1991 WL 11245852 (11th Cir.)

For opinion see 13 F.3d 1474, 1993 WL 60980

United States Court of Appeals,

Eleventh Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

Jose ANTONIO Ortega-Rodriguez, Defendant-Appellant.

No. 91-5083.

April 26, 1991.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

THIS CASE IS ENTITLED TO PREFERENCE (CRIMINAL APPEAL)

Brief of the Appellant Jose Antonio Ortega-Rodriguez

James R. Gailey, Federal Public Defender, By: Stewart G. Abrams, Asst. Federal Public Defender, Attorney for Appellant Ortega-Rodriguez, 301 North Miami Avenue, Miami, Florida 33128, (FTS) 350-6900

*ii STATEMENT REGARDING ORAL ARGUMET

The Appeallant suggests that oral argument would be beneficial toward resolution ofo the instant issue on appeal. thsi court previously has entertained argument as to defendant's codefendants in United States v. Mieres-Borges, case No. 89-5643, and determined as a matter of law that the evidence was insufficient so as to warrant the conviction of co-defendant Becerra-Flores. On the Facts of the instant case, Defendant is situated indentically to the co-defendant is situated identically to the co-defendant whose conviction was reversed and oral argument would aid this court in the determination as to whether Defendant warrants identiacal treatment.

*iii TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ... ii

STATEMENT REGARDING ORAL ARGUMENT ... ii

TABLE OF CONTENTS ... iii

CITATIONS AND OTHER PROVISIONS ... iv

STATEMENT OF JURISDICTION ... v

STATEMENT OF THE ISSUE ... v

STATEMENT OF THE CASE ... 1

Course of Proceedings and Disposition in the District court ... 1

Statement of the Facts ... 4

Standard of Review ... 9

SUMMARY OF THE ARGUMENT ... 10

ARGUMENT AND CITATIONS OF AUTHOTITY ... 12

WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN DEFENDANT'S CONVICTIONS FOR POSSESSION WITH INTENT TO DISGTRIBUTE COCAINE WHIEL ON BOARD A UNITED STATES REGISTERED VESSEL AND FOR CONSPIRACY TO COMMIT THE AFORESAID ACT ... 12

CONCLUSION ... 16

CERTIFICATE OF SERVICE ... 16

UNITED STATES V. MIERES-BORGES, 919 F.2D 652 (11th CIR. 1990) ... APPENDIX I

*iv CITATIONS AND OTHER PROVISIONS

Bruton v. United States, 391 U.S. 123 (1968) ... 7

United States v. Bell, 678 F.2d 547 (5th Cir. 1982) (Unit B En Bane), aff'd. on other grounds, 462 U.s. 356 (1983) ... 9

United States v. Kelly, 888 F.2d 732, 739-40 (11lth Cir. 1989) ... 9

United States v. Mieres-borges, 919 F.2d 652 (11th Cir 1990) ... 3, 9, 10, 11, 12, 13, 14

United States v. Sanchez, 722 F.2d 1501, 1505 (11th Cir.), cert. denied, 104 S.Ct. 2396 (1984) ... 9

STATUTES AND OTHER PROVISIONS

Rule 29, Federal Rules of Criminal Procedure ... 2

Title 28, United States Code, Section 1291 ... v

Title 46, United States Code Appendix, Section 1903(a) ... 1

Title 46, United States Code Appendix, Section 1903(j) ... 1

*v STATEMENT OF JURISDICTION

This Court has jurisdiction over this criminal appeal by virtue of Title 28, United States Code, Section 1291, which provides that Courts of Appeal have jurisdiction over appeals from all final decisions of United States District Courts.

STATEMENT OF THE ISSUE

WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN DEFENDANT'S CONVICTIONS FOR POSSESSION WITH INTENT TO DISTRIBUTE COCAINE WHILE ON BOARD A UNITED STATES REGISTERED VESSEL AND FOR CONSPIRACY TO COMMIT THE AFORESAID ACT

*1 STATEMENT OF THE CASE

Jose Antonio Ortega-Rodriguez, the Defendant-Appellant, will be referred to as "Defendant" in this brief. His co- defendants Osvaldo Becerra-Flores and Roberto Mieres-Borges will be referred to either as "Becerra" and "Mieres" respectively or collectively as the "co-defendants". The United States of America, the Plaintiff-Appellee, will be referred to as the "government". Other references will be made by the following symbol:

Course of Proceedings and Disposition in the Digtrict Court

On November 16, 1988, Defendant, along with two co- defendants, was charged by indictment with possession with intent to distribute in excess of five kilograms of cocaine on board a United States registered vessel and with conspiracy to commit the aforesaid act, in violation of Title 46, United States Code Appendix, Sections 1903(a) and (j) respectively. (Rl-1).

