USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________
No. 96-1324

UNITED STATES,
Appellee,

v.

MANUEL AMADO GUERRERO,

Defendant, Appellant,
_____________________

No. 96-1325

UNITED STATES,
Appellee,

v.

CRISPINIANO OSPINA,
Defendant, Appellant,
_____________________

No. 96-1326

UNITED STATES,
Appellee,

v.

ORLANDO PILCO,
Defendant, Appellant,
_____________________

No. 96-1327

UNITED STATES,
Appellee,

v.

MANUEL RIVAS,
Defendant, Appellant,
_____________________
No. 96-1651

UNITED STATES,

Appellee,

v.

DIMAS HERNANDEZ,
Defendant, Appellant.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

___________________

____________________

Before

Selya, Circuit Judge,

_____________
Coffin, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

____________________

Luis E. Pabon Roca,

___________________

by Appointment

of the

Court, for appell

Amado Guerrero.
Peter J. Satz-Hanley,
____________________

by Appointment of the Court, for

appell

Crispiniano Ospina.
David A.F. Lewis,
_________________

by

Appointment of

the Court,

for

appell

Federal Public

Defend

Orlando Pilco.
Miguel A.A. Nogueras-Castro, Assistant
____________________________
with whom

Gustavo A. Gelpi, Assistant

_________________

Benicio Sanchez Rivera, Federal

_______________________

Federal Public

Public Defender,

Defender,

were on

brief

appellant Manuel Rivas.

Irma R. Valldejuli, by
___________________

Appointment of

the Court,

for appell

Hernandez.
Jacabed Rodriguez Coss, Assistant
________________________
whom

Jose A. Quiles, Assistant United

______________

United States

Attorney, w

States Attorney, and Guille

______

Gil, United States Attorney, were on brief for appellee.

___

____________________

May 30, 1997

____________________

STAHL,
STAHL,

Circuit
Judge.
Circuit
Judge.
_______________

defendants-appellants

Manuel

Amado

jury

Guerrero,

convicted

Crispiniano

Ospina, Orlando Pilco, Manuel Rivas, and Dimas Hernandez each

of

one

count

possession with

ocean

vessel

of aiding

intent to

subject

to

and

abetting

each

other in

distribute marijuana on

the jurisdiction

of

the

the

board an

United

States,

in

violation of

U.S.C.

2.

On appeal,

46

U.S.C. app.

1903(a)

and 18

the defendants raise various

issues

with respect to their convictions and sentences.

Many of the

issues they ask us to review were not properly brought to the

district

court's

contentions, we

attention.

Finding no

merit

affirm the district court's

to

their

judgment in all

respects.

I.
I.
__

Facts and Prior Proceedings

Facts and Prior Proceedings
___________________________

At

facts.1

Coast

trial, the government established the following

On the

Guard

evening of June 13, 1995, the

Cutter MELLON

was

United States

conducting routine

counter

drug-trafficking patrol on the

America.

At that

time,

the

twenty-knot winds and eight-foot

Morgan

Weber

commanded

vessel,

which

was

the

equipped

high seas off Colombia, South

weather conditions

swells.

heavily

with

two

included

Lt. Comdr. Vincent

armed

378-foot-long

smaller

boats:

____________________

1.

We recount the trial evidence in the light most favorable

to

the prosecution.

See
___

United States
_____________

1492, 1495 (1st Cir. 1997).

-33

v. Ruiz,
____

105 F.3d

motorized surfboat, the MELLON I, and a rigid hull inflatable

boat, the MELLON II.

At approximately

the

Colombia's

radar contact

9:00 p.m., forty

Guajira Peninsula,

the

with an unidentified

miles north

cutter MELLON

vessel.2

As

shore,

Instead,

seas and the

Lt. Comdr. Weber

he

discerned

distance from the

expected to

observe a

forty-foot

long,

made

the MELLON

approached the craft, it directed its search lights

Given the difficult

of

upon it.

nearest

cargo boat.

flagless

recreational craft, travelling in a northeast direction.

The boat rode low in the water, not more than eight

feet above the surface.

than

normal for

vessel's

that

Its cabin was constructed much lower

type

"low profile"

of

recreational vessel.

enabled it

to ride

swells and avoid most radar detection.

hull was light

sported

frequency

in the

The

ocean s

The fiberglass boat's

blue below the waterline and white above.

It

two antennae, a common VHF radio antenna and a high-

antenna

vessel was operating

for long

distance

communications.

without its running

lights on, and

The

no

one was topside.

After

vessel,

Lt.

several unsuccessful

Comdr. Weber

established

attempts

to hail

the

radio communications

____________________

2.

The

evidence also suggested

radar contact

with another

vessel,

some two

Coast Guard

miles away

chose not

from the

to pursue any

first boat,

but the

interaction with

that

vessel.

-44

through

one

master,

Pilco,

identified

of the

as

cutter's

informed

the BLACK

the

CAT,3

interpreters.

Coast Guard

was

The

that

of Honduran

vessel's

the

boat,

registry.

Pilco stated that his last port of call was "Panama" and that

his

next port

of call

statements suspicious

was "Honduras."

because the BLACK CAT

from the stated destination

countries,

Weber

found these

was headed away

and because specific cities, not

usually are identified

as ports of

call.

Pilco

did not respond to Weber's subsequent request to identify the

specific cities in which the ports of call were located.

Pilco

When

asked if

answered,

"no."

the

BLACK CAT

Lt. Comdr.

advised, however, that personnel

inside

the boat's cabin.

water further

Weber

cargo.

carried any

Weber

had

just

cargo,

been

aboard the MELLON saw cargo

The vessel s low

belied Pilco's claim.

position in the

To clarify

the point,

again asked Pilco whether or not the BLACK CAT carried

Pilco again responded

requested permission

in the negative.

Weber then

to board, to which Pilco replied, in an

agitated

voice,

"wait

minute,

wait a

minute,

wait

minute."

Weber repeated the request a few minutes later, but

received the same response.

About the same time, Coast Guard personnel observed

someone

on the BLACK CAT throwing objects overboard.

A boat

____________________

3.

Pilco stated the vessel's

Following the

name in Spanish, "GATO NEGRO."

parties' lead, we use

throughout.

-55

the English translation

team dispatched on

pieces of

Virgin

the MELLON

a navigational

from the

chart depicting the

Islands area east of

then dispatched a boarding

II retrieved

Puerto Rico.

ocean

United States

Lt. Comdr. Weber

team in the MELLON I

to approach

the BLACK CAT.

When

members of

made fuel

the

MELLON

came

the boarding team noticed

tanks covering most of

person could not enter

the fuel tanks.

alongside

the

vessel,

two oversized, custom-

the aft deck.

In fact, a

the cabin area without crawling

Peering into the cabin area with

a spotlight, the boarding

over

the aid of

team observed several crew members

and numerous white-colored bales.

