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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.

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