USCA1 Opinion

____________________

No. 94-2303

UNITED STATES OF AMERICA,

Appellee,

v.

ALEJANDRO COLLADO,

Defendant, Appellant.

____________________

No. 95-1041

UNITED STATES OF AMERICA,

Appellee,

v.

MIGUEL CRUZ-SORIANO,

Defendant, Appellant.

____________________

No. 95-1080

UNITED STATES OF AMERICA,

Appellee,

v.

MIGUEL BRITO,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Campbell, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

____________________

Jeffrey E. Feiler, P.A. on consolidated brief for appellants.

_______________________
Miguel Brito on supplemental brief pro se.
____________
Jose
A. Quiles,
_________________

Assistant

United

States

Attorney,

Sen

Litigation Counsel, Guillermo Gil, United States Attorney, and Jaca

_____________
____
Rodriguez Coss, Assistant
______________

United States

Attorney on

United States.

____________________

February 1, 1996
____________________

briefs for

CAMPBELL,

Senior Circuit Judge.

____________________

This is a consolidated

appeal on behalf of three defendants who were aboard a vessel

that was

Rican

intercepted

waters.

for narcotics

Following

trafficking

four-day

joint

in

Puerto

jury

trial,

Alejandro Collado, Miguel Cruz-Soriano, and Miguel Brito were

found guilty of aiding and abetting the possession of cocaine

with intent to distribute, in violation of 21 U.S.C.

841(a)

and 18 U.S.C.

2.1

of imprisonment to

release.

On

Each received a sentence of 235

be followed by

appeal

they

claim

insufficient to sustain the jury

brief filed

pro se,

five years of

that

verdict.

defendant Brito

the

months

supervised

evidence

was

In a supplemental

asserts several

other

errors that allegedly infected the trial and his sentence.

I. Background
I. Background

We

summarize

the relevant

most favorable to the verdict.

40 F.3d

evidence in

the light

See United States v. DeMasi,

___ _____________
______

1306, 1310 (1st Cir. 1994), cert. denied, 115 S. Ct.

____________

947 (1995).

In the early hours of January 27, 1994, the U.S.

Customs Service

Air Branch

dispatched two

aircraft to

the

southeast

of St.

John

in

the

U.S. Virgin

Islands

after

____________________

A second

possession
vessel

count

charging

aiding

of cocaine with intent to

and

abetting

the

distribute, on board a

of the United States and subject to its jurisdiction,

in violation of 46 U.S.C.
18 U.S.C.

1903(a)(1), (a)(2)(C), & (f) and

2, was dismissed following the defendants' motion

for judgment of acquittal pursuant to Fed.R.Crim.P. 29.

-3-3-

learning that

an air drop

The plane making

detected in

Customs

NOMAD

approximately

maritime

surveillance

observed

3:33

a.m.,

testified

that the vessel

quickly,

leaving

interdiction

immediately

infrared

area, east of

a 360-degree radar

first

take place.

an air drop was not found, but a vessel was

the suspected

equipped with

Jackson

of contraband was to

behind

officer

located

who

the

(FLIR) system.

the

Puerto Rico,

and

search

("Omaha 05").

vessel

aided by

from

bright

his

observable

assisted

vessel

using

Pilot Mark

window

him,

at

He

lights and

waves.

The

Leslie

forward

This equipment senses

emitted by objects and produces

aircraft

moonlight.

was traveling without

by a

air

Robb,

looking

heat energy

black and white images which

can be recorded on videotape, as was done here.

Omaha 05

tracked the

minutes until it reached Cayo

near the

eastern coast of

vessel for

about forty-five

Luis Pena, an uninhabited

Puerto Rico.

During

this period

the vessel occasionally stopped; Officer Robb testified

smugglers often use this tactic

(DIW) in order to listen

detection.

Omaha

during this

key

that

of going "dead in the water"

for surveillance aircraft and avoid

05 lost track of the vessel at least twice

period.