The boarding team failed in its initial attempts to

get

the attention of the

inside the cabin.

emerge,

his

underneath

inside

a time, remained

Soon, however, the crew members

one by one, carrying duffel bags.

hand

reaching

crew, which, for

his

their

shirt, and

bags.

These

began to

One member placed

others

actions

seemed

alarmed

to be

the

boarding team, which quickly advised the crew (in Spanish and

English) to keep their

hands in plain sight.

Concerned for

the boarding team's safety, Gunner's Mate Edward West pointed

an

M16 service rifle toward the vessel.

choppy seas

made

Perhaps because the

communication difficult,

crew did not comply with

the BLACK

the request to keep their

CAT's

hands in

view.

When a crew member

again began to reach

towards his

-66

duffel

bag, the boarding team pulled away from the BLACK CAT

inorder toreassess thesituation anddiffuse therising tension.

When all

topside, the MELLON

five crew members

I again pulled

of the BLACK

up to the

CAT were

vessel.

The

boarding

team

situation

was

boarding

perform

The

had no

weapons drawn

much calmer.

Ensign

officer, told Pilco that

a safety inspection

boarding

difficult.

process,

at

the time,

and the

Joseph Sundland,

the

the Coast Guard wanted to

on the boat.

however,

proved

Pilco consented.

to

be

somewhat

There was very little space available on the boat

for boarding, and the rough sea conditions had caused fuel to

spill on the stern, making for unsure footing.

Moreover, the

construction

room

of

the vessel's

around it on deck.

the BLACK CAT's

stand

cabin

left no

to walk

These circumstances made it dangerous for

crew members,

topside during

who had no

the boarding.

boarding, the boarding team

To

life jackets,

to

facilitate

a safe

had the crew lie down on

top of

the cabin.

Once on

Pilco

again if

presence

objection.

board, members of the

he had

any objection

on board the vessel.

boarding team asked

to the

Coast Guard's

Pilco repeated that he had no

Sundland asked Pilco for permission

into the cabin to check for safety hazards.

to go below

Pilco consented,

and led Ensign Sundland and Firearm Rafael Rivera (who served

as

interpreter)

over the

fuel

-77

tanks and

into

the cabin.

Numerous bales

covered with white plastic

filled almost all

of the interior space, with the exception of a small sleeping

area between the

space forward.

apparently

the ceiling and

a narrow

crawl

One of the bales had been placed by the helm,

to serve as a

the vessel.

unopened,

bales and

seat for the

crew member steering

The cabin also held many food containers, mostly

and a cooler almost

full of fresh

Sundland noticed high-quality,

expensive radio

ice and sodas.

gear on

the

cabin's wall.

The

bales emitted

no

perceptible

odor,

rather,

intense fumes from fuel leaking out of the poorly constructed

tanks

almost

overwhelmed the

Sundland sought

of the bales.

box,

and

inside.

contained.

the cabin.

He cut through heavy plastic

As he

he

in

and received Pilco's permission

discovered

packages,

men

nine

opened one

asked

Pilco

Pilco answered

individually

if

he

knew

to open one

and a cardboard

wrapped

of the smaller,

Ensign

packages

plastic-wrapped

what

the

that he thought it was

package

marijuana

and that someone had hired him to take it from Colombia to an

undisclosed

location.

Field

testing

verified

that

the

packages in fact contained marijuana.

Following

a radio inquiry to Honduran authorities,

at approximately 9:00 p.m. on June 14 (some twenty-four hours

after the Coast Guard initially contacted the BLACK CAT), the

Honduran

government confirmed the vessel's Honduran registry

-88

and authorized the Coast

Guard to enforce United

against the vessel and her crew.4

defendants

securing the

under arrest

States law

The Coast Guard placed the

and seized

the contraband.

vessel's crew and cargo aboard

After

the MELLON, the

Coast

Guard attempted to tow

wake, but the

BLACK CAT

the BLACK CAT

took on

Because the boat's presence

water and

in the MELLON's

began to

sink.

just beneath the ocean's surface

would have created a navigation hazard, Coast Guard personnel

sank the vessel completely with machine gun fire.

In

marijuana,

total,

the Coast

weighing a total

Guard

seized

of 5,596 pounds

million wholesale, $25-41 million retail.

Guard found

no weapons on board

Magellan global

navigation

positioning

device

longitude position.

100 bales

and worth $6-8

Although the Coast

the BLACK CAT,

system ("GPS"),

that determines

of

a vessel's

an

it seized a

electronic

latitude and

When asked, Pilco could not present any

cargo manifests or other commercial papers.

According to the government's witnesses, commercial

cargo

normally is not transported in the manner in which the

unlabeled bales were

On

the contrary,

typical

for

bundled and arranged on the

the

bales had

contraband.

In

been

packed in

particular,

the

BLACK CAT.

manner

evidence

____________________

4.
the

At trial, the government introduced a

United States

Secretary

of State

certification from
and his

designee to

prove the Honduran government's confirmation of registry

authorization to enforce U.S. law.

-99

and

suggested

protect

the

that

the

waterproof

the contraband during

high seas.

assistance

of

Transfers

long

packaging was

to

vessel-to-vessel transfers on

of this

distance

intended

type often

radios

and

require the

sophisticated

navigational equipment, such as the Magellan GPS, to pinpoint

the time and place of the rendezvous.

Following

defendants

Pilco

Pilco and

the

government's

Rivas testified

asserted that he had

case

on their

been hired to

in

chief,

own behalf.

transport what he

thought was a coffee cargo -- at $5 per bale -- to Aruba, and

that

he set sail roughly

around midnight on

He testified that during the

MELLON, he

June 12, 1995.

initial contact with the cutter

did inform the Coast Guard that the BLACK CAT was

carrying cargo.

He also claimed that he had

told the Coast

Guard that his last port of call was "Puerto Panama," located

on Colombia's Guajira Peninsula, and that his destination was

"Aruba," not

that

he thought

that he had no

the

"Honduras."

He denied

the bales

telling Ensign Sundland

contained marijuana,

cargo manifests or commercial

and stated

papers because

person who hired him, rather than a maritime agency, was

to receive the shipment.

Rivas testified that

who

usually worked

he was an experienced

on merchant

voyage, he had been hired for

ships.

seaman

For the

BLACK CAT

$200 as a helmsman.

He stated

that he met

the rest of

the crew for

the first time

after

-1010

being

driven

Rivas

could not state

Puerto

Panama.

to Puerto

He

Panama

on

the Guajira

with any specificity

asserted that

the

Peninsula.

the location of

bales were

already

inside the cabin when he arrived at the boat dock and that he

noticed nothing unusual about them.

Rivas also claimed that

he did not hear the word "marijuana"

until it was uttered by

one of the Coast Guard officers.

At

court

the close

denied

the

of

all the

defendants'

Subsequently, the jury found

U.S.C. app.

