1993 WL 13136434 (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.

May 14, 1993.

On Appeal from the United States District Court for the Southern District of Florida

Revised Brief of the Appellant Jose Antonio Ortega-Rodriguez

James R. Gailey, Federal Public Defender, By: Stewart G. Abrams, Assistant Federal Public Defender, 301 N. Miami Avenue-Suite 321, Miami, Florida 33128, Telephone: (305) 530-7000, Attorney for the Appellant

*i STATEMENT REGARDING ORAL ARGUMENT

Defendant suggests that oral argument would be beneficial to resolution of the issues on appeal. This Court previously has entertained argument as to Mr. Ortega-Rodriguez' co-defendants in United States v. Mieres-Borges, 919 F.2d 652 (11th Cir. 1990), in which the Court determined as a matter of law that the evidence was insufficient to sustain the convictions of co-defendant Becerra-Flores. On the facts of this case, Defendant is situated identically to Mr. Becerra-Flores, except that there is more evidence to implicate Mr. Becerra-Flores than exists against this defendant. Oral argument will aid this Court to isolate the evidence against this defendant.

Further, this defendant will present argument that the prior decision of a panel of this Court in United States v. Mieres-Borges is binding on this panel and controls the disposition of this case.

*ii TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ... C1-1

STATEMENT REGARDING ORAL ARGUMENT ... i

TABLE OF CONTENTS ... ii

TABLE OF CITATIONS ... iii

STATEMENT OF JURISDICTION ... v

Significance of Supreme Court Ruling ... v

STATEMENT OF THE ISSUES ... 1

STATEMENT OF THE CASE ... 2

Course of Proceedings and Disposition in the Supreme and District Courts ... 2

Statement of the Facts ... 5

STANDARD OF REVIEW ... 9

SUMMARY OF THE ARGUMENT ... 10

ARGUMENT AND CITATION OF AUTHORITY

ISSUE I.

THE PANEL DECISION IN UNITED STATES v. MIERES-BORGES IS BINDING ON THIS PANEL AND CONTROLS THE DISPOSITION OF THIS CASE ... 11

ISSUE II.

THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THIS DEFENDANT'S CONVICTIONS FOR CONSPIRACY AND POSSESSION WITH INTENT TO DISTRIBUTE COCAINE WHILE ON BOARD A UNITED STATES REGISTERED VESSEL ... 13

CONCLUSION ... 17

CERTIFICATE OF SERVICE ... 17

APPENDIX I

APPENDIX II

*iii TABLE OF CITATIONS

CASES:

Bruton v. United States, 391 U.S. 123 (1968) ... 8

Burks v. United States, 437 U.S. 1 (1978) ... viii

Estelle v. Dorrough, 420 U.S. 534 (1975) ... vi

Heathcoat v. Potts, 905 F.2d 367 (11th Cir. 1990) ... 12

Molinaro v. New Jersey, 396 U.S. 365 (1970) ... v, vi

Ortega-Rodriguez v. United States, -U.S.-, 113 S.Ct. 1199 (1993) ... v, vi, vii, 13

Pelletier v. Zweifel, -F.2d- (11th Cir., Case No. 92-8630, decided March 18, 1993) ... viii

United States v. Bell, 678 F.2d 547 (5th Cir. 1982) (Unit B en banc), aff'd. on other grounds, 462 U.S. 356 (1983) ... 10

United States v. Hogan, 986 F.2d 1364 (11th Cir. 1993) ... vii, 12, 13

United States v. Holmes, 680 F.2d 1372 (11th Cir. 1982) ... v, 4

United States v. Kelly, 888 F.2d 732 (11th Cir. 1989) ... 9

United States v. London, 723 F.2d 1538 (11th Cir. 1984) ... v, 4

United States v. Mieres-Borges, 919 F.2d 652 (11th Cir. 1990) ... passim

*iv United States v. Sanchez, 722 F.2d 1501 (11th Cir.), cert. den., 104 S.Ct. 2396 (1984) ... 10

STATUTES AND OTHER PROVISIONS:

28 U.S.C. §1291 ... v

46 U.S.C. §1903(a) & (j) ... 2

*v STATEMENT OF JURISDICTION

This court has jurisdiction over this appeal pursuant to 28 U.S.C. §1291, which provides that courts of appeals have jurisdiction over appeals from all final decisions of the district courts of the United States.