Contact resumed

within a

few minutes

each time, according to the videotape and testimony by Robb.

After

Robb observed

the vessel reached

at least three

Cayo Luis

Pena, Officer

people moving to and

-4-

from the

-4-

shore.

The vessel departed

about 4:30

a.m.

It traveled westward

gradually increasing speed.

about forty

minutes and then

twelve minutes.

the

seven to ten minutes

later, at

without lights

Omaha 05 tracked the vessel

lost contact at 5:09

at a

for

a.m. for

Officer Robb explained at trial that he lost

target vessel

when it

went DIW

and his

attention was

focused on the radar, instead

of the FLIR (a manual tracking

system),

a Customs

in order

target vessel.

vessel in the

and

a fuerzas
_______

to direct

Robb temporarily

area.

was unable

to the

to detect

any

He then located the Customs marine unit

unidas
______

Puerto Rican Police

marine unit

rapida accion
______ ______

(FURA)

Department, and at 5:21

the target vessel on the FLIR.

mile from the point where

vessel of

a.m. reacquired

The vessel was less

it was lost.

the

than one

Robb testified

that

no other vessels were detected in the area.

Omaha 05, assisted by a FURA helicopter, guided the

Customs marine

unit to intercept

Vicens,

a special

Customs

boat, testified

the

agent and

the target vessel.

criminal

investigator on

that four individuals2

Pedro

the

were aboard

twenty-four foot fishing boat which had two seventy-five

horsepower engines.

The vessel had two large gas tanks built

into

customarily stores fishing

bait.

the area that

equipment or

Approaching the vessel, Vicens sensed a strong odor of

____________________

2 Diogenes Arturo
registered, entered

Marcelino, in whose name the boat was

a guilty

plea before

three defendants-appellants.

-5-5-

the trial

of the

gasoline.

He

soon observed that the boat

was full of fluid

and gasoline: the fuel line had been cut, gas was coming from

the tank,

gasoline

and individuals aboard appeared to

from the bottom of

wash something.

conceal any

He

smell

the vessel and

testified

or

be bailing out

moving as if to

that washing

residue of

narcotics

the

was

deck

to

common

practice of drug smugglers.

The

four

aboard

transported along with

Puerto Chico.

accompanied

were

taken

the vessel to

Thereafter,

Customs Agents

custody

the police station

Pilot Jackson

Vicens

into

and Officer

and Hector

at

Robb

Marte (among

others) by helicopter to Cayo Luis Pena, the uninhabited

at which Omaha 05 had

and

key

observed the vessel stop approximately

three

hours earlier.

There they

movement had been detected.

261 kilograms

of cocaine,

Upon

to

return

photographed

and

yellow

yarn, green

to ones taken

Also

area where

They found nine bales containing

as a

station

laboratory test

at

Puerto

confirmed.

Chico,

Marte

the vessel and retrieved fibers of plastic, red

bubble wrapping.

and

the

searched the

material, and

A forensic chemist compared

plastic

these samples

from the wrapped bales found at Cayo Luis Pena

testified that they

found on

fluorescent

the boat

had the same

were life

guns, spark plugs, and damp cloth.

chemical composition.

jackets, a

knife, flare

-6-6-

At

the close of the government's case, the defense

moved for a judgment of

Fed.R.Crim.P. 29.

count

defense

one and

acquittal on both counts pursuant to

The district court denied the motion as to

reserved ruling

rested without

on

the second

presenting evidence and

for a judgment of acquittal.

count.

The

again moved

The following day the district

court again denied the motion as to count one, and granted it

as to

count two.

It instructed the

jury on the

charge of

aiding and abetting the possession of

cocaine with intent to

distribute.

returned

guilty

verdict

was

challenge

the

against

all

defendants.

II. Discussion
II. Discussion

Defendants

evidence

to support their convictions.

sufficiency

of

the

They claim that the

government failed to show the shared criminal intent required

for

an

temporary

weakness

aiding and

abetting

losses

of tracking

of the

charge.

on

They add

the FLIR

that

the

system

and the

circumstantial evidence connecting

them to

drug trafficking warrant a reversal of their convictions.

