Julio CARDALES, Defendant, Appellant.
Rafael Hernandez, Defendant, Appellant.
Hawkins Peterson, Defendant, Appellant.
97-2383, 97-2384 and 97-2385.
States Court of Appeals,
Nov. 3, 1998.
Feb. 26, 1999.
LYNCH, Circuit Judge, HALL, [FN*] Senior Circuit Judge, and LIPEZ, Circuit
Of the Ninth Circuit, sitting by designation.
HOLCOMB HALL, Senior Circuit Judge.
approximately 5:40 p.m. on May 31, 1996, a helicopter crew from the U.S.S.
GROVES spotted a "go-fast" boat, the CORSICA, traveling at a very high
rate of speed in waters approximately 150 miles south of Puerto Rico. The
helicopter crew attempted to contact the boat by radio and by hand signal,
but all efforts to communicate with the CORSICA were unsuccessful even
though the CORSICA's radio was working. The defendants evaded the helicopter
for over two hours, turning off the CORSICA's navigation lights when it
grew dark. Eventually, the helicopter crew was able to steer the CORSICA
toward the GROVES. When the defendants spotted the GROVES, they turned
the CORSICA in the opposite direction and fled. When the CORSICA was close
enough, the crew from the GROVES launched a rigid hull inflatable boat
("RHIB") to approach the CORSICA, but the RHIB's engine failed before it
could make contact. While the crew from the GROVES launched a second RHIB,
the helicopter returned to the GROVES for refueling. As a result of the
first RHIB's breakdown and the helicopter's refueling, the CORSICA was
out of sight for approximately fifteen minutes.
Julio Cardales ("Cardales"), Robinson Rafael Hernandez ("Hernandez"), and
Arkel Hawkins Peterson ("Peterson") appeal their convictions for aiding
and abetting each other in the possession with intent to distribute marijuana
on board a vessel subject to the jurisdiction of the United States in violation
of 46 U.S.C. app. § 1903(a) and 18
U.S.C. § 2. The district court sentenced
Cardales to 120 months in prison, Hernandez to 78 months in prison, and
Peterson to 121 months in prison. Peterson appeals his sentence. We have
jurisdiction under 28
U.S.C. § 1291 and 18
U.S.C. § 3742(a), and we affirm.
the second boat reached the CORSICA, Peterson identified himself as the captain,
and claimed the CORSICA was a Venezuelan vessel that had departed from
Colombia to search for a lost boat. Peterson refused to allow the Coast
Guard crew to board the CORSICA until the Venezuelan government consented.
The Coast Guard crew sought authorization to board the CORSICA from Venezuela,
but the Venezuelan government was unable to access the ship registry database
at that time. The *552
Guard crew boarded the CORSICA pursuant to a statement of no objection
from Coast Guard headquarters, and shortly thereafter the Venezuelan government
authorized the Coast Guard to board and search the CORSICA under the unverified
assumption that the CORSICA was registered in Venezuela. When the officers
searched the CORSICA, they noted that the CORSICA's radio was working,
the forward cabin smelled of fuel, the carpet had indentations in it as
if heavy objects had been resting on it, and pieces of what appeared to
be burlap were woven into the carpet. However, the officers did not find
any contraband, and returned to the GROVES.
as: 168 F.3d 548, *552)
after the officers returned to the GROVES, lookouts on board the GROVES
noticed over twenty bales floating in the water. The crew from the GROVES
recovered seventeen of the bales, which contained over 1080 pounds of marijuana.
The marijuana was held in cardboard boxes, wrapped in plastic and tape,
and marked with a yellow dye. The officers returned to the CORSICA, reboarded
pursuant to the Venezuelan government's previous consent, and conducted
a second search.
the second search, officers found packing material that matched the material
found in the bales recovered by the GROVES, yellow dye stains on the carpet
that matched the yellow dye markers on the marijuana, and what appeared
to be a marijuana stem that tested positive for THC, a chemical found in
marijuana. The officers arrested the defendants, and the CORSICA was piloted
to Puerto Rico. The officer who piloted the CORSICA noticed that the CORSICA
skipped across the water as he drove it, which contrasted sharply to the
CORSICA's bow-heavy condition during the chase.
