USCA1 Opinion

February 23, 1993

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 91-2079
UNITED STATES OF AMERICA,
Appellee,
v.
ANGEL LUIS MORALES-CARTAGENA,
Defendant, Appellant.
_____________________
No. 91-2080
UNITED STATES OF AMERICA,
Appellee,
v.
WILFREDO ALVARADO-ORTIZ,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
____________________
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Stahl, Circuit Judge.
____________________
Javier A. Morales Ramos and Jeffrey M. Williams with
Indiano, Williams & Weinstein-Bacal was on brief for appellants.
Jeanette Mercado-Rios, Assistant United States Attorney,

whom Daniel F. Lopez-Romo, United States Attorney, and Jose A. Qui

Espinosa were on brief for the United States.
________
____________________
February 23, 1993
____________________

CAMPBELL,
Cartagena

Senior

and Wilfredo Alvarado

defendants Luis Alfredo

aiding

Circuit

and

distribute

abetting

in

U.S.C.

aiding and abetting

the

alleging an

Luis

Ortiz were convicted

along with

Lorenzi Padilla

possession

with

kilograms

of cocaine

aboard a

Uni

U.S.C.

2,

1903(c)(1)(D) and (f), 18

in the

importation of cocaine

and Alvarado

ask us

insufficiency of evidence,

and prosecutorial misconduct.

Mora

unlawful

territory of the United States, 21 U.S.C.

appeal, Morales

Angel

Alvarado and Juan Eugenio

approximately 267

States vessel, 46

Judge.

intent

into the

cust

952(a), 18 U.S.C.

to

reverse their
erroneous jury

2.

convictio

instructio

We affirm the convictions.

I.

A. Sufficiency of the Evidence

________

Appellants assert that as there was insufficient evidence

criminal

intent, the

29(a) motions

district

for judgment

court erroneously

of acquittal.

denied their

In reviewing

a prope

preserved Rule 29 motion,

inferences

all legitim

therefrom in the light most favorable to the government

determine

whether a

reasonable

doubt.

788, 790

we examine the evidence and

rational jury
E.g.,

could have

United States v.

(1st Cir. 1992);

United States v.

found guilt

beyon

Gonzalez-Torres, 980 F
Clotida, 892 F.2d

10

1103 (1st Cir. 1989).

The government
motions

by presenting

argues that appellants

evidence

after the

waived their Rule

government concluded

case-in-chief and by failing to renew the motions at the

close of

-2-

evidence.
E.g.,

Were this so, our

review would be for

plain error onl

United States v. Alfredo Alvarado, Nos. 91-2075, 2076, slip

at 6 (1st Cir. Dec. 31,

F.2d 35, 37 (1st

1992); United States v. Arango-Echeberry,

Cir. 1991); Clotida, 892 F.2d at 1103.

However,

need not decide whether appellants waived their Rule 29 motions.

assuming they did not, the evidence was sufficient for a rational j
to find that appellants were guilty beyond a reasonable doubt.
Appellants urge

that

"mere presence"

at the

scene is

enough to convict a defendant of aiding and abetting in the commiss

of a

crime.

E.g.,

Clotida, 892

F.2d

at 1104.

They assert

evidence merely showed that they

of the open
They

sea where an

air drop

analogize their conviction to

board a sailboat
because
crime.

were present on a vessel in

taking part

of bales of

that of innocent

in the Grand

crew members in another

cocaine took

pla

crew members

Regatta Columbus2

sailboat in the

an a

sol

regatta committe

Appellants' analogy does not wash.

____________________

1.
We upheld the convictions of co-defendants Luis Alfredo Alvar
and Juan Eugenio
Lorenzi Padilla against a
challenge to
sufficiency of the evidence under the plain error standard.
United States v. Alfredo Alvarado, Nos. 91-2075, 2076, slip op. at
(1st Cir. Dec. 31, 1992).
The opinion in that case contains a m
exhaustive account than we provide here of the relevant facts
circumstances surrounding the convictions of appellants and their
defendants.