Significance of Supreme Court Ruling

In Ortega-Rodriguez v. United States, --U.S.--, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993), the Supreme Court determined that this Court has jurisdiction to entertain this appeal. [FN1]

FN1. The Court's decision is attached as Appendix I.

The government had argued that a defendant who flees after conviction, but before sentencing, waives his right to appeal from the conviction unless he can establish that his absence was due to matters completely beyond his control. See United States v. London, 723 F.2d 1538 (11th cir. 1984), and United States v. Holmes, 680 F.2d 1372 (11th Cir. 1982). These cases extended the rationale of Molinaro v. New Jersey, 396 U.S. 365 (1970), to provide an automatic dismissal rule for appellants who had been fugitives after sentencing, but before an appeal was commenced.

*vi In Ortega-Rodriguez, the Supreme Court rejected the Eleventh Circuit's automatic fugitive dismissal rule and determined that

. . . the rationales that supported dismissal in cases like Molinaro and Estelle [FN2] should not be extended as far as the Eleventh Circuit has taken them . . .. Accordingly, the justifications we have advanced for allowing appellate courts to dismiss pending fugitive appeals all assume some connection between a defendant's fugitive status and the appellate process, sufficient to make an appellate sanction a reasonable response. These justifications are necessarily attenuated when applied to a case in which both flight and capture occur while the case is pending before the district court, so that a defendant's fugitive status at no time coincides with his appeal.

FN2. Estelle v. Dorrough, 420 U.S. 534 (1975).

Ortega-Rodriguez, 113 S.Ct. at 1205 and 1206.

The Supreme Court observed that this defendant did not seek to invoke appellate jurisdiction while he was a fugitive. Consequently, any disruption that occurred as a result of his conduct was in the district court. As Justice Stevens noted:

The contemptuous disrespect manifested by his flight was directed at the district court, before which his case was pending during the entirety of his fugitive period. Therefore, under the reasoning of the cases cited above, it is the district court that has the authority to defend its own dignity by sanctioning an act of defiance that occurred solely *vii within its domain.

Ortega-Rodriguez, 113 S.Ct. at 1206.

The sanction for Mr. Ortega-Rodriguez' disrespect for the judicial system was accomplished through his indictment, conviction and 21-month sentence for failure to appear at sentencing. See Ortega-Rodriguez, 113 S.Ct. at 1207. Consequently, the district court has vindicated its authority and appropriately punished the defendant for his conduct. This punishment is not affected by the instant appeal.

The issue which Mr. Ortega-Rodriguez addresses in this appeal is the sufficiency of the evidence of his conviction of the drug charges. [FN3] This is the identical issue that was presented to this Court by co-defendants Mieres-Borges and Becerra-Flores in their appeal. See United States v. Mieres-Borges, 919 F.2d 652 (11th Cir. 1990). Indeed, the Supreme Court noted that any potential duplication of resources involved in hearing this defendant's appeal separately from those of his co-defendants could be minimized by reliance on the earlier panel decision in Mieres-Borges. Ortega-Rodriguez, 113 S.Ct. at 1209. See also, United States v. Hogan, 986 F.2d 1364 (11th Cir. 1993) ("[I]t is the firmly established rule of this Circuit that each succeeding panel is bound by the holding of the *viii first panel unless and until the holding is overruled en banc, or by the Supreme Court"), and Pelletier v. Zweifel, -F.2d- (11th Cir., Case No. 92-8630, decided March 18, 1993) (an issue decided by an appellate court must be followed in all subsequent proceedings "unless the presentation of new evidence or an intervening change in the controlling law dictates a different result, or the appellate decision is clearly erroneous and, if implemented, would work a manifest injustice.")

FN3. Defendant has also briefed why the panel decision in United States

v. Mieres-Borges is binding upon this panel and controls the disposition of this case.

The Supreme Court noted that the present judgment is capable of enforcement since the defendant is in custody and that the government suffers no prejudice if Defendant's appeal is heard at this time. Transcripts of the proceedings have been prepared, and the government already has briefed this case and argued the sufficiency of evidence before this Court. Further, there is no potential retrial since the sole issue before this Court is sufficiency of the evidence. If the defendant prevails, double jeopardy precludes his retrial. Burks v. United States, 437 U.S. 1 (1978).

