola to pick up drugs.

Chávez recounted that at around midnight on January 31, 2005, Vilches called him and told him that they were at the prearranged point for the drug pick-up, but the boat bringing the drugs had not arrived. About an hour later, a motorboat, which Vilches was in contact with by radio, came up to the hull of the Babouth and people on the boat passed the bales of drugs up to the crew. The entire crew, with the exception of Vilches, who was piloting the vessel, participated in loading the drugs. A total of thirty-five bales were loaded. The motorboat then left. Chávez testified that the crew hid the bales in an empty water tank under the floor of the Babouth. The crew then informed Vilches that the job was complete. Vilches continued sailing, but was soon thereafter intercepted by the USCG.

Vilches was the only defense witness. He admitted being the captain of the Babouth, but denied any knowledge of the drugs on board. Vilches denied making any satellite phone calls and denied any knowledge of a boat coming alongside the Babouth. He claimed that there was no discrepancy as to the number of pallets, despite...