USCA1 Opinion

December 31, 1992

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 91-2075
UNITED STATES,
Appellee,
v.
LUIS ALFREDO ALVARADO,
Defendant, Appellant.
__________
No. 91-2076
UNITED STATES,
Appellee,
v.
JUAN EUGENIO LORENZI-PADILLA,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Cyr, Circuit Judge,
_____________
and Boyle,* District Judge.
______________
____________________

Jose F. Quetglas Jordan with whom Eric M. Quetglas Jordan was

_______________________
_______________________
brief for appellant Luis Alfredo Alvarado.
Eric M. Quetglas Jordan with whom Jose F. Quetglas Jordan was
_______________________
_______________________
brief for appellant Juan Eugenio Lorenzi-Padilla.
Jose A. Quiles-Espinosa, Assistant United States Attorney, w
________________________
whom Daniel F. Lopez Romo, United States Attorney, and Jeane
_______________________
_____
Mercado Rios, Assistant United States Attorney, were on brief
____________
appellee.
____________________
____________________
_____________________
*Of the District of Rhode Island, sitting by designation.

BOYLE, District Judge:

______________

Luis

Alvarado

of

conviction

judgments
possession

with

kilograms
million

intent to

of cocaine
and

1903(a),

$100

Juan

for

(f),

of cocaine

Lorenzi

appeal

from

and

abetting

the

aiding

distribute

stipulated

million

(c)(1)(d),

importation

and

in
&

approximately 267.6

to be
violation

18

into the

Both

evidence

to

appellants claim
establish

of

U.S.C.

possessed the cocaine with intent

2,

and

the

of the

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

that there

that

$60

46 U.S.C.

customs territory

United States in violation of 21 U.S.C.

2.

worth between

was insufficient

appellants

intentionally

to distribute it and that

there was insufficient evidence to show that the cocaine was

imported into

the customs

territory of the

United States.

After careful consideration of the record, we affirm.

I. Background
On the evening of March 19, 1991,

a United States

Customs Service aircraft acquired

a suspect aircraft on its

radar

Looking

device

and

on

a Forward

Infrared

("FLIR") approximately 185 miles southwest of

Rico.

System

Ponce, Puerto

The suspect aircraft was heading northeast, traveling

without navigation lights at an altitude of about 3000 feet.

-44

The Customs Service

aircraft pursued the

aircraft at a distance of half-a-mile.

and

twenty

aircraft
The

minutes,

noticed the

vessels

were

the

pilot

of

located

After about one hour

the

lights of two

Customs

vessels in

approximately

just

Service

the water.

twenty

southwest of Santa Isabel, which is near Ponce.

aircraft descended to about

suspect

miles

The suspect

300 to 500 feet off

the water,

above the two vessels, and then began a series of hard

maneuvers, sometimes turning ninety degrees or greater.

After about fifteen minutes
suspect aircraft, the pilot
noticed a string of
water.

Based

of maneuvering by the

of the Customs Service aircraft

approximately twenty-five lights in the

on his experience,

the pilot suspected

that

the string of lights he observed were chem lights, which are

often attached to narcotic airdrops for visibility.
The
Customs

pilot reported

Service

Nomad

possible

aircraft

airdrop,

thereafter

and

took

over

surveillance of the two vessels on both radar and FLIR.

The

vessels were traveling at about twenty to twenty-five milesper-hour

traveling

in

northbound

without navigation

heading.
lights.

Both
The

vessels

were

Nomad began

half-mile

orbit around

the vessels

and radioed

the state

-55

police

that two

vessels suspected

of drug

smuggling were

headed towards the shore.

At about
been traveling

11:30 P.M.,

the two vessels,

together at a distance

yards, began to separate.

which had

of approximately 100

The first vessel continued

in a

northbound heading, while the second vessel veered off

in a

more westerly

direction.

To maintain

surveillance on both

of the diverging vessels, the Nomad kept its FLIR trained on

the first vessel and its radar trained on the second vessel.
A state
first

vessel.

police helicopter
The

helicopter

was

was directed
well

lit

over the
and

duly

identified as a police helicopter by twelve- to sixteen-inch

lettering spelling "FURA" for police as well as displaying a

coat

of arms.

sergeant in the

co-defendants aboard
Wilfredo Cartagena,
Initially, the

to cut

and stop the

moving towards

tried to escape, the

land base and seaborne units.

to orbit the vessel

A

Angel Morales

the engine

and continued

As the first vessel

boat.

vessel,

co-defendants reduced their speed,

accelerated again

alerted

the first

helicopter signalled the

the shore.

police helicopter

The helicopter began

flashing lights

first vessel soon thereafter.

boat.

but then

while awaiting the arrival of

police boat with

and

a police

approached the

The co-defendants

initially

-66

attempted

evasive maneuvers,

but were

eventually detained

and arrested.
After
location

the

as overhead

southwest toward

police

helicopter

the

first vessel,

the second

The police helicopter flew

had

reported

the Nomad

vessel and began

its

turned

orbiting it.

to the area of the Nomad and the

second vessel once the first vessel was in custody.

time, the
The

two vessels were approximately

helicopter maneuvered

vessel,

which

still had

itself

just

five miles apart.

above

its navigation

At that

the

second

lights off.