1903(a),

the possession --

on

board a

evidence, the

motions

for

acquittal.

each defendant guilty, under 46

of aiding and abetting each

with intent to distribute

vessel.

district

On

appeal,

other in

-- of marijuana

Pilco contends

that

the

involuntariness of his statements to the Coast Guard rendered

the

statements

defendants argue

State

was

inadmissible

against

him at

that a certification from

inadmissible

to

prove

the

trial.

All

the Secretary of

United

States'

jurisdiction over the vessel.

With the exception of

Pilco,

the defendants also claim that the government failed to prove

their knowing participation in

the drug trafficking offense.

Ospina, Rivas, and Hernandez claim

instructions,

and

Guard's eventual

process rights.

error in the court s jury

Hernandez further

argues that

destruction of the vessel

the Coast

violated his due

Last, Rivas and Ospina challenge the court s

sentencing determinations.

-1111

II.
II.
___

Admission of Pilco's Statements at Trial

Admission of Pilco's Statements at Trial
________________________________________

Pilco contends that he did not voluntarily make the

incriminatory

boarded

the

statements

BLACK CAT

at

Specifically,

cutter

statements

trial

Pilco

to

the

and that

violated

relies on

was over 370-feet

Coast

the

Guard

use of

his right

the

long and

after

those alleged

to

due

following

process.

facts.

heavily armed

BLACK CAT was only 40-feet long and unarmed.

they

The

while the

At one point, a

member

at

of the Coast Guard boarding team pointed an M16 rifle

the BLACK CAT crew.

team had the

Finally, upon boarding, the boarding

crew lie down on top of the boat because of the

dangerous seas.

Following

U.S.C.

a voluntariness

3501(a),5 during

the district court found

both the boarding and the

hearing pursuant

which Ensign

to 18

Sundland testified,

that Pilco voluntarily consented to

subsequent cabin inspection.

The

court ruled that the boarding, coupled with Ensign Sundland's

non-threatening

coercion.

inquiries, amounted

The court further

the statement,

neither to

custody nor

observed that, at

the time of

Pilco could have requested

to leave, and the team would

have complied.

the boarding team

Thus, the court

____________________

5.

18

hearing

U.S.C.
out

voluntariness

3501 requires
of

the

jury's

a trial
presence

and admissibility

of

judge to
to

conduct a

determine

a confession

or

the
self-

incriminating statement made during detention or arrest.

-1212

concluded, the statement was

3501.6

voluntary within the meaning of

The ultimate voluntariness determination involves a

question

of law subject to plenary review.

Cleveland,
_________

106

F.3d

1056,

"scrutinize[] a district

its credibility

1064

(1st

United States v.
_____________

Cir.

1997).

We

court's factual findings, including

determinations, for traces of

clear error."

United States v. Valle, 72 F.3d 210, 213-14 (1st Cir. 1995).

_____________
_____

Upon careful examination of the evidence introduced

at

the

3501 hearing, we find no clear error in the court's

subsidiary

Pilco's

factual findings

statement.

credibility of which was

72 F.3d at 214, plausibly

members

had no

regarding the

Ensign

Sundland's

voluntariness of

testimony,

a matter for the court,

the

see Valle,
___ _____

established that the boarding team

weapons drawn

at the

time of

the boarding

request,

that Pilco

freely

consented to

the boarding

and

search, and that his demeanor was "very calm" when he granted

Ensign Sundland permission to inspect the cabin and to open a

bale.

Examining the totality of the circumstances, we cannot

say

that Pilco's will

was

not his

Jackson,
_______

918

free

F.2d

was "overborne so

and voluntary

236,

241

that the statement

act."

(1st

United States
______________

Cir.

1990)

v.

(internal

____________________

6.

We note

that Pilco only challenges

his statements under 18 U.S.C.

touch upon the absence

3501.

the voluntariness of
His argument does not

of Miranda warnings or the

_______

which any potential Miranda issue affects his

_______

-1313

manner in

3501 claim.

quotation marks

and citation

omitted).

See
___

Schneckloth v.
___________

Bustamonte, 412 U.S. 218, 225-27 (1973) (discussing totality__________

of-circumstances approach when determining voluntariness of a

confession);

see also United States v. Kimball, 25 F.3d 1, 8

___ ____ _____________
_______

(1st Cir.

1994) (finding

expressly

agreed

to

consent voluntary where

accompany

police

to

defendant

station,

never

indicated

an

unwillingness to

do

so, and

police

did not

coerce or intimidate defendant into going with them).

Pilco's

Therefore,

we agree with

statement was

voluntary,

the district

and thus,

court that

admissible

at

trial.7

III.
III.
____

Sufficiency of the Evidence

Sufficiency of the Evidence
___________________________

The

and

government charged the

abetting each other in

1903(a).

To prove

the government

the violation of

46 U.S.C. app.

the defendants' violation of

needed to

____________________

defendants with aiding

prove, beyond a

1903(a),

reasonable doubt,

7.

18

U.S.C.

3501

does

not require

the suppression

of

involuntary statements unless the person was "under arrest or

other

detention"

U.S.C.
made

3501(d).

whether he

3501(d).

We

boarding

made

find that

statement, we

was in

the statement.

Pilco voluntarily

need not

custody within

18

address the

the

meaning of

note, however, that the

consensual nature of

renders

of

requirement highly
774 F.2d 530,

time he

Because we

the incriminating

question

the

at the

the

existence

unlikely.

535 n.3

this

threshold

Cf. United States

___ _____________

(1st Cir. 1985)

custody" during routine boarding

v. Elkins,
______

(defendants not

and inspection of

"in

American

flagship even though crew was "confined to one section of the

boat
States
______

during the
v. Lopez,
_____

lengthy
709

Coast

F.2d 742,

(suggesting similar conclusion).

-1414

Guard inspection");
745

n.3 (1st

Cir.

United
______
1983)

that: (1) the BLACK

the

CAT was "subject to the

jurisdiction of

United States"; (2) the material found on the vessel was

a controlled

intentionally

intent

substance; and (3) the

possessed

to distribute

it.

defendants knowingly or

the controlled

46 U.S.C.

United States v. Piedrahita-Santiago,

_____________
___________________

substance

app.

with the

1903(a).

See
___

931 F.2d 127, 130 (1st

Cir. 1991).

The defendants

moved

for judgment

pursuant to Fed. R. Crim. P. 29, after

government's case in chief

of

acquittal,

the conclusion of the

and again after the close

of all

the evidence.

The district court denied both motions.

the defendants do not

the

While

dispute the evidentiary sufficiency of

government's proof

of

the second

element, they

raise

challenges regarding the first and third elements.

A. Standard of Review
______________________

We

review

the

Rule

29

determination

de
__

novo,
____

resolving any evidentiary conflicts or credibility issues

the

1492,

this

government's favor.

