UNITED STATES of America, Appellee,
v.
Alfre Luis BRAVO and Jesús Antonio Martínez-Rosado, Defendants, Appellants.
United States of America, Appellee,
v.
Luis Antonio Mancilla-Patino, Defendant, Appellant.
United States of America, Appellee,
v.
Josne Said Isaa-Morales, Defendant, Appellant.
No. 05-1144.
No. 05-1145.
No. 05-1146.
No. 05-1147.
United States Court of Appeals, First Circuit.
Heard October 30, 2006.
Decided May 29, 2007.
Luis R. Lugo-Emanuelli, with whom Jorge Maldonado-Ríos was on brief, for appellants Alfre Luis Bravo and Jesús Antonio Martínez-Rosado.
Marlene Aponte-Cabrera, for appellant Luis Antonio Mancilla-Patino.
Lydia Lizarríbar-Masini, for appellant Josne Said Isaa-Morales.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, was on brief, for appellee.
Before TORRUELLA, Circuit Judge, BALDOCK,* Senior Circuit Judge, and STAHL, Senior Circuit Judge.
TORRUELLA, Circuit Judge.
On September 7, 2004, a jury found codefendants-appellants Alfre Luis Bravo ("Bravo"), Jesús Antonio Martínez-Rosado ("Martínez"), Luis Antonio Mancilla-Patino ("Mancilla") and José Said Isaa-Morales ("Isaa") (collectively "Appellants") guilty of two offenses: (1) possession with intent to distribute more than one thousand kilograms of marijuana on board a vessel and aiding and abetting, in violation of 46 U.S.C. app. § 1903(a) (repealed 2006), and 18 U.S.C. § 2, and (2) conspiracy to possess with intent to distribute more than one thousand kilograms of marijuana on board a vessel, in violation of 46 U.S.C. app. § 1903(j). Thereafter, the Appellants were sentenced to a term of imprisonment of 120 months followed by five years supervised release as to each count, to be served concurrently.1 The Appellants now appeal their convictions and sentences.
I. Background
On April 18, 2004, at approximately 4:45 A.M., the United States Coast Guard ("USCG") cutter DEPENDABLE found the M/V EL CONQUISTADOR (the "vessel") riding low and "dead in the water" in international waters 180 nautical miles south of Santo Domingo, Dominican Republic. A Rigid Hulled Inflatable Boat, the ABLE 2, was launched from the DEPENDABLE to approach the vessel.
The ABLE 2 observed that the vessel's name was written on its stern, but the vessel did not have a visible registration number, port identification, or country flag. On board the ABLE 2, Officer Brian Hennessey ("Hennessey"), a technician and federal law enforcement officer with the USCG, requested that the vessel indicate its nationality. The vessel master answered that the vessel was registered in Colombia. He further claimed that the vessel had been fishing for approximately seven to eight days, but that the vessel's engines were broken, and that they had no fish on board and were en route to Haiti.2 Hennessey testified that he perceived a strong smell of marijuana coming from the vessel. Hennessey relayed via radio the information from the vessel master to the DEPENDABLE and waited for permission to board the vessel.
At 7:39 A.M., Sean Connett ("Connett"), an employee with the USCG at the District Command Center in Miami, contacted the Colombian authorities to confirm the registry of the vessel via a written form entitled "Action Request." The Colombian authorities shortly responded with a "Response to the Action" form, indicating that they could neither confirm nor refute that the EL CONQUISTADOR was a Colombian vessel. The Colombian authorities also suggested that the USCG proceed under "international law" and requested that the USCG inform them of the results of the inspection.
Acting on the premise that the vessel was "stateless" or "without nationality," the USCG sought to place the vessel within U.S. jurisdiction. The Maritime Drug Law Enforcement Act ("MDLEA") allows the United States to conduct drug law enforcement outside of the United States, and more specifically, exercise jurisdiction over stateless vessels. 46 U.S.C. app. § 1903(c). In accordance with the MDLEA, Connett requested and received a "Statement of No Objection" from the USCG headquarters in Washington, D.C., granting permission to board EL CONQUISTADOR. Connett forwarded the Statement to the USCG office in San Juan, which then forwarded it to the DEPENDABLE.
Upon boarding the vessel, Hennessey observed what appeared to be bales of marijuana, two of which were outside the fish hold, forty-six of which were inside the fish hold.3 He then conducted a field test confirming that the bales were, in fact, marijuana. In order to access the bales, USCG officers broke the fish hold, and transferred the bales onto the DEPENDABLE.4 The vessel's five crew members — the four Appellants and the captain, Joaquín Emilio Cardona-Sandoval ("Cardona-Sandoval") — were also brought on board the DEPENDABLE. The Colombian authorities were notified of the USCG's findings, and upon arrival in San Juan, the Appellants were transferred to U.S. Immigration and Customs Enforcement ("ICE") and detained.
