United States v. Nelson Rojas, Benjamin Morejon, 731 F.2d 707, 11th Cir. (1984)
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Scribd Government DocsUnited States v. Nelson Rojas, Benjamin Morejon, 731 F.2d 707, 11th Cir. (1984)
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Scribd Government Docs731 F.
2d 707
UNITED STATES of America, Plaintiff-Appellee,
v.
Nelson ROJAS, Benjamin Morejon, Defendants-Appellants.
No. 83-5106
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
Jan. 31, 1984.
Linda L. Carroll, Miami, Fla., for Rojas.
Kenneth E. Cohen, Asst. Federal Public Defender, Miami, Fla., for
Morejon.
Stanley Marcus, U.S. Atty., Frederick R. Mann, Linda Collins-Hertz, Asst.
U.S. Attys., Miami, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of
Florida.
Before HILL, JOHNSON and HENDERSON, Circuit Judges.
PER CURIAM:
Nelson Rojas and Benjamin Morejon were jointly indicted for conspiracy to
import marijuana, importing marijuana, conspiracy to possess marijuana with
intent to distribute, and possession of marijuana with intent to distribute, in
violation of 21 U.S.C. Secs. 963, 952(a), 846 and 841 respectively. After a jury
trial in the United States District Court for the Southern District of Florida, both
defendants were found guilty of all the charges and they appealed. We affirm.
Florida Marine Patrol Officer Alan Richard was patrolling the Biscayne
Channel during the evening of September 19, 1982. He observed a twenty-five
foot boat which had just crossed the three-mile United States territorial border.
Richard stopped the boat because it did not have proper lights, in violation of
Fla.Stat.Ann. Sec. 327.50. Rojas and Morejon, the captain, were the only
occupants of the boat. During his inspection, Richard found additional
violations such as insufficient flotation devices, no horn or whistle and
improper spacing of the registration number. Richard also noted that the United
States Customs Service had included the boat on its "lookout" list. He issued a
citation for some of the minor infractions and arrested Morejon for other
violations which constituted misdemeanors under Fla.Stat.Ann. Sec. 327.72.
Because of the dangerous condition of the boat, Richard took it to the nearest
safe harbor, No Name Cove. He testified at the trial that the boat handled
poorly, as if it were heavily laden.
3
Customs Patrol Officer Irby Ferguson arrived at No Name Cove after the boat
had docked and was in the custody of the state officers. Richard told him that
the boat had crossed the border. He searched the boat and discovered that part
of the decking had been cut out. Removing the false cover, Ferguson found a
secret compartment in which were stored twenty-five bales of marijuana,
weighing a total of 992.5 pounds.
Morejon and Rojas stated that Morejon had been hired to repair the boat's
engines and sail it from the Florida Keys to Miami and that Rojas went along to
do some fishing. They arrived on September 17, 1982. After working on the
engine, they took the boat out and traveled to the Bahamas. There two other
men boarded the boat. Morejon appeared to know them although Rojas claims
that he knew neither the men nor their exact location at that time.
In Nassau harbor the boat experienced engine trouble and someone discharged
a flare to seek help from a nearby Bahamian Defense Force ship. Seaman
Godfrey Wilson, who boarded the boat, testified that one of the two passengers
had four rolls of money, each with a $100.00 bill on top. The Defense Force
ship towed the boat back to shore where the two men who had boarded
disembarked the vessel.
According to Rojas, he and Morejon then returned to the Keys on September
18, 1982. The next day, they traveled toward Miami while fishing along the
way. That evening they were stopped by Richard and arrested. Rojas and
Morejon spent over two days on the boat, working, traveling and sleeping.
Morejon first challenges the legality of the search by Customs Officer
Ferguson. After a hearing, the district court denied his motion to suppress the
evidence. Morejon argues that Richard did not have authority under state law to
arrest him and that the illegal arrest tainted the search. Florida law provides
that:
8
Every
vessel on the waters of this state shall carry safety equipment and conform to
uniform lighting requirements in accordance with current United States Coast Guard
safety and lighting requirements, unless expressly exempt by state law.
