United States Court of Appeals

For the First Circuit

No. 09-1101

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS ELIGIO SANTANA-PÉREZ,

Defendant, Appellant.

No. 09-1150

UNITED STATES OF AMERICA,

Appellee,

v.

AQUILES CARPIO-POURET

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Lynch, Chief Judge,

Torruella and Lipez, Circuit Judges.

Héctor L. Ramos-Vega, Assistant Federal Public Defender, with

whom Joseph C. Laws, Jr., Federal Public Defender, was on brief,

for appellant Luis Eligio Santana-Pérez.

Jesús M. Rivera-Delgado for appellant Aquiles Carpio-Pouret.

William C. Brown, Attorney, Criminal Division, with whom Lanny

A. Breuer, Assistant Attorney General, Criminal Division, and Rosa
E. Rodríguez-Vélez, United States Attorney, were on brief, for

appellee.

September 8, 2010
"Heave to" means "to cause a vessel to slow, come to a 1

stop, or adjust its course or speed to account for the weather

conditions and sea state to facilitate a law enforcement boarding."

18 U.S.C. § 2237(e)(2). For clarity, we will hyphenate the phrase

in the text except when quoting the statute. Cf. R.H. Dana, Jr.,

The Seaman's Friend 111 (14th ed. 1879).

Mona Island lies thirty-eight miles west of the main 2

island of Puerto Rico, about halfway between the main island and

the Dominican Republic.

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LIPEZ, Circuit Judge. Defendants Luis Eligio SantanaPérez and Aquiles Carpio-Pouret were found guilty of violating 18

U.S.C. § 2237(a)(1), which makes it a crime "for the master,

operator, or person in charge of a vessel of the United States, or

a vessel subject to the jurisdiction of the United States, to

knowingly fail to obey an order by an authorized Federal law

enforcement officer to heave to that vessel." They now appeal 1

their convictions, asserting multiple trial errors and claiming

that the evidence was, in any event, insufficient to support the

jury's verdict. Finding no reversible error, we affirm.

I.

The factual background of this appeal, which we recite in

the light most favorable to the verdict, is uncomplicated. In the

pre-dawn hours of March 15, 2008, the Coast Guard cutter Matinicus

was patrolling the Mona Passage between Puerto Rico and the

Dominican Republic when a member of the crew sighted a small vessel

leaving Mona Island, Puerto Rico and heading toward the Dominican

Republic. The crew member reported the sighting to Chief Warrant 2
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Officer Michael Levecque, who ordered that the Matinicus be brought

about to intercept the vessel. As it later turned out, SantanaPérez was operating the small vessel and Carpio-Pouret was also in

the vessel.

At around 5:10 a.m., the crew of the Matinicus activated

its blue law enforcement light on the ship's mast; shined a

spotlight on the defendants' vessel; blew the ship's whistle; and

began directing the defendants to stop in both English and Spanish

using the ship's loud hailer. The defendants did not stop at that

time. A "non-compliant boarding team" launched from the Matinicus

in a small vessel at 5:15 a.m. and arrived alongside the

defendants' vessel one minute later. The boarding team activated

a blue light on its vessel and began commanding the defendants to

"stop the vessel, stop the vessel." The defendants did not stop.

The boarding team made a second approach while repeating the

command to stop, but, again, the defendants did not stop. Finally,

on a third approach, the boarding team told the defendants that

force would be used if they did not stop. The defendants turned

off their motor at that point and were taken into custody. About

twelve minutes elapsed between the time the Matinicus activated its

blue light and the time the defendants stopped.

The defendants were subsequently charged with failing to

obey a federal law enforcement officer's order to heave-to. 18

U.S.C. § 2237(a). The government argued at trial that Santana-
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Pérez should be convicted as a principal and that Carpio-Pouret

should be convicted as an aider and abettor. The jury returned a

verdict of guilty as to both defendants, and the district court

summarily denied a post-trial motion for judgment of acquittal.

This appeal followed.

II.

The defendants raise five claims of error on appeal:

(1) the district court should have entered a judgment of acquittal

because there was insufficient evidence that the defendants heard

and understood the Coast Guard's orders to heave-to; (2) the

district court erroneously ruled that evidence relating to a prior

conviction could be admitted to impeach Santana-Pérez if he

testified at trial; (3) the government improperly vouched for its

own witnesses during closing arguments; (4) the district court

erred in refusing to give a missing evidence instruction; and

(5) the district court engaged in improper questioning during

Carpio-Pouret's testimony. We address each of these arguments in

turn.