2.
The Grand Regatta Columbus was a celebration of the 50
anniversary of Columbus' discovery of America in which hundreds
vessels from dozens of nations took part in a five-month race f
Europe to America and back in the spring and summer of 1992.
M
Malone, CADIZ to Boston; Grand regatta pays homage to Columb
voyage, Boston Globe, July 5, 1992.
______
-3-

Rather

than

being aboard

taking part in a regatta,

which a suspect

only one

of hundreds

appellants were in one of two

aircraft was seen to hover.

of vess

vessels o

Flying at night with

lights and with no flight plan, the aircraft made tight

circles ab

300

to

500 feet

A Customs

Service pi

following the suspect aircraft testified to having seen

moving lig

from the

above the

vessels.

two vessels.

From this

vessels wished to be visible

a reasonable jury could

to the aircraft.

infer that

Bales of

cocaine w

dropped in proximity to the vessels from the aircraft, after which

vessels began heading
lights turned

off.

distance of about

north towards the

At

100 yards.

westerly direction, a
vessel,

first the

occupied by

police helicopter was

the

appellants.

as a police helicopter

twelve

sixteen

helicopter
reduced

inches

might

be

offered,

inferred,
a jury

appellants were
were

The

could

police

away.

While

reasonably conclude

States v.

Lopez, 944 F.2d

Hernandez-Bermudez,

33, 40 (1st

sergeant

a police

lit

aboard
looked

marine ves

veered off in

order,

other explanations

from

conscious of having engaged in

more than mere inadvertent bystanders

fi

"FURA," which w

Appellants

When

appellants' vessel

to get

helicopter was

to stop.

then accelerated.

subsequently approached,

together at

directed over the

by the letters

long.

gestured for appellants

speed, and

two boats traveled

navigat

After the second vessel veered off i

identified
to

shore with their

this conduct

criminal activity

at the drug drop.

Cir. 1991); United

Uni

States

857 F.2d 50, 54 (1st Cir. 1988); United States

-4-

Flores Perez, 849 F.2d 1, 3 (1st Cir. 1988); United States v. Alvar
626 F.2d 208, 210 (1st Cir. 1980).
The fishing
and

gear found

not prepared for fishing.

vessel.

No

fishing nets were

aboard both vessels

No bait or fish
found in

was wrapped

were found on eit

the area.

As

fishing

apparently not their purpose, the jury could infer that appellants
another purpose for
cocaine

their nighttime sojourn on the

was found aboard

appellants' vessel,

were discovered on the companion vessel.

vessels
by

sea.

Although

four bales

of coca

A connection between the

was suggested not only by their proximity when first seen

evidence that appellant Wilfredo Alvarado Ortiz was related to

defendant

Luis Alfredo

Alvarado.

"While innocent

association w

those involved in illegal activities can never form the sole basis
a conviction, . . .
defendant and
larger

707, 713

a close relationship

others involved in criminal activity

package

involvement

the existence of

of

proof,

assist

in

in illicit activity."

(1st Cir. 1992) (citing

can, as part o

supporting

an

United States v.
Nye & Nissen v.

betwee

inference

Ortiz, 966 F

United States,

U.S. 613, 619 (1949)), cert. denied, 61 U.S.L.W. 3479 (1993).

Criminal

intent

circumstantial evidence.
92-1228, slip op.

may,

of

course,

be

inferred

E.g., United States v. Gomez-Villamizar,

at 9 (1st Cir. Dec.

23, 1992); Ortiz, 966

F.2d

711; United States v. Rodriguez- Alvarado, 952 F.2d 586, 590 (1st C
1991).
airplane

Here, numerous factors, including

maneuvering over the two

the unlighted, clandest

boats, the lights

on the vesse

-5-

their proximity to the cocaine when dropped, the fact that appellan

vessel was running without navigational lights, the finding of coca

bales on the companion vessel, and the lack of support for their be
engaged

in fishing

or

substantial evidence
possessed

some other

from which

innocent occupation,

a jury

could infer

the requisite criminal intent.

constitu

that appella

See Alfredo Alvarado, N

2075, 2076, slip op. at 6-7 (1st Cir. Dec. 31, 1992).
B. Jury Instructions
Appellants contend
the

jury

were

erroneous,

mandatory presumptions of
assorted instructions
aiding

_________________

that the district court's instructions

misleading,
guilt.

and

created

Pointing to isolated

impermissi

excerpts f

regarding intent to distribute, possession,

and abetting, appellants complain that the jury was allowed

convict appellants

for merely being

present at

the scene of

a d

drop.
We review
isolated excerpts.
(1st

Cir. 1991);

district court's

charge

E.g., United States v.

