Klimavicius-Viloria
United States v. Klimavicius-Viloria
Opinion
Lead Opinion
Thompson, J.
On July 28, 1995, the United States Coast Guard seized the vessel Nataly I and the twelve tons of cocaine it was carrying. The Coast Guard arrested the entire crew: Richard Khmavicius-Viloria (“Klimavicius”), master of the ship; Dagoberto Lerma-Lerma, chief engineer; and Oscar Caicedo-Pineda, Edilberto Ferraro-Montesdeoca, Freddy Queney Rivas-Lerma, Felix Otero-Estupinan, Ruben Palma-Robayo, Leoncio Morcillo-Vidal, Daniel Payan-Solis, and Arnulfo Rojas Rentria, collectively the “Crew Members.” After a jury trial, Klimavicius, Lerma-Lerma, and all Crew Members were found guilty of possession of cocaine with intent to distribute on board a vessel, 46 U.S.C. app. §§ 1903(a), (c)(1)(C) and (f) (1994). Klimavicius and Lerma-Lerma were also found guilty of conspiracy to possess cocaine with intent to distribute on board a vessel, 46 U.S.C. app. § 1903(j) (1994).
Klimavicius, Lerma-Lerma and the Crew Members appeal. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a), and we affirm.
FACTS
The Nataly I, a Panamanian-registered vessel, was equipped as a long-line fishing vessel. A long line is a buoyed line five to fifty miles long which is strung with shorter lines…
Dissenting Opinion
Ferguson, J.
dissenting:
I dissent because the evidence was insufficient to convict the rank and file crew members of possession with intent to distribute. In addition, the jury’s consideration of the newspaper article demands a new trial.
I. Insufficient Evidence of the Crew Members’ Knowledge.
Even viewing all of the evidence in the government’s favor, a rational trier of fact could not have found the rank and file crew members guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). Possession of narcotics with intent to distribute may be based on one of three legal theories: (1) co-conspirator liability; (2) aiding and abetting; or (3) the exercise of dominion and , control over the contraband. United States v. Ramos-Rascon, 8 F.3d 704, 711 (9th Cir. 1993); United States v. Sanchez-Mata, 925 F.2d 1166, 1168 (9th Cir.1991). The government never attempted to prove co-conspira-' tor liability and failed to present sufficient evidence to support the other two theories.
A. Dominion and Control.
The government bore the burden of proving that the crew members (1) knowingly, (2) possessed the cocaine, (3) with an intent to…