Nos. 88-1383-88-1391.United States Court of Appeals, First Circuit.Heard February 27, 1989.
Decided August 8, 1989.
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Nydia Maria Diaz-Buxo, Caguas, P.R., by Appointment of the Court, for defendants, appellants Walber Meza-Navarro, Jose De Los Santos-Himitola and Alfonso Gonzalez.
Nydia Maria Diaz-Buxo, Caguas, P.R., by Appointment of the Court, on brief for defendant, appellant Pedro Guerrero.
Ayxa Rey Diaz, Hato Rey, P.R., by Appointment of the Court, for defendant, appellant Luis Gonzalez.
Julia M. Garriga, by Appointment of the Court, for defendants, appellants Orlando Toro and Eliezer Valderianques.
Julia M. Garriga, by Appointment of the Court, on brief for appellant Marcos Segundo-Juvinao.
William Arias, by Appointment of the Court, for defendant, appellant Jose Corpus.
Luis A. Plaza, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief for U.S.
Appeal from the United States District Court for the District of Puerto Rico.
Before BREYER and TORRUELLA, Circuit Judges, and CAFFREY,[*]
Senior District Judge.
CAFFREY, Senior District Judge.
[1] This is a consolidated appeal on behalf of nine defendants who were the captain and crew of the Panamanian-registered vessel COLOSO II. After a two-day jury trial, the defendants were found guilty of aiding and abetting the possession of marijuana, with an intent to distribute it, in violation of 18 U.S.C. § 2 and 46U.S.C.App. § 1903(a) (recodifying 21 U.S.C. § 955a).[1]
Defendants appeal from their convictions, arguing among other things, that the evidence adduced at trial was insufficient to establish that they were in knowing possession of the disputed marijuana. We affirm.
I.
[2] We recite the relevant facts in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); United States v. Campbell, 874 F.2d 838, 839 (1st Cir. 1989). On September 23, 1987, the United States Navy frigate MCCLOY encountered the tugboat COLOSO II on the high seas. The vessel was not flying a flag and was riding “heavy,” with its weight shifted forward.[2] After the Coast Guard officers on board the MCCLOY made repeated attempts to communicate with the COLOSO II, the captain, Jose Corpus, eventually responded. Corpus indicated that the vessel was travelling from Aruba to St. Thomas for the purpose of picking up a barge in St. Thomas. The vessel was navigating far off course from its alleged route, however, and Corpus was unable to provide the name of his agent in St. Thomas. He advised officers of the MCCLOY that the COLOSO II was a Panamanian vessel and provided its registration number. After Corpus denied Officer Rodriquez’s request to board the tugboat, the MCCLOY requested a statement of no objection from the government of Panama.
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radioed the COLOSO II and asked the captain what was being thrown over the side of the tugboat. Corpus denied that the crew was throwing anything overboard. A small boat was lowered into the water from the MCCLOY and one of the officers retrieved three of the bales. The parties stipulated at trial that the three bales were marijuana.
[4] The MCCLOY received the statement of no objection on the morning of September 24, 1987. After Officer Rodriquez communicated this to Corpus, the COLOSO II stopped and officers boarded the vessel and placed the captain and crew under arrest. During the officers’ search of the vessel, they discovered a compartment with a metal hatch behind the “front forward most water tank.” They observed soapy water covering the bottom of the compartment and observed a hole in the compartment which appeared to have been recently cut out. Wet residue was collected from the compartment and, after it was dried, the residue tested positive for marijuana. The living quarters of the COLOSO II included only seven places for people to sleep, although there were nine men aboard. Though the 85-foot tugboat was allegedly on route to pick up a barge in St. Thomas, there was insufficient equipment on board to perform such a tow. The only towing equipment discovered on board consisted of some rusty shackles and some wire cable which was in need of repair. No fenders, which would generally be required for a towing assignment, were found on board the COLOSO II. Appellants were charged in a September 30, 1987 Indictment with violations of 18 U.S.C. § 2 and 46 U.S.C. App. § 1903(a).II.
[5] Appellants moved for a judgment of acquittal under Fed.R.Crim.P. 29 at the close of the government’s case. They failed to renew the motion at the close of all the evidence, however, and therefore waived the traditional sufficiency of the evidence challenge. See United States v. Greenleaf, 692 F.2d 182, 185 (1st Cir. 1982) (“The rule in this circuit is that a defendant who presents evidence and fails to renew a motion for acquittal is deemed to have waived his original motion.”). In order to win a reversal based on insufficiency of the evidence, appellants must demonstrate that their convictions represent a “clear and gross” injustice. Id. We conclude that there is substantial evidence in the record upon which to base the convictions and they are therefore not clearly and grossly unjust.