United States

Cir.), cert. denied, 111

v.

as

a whole,

not

Hallock, 941 F.2d 36,

Boylan, 898

F.2d 230,

244 (

S. Ct. 139 (1990); United States v. Cinto

818

F.2d 980, 1003

Viewing the charge

force.

For

definition
court

(1st Cir.),

in this manner, appellants'

example,

appellants

of possession

object

with intent

defined this element as

transfer

cert. denied,

to

484 U.S.

arguments have lit

the

district cour

to distribute.

The

possessing "with intent

possession of a controlled

913 (198

distr

to deliver

substance to another person w

-6-

or without any financial interest in the transaction."

wrong

in this.

See Pattern Jury Instructions (Criminal Cases), Fi

Circuit, Instruction
Pattern Criminal

We see noth

45, at

III-73 (1991); Federal

Jury Instructions

Judicial Cent

(1987), Instruction 112,

at 1

Appellants contend that the instruction would permit a jury to conv

appellants
police.
court

and

their co-defendants

This argument, however,

clearly

and correctly

for

delivering

ignores the fact

defined

the

a whole,

we find

nothing that

that the distr

elements of

intent, and knowledge elsewhere in the charge.

as

cocaine to

would cause

willfulne

Considering the cha

the jury

to conv

appellants without finding the requisite criminal intent.

court's

Appellants

make

definition

of

similar

constructive

argument

as

possession.

to

the

distr

According

appellants,

the

intentional

aspects

Because

definition
were

misleading

only

appellants failed

trial, we

was

vaguely

to make

will reverse only upon

because

and

the

requi

ambiguously

defin

this objection

to the

a showing of "plain

charge

error."

E.

United States v. De La Cruz, 902 F.2d 121, 122 (1st Cir. 1990); Uni
States v. Nazzaro, 889 F.2d 1158, 1166 (1st Cir. 1989);
P.

30.

Appellants

defined constructive

have not shown

plain error.

Fed. R. Cr

The district co

possession as "knowingly [having]

the power

the intention, at a given time, to exercise dominion or control ove

thing,

either directly or through

definition,

which

clearly required

another person or
both

knowledge

similar to one we have approved in the past.

persons."

and intent,

See, e.g., United Sta

-7-

v. Garcia, Nos. 92-1427, 1428, slip op. at 6 (1st

Cir. Feb. 4, 199

United States v. Akinola, No. 92-1587, slip op. at 9 (1st Cir. Feb.
1993); United States v.
1992).
its

Moreover, as already

charge made

charged,

Ocampo-Guarin, 968 F.2d 1406, 1409

the

intentionally,

noted, the district

clear that,

jury
and

had

to

to convict
find

willfully.

that
See

court elsewhere

appellants of

the offen

appellants acted
Hallock,

(1st C

941

knowing

F.2d

at

(constructive possession instruction without any

or intent

is

not plain

error if

mention of knowle

knowledge and

intent are

defi

elsewhere in jury instructions).

We see no instructional error, pl

or

confused

otherwise,

that could

have

the

jury into

convict

appellants without finding the requisite criminal intent.

Appellants
opening remarks

additionally contend

to the

jury on

that

the concept

the

of aiding

created an impermissible mandatory presumption.

the district court stated

whole

. .

. all of

them are

acts committed together."

explanation
mandatory

of the concept

which

the law holds a

when

in the commission of

presumed to be

responsible for

This statement, while not a compl

Instead, it merely

did not creat

explained, i

aiding and abetting is a form

of agency

defendant criminally responsible

for the a

and conduct of another person

personally

During these remar

of aiding and abetting,

presumption of guilt.

preliminary fashion, that

and abett

that "[a]iding and abetting means

or more persons assist each other, basically,

offense,

district cour

even though the defendant may

committed every act constituting

not h

the offense alleged.

