United States v. Cabezas-Montano, No. 17-14294

• Decision Date: 30 January 2020
• Docket Number: No. 17-14294
• Citation: 949 F.3d 567
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Trinity Rolando CABEZAS-MONTANO, Adalberto Frickson Palacios-Solis, Hector Leonardo Guagua-Alarcon, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

949 F.3d 567

UNITED STATES of America, Plaintiff-Appellee,

v.Trinity Rolando CABEZAS-MONTANO, Adalberto Frickson Palacios-Solis, Hector Leonardo Guagua-Alarcon, Defendants-Appellants.

No. 17-14294

United States Court of Appeals, Eleventh Circuit.

January 30, 2020

U.S. Attorney Service - Southern District of Florida, Daniel Matzkin, Jonathan Colan, Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, Miami, FL, Robert Benjamin Cornell, U.S. Attorney's Office, Fort Lauderdale, FL, for Plaintiff-Appellee.

Martin Alan Feigenbaum, Martin A. Feigenbaum, Esq., Surfside, FL, for Defendant-Appellant ADALBERTO FRICKSON PALACIOS-SOLIS.

Ricardo Bascuas, University of Miami School of Law, Coral Gables, FL, Juan de Jesus Gonzalez, Juan De Jesus Gonzalez, PA, Miami, FL, for Defendant-Appellant HECTOR LEONARDO GUAGUA-ALARCON.

Stewart Glenn Abrams, Bonnie Phillips-Williams, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, Miami, FL, for Defendant-Appellant TRINITY ROLANDO CABEZAS-MONTANO.

Before ROSENBAUM, TJOFLAT and HULL, Circuit Judges.

HULL, Circuit Judge:

After a jury trial, defendants Trinity Rolando Cabezas-Montano, Hector Leonardo Guagua-Alarcon, and Adalberto Frickson Palacios-Solis appeal their convictions and sentences under the Maritime Drug Law Enforcement Act ("MDLEA"). See 46 U.S.C. §§ 70501 - 70508. They were convicted of conspiracy to possess with intent to distribute over five kilograms of cocaine while on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. § 70506(b), and possession with intent to distribute over five kilograms of cocaine while on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. § 70503(a)(1).

As to their convictions, the defendants, either together or separately, challenge: (1) the constitutionality of the MDLEA; (2) the district court’s determination of MDLEA subject matter jurisdiction; (3) the delay in presentment for a probable cause hearing; (4) the denial of their motion in limine to exclude evidence of post-arrest, pre- Miranda ¹ silence; (5) the sufficiency of the evidence; and (6) the denial of their motions for a mistrial based on the government’s alleged Brady ² violation. As to their sentences, the defendants, either together or separately, challenge: (1) the constitutionality of the denial of safety-valve relief in their MDLEA case; (2) the denial of a minor-role reduction; and (3) the denial of their motions for a downward variance. They also claim the sentencing court committed procedural error and imposed substantively unreasonable sentences.

After careful review of the record and the parties’ briefs, and with the benefit of oral argument, we affirm the defendants’ convictions and sentences. We start by recounting the trial evidence about the defendants’ crimes.³

I. FACTUAL BACKGROUND

A. Coast Guard’s Detection of the Go-Fast Vessel

On the night of October 24, 2016, the U.S. Coast Guard cutter Hamilton was patrolling in the eastern Pacific Ocean at 10 degrees latitude and 91 degrees longitude, which was approximately 200 miles off the coast of Central America, namely Guatemala and El Salvador. During the patrol, around 9:05 p.m., a Coast Guard marine patrol aircraft notified the Hamilton cutter that it had detected a go-fast vessel ("GFV") that was traveling northbound at a high rate of speed and was approximately six nautical miles away from the cutter.⁴

The target GFV was 30-to-35 feet long, had two outboard engines, and was carrying three passengers on board. GFVs, also known as a "Panga" or "Panga-style" vessels, are small vessels designed to cut through the water with less friction so that they can travel at higher speeds. GFVs are low-profile and have a very different shape, style, and speed than a fishing boat.

Drug smugglers commonly use GFVs to transport drugs and travel at night without navigation lights to avoid detection.

After being notified of the GFV, the Hamilton crew met for a briefing in the cutter’s Combat Information Center ("CIC"). The CIC was equipped with a Forward-Looking Infrared Radar ("FLIR") system and various other radars that enabled the Coast Guard to monitor nighttime vessel activity on the high seas. The FLIR system uses heat-based infrared detection to create a video in black (the objects emitting more heat) and white (the objects emitting less heat) depicting the activities or objects being monitored. The FLIR system allowed the Coast Guard to see vessels, passengers, and any jettisoned objects at night.

