USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

___________________

No. 95-1843

UNITED STATES,

Appellee,

v.

FRANKLYN RIVERA-SANTIAGO,

Defendant - Appellant.

____________________
No. 95-1844
UNITED STATES,

Appellee,

v.

EDWIN ALAMO-SILVA,

Defendant - Appellant.
____________________

ERRATA

_____________

The

following change should

be made

in the

opinion dated

March 10, 1997:

Page 14, n.6,

words

based

line 10
and

its.

- insert the

word

on

between

the

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1843

UNITED STATES,

Appellee,

v.

FRANKLYN RIVERA-SANTIAGO,

Defendant - Appellant.

____________________

No. 95-1844

UNITED STATES,

Appellee,

v.

EDWIN ALAMO-SILVA,

Defendant - Appellant.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. H ctor M. Laffitte, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Coffin, Senior Circuit Judge,

____________________

and DiClerico, Jr.,* District Judge.

______________

____________________

____________________

Of the District of New Hampshire, sitting by designation.

-2-

Roberto Rold n-Burgos for appellant Franklyn Rivera-Santiago

_____________________
and

Rachel Brill for

____________

appellant Edwin Alamo-Silva

were on joint

brief.
Jacabed Rodr guez-Coss, Assistant
_______________________
with
Senior

United States

Attorney,

whom Guillermo Gil, United States Attorney, Jos A. Quiles,

_____________
______________
Litigation

Counsel,

and

Nelson P rez-Sosa,
__________________
United States Attorney, were on brief for appellee.

__________________

March 10, 1997

__________________

Assistant

-3-

Per Curiam.
Per Curiam.
__________

Defendants, Franklyn

Rivera-Santiago and

Edwin

Alamo-Silva,

following a

challenge

jury trial.

their convictions

For

the reasons

and

sentences

discussed below,

we

vacate their convictions and remand for a new trial.

I.
I.

We recount

instant appeals.

On

Background
Background
__________

only those

facts necessary to

January 25, 1995,

resolve the

a grand jury returned

three-count indictment against the defendants, charging them with

aiding and

abetting

intent

distribute

to

841(a)(1),

each other

in attempting

narcotics

943 and 18

U.S.C.

in

to possess

violation

of

2; aiding and

21

with

U.S.C.

abetting each

other in attempting to import narcotics into the United States in

violation of

21 U.S.C.

952(a),

963 and 18

U.S.C.

2; and

aiding and abetting each other

in attempting to possess on board

a vessel of the United States with intent to distribute narcotics

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

18 U.S.C.

2.

At

trial, the government

Customs Service

air interdiction

three aircraft operating

on the

1995.

elicited testimony from U.S.

officers who were

assigned to

off the southeast coast of

Puerto Rico

night of January 4,

1995, and the morning

of January 5,

The officers were investigating what was perceived to be a

suspicious

flight

1903(a), (b)(2)(c), (f), (j) and

plan

government s

aircraft flying

from

South

first witness

with its

America

was

-4-

lights

toward

off and

Puerto

Leslie Robb,

without a

Rico.

who operated

The

the

radar and Forward Looking Infrared camera ( FLIR )1 on one of the

aircraft,

Omaha 42.

nearly forty

Robb testified

minutes, the

suspicious

that

after circling

aircraft dropped

for

several

objects into the water at 12:39 a.m. at a point approximately six

miles off the

captured

on a videotape of Omaha

to the jury as

the

other

coast of Patillas, Puerto Rico.

The splashes were

42's FLIR, which was submitted

evidence along with videotapes of

two aircraft.

The

the FLIRs from

videotapes included

the

radio

communications among the air

enforcement

images

personnel that

produced

revealed that

was seen

interdiction officers and other law

by

the

occurred contemporaneously

FLIRs.

These

radio

immediately before the airdrop

flashing its

lights in

the area

with the

communications

occurred, a vessel

near the

suspicious

aircraft, and that the aircraft which had turned its lights on at

some point before the airdrop turned them off shortly thereafter.

The government s
Calleja

second

( Rivera ), operated

plane, Omaha 02,

after the

airdrop

Rivera acquired

the

second witness, Raul

site of

the radar

which began looking

had occurred.

a vessel on

the airdrop.

