USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1679

UNITED STATES,
Appellee,

v.

DOMINGO SANTANA-ROSA,
A/K/A FELIX SANCHEZ-SUAREZ,
Defendant - Appellant.

____________________

No. 96-1680

UNITED STATES,
Appellee,

v.

ORLANDO DIAZ-MORLA,
A/K/A JOAQUIN CARPIO-JAVIER,
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,

___________

Lynch, Circuit Judge,

_____________

and DiClerico, Jr.,* District Judge.

______________

_____________________

____________________

Of the District of New Hampshire, sitting by designation.

Arthur Joel Berger, with whom

__________________

Leonard Baer was on brief for

____________

appellants.
Jos
A. Quiles-Espinosa,
________________________

Senior

Litigation Counsel,

with

whom

Guillermo Gil,
_____________

Assistant

United

United States
States

Attorney,

Attorney,

and

Edwin O. V quez,
________________

Nelson
P rez-Sosa,
___________________

Assistant United States Attorney, were on brief for appellee.

____________________

January 6, 1998
____________________

-2-

DiClerico,
DiClerico,

District Judge.
District Judge.
______________

The defendants,

Domingo

Santana-Rosa and Orlando D az-Morla, were convicted of possessing

cocaine

on a

vessel within

the

customs waters

States with intent to distribute it.

pertaining to the jury

witness, and the

the

defendants

United

On appeal they raise issues

instructions, the opinion testimony of

sufficiency of the

arguments,

reasons expressed below.

of the

we affirm

evidence.

the

Having

reviewed

convictions for

the

Factual and Procedural Background

Factual and Procedural Background
_________________________________

We review the facts in

verdict.

the light most favorable to the

See United States v. Cardoza, 129 F.3d 6,

___ ______________
_______

__, 1997 WL

656296, *1 (1st Cir. Oct. 27,

1997); United States v. Wihbey, 75

_____________
______

F.3d 761, 764 (1st Cir. 1996).

On July 6, 1995, a police officer

with the Fajardo Drugs and

Police

cocaine

Narcotics Division of the Puerto Rico

Department received two anonymous tips that a shipment of

was going

government

to be

sent aloft a

equipped with radar and an

delivered

in the

Fajardo area.

United States Customs

The

Service aircraft

infrared night vision system known by

the acronym "FLIR," which means "forward looking infrared."

The

FLIR

system allows objects to

be monitored in complete darkness

based on the heat of the objects.

The aircraft began patrolling

the area between Fajardo

and the island of Culebra at an altitude of 1500 feet.

p.m.

Customs

Service

Agent

John

aircraft's FLIR, located a marine

-3-

Alpers,

who

At

operated

10:15

the

vessel northwest of Culebra at

1825 degrees

latitude and 6526

approximately

toward

degrees longitude.

thirty feet long and with

Fajardo at

a high

rate of

it was

approximately five miles

United

States

territory.

tracked the vessel

two engines, was moving

speed with

lights out in violation of 19 U.S.C.

The vessel,

1703.

its navigational

When first located,

from the nearest land

During

subsequent

with FLIR and radar,

point on

events,

Alpers

but at no point

did he

make direct visual observations of the vessel or its occupants.

The

reacquired

aircraft

it

at

lost

10:56

contact with

p.m.

At

that

the

vessel,

point,

the

descended to an altitude of 1000 feet and continued

vessel from

away.

system,

a distance of

At 11:02

observed

movements

of

with the

people

on

aid of

the

aircraft

to track the

one-half to three-quarters of

p.m., Agent Alpers,

but it

a mile

the FLIR

vessel

who

"appear[ed] to throw

the

vessel was again

land point

high

speed,

approximately

territory.

leaving

the

11:20 p.m.,

the

where the

persons then

mangroves.

objects

objects

vessel

objects were

toward Fajardo

the

beached

water.

in

the

At

Cabeza

about nine nautical miles from the

were

thrown from

ran from the vessel

No other

After the

in

point,

from the nearest

vessel departed and headed

Chiquita area of Puerto Rico,

place

At that

approximately five miles

on United States

thrown overboard, the

at

large objects" overboard.

boats were

the

into a remote

in the

vessel.