-8-

course,

before a defendant may

be held criminally

responsible as

aider

and

abettor, the

government

must

prove

that the

defend

"associated himself with the underlying venture, participated in it

something he wished to bring about, and sought by his
it succeed."

United States

1992); United States v.

("In

and

O'Campo, 973 F.2d 1015, 1020 (1st

must establish

intentionally

principal's criminal
its

v. Clifford, 979 F.2d 896, 899

order for aiding and abetting liability

the evidence

actions to m

sought

action

or

transaction succeed.").

Cir. 19

to be applicable, .

that the defendant

by his

(1st C

knowingly, willfu
presence

The

to make

district court,

subsequent charge, accurately instructed the jury in this rega

We find

no error in

abetting

or

in any

the district court's

of the

other

instruction on

instructions to

aiding

which appella

object.3
C. Prosecutorial Misconduct
Appellants'
prosecutorial
misstated
the

trial

final

misconduct.

assertion

___________
of

Appellants

the evidence during argument

judge4

and

during

closing

error

involves

complain that
of the Rule
argument

alle

the prosecu

29 motion bef
to

the

jur

____________________

3.
Appellants did not object to the district court's definition
importation, which we held, in their co-defendants' appeal, to
error, but not plain error. See Alfredo Alvarado, Nos. 91-2075, 20
slip op. at 9-11 (1st Cir. Dec. 31, 1992).

4.
Since the jury was not present during the prosecutor's Rule
argument, appellants cannot claim that any part of that argum
improperly influenced the jury.
The statements made to the ju
alone were, for the most part, fully supported by the record. O
one seems unsupported.
That involved whether appellants' vessel
stationary when the FURA helicopter first approached.
We find t
-9-

Appellants' arguments are severely

made

hampered by their failure

contemporaneous objections to

the allegedly

to h

offensive remar

Absence of objection to a prosecutor's remarks limits appellate rev

to
960

the plain error standard.

F.2d 256, 260

E.g., United

(1st Cir.), cert.

States v. Panet-Colla

denied sub nom.

Diaz v. Uni

States, 113 S. Ct. 220 (1992); United States v. Rodriguez-Cardona,

F.2d 1148, 1154 (1st Cir.), cert. denied, 112 S. Ct. 54 (1991); Uni
States

v. Griffin, 818 F.2d 97, 99-100

(1st Cir.), cert. denied,

U.S. 844 (1987); Fed. R. Crim. P. 52(b).

one to meet.
or

not

record.'"

This standard is not an e

We may not "'consider the ordinary

harmful to

litigant's

cause --

backfires -- whet

which

may

United States v. Mejia-Lozano, 829 F.2d 268,

1987) (quoting

Griffin, 818

F.2d at

100)).

Under

mar a

tr

272 (1st C

the plain

er

____________________

statement so isolated and insignificant that it could not amount

plain error even if it had been uttered in the presence of the ju
See, e.g., United States v. Panet-Collazo, 960 F.2d 256, 260 (
Cir.), cert. denied sub nom. Diaz v. United States, 113 S. Ct.
(1992); United States v. Prouse, 945 F.2d 1017, 1025 (8th Cir. 1991

5.
Appellants also contend that
the prosecutor's impro
introduction of hearsay evidence constituted prosecutorial miscondu
Appellants complain specifically of the testimony of Customs Serv
radar operator Richard Cunnicelli that he saw flashing lights in
water as the suspect aircraft approached the two vessels.
On cro
examination, Cunnicelli admitted that he never actually saw anyth
in the water because his eyes were focused on the radar equipme
Instead, he heard the pilot say, "I see lights." Appellants ar
that they were prevented from effectively objecting to this testim

by the prosecutor's failure to provide Cunnicelli's rough notes

appellants during discovery.
Unlike their co-defendants, howev
appellants never requested these notes; nor did they object to
admission of this testimony at trial; nor did they move to strike
hearsay testimony. We are therefore foreclosed from considering t
issue on appeal absent plain error, which appellants are unable
establish.
See United States v. Serrano, 870 F.2d 1, 11 n.11 (
Cir. 1989).
-10-

standard, we will reverse

in

a conviction only "'in

which a miscarriage of

States

those circumstan

justice would otherwise

result.'"

v. Santana-Camacho, 833 F.2d 371, 373 (1st Cir. 1987) (quot

United States v. Young, 470 U.S. 1, 15 (1985)).