On March 20, 1989, Defendant and his co-defendants proceeded to trial. During the course of the trial, it became apparent that co-defendant Mieres made an inculpatory statement while Defendant and co-defendant Becerra remained silent. (SR2- 160). Pursuant thereto, Defendant moved for a bifurcated trial and *2 co-defendant Becerra joined in the referenced motion. (SR2-187). The District Court granted the referenced motion (SR2-192) and the government was precluded from introducing evidence pertaining to the statement until the jury had deliberated and returned its verdict as to Defendant and co-defendant Becerra. At the conclusion of the government's case, Defendant made a motion for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure (SR3-238) and renewed same at the conclusion of all evidence. Defendant's Motion for Judgment of Acquittal was denied. (SR3-245). On March 24, 1989, Defendant was found guilty as to both charges. (Rl-61).

On June 22, 1989, Defendant was sentenced in absentia by the District Court to a term of imprisonment of two hundred and thirty-five months as to Counts I and II to be served concurrently. This period of imprisonment was to be followed by a five-year term of supervised release. Finally, a special assessment of one hundred dollars ($100) was imposed. Further, on August 8, 1989, the District Court entered an Order whereby it revoked and estreated Defendant's bond. An arrest warrant was issued at that time. (Rl-92).

On May 25, 1990, Defendant was remanded to the custody of the United States Marshal to begin service of his sentence imposed on June 22, 1989. (Rl-102).

*3 On June 7, 1990, Defendant filed his Motion to Vacate Sentence and for Resentencing. (Rl-104). This motion was granted by the District Court on October 12, 1990. (Rl-112).

On January 9, 1991, Defendant filed his Motion for Judgment of Acquittal based on this Court's decision in United States v. Mieres-Borges, 919 F.2d 652 (11th Cir. 1990), wherein the conviction of co-defendant Becerra was reversed. This motion was denied by the District Court. (R3-3). Defendant then was sentenced to the custody of the Bureau of Prisons for a term of one hundred and eighty-eight months as to Counts I and II. Said period of incarceration was to be followed by a five-year term of supervised release. (Rl-120), (R3-5). This appeal ensued. (Rl-121).

Currently, Defendant is incarcerated by virtue of his being sentenced by the District Court in the instant matter. In addition, Defendant was found guilty of failure to appear for sentencing in the instant matter and presently awaits sentencing as to that related case.

*4 Statement of the Facts

On November 7, 1988, United States Customs received information in regard to a possible air drop of cocaine in the area of the Cay Sal Bank. (SR2-36). Customs pilot Sherry took off from the Homestead Air Force Base and went to the Cay Sal Bank. (SR2- 38). Initially, he did not see anything going on; however, he later saw a small plane circle a vessel and drop what he counted to be approximately twenty bales. (SR2-38, 39). The plane circled at approximately fifty to one hundred feet. The boat was observed to be forty to fifty feet long, had large antennas or tuna towers. Visibility "was not the greatest, but it was good enough to see what was going on". The observations were made by the Customs pilot who circled at twenty-five hundred feet. (SR2-39).

Agent Sherry attempted to follow the plane but broke off the pursuit as he had been informed that MlGs had been launched from Cuba. (SR2-40, 41). Approximately forty minutes later, Special Agent Sherry returned to the.drop site to look for the boat. He could not locate same and returned to Homestead where he briefed Customs pilot Radtke.

According to Special Agent Sherry, his plane circled the drop site at twenty-five hundred feet. (SR2-46). He could not observe nor did he know the name or registration number of the vessel for which he searched. (SR2-45). He also did not know the *5 number of people on board the vessel. (SR2-46). Although he described the vessel as "distinctive", Agent Sherry described the boat as being like many, many others which were white, had outriggers and a tuna tower. (SR2- 50, 51).

Agent Radtke took off from the Homestead Air Force Base at 6:00 a.m. on November 8, 1988. (SR2-62). His mission was to look for the boat which Agent Sherry could not re-locate. The information which Agent Radtke received from Agent Sherry was twelve hours old. (SR2-69). The description of the vessel which he received was a thirty to forty-foot white sport fisherman, with a tuna top, outriggers and antenna. (SR2-63).

Upon arrival at Cay Sal, Agent Radtke observed one boat which matched the description given by Agent Sherry. The boat, which he identified as the "Wilfred", was located approximately ten feet off the beach. (SR2-64). Agent Radtke circled the boat for approximately ten minutes and then proceeded south to the site of the previous night's air drop to look for bales and/or other vessels. He observed neither and returned to Cay Sal. (SR2-67).

Upon his return to Cay Sal, Agent Radtke observed that the "Wilfred" was underway at approximately thirty knots. (SR2- 67). In addition, brown burlap covered the transom and the name of the vessel. Agent Radtke also observed that there were bales piled on the beach where the "Wilfred" had been and there were footprints *6 which lead from the water to the bales and back to the beach. (SR2-67).