See United States v. Ruiz, 105 F.3d

___ _____________
____

1495 (1st Cir. 1997).

lens, "permits a

evidence

is

If the

evidence, viewed under

rational jury to

element of the crime charged

the

in

legally

find each essential

beyond a reasonable doubt, then

sufficient."

United States
______________

v.

Olbres, 61 F.3d 967, 970 (1st Cir.), cert. denied, 116 S. Ct.
______
_____ ______

522 (1995).

inferences

In this analysis, "[w]e defer, within reason, to

formulated

by the

jury

in

the

light

of

its

-1515

collective

understanding

circumstances revealed

of

by the

human

evidence."

behavior

in

the

United States v.
______________

Passos-Paternina, 918 F.2d 979, 985 (1st Cir. 1990).

________________

Because Pilco and Rivas presented a defense (by way

of their

own testimony),

they have

waived review

initial Rule 29 motions, made after the government's

chief.

See Ruiz, 105

___ ____

reviewing

their Rule 29

most favorable

defense

F.3d at 1495 n.1.

case."

of their

case in

For that reason, in

appeal, "we consider,

in the light

to the verdict, the evidence presented in the

Id.
___

Practice and Procedure

______________________

(citing 2

Charles A.

Wright, Federal
_______

463, at 643-45 (1982)).8

B. United States Jurisdiction Over the Vessel

______________________________________________

The first element of

government

1903 offense requires the

to prove that the BLACK CAT was "a vessel subject

to

the jurisdiction

of

Paternina, 918 F.2d at

_________

129

(stating that

question

under

the United

States."

See
___

Passos_______

981; Piedrahita-Santiago, 931 F.2d at

___________________

the

jury determines

1903).

Vessels

the

subject to

jurisdictional

United States

jurisdiction include "a vessel registered in a foreign nation

____________________

8.

It

is

unclear

whether

or

not

the

non-testifying

defendants, Guerrero, Ospina, and Hernandez, intended Pilco's

and
them.

Rivas' testimony

to constitute

defense-evidence as

to

While the non-testifying defendants' attorneys did not

participate in the examination of Pilco and Rivas (except for

a couple

of objections),

they also

did not

expressly rest

their case until after Pilco's and Rivas' testimony.

Because

the evidence the government presented in its case in chief is

sufficient to convict the non-testifying defendants, we
not resolve the issue.

-1616

need

where the flag

nation has consented

the enforcement of

1903(c)(1)(C).

foreign

nation's

telephone, or

proved

or waived objection

United States law by the

to

United States."

Section 1903 specifically provides that the

consent

similar oral or

by certification

Secretary's designee."

of

"may

be

obtained

by

radio,

electronic means, and

may be

the Secretary

1903(c)(1).9

of State

or the

To prove that the government of Honduras authorized

the enforcement

of United States

law against the

BLACK CAT

and her crew, the government introduced various Department of

State documents in which Joseph A. Conroy, Jr., the Secretary

of State's designee for

the

events leading

objection.

B.J.

1903 certifications, certified

to the

In pertinent

Niesen,

Guard

Department's

Bureau

of

Enforcement,

contacted

Honduras to

waiver of

part, Conroy certified that Captain

Coast

Embassy in

Honduran government's

to

Liaison

Officer

International

Major John

request the

C.

to

the

Narcotics

Sumner

Embassy

and

State

Law

of the

U.S.

to inform

the

Honduran government of the contraband on board the BLACK CAT,

____________________

9.

We analyze

U.S.C.

app.

this case
1903,

tried and convicted.

to

under the

pursuant to

pre-1996 version of

which the

46

defendants were

We acknowledge that the 1996 amendments

1903 provide that the Secretary of State's certification

"conclusively" proves a
United

States

foreign nation's

jurisdiction over

element of an offense, but rather,

law for the trial judge.
(Supp.

1997).

consent, and

vessels

is

no

opinion

as

validity or interpretation of these amendments.

-1717

no longer

an

a preliminary question of

See 46 U.S.C. app.

___

We express

that

1903(c) & (f)

to the

scope,

to receive

and

to

confirmation of

seek authorization

States law.

Conroy

the claim of

for

the

Honduran registry,

enforcement of

United

certified that Major Sumner subsequently

contacted Captain Niesen and

reported the following: (1) Lt.

Claudia Castilla, Assistant Director of the Honduran Maritime

Directorate, had -- "on behalf of the Government of Honduras"

--

authorized the boarding and

Javier Ponce

of the

Honduran Merchant Marine

BLACK CAT's Honduran registry;

the

Honduran

searching of the vessel; (2)

and (3) Ivan Flores, Head

Maritime Security,

had --

Government of

Honduras"

government to

enforce United States law

crew and contraband.

--

confirmed the

authorized

"on behalf

the

United

of

of the

States

against the vessel,

At

trial,

admissibility

of

complained that

from

the

consent.

these

defendants

documents

government

admitted the

and

precedent

the

on hearsay

grounds

and

Ospina

confirming

Javier Ponce,

and

On

with

establish

Ivan

that

nation's

with the defendants'

proof of

appeal, Guerrero,

perfunctorily

Pilco raises

failed to

produce a document

documents as sufficient

dispensing

Additionally,

government

against

The district court disagreed

jurisdictional element.

Hernandez

argued

the government failed to

Honduran

position and

the

the

the

challenge

hearsay

new argument,

that Lt.

Flores had

the

Rivas,

circuit

argument.

viz, that
___

the

Claudia Castilla,

authority

of

the

-1818

Honduran government

to confirm

registry and consent

to law

enforcement action.

We

have

previously

unavailing both because

found

the

hearsay

1903's language reveals

explicit contemplation of the use

argument

Congress'

of "what might normally be

considered 'hearsay'" to prove jurisdiction, United States v.

_____________

Romero,
______

32 F.3d 641, 649 (1st Cir. 1994), and because "[t]he

State Department Certification falls squarely

Evid.

803(8)(A)," id. at 650.

___

See Fed.
___

within Fed. R.

R. Evid. 803(8)(A)

(excepting from the hearsay rule public agency statements "in

any

form" setting

forth "the

activities

of the

office or

agency"); see also United States v. Mena, 863 F.2d 1522, 1531
___ ____ _____________
____

(11th

Cir.

1989)

(explaining

expression of consent

verbal act,

contract,

"is not

similar to the

to

significance").

in this respect.

which

the

that

foreign

hearsay at all

government's

but rather

utterances involved in

law

attaches

making a

independent

We see no reason to alter Romero's reasoning

______

We

also

contention that

introduce

Honduran

find

unavailing

the government

written

government.

defendants'

was required to

statement

While

the

of no

foreign government's consent through a number

means,

see
___

indicates

Mena, 863
____

the

procure and

objection

the government

trial

from

may

prove

the

of alternative

F.2d

at

1531, section 1903

plainly

sufficiency

of

the

State's

-1919

Secretary

of

certification

to

prove

that

fact.

See
___

46

U.S.C.