Rivera was able to locate

and FLIR

At

Antonio Riverasystems on

for marine targets

approximately 1:04

radar approximately two

This

target was

a.m.,

miles from

the only

on his radar, which covered a

one that

twenty-

five-mile

radius around

the

aircraft.

Rivera testified

that

after he had located the vessel on radar, his fellow crew members

____________________

1
of

The FLIR produces video

heat they emit.

images of objects based on the amount

The FLIR

can be integrated

with a plane s

radar system to provide images of targets found on radar.

-5-

informed him that they saw no lights on the surface of the water,

and that the vessel s navigation

off.

Rivera

vessel on

lights had to have been

further testified that shortly after

radar, his

FLIR showed

two objects

turned

acquiring the

floating in

the

water approximately twenty feet from the rear of the vessel.

The government s next witness, David

pilot

in command of

Omaha 02.

Cruciger, was the

Cruciger offered

the following

description of the airdrop on direct examination:

Once again while flying

received
drop

was

information from
taking place

seeing the splashes.

pilot aboard
attention
aircraft.

in this pattern,
Omaha

and

I banked

42 that

that they

were

Chris Thorton [the co-

Omaha 02] said

out the

we

it, directed my

right-hand window

of the

the aircraft over

so I

could see out in that direction; and with the

aircraft banked, I

could see

water a flashing light.

Omaha 42.

down into

the

It was described by

As we watched the light, I saw

an

aircraft or what I believed to be an aircraft

turn on its navigation recognition lights and

fly at low altitude over the lights that were
flashing in the water.
When

asked

lights

during cross-examination

before

the

drop

occurred,

whether

Cruciger

he

had seen

stated

that

the

he

believe[d] it was during the drop.

The government s fourth

the

radar and

FLIR

system on

witness, John Alpers, operated

the

third

aircraft, Omaha

38.

Alpers testified that he located a vessel -- the same one next to

which Rivera s

the

detect two objects

floating in

water -- on radar at approximately 12:45 a.m., approximately

two miles

from the site of

the co-pilot

out.

FLIR would later

the airdrop, and that,

aboard Omaha 38,

Alpers also testified

all of

according to

the vessel s lights

that although he located one

-6-

were

object

on

his radar that he believed to be

a reef, he located no other

vessels on his twenty-five-mile radar.

The

government s witnesses

testified that

the vessel

remained stationary from the time Alpers acquired it on his

at 12:54

a.m., approximately

airdrop, until a coast

1:13

a.m.

and

the site

of the

guard helicopter arrived at approximately

shined a

testified that the

three miles from

FLIR

bright

vessel began to

light

on

it.

They

further

move toward shore after

the

coast guard

were found

helicopter illuminated

aboard the vessel

promptly arrested.

defendants

it, and that

the defendants

when it arrived on

shore and were

Although no contraband was

vessel, the government introduced into

bales of

cocaine that were

vicinity

of

the

drop

approximately 2:00 a.m.

found floating

site.

The

of a

government s

type found

first

bale

on January 5, 1996, and

on the

defendants

witnesses speculated

evidence four

in the water

found at approximately 1:30 p.m. the same day

rope

found aboard the

was

found

tied together with

vessel.

that, following

Two

of the

the airdrop,

tied

the bales aboard, placed them

in tow so as to facilitate disposal in the

scheme was discovered.

at

three more were

the defendants had gathered the three bales that were found

together and, rather than bringing

in the

event the defendants

The government also introduced into evidence a business

card found

in

defendant

Rivera-Santiago s

discovered

in

his

bearing

car,

approximately seven miles away

addition, the government s

the

wallet,

coordinates

which

of

was

spot

from the site of the airdrop.

witnesses testified

that they

In

found

-7-

defendant

Alamo-Silva s

Toyota

4-Runner

at

his

girlfriend s

house, which

was accessible via a

located approximately one-quarter

where the defendants arrived

pathway to the beach

of a mile away from

on shore.

were found in the vehicle, which

back of

the vessel

belonged to

that the

The keys to the 4-Runner

Finally, the government s

registration number painted

on which

the defendants

defendant Rivera-Santiago,

from the number

the point

was parked with its back to the

water and its rear seats folded down.

