United States v. Stewart-Carrasquillo

• Decision Date: 17 May 2021
• Docket Number: No. 19-1008,No. 18-2247,18-2247
• Citation: 997 F.3d 408
• Parties: UNITED STATES of America, Appellee, v. James STEWART-CARRASQUILLO, Defendant, Appellant. United States of America, Appellee, v. Harold Esquilin-Montañez, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

997 F.3d 408

UNITED STATES of America, Appellee,

v.James STEWART-CARRASQUILLO, Defendant, Appellant.

United States of America, Appellee,

v.Harold Esquilin-Montañez, Defendant, Appellant.

No. 18-2247

No. 19-1008

United States Court of Appeals, First Circuit.

May 17, 2021

María A. Dominguez, with whom McConnell Valdes LLC was on the brief, for appellant Stewart-Carrasquillo.

Jorge L. Gerena-Méndez, for appellant Esquilin-Montañez.

Joshua K. Handell, San Juan, PR, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, were on brief, for appellee.

Before Barron and Selya, Circuit Judges, and Katzmann,^* Judge.

KATZMANN, Judge.

As police intercepted them racing shortly after dawn toward the coast of Ceiba, Puerto Rico, defendants James Stewart-Carrasquillo ("Stewart") and Harold Esquilin-Montañez ("Esquilin") were caught dumping bales of contraband off the side of a turbocharged "fishing" boat loaded, on deck and in plain view, with more than $12 million worth of cocaine (at street value) packed in twenty-five bales with a total weight of more than 1,200 pounds. Not crediting their defense at trial that they were innocent bystanders on a fishing trip where traps were laid into the waters for later retrieval of lobsters, a jury convicted both defendants of various narcotics offenses. They now appeal, claiming that the evidence was insufficient to support the guilty verdicts, that the district court abused its discretion by excluding their homemade video "reenactment," and that prosecutorial misconduct during closing argument warrants reversal. We affirm.

I. BACKGROUND

A. Facts

"Since one of the claims addressed in this opinion is a challenge to the sufficiency of the evidence, we recount the facts in the light most favorable to the verdict," United States v. Paz-Alvarez, 799 F.3d 12, 18 (1st Cir. 2015), deferring some details to our analysis of the issues raised on appeal.

In the very early morning of December 10, 2016, while on a routine patrol off the island's eastern coast, three maritime agents from Puerto Rico's Fuerzas Unidas de Rápida Acción (FURA)¹ -- Sergeant Magaly Diaz-Perez ("Diaz"), Agent Adalberto Del Valle-Jesus ("Del Valle"), and Agent Luis Feliciano -- picked up from the FURA boat's radar an object "moving along a rocky area ... towards the east of the island of Puerto Rico." In Agent Del Valle's experience, this was not "an area where boats typically travel through" because of the "rough" conditions and "the risk that it entails"; in fact, "the yawls that [he had] ... seen [in that area] have basically been all engaged in drug trafficking." Describing his experience with drug-smuggling into Puerto Rico, he recounted that a boat bringing in drugs from the Caribbean meets in the waters with another boat for the transfer of the drugs to that vessel, which then returns to the Puerto Rican coast. Cocaine is packaged in kilos, wrapped, soaked in oil, and shaped into bales. According to Agent Del Valle, the boat-to-boat, drug-at-sea transfer of a multi-gram shipment typically requires three or four persons to move the drugs from one boat to another because a typical bale "containing 20 to 25 bricks of cocaine" would weigh in the "range of 50 to 55 pounds," and must be "move[d] ... quickly" to avoid detection.

As the FURA agents neared what appeared to be a blue and white fishing boat, Agent Del Valle "notice[d] that the manner in which the water [was] being displaced ... was not normal," and "[t]he manner in which [the boat] was behaving was not the normal manner in which a fishing vessel conducts itself." He recalled that the boat "was going fast," and "displacing a large amount of water," indicating that it was "carrying a large amount of weight." This small "fishing" boat was equipped with "two 175-horsepower engines," which, Agent Del Valle testified, were necessary "to master the amount of weight that they ha[d] on the boat." In his view, "a lower horsepower engine, say 50 or 75 horsepower, would [not] be able to carry such a large amount of drugs."

When they were about forty yards from the boat, Agent Del Valle could make out "three individuals aboard." He "proceed[ed] to carry out ... an approach to the stern," at which point he saw "two individuals on the left-hand side of the vessel throwing packages into the water." Sergeant Diaz also saw black packages being thrown overboard and identified defendants as the "individuals ... throwing bales overboard." The agents gave "verbal orders to desist from this action" but were ignored. Agent Del Valle suspected that "they were in all likelihood throwing drugs into the water," and he "readied [his] crew ... to interdict and intercept the vessel."