Furthermore, once on board
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the tugboat, the officers discovered the empty compartment at the bow of the vessel which appeared to have recently been washed with soapy liquid. Residue was collected from the bottom of the compartment, which once dried, tested positive for marijuana. A jury could reasonably find that the government proved a sufficient nexus between the bales of marijuana and the empty compartment to establish that appellants were in possession of the drugs.
[8] The appellants also argue that the government failed to prove that they all knowingly participated in the alleged crime. The government was required to prove that appellants associated themselves with the venture, that they participated in it as something they wished to bring about, and that they sought by their actions to make it succeed. United States v. Campa, 679 F.2d 1006, 1010 (1st Cir. 1982) (citations omitted). Notwithstanding appellants’ protestations to the contrary, knowing participation in a criminal venture may be inferred from circumstantial evidence. United States v. Molinares Charris, 822 F.2d 1213, 1218 (1st Cir. 1987); United States v. Smith, 680 F.2d 255, 259 (1st Cir. 1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 738, 74 L.Ed.2d 960 (1983); United States v. Campa, 679 F.2d at 1010. The attendant facts and circumstances of the voyage in the present case strongly suggest knowing participation by the entire crew. The jury was, therefore, entitled to find that the government satisfied the requisite burden of proof as to all appellants. [9] A reasonable inference of knowing participation in a criminal venture by crew members on a vessel containing illegal cargo can be supported by a variety of factors. These factors include: the length of the voyage, United States v. Beltran, 761 F.2d 1, 6-7(1st Cir. 1985); the quantity of contraband on board the vessel United States v. Cruz-Valdez, 773 F.2d 1541, 1546 (11th Cir. 1985) (en banc); the close relationship of the crew, United States v. Lopez, 709 F.2d 742, 746-47 (1st Cir.), cert. denied, 464 U.S. 861, 104 S.Ct. 187, 78 L.Ed.2d 166 (1983); the presence of extra crew members, United States v. Robinson, 843 F.2d 1, 9 (1st Cir.), cert. denied, ___ U.S. ___, 109 S.Ct. 93, 102 L.Ed.2d 69 (1988); and the lack of an apparent legitimate purpose for the voyage, United States v. Molinares Charris, 822 F.2d at 1219. There was testimony at trial that suggests the COLOSO II left Panama on or about September 17 and stopped in Aruba before being boarded by officers of the MCCLOY on the morning of September 24, 1987. The bales of marijuana involved were estimated at a total weight of almost 12,800 pounds, with an approximate street value of $20,479,000. There were eight crew members and the captain aboard where a total of five or six would have been sufficient for the alleged towing assignment. Furthermore, no usable towing equipment was discovered on the COLOSO II. A reasonable conclusion would be that the large crew was necessary to load and unload the numerous bales of marijuana and that they were all well aware of the drugs on board. Another reasonable conclusion would be that those who organized the operation would not have permitted the appellants to be aboard unless they were all participating in the unlawful efforts. The jury was clearly entitled to disbelieve the appellants’ version of the facts and to conclude that they all knowingly participated in the criminal venture.
III.
[10] Appellants next argue that the district court improperly admitted testimony regarding the marijuana residue discovered in the compartment at the bow of the COLOSO II. They contend that such testimony should have been excluded given that the officers who conducted the field tests failed to save the residue after completion of the tests. According to appellants, they had a right to be confronted with that evidence. The government argues in response
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that this challenge has no merit given appellants’ inability to demonstrate “any specific prejudice suffered by not bringing to court the used field test kits containing the decomposed residue of marijuana.” Brief for Appellee at 29. The government further argues that this challenge is foreclosed by the stipulation regarding the three bales of marijuana that were recovered from the water by officers of the MCCLOY. According to the government, appellants’ position as to the residue contradicts the stipulation as to the bales.
