United States v. Castillo ( 1997 )

[NOT FOR PUBLICATION]
United States Court of Appeals
For the First Circuit
No. 96-1661
UNITED STATES,
Appellee,
v.
JUAN R. CASTILLO-DE LOS SANTOS,
Defendant - Appellant.
No. 97-1277
UNITED STATES,
Appellee,
v.
MARCOS COPLIN-BRATINI,
Defendant - Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Dom nguez, U.S. District Judge]
Before
Selya, Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Lynch, Circuit Judge.
Edgardo Rodr guez-Quilichini, Assistant Federal Public
Defender, with whom Lucien B. Campbell, Acting Federal Public
* Of the Eighth Circuit, sitting by designation.
Defender, and Miguel A.A. Nogueras-Castro, Assistant Federal
Public Defender, were on brief for appellant Castillo-de los
Santos.
Carlos P rez-Olivo, by appointment of the Court, for
appellant Coplin-Bratini.
Jacabed Rodr guez-Coss, Assistant United States Attorney,
with whom Guillermo Gil, United States Attorney, and Jorge E.
Vega-Pacheco, Assistant United States Attorney, Chief, Criminal
Division, were on brief for appellee.
December 16, 1997
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JOHN R. GIBSON, Senior Circuit Judge. Juan R.
JOHN R. GIBSON, Senior Circuit Judge.
Castillo-de los Santos and Marcos Coplin-Bratini appeal their
convictions for importing 24.5 kilograms of cocaine discovered
inside a ballast tank in their vessel, the Miss Gina. They were
convicted on three counts: possessing cocaine with intent to
distribute, 21 U.S.C. 841(a)(1)(1994) and 18 U.S.C. 2 (1994);
importing cocaine, 21 U.S.C. 952(a)(1994) and 18 U.S.C. 2;
and possessing cocaine on board a vessel arriving in the United
States without the cocaine having been part of the cargo entered
in the manifest or part of the official supplies of the vessel,
21 U.S.C. 955 (1994) and 18 U.S.C. 2. Each argues that there
was insufficient evidence to convict him, and Castillo-de los
Santos argues that the court erred in admitting evidence that he
failed to file income tax returns. We affirm the convictions.
The Miss Gina arrived in Puerto Rico with no cargo on
September 11, 1995, after departing from the Dominican Republic.
The Miss Gina was a small, old commercial vessel owned by the two
appellants.1 Castillo-de los Santos identified himself as the
captain of the vessel. The United States Customs Service
conducted an initial search of the vessel, and during the search
a trained dog alerted to a black bag belonging to Castillo-de los
Santos. The dog's reaction indicated that the bag had once
contained narcotics, but at the time of the customs search, the
1 Originally a third partner had owned a part interest in the
vessel; he relinquished ownership before the events at issue
here.
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bag was full of anabolic steroids. The search revealed more
steroids, which the Customs Service seized.
The Customs Inspector left the ship, but returned and
informed Castillo-de los Santos that he had to wait for a Customs
Agent to arrive. By this time, Castillo-de los Santos was
preparing to pull the vessel out of the dock. He became agitated
and had to be ordered repeatedly to turn off his engines.
Coplin- Bratini was also on board the vessel. He also became
agitated and said that he had to leave the vessel because he had
ulcers. The Customs Agent arrived and arrested Castillo-de los
Santos for possession and importation of steroids.
On September 14, 1995, the Customs officials returned
and searched the vessel again. This time the inspectors searched
the cargo hold. They noticed that some of the metal hatches of
the water tanks in the hold had been painted so recently that the
paint was not yet dry. Also, the nuts and bolts of the hatch
were loose. In contrast, another hatch in the same area was not
painted, and the nuts were rusty, showing that they had never
been removed. The inspectors looked inside one of the tanks with
the newly painted hatch and found two metal boxes floating in a
diesel oil layer above the water inside the tank.2 The boxes
contained 24.75 kilograms of cocaine.
At trial the government showed that the Miss Gina had
only conducted seven trips during the two years that the
2 The government argued in closing that the layer of diesel oil
was meant to mask the smell of the drugs, so that the drugs would
not be detected by drug-sniffing dogs.