A. Sufficiency of the Evidence

To prove a failure to heave-to, the government must show

that (1) the defendant was the master, operator, or person in

charge of the vessel; (2) an authorized federal law enforcement

officer ordered the defendant to heave-to; (3) the defendant failed

to obey that order; and (4) the defendant's failure to obey the
There must also be proof that the vessel operated by the 3

defendant was a vessel of the United States or a vessel subject to

the jurisdiction of the United States. See 18 U.S.C. § 2237(a)(1).

In this case, the district court instructed the jury that the

defendants' vessel would be subject to the jurisdiction of the

United States if it was "located within the customs waters of the

United States," an area that "extend[s] for four leagues, or twelve

miles, from United States territory unless another distance has

been established by treaty." United States v. Santana-Rosa, 132

F.3d 860, 863-64 (1st Cir. 1998) (internal quotation marks

omitted); see also 46 U.S.C. § 70502(c)(1)(D) ("[T]he term 'vessel

subject to the jurisdiction of the United States' includes . . . a

vessel in the customs waters of the United States . . . ."). It is

undisputed that the incident here occurred well within twelve miles

of the coast of Mona Island, which is United States territory. We

express no opinion about whether it was proper to submit the

"jurisdictional" issue to the jury. Cf. 46 U.S.C. § 70504(a)

(providing that "[j]urisdictional issues arising under [the

Maritime Drug Law Enforcement Act] are preliminary questions of law

to be determined solely by the trial judge"). Any error in so

doing was harmless. See United States v. Bravo, 489 F.3d 1, 8 (1st

Cir. 2007).

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order was knowing and intentional. See 18 U.S.C. § 2237(a)(1), 3

(b). To establish aiding and abetting liability, the government

must show: (1) that the principal "committed the substantive

offense charged," and (2) that the accomplice "became associated

with [the principal's criminal] endeavor and took part in it,

intending to assure its success." United States v. Gonzalez, 570

F.3d 16, 28-29 (1st Cir. 2009) (internal quotations marks and

citations omitted). On review for sufficiency, we ask whether the

evidence, viewed in the light most favorable to the prosecution,

would permit a reasonable jury to find each element beyond a

reasonable doubt. See United States v. Rosado-Pérez, 605 F.3d 48,

52 (1st Cir. 2010).
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1. Santana-Pérez

Santana-Pérez challenges only the finding that he had the

requisite mens rea. He contends that he could be convicted only on

proof that he was aware of and understood the Coast Guard's orders.

We agree. The statute penalizes those who "knowingly" disobey an

order to heave-to, a term that ordinarily goes to the defendant's

"knowledge of the facts that constitute the offense." Bryan v.

United States, 524 U.S. 184, 193 (1998). The issuance of an order

to heave-to is one of the facts constituting the offense in this

case. To prove that a defendant knew that an order to heave-to was

given, it will typically be necessary to prove that he was aware of

the order and comprehended its essential message.

Santana-Pérez points to Carpio-Pouret's trial testimony

in support of his argument that he lacked the necessary knowledge.

Carpio-Pouret testified that he and Santana-Pérez saw the

Matinicus's spotlight but did not hear the orders to stop. In

addition, both Santana-Pérez and Carpio-Pouret denied hearing the

orders in post-arrest statements given to an immigration official.

However, the jury heard substantial testimony undermining

the defendants' story. Levecque testified that when he and the

crew "lit [the defendants] up with a spotlight and started blowing

our horn, they kind of turned and obviously looked -- looked behind

them. I'm sure -- they looked very surprised." There was

testimony that the order to stop was given in Spanish and English
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over the loud hailer, which was audible at a distance of 100 to 200

feet, and that the defendants' vessel was less than 150 feet from

the Matinicus at the time. Further testimony established that the

boarding crew repeated the order to stop during its first two

passes, which brought the crew within 15 to 25 feet of the

defendants' vessel, and that the defendants stopped only when they

were warned that force would be used.

In addition, Santana-Pérez acknowledged in a post-arrest

statement that he saw the "flashing lights" and admitted: "We

were . . . spotted by the Coast Guard and I tried to outrun them."

He acknowledged having been detained on previous occasions (as did

Carpio-Pouret) and stated that he did not stop because he "was

scared and did not want to go to jail." Finally, when CarpioPouret was asked, "When you saw the Coast Guard boat what

happened?" he responded, "I told [Santana-Pérez] that they were

coming." Viewed as a whole, the evidence was more than sufficient

for the jury to find that Santana-Pérez heard and understood the

orders to stop.

