UNITED STATES of America, Plaintiff-Appellee, v. Vanston Venner WILLIAMS, Mario Alin Bent Barker, Edince Garcia Cardoza, Hendrick Guillermo Linero Duffis, Carlos Clemente Henry Taylor, Defendants-Appellants.
No. 15-15360
United States Court of Appeals, Eleventh Circuit.
August 1, 2017
865 F.3d 1328
Michael Caruso, Federal Public Defender, Brenda Greenberg Bryn, Chantel Renee’ Doakes, Federal Public Defender‘s Office, for Defendant-Appellant Vanston Venner Williams.
Herman Frank Rubio, Jr., Law Offices of H. Frank Rubio, MIAMI SHORES, FL, for Defendant-Appellant Mario Alin Bent Barker.
Sherri A. Romano, Sherri A. Romano, PA, MIAMI, FL, for Defendant-Appellant Edince Garcia Cardoza.
Hector L. Flores, Barzee Flores, MIAMI, FL, for Defendant-Appellant Carlos Clemente Henry Taylor.
Before JORDAN and JILL PRYOR, Circuit Judges, and PROCTOR,* District Judge.
JILL PRYOR, Circuit Judge:
In the waning hours of May 9, 2015, the crew of the Rasputin—defendants Vanston Venner Williams, Mario Alin Bent Barker, Carlos Clemente Henry Taylor, Edince Garcia Cardoza, and Hendrick Guillermo Linero Duffis—were traveling away from Colon, Panama when, much like their vessel‘s namesake, their luck ran out. A Coast Guard cutter approached the Rasputin, which sped away as four of the crew members swiftly threw dozens of packages overboard, none of which were recovered. Although the defendants successfully jettisoned their contraband, they could not elude the Coast Guard, who boarded the Rasputin and arrested its crew. After a trial, a jury concluded that the jettisoned packages contained cocaine, convicting each defendant of conspiracy to distribute at least five kilograms of a substance containing cocaine while on board a covered vessel, in violation of
I. BACKGROUND
We present only the facts relevant to the issues on appeal, which are the defendants’ challenges to the admission of the testimony of government expert Gustavo Tirado, the testimony of several Coast Guard officers that the objects they witnessed being jettisoned resembled cocaine bales seized in previous interdictions, and a document listing the Rasputin‘s next port of call, as well as the defendants’ challenges to the sufficiency of the evidence as to each of their convictions.1
The United States Coast Guard cutter “Bear” was patrolling waters off the coast of Colombia and Panama—an area where drug trafficking is known to occur—searching for vessels that might be smuggling drugs. Around midnight, crew member Petty Officer Turner Adair noticed that the Bear‘s radar was picking up a vessel approximately six to eight nautical miles away. The vessel was heading north-northwest away from Colon, Panama at eight to ten knots. As the Bear approached
As the four men on the vessel gathered the objects, the vessel increased its speed to 12 to 14 knots and began zig zagging from left to right for no apparent reason. Adair testified that such maneuvers were dangerous given that the waves and swells that night were between six and eight feet. After the four men finished placing at least ten bale-like objects into the fishing net, they tied the net up and threw it into the sea. Noticing that it took all four men to lift the net, Adair estimated (based on bales he had handled) that each bale weighed 65 to 75 pounds. After dumping the first net overboard, the four men loaded five more bales into another fishing net then threw that net overboard as well. The vessel changed direction, then heading south, and the four men dumped a third net full of bales.
Meanwhile, on board the Bear, Petty Officer Stephen Fleming and his team prepared to pursue the vessel. Fleming‘s team gave chase in a rigid hull inflatable boat, activating blue law enforcement lights and giving orders to stop in both English and Spanish via both a loudhailer and the radio tuned to Channel 16. The vessel failed to stop or slow down; instead it continued to change direction erratically at full speed. Only when Fleming‘s craft pulled within a few feet of the vessel did it finally stop.
