[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 31, 2010
No. 08-13675
JOHN LEY
CLERK
D.C. Docket No. 07-10019-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXIS DE LA CRUZ SUAREZ,
a.k.a. Alexis de la Cruz,
RAMON BARRABI-PUENTES,
a.k.a. Ramon Barrabi,
Defendants-Appellants.
No. 08-13808
D.C. Docket No. 07-10019-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE VAZQUEZ,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of Florida
(March 31, 2010)
Before CARNES and HULL, Circuit Judges, and GOLDBERG,* Judge.
GOLDBERG, Judge:
In December 2007, a federal grand jury returned a superseding indictment
against Appellants Alexis De La Cruz Suarez (“De La Cruz”), Ramon Barrabi
Puentes (“Barrabi”), and Jose Vazquez (“Vazquez”), and three other co-defendants.
The indictment charged the Appellants with conspiracy in violation of 8 U.S.C. §
1324(a)(1)(A)(v)(I) to commit alien smuggling in violation of 8 U.S.C. §
1324(a)(1)(A)(iv), and to bring aliens into the United States at a place other than a
designated port of entry in violation of 8 U.S.C. § 1324(a)(1)(A)(I) (“Count 1");
and attempting to bring aliens into the United States for the purpose of commercial
advantage and private financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii)
* Honorable Richard W. Goldberg, Judge. United States Court of International Trade, sitting by
designation.
2
and 18 U.S.C. § 2 (“Counts 2-35"). Vazquez was charged with 35 additional
counts of attempting to bring aliens into the United States for the purpose of
commercial advantage and private financial gain (“Counts 36-70"). Barrabi was
charged with 66 additional counts of attempting to bring aliens into the United
States for the purpose of commercial advantage and private financial gain (“Counts
36-101"). After a joint trial, a jury found the Appellants guilty as to Count 1. As to
the remaining counts, the Appellants were either acquitted, or the charges were
dismissed.1
On appeal, the Appellants, either separately or jointly, challenge several
rulings made by the District Court during trial regarding: (1) a Motion to Dismiss
the Indictment; (2) a Motion to Suppress Electronic Surveillance; (3) the admission
of a prior inconsistent statement; (4) a Motion for Judgment of Acquittal; and (5) a
Motion for Mistrial. They also raise various issues with regard to their sentences:
(1) De La Cruz and Vazquez challenge an enhancement to their sentencing
guidelines calculation under U.S.S.G. § 3C1.2, for utilizing a special skill to
facilitate the offense; (2) De La Cruz also challenges enhancements to his sentence
pursuant to U.S.S.G. §§ 3C1.2 and 2L1.1(b)(6), arguing that they amounted to
1
The Superseding Indictment included an additional charge concerning criminal forfeiture
pursuant to 18 U.S.C. § 982(a)(6)(A) that is not at issue on appeal.
3
impermissible double counting; (3) Vazquez argues that the District Court
improperly calculated his guideline range by including certain inappropriate
enhancements; (4) Vazquez also challenges the district court’s refusal to apply a
reduction for acceptance of responsibility; (5) Barrabi and Vazquez jointly argue
that the District Court erred in determining that the statutory maximum penalty for
the conspiracy offense was 10 years’ imprisonment; and (6) Barrabi maintains that
his sentence is procedurally and substantively unreasonable. As explained further
below, we AFFIRM the rulings of the District Court and the sentences imposed
upon the Appellants.
BACKGROUND
A joint task force consisting of the FBI and the U.S. Coast Guard, with the
assistance of confidential informants, uncovered an operation that smuggled
individuals from Cuba to the Florida Keys. According to the evidence at trial, from
approximately June 2005 to March 30, 2007, Barrabi ran the operation and offered
undocumented Cuban nationals boat transportation to the United States for the
price of $10,000 per person. With information gathered from the investigation and
from a month-long authorized wiretap on Barrabi’s two cellular phones, three
smuggling trips were intercepted. Each smuggling trip involved a similar course of
4
conduct. Barrabi would arrange for two vessels to leave the Florida Keys–a
primary vessel to pick up the aliens from Cuba, and a secondary vessel to provide
supplies and fuel to the primary vessel. Through the use of satellite telephones,
Barrabi remained in close contact with the crew aboard the transport vessel during
the trip. The primary vessel would travel to Cuba, and return with migrants
dropping them near shore in the Florida Keys.
On February 21, 2007, Vazquez piloted a 32-foot Scarab boat and was
stopped by the Coast Guard en route from Miami to the Florida Keys. Vazquez
called Barrabi about the stop, and explained that everything was fine. Vazquez
then continued the trip to rendezvous with a second vessel, on which Barrabi was
onboard. The second vessel provided fuel and equipment to Vazquez’s vessel.
Vazquez drove the now-equipped primary vessel to the Upper Florida Keys, where
he delivered it to De La Cruz and another crew member, Janny Grijalva Gonzalez.2
Vazquez then departed; and De La Cruz piloted the boat to Cuba. Intercepted calls
revealed that the vessel picked up individuals from Cuba around 4:00 a.m.