In sum. Defendant's misconduct in the district court occurred entirely before the district court and concluded prior to his filing of a notice of appeal. The choice of appropriate sanction was left to the sound discretion of the district judge, who determined that the appropriate punishment for his flight is a term of 21 months imprisonment, consecutive to the sentence he received for the underlying *ix drug charges. Consequently, the defendant has been punished for his misconduct.

No additional disruption has occurred since the defendant invoked the jurisdiction of this Court. His appeal can be resolved, in part through reliance on the decision of the panel decision in Mieres-Borges. The defendant's pre-appeal misconduct before the district court does not deprive this Court nor the government from entertaining a meaningful appeal.

Note: Page 1 missing in original document

*2 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." The record will be noted by reference to the volume number, document number, and page number of the Record on Appeal as prescribed by the rules of this Court.

Course of Proceedings and Disposition in the Supreme and District Courts

On November 16, 1988, Defendant, together 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. (R1-1).

On March 20, 1989, Defendant and his co-defendants proceeded to trial. Since co-defendant Mieres made an inculpatory post-arrest statement while Defendant and co-defendant Becerra remained silent (SR2-160), Defendant and Becerra requested a bifurcated trial. (SR2-187). The district court granted this motion (SR2-192) and the government was *3 precluded from introducing evidence pertaining to Mieres's 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 moved for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure (SR3-238) and renewed the motion at the conclusion of all evidence. Defendant's Motion for Judgment of Acquittal was denied. (SR3-245). On March 24, 1989, all defendants were found guilty as to both charges. (R1-61).

On June 22, 1989, Defendant did not appear for sentencing. Defendant was sentenced in absentia by the district court to a term of imprisonment of two hundred thirty-five months as to counts I and II to be served concurrently. The period of imprisonment was 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 revoking and estreating Defendant's bond. An arrest warrant was issued at that time. (R1- 92).

On May 25, 1990, Defendant was arrested and remanded to the custody of the United States Marshal to begin service of his sentence imposed on June 22, 1989. (R1-102).

On June 7, 1990, Defendant filed his Motion To Vacate Sentence and for Resentencing. (R1-104). This motion was granted by the district court on October 12, 1990. (R1-112).

On January 9, 1991, Defendant filed his Motion for *4 Judgment of Acquittal based on this Court's decision in United States v. Mieres-Borges, 919 F.2d 652 (11th cir. 1990), in which the convictions of co-defendant Becerra were reversed based upon insufficiency of the evidence. (R1-117). This motion was denied by the district court. (R3-3). Defendant was then sentenced to imprisonment for a term of one hundred eighty-eight months as to counts I and II. The term of incarceration was followed by a five-year term of supervised release. (R1-120), (R3-5). This appeal ensued. (R1-121).

On April 24, 1991, Defendant filed his initial brief in this appeal, arguing one issue, insufficiency of the evidence.

On May 15, 1991, the government moved to dismiss Defendant's appeal under the "well established caselaw" of United States v. Holmes, 680 F.2d 1372 (11th Cir. 1982), cert. den., 460 U.S. 1015 (1983), and United States v. London, 723 F.2d 1538 (11th Cir. 1984), cert. den., 467 U.S. 1228 (1984), arguing that "Appellant Jose Antonio Ortega Rodriguez is precluded from appealing his conviction." On July 19, 1991, the government's motion was granted by this Court, and Defendant's appeal was dismissed.

On August 9, 1991, Defendant filed his motion to reinstate appeal and for reconsideration of the order granting appellee's motion to dismiss. This motion was denied.

Defendant petitioned for a writ of certiorari, and on June 15, 1992, the Supreme Court of the United States granted *5 certiorari in this cause. Oral argument occurred on December 7, 1992. On March 8, 1993, the Supreme Court vacated the order of dismissal, noting that there was no indication that Defendant's fugitive status adversely affected the appellate process in this case and that not every act of judicial defiance is punishable by dismissal of a later appeal. (See Statement of Jurisdiction, supra at v-ix.

On April 14, 1993, this Court directed Defendant to file a supplemental brief.