2. Carpio-Pouret

Carpio-Pouret moved for a judgment of acquittal in the

district court on the ground that there was no evidence that he was

the "master, operator, or person in charge" of the small vessel.

18 U.S.C. § 2237(a)(1). The district court denied that motion, and

Carpio-Pouret properly appealed. In this court, however, Carpio-
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Pouret's attorney filed a motion to voluntarily dismiss the appeal.

The attorney stated that he had lost contact with Carpio-Pouret,

who apparently returned to the Dominican Republic after completing

his sentence. We denied the motion because the attorney had not

shown that Carpio-Pouret "affirmatively authorized the withdrawal

of his direct criminal appeal." The attorney then filed a motion

to adopt two of the arguments made in Santana-Pérez's appellate

brief: the sufficiency of the evidence argument, discussed above,

and an argument relating to the district court's aggressive

questioning of witnesses during trial, discussed below. See Fed.

R. App. P. 28(i). No separate appellate brief was filed on CarpioPouret's behalf.

The rule in this circuit is clear: "[a]doption by

reference . . . cannot occur in a vacuum; to be meaningful, the

arguments adopted must be readily transferrable from the

proponent's case to the adopter's case." United States v. David,

940 F.2d 722, 737 (1st Cir. 1991). Santana-Pérez's argument

relating to the district judge's questioning of witnesses is

readily transferable to Carpio-Pouret's case. As noted, we address

that argument below. It is less clear how Santana-Pérez's

sufficiency of the evidence argument might be transferred to

Carpio-Pouret's case. To the extent that Carpio-Pouret means to

argue that he did not hear the order to heave-to, his argument

fails for essentially the reasons discussed above. There was
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sufficient circumstantial evidence for the jury to find that both

defendants heard the order and knowingly disobeyed it. 

Other arguments that Carpio-Pouret might have been able

to make on his own are forfeited. They would be unavailing in any

event. The argument that Carpio-Pouret made to the district

court -- that he was not the "master, operator, or person in

charge" of the small vessel -- was beside the point because the

government's theory was that Carpio-Pouret aided and abetted

Santana-Pérez's failure to heave-to. And the jury could reasonably

have interpreted Carpio-Pouret's warning to Santana-Pérez that the

Coast Guard was coming as the sort of encouragement that makes one

an aider and abettor (as in, "They're coming, let's get out of

here!"). See United States v. Mercado, 610 F.3d 841, 846 (3d Cir.

2010) ("One can aid or abet another through use of words or actions

to promote the success of the illegal venture."). The district

court did not err in denying Carpio-Pouret's motion for judgment of

acquittal.

B. Evidence of Prior Conviction

The district court ruled in limine that evidence of

Santana-Pérez's prior drug conviction could be admitted to impeach

him under Federal Rule of Evidence 609(a) if he chose to testify.

Although Santana-Pérez challenges that ruling on appeal, he does so

only to preserve the issue for Supreme Court review. He concedes

that his claim is foreclosed under the Supreme Court's decision in
Santana-Pérez argues that Luce unfairly "forces 4

defendants to either take the stand, be impeached even if wrongly

so, and get convicted for the purposes of preserving the error for

appeal; or to forgo the option of telling their story to the jury,

a fundamental right, only to then insulate a trial court's ruling

from review no matter how erroneous it may be."

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Luce v. United States, 469 U.S. 38 (1984), which held that "a

defendant who chooses not to testify at trial loses his right to

appeal the district court's ruling denying his in limine motion to

forbid the impeachment use of a prior conviction." United States

v. Holmquist, 36 F.3d 154 (1st Cir. 1994). Santana-Pérez did not 4

testify at trial, and we therefore reject his argument.

C. Vouching

During closing arguments, the prosecutor rhetorically

asked the jury, "Are you going to give [sic] the testimony of the

United States Coast Guard officers or are you going to believe the

testimony raised by the defendant?" Santana-Pérez lodged an

objection that the government was improperly vouching for its

witnesses, which was overruled.

"Improper vouching occurs when the government places the

prestige of the United States behind a witness by making personal

assurances about the credibility of a witness or implies that the

jury should credit the government's evidence simply because the

government can be trusted." United States v. Robinson, 473 F.3d

387, 396 (1st Cir. 2007) (internal quotation marks and citation

omitted). Viewed in context, it is clear that the prosecutor's
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rhetorical question did neither of those things. The prosecutor

had just finished outlining the factors he believed undermined

Carpio-Pouret's credibility. He then told the jury, "[t]here's

matters of credibility in this case," and rhetorically asked which

version of the events the jury would choose to believe. Of course,

the implicit message was that the government's case was more

believable than the defendants' case. But "merely asking the

members of the jury to use their common sense in evaluating the

witnesses' testimony" is not improper vouching. United States v.