Fleming observed that the vessel was a 34-foot fishing boat called the Rasputin and that it was flying an American flag. After Fleming and his team boarded the Rasputin, defendant Williams identified himself as the ship‘s master. He explained that the ship was a U.S. vessel and that he and the four other men aboard were Colombian nationals. According to Williams, the Rasputin had come from Colombia and was headed to Colon, Panama. But when the Rasputin was spotted, it was headed north-northwest away from Colon.
Fleming discovered that the Rasputin‘s radio was turned to Channel 16—the channel that the Coast Guard had been using to attempt to communicate with the vessel—and the volume was turned all the way up. Fleming observed two empty fuel drums aboard the vessel and four empty 40-gallon gas containers. He recognized the strong smell of gasoline, noting that the fish hold had more than an inch of gasoline covering the floor. The Rasputin did not run on gasoline, however; it ran on diesel. The presence of gasoline suggested to the officers that it was being used as a masking agent to alter the chemical composition of contraband residue. And despite the fact that the Rasputin was registered in Florida as a commercial fishing vessel, there was no fishing gear, bait, ice, or fish aboard. Fleming and his crew seized three Global Positioning Systems (GPS) from the
No quantity of drugs was found aboard the Rasputin, nor were any of the jettisoned packages recovered, as they apparently sank. In an attempt to detect the presence of contraband aboard the vessel, Fleming‘s boarding team used an IonScan machine. IonScan technology is designed to detect trace amounts of illicit materials—often amounts so small as to be imperceptible to the human eye. Samples, or “swipes,” are taken of areas and objects thought to contain contraband. The samples are then run through the IonScan machine, which measures the amount of time it takes for ions from vaporized molecules to drift from one side of a tube into a collector. Because every substance has a unique, predictable drift time, the machine can identify a substance on a sample based on the amount of time it takes for the vaporized molecules to drift into the collector. Fleming collected 34 IonScan swipes aboard the Rasputin.
To protect against contamination and to ensure the boarding team introduced no contraband onto the Rasputin, the officers who boarded had their gear swiped for testing prior to boarding. Aboard the Rasputin, Fleming conducted IonScan swipes by putting on rubber gloves from sealed boxes and using small circular pads (also from sealed boxes) to swipe various surface areas of the Rasputin and its crew. Another member of Fleming‘s team kept a log of each swipe, assigning a number and description to each swipe. After each swipe, Fleming removed his gloves and placed them into a sealed bag, which was identified with a number corresponding to the number logged for each swipe. The sealed bags containing the IonScan pads were transported back to the Bear for analysis.
Petty Officer Richard Caruso was the IonScan operator aboard the Bear. Caruso had attended a three-day training course where he learned how the IonScan machine worked and how to maintain the machine, calibrate it properly, run swipes through it, and read the results of its analysis. Caruso testified at trial that he had operated the machine more than five times in training and at least eight to ten times since, and that no scientific degree was required to operate it. The Bear‘s IonScan machine underwent a weekly preventative maintenance check and a daily parts check, and it was located in a secure area with limited access. While the Coast Guard pursued the Rasputin, Caruso turned on the IonScan machine and calibrated it, determining that it was operating correctly. He then swiped himself, the machine, and the area around the machine to ensure there was no contamination.
Caruso received the swipes Fleming had taken aboard the Rasputin. Of the 34 swipes, 13 tested positive for cocaine. After each positive hit, Caruso ran two blank swipes through the machine to clear it, again to prevent contamination. The IonScan analysis detected positive hits for cocaine in the Rasputin‘s fish hold, marine toilet, and sink, as well as on seat cushions and on a knife. The IonScan also revealed cocaine on the person of each occupant of the Rasputin except defendant Taylor. By contrast, the IonScan tests conducted on the Rasputin‘s fantail—the area of the ship from which the bales were jettisoned—were negative.
At trial, the government called Senior Chief Petty Officer Gustavo Tirado as its expert witness on IonScan technology. Ti
Tirado was unable to tell from the IonScan results that any particular quantity of cocaine was ever aboard the Rasputin, however. He was also unable to say whether the positive samples resulted from direct contact with cocaine or indirect contact from traces of cocaine brought aboard the ship by a person or object that had had direct contact with cocaine. Nor did he say how long the cocaine traces detected by the IonScan machine had been aboard the Rasputin.
