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United States v. Williams

United States Court of Appeals, Eleventh Circuit

August 1, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,

         Appeals from the United States District Court for the Southern District of Florida D.C. Docket No. 1:15-cr-20388-JIC-1

          Before JORDAN and JILL PRYOR, Circuit Judges, and PROCTOR, [*] District Judge.


         In the waning hours of May 9, 2015, the crew of the Rasputin-defendants Vanston Venner Williams, Mario Alin Bent Barker, Carlos Clemente Henry Taylor, Edince Garcia Cardoza, and Hendrick Guillermo Linero Duffis-were traveling away from Colon, Panama when, much like their vessel's namesake, their luck ran out. A Coast Guard cutter approached the Rasputin, which sped away as four of the crew members swiftly threw dozens of packages overboard, none of which were recovered. Although the defendants successfully jettisoned their contraband, they could not elude the Coast Guard, who boarded the Rasputin and arrested its crew. After a trial, a jury concluded that the jettisoned packages contained cocaine, convicting each defendant of conspiracy to distribute at least five kilograms of a substance containing cocaine while on board a covered vessel, in violation of 46 U.S.C. §§ 70503(a)(1) and 70506(b) and 21 U.S.C. § 960(b)(1)(B), and possession with intent to distribute at least five kilograms of a substance containing cocaine, in violation of 46 U.S.C. §§ 70503(a)(1) and 70506(a) and 21 U.S.C. § 960(b)(1)(B). The jury also convicted Williams of failure to heave to, in violation of 18 U.S.C. § 2237(a)(1), and the remaining defendants of aiding and abetting Williams's failure to heave to, in violation of 18 U.S.C. §§ 2237(a)(1) and (2). The defendants appeal their convictions, challenging several of the district court's evidentiary rulings as well as the sufficiency of the evidence supporting their convictions. After oral argument and thorough review of the record, we affirm each defendant's drug convictions and Williams's failure-to-heave-to conviction but reverse for lack of evidence the remaining defendants' aiding and abetting failure-to-heave-to convictions.

         I. BACKGROUND

         We present only the facts relevant to the issues on appeal, which are the defendants' challenges to the admission of the testimony of government expert Gustavo Tirado, the testimony of several Coast Guard officers that the objects they witnessed being jettisoned resembled cocaine bales seized in previous interdictions, and a document listing the Rasputin's next port of call, as well as the defendants' challenges to the sufficiency of the evidence as to each of their convictions.[1]

         The United States Coast Guard cutter "Bear" was patrolling waters off the coast of Colombia and Panama-an area where drug trafficking is known to occur-searching for vessels that might be smuggling drugs. Around midnight, crew member Petty Officer Turner Adair noticed that the Bear's radar was picking up a vessel approximately six to eight nautical miles away. The vessel was heading north-northwest away from Colon, Panama at eight to ten knots. As the Bear approached the vessel, Adair used a forward-looking infrared system (FLIR) to view it. The FLIR system could capture images of body heat miles away. Objects that were body temperature or warmer appeared as black, while objects cooler than body temperature appeared as white. Through the FLIR, Adair could see that the vessel was a fishing boat containing a driver and four other individuals.[2] When the Bear's crew hailed the vessel on the radio, Adair observed that the four individuals who were not driving the vessel began to move about in a "worried manner." Trial Tr. 9/8/2015, Doc. 118 at 189-90, 201.[3] The four individuals began to place objects, each measuring approximately one foot high by three feet long, into a fishing net.

         As the four men on the vessel gathered the objects, the vessel increased its speed to 12 to 14 knots and began zig zagging from left to right for no apparent reason. Adair testified that such maneuvers were dangerous given that the waves and swells that night were between six and eight feet. After the four men finished placing at least ten bale-like objects into the fishing net, they tied the net up and threw it into the sea. Noticing that it took all four men to lift the net, Adair estimated (based on bales he had handled) that each bale weighed 65 to 75 pounds. After dumping the first net overboard, the four men loaded five more bales into another fishing net then threw that net overboard as well. The vessel changed direction, then heading south, and the four men dumped a third net full of bales.

         Meanwhile, on board the Bear, Petty Officer Stephen Fleming and his team prepared to pursue the vessel. Fleming's team gave chase in a rigid hull inflatable boat, activating blue law enforcement lights and giving orders to stop in both English and Spanish via both a loudhailer and the radio tuned to Channel 16. The vessel failed to stop or slow down; instead it continued to change direction erratically at full speed. Only when Fleming's craft pulled within a few feet of the vessel did it finally stop.

