United States v. Aundel Benoit , 730 F.3d 280 ( 2013 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-2942
___________
UNITED STATES OF AMERICA
v.
AUNDEL BENOIT,
Appellant
_______________________
On Appeal from the District Court
of the Virgin Islands
D.C. Criminal No. 3-10-cr-00039-001
(Honorable Curtis V. Gomez)
______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 23, 2013
Before: MCKEE, Chief Judge, SCIRICA, and VANASKIE,
Circuit Judges
(Filed: September 19, 2013)
Joseph A. DiRuzzo, III, Esq.
Fuerst Ittleman David & Joseph
1001 Brickell Bay Drive
32nd Floor
Miami, FL 33131
Counsel for Appellant
Nelson L. Jones, Esq.
Office of United States Attorney
5500 Veterans Building, Suite 260
United States Courthouse
Charlotte Amalie, St. Thomas, VI 00802-6924
Counsel for Appellee
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
Aundel Benoit appeals his conviction for aiding and
abetting and conspiracy to possess with intent to distribute
five kilograms or more of cocaine while on a vessel subject to
United States jurisdiction. We will affirm the judgment of
conviction and sentence.
I.
On April 12, 2010, the vessel “Laurel” was intercepted
in international waters by the United States Coast Guard.
Benoit, who has dual citizenship with the United States and
2
Grenada, was the master of the Laurel. The Laurel was
registered in the United States.
The U.S. Coast Guard had received information from
the U.S. Drug Enforcement Administration, who learned from
British Virgin Island law enforcement authorities, who in turn
learned from Grenadian law enforcement authorities, that the
Laurel may be smuggling illegal narcotics. On the basis of
this information, a law enforcement detachment from the U.S.
Coast Guard cutter “Reef Shark” boarded the Laurel to
investigate. Officers proceeded to conduct a routine safety
inspection, which the Laurel passed. Officers then attempted
to conduct an at-sea space accountability inspection, 1 but
were unable to complete it because rough waters made areas
of the vessel inaccessible. On board, Officer Riemer
questioned Benoit and his crew, Williams, about their
destination and purpose for travel. Officer Riemer also
conducted several ION scan swipes of the vessel. 2 None of
1
Coast Guard Officer Robert Riemer testified at the
suppression hearing that a space accountability inspection
consists of . . . taking measurements of the boat,
both exterior, interior, accounting for the length
of the boat, the width of the boat, the
dimensions of each compartment in the boat.
The reason that’s done is to try to
determine if there’s [sic] any hidden
compartments or spaces where contraband
might be secreted away.
J.A. vol. II, JA53-54.
2
Officer Riemer explained at the suppression hearing that
[w]hen you conduct an ION scan, you
take a small piece of filter paper and you’ll take
3
the swipes came back positive for any explosive, contraband,
or narcotics.
Due to low fuel, the Reef Shark detachment handed
over boarding to a second Coast Guard cutter, the “Farrallon.”
Officers from the Farrallon conducted their own safety
inspection but were still unable to complete the space
accountability inspection due to rough seas. On board,
Lieutenant Mark Aguilar questioned Benoit about his voyage.
Benoit provided inconsistent responses. Lieutenant Aguilar
also performed ION scan swipes throughout the vessel, which
came back negative.
The Farrallon then directed the Laurel to the nearest
U.S. port: King’s Wharf, St. Thomas, Virgin Islands. Once
there, a Customs and Border Protection (CBP) canine was
brought on board the Laurel and alerted to the presence of
narcotics. The next day, on April 13, 2010, officers again
attempted to perform a space accountability inspection but
could not get access to all areas of the vessel. In light of these
developments, officers directed Benoit to sail the Laurel to
a section of the boat, say ten foot by ten foot, . .
. and you’ll run the piece of filter paper across
that surface.
Then you’ll package it in a Ziploc bag,
label each individual Ziploc bag of where you
tested, and then that’s sent to the [Coast Guard
cutter] Reef Shark. The Reef Shark has a device
on board that allows it to test those pieces of
filter paper for traces of narcotics, contraband
and explosives.