The

police crew illuminated the vessel with a hand-held lamp and

observed appellants Juan Lorenzi

and Luis Alvarado and four

bales of possible contraband on board.

ignored police commands to
boat.

After a

the vessel.

turn off the motor and

short pursuit, however,

A

helicopter onto

Appellants initially

police sergeant
appellants'

appellants stopped

jumped

vessel and

stop the

from

the

placed

police

appellants

under arrest.
In
contraband,
stern
the

addition

to

several chem

the

lights were

of the second vessel.

bales were

Pieces of

still attached

found on board the

four

to the

bales

of

found hidden

in the

matching ribbon of
chem lights.

second vessel were two spare

-77

possible

Also

gas tanks,

two

lamps, and unused fishing equipment.

found

on

board.

claimed that he

Appellant

Luis

There was no bait

Alvarado

and Juan Lorenzi had

nevertheless

laid a fish

net that

evening in an area called "El Investigador," which is

seven

or eights miles off the coast, when they heard the sounds of
objects

falling into

the

water and

saw floating

lights.

They headed toward the lights and then heaved the bales onto
the

second vessel.

the bales
Lorenzi

Mr. Alvarado admitted

that he thought

contained contraband, but claimed that he and Mr.

were

en route

to

the police

station

where they

intended to relinquish the bales.

aircraft

On March 20,

the day after the

arrests, a police

returned

the

and

additional

to

seven bales

They were only

airdrop site

of cocaine

able to retrieve four

observed

floating in

an

the water.

of these bales.

The

substance in these bales as well as the bales found on board

the second vessel later tested
weight

of

267.6

kilograms

positive for cocaine with

and a

purity

of

ninety-five

percent.
II. Discussion
A. Sufficiency of Evidence of Intent
_________________________________
Appellants
evidence

to

prove

contend
that they
-88

that

there was

intentionally

insufficient
possessed the

cocaine

with the

This argument

intent of

fails.

importing or

We review the

distributing it.

convictions only

for

clear and gross injustice because appellants failed to renew

their motions for judgments of acquittal under Fed. R. Crim.
P.

29(a) after

presenting

United States v. Hadfield,

___________________________
1990);

evidence on
918 F.2d

United States v. Clotilda,

__________________________

their own
987,

behalf.

996 (1st

892 F.2d

Cir.

1098, 1102-03

(1st Cir. 1989).

Appellants fail to meet
evidence

for

the jury

to

conclude

guilty beyond a reasonable doubt.

two

vessels over

suspect

aircraft

which a
met

transporting aircraft

the

this standard.

that appellants

profile

hovered.

criteria

of

had no lights,

of hard

maneuvers approximately three

The
drug

no flight

plan, and was flying at a dangerously low altitude.

a series

were

Appellants were in one of

suspect aircraft

in that it

There was

It made

hundred to

five

hundred

feet

above

vessels appeared to be
their
lights

lights.

The

the appellants'

vessel.

Both

signalling the suspect aircraft with

vessels then

turned their

navigation

off and headed towards the shore once appellants had

retrieved

four bales of cocaine

from the water.

could reasonably

infer that the vessels

evade

by

detection

law

enforcement

The jury

were attempting to
officials.

This

-99

inference

is

further

strengthened

by

the

fact

that

appellants attempted to avoid the police helicopter that was

well

lit and

clearly

identified by

lettering, twelve

to

sixteen inches high, and a coat of arms on the side.

The jury quite reasonably declined to believe Luis
Alvarado's

tale

that he

and

cocaine only because they were

the police.

Juan

Lorenzi possessed

en route to turn it over

Appellants importuned the jury

the
to

to believe that

they heard bales of cocaine drop into the water twenty miles

southwest of Puerto
Investigador,"
coast.

Rico, while

which is only

they were

fishing in

seven or eight

miles off the

Moreover, fishing gear was not in working order and

there was no

bait found aboard

their vessel.

Nor

fishing net they cast

upon the water recovered in

of "El Investigador."

The jury could reasonably

the

appellants'

incredible.
verdicts

"El

of

version of

Since the
the

the

events that

was the
the area

have found
night

to be

evidence overwhelmingly supports the

jury,

appellants'

convictions

are

not

is

more

grossly unjust.
B.