evidence indicated

and was

were found,

differed by two

under which the vessel had

on the

which

letters

been registered with

the Puerto Rico Department of Natural Resources.2

The defendants contended that

the night

place

of the

at the

airdrop and

wrong time.

they were out fishing on

were simply

They

caught in

elicited testimony

the wrong

concerning

other vessels that might have been in the area at the time of the

airdrop but were not detected on radar, including

a vessel found

abandoned

5, 1995,

on

shore on

the

contained marijuana residue.

vessel

was operating without

morning of

January

Rivera-Santiago testified that

navigation lights on

that

his

the night in

question because the vessel s built-in navigation lights had been

damaged

on a previous occasion and

the portable navigation light he

boat.

stay

He explained that

fixed for

a long

because he had stopped using

had recently purchased for

the portable navigation light

time,

would

fall every

the

wouldn t

time the

boat

____________________

The boat

was registered under

but bore the number PR0645DD.

-8-

registration number PR0645BB,

jumped, and

didn t work. 3

began fixing

one of

His testimony also indicated that he

the engines

on the

boat at

approximately

11:00 p.m. with only the aid of a flashlight, and that the vessel
was

already moving when

1:13 a.m.

Finally,

the coast

guard helicopter

arrived at

the defendants elicited testimony concerning

the maximum speed of Rivera-Santiago s vessel, suggesting that it

might have been difficult for the boat to retrieve at least three

bales

of cocaine

and

travel approximately

two

miles, as

the

government s evidence

suggested, during the

between

and

the

airdrop

Santiago s vessel on radar.

the

time

six-minute interval

Alpers

detected

Rivera-

They also argued this point to

the

jury.4

The jury

began deliberating

late in the

afternoon on

April 10, 1995, and, at 7:50 p.m. the following day, informed the

trial judge that

it was unable to reach a

come back the next day to

verdict but wanted to

continue its deliberations.

The

next

morning, the jury submitted the following message to the court:

We wish to obtain the following

information

from the transcription notes to clarify some doubts:

_________________________________________________________________

During

the government s rebuttal,

who impounded

and operated the vessel

the law enforcement

agent

following the defendants

arrest

testified

that he

had

no

trouble

using the

portable

navigation light.

Counsel

for

defendant Alamo-Silva

argument that Rivera-Santiago s

12:45
the

argued

and the

from

However, our review of

defendants

that Alpers acquired the vessel on

from the site

closing

vessel remained stationary

a.m. until approximately 1:13 a.m.

record indicates,

during

brief acknowledges,

radar approximately two miles

of the airdrop at 12:45 a.m.,

and that he located

the vessel on his FLIR approximately three miles from the airdrop
at 12:54 a.m., by which time the vessel had stopped moving.

-9-

1.

The

first time

the suspect

air craft

was detected

in the fishing

area (the

hour)

2.

The time of the air drop

3.

The time

the suspect

vessel was

detected in the fishing area

4.

If

there

were

flashing lights

any

sign

of

from the suspect

aircraft and suspect vessel.

After

trial

argued that

counsel

for defendant

providing

answers to

would invade the province

agreed

on

the

Alamo-Silva

any of

unsuccessfully

the jury s

questions

of the jury, the parties and the court

responses to

the

first

three

questions.

In

response to the fourth question, and at the government s request,

the trial

judge elected to read

Cruciger s testimony.

back to the jury

This decision came over the

counsel for each of the defendants.

part of David

objection of

Noting that Cruciger was the

only witness who testified that

counsel asked that

he saw flashing lights,5 defense

testimony from the witnesses who

did not see

flashing lights be read into evidence, and further argued that it

was not clear what the jury meant by

suspect vessel.

The trial judge addressed the jury as follows:

I have your four questions.

the answer to two
to

see

the

[videotape

questions.

question

is

of

the]

FLIR; you

But I m going to answer

The

the

me say that

of your questions you have

should see the FLIR.

two

Let

first

first

-- your

time

the

first
suspect

_________________________________________________________________

Although

the audio

portion of the

FLIR videotapes

contains

references to flashing lights from sea level and to a temporarily

illuminated light on the suspect aircraft, Cruciger was
witness

to testify

at

trial that

source.

