Breaking NewsLaw.com and associated brands will be offline for scheduled maintenance Friday Feb. 26 9 PM US EST to Saturday Feb. 27 6 AM EST. We apologize for the inconvenience.

 
X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
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 Ninth 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, Ninth 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.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.