In reviewing these claims, we consider the evidence

in the record as a whole, including all reasonable inferences

therefrom, in the light most favorable to the

order

to ascertain whether a

defendants

guilty beyond

prosecution in

rational jury could have found

a reasonable

-7-7-

doubt.

See
___

United
______

States v. Romero,
______
______

doing, we defer

32 F.3d 641, 645

(1st Cir. 1994).

to the jury's determinations

In so

of credibility

and respect its reasonable construction of the evidence.

id.
__

We

opposed to

pieces of

note

that "no

premium

is placed

circumstantial evidence,"

evidence, insufficient

and that

in themselves

point, may in cumulation prove it.'"

966 F.2d

upon

See
___

direct as

"'individual

to prove

United States v. Ortiz,

_____________
_____

707, 711 (1st Cir. 1992) (citations omitted), cert.

_____

denied, 113 S. Ct. 1005 (1993).

______

Defendants contend that the government had to prove

that they

had a shared

criminal intent and were

not merely

present at or aware of a

criminal act.

See Nye & Nissen

___ ____________

v.

United States, 336 U.S. 613, 619 (1949) (a defendant who aids
_____________

and

abets must

venture,

. .

"in

some sort

. participate

in it as

wishes to bring about") (citing

F.2d 401, 402 (2d

554

scene

F.2d 483,

associate

himself with

in something

486 (1st Cir.

and knowledge

that a

that he

United States v. Peoni,

_____________
_____

Cir. 1938)); United States v.

_____________

1977)

("mere

crime was

the

100

Francomano,
__________

presence at the

to be

committed" is

insufficient to show aiding and abetting) (citation omitted).

They

assert that

no proof was

offered on

the relationship

between them and the apparent captain (in whose name the boat

was

registered), between

the

four

aboard

and

the

three

persons observed offloading at Cayo Luis Pena, or between the

defendants

themselves.

Moreover, no connection to any plane

-8-8-

making an air drop was ever established.

upon

Defendants add that

interception of the vessel, they permitted Agent Vicens

to board and cooperated fully.

The record, considered as a whole, does not support

defendants'

argument.

The knowledge

element

of a

charge

under

841(a) "can rarely

be established with

direct evidence."

United States v. Gonzalez-Torres, 980 F.2d 788, 791 (1st Cir.

_____________
_______________

1992).

Circumstantial

finding

of criminal

evidence has been

intent on

facts

held to justify

quite similar

to the

instant case: i.e., where only a few individuals are aboard a

____

small boat,

than

large or

more typical

extra gas tanks

bait or

fishing

are in

place (rather

equipment), the

vessel

periodically runs without lights and goes DIW, an FLIR system

tracks the

traces

vessel to the

of material

site where drugs are

used to

wrap the

later found,

cocaine are

found on

board,

appears

and a legitimate

lacking.

See,
___

Cartagena, 987 F.2d

_________

v. Alvarado,
________

States
______

e.g.,
____

v. Cuevas-Esquivel,
_______________

F.2d 546,

(1989) and
___

United States
______________

849, 852 (1st Cir. 1993);

982 F.2d 659,

cert. denied, 498

____________

882

alternative purpose for

661-662 (1st Cir.

905 F.2d

510,

the voyage

v.

Morales________

United States
_____________

1992); United
______

515 (1st

Cir.),

U.S. 877 (1990); United States v. Corpus,

______________
______

550 (1st

497 U.S.

Cir.), cert. denied, 493

_____________

1009 (1990).