Importation
___________
Appellants'

meaningful.
incorrectly

second

claim

Appellants contend
instructed

the

jury

that
as

of

error

the district
to

the

judge

element

of

-1010

importation.

Appellants,

however, neither objected

to the

trial

court's

different

instructions

instructions

appellants forfeited
reverse

their

instructions

S.Ct.

own.

We can

only

if

the

plain error.

302, 311 (1st

As

"those errors

we

As

or

the right to ordinary review.

986 (1992).

affect the

their

additional

result,

amount to

errors are

proffered

convictions

Natanel, 938 F.2d

_______
112

of

nor

lower

court's

See United States v.

___ _________________

Cir. 1991), cert.

_____
have stated

so shocking that

fundamental fairness and basic

denied,
______

before, plain
they seriously

integrity of the

proceedings conducted below." United States v. Griffin, 818

_________________________
F.2d 97, 100
(1987).

(1st Cir.

1987), cert. denied,

_____ ______

"It follows, unsurprisingly, that

484 U.S.

844

the plain error

exception is to be used 'sparingly,' only to prevent justice

from miscarrying." United States v. Hunnewell, 891 F.2d 955,
__________________________
956 (1st Cir. 1989).
The relevant
that "[i]t
territory
thereof
the

shall be
of

the

statute, 21 U.S.C.
unlawful to

United

(but within the

United

States

import

States from

952(a), states
into the

any

United States), or

from

controlled substance . . ."

any place

outside

place

customs
outside

to import into
thereof,

any

Thus, a critical element of the

offense of importation is that a defendant imports or causes

-1111

to

be

imported a

territory of the
867

controlled
United States.

F.2d 759, 766 (2d

754 F.2d

substance

1091, 1096

into the

customs

United States v. Nusraty,

_________________________

Cir. 1989); United States v. Samad,

_______________________
(4th

Cir. 1984).

The district

judge

instructed the jury that:

Customs waters of the United States, as they
relate to a United States vessel, are the waters
around the vessel irrespective of distance from
the United States, within which the United States
may enforce its law if the vessel is hovering off
the coast of the United States and is suspected of
smuggling . . .
A
hovering vessel in
the context
of this
instruction, means a vessel found or kept off the
coast of the United States, if from history,
conduct or character or location of the vessel, it
is reasonable to believe that such vessel is being
used or may be used to introduce, promote or
facilitate
the
introduction
or
attempted
introducing of contraband into the country.
The
United

statute

States" as

general

note 2

United

States.

defines

having

of the

"customs

the meaning

territory
assigned

Harmonized Tariff

21 U.S.C.

951(a)(2).

of the

to it

by

Schedule

of the

General

note 2,

however,
United

merely states
States includes

that the
only

Columbia, and Puerto Rico.

provide

meaningful

constitutes the
is

well

settled

customs territory

the States,

the District

of

Although general note 2 fails to

standard

for

determining

customs territory of the

that

of the

the outer

limits

what

United States, it
of

the

customs

-1212

territory of the United States extend only twelve miles from

the coast.

See United States v. Lueck, 678 F.2d

___________________________

895, 905

(11th Cir. 1982); United States v. Seni, 662 F.2d

______________________

277, 286

(4th Cir.

1981), cert. denied, 455 U.S.

_____ ______

States v. Williams, 617

____________________
1980)(en banc).
specifically

Thus,

instructed

F.2d
the
that

1063,

950 (1982); United

______
1073 n.6

jury should
in

order

have
to

(5th

Cir.

been

more

find

that

appellants

imported

meaning of 21 U.S.C.

controlled

substance

within

the

952(a), the contraband must have come

into the twelve-mile outer limit of the customs territory of

the

United States. See United States v. Nueva, No. 91-2150,

___ ______________________

slip op.

at 8

- 9

(1st Cir. November

4, 1992);

see also
___ ____

United States v. Goggin, 853 F.2d 843, 845 (11th Cir. 1988).
_______________________
There

is no record, however, that anyone called this to the

attention of the District Judge.

Although
incomplete,
entirety

and

evaluating
Weston,
______
must

we

the

must
in

the

claim of

district court's
consider the
context

of

plain error.

instructions
the

entire

in

their

trial

in

See United States v.

___ _________________

960 F.2d 212, 216 (1st Cir. 1992).

view the evidence in

instructions were

the light most

Furthermore, we
favorable to the

verdict. See United States v. Batista-Polanco, 927 F.2d 14,

___ _________________________________
17

(1st

Cir.

1991).