On cross examination, Tirado testified that Caruso deviated from standard Coast Guard protocol in conducting the IonScan testing in two ways. First, although Caruso properly ran two blanks through the machine in between positive results, he violated protocol by failing to note whether the blanks indicated for an illicit substance. It is unclear, therefore, from Caruso‘s log alone whether two blanks were run, and if so, whether the blanks indicated the presence of cocaine. Second, Tirado testified that Fleming violated protocol by wearing only one glove on one hand when conducting swipes, when Coast Guard protocol required gloves on both hands and multiple layers of gloves on the swiping hand.
Adair testified at trial that the jettisoned objects he saw on the FLIR resembled cocaine bales he had seen in prior drug interdictions. Other Coast Guard officers gave similar testimony, including Caruso, Fleming, and Petty Officer William Coffey. The defense‘s objections—and the district court‘s handling of those objections—were inconsistent. The defense strenuously objected to Fleming‘s comparison between cocaine bales from prior drug interdictions on the grounds that such testimony was speculative, irrelevant, prejudicial, and unnoticed expert testimony, but let Adair4 testimony that the FLIR appeared to show bales,
Although several Coast Guard witnesses testified that the objects seen on the FLIR appeared similar in shape and size to cocaine bales from previous interdictions, they also testified that the size and shape were consistent with everyday objects. For example, when Adair was asked whether a “bale” was different from a package, he answered no and explained that a “bale” could be “the same size [and] same weight” as a package. Trial Tr. 9/8/2015, Doc. 118 at 230. Fleming explained that a bale is “slightly larger than a file box” and is “similar to your suitcase or your briefcase.” Trial Tr. 9/9/2015, Doc. 119 at 110. Coffey testified that a bale is approximately the size of a burlap sack or a briefcase.
The jury returned a guilty verdict as to all charges against all defendants. Each defendant was sentenced to 10 years’ imprisonment on each drug conviction. Williams was sentenced to 5 years’ imprisonment, to be served concurrently, on the failure-to-heave-to conviction, as were the remaining defendants for their aiding and abetting failure-to-heave-to convictions. The defendants timely appealed.
II. LEGAL STANDARDS
“We review evidentiary rulings for an abuse of discretion.” United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir. 2005). Basing an evidentiary ruling on a legal error constitutes an abuse of discretion per se. Id.
We “review de novo the sufficiency of the evidence supporting a criminal conviction.” United States v. Walker, 490 F.3d 1282, 1296 (11th Cir. 2007). In doing so, we consider the evidence in the light most favorable to the jury‘s verdict, here drawing all reasonable inferences and making all credibility choices in the government‘s favor. United States v. Haile, 685 F.3d 1211, 1219 (11th Cir. 2012). “We will reverse a conviction based on insufficient evidence only if no reasonable trier of fact could have found guilt beyond a reasonable doubt.” Walker, 490 F.3d at 1296 (internal quotation marks omitted).
III. DISCUSSION
On appeal, the defendants argue that the district court erred in admitting several key pieces of evidence, including Tirado‘s expert testimony concerning the IonScan results, the testimony of several Coast Guard witnesses that the jettisoned objects they saw on the FLIR resembled cocaine bales from prior drug interdictions, and the zarpe. They also challenge the sufficiency of the evidence as to each conviction. We address each argument in turn.6
A. Evidentiary Issues
The defendants argue that the district court abused its discretion in admitting
1. IonScan Evidence
The defendants lodge a number of attacks on Tirado‘s testimony introducing the results of the IonScan testing conducted on swipes taken from the Rasputin. The defendants challenge Tirado‘s qualifications to interpret IonScan test results, the relevance of his opinions to the issues in this case, and whether the nature of his testimony was overly prejudicial. We reject these arguments.