Four

area dense with

immediate area

of the

vessel throughout this time.

The aircraft requested that a National Guard helicopter

-4-

fly

to and mark the area where

addition,

it requested

apprehending the

the

the objects had been dumped.

assistance

persons who had run from

of

other

officers

the vessel.

In

in

A Puerto

Rico police helicopter, a National Guard helicopter, and a police

boat arrived to

search the area for the persons who had fled the

vessel.

One

of

the

helicopters

illuminated

the

area

with

floodlights to assist the law

enforcement officers on the ground

in detaining the individuals.

Between 12:02 and 12:09 a.m., the

police arrested three persons.

Two of them are the defendants in

this

case.

Defendant Santana-Rosa was

while holding on to mangrove roots.

third

individual were

Santana-Rosa.

Defendant D az-Morla and the

about

ten

feet

from

defendant

The fourth person observed leaving the vessel was

not apprehended.

Defendant

hidden

found hiding under water

Both defendants gave false names when arrested.

Santana-Rosa asked the

arresting officer why

so much

government force was being used to catch an illegal alien.

Police

percent pure

Alpers

recovered

twenty-seven

cocaine weighing

witnessed objects

defendants were

charged

being

with

bales

970 kilograms

dumped from

a violation

of

ninety-one

at the

site where

the

of

46

vessel.

The

U.S.C.

app.

1903(a), which makes it illegal, inter alia, to possess cocaine

__________

with

intent to

distribute it

waters of

the United

States.

(c)(1)(D)

(West Supp. 1997).

on

See
___

a vessel

46 U.S.C.A.

The defendants

jury after a five-day trial.

-5-

within the

app.

customs

1903(a),

were convicted by

At trial, the main defense was that there was a lack of

direct

evidence

establishing

that

individuals observed on the FLIR

of the

was

defendants testified on

an

illegal

alien

the

defendants

were

the

system leaving the vessel.

One

his own behalf, stating

seeking

to

avoid

detection.

that he

Alpers

testified that the customs waters of the United States extend for

twelve miles from

territory

and that

waters of the

witnessed

mass that is

he observed

United States.

over the objection

his opinion

any land

part of United

the vessel

Alpers also

within the

fleeing the vessel.

defendants filed a timely appeal.

customs

testified on redirect

of counsel that, based on

the individuals who

States

his experience, in

were arrested were the

Following their

ones he

conviction, the

Discussion
Discussion
__________

The defendants allege that three errors in the district

court proceedings require our attention.

the trial

meaning of

States";

court erred

in failing

the phrase "within

(2) the

disclosure of the

trial

They contend that: (1)

to instruct

the customs waters of

court erred

in not

ocean.

the

the United

requiring pretrial

testimony of Customs Service Agent Alpers; and

(3) the evidence was legally insufficient to

were the

the jury on

persons on the vessel

establish that they

who had dumped

cocaine into the

The court discusses these claims seriatim.

________

A. Jury Instruction on Customs Waters

______________________________________

-6-

The statute

46 U.S.C. app.

board a vessel

under which the defendants were convicted,

1903, makes it "unlawful for any person . . . on

subject to the jurisdiction of

the United States

. . . to knowingly or intentionally . . . possess

. . . distribute . . . a controlled substance."

1903(a)

(West

Supp.

1997).

A vessel

is

with intent to

46 U.S.C.A. app.

subject

to

the

jurisdiction of

the

"located within

the customs waters

1903(c)(1)(D).

erred

The

in failing

phrase "within

United

the

States,

inter
_____

customs

that

the jury

waters

when

it

of the United States."

defendants allege

to instruct

alia,
____

the trial

on the

of the

Id.
___

court

meaning of

United

is

States,"

the

substantive element of the offense for which they were convicted.

The

defendants contend that,

because the

term has

a technical

meaning not within the expertise of the jury, the judge's failure

to define it

meant that the government was not required to prove

this element of its case beyond a reasonable doubt.