J.A. vol. II, JA52-53.
4
Independent Boat Yard in St. Thomas so that CBP could use
a Vehicle and Container Inspection System (VACIS) machine
to search for anomalies in the vessel. After arriving at
Independent Boat Yard, a second canine was brought on
board the Laurel. It too alerted to the presence of narcotics in
the same area as the first canine. Significantly, a search by the
VACIS machine showed anomalous masses mid-ship and in
the stern. A CBP officer drilled a hole in the stern and found a
substance that field-tested positive for cocaine. Officers cut a
larger hole in the stern, revealing an area filled with brick-like
packages. These 250 packages were placed in boxes, turned
over to CBP, and secured in an evidence vault. Shortly
thereafter, these boxes were turned over to the DEA for
delivery to the DEA Southeast Laboratory for analysis.
Laboratory tests revealed the bricks were cocaine
hydrochloride with a net weight of 250.9 kilograms.
Benoit and Williams were indicted on three counts: (1)
conspiracy to possess with intent to distribute five kilograms
or more of cocaine while on a vessel subject to the
jurisdiction of the United States (46 U.S.C. §§ 70503(a)(1),
70506(a), 70506(b); 21 U.S.C. § 841(a)(1), 841(b)(1)(A)(ii));
(2) aiding and abetting possession with intent to distribute
five kilograms or more of cocaine while on a vessel subject to
the jurisdiction of the United States (46 U.S.C. §§ 70503(a),
70506(a); 18 U.S.C. § 2; 21 U.S.C. §§ 960(b)(1)(B)(ii),
841(a)(1), 841(b)(1)(A)(ii)); and (3) attempted importation of
cocaine (21 U.S.C. §§ 846, 952(a), 960(b)(1)(B)(ii), 963).
Benoit and Williams moved to suppress their arrests and all
evidence found on the vessel, alleging violations of the
Fourth Amendment. After the District Court denied the
motion, defendants filed a second motion to suppress,
alleging their Fourth Amendment rights were violated in the
5
receipt of evidence obtained from Grenadian authorities. That
motion was also denied.
Benoit was found guilty on Counts One and Two 3 and
was sentenced to 240 months’ imprisonment, five years’
supervised release, and a $200 special assessment.
II.
On appeal, Benoit asserts the court erred by (A)
denying his motion to suppress evidence of his arrest and of
the narcotics found on the Laurel and his motion to suppress
evidence obtained from Grenadian authorities, (B) denying
his motion for acquittal, and (C) denying his motion for
mistrial due to a statement made by the prosecutor in
summation. 4
A.
Benoit contends his arrest and the search of the Laurel
were based on an “anonymous tip” from Grenadian law
enforcement authorities and that the government did not
proffer evidence as to the factual basis for, or the reliability
of, this tip. Benoit also contends the government failed to
establish that it obtained evidence properly pursuant to the
terms of the Mutual Legal Assistance Treaty between the
United States and Grenada. 5
3
The government dismissed Count 3 against Benoit.
4
We have jurisdiction under 28 U.S.C. § 1291. The District
Court had jurisdiction under 18 U.S.C. § 3231.
5
“We review a district court’s order denying a motion to
suppress under a mixed standard of review. We review
6
1.
Benoit contends officers violated his Fourth
Amendment rights by arresting him and searching his vessel
without probable cause. We will assume, for the purpose of
our discussion, that the Fourth Amendment applies when a
U.S. citizen is subject to a search by U.S. officers on
international waters. Cf. United States v. Boynes, 149 F.3d
208, 212 (3d Cir. 1998) (assuming, arguendo, that the Fourth
Amendment governs searches of U.S. citizens in foreign
countries by U.S. officials). Moreover, we will assume that
Benoit has standing to assert a privacy interest in the part of
the vessel where the illegal narcotics were found. 6
Congress has granted the U.S. Coast Guard broad
authority to board vessels on the open seas. Section 89(a) of
Title 14 of the United States Code provides that for the
purposes of preventing, detecting, and suppressing violations
of laws of the United States, “officers may at any time go on
board of any vessel subject to the jurisdiction, or to the
findings of fact for clear error, but we exercise plenary review
over legal determinations.” United States v. Lewis, 672 F.3d
232, 236-37 (3d Cir. 2012) (citation omitted).