The
-1313

government

contends

that

appellants'

vessel

entered the

because of evidence that

appellants' vessel
miles

from

helicopter,

customs limit

the police helicopter hovered over

at Jobos

shore.

twelve-mile

The

Bay, which
evidence

while awaiting

is seven

however

the arrival

is

of a

or eight
that

the

police boat,

hovered over the first vessel operated by co-defendants, not

the

second

vessel,

appellants.

which

Appellants'

was operated
boat

had

and

separated

defendants' boat

approximately twelve (12)

and headed

westerly direction, roughly

Puerto

in a

Rico's

indicates
further

that
away

Accordingly,
which

southern

was

separated, is

coast.

appellants'
from

the

coastline

the relative position

apprehended
at least

just

co-

parallel with
in

travelled
after

from

by

minutes earlier

Nothing

boat

occupied

the

record

significantly

the

separation.

of co-defendant's boat,

minutes

after

some evidence that

the

vessels

appellants boat

also crossed the twelve-mile customs territory limit.

The government also cites to the testimony of Luis
Alvarado that appellants had allegedly laid a fishing net in
the
from

area of "El Investigador", an area seven or eight miles

shore.

The jury

aspects of appellant's
have

obviously did
"fish tale" or

convicted appellants.

No one,

not believe

certain

else they would

not

however, denies

Mr.

-1414

Alvarado's statements that,

cocaine on
through
limit.

board their

"El

Investigador",

cocaine with

Mr. Lorenzi

within

the

jury "[t]he only

passed

twelve-mile

the intention

Transcript at

afternoon Juan and

issue in this

not Luis and Juan possessed

police authorities in

boat

well

told the court and

case is whether or

Trial

vessel, he and

shore with

In fact, in his opening statement, appellants' trial

counsel

of

while headed toward

of delivering

the police headquarters

57.

"At around

Luis left

the coast

those bales
them

to the

in Salinas."

6:00 o'clock

in the

on Juan's

fishing

and headed toward El Pescador, a fishing area seven or

eight miles

away from the

Although counsel's

coast." Trial Transcript

statements

are not

evidence,

at 59.
they

do

indicate that counsel had no intention of disputing the fact

that
light

appellants were
of

such

within the

twelve mile

representations, it

would

limit.

In

be particularly

unreasonable to expect the district court to have thought of

the precisely correct instruction on its own.
Finally,
presented

to

the

mark made
jury

as

additional evidence that

customs limit.
the

Nomad in

on an

Joint

aeronautical chart,
Exhibit

1,

provides

appellants entered the twelve-mile

This mark was made by the radar operator of

the course

of testifying

as to

the various

-1515

positions

of

the vessels

after the

arrests.

The government did not specifically ask the radar

operator the distance between the

shoreline.

Using the

seven miles

operator's mark,
of

appellants

from the coastline.

"El

The

radar

the relative position

and Luis Alvarado's

passed through

however, the

were taken into custody at

taken together with

co-defendants' boat

until the

mark and the Puerto Rican

chart's mileage scale,

mark establishes that appellants

a point about

airdrop up

statement that

Investigador", is

credible

evidence

that

the

contrast, there
appellants

element of

importation

is no evidence that

were taken

was

met.

In

remotely suggests that

into custody

at a

point beyond

12

miles from the coast.

As

we

have

hurdle is high."

benefit

"[t]he

plain error

1989).

Appellants have failed

891 F.2d
to clear

To hold differently would permit appellants to

from their own failure either to object to the jury

instructions

at

instruction to
of this

before,

See United States v. Hunnewell,

___ __________________________

955, 956 (1st Cir.

this height.

stated

type.

importance

trial

or

the court.
As

of making

to
We

propose

appropriate

cannot promote "sandbagging"

a matter

of

policy,

contemporaneous

instructions and the duty to

an

we

stress

objections

to

the
jury

assist the court to accomplish

-1616

an

error free trial.

In sum, appellants have not presented

"the rare case in which [a lack of] instruction will justify

reversal of a criminal conviction when no objection has been
made in the trial

court." See Henderson v. Kibbe,

___ __________________

431 U.S.

145, 154 (1977).

III. Conclusion.
The
verdicts

as

evidence
to

the

overwhelmingly
charge

possession with intent to

the

appellants'

(c)(1)(d),

amount

to

(f), & 18 U.S.C.

plain

aiding and

the

abetting

under 46
2.

1903(a),

importation does not

Therefore,

customs territory of the United

21 U.S.C.

the

Furthermore, the district

on the element of
error.

U.S.C.

we

also

appellants' convictions for the importation of cocaine

the

jury

distribute cocaine, and we affirm

convictions

court's instruction

of

supports

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

Affirmed.
Affirmed
________

-1717

2.

affirm
into

States in violation of