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appellants owned it, and that on each trip the vessel carried
cargo to the Dominican Republic, but returned to Puerto Rico
empty. The vessel's marine agent testified that it was common
for commercial vessels to carry cargo from the Dominican Republic
to "the islands"; after delivering their cargo to the islands,
such vessels would arrive at Puerto Rico empty, ready to pick up
a new cargo. However, the Miss Gina had not carried any cargo
from the Dominican Republic.
Castillo-de los Santos, Coplin-Bratini, and their
partner had bought the vessel for $45,000. The government
introduced testimony and financial records of the ship's agent,
which it summarized as showing that during the two years of the
appellants' ownership, the Miss Gina had expenses exceeding
$75,000, but grossed less than $35,000. The ship's marine agent
testified that during those two years, the ship had accumulated
more than $25,000 in bills to the agent, and that the bills had
been paid in cash on every occasion but one, in denominations of
twenties, tens, fives, and ones.
The government also introduced Coplin-Bratini's last
five tax returns, which apparently showed an average income of
$15,000. Castillo-de los Santos had not filed any tax returns
with the Puerto Rico Treasury Department.
The wholesale value of the cocaine seized from the Miss
Gina was $15,500 per kilogram, or a total of $379,750. The value
of the cocaine once cut and prepared for retail distribution
would have been $4.9 million.
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Coplin-Bratini testified. On cross-examination, the
government showed that he spent more money than he reported as
income in his income tax returns and that he had assets out of
proportion to his reported income level.
Castillo-de los Santos also testified. He admitted
that, before the trip, he checked the water tanks to see that
they were working. He said he did not know who painted the
hatches and suggested that they were not painted when he left the
Dominican Republic, but perhaps were painted by the sailors
without his knowledge during the twenty-four hour voyage from the
Dominican Republic to Puerto Rico.
The jury found both men guilty. They were both
sentenced to 188 months imprisonment on each count, to be served
concurrently, five years supervised release, and a $50 monetary
assessment on each count.
I.
Both appellants contend that there was insufficient
evidence to convict them, specifically, that the government did
not prove they knew of the cocaine's presence on the vessel.
We must uphold the convictions if the evidence, taken
in the light most favorable to the government, is adequate to
permit a rational jury to find each essential element of the
offenses beyond a reasonable doubt. See United States v. Valle,
72 F.3d 210, 216 (1st Cir. 1995). All credibility determinations
must be resolved in the prosecution's favor, and among competing
inferences, we must draw the inference that best fits the
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prosecution's theory of guilt. Id. at 216-17. The evidence of
knowledge in this case is circumstantial. However,
[I]n the context of review of a motion
for acquittal, no legal distinction
exists between circumstantial and direct
evidence. Furthermore, it is
unquestioned that direct evidence need
not be presented. Judicial authority
teaches that the government can use
circumstantial evidence as long as the
evidence, viewed as a whole, is
sufficient to warrant a reasonable jury
to conclude that the defendant is guilty
beyond a reasonable doubt.
United States v. Doe, 921 F.2d 340, 343-44 (1st Cir. 1990)
(internal quotations and citations omitted).
The circumstantial evidence that Castillo-de los Santos
and Coplin-Bratini knew that the cocaine was in the water tank is
not overwhelming. Cf. United States v. Piedrahita-Santiago, 931
F.2d 127, 130-31 (1st Cir. 1991) (large cargo of marijuana on
small boat, vessel in poor repair and responded evasively to
attempts to contact it); United States v. Passos-Paternina, 918
F.2d 979, 984-86 (1st Cir. 1990) (bizarre behavior of vessel in
storm, avoiding Coast Guard, evidence that crew had just removed
plates behind which drugs hidden, no valid registration, etc.),
cert. denied, 499 U.S. 982 (1991); United States v. Corpus, 882
F.2d 546, 549-50 (1st Cir.) (as Coast Guard sought to board
tugboat, bales of marijuana suddenly appeared in the water,
tugboat lacked sufficient equipment on board to tow, etc.), cert.
denied, 493 U.S. 958 (1989). However, giving the prosecution the
benefit of all reasonable inferences, we conclude that the
evidence is sufficient.
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First, Castillo-de los Santos and Coplin-Bratini were
the owners of the vessel and were on board the vessel when it
arrived in Puerto Rico, with eight men on board. Castillo-de los
Santos was the captain. The hatches to the tanks in which the
cocaine was hidden had been recently painted, so that the paint
was still sticky. Castillo-de los Santos admitted he had checked
the water tanks before leaving. Coplin-Bratini also said that he
had been down in the cargo hold the day before the ship left the
Dominican Republic. The senior special agent of the Customs
Service stated that in his experience investigating smuggling
cases, given such a large load of cocaine, somebody with control
over the ship would have to have knowledge that it was on board.