         Fleming observed that the vessel was a 34-foot fishing boat called the Rasputin and that it was flying an American flag. After Fleming and his team boarded the Rasputin, defendant Williams identified himself as the ship's master. He explained that the ship was a U.S. vessel and that he and the four other men aboard were Colombian nationals. According to Williams, the Rasputin had come from Colombia and was headed to Colon, Panama. But when the Rasputin was spotted, it was headed north-northwest away from Colon.

         Fleming discovered that the Rasputin's radio was turned to Channel 16-the channel that the Coast Guard had been using to attempt to communicate with the vessel-and the volume was turned all the way up. Fleming observed two empty fuel drums aboard the vessel and four empty 40-gallon gas containers. He recognized the strong smell of gasoline, noting that the fish hold had more than an inch of gasoline covering the floor. The Rasputin did not run on gasoline, however; it ran on diesel. The presence of gasoline suggested to the officers that it was being used as a masking agent to alter the chemical composition of contraband residue. And despite the fact that the Rasputin was registered in Florida as a commercial fishing vessel, there was no fishing gear, bait, ice, or fish aboard. Fleming and his crew seized three Global Positioning Systems (GPS) from the Rasputin and one $20 bill each from Williams and Cardoza. The officers also seized from the vessel a "zarpe"-a Colombian document including the names of the defendants and their ports of call. The zarpe listed Colon, Panama as the Rasputin's next port of call. The zarpe was admitted into evidence at trial over the defendants' objection that it was hearsay and unauthenticated.

         No quantity of drugs was found aboard the Rasputin, nor were any of the jettisoned packages recovered, as they apparently sank. In an attempt to detect the presence of contraband aboard the vessel, Fleming's boarding team used an IonScan machine. IonScan technology is designed to detect trace amounts of illicit materials-often amounts so small as to be imperceptible to the human eye. Samples, or "swipes, " are taken of areas and objects thought to contain contraband. The samples are then run through the IonScan machine, which measures the amount of time it takes for ions from vaporized molecules to drift from one side of a tube into a collector. Because every substance has a unique, predictable drift time, the machine can identify a substance on a sample based on the amount of time it takes for the vaporized molecules to drift into the collector. Fleming collected 34 IonScan swipes aboard the Rasputin.

         To protect against contamination and to ensure the boarding team introduced no contraband onto the Rasputin, the officers who boarded had their gear swiped for testing prior to boarding. Aboard the Rasputin, Fleming conducted IonScan swipes by putting on rubber gloves from sealed boxes and using small circular pads (also from sealed boxes) to swipe various surface areas of the Rasputin and its crew. Another member of Fleming's team kept a log of each swipe, assigning a number and description to each swipe. After each swipe, Fleming removed his gloves and placed them into a sealed bag, which was identified with a number corresponding to the number logged for each swipe. The sealed bags containing the IonScan pads were transported back to the Bear for analysis.

         Petty Officer Richard Caruso was the IonScan operator aboard the Bear. Caruso had attended a three-day training course where he learned how the IonScan machine worked and how to maintain the machine, calibrate it properly, run swipes through it, and read the results of its analysis. Caruso testified at trial that he had operated the machine more than five times in training and at least eight to ten times since, and that no scientific degree was required to operate it. The Bear's IonScan machine underwent a weekly preventative maintenance check and a daily parts check, and it was located in a secure area with limited access. While the Coast Guard pursued the Rasputin, Caruso turned on the IonScan machine and calibrated it, determining that it was operating correctly. He then swiped himself, the machine, and the area around the machine to ensure there was no contamination.

         Caruso received the swipes Fleming had taken aboard the Rasputin. Of the 34 swipes, 13 tested positive for cocaine. After each positive hit, Caruso ran two blank swipes through the machine to clear it, again to prevent contamination. The IonScan analysis detected positive hits for cocaine in the Rasputin's fish hold, marine toilet, and sink, as well as on seat cushions and on a knife. The IonScan also revealed cocaine on the person of each occupant of the Rasputin except defendant Taylor. By contrast, the IonScan tests conducted on the Rasputin's fantail-the area of the ship from which the bales were jettisoned-were negative.