-10-

he

saw lights

from

the only

either

aircraft

was detected

the hour.

Then

the

in the

fishing area,

That you may look into the FLIRs.

time

of the

airdrops,

there s

stipulation that it s 12:39 a.m., 12:39 a.m.,

time of the airdrop.
The

third question,

the time

the suspect

vessel was detected in the fishing area, that

you have to

look it

up in the

-- from

the

FLIR tapes.

Fourth -- I m going to answer that question

now -- if there --

if there were any sign of

flashing lights from the suspect aircraft and

the suspect vessel, I m going to read you the

testimony

of

David

Cruciger.

Listen

carefully. [The court reporter then read back

the

following

portion

of

Cruciger s

testimony.]:

Once again while

we

received

flying in this pattern,

information

from

Omaha 42

was taking

place

and that

that

a drop

they

were seeing

Thorton,

the

Officer

splashes.

Thorton

directed my attention
window

of the

banked the

aircraft banked,
the water a
described by

As we watched the light, I saw

an aircraft
aircraft

or what I believed
turn

recognition
altitude

see down into

light.
It was

Omaha 42.

it,

could see out in that

direction; and with the

I could
flashing

said

out the right-hand

aircraft.

aircraft over so I

Chris

over

on

its

lights

and

the

lights

to be an
navigation

fly

at
that

low
were

flashing in the water.

[The trial
well.

The

judge continued.]

Okay.

Very

You may go back to your deliberations.

jury

returned

guilty

verdicts

against

the

defendants on all counts approximately

judge answered

its questions,

two hours after the trial

apparently having eaten

the interim.

Defendant Alamo-Silva

295 months.

Defendant

was sentenced to prison

Rivera-Santiago was sentenced

for life.

-11-

II.
II.

lunch in

Discussion
Discussion

for

to prison

A.
A.

The Trial Judge s Response to the Jury s Fourth

The Trial Judge s Response to the Jury s Fourth
_______________________________________________
Question
Question
________

We first

address the

trial judge committed

jury s

fourth

defendants

contention

that the

reversible error when, in response

question, he

selected

portion of

to the

Cruciger s

testimony and had it read to the jury.

The

Sixth

criminal case the

noted that

Amendment

guarantees

right to a trial by jury.

defendant

in

We have previously

[u]ndeniably inherent in the constitutional guarantee

of trial by

jury is the principle

and

direct

prosecution

point in that

finding

regardless

direction.

of

that a court may

contested

of how

fact

in

not step in

favor

of

overwhelmingly the evidence

United States v. Argentine,

_____________
_________

the

may

814 F.2d

783, 788 (1st Cir. 1987)

Supply Co., 430

__________
court may,

makes

U.S. 564,

at its

United States v.
______________

have specific

Bennett,
_______

have noted that

40,

46

jury

see, e.g.,
___ ____

(1st Cir.),

cert.
_____

Aubin, 961 F.2d

_____

886 (1992),

we

the culling of testimony in response to a jury s

see Aubin,
___ _____

constitutional

75 F.3d

district

where the

testimony reread,

Cir.), cert. denied, 506 U.S.

_____________

open-ended question may,

Almonte, 594
_______

Although the

Ct. 130 (1996); United States v.

_____________

980, 983-84 (1st

fact,

573 (1977)).

discretion, reread testimony

a request to

denied, 117 S.
______

(quoting United States v. Martin Linen

_____________
_____________

F.2d

961

in effect, make the court

F.2d at

261, 265

983 (quoting

(1st Cir.

1979)),

a finder of

United States v.
______________

and have

found

error where a district court s answer to a jury s

factual question had the effect of mandating that the jury

reach

-12-

a conclusion on a particular issue.

Argentine, 814 F.2d at 787_________

88.

Our
fourth

analysis of the trial judge s answer to the jury s

question in the

the course

of the

context of the

trial compels us

evidence elicited during

to conclude that

the trial

judge usurped

matter

of

defendants

the

that

question,

of their right

conclusion, we

Argentine
_________

jury s factfinding

note that

and,

in

two of

are not present here.

than

the subject matter

presenting

his

accomplished fact,

evidence

witness.

he was

of the

answer

the

the

as to

doing,

jury.

vices

In

See id. at 787.