9
Fla.Stat.Ann. Sec. 327.50.
10
This section was amended in 1981. Prior to the amendment, the section was
codified as Sec. 371.57. It divided boats into classes by size and specified the
safety equipment required for each class. See notes to Sec. 327.50. Section
327.72 imposes the penalties for violations of Sec. 327.50 but still refers to Sec.
327.50's old code section number. It provides that:
11 Any violation of the provisions of S. 371.57(1)(a) 1. and 2. shall be deemed a
(1)
noncriminal violation as defined in S. 775.08(3), punishable by a fine of $25.
12 Any person failing to comply with the provisions of this chapter not specified in
(2)
subsection (1) or not paying the fine specified in subsection (1) within 10 days,
except as otherwise provided in this chapter, is guilty of a misdemeanor of the
second degree, punishable as provided in S. 775.083, or S. 775.084.
13
Fla.Stat.Ann. Sec. 327.72 (footnote omitted). Old Sec. 371.57(1)(a) 1 and 2
required motorboats under sixteen feet to have one lifesaving device and one
oar or paddle.
14
The deficiencies observed by the state officers went beyond the non-criminal
violations set out in Sec. 327.72. The boat was longer than sixteen feet. It did
not have proper lights or a horn or whistle. As such, these offenses constituted
misdemeanors and Fla.Stat.Ann. Sec. 327.70(2) authorizes Marine Patrol
Officers to arrest violators of the safety statutes. Richard's arrest of Morejon
was therefore legal under Florida law.
15
Of greater significance is the fact that Rojas and Morejon crossed the border
and entered the United States. They were therefore subject to a customs search.
"Courts have held that the crossing of the international border three miles from
the United States coast and entry into territorial waters justifies a valid border
search." United States v. Stanley, 545 F.2d 661, 666 (9th Cir.1976), cert.
denied, 436 U.S. 917, 98 S.Ct. 2261, 56 L.Ed.2d 757 (1978) (citations and
footnote omitted) (emphasis in original). In United States v. Williams, 617 F.2d
1063 (5th Cir.1980) (en banc ),1 the court of appeals stated that "[e]xtensive
customs searches in territorial waters are universally thought to be legitimate ....
[P]eople crossing into a nation's territorial waters know they are likely to be
searched ...." Id. at 1085. The district court correctly denied the motion to
suppress the marijuana.
16
Morejon next contends that the prosecutor's closing argument was sufficiently
prejudicial to require a mistrial. One source of this assignment of error is the
prosecutor's statement to the jury that the defendants' story contained "lies that
they produced." Transcript II at 32. There was no objection to this comment. In
the absence of a timely objection, we must view the remarks under the plain
error standard. United States v. Stout, 667 F.2d 1347 (11th Cir.1982). When
interviewed after their arrest, Morejon and Rojas said that they had not been out
of the country. Transcript at 252-54. Although there is some dispute as to what
the defendants meant, their statements, combined with the testimony of the
Bahamian Defense Force officers, provide a sufficient basis in the record for
the prosecutor's comments. They do not constitute plain error.
Later, the prosecutor told the jury that:
17
Mr. Mann: (Prosecutor) "You are the conscience of this community. That's
right. You. The 12 of you are the conscience--"
18
Ms. Carroll: (Atty. for Rojas) "Objection, your Honor."
19
The Court: "Objection sustained."
20
Mr. Mann: "If you feel that this type of explanation, given all the other
circumstances in this case, casts a real doubt on the government's case, go
ahead and let him right out. Let him right out on the street, and it will not be I
who has done it."
21
Ms. Carroll: "Objection."
22
The Court: "Objection sustained, Counsel. Ladies and gentlemen, you are the
finders of the facts here; and you have to determine that from the evidence and
those witnesses that testified here. As again, the arguments of counsel are not
evidence of any of the facts."
23
Id. at 71-72.