In determining
to

plain error,

we

768

consider the

prosecutor's

1154; Santana-Camacho, 833 F.2d

F.2d 343,

347 (1st

Cir. 1985).

"whether the offending conduct

trial's

outcome was likely affected."

guided in making

including

the

frequency

the strength

United

of

Within

States v. Full

that context,

so poisoned the

we m

well that

Mejia-Lozano, 829 F.2d at 2

deliberateness

comments, the strength and clarity

and

Rodriguez-Cardona, 924 F

this determination by
and

comments within

at 373; United

decide

We are

____________

whether a prosecutor's misstatements amoun

framework and context of the entire case.

at

Uni

a number
of

the

of facto

prosecuto

of the trial judge's instructio

the government's

States v. Mateos-Sanchez, 864

case

against the

F.2d 232, 241

defenda

(1st Cir. 198

Mejia-Lozano, 829 F.2d at 274.

We need not

recount each of

made by the prosecutor here.

scrutinized

the

____________

record

the allegedly

false stateme

Suffice it to say that we have carefu

and

find

that

most

of

these

so-cal

misstatements involve controverted facts or reasonable inferences t

the

prosecutor asked

the jury

to draw

nothing improper in either instance.

F.2d 612, 625 (1st Cir. 1990);

from the

facts.

See United States

There

v. Mount,

United States v. Tucker, 820 F.2d 2

237 (7th Cir. 1987).

-11-

Of

the dozen or so statements challenged by appellants, o

one deserves further comment.

During closing argument, the prosecu

discussed appellants' attempt to evade apprehension:

It is only as they are about to get caught
that all of a sudden one vessel starts to veer
away.
Which
vessel?
How interesting that the
defendant [Alfredo Alvarado] says, the one that is
the lightest. That is the one that went off. That
is the one that took off. That was the decoy. It
could get away quicker.
And sure enough, the FURA helicopter in fact
went after the vessel that appeared to be getting
away.
To

the

extent that

these

remarks suggest

that

appellants' ves

veered away, i.e., changed its course

were misleading.

from north to west, the rema

It was the co-defendants' vessel that

a westerly direction, not appellants' vessel.

helicopter initially pursued appellants'

veered off

Nevertheless, the

vessel, which apparently

lighter and could get away quicker.

The

above-quoted comments

They were isolated and,

did not

in relation to the body of

during trial,

relatively insignificant.

from a number

of government witnesses

veered

amount to

plain

err

evidence recei

The jury had heard testim

that appellants' vessel

ne

from its northerly direction before or during the helicopte

pursuit,
traveling

whereas
in

their co-defendants'

more

westerly

at

direction.

corroborated

by a videotape showing

two vessels.

The jury

FURA helicopter

vessel

some point

This

the tracking and

testimony
seizure of

also heard several witnesses testify

initially pursued appellants' vessel.

be

that

Therefore,

-12-

was

unlikely

that

the

jury

would

be

duped

or confused

by

prosecutor's misleading statements suggesting that the FURA helicop

initially chased the
course.

vessel that

had veered away

from its

previ

The likelihood
the

judge's repeated,

statements and arguments

of jury
explicit

confusion was

further decreased

instructions to

of counsel

the

were not evidence

jury that
in the

ca

Mateos-Sanchez, 864 F.2d at 241; Mejia-Lozano, 829 F.2d at 274; Uni

States v. Giry,
855 (1987).
of

818 F.2d 120, 133 (1st Cir.),

Given

the isolated nature of the

the government's case against

district
misleading

court's

instructions,

statements could

cert. denied, 484 U

comments, the stren

appellants, and the

it

seems

most

have affected the

The plain error standard was not met.

Affirmed.

________

-13-

clarity of

unlikely
outcome of

that

the ca