___ ___

the

subject

deprived

the

reaching this

we identified

in

First, the trial judge did not

had reached an agreement as

jury s question.

to

the

jury s

trial judge informed the

recounting was

of the record that the

so

to trial by

expressly represent that the parties

to

role

the

However, it

testimony of

Second, rather

question

as

jury that the

a particular

is evident from a review

substance of the court s answer

together

with the context in which it was delivered brought about the same

prohibited result that we found in Argentine for three reasons.

_________

First,

Cruciger s

response

the

trial

judge

testimony given on

to the jury s

suggested to

the jury

that this

the jury

from

accounts of

the

the jury

in so

part

of

be read in

doing, necessarily

testimony would

provide

the

This suggestion had the effect of

to believe Cruciger

considering and

only

direct examination to

question and,

answer to the jury s question.

both encouraging

selected

possibly

events surrounding

-13-

the

and discouraging

crediting

alternative

airdrop.

The

record

contains

evidence

that

was

inconsistent

with,

if

not

contradictory to, Cruciger s assertion that he saw an exchange of

lights

during the airdrop between the suspicious aircraft and an

object in the water.

For example,

Cruciger s testimony was

at

odds with Rivera-Santiago s assertions that his vessel s built-in

navigation lights were not working and that he

had stopped using

the portable navigation light that he had recently purchased.

addition, Cruciger testified on

looking for

aircraft had

flashes of

begun

In

direct examination that he began

light from sea

dropping objects

level after
_____

into

the water

the suspect

and

then

stated on cross-examination that he believed he saw lights during

the airdrop.

indicates

However,

that

the

audio

unidentified

portion

of

air interdiction

flashing lights before any objects

______

the

videotape

officers

viewed

were dropped, and contains no

mention of lights from sea level during or after the airdrop.

a minimum,

these inconsistencies

whether Cruciger

saw

raise questions about

saw flashing lights from

lights, whether

those

lights came

sea level and,

from

At

when or

if he

Rivera-Santiago s

vessel or from another vessel.

Second, the context

in which the trial

judge gave his

response to the jury s fourth question had the

effect of placing

his

that

imprimatur

Cruciger s

on

testimony

the

facts

that

was

contained

read

to

in

the

portion

jury.

It

of

is

significant that the jury was posing questions in order to obtain

information

answering

provided

from

the

the

record

first three

to

clarify

questions,

an unequivocal statement

some doubts.

the

trial judge

of fact to

In

either

which the parties

-14-

had stipulated (question no. 2) or directed

videotapes where

(question nos.

the answer

1 &

3).

fourth question the trial

to their

However, in

the jury to the FLIR

questions could

responding to

judge began by

stating

be found

the jury s

I m going

to

answer

that

question now,

testimony read.

to

focus

the

and

then

had part

The net effect of what the

jury s

attention

on

only

of

Cruciger s

trial judge did was

part

of

Cruciger s

testimony concerning flashing lights and away from other evidence

given by Cruciger and others that was relevant to a resolution of

the doubts the jury expressed in its note about

the existence of

flashing lights from the air and from sea level.

Finally, by referring the jury to Cruciger s testimony,

the trial judge suggested

to the jury that the

suspect vessel

(the term used in the jury s question and throughout the trial to

describe the

boat on which

the defendants were found),

and not

another vessel, was the source of the light that Cruciger claimed
to

have

testified

seen.

Although,

as noted

that Rivera-Santiago s

above,

vessel was

Rivera and

the only

Alpers

one that

showed

up on radar

presented evidence

the area.

at the time

of the airdrop,

suggesting that

the defendants

there were other

The trial judge s answer to the

vessels in

question confirmed an

assumption inherent in the jury s question, i.e., that the vessel

seen

flashing its

lights

was the

same

suspect vessel

Alpers picked up on radar six minutes after the airdrop

that

occurred

and approximately two miles away.

For the

judge s

response

foregoing reasons, we conclude

to

the

jury s fourth

-15-

question

that the trial

invaded

the

province of

question

the jury.6

of whether

harmless.