24
The test in this circuit in assessing the prosecutor's comments for reversible
error is "(1) whether the remarks were improper and (2) whether they
prejudicially affected substantive rights of the defendants." United States v.
Vera, 701 F.2d 1349, 1361 (11th Cir.1983). Reviewing the entire record, we
conclude that the prosecutor's statements, although perhaps improvident, did
not affect the defendants' substantive rights. In any event, the district court
cautioned the jury that the arguments of counsel were not evidence in the case.
This instruction cured any error. Id.; United States v. Butera, 677 F.2d 1376
(11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 735, 74 L.Ed.2d 958
(1983).
25
Finally, both Rojas and Morejon complain that the evidence was insufficient to
sustain their convictions. The standard of review of the sufficiency of the
evidence is whether "a reasonable trier of fact could find that the evidence
establishes guilt beyond a reasonable doubt." United States v. Bell, 678 F.2d
547, 549 (5th Cir.1982) (Unit B en banc ), aff'd on other grounds, --- U.S. ----,
103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).2 The evidence must be viewed in the
light most favorable to the government, accepting all reasonable inferences in
support of the jury's verdict. Glasser v. United States, 315 U.S. 60, 62 S.Ct.
457, 86 L.Ed. 680 (1942); United States v. Curra-Barona, 706 F.2d 1089 (11th
Cir.1983).
26
Rojas claims that the evidence only shows his mere presence on the boat and
that presence at the scene of a crime, without more, will not support a
conviction. United States v. MacPherson, 664 F.2d 69 (5th Cir.1981) (Unit B).
The government is not required to introduce direct evidence of the conspiracy
or of Rojas' knowledge of the marijuana. United States v. Miller, 693 F.2d 1051
(11th Cir.1982). In MacPherson and United States v. Ferg, 504 F.2d 914 (5th
Cir.1974), another case relied upon by Rojas, there was no evidence beyond the
defendant's presence. Here, the government introduced additional indicia of his
involvement.
27
Rojas was on the boat for more than two days. He helped Morejon work on the
motor and traveled to the Bahamas, where they met two other men, one with a
large amount of cash. Officer Richard testified that Rojas was "not surprised" at
the discovery of the marijuana. Transcript at 176. In MacPherson, supra, there
was no evidence of the relationship between the defendant and the captain.
Here, Rojas and Morejon were friends. There was a large amount of marijuana
aboard which required the loading efforts of more than one person. Miller, 693
F.2d at 1051. See United States v. Stuart-Caballero, 686 F.2d 890 (11th
Cir.1982), cert. denied --- U.S. ----, 103 S.Ct. 1202, 75 L.Ed.2d 444 (1983).
Rojas, allegedly on the boat to fish, did no fishing until the day they were
arrested. This evidence, along with the length of the voyage, the small size of
the boat, and the close relationship between Rojas and Morejon is sufficient to
support Rojas' conviction. United States v. Curra-Barona, 706 F.2d 1089 (11th
Cir.1983).
28
The evidence against Morejon is even stronger. He operated the boat. Richard
testified that the boat handled poorly because it was heavily laden. Transcript
at 109. The boat also had an unusually high deck, indicating that something
might be stored beneath it. Id. at 106. Morejon, a mechanic, worked on the
engine. He took the boat to the Bahamas where he met two men, one with a
large amount of cash. He had been entrusted with the control of the boat,
ostensibly to repair the engine. Like Rojas, Morejon did not appear surprised
when the marijuana was discovered by the officers. Id. at 176. This evidence,
along with that recited above more than adequately recounts Morejon's
involvement.
29
For the foregoing reasons, the judgment of the district court is AFFIRMED.
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc ),
theEleventh Circuit Court of Appeals adopted as precedent the decisions of the
former Fifth Circuit issued before October 1, 1981
In Stein v. Reynolds, 667 F.2d 33, 34 (11th Cir.1982), theEleventh Circuit
Court of Appeals adopted as precedent all decisions of Unit B of the former
Fifth Circuit
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