Because

the defendants failed

court's instruction, our

States v.
______

Fulmer, 108
______

to object to

review is for plain error.

F.3d 1486, 1495

(1st Cir.

the trial

See United
___ ______

1997); United
______

States v. And jar,

______
_______

49 F.3d 16, 22 (1st Cir. 1995).1

The failure

____________________

We reject as without merit

should apply a more rigorous

have

requested

that

we

the defendants' contention that we

standard of review.

adopt

rule

that

The defendants
where

charge

conference is not held in open court or on the record, it will be

presumed
which

that a defendant

he or

she

wishes

properly objected to
to pursue

on

any instruction

appeal.

However,

our

previous decisions establish that a party waives any objection it

might

have

objection

to a
into

instructed the

jury
the

instruction

record

jury and

by

immediately

before the

failing to
after

jury begins

See, e.g., Kerr-Selgas v. American Airlines, Inc.,

___ ____ ___________
_______________________

-7-

enter

the

judge

that

has

deliberations.

69 F.3d 1205,

to give an instruction may be noticed as plain error when: (1) it

is an error; (2) the error is clear or obvious; and (3) the error

affected

the substantial rights of

v. United States,
_____________

Olano, 507 U.S.

_____

error is

only

See Johnson
___ _______

117 S. Ct. 1544, 1547 (1997); United States v.

_____________

725, 732-35; Fed. R. Crim. P. 52(b).

found, a reviewing

court has discretion to

When plain

correct it

when the error "seriously affect[s] the fairness, integrity

or public reputation

at

the defendants.

736 (quoting

(1936));

of judicial proceedings."

United States
_____________

see Johnson, 117

___ _______

v. Atkinson,
________

S. Ct. at

1550.

Olano, 507 U.S.

_____

297 U.S.

We

157, 160

thus review the

context of the

error

charge as a whole to determine if it contains "an

that threatens to

the trial.'"

Josleyn, 99
_______

'undermine the fundamental

Fulmer, 108 F.3d

______

F.3d 1182,

fairness of

at 1495 (quoting United States v.

_____________

1197 (1st Cir.

1996), cert. denied sub

_________________

nom. Billmyer v. United States, 117 S. Ct. 959 (1997)).

____ ________
_____________

The statute under which

46 U.S.C. app.

1903, is silent as to the definition of the term

customs waters.

1997).

waters of

Other

the defendants were convicted,

See 46 U.S.C.A. app.

___

statutes make

the United States

miles, from United

1903(b)-(c) (West Supp.

clear, however,

that the

extend for four leagues,

States territory unless another

customs

or twelve

distance has

____________________

1212-13 (1st Cir. 1995) (civil context); United States

_____________
9

F.3d

155, 160-61

(1st

also Fed. R. Crim. P. 30.

____
to depart

Cir.

1993)

v. Nason,
_____

(criminal context);

see
___

We decline the defendants' invitation

from the well-settled

rule by adopting

the requested

presumption.

-8-

been

established by

treaty.

See 19
___

U.S.C.A.

1401(j)

(West

1980).2

In this case,

the judge

instructed the jury

that one

element of the offense was that the vessel be within the "customs

waters of the

United States" but he

failed to provide

with a further definition of the term.3

____________________

The full text of 19 U.S.C.

The

term

case
or

1401(j) provides:

"customs waters"

in the

of a foreign vessel subject to a treaty

other

arrangement

between

government and the United

permitting
States to

the

foreign

States enabling or

authorities

of

the

board, examine, search,

otherwise to
the

means,

enforce upon

United

seize, or

such vessel

upon

high seas the laws of the United States,

the waters

within such distance of the coast

of the United States as the

said authorities

are or may be so enabled or permitted by such

treaty

or arrangement

every other

vessel, the

and,

in the

case of

waters within

four

leagues of the coast of the United States.

the jury

19 U.S.C.A.

The

1401(j) (West 1980).

relevant portion of the

trial judge's instruction is

follows:

Okay.

discuss those

statutes that

are charged in the indictment.

Let's discuss

46

Let's

U.S.C., Section

offenses charged
United

States

1903(a).