We

must next turn our

the district

As we noted in

attention to the

court s error

can be

termed

Argentine, in cases involving errors

_________

of constitutional dimension the harmless-error inquiry focuses on

the existence of a reasonable possibility that the error at issue

influenced the jury in reaching the verdict.

at 789 (citing Fahy v.

____

Phrased

another

way,

Argentine, 814 F.2d

_________

Connecticut, 375 U.S. 85, 86-87

___________

we

must

now

determine

(1963)).

whether

the

constitutional error was harmless beyond a reasonable doubt.

Id.
___

at 789; see also Sullivan v. Louisiana, 508 U.S. 275, 279 (1993);
________ ________
_________

Chapman v. California,
_______
__________

386 U.S. 18, 23-24

(1967); United States

_____________

v. Trenkler, 61 F.3d 45, 60 n.22 (1st Cir. 1995).7

________

As we have previously noted, the jury in its message to

the trial

some

judge sought specific factual

doubts.

Therefore,

we

can

information

reasonably

to clarify

infer from

the

_________________________________________________________________

6
they

While trial judges have discretion

respond to

exercised

questions from

when a

jury asks

evidence in a case.

as to the manner in which

a jury,

great caution

factual question

must be

concerning the

In view of the evidence presented during the

trial of this
case, an appropriate response to
been

an instruction

to

the

the jury s question would

jury that

recollection of the evidence.

it

must

See, e.g., Aubin,

___ ____ _____

take its

have

own

961 F.2d at 983

(trial judge did not abuse discretion where, in response to

factual question, he instructed

the jury that as finder

it

weigh

was

its responsibility

United States
_____________

v. Hyson, 721
_____

to

F.2d 856,

and interpret
865 (1st Cir.

of fact

evidence);

1983) (no

abuse of discretion where, in response to factual question, judge

declined to reread relevant testimony and instructed jury to make

findings based on its recollection of the evidence).

The defendants

falls

into the

do not contend that the district court s error

narrow category

of constitutional

foreclose all harmless error review.

499 U.S. 279, 306-12
that abridge

defects that

See Arizona v. Fulminante,

___ _______
__________

(1991) (distinguishing between trial errors

defendant s

constitutional rights

and

structural

defects affecting framework in which trial proceeds).

-16-

context in which the jury asked the

fourth question that some or

all of the jurors, after deliberating

day, entertained
lights

the

some doubts

from the

jury had

reasons.

about the existence

suspect

aircraft

and

doubts about

this

issue is

First, the

existence

lights,

their

location,

matters

that

were central

defendants

for a little more than one

their

or

suspect

to

non-existence of

the

effectively determined

timing

and

are

the

the outcome

judge culled the

of how

the jurors

their doubts since they were directed to only part

evidence

testimony of

instead

their

two

theories of the case.

would resolve

of

That

flashing

the government s

Second, the manner in which the trial

evidence

vessel.

significant for

source, and

both

of flashing

concerning

lights

the only witness

of being

instructed to

(i.e.,

a portion

of

the

who testified that he saw lights)

consider and

weigh all

of the

evidence

relating

defendants

to

that

issue

were entitled to

developed through

adduced

have their

their evidence,

at

trial.8

theory of the

presented to the

case, as

jury on

equal footing with the government s theory of the case.

The

an

This did

not occur because the trial judge s response tipped the scales in

favor of the government s theory.

_________________________________________________________________

The

defendants, who contended

night

in question,

without

navigation

previously damaged
stay

adduced
lights
and the

they were

evidence that
because

found

on

shore

government s time
certain

events

built-in

line, i.e.,

residue

in

it,

the six-minute span

supposed

reasonable.