6
We have not ruled on whether the captain of a ship has a
constitutionally protected privacy interest in a secret
compartment located in the stern of a vessel. Cf. United States
v. Varlack Ventures, Inc., 149 F.3d 212, 215 (3d Cir. 1998)
(“Third Circuit precedent is inconclusive regarding whether
the captain of a ship can have a reasonable expectation of
privacy in the public areas of his vessel . . . , and an analysis
of explicit positions taken by our sister courts of appeals on
this issue fails to reveal any consistent doctrine.”).
7
operation of any law, of the United States, address inquiries
to those on board, examine the ship’s documents and papers,
and examine, inspect, and search the vessel and use all
necessary force to compel compliance.” This statute has been
construed to permit the Coast Guard to stop an American
vessel in order to conduct “a document and safety inspection
on the high seas, even in the absence of a warrant or suspicion
of wrongdoing,” United States v. Hilton, 619 F.2d 127, 131
(1st Cir. 1980), and to conduct a more intrusive search on the
basis of reasonable suspicion, see United States v. Wright-
Barker, 784 F.2d 161, 176 (3d Cir. 1986) (holding that “a
reasonable suspicion requirement for searches and seizures on
the high seas survives Fourth Amendment scrutiny”),
superseded by statute on other grounds as recognized in
United States v. Martinez-Hidalgo, 993 F.2d 1052, 1056 (3d
Cir. 1993); see also United States v. Varlack Ventures, Inc.,
149 F.3d 212, 216-17 (3d Cir. 1998) (“We have previously
joined our sister courts of appeals in interpreting section 89(a)
to allow searches of vessels for criminal activities based upon
reasonable suspicion of criminal activity.”). 7
7
In Wright-Barker, we noted that the Fifth Circuit held the
Constitution requires “reasonable suspicion in order to search
private areas of the hold.” 784 F.2d at 176 n.14 (citing United
States v. Williams, 617 F.2d 1063, 1087 (5th Cir. 1980) (en
banc)). We nonetheless posited that “an argument may be
made that searches on the high seas may be conducted on
even less cause than reasonable suspicion.” Id. However,
since reasonable suspicion existed in Wright-Barker, we did
not have occasion then—nor have we had occasion since—to
“decide whether any lesser standard is constitutionally
permissible when vessels are seized and searched due to
suspicion of contraband smuggling.” Id.
8
Reasonable suspicion, in turn, “‘must be more than a
mere generalized suspicion or hunch. Reasonable suspicion
must be based on specific articulable facts, together with
rational inferences drawn from those facts, which reasonably
warrant suspicion of criminal activity. Law enforcement
officers may subjectively assess those facts in light of their
expertise.’” Varlack Ventures, Inc., 149 F.3d at 217 (citations
omitted) (quoting United States v. Roy, 869 F.2d 1427, 1430
(11th Cir. 1989)). “[W]e examine the totality of the
circumstances to determine reasonable suspicion . . . .” Id.
(quoting Roy, 869 F.2d at 1430).
Benoit contends the Coast Guard did not have
reasonable suspicion because officers stopped the Laurel on
the basis of an anonymous tip that lacked any indicia of
reliability. The record does not reflect the basis for Grenadian
authorities’ belief that the Laurel was smuggling contraband.
Regardless, we find it was reasonable for the U.S. Coast
Guard to rely on the information received by Grenadian
authorities.
In United States v. Mathurin, Immigration and
Customs Enforcement agents conducted a search on the basis
of a tip they received from a Customs and Border Protection
aircraft. 561 F.3d 170, 171-72 (3d Cir. 2009). In considering
the defendant’s challenge that the tip was not sufficiently
reliable to justify the search, we explained that “[w]e need not
undertake the established legal methods for testing the
reliability of this tip because a tip from one federal law
enforcement agency to another implies a degree of expertise
and a shared purpose in stopping illegal activity, because the
agency’s identity is known.” Id. at 176. The instant case
presents a similar situation because the information on which
9
the U.S. Coast Guard relied came from authorities with whom
our country has a working relationship to prevent drug
trafficking. See Agreement Concerning Maritime Counter-
Drug Operations, U.S.-Gren., ¶ 1, May 16, 1995, T.I.A.S.