June 5, 1996, the Venezuelan government notified the State Department that
the CORSICA was indeed of Venezuelan registry, reauthorized the boarding
and search of the CORSICA, and authorized the arrest of and application
of U.S. law to the CORSICA's crew. Cardales, Hernandez, and Peterson were
convicted of aiding and abetting each other in possessing with the intent
to distribute marijuana while on board a vessel subject to the jurisdiction
of the United States in violation of 46 U.S.C. app. § 1903(a). The
Maritime Drug Law Enforcement Act ("MDLEA") makes it "unlawful for any
person ... on board a vessel subject to the jurisdiction of the United
States ... to possess with intent to manufacture or distribute, a controlled
substance." 46 U.S.C. app. § 1903(a). One of the MDLEA's definitions
of a vessel subject to the jurisdiction of the
United States is "a vessel registered in a foreign nation where the flag
nation has consented or waived objection to the enforcement of United States
law by the United States." Id. § 1903(c)(1)(C).
this case, the defendants were convicted of aiding and abetting each other
in the possession with intent to distribute marijuana on board a vessel,
the CORSICA, subject to the jurisdiction of the United States. The CORSICA
was registered in Venezuela, and the government of Venezuela consented
to the application of United States law to the defendants. The government
therefore satisfied the jurisdictional requirements of the MDLEA.
The defendants contend that the Fifth Amendment Due Process Clause requires
the government to prove a nexus between their criminal conduct and the
United States in a prosecution for violating the MDLEA. Although the MDLEA
does not explicitly contain a domestic nexus requirement, the Ninth Circuit
has read into the MDLEA a nexus requirement with respect to foreign-registered
vessels. See United
States v. Klimavicius-Viloria, 144 F.3d 1249, 1257 (9th Cir.1998) (requiring
government to prove that offense conduct is likely to have effects in United
States v. Davis, 905 F.2d 245 (9th Cir.1990) (requiring sufficient
nexus between criminal conduct and United States such that application
of U.S. law would not be arbitrary or unfair). This nexus requirement,
however, was specifically rejected by the Third Circuit.
United States v. Martinez-Hidalgo, 993 F.2d 1052 (3d Cir.1993) (reasoning
that statute does not contain nexus requirement, and that Congress intended
MDLEA to override international law to extent nexus might be required).
[FN1] We decide today that due process does not require the government
to prove a nexus between a defendant's criminal conduct and the United
States in a prosecution under the MDLEA when the flag nation has consented
to the application of United States law to the defendants.
as: 168 F.3d 548, *553)
To satisfy due process, our application of the MDLEA must not be arbitrary
or fundamentally unfair. See Davis,
905 F.2d at 248-49; see also Martinez-Hidalgo,
993 F.2d at 1056. In determining whether due process is satisfied,
we are guided by principles of international law. See Davis,
905 F.2d at 249 n. 2. Under the "territorial principle" of international
law, a "state has jurisdiction to prescribe and enforce a rule of law in
the territory of another state to the extent provided by international
agreement with the other state." United
States v. Robinson, 843 F.2d 1, 4 (1st Cir.1988). In Robinson,
we decided that the United States had jurisdiction over
a Panamanian vessel stopped over 500 miles off shore because the Panamanian
government authorized the United States to apply U.S. law to the persons
on board the vessel. See id.
(recognizing informal authorization as valid agreement for purposes of
territorial principle, and affirming conviction under 21
U.S.C. § 955a, statutory precursor to MDLEA). In this case, the
Venezuelan government authorized the United States to apply United States
law to the persons on board the CORSICA. Therefore, jurisdiction in this
case is consistent with the territorial principle of international law.
In addition, under the "protective principle" of international law, a nation
is permitted "to assert jurisdiction over a person whose conduct outside
the nation's territory threatens the nation's security." Robinson,
843 F.2d at 3; see United
States v. Romero-Galue, 757 F.2d 1147, 1154 (11th Cir.1985); United
States v. Pizzarusso, 388 F.2d 8, 10 (2d Cir.) (characterizing protective
principle as applying only to conduct generally recognized among nations
as a crime), cert. denied, 392
U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395 (1968). Consistent with this
principle, Congress specifically found in the MDLEA that "trafficking in
controlled substances aboard vessels is a serious international problem
and is universally condemned [, and] ... presents a specific threat to
the security ... of the United States." 46 U.S.C. app. § 1902. Therefore,
application of the MDLEA to the defendants is consistent with the protective
principle of international law because Congress
has determined that all drug trafficking aboard vessels threatens our nation's
security. See Martinez-Hidalgo,
993 F.2d at 1056 ("Inasmuch as trafficking of narcotics is condemned
universally by law-abiding nations, we see no reason to conclude that it
is 'fundamentally unfair' for Congress to provide for the punishment of
persons apprehended with narcotics on the high seas."); cf. Church
v. Hubbart, 6 U.S. (2 Cranch) 187, 234-35, 2 L.Ed. 249 (1804) ("[A
nation's] power to secure itself from injury may certainly be exercised
beyond the limits of its territory.").