One

in the indictment
Code, Section

903(a)

of

the

under 46
[sic],

provides in the pertinent part as follows:

It

is unlawful for

vessel

subject to

United States
possess

any person on

the

jurisdiction of

to knowingly

with

intent

board a
the

or intentionally

to

distribute

controlled substance.

Section 1903(b) and (D), vessel of the U.S.

defined:
purpose

Definition
of this

of

vessel

section means

for

the

(D), capital

(D), parenthesis: A vessel located within the

customs waters of the United States.

-9-

as

Despite the

from

the jury

without

the

and the

At trial,

picked up on

He also

on

testimony by

customs waters

waters.

instructions,

guidance

unrebutted

omission of

a definition

the jury

issue.

Alpers

was not

The

as

location of

both

the

testified that the

what

introduced

constituted

vessel within

Alpers testified that

element

left completely

government

to

FLIR within five miles of

of the

the vessel

customs

was first

United States territory.

customs waters of the

United States

____________________

. . . .

Let's
that

discuss

offense.

offense

the essential
In

order

proscribed by

elements

to establish

Title 46,

Section 1903, the government

of
the

U.S. Code,

must prove each

of the following elements beyond a reasonable

doubt:

One, that

each

defendant was

on board

motor vessel located within the custom waters

of the United States.

. . . .

. . . .

The superseding indictment in this

case also charges that a vessel is subject to

the jurisdiction

of the

United States.

In

order to find defendants guilty in this case,

you

will

things,

have
if

to

determine,

the government

among

other

proved

beyond a

reasonable doubt that the vessel in

question

was

a vessel within the custom waters of the

United States.

Section
United

1903(b)

States

and

defined

(D): Vessel
means

--

of

the

for

the

purpose of this sections [sic] means a vessel

located

within

the

custom

waters

of

the

United States.

Tr. 706-08.

-10-

extend for twelve miles from the territory of the United States.4

____________________

Alpers'

complete

testimony

illustrating his comments

depicting

the

area

on

the

with the aid

in

question that

issue,

made

while

of a navigational

chart

was

also

entered

evidence, is as follows:

Q:

Now,

have

you

marked

the

initial

sighting in the map?

A:

Yes, sir, I have.

Q:

Would you -- using this pointer --

MR. QUILES:

Q:

If I may approach the witness?

(By Mr. Quiles) -- show the jury when -where is

it that you first

sighted the

boat.

A:

Okay.

It's

gentlemen,
That's

when

right

right
we

in

here,

ladies

this

first

area
acquired

and
here.
the

vessel, again traveling lights-out, high

rate of speed, heading
area

here,

heading

approximately here.

260 towards this

this

direction

into

Q:

Now,

sir, were you

able to --

are you

able

to tell the members of the jury at

what coordinates was that boat --

A:

Yes, sir.

Q:

-- located at once you first locked into it?

A:

Right.

Approximate

and 6526.

Again, that's a latitude

a longitude.

Again,

area right here.

of course

coordinates, 1825

that was

You can

and

in this

see Culebra,

mainland Puerto Rico,

and it

was between both of those, north of this

small island chain here.

Q:

As a customs officer was that within the

customs waters of the United States?

A:

Yes,

sir.

That

was

within

the

U.S.

waters.

Q:

How far out do the customs waters of the

-11-

Customs

Alpers'

testimony did not, however, mention that the twelve-mile

limit can be modified by treaty.

Given

this testimony,

the defendants

have failed

meet their burden to show

that the omitted instruction

their substantial rights.

We

term

"customs

waters

of

the

to

affected

agree with the defendants that the

United States"

is

outside

the

experience of lay jurors, and that in the usual case the district

court must give

at least an instruction

concerning the ordinary

definition of

have been

that term, i.e., that the

within four

nearest land

well within

leagues or twelve

territory of the

the evidence was

defendants' vessel must

nautical miles

United States.

However, because

uncontroverted that the defendants'

this limit,

we cannot see

of the

how this

vessel was

omission could

have affected their substantial rights, as required under Olano.