12648 (declaring that the United States and Grenada “shall
cooperate in combatting illicit maritime drug traffic to the
fullest extent possible”). 8
Moreover, the information from Grenadian authorities
passes muster even if we were to apply “established legal
methods for testing [it’s] reliability.” Mathurin, 561 F.3d at
176. The working relationship between Grenada and the
United States bolsters the credibility of the information, since
the Grenadian authorities’ “reputation can be assessed,” and
they “can be held responsible if [their] allegations turn out to
be fabricated.” Florida v. J.L., 529 U.S. 266, 270 (2000). And
as the Supreme Court has explained,“[i]nformants’ tips . . .
may vary greatly in their value and reliability. One simple
rule will not cover every situation. . . . [I]n some situations[,] .
. . when a credible informant warns of a specific impending
crime[, ]the subtleties of the hearsay rule should not thwart an
appropriate police response.” Adams v. Williams, 407 U.S.
143, 147 (1972). Given that the source here was not only
known to the DEA, but was also a repeat-player in the United
States’ efforts at drug-trafficking prevention, we hold the
information had sufficient indicia of reliability to establish
reasonable suspicion that the Laurel was transporting
narcotics.
8
We may take judicial notice of a treaty and its terms. United
States ex rel. Reichel v. Carusi, 157 F.2d 732, 733 (3d Cir.
1946).
10
In addition, other factors—which became apparent
after the Coast Guard lawfully boarded the Laurel to conduct
a routine document and safety inspection—gave rise to
reasonable suspicion to search. As the District Court
explained, Benoit’s conversations with Coast Guard officers
“left the Coast Guard—or certainly would leave the
reasonable observer with some doubt as to the reliability of
the information obtained, because some of the information
was suspicious, or otherwise there were some inconsistencies
that gave the agents some pause.” J.A. vol. II, JA239; see also
United States v. Davis, 636 F.3d 1281, 1291 (10th Cir. 2011)
(“Our cases have identified a number of factors that may
contribute to an officer’s reasonable suspicion of illegal
activity justifying detention. One factor is an individual’s
internally inconsistent statements . . . regarding travel
plans.”). The District Court did not err in crediting Lieutenant
Aguilar’s testimony and finding that Benoit made inconsistent
statements regarding the purpose and destination of his
voyage. 9 See United States v. Igbonwa, 120 F.3d 437, 441 (3d
9
According to testimony at the suppression hearing, Officer
Riemer first asked questions of Benoit and Williams. When
the Farrallon detachment replaced the Reef Shark
detachment, Lieutenant Aguilar asked questions of Benoit
and Williams. Aguilar testified the following discrepancies
occurred:
• Benoit told Officer Riemer that in order to pick up spare
parts for the vessel’s generator, he was headed to Virgin
Gorda. Benoit told Lieutenant Aguilar he was headed to
Tortola for this purpose.
11
Cir. 1997) (explaining that the clearly erroneous standard of
review “is more deferential with respect to determinations
about the credibility of witnesses,” particularly “when the
district court’s decision is based on testimony that is coherent
and plausible”).
Thus, the information from Grenadian authorities and
defendant’s inconsistent statements were sufficient to
establish reasonable suspicion that supported the officers’
decision to briefly detain the Laurel and search the vessel for
contraband. And since officers had reasonable suspicion to
suspect contraband on board the Laurel but rough seas
prevented them from completing an inspection that would
confirm or dispel their suspicion, the officers acted properly
in detaining the Laurel at King’s Wharf, approximately fifty
miles from the original detention site, for the reasonable
amount of time it took to complete their search. Cf. United
• Benoit stated the vessel departed from Grenada on April
9th, but a customs document on board stated the vessel
was cleared on April 7th.