On his return from Cuba, De La Cruz was approached by the U.S. Coast
Guard. He ignored the Coast Guard’s instructions to stop the vessel, and a two-
2
Grijalva Gonzalez was an original co-defendant and entered a guilty plea. Pursuant to a
plea agreement, he testified at the Appellants’ trial.
5
hour chase ensued. During the chase, De La Cruz instructed Grijalva Gonzalez to
throw the onboard satellite phone and GPS overboard. Once the Coast Guard was
able to stop the vessel, 34 Cuban migrants were observed onboard. The boat was
designed to carry approximately 10 to 12 passengers, and there were no life jackets
available. The migrants were interviewed by the Coast Guard for potential political
asylum purposes, and 33 of the 34 individuals were repatriated.3
In planning the second intercepted trip, Barrabi and Vazquez were overheard
discussing the retention of a vessel for the trip. A boat was eventually obtained
from Edelsis Lozano.4 Similar to the first trip, Barrabi and Vazquez met on two
separate vessels, and exchanged supplies. The primary vessel was piloted to Cuba
and returned to the Florida Keys with 35 Cuban migrants. The vessel was pursued
by the Coast Guard both going to and returning from Cuba.
During the third intercepted trip, 31 Cuban migrants were discovered
onboard the vessel by law enforcement.
Prior to their arrest, Barrabi had begun planning future smuggling trips, and
had contacted Vazquez to obtain more vessels.
3
One migrant was sent to Guantanamo Bay based on a potentially credible asylum
application.
4
Lozano was also a named co-defendant in the Superseding Indictment. He was tried
jointly with the Appellants and was found not guilty on all counts.
6
DISCUSSION
The Appellants challenge several rulings made by the court on evidentiary
issues, various motions brought throughout trial, and sentencing calculations.
Some issues have been argued by an individual Appellant, while others were raised
by multiple Appellants or adopted post-briefing.5
I. Motion to Dismiss the Indictment
De La Cruz contends that the District Court erred in denying his motion to
dismiss the indictment for loss of testimonial evidence that may have been
favorable to him. A district court’s denial of a motion to dismiss an indictment is
reviewed for an abuse of discretion. United States v. Waldon, 363 F.3d 1103, 1108
(11th Cir. 2004).
In a statement to the government given approximately six weeks after his
arrest, De La Cruz claimed that the trip he made on February 21, 2007 to Cuba was
to assist Grijalva Gonzalez in bringing back his wife and two children. According
to De La Cruz, upon his arrival to Cuba, a large group was waiting and insisted
upon boarding the boat. He stated that he could not get the people off the boat, that
he was threatened with a “sharp metal object,” and that he was forced to leave
5
Vazquez was granted leave by this Court to adopt his co-Appellant’s arguments with
regards to issues discussed here as I., II., IV., V., and VI.E.
7
Cuba with all of them aboard. De La Cruz argues that after stopping the boat, the
Coast Guard should have questioned the 34 Cuban migrants before repatriating
them, not just as to any legitimate asylum claims, but also to ascertain what they
knew about the offenses committed. He claims that his due process rights under
the Fifth Amendment and his compulsory process rights under the Sixth
Amendment were violated because of his inability to question those individuals
before their repatriation, and that the district court should have dismissed the
indictment for loss of testimonial evidence.
At the two evidentiary hearings held on this motion,6 FBI Special Agent
Jennifer Himes testified. She explained that the repatriation was executed
according to standard U.S. Coast Guard operating procedure, and that she had not
been involved in the decision to repatriate the migrants. She also testified that she
did not believe that the migrants were questioned about facts relating to the boat
trip nor about De La Cruz and Grijalva Gonzalez. At the second evidentiary
hearing, Agent Himes stated that De La Cruz had been interviewed on February 23,
2007, two days after the interdiction. Agent Himes clarified that at this interview,
6
After an evidentiary hearing, the motion was denied by the district court without
prejudice. De La Cruz later renewed the motion. The Magistrate Judge reviewed the motion,
held a second evidentiary hearing, and recommended that it be denied. The district court adopted
the report and recommendation and denied the motion a second time.
8
De La Cruz made no mention that he had been threatened by the Cuban migrants
awaiting his boat, nor that they had forced their way onto the boat. These claims
were not mentioned until several weeks later on April 4, 2007, when Agent Himes
interviewed De La Cruz.
To show a violation of his due process rights or compulsory process rights,
De La Cruz is required to show that there was a reasonable basis to believe that the
testimony would be material and favorable to him, and that the government had
acted in bad faith in repatriating the aliens. United States v. Valenzuela-Bernal, 458
U.S. 858, 872-73 (1982); United States v. Schaefer, 709 F.2d 1383, 1386 (11th Cir.
1983); see also United States v. Gastelum-Almeida, 298 F.3d 1167, 1174 (9th Cir.