1903(c)(1) (stating that the foreign nation's

be proved by certification

designee"); Romero,
______

that

"was designed

for

1903

the

government

by

consent "may

of the Secretary of State

Secretary's

32 F.3d at

burdensome task of obtaining

the

or the

649 (explaining

to ease evidentiary

avoiding

app.

requirements

time-consuming

and

official documentation from the

claimed country of registry").

We

transform

that

the

are equally unpersuaded

his trial

argument

certification

was

by Pilco's

into his

attempt to

present contention:

inadmissible

because

the

government

persons

did

in

enforcement

not show

the

Honduras

who

action.

Because

authoritative

authorized

Pilco

United

failed

argument below, we review for "plain error" and

if

an

"obvious"

or

"substantial rights."

734 (1993).

"clear"

error

exists

United States v. Olano,

_____________
_____

status of

the

States'

law-

to raise

this

reverse only

that

affects

507 U.S. 725,

See Fed. R. Crim. P. 52(b).

___

In Romero, the Colombian government refuted a claim

______

of Colombian registry, thus

and therefore subject to

U.S.C. app.

rendering the vessel "stateless"

United States jurisdiction under 46

1903(c)(1)(A).

See
___

32 F.3d at

647-48.

government proved the jurisdictional element through

The

a State

Department certification,

much like

explaining the events leading

the one at

issue here,

up to Colombia's refutation of

-2020

registry.

scheme

through

See id. at
___ ___

648.

of permitting proof

certification meant

We reasoned

of certain

that

that the statutory

jurisdictional facts

"the government

need not

prove

that the vessel is in fact without registry in another

country, nor must

it prove that the

or refutation of registry

properly made."

foreign nations' denial

is valid, legitimate, or otherwise

Id. at 649.
___

defendant's endeavor to prove

We declined to decide whether a

actual registry facts would be

irrelevant under the statutory scheme, and expressly reserved

the questions whether and when a defendant may challenge "the

actions of

foreign nations in situations

determination, probably by the court,

certification was being offered."

In this case, Pilco

of

the

Honduran

clarification

of

as to whether a proper

Id. at 649 n.3.

___

seeks to question the validity

government's

the

that might warrant

source's

consent

authority.

by

requiring

His

challenge

touches upon the preserved issue in Romero, i.e., whether and

______

to

what

extent

defendant

Department's certification to

and factual underpinnings.

resolve the issue,

does

not

call upon

to

look

us to

behind

challenge its

correct

-2121

occasion to

unobvious errors.

*6 (U.S. May 12, 1997)

State

standard of review

117 S. Ct. 1544, ___,

be "plain," the error must be

the

representations

We have not yet had

and the "plain error"

Johnson v. United States,

_______
_____________

1997 WL 235156, at

may

See
___

No. 96-203,

(indicating that,

clear at least at the time

of

appellate review

colorable

claim

fraudulently or

n.3.

Thus,

).

that

Moreover, Pilco

the

in bad faith.

we decline

does not

raise a

was

prepared

certification

See
___

to decide

Romero, 32 F.3d
______

whether a

at 649

defendant may

contest the authority of the source of the consent or whether

Congress

intended

to

leave

that

matter

to

the

State

Department's expertise.

In the absence of error, plain or otherwise, in the

district

court's

admission

certification, we

of

the

Secretary

of

find the evidence sufficient

first element of 18 U.S.C.

State's

to prove the

1903(a).

C. Knowing Participation
_________________________

Rivas, Guerrero, Ospina,

the

government

failed

1903(a) offense, their

substance

to

and Hernandez claim

prove the

third

element

knowing possession of a

with the intent to

distribute it.

not dispute the fact that they were

that

of

controlled

While they do

hired as crew members to

assist in the BLACK CAT's shipping of cargo, they assert that

the evidence was insufficient to establish that they knew the

bales

contained contraband.

argue, their "mere

Absent

that knowledge,

presence" aboard the BLACK

they

CAT could not

rise to the level of aiding and abetting the drug-trafficking

offense.

U.S.C.

To

prove aiding

2,

the government

and

abetting liability

needed

to

under 18

establish that

the

-2222

defendants "'participated in the

venture and sought by their

actions

F.2d

to make it succeed.'"

859, 864

(1st

Cir. 1988)

United States v. Steuben, 850

_____________
_______

(quoting

United States
_____________

Quejada-Zurique, 708 F.2d 857, 859 (1st Cir. 1983)).

_______________

presence at the

scene or

even knowledge that

v.

"'Mere

the crime

is

being committed is generally insufficient to establish aiding

and

abetting.'"

Steuben, 850
_______

F.2d at 864 (quoting Quejada________

Zurique, 708 F.2d at 859).

_______

The

establishes

question

a defendants'

controlled substance is

the

whether

the

knowledge

evidence

of the

sufficiently

presence of

distinct from, although

related to,

issue of a defendant's level of participation in a drug-

trafficking

venture.

Thus,

for example,

even

when

the

government proves

was

that a

defendant knew that

her residence

used by a co-occupant to sell drugs, the government must

additionally

venture.

Cir.

prove that she

See United States v. Ocampo, 964 F.2d 80,

___ ______________
______

1992) (involving

Hyson, 721 F.2d 856,

_____

cases,

well

proof of

as

participated criminally

82 (1st

conspiracy charge); United States v.

______________

862-63 (1st Cir. 1983) (same).

sufficient participation

knowledge

in the

of

it,

is

required

in the

to

In such

crime, as

convict;

the

defendant's "mere presence" at the scene of criminal activity

is not

enough.

By

like token, where, as

actively participates in a

here, a defendant

venture, but denies any knowledge

-2323

of

the

venture's

illegal

nature,

the

government

must

adequately prove knowledge, more so than participation.

With the

government

prove

largely

the

transportation

exception of its case

relied upon

defendants'

a controlled

against Pilco, the

circumstantial

knowing

evidence to

participation

substance.

In

in

the

circumstantial

cases such as this one, the evidence is sufficient to convict

if

it

adequately

inference'":

supports

(1) that

illegal activity and

"the

the vessel

(2) that

F.2d

at 867).

was engaged

each defendant

assist in the criminal enterprise.

Perez, 869 F.2d 9,

_____

requisite

where

was ready

"the

Steuben, 850
_______

from second-guessing

inferences

to

United States v. Jimenez_____________

________

inferences and ensuing conclusions drawn

evidence

in obviously

11 (1st Cir. 1989) (quoting

We refrain

'two-step

derive

the jury's

from circumstantial

support

from

plausible rendition of the record" and where "the conclusions

flow

rationally from

those inferences."

Spinney, 65 F.3d 231, 234 (1st Cir. 1995).