Currently, Defendant is incarcerated by virtue of the sentence of 188 months, which was imposed by the district court on January 11, 1991. (R1-120).

Statement of the Facts

On November 7, 1988, the United States Customs Service received information about 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; 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 and had large antennas and a tuna tower. Visibility "was not the greatest, but it was good enough to see what was going on." (SR2-39).

*6 Agent Sherry attempted to follow the plane but broke off the pursuit since he had been informed that HIGs 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 it 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 number of people on board the vessel. (SR2-46). Although he described the vessel as "distinctive," Agent Sherry portrayed 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 tower, 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*7 south to the site of the previous night's air drop to look for bales and 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 which lead from the water to the bales and back to the beach. (SR2- 67).

Agent Radtke acknowledged that 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 sighting made by Agent Radtke, the "Wilfred" could have traveled three hundred 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).

*8 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 November 8, 1988. (SR2-82).

On November 8, 1988, at approximately 8:00 a.m., the Cape 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). [FN4]

FN4. To resolve the concerns expressed in Bruton v. United States, 391

U.S. 123 (1968), the district court bifurcated the instant trial. (SR2- 192). The government presented its case without Mieres's statement, the parties (except Mieres) offered closing argument, and the jury was charged and returned its verdict. The government then reopened its case, presented Mieres's statement, Mieres closed, and the jury then considered and returned the Hieres verdict. Consequently, Mieres's statement was not before the jury during deliberations in Defendant's case.

*9 At trial, Special Agent Ricciardo of the United States Customs Service 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 fifty grams of cocaine.

STANDARD OF REVIEW

Whether there is sufficient evidence to support a conviction is a question of law subject to de novo review by this Court. Thus, this Court owes no special deference to findings of the district court. United States v. Mieres-Borges, 919 p.2d 652 (11th cir. 1990), citing United States v. Kelly, 888 F.2d 732, 739-40 (11th Cir. 1989).

In determining sufficiency of the evidence, the facts are considered in the light most favorable to the government. 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 *10 could find that the evidence established guilt beyond a reasonable doubt. United States v. Sanchez, 722 F.2d 1501, 1505 (11th cir.), cert. denied, 104 S.Ct. 2396 (1984); United States v. Bell, 678 F.2d 547 (5th cir. 1982) (Unit B en banc), aff'd. on other grounds, 462 U.S. 356 (1983). Absent such proof, the convictions must be reversed. United States v. Mieres-Borges, 919 F.2d 652.

SUMMARY OF THE ARGUMENT

The disposition of this case is controlled by United States v. Mieres-Borges, 919 F.2d 652 (11th Cir. 1990). A panel of this Court determined as a matter of law that the evidence against co-defendant Becerra was insufficient to sustain his convictions. The evidence against Becerra is factually indistinguishable from the evidence against Defendant, except that there is slightly greater evidence against co-defendant Becerra (a certificate of registration showed that Becerra was the owner of the "Wilfred"). The record contains no additional facts that would warrant a different disposition for Ortega-Rodriguez than this Court held for Becerra.

In the alternative, if this Court reconsiders the issues presented, the government's case against Defendant is insufficient as a matter of law to sustain his convictions for conspiracy and possession with intent to distribute cocaine. Support for this position is found in the lack of record *11 evidence, as well as the Mieres decision, which is replete with references about the lack of evidence against all defendants.

Since Defendant is situated identically (or more favorably) to a co-defendant whose convictions were reversed based on the precise facts of this appeal, Defendant's convictions should also be reversed.

ARGUMENT AND CITATION OF AUTHORITY

ISSUE I.

THE PANEL DECISION IN UNITED STATES V. MIERES-BORGES IS BINDING ON THIS PANEL AND CONTROLS THE DISPOSITION OF THIS CASE.

A panel of this Court has already considered the appeal of co-defendants Mieres-Borges and Becerra-Flores. See United States v. Mieres, 919 F.2d 652 (11th cir. 1990). [FN5] In reversing the convictions of co-defendant Becerra, this Court found insufficient evidence of the existence of a conspiracy or that Mr. Becerra ever possessed with intent to distribute a quantity of cocaine. [FN6]

FN5. The decision is attached as Appendix II.