• Benoit claimed that after obtaining spare parts, his final
destination was the Dominican Republic. He stated he
was going there to visit family and to look for artists for
the next year’s jazz festival. Lieutenant Aguilar inquired
after Benoit’s family and learned that most of his
relatives lived in Grenada or the United States.
Lieutenant Aguilar then asked whom in Benoit’s family
actually lived in the Dominican Republic. In response,
Benoit stated he was going to the Dominican Republic
to check on a house they recently built there, to see
friends, and to look for artists for next year’s jazz
festival.
12
States v. Lopez, 761 F.2d 632, 637-38 (11th Cir. 1985)
(finding that once officers had probable cause to search a
vessel, it was not unreasonable to ask the crew of the vessel to
travel to a harbor forty miles away in order to conduct the
search).
Once at King’s Wharf, a canine positively alerted to
the presence of narcotics on board the Laurel. And officers
again attempted but were unable to account for all spaces on
the vessel. These factors prompted officers to x-ray the
vessel. The anomalous masses identified by the x-ray then led
a CBP officer to drill into the stern, where he discovered a
substance that field-tested positive for cocaine. We find that
law enforcement acted appropriately at each of these steps in
the investigation. “In the maritime context, the relative
intrusiveness of a search must be justified by a corresponding
level of suspicion supported by specific facts gathered by
investigating officials.” United States v. Cardona-Sandoval, 6
F.3d 15, 23 (1st Cir. 1993). In this case, following Lieutenant
Aguilar’s interview with Benoit, every action taken by law
enforcement confirmed, rather than dispelled, officers’
reasonable suspicions and provided the basis for more
intrusive searches of the vessel. 10 The most invasive action
10
Since Benoit did not provide any information about the
reliability of ION scans, we cannot find that reasonable
suspicion was dispelled by the negative results to those tests.
Cf. United States v. Ten Thousand Seven Hundred Dollars &
No Cents in U.S. Currency, 258 F.3d 215, 231 (3d Cir. 2001)
(rejecting the evidentiary significance of ION scan evidence
where proffering party failed to explain the reliability of the
test or why results were scientifically significant, among other
things).
13
taken by law enforcement—drilling into the stern of the
vessel—was proper under the circumstances. The Court of
Appeals for the First Circuit held in a similar context that
“‘reasonable suspicion’ may be formed on the basis of facts
obtained during the safety and document inspection, and once
reasonable suspicion exists the inspecting officers may drill
into a suspicious area to search for contraband.” Cardona-
Sandoval, 6 F.3d at 23.
In summary, we find both the seizure of Benoit and the
search of the Laurel were supported by reasonable suspicion.
We also agree with the District Court that once the canine
alerted to the presence of narcotics on the vessel, probable
cause existed to arrest Benoit. 11 Cf. United States v. Massac,
11
The record shows that Benoit was placed in the back of a
CBP vehicle upon his arrival at Independent Boat Yard,
which occurred after a canine positively alerted to the
presence of narcotics. The District Court determined he was
not free to leave at this point and had effectively been
arrested. The record is unclear as to whether Benoit was free
to leave at other points during his encounter with law
enforcement authorities. Regardless, the temporary detention
of Benoit was reasonable under the circumstances.
Investigatory stops on the high seas present unique challenges
that the Fourth Amendment may accommodate, particularly
when the safety of law enforcement and/or the vessel’s
occupants is at stake. The District Court found the officers
were unable to complete their space accountability inspection
on the high seas. Ample testimony supported this finding.
Given the circumstances, the officers acted properly by
detaining Benoit and the Laurel at a nearby harbor in order to
complete the inspection. Cf. United States v. Roberson, 90
14
867 F.2d 174, 176 (3d Cir. 1989) (“When the alert was given
by the dog, we are satisfied that, at least when combined with
the other known circumstances, probable cause existed to
arrest.”). For these reasons, the District Court did not err in
denying Benoit’s motion to suppress his arrest and the
evidence seized on the vessel.
2.