No one disputes that Tirado delivered expert testimony, the admissibility of which is governed by
Moreover, the proponent of expert testimony bears the burden of demonstrating the expert‘s qualifications and competence to give his proposed testimony. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc). Experts may be qualified by scientific training, education, or experience in the relevant field; they need not be formally educated to qualify as experts. Id. at 1260-61. But even if an expert is qualified, and his testimony is relevant and methodologically sound,
i. Tirado‘s Qualifications and Reliability
The defendants lodge a narrow challenge to Tirado‘s qualifications. Conceding that Tirado is qualified as an expert
Tirado was qualified by his training and experience to testify to the results of the IonScan testing aboard the Rasputin. See Frazier, 387 F.3d at 1260-61 (noting than an expert may be qualified by training or experience). At the Daubert hearing, Tirado testified that he was first trained on IonScan technology by the machine‘s manufacturer in 1999, which included instruction on how to interpret IonScan test results. At trial, Tirado elaborated that he was trained to interpret the variables generated by an IonScan test, including “maximum amplitude, delta, [and] number of segments.” Trial Tr. 9/10/2015, Doc. 121 at 109. That training was reinforced in annual courses from 2006 to 2015, including more in-depth training on “how to interpret the results of the machine” when he first became a certified IonScan instructor. Trial Tr. 9/10/2015, Doc. 121 at 106. Tirado also testified at trial that between 1999 and 2015, he operated an IonScan machine hundreds of times as part of Coast Guard drug interdictions. In short, ample testimony supported the district court‘s conclusion that Tirado was qualified as an expert in the interpretation of IonScan test results.
In challenging Tirado‘s qualifications, the defendants argue that he has no background in science, that his work in the field has never been peer reviewed, and that he was unfamiliar with literature assessing the general reliability of IonScan testing. These concerns fail to establish that the district court abused its discretion in admitting the testimony.
First, the defendants identify no specific opinions that were beyond the scope of Tirado‘s expertise, instead vaguely referring to his “scientific opinions.” At trial, Tirado‘s opinions essentially concerned compliance with Coast Guard procedure and the meaning of the IonScan machine‘s outputs. For example, he explained whether and why the IonScan‘s outputs for the samples taken aboard the Rasputin—delta, maximum amplitude, and number of segments—indicated a relatively low or high concentration of cocaine in that particular sample. The defendants never explain how any gaps in Tirado‘s training or experience should have precluded him from delivering these opinions. On the contrary, the opinions he delivered fell squarely within his training and experience.
Second, a witness need not have formal education as a scientist if his other training and experience otherwise qualifies him to testify as an expert. See Frazier, 387 F.3d at 1260-61; see also United States v. Holt, 777 F.3d 1234, 1265 (11th Cir. 2015) (not
Third, that Tirado was unfamiliar with literature assessing the general reliability of IonScan technology does not matter because the defendants explicitly declined to challenge in the district court Tirado‘s opinions on the machine‘s reliability. See supra note 7.
The district court acted within its discretion in determining that, given Tirado‘s extensive training and experience, any quarrels with his qualifications were fodder for cross examination rather than reason to exclude his testimony altogether. “[The] district court‘s gatekeeper role under Daubert is not intended to supplant the adversary system or the role of the jury.” Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003) (internal quotation marks omitted). “Quite the contrary, vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Id. (internal quotation marks omitted). Although Tirado‘s qualifications may have been imperfect, the district court did not err in finding that any defects were slight enough that the defendants could explore them on cross examination. The district court did not abuse its discretion in finding Tirado qualified as an expert on the interpretation of IonScan testing.8
ii. Daubert “Fit” and Rule 403
The defendants next argue that Tirado‘s testimony does not “fit” for Daubert purposes and has insufficient probative value for
Nor can we say that the district court abused its discretion by admitting the IonScan evidence over the defendants’ objection that it was unduly prejudicial.