At their joint trial, Appellants testified that they were fisherman in their home country of Colombia and that in 2004 they were recruited in Colombia to participate in a fishing expedition by two individuals known to them as "Paco" and "Roberto." Appellants testified that they were unacquainted with each other when they arrived at the vessel. They further testified that when they arrived, Paco and Roberto, along with others, were armed with weapons, and marijuana was on the vessel. According to Appellants, Paco threatened that Appellants' families would be killed if they did not take the marijuana to Haiti. Appellants testified that they feared for their families. After a few days at sea, the vessel broke down.
On September 7, 2004, a jury found all four Appellants guilty of both counts of the indictment. A pre-sentencing report ("PSR") was then filed on November 18, 2004, recommending that Appellants be granted a two-point reduction in their base offense level of 32 due to their minor roles in the offense. Martínez and Bravo were sentenced individually, and Isaa and Mancilla were sentenced jointly. At Appellants' various sentencing hearings, the government opposed the minor role reduction. The court denied the minor role adjustments, indicating that the evidence was such that it could not state who was a major and who was a minor participant in the case.
At his sentencing hearing, Appellant Martínez raised no objections to the PSR, and accordingly, was not granted any adjustments, and was sentenced to 120 months imprisonment. In the other sentencing hearings, Appellants Bravo, Isaa and Mancilla objected to the PSR and requested a safety-valve benefit, as well as a downward departure for duress. Appellants participated in a government debriefing in order to qualify for the safety-valve benefit, but they each received a sealed motion from the government stating that the safety-valve would not be recommended because the government did not believe that Appellants had provided all available information in a truthful manner.5
Isaa's and Mancilla's joint hearing was held on December 8, 2004. The court granted them an immediate hearing to determine their entitlement to the safety-valve benefit. A DEA special agent testified that, although Appellants' stories coincided in certain aspects, it was abnormal that Appellants did not know the details of how the drug transfer was going to take place. He explained that the scenario was "too risky" to be believable; he had never investigated a case in which a drug trafficker had placed unknown individuals against their wills on a vessel loaded with contraband of such value without providing information about the transfer, or without agreeing to any payment. The agent also noticed that, based on his experience and training, Appellants appeared to easily answer "non-stressful" questions about their families and Colombia, but that a level of stress or deception was perceptible in Appellants' answers to questions regarding the smuggling venture, the drugs, and payments.
The court denied Isaa and Mancilla the safety-valve benefit, indicating that the consistency of Appellants' statements did not overcome the gaps in the logic of their story. The court also denied their requests for a downward departure for duress. Again, the court indicated that it did not find Appellants' stories to be totally truthful. Both Appellants were then sentenced to the statutory mandatory minimum term of 120 months of imprisonment.
Bravo was sentenced a week later, on December 15, 2004. The district court denied Bravo's request for a safety-valve hearing, and subsequently denied him the safety-valve benefit. Neither denial was explained by the court. The court also denied Bravo's request for a downward departure for duress, and sentenced him to the statutory mandatory minimum term of 120 months of imprisonment.
Appellants now appeal a variety of issues regarding their convictions and sentences.
II. Issues on Appeal
A. The United States' Jurisdiction over the Vessel
Appellants are neither citizens nor resident aliens of the United States and the vessel involved was not a vessel of the United States. Thus, for Appellants to be prosecuted under the MDLEA, the vessel must be "subject to the jurisdiction of the United States." 46 U.S.C. app. § 1903(a). Whether the district court erred in determining that it had jurisdiction over the vessel, and therefore over Appellants, is a question of law subject to de novo review. See id. § 1903(f) ("All jurisdictional issues arising under this chapter are preliminary questions of law . . . ."); see also United States v. González,
Under the MDLEA, "a `vessel subject to the jurisdiction of the United States' includes . . . a vessel without nationality." 46 U.S.C. app. § 1903(c)(1)(A). Additionally, "a `vessel without nationality' includes . . . a vessel aboard which the master or person in charge makes a claim of registry and the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality." Id. § 1903(c)(2)(C). Here, the vessel master claimed registry in Colombia, and after contacting the appropriate Colombian authorities, the USCG received a "Response to the Action" form from Colombia neither confirming nor refuting the vessel's registration in Colombia. Since Colombia, as the nation of alleged registry, could not confirm the vessel's registration, the vessel qualifies as a "vessel without nationality" under the MDLEA, and is within the jurisdiction of the federal courts of the United States.