-17-

to

the

operating

lights

were

would not

for fishermen to be without

other vessels in the area

with marijuana

were

they were

portable navigation light

fixed, that it was not unusual

lights, that there were

the

out fishing on

have

including one
and that

the

within which

occurred,

was

not

We

also note that the jury

had expressed to the trial

judge an inability to reach a verdict the night before posing its

questions

and

arrived

receiving

the

answers,

judge s

inference

response

at

guilty

raising

influenced

in and of itself is

of harmless error, it is a

other factors.

the

verdicts

an inference

verdicts.

two

hours

after

the

trial

that

While

such

an

not controlling in our evaluation

factor that can be weighed along with

We

effects,

trial

have considered

as previously discussed,

record.

circumstantial

However,

to

the

The

evidence

under the

only if we

doubt.

the

trial judge s

in the context

government

pointing

to

the

identity

of

the

a finding.

suspect

significant

defendants

the verdicts

find that the error was harmless

its

of the entire

presented

applicable standard

We cannot make such

error and

guilt.

can stand

beyond a reasonable

The government s case as

vessel

required

close

calculating and comparing of times, coordinates, and distances, a

process

that might well have been shortcircuited by injection of

the incriminating aspect of the

We conclude

that in

view

evidence as to flashing

of the

context in

which the

question was asked, the significance of the issue

lights.

fourth

raised by that

question to the outcome of the case, the response that was given,

and

the

context in

reasonable

jury

which the

possibility that

in reaching

response was

the error

its verdicts

in

given, there

at issue

this case.

is a

influenced the

Therefore,

the

raised

the

verdicts cannot stand.

B.
B.

Evidentiary Issues
Evidentiary Issues
__________________

-18-

Several

of

the

evidentiary

issues

by

defendants are

likely to

recur in

the event

of a

retrial and

therefore we will addressnforcement officers who, not having been

qualified as experts, offered opinion testimony at trial based on

their experience.9

testimony

dropped

would

of John Alpers

from an

have been

Rivera s

Specifically,

and Raul Rivera

airplane

and not

further

apart than

FLIR behind the

Roberto Escobar s

testimony suggesting

might be

hinder

law enforcement authorities

to

painted on

the rear

Escobar s characterization

airdrop as being

otherwise gathered

the

pretty close

together

objects appearing

that the reason

of a

the

on

U.S. customs agent

a wrong

vessel would

from identifying

of

to the

suggesting that items

suspect vessel; to

number

and

the defendants object

be to

its owner;

coordinates of

the

to those found on the back of the

business card found in Rivera-Santiago s wallet.

In United States
______________
1989), we

opinion

founded

noted that the

testimony

on

examination.

modern

[from lay

personal

Id.
___

v. Paiva,
_____

157

F.2d 148

trend favors the

witnesses],

knowledge

at

892

and

provided

(1st

admission of

it is

susceptible

(permitting drug

Cir.

to

user to

well

cross-

express

_________________________________________________________________

The

government

contends

that

the

evidence was

properly

admitted under Rule 701, which provides:

If the witness is not testifying as an expert, the

witness

testimony

in

inferences is limited

the

form

of

to those opinions

opinions

or

or inferences

which are (a) rationally based on the perception of the

witness and (b) helpful to a clear understanding of the
witness

testimony

or the

determination of a

issue.

Fed. R. Evid. 701.

-19-

fact in

opinion

that

explained that

witness

may

substance

she

found was

the individual experience

establish

his

or

her

cocaine).

We further

and knowledge of a lay

competence,

without

qualification as an expert, to express an opinion on a particular

subject

outside the

United States
_____________

realm of

v. VonWillie,
_________

common knowledge.

59 F.3d

922, 929

Id.;
___

(9th Cir.

accord
______

1995)

(based on experience, police officer could testify as lay witness

that it was common for drug traffickers to use weapons to protect

drugs; opinion was helpful

to determination of whether defendant

was involved in drug trafficking).

After reviewing

admission of

the opinions

proximity

of

witnesses

testified that

interdiction

competent

the record,

the

bales

of Rivera and

to

they had

officers with

Further,

jury s understanding

no error

in the

Alpers concerning

Rivera-Santiago s

the

vessel.

Both

extensive experience

as air

the U.S.

to testify as to the

an airplane.

we find

Customs Service,

and were

behavior of objects dropped from

the testimony

was helpful

of the likelihood that

both to

the

two objects dropped

from an airplane would be close together after the airdrop and to

the

jury s

resolution

of

involvement in the airdrop.10

the

question

of

the

defendants

_________________________________________________________________

10

We reject the

Rivera and Alpers,

defendants

contention that

which suggested

might have been dumped overboard,

with the testimony from
that the

is

not

evidence, but, rather,

that the

bales

was impermissibly inconsistent

other government witnesses who suggested

bales had been tied

inconsistency

to the jury

the testimony of

together and placed in

grounds
is a

for the

exclusion

matter properly to

tow.
of

relevant

be explored

cross-examination and ultimately to be resolved by the jury.