Agent Radtke acknowledged the first time he flew over the Cay Sal Island he was looking for a boat, not bales. (SR2-68). Further, the twelve-hour old description which he received was common to lots of boats. Agent Sherry reported that the vessel was forty to fifty feet in length. The boat observed by Agent Radtke was thirty to forty feet. (SR2-69, 70). In addition, Agent Radtke's second observation of the "Wilfred" showed the vessel underway at approximately thirty knots. (SR2-67). Consequently, during the twelve hours between Agent Sherry's observation of a vessel and the citing made by Agent Radtke, the "Wilfred" could have travelled three hundred and sixty miles. (SR2- 72). It was only seventy to ninety miles between Cay Sal and Key West. (SR2- 72). Finally, Agent Radtke's aircraft was not equipped with radar in order to look for other similar boats (SR2-73) and no contraband was ever observed on the "Wilfred". (SR2-80).

On November 7, 1988, the Coast Guard vessel, Cape York, received orders to attempt to locate a vessel near Cuba which had received an air drop. (SR2-81). The vessel left Key West between 6:00 and 7:00 p.m. and was on scene between 2:00 and 3:00 a.m. on Novembers, 1988. (SR2-82).

On November 8, 1988, at approximately 8:00 a.m., the Cape *7 York received a call from Customs that the vessel had been spotted. The "Wilfred" ultimately was stopped and the vessel's captain answered pre-boarding questions propounded by the Coast Guard. (SR2-84). A two to three-hour inspection followed during which no contraband was discovered. The boat contained fishing gear, ice and bait inside two boxes (SR2-89, 90); however, the bait boxes were not opened. (SR2-90).

The Coast Guard boarding party was advised to seize and detain the "Wilfred" and its crew. (SR2-88). A ten-hour voyage to Key West followed in which Defendant and his co-defendant remained in the custody of the United States Coast Guard. Once in Key West, Customs Investigator Bencosme read all defendants their rights and attempted to interview them. According to the agent, Defendant and co-defendant Becerra would not speak to him without an attorney but co-defendant Mieres made a statement. (SR2-160). [FN1]

FN1. As a result of the Bruton (See Bruton v. United States, 391 U.S. 123 (1968)) problems and determination by the District Court that a redaction of Mieres' statement could not cure the prejudice to Defendant and co-defendant Becerra, the District Court bifurcated the instant trial. (SR2-192). Specifically, the government presented its case without Mieres' statement, the parties (except Mieres) offered closing argument, the jury was charged and returned its verdict. The government then reopened its case, called the witness who reported Mieres' statement and then Mieres closed. Consequently, Mieres' statement was not before the jury during

deliberation in Defendant's case.

Finally, Special Agent Ricciardo of the United States Customs Service testified as to his involvement in the instant case *8 on November 8, 1988. Special Agent Ricciardo offered a certified copy of the Certificate of Ownership of the "Wilfred" which, by defense stipulation, indicated that co-defendant Becerra was the owner of the vessel. (SR2-202).

Inspector James Carey of the Royal Bahamas Police Force is a forensic scientist in the Bahamas. (SR2-142). He examined eleven samples from the bales taken from the beach at Cay Sal and determined that said samples consisted of one hundred and fifty grams of cocaine.

*9 Standard of Review

The standard of review as to sufficiency of the evidence is whether the facts, when considered most favorably to the government, proved Defendant's guilt beyond a reasonable doubt. It is not necessary that the evidence exclude every hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided that a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt. United States v. Sanchez, 722 F.2d 1501, 1505 (nth cir.), cert, denied, 104 S.Ct. 2396 (1984); United States V. Bell, 678 F.2d 547 (5th Cir. 1982) (unit b En Bane), aff'd. on other grounds, 462 U.S. 356 (1983).

Finally, whether there was sufficient evidence to support a conviction is a question of law subject to de novo review by this Court. Thus, we owe no special deference to findings of the District Court. United States v. Mieres, 919 F.2d 652 (nth cir. 1990), citing United States v. Kelly, 888 F.2d 732, 739-40 (11th cir. 1989).

*10 SUMMARY OF THE ARGUMENT

The government's case against Defendant is insufficient as a matter of law to sustain his convictions for possession of cocaine and/or for conspiracy to possess cocaine. This Court previously has considered this identical case as to co-defendants Mieres-Borges and Becerra-Flores. This Court has determined as a matter of law that the evidence against Becerra-Flores was insufficient for conviction. Mieres' convictions were sustained in a split decision. See United States v. Mieres-Borges, 919 F.2d 652 (11th Cir. 1990) (a copy of which is attached hereto as Appendix I). In the referenced opinion, this Court found, inter alia, the absence of proof that there was any agreement or conspiracy to commit the charged criminal acts. Moreover, the evidence was insufficient to show that at any time Defendant or his co-defendants ever possessed the subject cocaine or exercised dominion or control over same.