[11] We fail to see how the stipulation forecloses in any way the appellants’ challenge on this issue. The stipulation covers only the substance identification of the three bales which were present in the courtroom at trial. Though the appellants stipulated to the chemist’s report finding those bales to be marijuana, they dispute vigorously the source of those bales. Given that the stipulation does not address the source of the bales, but rather, the content of the bales, it does not foreclose appellants’ challenge of the testimony about the marijuana residue on board the COLOSO II. This challenge questions the government’s proof of the nexus between the marijuana bales and the COLOSO II, and therefore is not foreclosed by the stipulation. [12] In United States v. Picariello, 568 F.2d 222 (1st Cir. 1978), this Court stated that “[w]hen evidence in a criminal trial is destroyed, special scrutiny must be undertaken to ascertain whether defendant’s right to due process has been prejudiced.”Id. at 227. The Court also outlined a three-pronged analysis to be applied in such cases: “First, was the evidence material to the question of guilt or the degree of punishment; second, was defendant prejudiced by its destruction; and third, was the government acting in good faith when it destroyed the evidence.”Id. (citations omitted). [13] Applying this analysis to the present case establishes that appellants’ due process rights were not prejudiced by the destruction of the disputed residue. Though the evidence of the residue and field testing was certainly material to the question of appellants’ guilt, as proof of a nexus between the drugs and the COLOSO II, we cannot say that the destruction of the residue prejudiced appellants in any manner.[4] The initial tests proved negative for marijuana, but after the residue was dried, the tests immediately and repeatedly proved positive for marijuana. There is no indication that preservation of the tested residue would have been exculpatory for appellants. Absent any indication of specific prejudice suffered by appellants, we find no cognizable due process violation. Furthermore, there is no evidence in the record that suggests the evidence was destroyed in bad faith. The small amount of residue collected from the compartment and then dried for testing was used in the field tests and was then destroyed.[5] We accordingly reject this assignment of error.IV.
[14] The appellants have raised various other points in this appeal. We will discuss them briefly. Appellants argue that the grand jury and petit jury institutions of the United States District Court for the District of Puerto Rico violate their right to be tried by a jury of their peers under 28 U.S.C. § 1861 et seq.
The appellants challenge the jury selection process generally because they contend that jurors in Puerto Rico are not proficient in the English language. They filed both a pretrial motion to dismiss the Indictment and a Rule 29 motion at the close of the government’s case
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on this basis. No specific challenges regarding language proficiency were made, however, during the voir dire
examination of the potential jurors. We reject appellants’ generalized challenge on the basis of this Court’s decision i Thornburg v. United States, 574 F.2d 33 (1st Cir. 1978). The time to present this challenge was at voir dire, when defense counsel could have prepared additional questions for the potential jurors regarding their English language skills. Furthermore, appellants have not demonstrated that the “clear injustice” exception recognized in Thornburg applies in the present case. The record reflects that all of the jurors answered all of the district court’s questions in English and remained silent when asked if there were any matters bearing on their ability to serve as jurors. The jurors also remained silent when asked whether anyone was unable to read, write, or understand the English language. We are not persuaded by appellants’ challenge on this point.
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apprise the defendant of what he must be prepared to meet.'”Id. at 763, 82 S.Ct. at 1046 (citations omitted). The indictment must contain the elements of the crime charged and inform the defendant of the charge against which he must defend Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). There is no doubt that the Indictment in the present case satisfies this constitutional threshold. The fact that the Indictment charges a larger amount of drugs in appellants’ possession than the amount proven at trial does not render the Indictment constitutionally infirm See United States v. Miller, 471 U.S. 130, 145, 105 S.Ct. 1811, 1819, 85 L.Ed.2d 99 (1985) (a variance is not material where the government charges a large mail fraud scheme but proves a smaller one). The Indictment, reasonably road, fairly notified the appellants of the smaller amount of marijuana established at trial.
[19] Six of the appellants also argue that they failed to receive notice before trial of the prior criminal record of appellants Corpus, Guerrero, and Gonzalez. They contend that this lack of notice precluded the possibility of requesting a severance, and therefore impaired their right to a fair trial. They are unable to show, however, that any evidence was admitted at trial as to these prior convictions. Without otherwise addressing the merit of this challenge, we conclude that appellants have not demonstrated any prejudice or injury suffered by the alleged lack of notice. Accordingly, we reject this challenge. [20] Finally, appellants raise two arguments regarding the imposition of sentences. The appellants argue that the district court improperly sentenced them under the new Sentencing Guidelines, applicable to crimes committed after November 1, 1987. See Pub.L. No. 98-473 § 235, reprinted at 18 U.S.C. § 3551(effective date of Guidelines). The Sentencing Guidelines would not be applicable here given that the crime occurred in September of 1987. There is nothing in the record to support appellants’ contention, however, and there is affirmative indication that the district court was well aware that the Guidelines are not applicable to these defendants.[7]
Appellants Gonzalez and Guerrero also argue that their sentences, harsher than those imposed on other crew members, amount to cruel and unusual punishment. This challenge is without merit given that both Gonzalez and Guerrero had prior criminal records, and it was within the district court’s discretion to take this into account in determining appropriate sentences. [21] We are also not persuaded by any of the appellants’ remaining challenges on appeal. [22] The judgment of the district court is [23] Affirmed.