Benoit also contends the government did not abide by
the Mutual Legal Assistance Treaty (MLAT) in place
between the United States and Grenada in obtaining certain
evidence from Grenadian authorities. On this theory, Benoit
sought to have the evidence obtained from Grenadian
authorities suppressed in the District Court.
The Supreme Court has explained that for the
exclusionary rule to apply, a constitutional violation must
have been a but-for cause of obtaining the evidence in
question. See Hudson v. Michigan, 547 U.S. 586, 592 (2006);
see also United States v. Calandra, 414 U.S. 338, 347 (1974)
(explaining the purpose of the exclusionary rule is to deter
constitutional violations, not redress injury to a search
victim). Benoit has not offered any controlling or persuasive
authority applying the exclusionary rule to a putative
violation of the MLAT. Moreover, we note that the MLAT
explicitly states it confers no private rights. See Mutual Legal
Assistance in Criminal Matters, U.S.-Gren., art. 1, ¶ 4, May
F.3d 75, 77 (3d Cir. 1996) (explaining law enforcement may,
upon reasonable suspicion, stop and temporarily detain
citizens short of an arrest (citing Terry v. Ohio, 392 U.S. 1
(1968))).
15
30, 1996, S. Treaty Doc. No. 105-24 (“The provisions of this
Treaty shall not give rise to a right on the part of any private
person to obtain, suppress, or exclude any evidence . . . .”).
Benoit’s attempt to tie an alleged MLAT violation to a
violation of his Fourth Amendment rights also fails. Benoit
concedes that generally the Fourth Amendment does not
apply to acts of foreign law enforcement, but cites two
exceptions to this rule from other circuits—when the actions
of the foreign officials shock the conscience of the court, see
Birdsell v. United States, 346 F.2d 775, 782 n.10 (5th Cir.
1965), or when the foreign officials were acting as agents of
the United States, see United States v. LaChapelle, 869 F.2d
488, 489-90 (9th Cir. 1989). Since Benoit alleges that
Grenadian authorities may have obtained the evidence at
issue in a constitutionally impermissible fashion under one of
these exceptions, Benoit asserts that “the Government must
establish that said evidence was obtained in a manner
consistent with the U.S. Constitution.” Br. for Appellant
Aundel Benoit 32.
Benoit is mistaken in his assertion of the burden of
proof. “As a general rule, the burden of proof is on the
defendant who seeks to suppress evidence.” United States v.
Johnson, 63 F.3d 242, 245 (3d Cir. 1995). Only “once the
defendant has established a basis for his motion” does the
burden shift to the government to show the search was
reasonable. Id.; see also United States v. Randle, 966 F.2d
1209, 1212 (7th Cir. 1992) (“A defendant who seeks to
suppress evidence bears the burden of making a prima facie
showing of illegality. Reliance on vague, conclusory
allegations is insufficient.” (citation omitted)). In this case,
Benoit has not fulfilled his burden of establishing a basis for
16
his motion; he has offered nothing but conclusory allegations
that Grenadian authorities may have acted improperly in
obtaining the information at issue. Thus, the District Court
did not err in denying Benoit’s second motion to suppress
evidence.
B.
Benoit contends the District Court erred in denying his
motion for acquittal. He asserts that no reasonable jury could
have found him guilty beyond a reasonable doubt on either
count because (1) the evidence failed to establish that the
substance seized from the Laurel was cocaine, and (2) the
evidence failed to establish that he knew and agreed to
participate in a specific legal objective. 12
1.
Benoit contends the government’s evidence did not
show beyond a reasonable doubt that the substance seized
from his vessel was cocaine. Benoit takes issue with the chain
of custody and the fact that no cocaine was introduced into
evidence.
12
Our review of a district court’s denial of a motion for
acquittal based on sufficiency of the evidence is plenary.
United States v. Silveus, 542 F.3d 993, 1002 (3d Cir. 2008).
“Hence, we apply a particularly deferential standard of
review, viewing the record in the light most favorable to the
prosecution to determine whether any rational trier of fact
could have found proof of guilt beyond a reasonable doubt
based on the available evidence.” Id. (citations and quotation
marks omitted).