Pérez-Ruiz, 353 F.3d 1, 10 (1st Cir. 2003); see also United States

v. Rodríguez, 215 F.3d 110, 123 (1st Cir. 2000) ("[A]n argument

that does no more than assert reasons why a witness ought to be

accepted as truthful by the jury is not improper witness

vouching."); 6 Wayne R. LaFave et al., Criminal Procedure § 24.7(e)

(3d ed. 2009) ("[T]he prosecutor is not prohibited from explaining

to the jury why it should conclude the defendant was guilty or

accept or reject a particular witness' testimony.").

The defendants argue that the prosecutor's "tone and

inflection" suggested to the jury that the Coast Guard witnesses

should be believed "simply because they are Coast Guard officers."

We take that to mean that the prosecutor placed special emphasis on

the words "United States Coast Guard officers." If that is true,

it might be troubling because such emphasis could be taken to

"impl[y] that the jury should credit the government's evidence
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simply because the government can be trusted." Robinson, 473 F.3d

at 396 (internal quotation marks omitted). But we have no way to

judge the accuracy of the defendants' characterization from the

trial transcript. On this record, we must necessarily defer to the

district court's on-the-spot assessment of that issue. Cf. Reagan

v. Brock, 628 F.2d 721, 723 (1st Cir. 1980) (noting that "our

ability to comprehend how [a] question was understood in the

courtroom is vastly inferior to the district judge's" because the

judge "hears the question with counsel's inflection, perceives the

length and character of the pause between question and answer, and

rules on the party's objection within the context of prior

questioning and strategies").

D. Adverse Inference Instruction

Chief Warrant Officer Levecque testified that the

Matinicus's radar equipment was supposed to have recorded a video

of the chase. For technical reasons, however, the video did not

record properly and could not be played. The government made a

number of efforts to play the video, including bringing it back to

the Matinicus to play it on the cutter's recording system. When

none of those efforts worked, the government notified the

defendants of the technical problem, one month before the trial

began. 

At trial, the defendants asked the district court to give

what they call a missing evidence instruction, which would have
This question is distinct from the question of whether 5

the government's failure to preserve or produce evidence resulted

in a denial of due process, see, e.g., Illinois v. Fisher, 540 U.S.

544 (2004) (per curiam), which is not raised in this appeal.

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advised the jury that it could infer that the video would have been

unfavorable to the government based on the government's failure to

produce it. The district court refused to give the instruction,

citing the lack of evidence that the government acted in bad faith

and the impossibility of producing the video. It told the

defendants they could argue to the jury that the government should

have produced the video. The defendants challenge that ruling on

appeal. We review for abuse of discretion. United States v. Rose,

104 F.3d 1408, 1417 (1st Cir. 1997).

In some circumstances, a party's failure to produce

evidence may justify an inference that the evidence would have been

unfavorable to the non-producing party. This general rule of 5

evidence encompasses everything from the decision not to call a

witness to the intentional destruction of documents. The party

seeking the instruction has the burden of laying an appropriate

evidentiary foundation. United States v. Laurent, 607 F.3d 895,

902 (1st Cir. 2010). Although the particulars of the required

showing vary from situation to situation, the basic thrust is

always the same: the circumstances must be such that a reasonable

jury could conclude that the evidence in question was unfavorable

to the non-producing party. See Laurent, 607 F.3d at 902
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(spoliation); United States v. Myerson, 18 F.3d 153, 159 (2d Cir.

1994) (missing witness).

In this case, there is no basis for such an inference.

The government gave a satisfactory explanation for its failure to

produce the radar video: the video did not properly record because

of a technical mishap. Defendants have placed nothing in the

record to suggest that the government's explanation was untrue.

Under the circumstances, there is no reason to suppose that the

video might have been unfavorable to the government. The district

court did not abuse its discretion in refusing to give an adverse

inference instruction.

E. Questioning by the District Court

Defendants claim that the district court engaged in

questioning of Carpio-Pouret on the witness stand that was overly

aggressive and signaled to the jury that the judge disbelieved

Carpio-Pouret's testimony. There was no objection at trial, see

Fed. R. Evid. 614(c), so we review for plain error only. United

States v. Paz Uribe, 891 F.2d 396, 400 (1st Cir. 1989).