_______

United States v.
______________

1. Knowledge of Controlled Substance

_____________________________________

The defendants place great weight on the absence of

evidence

reason

that the bales emitted any odor of marijuana.

that

without

this

evidence,

rationally infer their knowledge of

have eschewed,

however, a

particular indication of

jury

could

the bales' contents.

myopic inquiry into

They

not

We

whether "one

knowledge (such as a smell) did, or

-2424

did not,

exist."

(1st Cir. 1988).

United States v. Robinson, 843

______________
________

Instead, we must "look[] at the evidence as

whole in the light

leav[e] to

F.2d 1, 8

most favorable to

the jury the power to

the government, and

make any reasonable set of

common sense assumptions about

the working of human nature."

Id. (internal
___

and citations omitted).

quotation marks

United States v. Molinares-Charris,

_____________
_________________

Cir.

1987) (finding

See
___

822 F.2d 1213, 1220 (1st

circumstantial evidence

of defendant's

active participation in illegal cargo transport sufficient to

prove

knowing participation

even

assuming

hidden in scent as well as in sight").

marijuana

"was

Thus, in the absence of evidence of marijuana odor,

we

turn to

government

the

other factors

to determine

whether or

not the

sufficiently established the

crew's knowledge of

presence of a controlled substance.

We have previously

looked

to

factors such

relationship,

the

as

length

condition of the vessel,

absence

of

legitimate

the

of

closeness

the

the

and

the quantity of marijuana, and

the

for

the

the

crew's

size

purpose

voyage,

of

voyage.

See
___

Robinson, 843 at 8-9; see also Molinares-Charris, 822 F.2d at

________
___ ____ _________________

1219-20;

1983).

United States v. Lopez, 709 F.2d 742, 747 (1st Cir.

_____________
_____

These factors,

while not exhaustive,

where the circumstantial evidence

indicate that

permits a jury to conclude

that activities aboard a

of

contraband,

the jury

vessel concern the obvious presence

reasonably

may

infer the

crew's

-2525

knowing participation in the venture.

See Molinares-Charris,
___ _________________

822 F.2d at 1218; Quejada-Zurique, 708 F.2d at 859-860.

_______________

In this

case, although the bales

of marijuana had

been packaged carefully and

facts

permit

conspicuously

jury

emitted no odor, the surrounding

finding

involved

in

controlled substance.

the

that

the

illegal

According to the

BLACK

CAT

transport

was

of

trial evidence, the

vessel's low-profile construction signalled its plain purpose

to avoid detection.

See
___

641,

1994) (involving

644 (1st

vessel).

Cir.

The vessel

United States v.
_____________

had been equipped

Romero, 32
______

F.3d

similarly constructed

with expensive

and

sophisticated radio and navigational gear that, the testimony

suggested, was generally intended

voyages and unusual for this

id.;
___

Passos-Paternina,
________________

918

to assist in long-distance

small recreational vessel.

F.2d

at

985.

See
___

The

disproportionately

aft deck and the

large fuel tanks

awkwardly placed on the

plentiful, undepleted food supply indicated

that the BLACK CAT had recently embarked on what was expected

to

be a long journey.10

The

use of a recreational craft to

____________________

10.
taken

The government
only

twenty

interception

to

evidence suggested
would have

introduced evidence
hours

Aruba,

to

the purported

that the

been unnecessary

evidence also

travel

that it
from

the

established that had the

point

destination.

plentiful food and

for the

would have

claimed

of
This

fuel supply
voyage.

The

vessel departed from

Panama as originally claimed, the voyage would have taken two

to three days
been

and at least

one-half of the fuel

would have

used to reach the point of interception, some 400 miles

away from the nearest Panamanian port.

-2626

carry the large

shipment, without commercial

documentation,

beyond the normal area of operation for such a vessel further

evinced the voyage's illegitimate purpose.

F.2d

at 9

supplies

(involving a "'mudboat,'

oil

rigs

in

the

Gulf

Cf. Robinson, 843

___ ________

a vessel

of

Mexico,"

that normally

found

near

Bermuda).

Perhaps most telling for

were

the

numerous unlabeled

the purposes of this case

bales,

wrapped

in a

fashion

typical for controlled-substances likely to be

sea.

off-loaded at

The bales were so ubiquitous that they left

stand or

sit

Santiago,
________

in the

931

cramped

F.2d at

131

cabin.

("[A]

Compare
_______

no room to

Piedrahita___________

relatively small

vessel

carrying a large quantity of drugs is indicative of knowledge

and involvement on the part of the crew."); with Steuben, 850

____ _______

F.2d at

868-69 (reversing conviction where,

inter alia, the

_____ ____

government failed to produce evidence that defendant knew the

illegal nature of cargo concealed in barge towed behind tug).

The

rough

seas

and the

limited

space

to

stand on

deck

permitted the inference that the crew spent its time together

below, among the bales.11

Finally, the crew's emergence from

____________________

11.

The proximity of the crew on board the BLACK CAT is also

indicative

of

the closeness

of

their

relationship.

See
___

Robinson, 843 F.2d at 8 (noting evidence that crew member had

________
spent

time

on

relationship).
may

have

The evidence

been larger

vessel during
931 F.2d at

captain's

deck

as

probative

of

close

further suggested that the crew

than necessary

its stated journey.

to operate

the small

See Piedrahita-Santiago,
___ ___________________

130 (involving seven crew members

on forty-foot

vessel that "would ordinarily require a crew of only three or

-2727

the cabin area with

Guard's approach

had been caught

their belongings in hand upon

permits the

inference that they

in an illegal venture,

the Coast

knew they

and would eventually

be arrested.

Although

these

facts,

in

isolation,

do

not

necessarily lead to the conclusion that the crew members knew

the bales

they

contained a controlled substance,

constitute

finding

of

ignorance,12

also
____

more

positive

than

United States
_____________

1992) (explaining

enough evidence

knowledge,

of that fact.

in combination,

or

at

to

least

support

deliberate

See Robinson, 843 F.2d at 9; see

___ ________
___

v. Ortiz,
_____

that "juries

966 F.2d

707, 711

are not required

(1st Cir.

to examine

the

evidence

in

isolation,

for

'individual

pieces

of

evidence, insufficient in themselves to prove a point, may in

cumulation prove it.

may well

The sum of an

be greater than its

Bourjaily
_________

evidentiary presentation

constituent parts.'") (quoting

v. United States, 483

______________

U.S. 171,

179-80 (1987)).

"[a] larger crew

than ordinarily

____________________

four" and
needed
hired

explaining that

for navigation

purposes suggests

for the purpose of loading

that the

crew was

and unloading cargo rather

than merely steering the vessel").

12.

Where

"'the

facts

deliberate ignorance,'"

suggest
a jury

conscious

is warranted in

course

of

finding the

defendants' deliberate ignorance of criminal events, which is

tantamount to knowledge.
at 1006,

1023-24 (1st Cir.

Littlefield, 840 F.2d

___________
district

United States v. Cassiere, 4

_____________
________

court

1993) (quoting United States v.