Under the plain language of the MDLEA, Appellants' argument that jurisdiction includes a nexus requirement — i.e., a requirement that the government show that the marijuana transported in the vessel would affect the United States, fails. The Appellants' reliance on United States v. Hayes,
Equally misplaced is Appellants' contention that the United States disregarded the recommendation of the Colombian authorities to follow "international law" when apprehending the vessel. The USCG acted within both international treaty law and customary international law. The Agreement to Suppress Illicit Traffic by Sea, ratified and brought into force by the United States and Colombia in 1997, is the treaty governing the apprehension of the vessel and its crew. See Agreement Between the Government of the United States of America and the Government of the Republic of Colombia to Suppress Illicit Traffic by Sea, Feb. 20, 1997, T.I.A.S. No. 12835. The treaty authorizes the country requesting verification of a registry to "proceed in accordance with international law" in the event that neither party can confirm or refute a flag claim of a vessel in international waters, id. art. 8, and the MDLEA is in compliance with international law. The extra-territorial jurisdiction authorized in the MDLEA is consistent with the "protective principle" of international law, see Cardales,
Our conclusion is without doubt or reservation: the United States had jurisdiction over the vessel, and was correct to apply the MDLEA to Appellants.
B. Lack of Pre-trial Determination of Jurisdiction
The Appellants assert that the district court erroneously allowed the jury to hear testimony regarding jurisdiction. We agree. "All jurisdictional issues arising under [the MDLEA] are preliminary questions of law to be determined solely by the trial judge." 46 U.S.C. app. § 1903(f). The exposure of the jury to the jurisdictional testimony nonetheless was harmless. Non-constitutional evidentiary error is harmless "so long as it is highly probable that the error did not influence the verdict." United States v. Flemmi,
C. Motion to Suppress
Appellants challenge the denial of their pre-trial motion to suppress the bales of marijuana seized from the vessel on the grounds that the USCG lacked reasonable suspicion to stop and search the vessel, in violation of the Fourth Amendment. We apply a mixed standard of review to the district court's denial of the suppression motion, reviewing the court's findings of fact for clear error and the application of the law to those facts de novo. Tinoco,
The Fourth Amendment prohibits "unreasonable searches and seizures" whether or not the evidence is sought to be used in a criminal trial, and a violation of the Amendment is "fully accomplished" at the time of an unreasonable government intrusion. United States v. Calandra,
D. Sufficiency of the Evidence to Convict
Appellants moved for judgment of acquittal, pursuant to Fed.R.Crim.P. 29, after the conclusion of the Government's case in chief and again after the close of all the evidence. The district court denied both motions. Here, Appellants claim that the evidence is insufficient to establish beyond a reasonable doubt that they had the required intent to violate the laws of the United States. Specifically, Appellants allege that the evidence is insufficient to establish that they intended to distribute the marijuana, as required by 46 U.S.C. app. § 1903(a), see United States v. Guerrero,
In circumstantial cases such as this one, the evidence is sufficient to convict if it adequately supports the "the requisite two-step inference": (1) that the vessel was engaged in obviously illegal activity, and (2) that each Appellant was ready to assist in the criminal enterprise. United States v. Jiménez-Pérez,
Resolving all credibility issues in favor of the government, we find the record sufficiently complete to support a finding beyond a reasonable doubt that Appellants committed the crime charged. The circumstantial evidence supports the inference of drug trafficking, and there is no evidence opposing the jury's determination that Appellants' testimony in support of their duress defense was incredible. United States v. Spinney,
E. Pre-trial Ruling on the Defense of Duress
Prior to trial, Appellants sought to present a defense of duress. The district court stated that it would not rule on a duress instruction to the jury until after Appellants had testified, if they were willing to do so, and only if the court determined that Appellants met the standard for the submission of the charge to the jury.
The burden of proof to demonstrate duress is on Appellants. United States v. Amparo,
After Appellants presented their case for duress, the court found that the Appellants met the requisite burden of proof and instructed the jury as to a defense of duress. The jury, however, did not find that Appellants were acting under duress. Appellants Bravo and Martínez now claim that, because the court did not rule on the applicability of a duress offense until after the close of all evidence, they were denied the opportunity to choose a defense strategy in advance and participate in a fair trial.