2. Lay Opinion Testimony
Next, the defendants argue that the district court abused its discretion in admitting the testimony of Adair, Caruso, Coffey, and Fleming that the jettisoned objects they saw through the FLIR resembled cocaine bales found in previous drug interdictions. The defendants contend that the testimony was expert testimony that was improperly admitted because it failed to comply with
Under
A witness is permitted to deliver a lay opinion testimony based on his professional experiences as long as the testimony is “rationally based on” those experiences, rather than on scientific or technical knowledge. United States v. Toll, 804 F.3d 1344, 1355 (11th Cir. 2015); see also Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213, 1223 (11th Cir. 2003) (affirming a district court‘s admission of lay opinion testimony where witnesses testified not using scientific or technical “knowledge subject to
The defendants rely on United States v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011), to argue that opinions based on prior law enforcement investigations necessarily are expert opinions governed by
Nothing in Jayyousi indicates that the lay opinion of a law enforcement official automatically becomes an expert opinion simply because it involves knowledge that preexisted the investigation in the present case. The code language testimony at issue in Jayyousi would have required “scientific, technical, or other specialized knowledge” had the witness been speaking generally from prior experiences or training instead of using her knowledge of the code language used by the conspirators during the investigation of that very case. See id. at 1120 n.3 (“[T]his Circuit generally require[s] a law enforcement officer‘s testimony about the modus operandi of drug smugglers and the meaning of coded language in conversations to qualify as expert and not lay opinion when derived from their years of experience.“). The court concluded that an officer‘s investigation can provide sufficient foundation for an opinion that would otherwise require technical expertise. It never addressed the central question here, which is whether the opinions delivered by the Coast Guard witnesses were of the kind that ever require expert testimony.
They were not. The Coast Guard witnesses’ assessments were well within the ken of the average layperson; they simply compared the size and shape of the objects they saw on the FLIR to bales they had seen previously in cocaine arrests. Because the Coast Guard witnesses’ opinions were not based on any scientific or technical knowledge, but instead on their rationally based perceptions of the size and shape of objects, the district court acted within its discretion in admitting the testimony under
3. The Zarpe
The defendants argue that the district court improperly admitted the zarpe into
First, we easily reject the defendants’ argument that the zarpe was not properly authenticated.
Here, the government introduced evidence indicating that the zarpe was authentic: Fleming testified that it contained the precise information typically found on a zarpe and that it was found aboard the Rasputin. This showing sufficed to satisfy
Second, the zarpe was not hearsay because it was not offered “to prove the truth of the matter asserted” in it.
B. Sufficiency of the Evidence: Drug Convictions
All the defendants argue that their convictions for conspiracy to distribute and possession with intent to distribute five kilograms or more of a substance containing cocaine should be reversed because the government‘s evidence was insufficient to establish that the contraband jettisoned from the Rasputin was cocaine. Admittedly, this case is an unusual one—no visible amount of drugs was found on board the Rasputin and no drugs were recovered from the sea. Even so, we find sufficient evidence to support the drug conspiracy convictions.
We must affirm the district court if the evidence and any reasonable inferences from that evidence—taken in the light most favorable to the government—
“To establish a conspiracy, the government must prove beyond a reasonable doubt that two or more persons entered into an unlawful agreement to commit an offense, that the defendant knew of the agreement, and that he voluntarily became a part of the conspiracy.” United States v. Cruickshank, 837 F.3d 1182, 1188 (11th Cir. 2016). “In order to convict a defendant for possession with intent to distribute a controlled substance, the government must prove knowing possession and an intent to distribute.” Id. at 1189 (internal quotation marks omitted). To convict a defendant for conspiracy to possess with intent to distribute a controlled substance or possession with intent to distribute a controlled substance, “the identity of [the drug] must be established beyond a reasonable doubt.” United States v. Sanchez, 722 F.2d 1501, 1506 (11th Cir. 1984).
The government may establish the identity of a drug using circumstantial evidence. United States v. Clavis, 956 F.2d 1079, 1088 (11th Cir. 1992). Generally, “identification of a controlled substance can be established by such circumstantial evidence as lay experience based on familiarity through prior use, trading, or law enforcement; a high sales price; on-the-scene remarks by a conspirator identifying the substance as a drug; and behavior characteristic of sales and use, such as testing, weighing, cutting and peculiar ingestion.” United States v. Baggett, 954 F.2d 674, 677 (11th Cir. 1992) (internal quotation marks omitted). We have previously held that “[t]he uncorroborated testimony of a person who observed [the] defendant in possession of a controlled substance is sufficient if the person is familiar with the substance at issue.” United States v. Zielie, 734 F.2d 1447, 1456 (11th Cir. 1984), abrogated on other grounds by Bourjaily v. United States, 483 U.S. 171 (1987).