The principles governing the defendants' claim are easily

stated, if less easily applied. It is well-settled that the

district court is more than a "mere moderator" in a federal jury

trial. Quercia v. United States, 289 U.S. 466, 469 (1933). Among

other things, the court has "the prerogative, and at times the

duty, of eliciting facts he deems necessary to the clear
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presentation of issues." Paz Uribe, 891 F.2d at 400 (quoting Llach

v. United States, 739 F.2d 1322, 1329-30 (8th Cir. 1984)); see also

Fed. R. Evid. 614(b) ("The court may interrogate witnesses, whether

called by itself or by a party."). The trial court's discretion in

this area is broad, and there are many different situations in

which judicial interrogation can be warranted. See 29 Charles Alan

Wright et al., Federal Practice & Procedure: Evidence § 6235 (1st

ed. 1997 & Supp. 2009).

At the same time, the power to interrogate witnesses must

be exercised judiciously, particularly when the witness is a

defendant in a criminal case. United States v. Melendez-Rivas, 566

F.3d 41, 50 (1st Cir. 2009). Each intervention raises the

possibility that the jury will perceive the court as biased toward

one party or another. The court must therefore take pains to

"preserve[] an attitude of impartiality and guard[] against giving

the jury an impression that the court believes the defendant is

guilty." Paz Uribe, 891 F.2d at 400-01 (quoting Llach, 739 F.2d at

1329-30).

In this case, the district court aggressively questioned

witnesses on both sides. However, the court's questioning of

Carpio-Pouret differed in tenor from his questioning of the

government's witnesses. Whereas the questions directed at the

government's witnesses by and large related to technical matters,

many of the questions directed at Carpio-Pouret focused on
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perceived gaps and inconsistencies in his story. An excerpt in

which the court pressed Carpio-Pouret to explain how he ended up

near Mona Island during a fishing trip will illustrate the general

tone of the questioning:

THE COURT: And how far from the coastline

were the [fishing] traps?

DEFENDANT: Well, I can't tell you how far

away those traps were because, as

I stated earlier, I don't know

about measurements out at sea.

[. . .]

THE COURT: How long have you been fishing?

DEFENDANT: All my life.

THE COURT: And you can't tell distances in

the sea? You can't tell me those

traps were ten, 15 miles offshore?

DEFENDANT: No, I can't say.

[. . .]

THE COURT: All right. And when your motor

stopped working, were you near the

other fishermen?

DEFENDANT: Not that close. We were barely

able to see them.

THE COURT: Why didn't you communicate with

them?

DEFENDANT: We didn't have any instruments to

communicate with them. We tried

to signal them with our shirts,

but we were unsuccessful at that.

[. . .]
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THE COURT: When you dropped off the gas, the

motor was still operating?

DEFENDANT: That is correct.

THE COURT: And then you turned around and

headed towards the Dominican

Republic to get the traps; is that

correct?

DEFENDANT: Well, no, sir. We headed somewhat

parallel to -- I don't know. But

we headed -- well, we headed

southeast. I don't know, maybe it

was that. I don't know what

bearing we took.

[. . .]

THE COURT: And that was a course that was not

taking you to the Dominican

Republic.

DEFENDANT: No, sir.

In our view, this exchange and others like it skirted

dangerously close to the line between questioning intended to clear

up muddled or gap-filled testimony, which is permissible, and

questioning that signals the court's disbelief of the witness,

which is not. See United States v. Tilghman, 134 F.3d 414, 416

(D.C. Cir. 1998). The question about distances at sea, in

particular, implies that the court was having trouble believing

Carpio-Pouret's story. 

In the end, however, the error, if any, was not plain.

Despite the tenor of the questions, they appear to have been aimed

at clarifying Carpio-Pouret's testimony -- a legitimate goal. See

United States v. Filani, 74 F.3d 378, 386 (2d Cir. 1996); United
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States v. Hickman, 592 F.2d 931, 933 (6th Cir. 1979). CarpioPouret gave only a vague explanation on direct examination and

cross-examination of what he and Santana-Pérez were doing between

the morning of March 14, 2008, when they left to go fishing, and

the morning of March 15, when they encountered the Matinicus. The

district court could reasonably have concluded that the jury would

benefit from a fuller account of the day's events. Also, any

signals the court may have given about its views are susceptible of

multiple interpretations on the cold record. We therefore cannot

say that any error was "clear" or "obvious." United States v.

Olano, 507 U.S. 725, 734 (1993). We also note that the district

court instructed the jury not to "assume from anything [it] may

have said that [it had] any opinion concerning the issues in this

case." The defendants are not entitled to a new trial.

AFFIRMED.