17
We have explained that
[t]o establish a chain of custody, the
government need only show that it took
reasonable precautions to preserve the evidence
in its original condition, even if all possibilities
of tampering are not excluded. Absent actual
evidence of tampering, a trial court may
presume regularity in public officials’ handling
of contraband. Unless the trial court clearly
abused its discretion, we must uphold its
decision to admit the cocaine base into
evidence.
United States v. Dent, 149 F.3d 180, 188-89 (3d Cir. 1998)
(citations omitted).
In this case, there was ample testimony regarding the
chain of custody. However, Benoit asserts that one person in
the chain of custody did not testify. At trial, DEA Agent
Curtis Lilley testified that he delivered the fourteen boxes of
narcotics seized from the Laurel, labeled with DEA case
number KS10-0011, to lab personnel at the DEA Southeast
Laboratory. Carolyn Hudson, a forensic chemist at the lab,
testified that pursuant to usual practice, she received the
fourteen boxes from an evidence technician at the lab and
prepared a label for the boxes that included the same case
number assigned by the DEA. Hudson also testified that the
boxes were sealed when she received them and there was no
evidence of tampering or alteration. Benoit did not proffer
any evidence to the contrary. Hudson then testified that she
analyzed the substance in the boxes and determined it to be
cocaine hydrochloride with a net weight of 250.9 kilograms.
18
Given this testimony, the trial court did not abuse its
discretion in finding that chain of custody had been
adequately established. See United States v. Rawlins, 606
F.3d 73, 84-85 (3d Cir. 2010) (finding “none of the chains at
issue was so deficient that there was no ‘rational basis’ for
concluding that the evidence was what the government
claimed,” where the government failed to proffer evidence as
to how or from whom a DEA chemist received the substance
that she determined to be cocaine). Because the evidence of
chain of custody was sufficient, and Hudson testified the
substance in the fourteen boxes was cocaine hydrochloride,
the government did not need to submit the cocaine into
evidence. See Griffin v. Spratt, 969 F.2d 16, 22 n.2 (3d Cir.
1992) (“Identification of a controlled substance does not
require direct evidence if available circumstantial evidence
establishes its identity beyond a reasonable doubt.” (quoting
United States v. Harrell, 737 F.2d 971, 978 (11th Cir.1984))).
The District Court did not abuse its discretion in finding the
chain of custody evidence sufficient to support a conviction.
2.
Benoit contends the government’s evidence did not
show beyond a reasonable doubt that he knew of and agreed
to participate in a specific legal objective. In particular,
Benoit asserts the government failed to show that he knew
narcotics were the object of the conspiracy. 13
13
“To prove a conspiracy, the government must show: (1) a
shared unity of purpose; (2) an intent to achieve a common
illegal goal; and (3) an agreement to work toward that goal.
The government must establish each element beyond a
reasonable doubt. It may do so with direct or circumstantial
19
We recently clarified the standard of review for
sufficiency of the evidence challenges in this context. See
United States v. Caraballo-Rodriguez, No. 11-3768, 2013
U.S. App. LEXIS 16407, at *4 (3d Cir. Aug. 8, 2013) (en
banc). We explained that we must “examine[] the record in
each case to determine whether the government put forth
‘drug-related evidence, considered with the surrounding
circumstances, from which a rational trier of fact could
logically infer that the defendant knew a controlled substance
was involved in the transaction at issue.’” Id. at *19 (quoting
United States v. Boria, 592 F.3d 476, 481 (3d Cir. 2010)).
However, we emphasized that “‘the government may
circumstantially establish the element of knowledge grain-by-
grain until the scale finally tips.’” Id. (quoting United States
v. Claxton, 685 F.3d 300, 310 (3d Cir. 2012)). Most
importantly, we clarified that
our role as a reviewing court is to uphold the
jury verdict—and not to usurp the role of the
jury—as long as it passes the “bare rationality”
test. Reversing the jury’s conclusion simply
because another inference is possible—or even
equally plausible—is inconsistent with the
proper inquiry for review of sufficiency of the
evidence challenges, which is that “[t]he
evidence does not need to be inconsistent with
every conclusion save that of guilt if it does
evidence. Circumstantial inferences drawn from the evidence
must bear a logical or convincing connection to established
fact.” United States v. Caraballo-Rodriguez, No. 11-3768,
2013 U.S. App. LEXIS 16407, at *17-18 (3d Cir. Aug. 8,
2013) (en banc) (citations and quotation marks omitted).