FN6. A divided panel affirmed the convictions as to co-defendant Mieres, but there was additional evidence against him, an inculpatory post-arrest statement.

"[I]t is the firmly established rule of this Circuit that each succeeding panel is bound by the holding of the first panel to address an issue of law unless and until the holding *12 is overruled en banc, or by the Supreme Court." United States v. Hogan, 986 F.2d 1364 (11th Cir. 1993). The Mieres panel thoroughly reviewed the facts and circumstances of the instant case and determined that the evidence was insufficient to sustain the convictions of the co-defendant who declined to make a post-arrest statement. Moreover, in its review of the testimony the Mieres Court made several references to "all defendants" in finding the evidence to be insufficient, (e.g., ". . . none of the co-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" . . . "None of the defendants was shown to evince any dominion or control over the beach on which the cocaine was found"). Mieres at 658.

While law of the case preclusion is limited to those issues previously decided, the doctrine does operate to encompass issues decided by necessary implication as well as those decided explicitly. Heathcoat v. Potts, 905 F.2d 367 (11th Cir. 1990). Defendant and co-defendant Becerra are in a factually identical posture in this case. The sole distinction in the evidence presented against Defendant and Becerra is a certificate which shows that Mr. Becerra is the owner of the "Wilfred." No such physical evidence was introduced as to Defendant.

A panel of this Court has determined that the evidence *13 against Mr. Becerra was insufficient to sustain his convictions. By necessity, and implication, a like finding must be made as to Defendant since the evidence against him is identical (or more favorable). Accordingly, Defendant's convictions should be reversed based on the Mieres decision.

ISSUE II.

THE EVIDENCE IS INSUFFICIENT TO SUSTAIN DEFENDANT'S CONVICTIONS FOR CONSPIRACY AND POSSESSION WITH INTENT TO DISTRIBUTE COCAINE WHILE ON BOARD A UNITED STATES REGISTERED VESSEL.

Assuming this panel holds that it is not bound by the decision in United States v. Mieres-Borges, 919 F.2d 652 (nth cir. 1990), or that the panel decision is not controlling, Defendant relies upon the earlier decision as persuasive authority to support reversal of his convictions. Defendant urges that the Mieres decision be adopted as the law of the instant case as well. See United States v. Hogan, 986 F.2d 1364. [FN7]

FN7. In addition, the Supreme Court has suggested adoption of the prior panel decision as a means by which to minimize any potential duplication of judicial resources. Ortega, 113 S.Ct. at 1209; see Statement of Jurisdiction, p. viii.

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 convictions as to both counts. As to the conspiracy count, this Court held:

*14 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 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 evince 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.

*15 Id. at 658. [FN8] In addition, this Court determined:

FN8. Although Defendant was not a party to the Mieres decision, Defendant highlights those portions of the decision in which he was referenced indirectly.

Evidence presented at trial did not reveal which of the defendants was the captain of the "Wilfred."

Id. at 655, n.9. [FN9] Finally, the Mieres Court observed:

FN9. It was established at trial that co-defendant Becerra was the owner

of the vessel. (SR2-202).

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 sited 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 this circuit where presence has served as a basis for establishing guilt have shown a more certain connection between defendants and contraband than exists here.

Mieres at ?59, n.17 (citations omitted).

*16 The evidence presented by the government against Defendant was the same as, or less than, the evidence presented against Becerra. When the trial was bifurcated by the district court, the government proceeded against Defendant and Becerra without the benefit of Mieres's statement. Consequently, Mieres's statement is not part of the record in this case as it pertains Defendant and Becerra.

After the jury returned its verdict as to Defendant and Becerra, the government re-opened its case and presented evidence of Mieres's statement, which was admitted only against Mieres. The government and Mieres offered closing argument, the jury deliberated and returned its verdict against Mieres only.

This Court has determined that Mieres's statement, when coupled with the remainder of the evidence, is sufficient to sustain Mieres's conviction. The evidence against Becerra, which does not include the Mieres statement, was held to be insufficient as a matter of law. Under the circumstances, the same holding should apply to Defendant.

*17 CONCLUSION

For the foregoing reasons, Jose Antonio Ortega-Rodriguez respectfully requests that his convictions be reversed.

Appendix not available.