_____

The defendants did not argue that the twelve-mile limit

was inapplicable

that

because their

contracted the

ordinary

vessel was covered

limit.

In

by a

fact, such

____________________

United States extend from any land point

belonging to the United States?

A:

Twelve miles.

treaty

treaties

Q:

And

there

are

points there

--

are how

many

land

in that area that you know

of that belong to the United States?

A:

That

is all

U.S. territory.

Culebra,

the island chain, of course Puerto Rico.

And the vessel, when first acquired, was
approximately five miles north of a land
mass, thus in U.S. Customs waters.

Tr. Vol I, p. 67-69.

-12-

ordinarily

expand

the

twelve-mile limit.

See,
___

e.g., United
____ ______

States
______

v. Doe, 860
___

decide

under what

proper

request to an instruction concerning the treaty exception

to the twelve-mile

F.2d 488,

circumstances a

limit.

that such

an omission

level of

"plain error."

suggest that the

490 (1st Cir.

In

defendant

this case,

cannot, at the

Given

however, it is

the failure

fairness,

integrity

or

public

United States v.
_____________

upon

clear

rise to

of the defense

exception was at all relevant,

error"; certainly it did not

We do not

is entitled

very least,

not "plain

proceedings."

1988).

the

to

the omission is

"seriously affect[] the

reputation

of

Johnson, 117 S. Ct.

_______

judicial

1544, 1550

(1997) (quoting Olano, 507 U.S. at 736) (internal quotation marks

_____

omitted).5

B. Testimony of Customs Service Agent Alpers

_____________________________________________

The

defendants next contend that the trial court erred

in not requiring pretrial disclosure of Alpers' opinion testimony

that the defendants

were the same

individuals whom he

observed

____________________

The defendants have requested that we temporarily refrain from

deciding this

case

to await

United States
_____________

v. Rogers,
______

granted in part, 117 S.

________________
1279).
the

However, in that

the

94 F.3d 1519
Ct. 1841 (U.S.

where, at trial,
117 S. Ct.

decision

(11th Cir.

(No. 96-

certified only

a district court's

failure to

element of an offense is harmless

the defendant admitted that element."

at 1841.

Because,

in

1996), cert.
_____

May 27, 1997)

case the Supreme Court

following question: "Whether

instruct the jury on an

Supreme Court's

inter alia, that case

_____ ____

error

Rogers,
______

deals with

harmless

error

rather than

plain

error,

we

do not

find

it

necessary or desirable to await the Court's opinion in that case.

-13-

fleeing the vessel.6

The defendants claim that Alpers' testimony

was expert testimony, and thus the government's failure to comply

with the

violation.

expert disclosure requirements constituted

The government

contends that Alpers

a discovery

testimony was

notexpert testimony,butrather constitutedapermissible layopinion.

The central issue

men who were

in the trial

arrested were three of

the vessel when they grounded

it.

the same four men

On

cross-examination,

undermine Alpers'

assertion that

people whom he had observed

On redirect

three

who fled

On direct examination, Alpers

testified as to the events he witnessed

system.

was whether the

with the aid of the FLIR

defense

counsel

the defendants

were the

on the vessel with the

examination, Alpers testified

sought

to

same

FLIR system.

over the

defendants'

objection that in his opinion and based on his experience, he had

no doubt

contend

that they

were the same

individuals.

The defendants

opinion was based

not upon direct

upon images on the FLIR

this was expert

that because Alpers'

observation but instead

rather than lay testimony.

Because the government did not reveal

in its expert report that Alpers would give his opinion regarding

the identity of

defendants

the defendants as the men who left the boat, the

claim that the government violated discovery rules by

____________________

The defendants concede that, rather than outright reversal, on

the record in this case the error would entitle them at most to a
remand to

the district

violation

occurred

and

court to
if so,

determine whether a
what

should be.

-14-

the

discovery

appropriate sanction

introducing the testimony.7

We

have rejected similar contentions in

United States
_____________

1997),

v. Rivera-Santiago,
_______________

the defendants

also

claimed

improperly testified as experts.

In

United States
_____________

(1st Cir.
trend

1989), we

favors

the

testimony [from
is

on

customs

v.