The district court clearly has the discretion to either employ a pre-trial hearing or to wait until after all evidence has been heard at trial, to determine whether the evidence of duress is sufficient as a matter of law to warrant an instruction. See, e.g., United States v. Bailey,
F. Sentencing
1. Adjustment for Minor Participation
Appellants claim that the district court erred in failing to grant them a two-level downward adjustment in their base offense level due to their alleged minor participation in the offense, as compared to Cardona-Sandoval, the captain of the vessel. We will only reverse the district court's finding that Appellants were not minor participants if that finding is clearly erroneous. United States v. Villarman-Oviedo,
A downward adjustment for a defendant's minor role in an offense is permitted for a defendant "who is less culpable than most other participants, but whose role could not be described as minimal." U.S.S.G. § 3B1.2(b), cmt., n. 5. Here, although the PSR recommended that a two-level adjustment be granted, the government objected to the recommendation, arguing that Appellants were culpable to the same degree because they were all members of the vessel's crew, equally advancing the same venture. Appellants argued that because none of them were the captain of the vessel, but rather crew members, with less significant functions than the captain, they held minor roles. In denying the adjustment, the sentencing court ruled that it could not differentiate the major from the minor participants in the case.
While we acknowledge that the record indicates that Cardona-Sandoval was the captain of the vessel, and that Appellants were the crew, it is not clear that the sentencing judge erred in denying the adjustment. Appellants failed to demonstrate that any of them were less culpable than the others, United States v. Brandon,
2. The Safety Valve Benefit
Bravo, Isaa and Mancilla each appeal the district court's denial of their safety-valve petitions. A defendant bears the burden of demonstrating his entitlement for the safety-valve reduction. United States v. Rodríguez-Ortiz,
The district court's finding on eligibility must be "an independent determination," United States v. White,
Unfortunately, the district court failed to make even conclusory statements as to why Bravo did not merit safety-valve relief. The record shows that Bravo's repeated attempts to discuss his safety-valve eligibility were rebuffed by summary denials of his eligibility by the district court. The district court's failure to provide any explanation of its reasoning for denial falls well below the standard set in Miranda-Santiago,
In the case of Isaa and Mancilla, the district court's safety-valve determinations were based on analysis of the facts of the case. We therefore review those determinations for clear error. United States v. Márquez,
At Isaa's and Mancilla's joint hearing, the district court credited the testimony of Special Agent Gonzáles that Appellants had not disclosed everything they knew about the drug smuggling conspiracy — that while the story proffered by Appellants was consistent, it was "illogical" and "incredible" that an international drug smuggler would place $7.5 million of narcotics on a vessel traveling in international waters without having some type of voluntary control over the vessel's crew. This testimony is more than a statement of no confidence. The testimony of Special Agent Gonzáles, based on his years of experience in the field of drug interdiction, provides a sound grounding for the district court's denial of the safety valve. If there is any error here by the district court, it certainly is not clear.
3. Downward Departure for Duress
Even though the jury rejected Appellants' duress defense, the district court still had the authority to grant a downward departure under the guidelines at sentencing. U.S.S.G. § 5K2.12; United States v. Sachdev,
This case does not fall within the exception: Appellants do not theorize that the sentencing judge was unaware of his power to depart or misconceived the legal standard. Instead, Appellants challenge the district court's discretionary decision not to depart. It follows inexorably that we lack jurisdiction to review the assigned error.
4. Booker Claim
While the instant appeal was pending, the Supreme Court decided United States v. Booker, striking down the provision of the Sentencing Reform Act that made the sentencing guidelines mandatory, and holding that district courts are not bound by the guidelines but must consult them and take them into account when sentencing.
If Isaa was sentenced under a mandatory guidelines system, we will "remand for resentencing where `either in the existing record or by plausible proffer, there is a reasonable indication that the district judge might well have reached a different result under advisory guidelines.'" United States v. Lewis,
III. Conclusion
For the reasons stated above, we affirm in part and reverse in part, remanding in accordance with this opinion.
Affirmed in part, Reversed in part and Remanded.
Notes:
Notes
Of the Tenth Circuit, sitting by designation
A special monetary assessment of $200 was also imposed
The record indicates that the vessel did not contain any fish, usable fishing nets, line gear or refrigeration
The Drug Enforcement Administration ("DEA") later determined that the bales constituted approximately 5,000 pounds of marijuana with a street value of $7.5 million
USCG Officers then destroyed the vessel, as it had been taking on water and towing would have been difficult and time consuming
See 18 U.S.C. § 3553(f)(5) (requiring that "the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense"); U.S.S.G. § 5C1.2(a)(5) (same).
We render no opinion as to whether or to what extent these agreements or any analogous agreements are binding on the United States
To qualify for the safety valve, defendants must satisfy the following five criteria, the first four of which are not in dispute in the instant appeal: (1) not have more than one criminal history point; (2) not have used violence or possessed a firearm during commission of the offense; (3) not have killed or seriously injured another person; (4) not have been a leader or manager in the offense or was involved in a continuing criminal enterprise; and (5) have truthfully provided the government with all information and evidence he possesses concerning the offense. 18 U.S.C. § 3553(f)
It is not disputed that the three Appellants seeking the safety valve in the instant appeal meet the first four criteria