From a factual standpoint, Defendant is identically situated to co-defendant Becerra. The sole factual difference between Defendant and Becerra at trial was that a Certificate of Registration was offered which showed that Becerra was the owner of the "Wilfred". Defendant had no such ownership interest in the vessel.

Whereas Defendant is situated identically to a co-defendant whose conviction was reversed based on the precise facts, *11 Defendant similarly moves for reversal pursuant to the Mieres decision.

*12 ARGUMENT AND CITATIONS OF AUTHORITY

THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN DEFENDANT'S CONVICTIONS FOR POSSESSION

WITH INTENT TO DISTRIBUTE COCAINE WHILE ON BOARD A UNITED STATES REGISTERED

VESSEL AND FOR CONSPIRACY TO COMMIT THE AFORESAID ACT

For purposes of the instant brief, Defendant relies exclusively on this Court's recent decision in United States V. Mieres- Borges, 919 F.2d 652 (11th Cir. 1990). [FN2] The referenced case is also this case, and Defendant would urge that the Mieres decision be adopted as the law of the instant case as well.

FN2. Please see attached Appendix I.

In Mieres, this Court determined as a matter of law that the evidence presented by the government was insufficient to establish the guilt of co-defendant Becerra beyond a reasonable doubt and reversed his conviction as to both counts. As to the conspiracy count, this Court held:

"From the evidence presented at trial against Becerra-Flores, however, we are not convinced that the government met its burden by establishing the existence of a conspiratorial agreement beyond a reasonable doubt. No evidence showed that Becerra-Flores ever entered into an agreement with any other defendant to distribute cocaine. Furthermore, Becerra-Flores was not shown to have committed any acts which would further such a *13 conspiracy." Id. at 658.

As to the substantive count, this court continued:

"Similarly, we believe that the government failed to establish, by and through the evidence presented against Becerra-Flores, that he did in fact possess cocaine with the intent to distribute. Becerra-Flores was never shown to be in possession of any of the bales of cocaine discovered on the beach at Cay Sal. Constructive possession was also never established by the government at trial. It is simply not clear beyond a reasonable doubt that Becerra-Flores had a knowing power or right to exercise dominion and control over the bales of cocaine. Becerra-Flores was never seen on the beach with the bales of cocaine; in fact, none of the defendants on board the "Wilfred" were seen with the cocaine. No evidence was presented which showed that Becerra-Flores or any other defendant left the "Wilfred" and went ashore on Cay Sal. Further, none of the defendants was shown to evice any dominion or control over the beach on which the cocaine was found. There was no other evidence of any attempt to guard the beach or to prevent others from going ashore." Id. at 658. [FN3]

FN3. Although Defendant was not a party to the Mieres decision, Defendant highlights those portions of the opinion wherein he was referenced inferentially.

In addition, this Court determined:

"Evidence presented at trial did not reveal which of the defendants was the captain of the "Wilfred"." Id. at 655, n.9. [FN4]

FN4. It was established at trial that co-defendant Becerra was the owner of the vessel.

*14 Finally, the Mieres Court observed:

"We note that even the conclusion that the "Wilfred" was present in the area where the cocaine was found required an inference drawn from circumstantial evidence. To be sure, the "Wilfred" was first cited by Radtke in the same area where he testified that he saw round trip footprints leading from the water to where the cocaine was stacked on the beach. No evidence was presented; however, which established that anyone on board the "Wilfred" ever left the boat to set foot on Cay Sal Island. Radtke never saw anyone on the beach. In addition, there was no physical evidence on the "Wilfred", such as sand or water on deck, to indicate that anyone had left the boat, waded to shore and then returned to the boat. Finally, no evidence was presented that the persons on board the "Wilfred" were dressed in wet clothing or that wet clothes were found on board the vessel. Cases in the circuit where presence has served as a basis for establishing guilt have shown a more certain connection between defendants and contraband than exists here, (citations omitted). Mieres at 659, n.17.

The evidence presented by the government against Defendant at trial was identical to that of Becerra. When the trial was bifurcated by the District Court, the government proceeded against Defendant and Becerra without the benefit of Mieres1 statement. Consequently, Mieres' statement was not part of the record in this case as it pertained to jury deliberations as to Defendant or Becerra.

After the jury returned its verdict as to Defendant and Becerra, the government re-opened its case and presented testimony *15 in regard to Mieres' statement. The government and Mieres offered closing argument, the jury deliberated and returned its verdict accordingly.

This Court has determined that Mieres' statement when coupled with the remainder of the evidence, was sufficient to sustain his conviction. The evidence against Becerra has been found to be insufficient as a matter of law.

*16 CONCLUSION

For the foregoing reasons, Defendant respectfully requests that his conviction be reversed.

Appendix not available.