Paiva, 892
_____

noted that
admission

F.2d 148

the "modern
of

opinion

provided it

personal knowledge

to cross-examination."

that substance

Id.
___

and
at

to express opinion

she found was

explained

agents

We stated:

157 (permitting drug user

further

960, 968 (1st

that

lay witnesses],

well founded

susceptible

107 F.3d

the past.

that

cocaine).
"the

We

individual

experience and knowledge of a lay witness may

establish

his

qualification

or
as an

her

competence,

expert,

without

to express

an

In

Cir.

had

opinion on a
realm of

particular subject outside

common

knowledge."

Id.;
___

accord
______

United States v. VonWillie, 59 F.3d 922,

_____________
_________
(9th Cir. 1995) (based
officer
was

the

929

on experience, police

could testify as lay witness that it

common

for

drug

traffickers

to

use

weapons to protect drugs; opinion was helpful

to

determination

of whether

defendant

was

involved in drug trafficking).

Rivera-Santiago,
_______________

had

107 F.3d at

968.

Here,

Alpers unquestionably

experience and knowledge in interpreting FLIR images outside

the realm of the jurors'

to form

an opinion based

common knowledge.

on his direct

Because he was

observation and he

able

was

subject to cross-examination, it was permissible for him to offer

his

opinion

distinguish

as a

lay

witness.

Rivera-Santiago
_______________

____________________

is

The defendants'

unavailing.

attempt

Alpers

was

to

not

Because

expert

of the court's ruling that Alpers was not offering an

opinion, the

contention
requirements

that it

court need
effectively

not

consider the

complied

with

government's

the

disclosure

by disclosing prior to trial a statement containing

the factual basis for Alpers' opinion.

-15-

presented as an expert and he did not testify as an expert.

it was not

opinion

as

error for the

to the

trial court to

identity

observed on the FLIR system.

of

the

allow him to

individuals whom

Thus

give his

he

had

C. Sufficiency of the Evidence

_______________________________

Finally, the

defendants claim

legally insufficient to

that

the evidence

was

establish that they were

the persons on

the vessel who had dumped cocaine into the ocean.

We review such

a contention

taking the

facts presented at

trial in

the light

most favorable to the verdict.

See United States

___ _____________

v. Rogers, 121
______

F.3d

United States v.
_____________

Montas, 41 F.3d
______

12, 15

(1st Cir. 1997);

775, 778 (1st Cir. 1994).

able to

Undoubtedly, no single individual was

observe the defendants unimpeded and unassisted from the

time they left the vessel until they were arrested.

However, the

circumstantial evidence that the defendants were the ones who had

fled the

vessel was

conclude

that they

cocaine.

Four

mangroves.

sufficient to allow

had

been

individuals

seen on

were

a reasonable

the

witnessed

juror to

vessel dumping

running

into

the

the

Three individuals were arrested among the mangroves.

No other individuals were encountered

testimony that the area where

uninhabited.

in the area, and there was

the vessel grounded was remote and

Alpers testified that,

in his opinion, the men who

were arrested were the ones who had fled the vessel.

The jury

theory

that

they

was not

were

required to

illegal

-16-

credit the

aliens

seeking

defendants'

to

evade

deportation.

The

only evidence

defendants themselves, and it was

factfinding

of this

was presented

by the

within the scope of the jury's

function to disregard this evidence entirely.

Thus,

taken in the light most favorable to the verdict, there was ample

evidence, both direct and circumstantial, from which a reasonable

juror could

have concluded that

the defendants had been

on the

vessel, dumped cocaine from the vessel, grounded the vessel, fled

to

the mangroves,

arrest, and

in

light

attempted

to

evade

detection

then provided a false explanation

of

the

likely

repercussions of

until

their

of their behavior

their

acts.

The

defendants have failed

to show that they are

based

insufficiency

on the

alleged

of

the

entitled to relief

evidence

offered

against them.

Conclusion
Conclusion
__________

For

the reasons stated

defendants are affirmed.

affirmed
________

above, the convictions

of the

-17-