A jury

U.S. 958

could reasonably

infer from the evidence that each of the defendants possessed

-9-9-

the

requisite

criminal

intent and

aided

and

abetted the

accomplishment of the offense as charged.3

Defendants

the prosecution's

found;

2)

the

contraband; 3)

have

attempt to poke

case: 1) no

intercepted

the residue

been tracked

on

by

several other holes in

plane making an air

vessel

itself

particles found

Agent Marte

after

drop was

contained

on board

no

could

he helped

to

collect the

he

did

cocaine bales from Cayo Luis Pena, especially as

not

note

the

intercepted and boarded

presence

of

in the audio/videotape;

said

to be

residue

when

the vessel; 4) Agent Vicens

document any cut fuel line or gasoline

of the incident; 5) no

any

he

did not

on deck in his report

description of the vessel is provided

6) the vessel initially

traveling toward

Fajardo

on the

tracked was

east side

of

Puerto Rico, whereas Cayo Luis

Pena is northward; and 7) the

FLIR system lost the suspected

vessel at least three

including

once for a

vessel was found

twelve-minute period, after

within one

mile of

its previous

times,

which the

location

despite testimony as to its capacity for rapid travel.

____________________

As

the

government

notes,

defendants

do

not

specifically

challenge

relating

an

to

reasonable doubt
distribution is

the

intent

to

of knowing

sufficiency

of

distribute.

Proof

possession for

required for a

the

charge under

evidence
beyond

the purpose

of

841(a).

See
___

United States v. Garcia, 983 F.2d 1160, 1164 (1st Cir. 1993).
_____________
______
To

the

extent

incorporate
Their

that

defendants'

was

meant

to

this aspect of intent, our holding is unchanged.

intent to distribute

the large

challenge

quantity of

can reasonably be

cocaine (261

inferred from

kilograms), cf.
___

1165, which was deposited on the uninhabited key.

-10-10-

id. at
___

We again find the

assessed in light

the last

three

above argument unpersuasive when

of the record as a whole.

points alleging

With respect to

misidentification of

their

vessel, the jury was free to believe the testimony of Officer

Robb, who operated the radar and FLIR system and detailed the

process

by which

viewed

much of

period

when the

decision

Omaha 05

tracked

the videotape,

Omaha 05

to credit

governmental vessels

Robb's

lost

including the

the same vessel was subsequently

that

The

jury

twelve-minute

the vessel.

testimony

were in the

the vessel.

Its

no

apparent

other

area at the time

non-

and that

located is a plausible view

of the evidence.

The jury

also could have reasonably concluded that

the vessel

The

changed direction at

absence

of

contraband

some point

aboard

is

not

in its

fatal

voyage.

to

the

prosecution's case, given substantial evidence connecting the

vessel

to the

cocaine (e.g.,
____

match of wrapping samples,

the

videotape, the

the departure of the

positive

vessel from

Cayo Luis Pena without lights at an increasing speed, and the

evidence of

members'

512,

extra fluid

on the vessel

washing motions).

bottom and

the crew

Cf. Cuevas-Esquivel, 905 F.2d at

___ _______________

515 (affirming conviction where no contraband was found

aboard but

a videotape showed

ship and bales

a tarp being thrown

from the

floating nearby); Corpus, 882 F.2d at 549-550

______

(same, where bales were observed

being thrown from the

ship

-11-11-

and floating nearby,

area, and

washed).

no other vessel was shown

the vessel bottom

Nor

do

appeared to have

defendants'

other

to be in the

been recently

contentions

warrant

disturbingthejury'sassessment oftheoverallevidence presented.

It is well established that the government need not

"disprove every reasonable hypothesis

of innocence, provided

that the

record as

beyond a

reasonable doubt."

514;

a whole supports

Gonzalez-Torres,
_______________

sufficient

evidence

980

was

a conclusion

Cuevas-Esquivel,
_______________

F.2d

at

presented

790.

to

of guilt

905 F.2d

We

find

sustain the

verdicts here.4

The judgments of conviction are affirmed.

________

at

that

guilty

____________________

We

have

contentions made

considered,

in

addition,

by defendant Brito

these contentions to be without merit.

-12-12-

the

in his brief.

separate
We find