US v. Perlaza Press Coverage

Most people would presume that a group of seamen caught dumping 4,300 lbs. of cocaine into the ocean are guilty of possessing and trying to distribute drugs.

But a 9th Circuit panel said a San Diego federal prosecutor shouldn't have told a jury to make that presumption.

In a lengthy opinion Tuesday, more than two years after the case was argued, a three-judge panel overturned the convictions of 10 Colombian boaters arrested in 2000 off the coast of Central America.

After watching a suspicious fishing vessel for several days, the U.S. Navy and Coast Guard allegedly caught its crew refueling a speedboat used to traffic cocaine.

When the speedboat occupants realized they were under surveillance, prosecutors said, they dumped the coke and crashed into the back of the fishing vessel in an apparent attempt to sink the speedboat.

While U.S. officials were able to recover the cocaine and gasoline, therefore presenting strong evidence at trial, they ran into some friction in trying to prove that the U.S. District Court for the Southern District of California had jurisdiction over the case.

And then William Gallo, the Southern District Assistant U.S. Attorney arguing the case, told the jury in closing statements that the defendants' presumption of innocence "is going to vanish when you start deliberating. And that's when the presumption of guilt is going to take over."

That raised vigorous defense objections, and while the judge eventually instructed the jurors to presume innocence, 9th Circuit Judge Harry Pregerson -- writing for the majority of a split three-judge panel -- said that wasn't enough.

The jury, Pregerson wrote, may have reconciled the various instructions "by concluding that criminal defendants 'are presumed innocent' only until deliberations begin." He was joined by Senior Judge Betty Fletcher. Senior Judge Melvin Brunetti dissented -- he said the error was harmless -- but agreed that the convictions should be overturned because the government didn't prove it had jurisdiction.

Since the evidence was so strong, the panel wrote, the government may re-indict.

"We don't want to look a gift reversal in the mouth," said John Lanahan, who represented the captain of the fishing vessel. But, he said, "there are some things we didn't get from this opinion that we're concerned about."

Most notable, Lanahan said, is the government's chance to refile the case, which he disagreed with because the government hadn't proven it had jurisdiction over the Colombian-registered ship.

"You haven't actually shown it's going to be distributed in the U.S.," he added.

San Diego Assistant U.S. Attorney Roger Haines, chief of the office's appellate division, said he was surprised by the outcome.

"We felt pretty good after the arguments. It was not so clear to us that we would lose after the arguments."

He agreed with Brunetti that the jury instruction error was harmless. And while the opinion was a defeat for the office, Haines said the case -- U.S. v. Perlaza, 06 C.D.O.S. 2191-- probably isn't over. "It's very likely that we'll re-indict," he said.

By Onell R. Soto UNION-TRIBUNE STAFF WRITER March 25, 2006 An appeals court has reversed the convictions of 10 men caught aboard two boats off the coast of Costa Rica and convicted in San Diego on drug-running charges. The 9th U.S. Circuit Court of Appeals ruled that the judge handling the case incorrectly decided a complicated question concerning jurisdiction and that the prosecutor improperly argued to jurors about a “presumption of guilt.” Advertisement The jurisdiction question centers on whether prosecutors should have proved a connection – a “nexus” in legal language – between the drugs seized in the high seas and the United States in order to prosecute the case here. The San Francisco-based appeals court gave federal prosecutors in San Diego the option to again indict and try the Colombian men, but it's unclear whether they will first seek an appeal. Lawyers on both sides have the option to appeal, and both see problems with the decision. Defense lawyers said the decision correctly reverses the convictions but are unhappy because prosecutors are being given the opportunity to again indict the men. Meanwhile, prosecutors may want to have the case go to the U.S. Supreme Court to resolve differences in how the law is interpreted by the 9th Circuit in the western United States and the 11th Circuit in the Southeast. Prosecutors said they will seek the indictment of the men again if the case isn't appealed. People caught by U.S. authorities aboard drug-laden boats off the coasts of Central and South America are typically taken to San Diego or Florida for trial. In recent months, several such cases have ended up in Florida, where the interpretation of the law can make prosecution easier. The San Diego case at issue involves the September 2000 interception of a Colombian-flagged fishing vessel, the Gran Tauro, about 500 miles off the coast of Costa Rica. Prosecutors say the ship served as a high-seas gas station for smaller, faster boats that ran drugs from South America to central Mexico. A helicopter based on a U.S. frigate videotaped a smaller boat crash into the Gran Tauro. Agents recovered bales of cocaine weighing two tons that had been aboard the speedboat, which sank after the crash, and arrested the men. Twelve men were arrested: five who were aboard the speedboat and seven aboard the Gran Tauro. Two members of the speedboat crew pleaded guilty and couldn't appeal their convictions. When the men were indicted in San Diego federal court, defense lawyers tried to have the case thrown out by arguing that prosecutors hadn't proved there was a connection between the crime and the United States. But U.S. District Judge Thomas Whelan found that prosecutors didn't have to prove such a connection and let the case go to trial. That was a mistake, the appeals court ruled March 13 in an opinion written by Justice Harry Pregerson. The appeals court said the prosecutorial misconduct came at the conclusion of the trial when prosecutor William Gallo argued to jurors that the defendants had been “cloaked” with the presumption of innocence as the case had gone forward. “That presumption, when you go back to the room right behind you, is going to vanish when you start deliberating,” he told jurors. “And that's when the presumption of guilt is going to take over you.” Defense lawyers objected, but Whelan let Gallo continue. Defendants in criminal cases are presumed innocent until proved otherwise, Pregerson noted in the 65-page opinion. By allowing the case to continue, the judge effectively put the burden of proof on the defense, and defendants don't have to prove their innocence, he ruled. Another justice, in a dissenting opinion, said Gallo's error was harmless and instructions by the judge that spelled out presumption of innocence should have cleared up any confusion. Gallo said in an interview that his comment was unintentional and “a poor choice of words” in the heat of the battle. “I said something I shouldn't have said,” he said. “It wasn't planned. It wasn't premeditated.”

Feeding the Very Excitable Fishes

Two tons of dumped cocaine or no, 9th Circuit overturns drug conviction