______________

143, 148

instructed

F.3d

the

n.3 (1st Cir.

jury

on

1988)).
the

The

deliberate

ignorance, or

willful blindness,

theory of knowledge.

See
___

infra Part IV.

_____

-2828

The

government's

proof

need

not

have

"exclude[d]

every

reasonable hypothesis of innocence," Robinson-Munoz, 961 F.2d

______________

at

that

305, and

the evidence

unwitting

bystanders

permitted a

would

reasonable inference

not have

been

hired

to

participate in

the BLACK CAT's obvious

illegal transport of

millions of dollars' worth of contraband.

See
___

United States
_____________

v. Cuevas-Esquivel, 905 F.2d 510, 515 (1st Cir. 1990); United

_______________
______

States
______

v. Luciano-Pacheco, 794
_______________

F.2d 7, 11

United States v. Guerrero-Guerrero,

_____________
_________________

Cir.

1985).

While the

(1st Cir. 1986);

776 F.2d 1071, 1076 (1st

jury could have

found that the crew

sincerely believed that the bales contained legitimate cargo,

the evidence certainly did not compel that conclusion.

2. Participation
_________________

We

their

now turn

to

the

defendants' contention

"mere presence" aboard the

the level

of aiding

and abetting.

BLACK CAT did

For the most

that

not rise to

part, the

evidence establishing

of

the cargo

disposes

their knowledge of

of this

the illegal nature

issue.

Additionally,

the

evidence permitted the reasonable conclusion that the purpose

of

each defendant's presence aboard the vessel was to assist

in

the transport

example, the

and handling

of the

illegal cargo.

large quantity of cargo made

For

travel aboard the

vessel uncomfortable, thus belying any lawful purpose such as

-2929

pleasure-cruising,

Because

more

educational

the crew's presence

than

coincidental

experience, or

on board the

association

adventure.13

BLACK CAT evinced

with

the

criminal

venture, a jury could rationally infer that the circumstances

"fairly imply participatory involvement."

United States
_____________

v.

Echeverri, 982 F.2d 675, 678 (1st Cir. 1993) (also explaining
_________

that

the "mere presence" argument

holds no water "where the

'mere' is lacking").

We find, therefore, that the evidence supported the

requisite two-step

in the

inference: (1) the BLACK

obvious transportation of a

(2) each defendant

dispute that

controlled substance and

was ready to participate

See Jiminez-Perez, 869

___ _____________

F.2d at

the large

11.

quantity of

CAT was engaged

The

in the venture.

defendants do

marijuana on

not

board the

vessel permitted the inference of an intent to distribute the

controlled substance.

See Echeverri, 982 F.2d at 678.

___ _________

we

evidence was sufficient

conclude that the

the defendants,

aiding and

abetting

Thus,

to prove that

each other,

knowingly

Mehtala, 578 F.2d 6, 10

_______

(1st Cir.

____________________

13.

Cf. United States v.

___ _____________

1978)

(finding no

criminal

participation given

packages of easily concealable

evidence

indicating that

the

small

contraband and the absence of

defendant "embarked on

the voyage

for any purpose other than a pleasure cruise"); United States

_____________
v. Francomano, 554
__________
convictions
Mehtala
_______
of

of

F.2d 483, 486 (1st

crew

members

on same

and noting that crew consisted

funds,

seeking

travel

for

adventure").

-3030

Cir. 1977) (reversing

voyage

involved

in

of "young men, short

educational

experience and

possessed a controlled substance, marijuana,

with the intent

to distribute it.

In

light of

the above,

we find

no error

in the

district court's denial of defendants' motions for acquittal.

IV.
IV.
___

Jury Instructions
Jury Instructions
_________________

Ospina,

Hernandez,

and

Rivas

district court committed reversible error

jury on

reasonable

presence.

during

doubt, deliberate

argue

that

the

in instructing the

ignorance,

and

mere

Although the defendants raised their concerns both

a formal charge

conference and in

writing, they did

not renew their

objection after the court

charged the jury.

This procedural

default triggers only "plain

error" review.

See United States v. Mendoza-Acevedo, 950 F.2d 1, 4 (1st Cir.

___ _____________
_______________

1991).

Citing

United States
_____________

(1st Cir. 1995), the

to include

one

the following

jury

reasonably permitting

adopt

the

16, 23

instruction when

discussing

"If you jurors, view the evidence in the

of innocence, the other

course

49 F.3d

defendants requested the district court

"reasonable doubt":

case as

v. Andujar,
_______

either of two

of guilt --

conclusion

of

conclusions --

the jury should of

innocence."

The

court

an appellate

court

rejected the proposed instruction.

In Andujar,
_______

must

reverse

we explained that

a conviction

on

the

grounds of

evidentiary

-3131

insufficiency

"where

an equal

or

nearly

equal theory

of

guilty and a theory of innocence is supported by the evidence

viewed in the light most favorable

at 20

to the verdict."

(internal quotation marks and citations

such cases,

"a reasonable jury must

49 F.3d

omitted).

In

necessarily entertain a

reasonable

appellate

into

doubt."

review,

a proper

Id.
___

Our explanation

however, does

not

jury instruction.

The

of the

scope of

necessarily translate

defendants' proposed

instruction comes close to making a comparison between "guilt

or

innocence," which,

"'risks

undercutting the

that they should find

is

not

if

innocent

--

suggested as

government's burden

regardless

been.'"

Acevedo,
_______

4).

at

against

overdefining

(noting

that attempts to

obfuscate

by suggesting

the defendant guilty if they

government's proof has

950 F.2d

equal alternatives,

of

Id. at
___

Given

"reasonable

how

convincing

the

24 (quoting Mendoza________

our repeated

doubt,"

clarify the

think he

see
___

admonition

id.
___

concept may

at

23

serve to

it), we find no plain error in the court's refusal

to adopt the proposed instruction.14

____________________

14.

At oral argument before

us, Hernandez suggested for the

first time that the court erred in using the phrase "hesitate
to act" when

discussing reasonable doubt.

that new issues raised at

oral argument are normally

waived, see United States v.

___ _____________
n.1

De Leon Ruiz, 47 F.3d

____________

(1st Cir. 1995), out of an

carefully

reviewed

the

Despite the fact

deemed
452, 455

abundance of caution we have

court's

charge.

Although

the

"hesitate to act" language is "arguably unhelpful," Gilday v.

______
Callahan, 59 F.3d 257, 264 (1st Cir. 1995), cert. denied, 116
________
_____ ______
S. Ct. 1269 (1996), under our reasoning set forth in Andujar,
_______
49 F.3d at 23-24, we find no error.

-3232

Hernandez

court's

instruction

immediately

confused the

by

its

further

on

"deliberate

charge

jury regarding

abetting liability.

complains

that

the

district

ignorance,"

followed

concerning

"mere

presence,"

the requirements of

aiding and

We disagree.