         At trial, the government called Senior Chief Petty Officer Gustavo Tirado as its expert witness on IonScan technology. Tirado explained that he had trained as an IonScan machine operator and that he had operated IonScan machines hundreds of times, running thousands of swipes. From 2006 to 2011 and from 2013 on, Tirado was an IonScan machine instructor, teaching others on hundreds of occasions how to use IonScan machines. Tirado was initially trained to operate IonScan machines at a four-day seminar in 1999, where he was taught both how to operate the machine and to interpret its results. In 2006, when Tirado first became an IonScan instructor, he participated in more in-depth training, where he learned in greater detail how to interpret the results of IonScan testing. He attended additional training almost every year from 2006 to 2015. The district court permitted him to testify as an expert on the IonScan process and the meaning of the results of IonScan testing, after a hearing to assess the admissibility of expert testimony under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Tirado explained at trial the scientific process used by the IonScan machine, including how it measures drift time. He noted that to avoid false positive results, the IonScan machine was programmed to identify the presence of cocaine only where certain other parameters were met. He further explained that when an IonScan machine yields a positive result, it will produce values for three variables-delta, maximum amplitude, and number of segments-that indicate whether the sample had a high or low concentration of a particular substance. Tirado applied those variables to Caruso's IonScan results, explaining that some of the positive hits showed greater concentrations of cocaine than others. He further testified that according to the operator's manual the IonScan machine reported false positives of less than 1%.

         Tirado was unable to tell from the IonScan results that any particular quantity of cocaine was ever aboard the Rasputin, however. He was also unable to say whether the positive samples resulted from direct contact with cocaine or indirect contact from traces of cocaine brought aboard the ship by a person or object that had had direct contact with cocaine. Nor did he say how long the cocaine traces detected by the IonScan machine had been aboard the Rasputin.

         On cross examination, Tirado testified that Caruso deviated from standard Coast Guard protocol in conducting the IonScan testing in two ways. First, although Caruso properly ran two blanks through the machine in between positive results, he violated protocol by failing to note whether the blanks indicated for an illicit substance. It is unclear, therefore, from Caruso's log alone whether two blanks were run, and if so, whether the blanks indicated the presence of cocaine. Second, Tirado testified that Fleming violated protocol by wearing only one glove on one hand when conducting swipes, when Coast Guard protocol required gloves on both hands and multiple layers of gloves on the swiping hand.

         Adair testified at trial that the jettisoned objects he saw on the FLIR resembled cocaine bales he had seen in prior drug interdictions. Other Coast Guard officers gave similar testimony, including Caruso, Fleming, and Petty Officer William Coffey. The defense's objections-and the district court's handling of those objections-were inconsistent. The defense strenuously objected to Fleming's comparison between cocaine bales from prior drug interdictions on the grounds that such testimony was speculative, irrelevant, prejudicial, and unnoticed expert testimony, but let Adair[4] and Caruso[5] give similar testimony largely without objection. The district court sustained an objection to Coffey's testimony that the bales seen on the FLIR looked like bales found during previous cocaine interdictions.

         Although several Coast Guard witnesses testified that the objects seen on the FLIR appeared similar in shape and size to cocaine bales from previous interdictions, they also testified that the size and shape were consistent with everyday objects. For example, when Adair was asked whether a "bale" was different from a package, he answered no and explained that a "bale" could be "the same size [and] same weight" as a package. Trial Tr. 9/8/2015, Doc. 118 at 230. Fleming explained that a bale is "slightly larger than a file box" and is "similar to your suitcase or your briefcase." Trial Tr. 9/9/2015, Doc. 119 at 110. Coffey testified that a bale is approximately the size of a burlap sack or a briefcase.

         The jury returned a guilty verdict as to all charges against all defendants. Each defendant was sentenced to 10 years' imprisonment on each drug conviction. Williams was sentenced to 5 years' imprisonment, to be served concurrently, on the failure-to-heave-to conviction, as were the remaining defendants for their aiding and abetting failure-to-heave-to convictions. The defendants timely appealed.


         "We review evidentiary rulings for an abuse of discretion." United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir. 2005). Basing an evidentiary ruling on a legal error constitutes an abuse of discretion per se. Id.

         We "review de novo the sufficiency of the evidence supporting a criminal conviction." United States v. Walker, 490 F.3d 1282, 1296 (11th Cir. 2007). In doing so, we consider the evidence in the light most favorable to the jury's verdict, here drawing all reasonable inferences and making all credibility choices in the government's favor. United States v. Haile, 685 F.3d 1211, 1219 (11th Cir. 2012). "We will reverse a conviction based on insufficient evidence only if no reasonable trier of fact could have found guilt beyond a reasonable doubt." Walker, 490 F.3d at 1296 (internal quotation marks omitted).


         On appeal, the defendants argue that the district court erred in admitting several key pieces of evidence, including Tirado's expert testimony concerning the IonScan results, the testimony of several Coast Guard witnesses that the jettisoned objects they saw on the FLIR resembled cocaine bales from prior drug interdictions, and the zarpe. They also ...

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