At trial, the government presented evidence more than sufficient to demonstrate that the defendants jettisoned contraband of some kind. The defendants were traveling at night, in rough waters, along a known drug trafficking route. When the Coast Guard encountered the Rasputin, the vessel was going in the opposite direction from where Williams initially stated it was headed and what was indicated on the vessel‘s manifesto (the zarpe). The defendants had no fish, bait, ice, or fishing equipment on board a registered fishing vessel, and the area where the Rasputin was found is not known for fishing. Several Coast Guard witnesses testi
As for the identity of the contraband—the difficult issue in this case—four Coast Guard officers testified that they had made prior drug interdictions in that same area off the coast of Panama and that only cocaine was recovered on those occasions. Three Coast Guard witnesses also testified to the size and shape of the packages they saw (through the FLIR) being jettisoned by the defendants, and they compared those packages to cocaine bales they had personally recovered and handled during these past interdictions.
Tirado testified that the IonScan samples from the Rasputin and the defendants resulted in 13 hits positive for cocaine and no hits positive for any other drugs—even though the IonScan machine could detect up to 40 substances.11 These included positive hits on the person of four of the five defendants. Tirado also explained that certain swipe results indicated high concentrations of cocaine. Certainly, Tirado‘s testimony concerning the IonScan results had imperfections. For example, defendant Taylor—one of the defendants alleged to have jettisoned packages off the back of the Rasputin—did not test positive for cocaine when swiped. And the back of the vessel, where the jettisoning occurred, did not test positive either. But the record contained an explanation for this, which we must accept in drawing all inferences in favor of the jury‘s verdict: several Coast Guard officers testified as to the rough conditions of the sea that night, including constant sea spray washing over the Rasputin. Fleming explained that it was difficult to swipe the back of the vessel because the swipes kept getting wet and deteriorating. Fleming and Tirado both testified that certain conditions aboard the Rasputin—including saltwater, wind, humidity, and gasoline—could erode the presence of cocaine and interfere with the successful sampling of an area.
Although the defendants theorize that the cocaine traces could have come aboard the Rasputin via contact with currency, the rigid hull boat, the boarding team, a personal amount of cocaine carried by one of the crew members, or cocaine that predated the defendants’ involvement with the ship, the record contained little to no evidence supporting these propositions. Indeed, the record explicitly contradicted some of these hypotheses—for example, the team that boarded the Rasputin was swiped prior boarding and tested negative for cocaine, while the rigid hull boat was brand new and had never been used in a drug interdiction before. Even to the extent the defendants’ hypotheses were supported by some modicum of evidence, the
We conclude that sufficient evidence supported the jury‘s determination that the jettisoned packages contained cocaine. We recognize that this case is like no other in this circuit in that there was no witness who identified the jettisoned contraband as cocaine, nor was any cocaine recovered. While no single piece of evidence in this case, on its own, sufficed to permit a reasonable jury to conclude that the jettisoned packages contained cocaine, that is not the relevant question. Instead, the question is whether all of the evidence presented by the government, taken together, permitted any reasonable jury to arrive at that conclusion. See, e.g., United States v. Waymer, 55 F.3d 564, 571 (11th Cir. 1995); United States v. Draine, 811 F.2d 1419, 1421 (11th Cir. 1987); see also United States v. Vergara, 687 F.2d 57, 61 (5th Cir. 1982) (“While each piece of evidence, standing alone, may have been susceptible of innocent interpretation, we are convinced that the jury reasonably could have concluded that the evidence, when examined in the aggregate, sufficed to establish that Vergara was a culpable member of the conspiracy as charged in the indictment.