-20-

This

on

Nor do

we

find error

statement concerning the

Santiago s
to

vessel.

other

law

in the

admission of

numbers painted on the

Escobar s

back of Rivera-

Escobar testified at trial that, in addition

enforcement

experience,

he

had

worked

for

smuggling unit of the U.S. Marshals Service for two years, during

which

he

had

missions.

As

such,

enforcement

experience in

jury.

time

he

involved

was

in

entitled

conveying

approximately

to

opinion

draw

on

fifteen

his

law

testimony to

the

Further, his testimony concerning the significance of the

incorrect

might

been

registration number

not

have

registration

been

system

aware

for

sea

was

of

helpful to

the

vessels

existence

similar

the jury,

of

to

which

central

that

for

automobiles.11

However, we do find error in the trial judge s decision

to permit

Escobar to testify

that the coordinates found

back of the business card were

pretty close

on the

to the coordinates

_________________________________________________________________

11

Although the defendants rely

F.3d 775 (1st Cir.

on United States v. Montas, 41

_____________
______

1994), cert. denied sub nom.

_____________________

F lix-Montas v.
____________

United States, 115 S. Ct. 1986 (1995), to support their argument,

_____________
we believe that Montas is distinguishable from the instant case.
______
In

Montas,
______

federal

qualified as an expert
the cases in
drugs at an

admission

He

who

had

the seizure

involved had been

further testified that it was

trying to smuggle drugs would use

detection.
of

agent

worked that involved

airport, the passenger

that a passenger
avoid

enforcement

testified that in ninety-nine percent

which he had

under a false name.

to

drug

Id.
___

at

this testimony

admissibility, we noted the

784.
was

In

likely

been

of

of

traveling
obvious

a false name

concluding that
beyond the

limit

the

of

danger of unfair prejudice resulting

from the use of an expert witness to corroborate the government s

case.

Id.
___

at 786.

identified in Montas is
______
has

However, the

risk of

prejudice that

less severe where, as here,

not been qualified as

an expert.

we

the witness

Moreover, unlike Montas,

_______
the testimony at

issue in the

instant case does

not suggest

definite correlation between a suspicious characteristic and

any

illegal activity.

-21-

of

the

airdrop

conclusion,

site.

Escobar testified

some of the numbers

that he was

testimony

Immediately

not an

that he

prior

did not

on the business card meant

expert in coordinates.

that the coordinates

were

to

pretty

offering

this

understand what

and acknowledged
In addition,

close

his

represented

only his characterization of the distance between the two points.

As

presented,

the

witness s testimony

foundation and his conclusion

lacked

was of little

an

appropriate

aid to the jury

in

understanding the evidence.

The defendants

and without foundation

agent,

also challenge as

the testimony of a

who, not having

been qualified

stated

aid
68

have exceeded

that

$18 million.

(1996).

stated on

of the cocaine found at

However, we

have recently

[t]here is little dispute that such information may

in proving intent to distribute.

F.3d 5,

U.S. drug enforcement

as an expert,

direct examination that the street value

sea may

unfairly prejudicial

8 (1st

In addition,

Cir.

United States v. Rivera,

_____________
______

1995), cert. denied, 116

_____________

in this case the evidence

S. Ct.

970

was relevant to

bolster

the government s claim

that a

valuable property into the water

the

area.

Finally,

especially

testify

as we

about street

value.

in Rivera,
______

DEA agents

not be certified

Id.
___

admission of this testimony.

C.
C

not drop

unless a specific target was in

noted

qualified, and need

smuggler would

Sentencing Issues
Sentencing Issues
_________________

-22-

We see

no

are

as experts, to

error in

the

Since

convictions must

the court

has determined

be vacated,

there is

sentencing issues raised on appeal.

that the

no need

defendants

to address

the

-23-

III.
III.

The defendants

Conclusion
Conclusion
__________

convictions are vacated.

_______

The cases are

remanded for a new trial.

________

-24-