Generally speaking, Coast Guard members in the CIC stay in contact with all other Hamilton units throughout interdictions and keep them updated on the course and distance of target vessels. The three Hamilton units included (1) a helicopter, (2) an over-the-horizon ("OTH") vessel, and (3) a long-range interceptor ("LRI") vessel. The helicopter also was equipped with a FLIR monitoring system that recorded its observations on video too. The OTH vessel was equipped with search lights, radar, and weapons. The crew on these Hamilton units were equipped with and used night-vision goggles.

After the CIC briefing, the Hamilton crew decided to dispatch all three units—the helicopter, OTH vessel, and LRI vessel—to intercept the target GFV. At launch time, it was very dark due to lack of moonlight, but the weather and sea conditions were calm and without wind.

B. Helicopter Chase

At 9:34 p.m., the Hamilton helicopter launched. At 9:45 p.m., the helicopter located the 30-to-35-foot GFV with two outboard engines that was carrying three individuals. The GFV appeared to be "dead-in-water" but started moving again.⁵ The helicopter moved alongside the GFV. At this point, the GFV and the helicopter still were approximately 200 to 250 nautical miles from the coast of Central America. The CIC on the Hamilton cutter eventually picked up the GFV on its FLIR and other radar systems and continuously monitored it.

While pursuing the GFV, the Hamilton helicopter crew obtained a statement of no objection from Coast Guard headquarters, entitling it to request that the vessel stop and to fire warning and disabling shots if necessary. The helicopter crew broadcasted orders in English and Spanish for the GFV to stop, ordered the passengers to put their hands up and move to the front of the vessel, and flashed its blue law enforcement lights and Coast Guard emblem. The GFV disregarded the instructions and continued moving in an evasive, zig-zag path. This prompted the helicopter crew to continue its chase and to fire three rounds of warning shots. Every fifth round that the helicopter crew fired contained a "tracer round," a large and easily-visible red glow that detached from the projectile before entering the water. The GFV continued to disobey the orders.

As the helicopter continued to chase the GFV, its crew saw the GFV’s passengers jettisoning packages overboard. One package remained attached to the vessel and dragged behind in the water. The helicopter crew marked the location where the packages were jettisoned with chemical lights and relayed the coordinate positions to the Hamilton cutter. The helicopter FLIR video showed that the GFV’s left side engine was cooler than the right side engine.

The GFV slowed down and came to a stop, at which point the passengers appeared to crank the engines to restart them. The GFV began moving again. Because the GFV passengers were next to the vessel’s engines, the helicopter crew fired two rounds of warning shots near the aft of the GFV to get them to move toward the front of the vessel. The passengers complied, but the helicopter crew was unable to fire disabling shots at the GFV’s engines without endangering the passengers. At this point, the helicopter was running low on fuel, so it communicated to the Hamilton cutter the GFV’s last-known coordinate position and headed back to the cutter to refuel. Around 11:00 p.m., the helicopter crew lost its visual of the GFV and landed back at the Hamilton cutter at 11:05 p.m.

C. OTH and LRI Vessel Searches and Recovery of a Cocaine Bale

Around 10:00 p.m., the OTH vessel launched. After the helicopter headed back to the Hamilton cutter, the OTH vessel spent 20 to 30 minutes searching the area that the helicopter crew indicated was the last known coordinate location of the GFV but was unsuccessful. The Hamilton cutter instructed the OTH crew to suspend its search for the GFV and instead head to the scene of the jettisoned packages. The OTH crew found the chemical lights left by the helicopter crew and searched the area but found no packages.

Approximately 31 minutes after the helicopter crew lost its visual of the GFV, the Hamilton cutter reacquired the GFV’s location using its CIC’s FLIR and other radar systems. The Hamilton cutter crew observed on the CIC’s FLIR system that the GFV was dead-in-water and that one of the passengers was flailing and frantically trying to fix the engine. The cutter crew informed the OTH crew that it had reacquired sight of the GFV and redirected the OTH vessel to that coordinate position. While en route to the specified location, the OTH crew recovered a 20-kilogram cocaine bale floating in the water along with a buoy tied to a black line. The OTH crew relayed to the Hamilton cutter the coordinate location of the recovered cocaine bale and continued its search for the GFV.

While the OTH crew was recovering the bale, the LRI vessel launched around 11:33 to 11:43 p.m. Soon thereafter, the Hamilton cutter instructed the OTH crew to resume its search for the jettisoned packages because the LRI vessel had reached the GFV and was preparing to approach. The Hamilton cutter crew observed the LRI’s approach of the GFV on the CIC’s FLIR system. Meanwhile, the OTH crew searched for about two hours but recovered no additional bales. Samples of the recovered bale’s contents, which consisted of 20 individually wrapped 1-kilogram...