“). In sum, the government presented evidence that: (1) the Coast Guard witnesses had been involved in previous drug interdictions in the area where the Rasputin was stopped, and only cocaine had been recovered; (2) the packages the Coast Guard witnesses saw through the FLIR had the same size and shape as cocaine bales seized in prior drug interdictions; (3) IonScan testing revealed traces of cocaine aboard the Rasputin, including on the person of four of the five defendants; and (4) some of the IonScan swipes reflected high concentrations of cocaine. The cumulative effect of this evidence was enough to permit a reasonable jury to determine, beyond a reasonable doubt, that the substance jettisoned from the vessel was cocaine, notwithstanding the fact that no visible amount of cocaine was recovered by the Coast Guard. See also United States v. Cruz-Valdez, 773 F.2d 1541, 1546-47 (11th Cir. 1985) (en banc) (explaining that juries and courts “frequently take into account matters of common sense or general knowledge,” such as the “almost ritualistic series of precautionary maneuvers that often characterize large controlled substance transactions“).12
C. Sufficiency of the Evidence: Failure-to-Heave-To Convictions
1. Williams
The government presented evidence sufficient to permit a reasonable fact finder to convict Williams for failure to heave to. Under
The government presented evidence that Williams was the master of the Rasputin, the Rasputin sped up and made erratic movements after it was hailed by the Coast Guard, and such movements were inappropriate and dangerous given the sea conditions that night. Williams nonetheless contends that the record contains no evidence that he heard or saw the Coast Guard‘s attempts to hail the Rasputin with a loudhailer. Coffey testified, however, that the Rasputin was hailed through both the loud hailer and the radio via Channel 16. Fleming testified that when he boarded the Rasputin, the radio was tuned to Channel 16 with the volume turned all the way up. Fleming also testified that when another officer gave the instruction to heave to over the loudhailer, the Rasputin responded by speeding up and beginning to move erratically. This testimony easily permits the inference that Williams attempted to evade the Coast Guard after hearing the loudhailer and/or the radio.
Williams argues in the alternative that the evidence adduced at trial compels the conclusion that it would have been unsafe for him to heave to faster than he did. But the government presented evidence indicating the opposite: that the Rasputin‘s movements after being hailed were dangerous given the marine conditions that night. Adair testified that after the Coast Guard hailed the Rasputin, the vessel started “going from left to right for no apparent reason, going through swells that a[] 24-foot [sic] vessel should not be going through.” Trial Tr. 9/8/2015, Doc. 118 at 190. Fleming testified that the Rasputin “started operating erratically doing sudden course changes” just after the Coast Guard hailed the vessel, suggesting that Williams‘s maneuvers resulted from the presence of the Coast Guard rather than weather or sea conditions. Trial Tr. 9/9/2015, Doc. 119 at 32-33. This testimony sufficed to permit the jury to find that Williams’ erratic movements were an attempt to evade the Coast Guard, rather than an effort to stay safe in rough waters.
2. Barker, Cardoza, Duffis and Taylor
The remaining defendants’ convictions for aiding and abetting Williams’ failure to heave to must be reversed for insufficient evidence. “To prove guilt under a theory of aiding and abetting, the Government must prove: (1) the substantive offense was committed by someone; (2) the defendant committed an act which contributed to and furthered the offense; and (3) the defendant intended to aid in its commission.” United States v. Camacho, 233 F.3d 1308, 1317 (11th Cir. 2000). At trial, the government presented no evidence of the third element—that Williams‘s codefendants intended to aid him in failing to heave to. On appeal, the government argues that the mere fact that the codefendants jettisoned packages from the Rasputin indicates that they intended to aid Williams by making the Rasputin lighter and therefore faster. But, to support its theory, the government points to nothing other than the fact that the codefendants jettisoned the packages. The government‘s proof is especially tenuous given that the defendants had an obvious alternative motive for their behavior—ridding the boat of contraband before law enforcement arrived. Without more, no reasonable jury could find beyond a reasonable doubt that Williams‘s codefendants intended to help him evade the Coast Guard by jettisoning the packages. See United States v. Hamblin, 911 F.2d 551, 558 (11th Cir. 1990)
IV. CONCLUSION
For the foregoing reasons, we affirm the drug convictions of all defendants. We affirm Williams‘s failure-to-heave-to conviction and reverse the remaining defendants’ aiding and abetting failure-to-heave-to convictions. We remand for resentencing of Barker, Cardoza, Duffis, and Taylor.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
JILL PRYOR
UNITED STATES CIRCUIT JUDGE