The

court instructed the

jury that a defendant's knowledge of a particular fact may be

inferred

the

obvious.

word[s]

mere

from proof that he

The court

'mere presence'

deliberately closed his eyes to

then stated, "[y]ou

have heard the

in this

explained that

presence at the scene

case," and

of a crime,

or mere association

between

the

principal

and

abetting, is insufficient

those

accused

to establish guilt.

of

aiding

and

In our view,

the court's instructions adequately distinguished between the

deliberate-ignorance theory, which relates to the defendants'

knowledge

of a

fact,

and the

mere-presence theory,

which

concerns the level of defendants' participation in the crime.

See United States v. Cassiere, 4 F.3d at 1006, 1023 (1st Cir.

___ _____________
________

1993).

Under plain

error review, we

find no clear risk

of

confusion.

V.
V.
__

Destruction of Vessel
Destruction of Vessel
_____________________

The

Coast Guard's

act

of sinking

the vessel

by

machine

safety is

Doe, 860
___

gun fire

because

of its

not unprecedented.

F.2d

488,

concern for

See, e.g.,
___ ____

490 (1st

Cir.

1988).

navigational

United States
_____________

v.

Nevertheless,

-3333

Hernandez asserts that

the destruction

was unnecessary

and

suggests that

process

this

act amounted

to

a deprivation

of

due

under Brady v. Maryland, 373 U.S. 83, 87 (1963), and

_____
________

Arizona v. Youngblood,
_______
__________

488 U.S. 51,

57 (1988).

Hernandez'

failure to explain the potential materiality or usefulness of

the

vessel

to

his

defense,

and

evidence

demonstrates

bad

faith

vessel's

destruction,

render his

his

in

concession that

connection

argument

with

specious.

no

the

See
___

Youngblood, 488 U.S. at 58; United States v. Gallant, 25 F.3d

__________
_____________
_______

36,

39 (1st Cir. 1994); cf. United States v. Alston, No. 96___ _____________
______

1779, slip op. at 8-10 (1st Cir. May 5, 1997) (finding no due

process

violation

evidence

that, in

where government

its original form,

"deliberately alter[ed]

might have

helped to

exculpate

demonstrate

[defendant],"

that

such

but

action

defense).

-3434

where

defendant

significantly

did

impaired

not

his

VI.
VI.
___

Sentencing Issues
Sentencing Issues
_________________

Rivas and

Ospina contend that

erred in calculating their sentences.

raise

their arguments

See United States v.

below, we

the district

court

Because they failed to

review for

"plain error."

Peppe, 80 F.3d 19, 22 (1st

Cir. 1996).

___ _____________

_____

We discuss each defendant in turn.

A. Rivas
_________

At sentencing, the

base

offense

aboard

level upon

the BLACK CAT.

2D1.1(b)(2)(B)

defendant

flight

craft

asserts

officer, or

or vessel

that

participants in

finding that

as "pilot"

two-level increase

if

"the

pilot,

copilot, captain,

navigator,

any other

operation officer

aboard any

carrying a

the

he acted

See U.S. Sentencing Guidelines Manual

___

(requiring

acted as

district court increased Rivas'

controlled substance").

guideline

position of

only

applies

authority

to

Rivas

offense

or command.

He

reasons that the guideline should not apply to him because he

did

not

possess special

navigational

rank

or skills

and

merely steered the vessel upon the master's instruction.15

____________________

15.

The

forth

in

district court
Rivas'

though not made

Presentence
a part of

sets forth the facts

did

not object

adopted

to

the factual

Investigation

findings

Report, which,

the appellate record,

presumably

leading to the "pilot" finding.

any portion

sentencing hearing and does

of

set

the report

not dispute that he

during

Rivas
his

steered the

vessel.
We

further

sentencing judge

note that

at

trial,

over which

presided, Rivas testified that

-3535

the

he had been

The sentencing guideline

"pilot," and

inform

our research

our inquiry.

definition of

See,
___

Dictionary

of the

"pilot," inter
_____

helmsman").

has not revealed

Nevertheless, the

"pilot" includes

vessel.

does not define the

e.g.,
____

Webster's

English

alia,
____

as

any caselaw

common

person hired

Third

Language

New

to

to

dictionary

to steer

International

1716 (1986)

"one employed

word

steer

(defining

ship:

While the act of steering a forty-foot vessel on

the high seas may or may not involve a skill obtained through

extensive maritime training, we

cannot say that the district

court committed plain error in finding that Rivas "acted as a

pilot"

aboard

the

boat

2D1.1(b)(2)(B).

contention

special

Furthermore,

that the

guideline

command

in

may

speak

guideline

mechanical

aspect

address

the

involved

in

within

of

meaning

we

disagree

applies only

criminal

to

the

a defendant's

venture.

control

other

Cf.
___

Rivas'

to those

vessel's operation,

authority over

U.S.S.G.

with

enterprise.

defendant's

criminal

of

with

While

the

over

some

it

does

not

individuals

U.S.S.G.

3B1.1

____________________

hired by a
navigate."

man looking for "any seaman

When the ship set sail, he complied with Pilco's

instruction to
for

a four

who was available to

"take care of

hour

shift.

the helm," which

Furthermore,

Rivas manned

when asked

whether

commercial cargo
the

cargo are

is usually
aware

if its

labeled so that
contents, Rivas

those handling
replied, "No,

because that was not my job. . . . I was told I was in charge

__________________________
of the helm, which was my profession." (emphasis added).
____________________________________

-3636

(providing enhancements for a defendant's role as "organizer,

manager, or supervisor").16

B. Ospina
__________

Ospina

belatedly

argues that

the

district court

incorrectly calculated his incarcerative sentence based on an

enhanced

twenty

U.S.S.G.

statutory

years,

maximum

under the

4B1.1.

Ospina's

of thirty

Career

years,

Offender

rather

than

Guideline.

See
___

argument fails both because

the

statutory maximum term for his offense remained fixed at life

imprisonment

without

960(b)(1)(G), and

has

reversed

his

any

enhancement,

because, in

cited

LaBonte, No. 95-1726,

_______

any event, the

authority, see
___

1997 WL

21

U.S.C.

Supreme Court

United States
______________

273644, at *3

1997) (reversing United States v.

_____________

Cir. 1995)).

see
___

(U.S. May

v.

27,

LaBonte, 70 F.3d 1396 (1st

_______

VII.
VII.
____

Conclusion
Conclusion
__________

For

the

foregoing reasons,

the

judgment of

the

district court is affirmed.

affirmed
________

____________________

16.

We

note that

the

offense-level increase
special skill."
specifies
court,

on the

U.S.S.G.

that
as

government

3B1.3
here,

not

to

seek

alternative basis of

3B1.3.
is

chose

The commentary to

inapplicable

assesses

2D1.1(b)(2)(B).

-3737

an

if the

an

"use of
2D1.1

sentencing

enhancement

under