therefore hold that when individuals engage in drug trafficking aboard
a vessel, due process is satisfied when the foreign nation in which the
vessel is registered authorizes the application of United States law to
the persons on board the vessel. When the foreign flag nation consents
to the application of United States law, jurisdiction attaches under the
statutory requirements of the MDLEA without violation of due process or
the principles of international law because the flag nation's consent eliminates
any concern that the application of United States law may be arbitrary
or fundamentally unfair. [FN2]
the Third Circuit stated that the MDLEA "expresses the necessary congressional
intent to override international law to the extent that international law
might require a nexus to the United
F.2d at 1056. The question of whether Congress intended to override
international law is not presented here. To the extent that international
law requires a nexus to the United States, that nexus requirement is not
overridden by the MDLEA, but instead is satisfied by the foreign flag nation's
authorization to apply U.S. law to the defendants and by the congressional
finding that drug trafficking aboard vessels threatens the security of
the United States.
The defendants contend that the district court removed from the jury's
consideration the jurisdictional element of the MDLEA. [FN3] Although the
district court stated during the defendant's opening statements that there
was jurisdiction, the court corrected itself in its jury instructions.
The district court instructed the jury that it was required to find jurisdiction
beyond a reasonable doubt. In addition, the district court explicitly corrected
its earlier mistake, instructing the jury that it had "to make an independent
final determination as to whether there is jurisdiction or not in this
case" regardless of the court's earlier comments. Cf. Richardson
v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)
(assuming that jurors follow instructions); Arthur
D. Little, Inc. v. Dooyang Corp., 147 F.3d 47, 53 (1st Cir.1998) (same).
Therefore, the district court did not take from
the jury the MDLEA's jurisdictional element.
as: 168 F.3d 548, *554)
The MDLEA has since been amended to eliminate jurisdiction as one of its
elements, making it a threshold question for the trial court to resolve.
See 46 U.S.C. app. § 1903(f).
The defendants contend that the district court erred by denying their Rule
29 motions for judgment of acquittal based on the sufficiency of the
evidence. We will reverse the district court's denial of the defendants'
29 motions only if, viewing the evidence in the light most favorable
to the government and drawing all reasonable inferences in support of the
verdict, no rational jury could find guilt beyond a reasonable doubt. [FN4]
States v. Marrero-Ortiz, 160 F.3d 768, 772 (1st Cir.1998). The government
presented sufficient evidence to prove that all three defendants (1) were
on board a vessel subject to the jurisdiction of the United States, (2)
knowingly or intentionally possessed marijuana, and (3) intended to distribute
that marijuana. See Guerrero,
114 F.3d at 339.
Because Peterson presented a defense, he has waived review of the initial
29 motion that he made at the close of the government's
States v. Guerrero, 114 F.3d 332 (1st Cir.), cert. denied sub nom.,
v. United States, --- U.S. ----, 118 S.Ct. 320, 139 L.Ed.2d 248 (1997).
With respect to Peterson, therefore, we may consider the evidence presented
in both the government's case and in Peterson's defense. See id.
at 339. However, we may not consider the evidence presented in Peterson's
defense when reviewing the denial of the Rule
29 motions made by Cardales and Hernandez at the close of the government's
case. See United
States v. Cruz-Paulino, 61 F.3d 986, 997- 98 (1st Cir.1995) (Rule
29 motions made at close of government's case reviewable on appeal
when no defense presented). However, we discuss only the evidence presented
in the government's case because the government introduced sufficient evidence
to convict all three defendants without regard to Peterson's testimony.
the government introduced evidence from which the jury reasonably could
have found that the United States had jurisdiction over the defendants.