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establish a case from which the jury can find the
defendant guilty beyond a reasonable doubt.”
Id. at *39 (alteration in original) (quoting United States v.
Cooper, 567 F.2d 252, 254 (3d Cir. 1977)).
In the instant case, the circumstantial evidence
presented by the government was sufficient for a rational jury
to decide that “‘the scale finally tip[ped].’” Id. at *45
(alteration in original) (quoting United States v. Iafelice, 978
F.2d 92, 98 (3d Cir. 1992)). The evidence suggested that
Benoit had owned the Laurel for several years and that certain
alterations had been made to it. Given the relatively small size
of the Laurel and the amount of cocaine it was transporting,
the jury could have reasoned that Benoit, as the Laurel’s
master, would have known there were illegal narcotics on
board. The jury may also have found Benoit’s inconsistent
statements probative of his criminal intent.
Moreover, in Iafelice, which we cited with approval in
Caraballo-Rodriguez, we faced a similar scenario involving
the transportation of narcotics in an automobile. We
explained that
ownership and operation of the vehicle used to
transport the drugs . . . . are highly relevant facts
that could reasonably have been considered by a
jury in evaluating [the defendant’s] knowledge
of, and dominion and control over, the drugs.
Common sense counsels that an owner and
operator of a vehicle usually has dominion and
control over the objects in his or her vehicle of
which he or she is aware, and usually knows
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what is in that vehicle.
Iafelice, 978 F.2d at 97. The same holds true here. See
Wright-Barker, 784 F.2d at 171 (“[A] captain is likely to
know the contents of his ship.”).
In short, we will uphold the decision of the jury given
that there was sufficient circumstantial evidence for the jury
to rationally infer that Benoit knew the object of the
conspiracy was a controlled substance.
C.
Benoit contends the District Court erred in denying his
motion for a mistrial due to the government’s improper
statement during summation.
During summation, the prosecutor stated the Coast
Guard had “just saved this country from 250 kilograms” of
cocaine. J.A. vol. III, JA898. Defense counsel objected and
moved for a mistrial. The court denied the motion and gave a
curative instruction to the jury, stating
[Y]ou just heard a little while ago, a reference
to saving the country from 250 kilograms . . . .
That portion of the argument is improper. That
is not the basis on which you determine guilt or
the lack of guilt. So any appeal to that [sic]
saving the country is improperly before you and
is to be disregarded.
Id. at JA901. The court also reminded the jury that the
prosecutor’s comment was not a statement of the law and that
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the arguments of counsel are not evidence.
“‘We review a district court’s decision not to grant a
mistrial on the grounds that the prosecutor made improper
remarks in closing argument for abuse of discretion.’” United
States v. Hoffecker, 530 F.3d 137, 193 (3d Cir. 2008) (quoting
United States v. Dispoz-O-Plastics, Inc., 172 F.3d 275, 282
(3d Cir.1999)). Under the factors we identified in United
States v. Gambone, 314 F.3d 163, 179 (3d Cir. 2003), we find
the scope of the prosecutor’s comment, within the context of
the whole trial, was minimal; the curative instruction
adequately addressed any error; and the evidence of Benoit’s
guilt, regardless of the prosecutor’s statement, was
substantial. See also Gov’t of Virgin Islands v. Joseph, 770
F.2d 343, 351 (3d Cir. 1985) (finding prosecutor’s alleged
error did not prejudice the defendant in light of the substantial
evidence of guilt and the curative instructions given to the
jury). Since we find the prosecutor’s comment was harmless,
the District Court did not abuse its discretion in denying
Benoit’s motion for mistrial.
III.
For the foregoing reasons, we will affirm the judgment
of conviction and sentence.
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