CA1: More convictions for drug-running on the high seas

U.S. v. Rodríguez-Durán, et al. Nos. 06-1400, 06-1401, 06-1402, 06-1403, 06-1404, 06-1405, 06-1406, 06-1407, 06-1408.  This case affirms the conviction of nine seamen that were caught with a bunch of drugs off the coast of South America near Curaçao.  Of note is the fact that the District Court denied continuances and went to trial within forty days from the indictment. 

There are a number of issues here.  I think the First is bending because a remand would call numerous convictions and a lot of work into question.  But, whatever.  Anyway, below the fold you can find discussion of:

1. Motions for a continuance;
2. non-compelled appearance in prison garb;
3. courtroom seating;
4. Booker reasonableness;
5. safety valve provisions;
6. duress;
7. how the USCG boards foreign ships;
8. Crawford and Bruton issues; and
9. Maritime Drug Law Enforcement Act ("MDLEA") an conspiracy charges.

Read on.  Happy Thanksgiving.  Turkey is murder.

There were motions for continuances made by defendants and the government.  There was considerable exchange of discovery materials and various plea offers.  The First says that the arrest-to-trial time was short, but it finds it not to be an abuse of discretion because the defendants motions were not specific enough.  This really smacks of having been written by someone with no actual trial experience.  Then, the First rejects all the arguments made on appeal: that plea agreements were imminent; that they needed more time to obtain evidence from Boliva (this argument is rejected, because the defendants concede that the government had all the relevant evidence to establish jurisdiction – which was why they wanted the evidence); that some statements might not have been voluntary (no reasons given why a continuance would have helped); development of a duress defense (the First says it has no factual basis to assess it); the defendants nationalities require some play in the schedule (no specifics as to why that is needed).  Speedy Trial Act challenges are rejected because motions were not made below.

One defendant argued that sitting him in the front of the courtroom made it hard to communicate with his lawyer.  This is held not to be an abuse of discretion.

One defendant claimed that he had to wear prison clothing.  But, the First says that it only matters if he is forced to do so.  Apparently he made some kind of motion, but there wasn’t evidence that he was forced to appear in prison garb.

The decision has interesting descriptions of what Coast Guard law enforcement-types look for in suspicious ships, and how permission to board a ship was secured from a ship’s home country (in this case, Bolivia). Hint: it goes from the Coast Guard to the White House, to the State Department to the foreign country, and back again, taking a total of ten hours.  Not that there is anything wrong with this.  There was apparently a document certifying Boliva’s consent.  One defendant wanted to cross-examine the USCG guy about it, but did not.  The First rejects a challenge based on the failure to admit that document. 

Confrontation clause challenges are rejected.  In this case, one defendant argues that the use of a non-testifying statement violates the 6th.  The First says that this doesn’t create a Bruton issues because the statement was not facially inculpatory.  However, the First concedes that a Crawford issue is a different animal, but says that the Crawford issue wasn’t really raised, so it review it for plain error.  The First finds that it was error – but not plain error not to give a limiting instruction.

In a sufficiency challenge to an “aiding and abetting” challenge under 46 U.S.C. app. § 1903(a), the First says it is good enough to show that the convicted crewmembers were involved with the transferring and concealment of the bales of cocaine.  This part makes sense.  But then the First piles on testimony from the government about how their demenor changed when the contraband was found, and “‘testimony from Officer Vidal of the Drug Enforcement Administration task force that persons who transport shipments of drugs’"do it with full knowledge and for purely economic reasons" and that drug traffickers would not entrust a multi-million-dollar shipment to anyone in whom they did not have confidence.”  Great.  Quasi-expert testimony to reject a sufficiency challenge. 

As to sentencing, the District Court rejected a safety-valve argument.  The First says that its findings were not that detailed, but says that since the District Court heard all the evidence, the sentence can stand.  (The government had argued that pursuing a duress defense prohibits the imposition of a safety valve reduction.)  More importantly, some of the defendants say that the District Court erred in failing to sentence everyone individually.  (It conducted back-to-back hearings.)   The First then characterizes a reasonableness challenge as a matter of “deference to the district court's determination.”  This is a new one for me. 

Regarding a challenge to US jurisdiction (i.e. that there was no evidence that the ship was bound for the US, and hence there was no nexus), the court finds that “ We previously have held that the [Maritime Drug Law Enforcement Act ("MDLEA")] does not contain such a nexus requirement; the flag nation's consent to jurisdiction is sufficient.”  See  United States v. Bravo, 489 F.3d 1, 9 (1st Cir. 2007) (our coverage here).

Regarding a claim that there was no evidence of a conspiracy, the First notes finds that the jury could have concluded that a piece of paper with names and phone numbers on it was evidence enough.