The government introduced testimony that the Venezuelan government authorized
the Coast Guard crew to board and search the CORSICA. In addition, the
Venezuelan government authorized the United States to apply United States
law to the CORSICA's crew. See 46 U.S.C. app. § 1903(c)(1)(C).
the government introduced evidence from which the jury reasonably could
have found that the crew of the CORSICA had possessed the bales of marijuana
found floating in the ocean. The government introduced evidence that (1)
there were impressions in the CORSICA's carpet that matched the shape of
the marijuana bales; (2) there was yellow dye on the CORSICA's carpet that
matched yellow dye found in the bricks of marijuana; (3) there were cardboard
pieces and packing tape on board the CORSICA that matched the materials
used to package the marijuana; (4) the pieces of plastic removed from the
CORSICA's carpet matched the thickness and type of plastic used to package
the bales; (5) there was a piece of what appeared to be a marijuana stem
on the CORSICA that tested positive for THC; and (6) a narcotics dog aboard
the CORSICA alerted Coast Guard officers to *555
presence of drugs. In addition, the government introduced testimony that
traced the bales found floating in the water to the location of the CORSICA
at the time the bales were allegedly thrown overboard.
as: 168 F.3d 548, *555)
addition, the government introduced sufficient evidence from which the
jury reasonably could infer that the defendants knowingly possessed the
marijuana. The government demonstrated that the defendants evaded the Coast
Guard helicopter for over two hours, turning off their navigation lights
when it got dark, failing to respond to radio contact even though their
radio was working, and refusing to allow the Coast Guard crew to board
when finally stopped. See United
States v. Leuro-Rosas, 952 F.2d 616, 622 (1stCir.1991);
States v. Piedrahita-Santiago, 931 F.2d 127, 131 (1st Cir.1991); United
States v. Passos-Paternina, 918 F.2d 979, 985 (1st Cir.1990). The government
demonstrated that the CORSICA was riding low in the water, suggesting that
the CORSICA was laden with illegal cargo. See Piedrahita-Santiago,
931 F.2d at 131. The government demonstrated that the defendants tried
to mask the presence of the marijuana by pouring gasoline on the CORSICA's
deck. See United
States v. Romero, 32 F.3d 641, 645 (1st Cir.1994). The government demonstrated
that the CORSICA was carrying a large amount of marijuana relative to its
size. See Piedrahita-Santiago,
931 F.2d at 131; United
States v. Cuevas-Esquivel, 905 F.2d 510, 515 (1st Cir.1990). The government
demonstrated that the defendants had traveled a great distance to reach
the location where they were spotted. See Piedrahita-Santiago,
931 F.2d at 131; United
States v. Corpus, 882 F.2d 546, 550 (1st Cir.1989). The government
demonstrated that the defendants shared close relationships with each other
because the three of them were on board a boat that was only forty-two
feet long, they were all Colombians, and they worked closely together to
operate the CORSICA. See Cuevas,
905 F.2d at 515. Finally, the government demonstrated that the marijuana
recovered had a street value of up to $8 million. [FN5] See Passos-Paternina,
918 F.2d at 985.
the government introduced evidence from which the jury reasonably could
infer that the defendants intended to distribute the marijuana. The government
demonstrated that lookouts aboard the GROVES spotted over twenty bales
floating in the water. The crew of the GROVES recovered seventeen of the
bales, which contained over 1080 pounds of marijuana. The jury reasonably
could infer from the quantity of marijuana recovered that the defendants
intended to distribute the marijuana. See Guerrero,
114 F.3d at 344; United
States v. Echeverri, 982 F.2d 675, 678 (1st Cir.1993).
Peterson contends that the district court erred by denying his motion for
a mistrial under Rule
16 of the Federal Rules of Criminal Procedure and Brady
v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), based
on the government's failure to disclose pretrial a laboratory report that
showed that the CORSICA's carpet tested negative for marijuana and THC.
During the government's direct examination of one of its witnesses, the
witness disclosed for the first time the existence
of a laboratory test showing that the CORSICA's carpet tested negative
for the presence of marijuana and THC. The defendants objected to this
testimony, but the test was admitted into evidence and the defendants were
provided with a copy of the test for the first time.
We will reverse the district court's denial of Peterson's motion for a
mistrial based on the alleged Brady
violation only if the district court abused its discretion. See United
States v. Devin, 918 F.2d 280, 289- 90 (1st Cir.1990). In the case
of delayed disclosure, we examine whether Peterson's " 'counsel was prevented
by the delay from using the disclosed material effectively in preparing
and presenting' " Peterson's case. See *556
States v. Catano, 65 F.3d 219, 227 (1st Cir.1995) (quoting United
States v. Ingraldi, 793 F.2d 408, 411-12 (1st Cir.1986)). We find that
the district court did not abuse its discretion because Peterson's counsel
effectively used the report during the presentation of Peterson's case.