The two individuals "continue[d] to throw packages into the water" until the FURA boat was "literally by their side," at which point the fishing boat's "captain swerve[d] the wheel to ram" the agents' boat. The FURA boat instead successfully "rammed their vessel," which finally "stopped the action of throwing packages into the water." The agents then boarded the boat and arrested its captain -- Carrasquillo² -- and the other two persons aboard, whom the agents had seen jettisoning the bales -- defendants. Agent Del Valle observed additional bales on an open area in front of the steering wheel.

With the suspects arrested, the agents attempted to recover the evidence strewn about in the water. Sergeant Diaz first tried to retrieve the four bales that defendants had thrown overboard, but she was unable to handle the weight. Agent Del Valle lifted them one-by-one and injured his leg while doing so. The agents eventually succeeded in bringing the four bales back on board.

Undertaking a search of the seized vessel, the agents found three fishing poles on the boat. There was no indication that the "poles had actually been used to conduct any fishing activities that day," nor was there any "bait for fishing," "fishing boxes," "lobster boxes," "ice," "food," or "cell phones" on board.

As for contraband, in addition to the four bales the agents had recovered from the water, the agents found another twenty-one bales -- identical to the other four, except that these were dry -- on the boat floor. "[T]ied to the last bale of cocaine" was a "set of weights" weighing between 50 and 70 pounds, which, Agent Del Valle later testified, are "known ... in the underworld as potala" and "are directly tied to the drug in case [traffickers] need to get rid of it, have it drop down directly to the deep, to the bottom." Agent Del Valle observed that the bales resembled "the traditional manner in which [traffickers] transport ... drugs over to Puerto Rico" and agreed that, "in [his] 14 years as a FURA boat captain," he had never "seen or intercepted a boat carrying bales like that, that do not contain cocaine, or drugs."

A Homeland Security Investigations ("HSI") Special Agent "opened up" one of the bales "to reveal its content": "bricks neatly packed together, wrapped in a clear plastic wrapping," one of which "was opened up and ... tested positive to characteristics of narcotics, of cocaine." "[W]hen it was finally counted," the seized cocaine totaled "499 bricks, with a total weight of 577.6 kilograms."

In its chemical analysis of the contraband, U.S. Customs and Border Protection ("CBP") determined "an average purity rate of 78 percent" and a total drug content of "502,582 grams or the equivalent of 502 kilograms." Because "one kilogram or brick of cocaine traveling into Puerto Rico is worth approximately [$20,000] to $25,000" on the street, the seized shipment was "worth approximately $10 million to [$12.5] million."

B. Proceedings

A federal grand jury in the District of Puerto Rico returned a three-count indictment charging Stewart, Esquilin, and Carrasquillo with aiding and abetting the possession with intent to distribute a controlled substance onboard a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. § 70503(a)(1) and 18 U.S.C. § 2 (Count 1); conspiracy to possess with intent to distribute a controlled substance onboard a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. § 7053(a)(1) and 46 U.S.C. § 70506(b) (Count 2); and aiding and abetting the possession with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 3). Carrasquillo pleaded guilty to Count 3 of the indictment and did not proceed to trial. Defendants jointly filed a Motion to Dismiss the Indictment for loss or destruction of exculpatory evidence by the government, namely a "Fish Finder GPS Hummingbird 698." The district court denied the motion.³

Defendants proceeded to a joint trial. At trial, the government presented four witnesses -- FURA agents Del Valle and Diaz, HSI agent Ramos, and CBP specialist Figueroa -- and adduced two stipulations as to the cocaine's purity and weight, as well as to its street value in Puerto Rico. At the close of the government's case-in-chief, both defendants moved for judgments of acquittal under Federal Rule of Criminal Procedure 29, which the district court denied.

Following the Rule 29 ruling, defendants put on evidence in support of their defense that they were not willing participants in a drug trafficking venture but were invitees on a fishing trip who were merely present on a boat when it came upon packages of cocaine in the water. The thrust of their testimony was that Carrasquillo had captained the boat, that the trip began as an uneventful fishing trip where they unloaded lobster traps in the water, that subsequently the boat came upon the packages in the water, namely bales of cocaine packaged in black plastic floating in the water, and that Carrasquillo loaded those packages on to the boat himself because defendants refused to assist.

Stewart testified that around 4 AM on December 10, 2016, he, Esquilin,...