APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon.
José A. Fusté, U.S. District Judge.
Víctor Ramos-Rodríguez, with whom Wilfredo Díaz-Narváez, was on brief, for appellant.
Kelly Leann Tiffany, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, were on the brief, for appellee.
Before Lynch, Chief Judge, Howard and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
John Wenor Bresil was convicted of illegally reentering the United States after he was found in the middle of the night by Coast Guard and Border Patrol officials in an open boat with seventeen others twenty-three nautical miles off the coast of Puerto Rico. On appeal he argues that he was wrongly prevented from showing at trial that he did not intend to enter the United States but instead was passing Puerto Rico on his way to the island of St. Maarten. Specifically, he argues that: (1) the district court wrongly denied him a continuance after the government announced its intention to call an expert witness only five days before trial; (2) the government violated his due process rights by sinking his boat after it took him into custody, preventing a conclusive determination of whether it contained enough fuel to make it to St. Maarten, and by deporting others found in the boat with him who would have testified that the boat was traveling to St. Maarten; and (3) there was insufficient evidence to support his conviction. Though we find that the government plainly violated Federal Rule of Criminal Procedure 16, we affirm because that violation did not prejudice Bresil, and his other claims are without merit.
The basic facts leading to Bresil's conviction are not disputed. On the evening
of March 19th, 2012, a border patrol aircraft was patrolling the Mona Passage, the body of water that lies between the islands of Hispaniola (which contains Haiti and the Dominican Republic), to the west, and Puerto Rico, to the east. At around 9:40 P.M., the aircraft detected a vessel about 30 miles southwest of Puerto Rico traveling toward that island. Border patrol agents tracked the vessel as it traveled northeast toward Puerto Rico until it came to a stop twenty-three nautical miles off the coast at approximately 1:00 A.M.
Only then did a Coast Guard vessel intercept the boat, which was twenty-six feet long and six feet wide with a forty horsepower outboard engine and eighteen people aboard. The boat had taken on two feet of water by the time the Coast Guard reached it. From their vessel, the Coast Guard officials reported seeing in the bottom of the boat a number of empty fuel containers and one fifteen gallon container that was 75 percent full. The boat's outboard engine did not have an internal fuel tank, instead drawing fuel from a container. After the passengers were taken onto a Coast Guard vessel, the Coast Guard set fire to the boat in order to sink it because, government witnesses testified, it was a hazard to navigation if it remained where it was and they were unable to safely tow it somewhere else. When interviewed, all eighteen passengers on the boat said that they had departed from Miches in the Dominican Republic.
Bresil was indicted on one count of illegally attempting to return to the United States after being deported for commission of an aggravated felony. 8 U.S.C. § 1326(a)(2), (b)(2). Bresil was convicted on the sole count of the indictment and sentenced to 78 months' imprisonment and 36 months' supervised release. This appeal of his conviction followed.
A. Timing of the Government's Rule 16 Disclosure
The Government first informed Bresil of its intention to call an expert witness who could testify about the boat's fuel consumption five days before trial. The expert proposed to testify, and eventually testified, that, based on the type of boat, the number of people in it, and the weight of fuel, it would have traveled at most two and a half to three nautical miles per gallon ...