The captain would have control of the ship, and in this case the
captain and also the co-owner of the vessel were on board. The
vessel left the Dominican Republic empty, which supports an
inference that there was no commercial reason for the trip and
therefore the captain and owner must have known of an illicit
purpose. See Corpus, 882 F.2d at 550. Moreover, the drug-
sniffing dog alerted to a bag claimed by Castillo-de los Santos,
indicating that the bag had earlier contained narcotics.
The value of the cocaine on board, about $400,000
wholesale or $4.9 million retail, supports an inference of
knowledge, since we have before observed that it is unlikely the
owner of a valuable cargo would stow it in a vessel without the
knowledge of the vessel's captain. See Passos-Paternina, 918
F.2d at 985. The partnership relation between Castillo-de los
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Santos and Coplin-Bratini supports an inference that they shared
knowledge about the use being made of their jointly owned vessel.
See United States v. Guerrero, 114 F.3d 332, 342 (1st Cir. 1997),
cert. denied, 118 S. Ct. 320 (1997); Corpus, 882 F.2d at 550
(knowledge established by circumstantial indicia, including close
relationship of crew); United States v. Guerrero-Guerrero, 776
F.2d 1071, 1077 (1st Cir. 1985), cert. denied, 475 U.S. 1029(1986).
Finally, the financial evidence that the vessel had
been operated at a loss since the appellants had owned it could
support the inference that they had intended to use the vessel
for smuggling. They paid substantial expenses to their marine
agent in cash -- not only in cash, but in very small
denominations. The government's expert on drug smuggling stated
that drug transactions were usually conducted in cash,
specifically in small denominations. See United States v. Ariza-
Ibarra, 605 F.2d 1216, 1225 (1st Cir. 1979). There was evidence
that Coplin-Bratini's living expenses exceeded the amount of
income he reported in his income tax returns and that his assets
were greater than what his reported income would warrant. The
financial evidence supports an inference that he had a practice
of supplementing his legal income with illegal income.
These facts, taken together, would permit a jury to
find the essential element of knowledge of the cocaine. We must
uphold the jury's verdict.
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II.
Castillo-de los Santos argues that the court erred in
admitting evidence that he had not filed tax returns for five
years. The purpose of this evidence, as in United States v.
Figueroa, 976 F.2d 1446, 1454 (1st Cir. 1992), cert. denied, 507
U.S. 943 (1993), was to show that he had greater income than he
was reporting to the government, and to suggest that his income
was therefore derived from an illegal source that he dared not
report.
Castillo-de los Santos argues that the government did
not show that he was obliged to report the income, because he had
lived in the Dominican Republic since 1989 and had no such
obligation. He did not make this argument before the evidence
was admitted. His counsel objected to the use of the income tax
information, but he did not suggest to the court that Castillo-de
los Santos was not required to file a return. His counsel said
only, "[H]e's a very humble man who, like many people in our
country, for whatever reason, he did not file income tax." Not
until after the evidence had been admitted did Castillo-de los
Santos's lawyer attempt to establish on cross-examination that
Castillo-de los Santos did not live in Puerto Rico. Even then,
the agent being cross-examined steadfastly repeated that
Castillo-de los Santos had said he lived in Puerto Rico. At the
time the evidence was admitted, Castillo-de los Santos did not
inform the court of the factual predicate of his present
argument. We cannot require the district court to be
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clairvoyant. Because Castillo-de los Santos did not preserve the
objection he now urges, we review only for plain error. See
Figueroa, 976 F.2d at 1453. There is no plain error here.
Castillo-de los Santos also contends that the evidence
suggested to the jury that he was guilty of another crime -- tax
evasion. He preserved this objection, so we review the admission
of the evidence for abuse of discretion. See id. at 1454. The
court in this case instructed the jury that the appellants were
not charged with income tax violations and that the jury was not
to consider the evidence as showing "a potential problem with his
local tax returns." See id. (cautionary instruction minimized
danger of prejudice). This instruction adequately channeled the
jury's use of the evidence and forestalled any prejudice. There
was no abuse of discretion.
We affirm the convictions.
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