as: 168 F.3d 548, *556)
counsel effectively cross-examined the government witness who disclosed
the report, and used the test results in its closing argument. See Catano,
65 F.3d at 227. Peterson's counsel did not attempt to recall any of
the government's earlier witnesses. In addition, Peterson's counsel failed
to request a continuance, indicating that she was not prejudiced by the
delayed disclosure. See United
States v. Innamorati, 996 F.2d 456, 480 (1st Cir.1993); Ingraldi,
793 F.2d at 411-12.
Peterson contends that the district court erred by failing to ask all potential
jurors about any positive bias they might have held toward the testimony
of law enforcement officers. However, this bias inquiry was requested with
respect to only two prospective jurors, and the district court made the
requested inquiry in both instances. Because Peterson failed to make this
request with respect to all prospective jurors, we review this issue only
for plain error. See United
States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
decline to adopt a rule requiring trial courts to make a routine inquiry
into the possible bias all prospective jurors might have toward law enforcement
testimony because it would "establish a per se rule that is simply inconsistent
with the broad deference traditionally and wisely granted trial courts
in their conduct of voir dire." See United
States v. Lancaster, 96 F.3d 734, 740-41 (4th Cir.1996) (en banc);
see also United
States v. Gonzalez-Soberal, 109 F.3d 64, 69 (1st Cir.1997) (giving
substantial deference to district court's conduct of voir dire); United
States v. Medina, 761 F.2d 12, 20 (1st Cir.1985) (giving trial court
broad discretion in conduct of voir dire). Because the district court did
not err, there was no plain error.
reliance on United
States v. Victoria-Peguero, 920 F.2d 77 (1st Cir.1990), United
States v. Anagnos, 853 F.2d 1 (1st Cir.1988), and United
States v. Pappas, 639 F.2d 1 (1st Cir.1980), is misplaced because in
each of those cases the defendant's counsel specifically requested the
judge to make the bias inquiry, and the judge refused to do so. As stated
above, Peterson's counsel made that request with respect to only two jurors,
and the district court complied with both requests.
Peterson contends that the district court erred by refusing to instruct
the jury not to give greater credibility to the testimony of government
agents than to the testimony of nongovernment witnesses. We review the
district court's jury instructions for abuse of discretion, "to determine
whether the charge, taken as a whole fairly and adequately submit[s] the
issues in the case to the jury." United
States v. Roberts, 119 F.3d 1006, 1016 (1st Cir.1997) (citation omitted).
The district court did not err.
never proposed a jury instruction on the credibility of law enforcement
witnesses. Cardales, however, orally requested that the court give "the
pattern instruction for the Fifth Circuit or the one in Devitt & Blackmar
for law enforcement witnesses." Neither one of these two sources, however,
contains an instruction on the credibility of law enforcement witnesses.
The district court could not have erred by refusing to give a nonexistent
if one of the defendants had submitted a credibility instruction, the district
court would not have abused its discretion by denying it. The district
court instructed the jury that it was the sole judge of the credibility
of the witnesses, and that in evaluating the credibility of a witness it
should consider whether the witness had any relationship with the government
or the defense. Taken as a whole, the district court's instructions fairly
and adequately submitted the case to the jury. See United
States v. Angiulo, 897 F.2d 1169, 1208 (1st Cir.), cert. denied, *557
U.S. 845, 111 S.Ct. 130, 112 L.Ed.2d 98 (1990). The district court's
instructions were therefore proper.
Peterson contends that the district court abandoned its role of judicial
neutrality and therefore deprived him of his right to a fair trial by striking
the defendant's opening statement and by asking witnesses misleading and
one-sided questions. We will find judicial bias only if a reading of the
entire record leaves us with an abiding impression that the judge substantially
intervened. See U.S.
v. Cruz-Paulino, 61 F.3d 986, 997 (1st Cir.1995); United
States v. Twomey, 806 F.2d 1136, 1141 (1st Cir.1986). Upon a careful
review of the entire record, we are left with no abiding impression of
contends that the district court made a series of erroneous evidentiary
rulings, the cumulative effect of which denied Peterson his right to a
fair trial. We review each of the district court's evidentiary rulings
for abuse of discretion, and then examine Peterson's cumulative error claim.
v. Drake, 146 F.3d 44, 46 (1st Cir.1998). The district court did not
abuse its discretion.
as: 168 F.3d 548, *557)
First, Peterson contends that the district court erred by denying his motion
in limine to exclude evidence of his prior deportation from Puerto Rico.
Peterson's unlawful entry into Puerto Rico was relevant to show Peterson's
character for truthfulness, and was therefore admissible to impeach Peterson
on cross-examination. [FN6] See Fed.R.Evid.
608(b); cf. United
States v. Cambindo Valencia, 609 F.2d 603, 633-34 (2d Cir.1979). The
district court, therefore, did not err by denying Peterson's motion in
Peterson's counsel asked Peterson about his prior deportation during direct
examination. The government did not mention Peterson's prior deportation
during the trial.
Second, Peterson contends that the district court erred by preventing his
trial counsel from refreshing the recollection of one of the government's
witnesses. However, the district court merely prevented Peterson's counsel
from repeatedly and improperly asking, "Has your recollection
been refreshed?" to impeach the government's witness when the witness had
never indicated that he did not recall his previous statements. The district
court did not otherwise prevent Peterson's counsel from legitimately refreshing
the recollection of this witness.
Third, Peterson contends that the district court erred by permitting the
government to refresh the recollection of one of its witnesses during redirect
examination. The district court did not abuse its discretion when, after
Officer Epps testified that his report did not mention a field test on
a marijuana stem, it allowed the government to refresh Epps' recollection
by showing Epps his report indicating that he had field tested a marijuana
stem. Cf. United
States v. Carroll, 105 F.3d 740, 742 (1st Cir.) (refreshing recollection
by reading reports of interviews given to FBI agents), cert. denied, 520
U.S. 1258, 117 S.Ct. 2424, 138 L.Ed.2d 187 (1997).
Fourth, Peterson contends that the district court erred by not permitting
Peterson to refresh the recollection of one of the government's witnesses
during cross examination. The district court did not abuse its discretion
when it denied Peterson's request to refresh Officer Langevin's recollection
with log books Langevin did not prepare when Langevin could not recall
whether Epps had field tested a piece of cardboard or some other material.
States v. Boyd, 606 F.2d 792, 794 (8th Cir.1979); cf. NLRB
v. Federal Dairy Co., 297 F.2d 487, 489 n. 3 (1stCir.1962)
(forbidding misuse of written aids).
Fifth, Peterson contends that the district court erred by allowing one
of the government's witnesses to testify about corroborating evidence of
the defendant's guilt. The district court did not err by permitting Officer
Taravela to testify about the corroborating evidence because Cardales'
counsel asked Taravela about the cause for the defendants' arrests, thereby
opening the door for the government to explore on redirect the grounds
for the arrests. Cf. *558
States v. Ariza-Ibarra, 605 F.2d 1216, 1226 (1st Cir.1979).
as: 168 F.3d 548, *558)
we find that the district court did not err in any of the evidentiary rulings
challenged on appeal, Peterson's cumulative error argument necessarily
Peterson contends that the district court erred by enhancing his sentence
§ 3C1.1 for obstruction of justice based on a finding of perjury.
We will reverse the district court's obstruction of justice sentencing
enhancement only if the district court clearly erred in finding that Peterson
committed perjury. See United
States v. McKeeve, 131 F.3d 1, 15 (1st Cir.1997). The district court
did not err.
The district court found that Peterson had committed perjury when he testified
that he had been hired to search for a lost boat in the area where the
helicopter crew spotted the CORSICA. The court found unbelievable the story
that Peterson, who claimed to be a salesman, had been hired to travel such
a great distance to conduct a less-than-two-hour search for the allegedly
missing boat, that the missing boat happened to get lost in an area conducive
to drug trafficking, and that Peterson's knowledge of the CORSICA was deficient.
[FN7] See United
States v. Matiz, 14 F.3d 79, 84 (1st Cir.1994) (defining elements of
perjury as "falsity, materiality, and willfulness"). Thus, the district
court did not err by enhancing Peterson's sentence for obstruction of justice.
§ 3C1.1, application note 1 (including as obstruction of justice
"a denial of guilt under oath that constitutes perjury").
For example, Peterson did not know how many gallons of fuel the CORSICA
was carrying or how many miles the CORSICA could travel.
argument that the district court enhanced his sentence merely for being
convicted after testifying in his defense is without merit. The district
court specifically stated that it was not enhancing Peterson's sentence
on that improper basis, and engaged in a detailed discussion of the perjurious
nature of Peterson's testimony.
on the foregoing, we affirm the judgment of the district court.
(C) West 1999 No Claim to Orig. U.S. Govt. Works