2002). The Appellant meets neither prong of this test. “The mere fact that the
Government deports [illegal-alien] witnesses is not sufficient to establish a
violation of the Compulsory Process Clause of the Sixth Amendment or the Due
Process Clause of the Fifth Amendment.” Valenzuela-Bernal, 458 U.S. at 872-73.
De La Cruz made no showing, other than his own conclusory allegations,
that the testimony of the repatriated migrants would have been material to the case,
and favorable to him. He merely states that the Government should have been
aware that the migrants had information material to the case, and should have
9
questioned them prior to repatriating them. Notably, De La Cruz never mentioned
any threats or compulsion to take the migrants aboard until he was interviewed
again weeks after the Coast Guard’s interdiction and his arrest. As the Magistrate
Judge recognized, the statements made in the April 4 interview are inconsistent
with his statements shortly after he was stopped by the Coast Guard. Further, there
were three cooperating migrants who testified about the boat trip at trial, and none
corroborated De La Cruz’s story about coercion and threats. In addition, Grijalva
Gonzalez testified, and the jury was able to consider his testimony in their
deliberations.
De La Cruz likewise did not show any bad faith on behalf of the government
in choosing to repatriate the migrants. According to Agent Himes’s testimony, the
Coast Guard was simply following standard operating procedure in returning 33 of
the migrants to Cuba. Since De La Cruz made no statements that he had been
threatened until weeks after the incident, the government, at the time, would have
been unaware of any material or favorable testimony the migrants could have
offered.
Because De La Cruz did not meet his burden of showing either that the
repatriated migrants’ testimony would have been material and favorable to him, or
10
that the Government acted bad faith, the District Court did not abuse its discretion
in denying the motion to dismiss the indictment.
II. Motion to Suppress Electronic Surveillance
Prior to trial, Barrabi and De La Cruz filed motions, which were later
adopted by Vazquez, to suppress all evidence obtained through the electronic
surveillance of Barrabi’s two cellular phones. After two evidentiary hearings and
in accordance with the Magistrate Judge’s recommendation, the district court
denied the motions. A district court’s denial of a motion to suppress evidence is
reviewed as a mixed question of law and fact, with the rulings of law reviewed de
novo and the findings of fact reviewed for clear error, in the light most favorable to
the prevailing party. United States v. Boyce, 351 F.3d 1102, 1105 (11th Cir. 2003).
De La Cruz, Barrabi, and Vazquez argue that the issuance of the wiretap on
Barrabi’s cell phone was premature. Title 18 U.S.C. § 2518(1)(c) requires that an
application for electronic surveillance include a “full and complete statement as to
whether or not other investigative procedures have been tried and failed or why
they reasonably appear to be unlikely to succeed if tried or to be too dangerous.”
The Appellants argue that this requires the government’s affidavit to show with
specificity why ordinary means of investigation have failed, and that Agent
11
Himes’s affidavit neglected to explain why the traditional methods of investigation
were insufficient. According to the Appellants, other less intrusive investigative
methods were available to the government, such as continued use of confidential
informants and consensually recorded conversations. Thus, they argue that the
wiretap should not have been authorized and the evidence obtained from it is
suppressible as fruits of the poisonous tree.
The required explanation of other investigative procedures in an electronic
surveillance application is “designed to assure that wiretapping is not resorted to in
situations where traditional investigative techniques would suffice to expose the
crime.” United States v. Kahn, 415 U.S. 143, 153 n.12 (1974). The affidavit in
support of a search warrant “must simply explain the retroactive or prospective
failure of several investigative techniques that reasonably suggest themselves.”
United States v. Van Horn, 789 F.2d 1492, 1496 (11th Cir. 1986). However, a
comprehensive exhaustion of all possible investigative techniques is not necessary
before applying for a wiretap. United States v. Alonso, 740 F.2d 862, 868 (11th
Cir. 1984). The statute was not intended “to foreclose electronic surveillance until
every other imaginable method of investigation has been unsuccessfully attempted,
12
but simply to inform the issuing judge of the difficulties involved in the use of
conventional techniques.” Id.
Agent Himes’s testimony regarding the contents of the affidavit provides
ample support for the authorization of the wiretap. Agent Himes of the FBI
testified to the prior investigative techniques that had been employed and the extent
of their success.7 This information had been included in her original affidavit when
applying for the wiretap. However, despite the information obtained from other
methods, she testified that she felt that a wiretap was necessary to determine the
scope of the conspiracy, and all of its members.8 She also testified that the
prolonged use of physical surveillance was not feasible because the agents
surveilling Barrabi were increasingly likely to be discovered. Pen registers and
trap and trace devices were not entirely useful because of the probability of
multiple subscribers to the previously identified phone numbers and the frequent
use of aliases. Agent Himes also stated that the use of search warrants would not
have been appropriate because it would likely have alerted co-conspirators to the
7
She explained that five confidential informants had been employed, one of which had
engaged in consensual monitoring on one of the target telephones. Pen registers on the two
target cellular phones were utilized, and resulted in the identification of various persons involved
in the smuggling operation. Physical surveillance was conducted. Government agents also
obtained information from real estate properties and bank accounts owned by Barrabi. At least
one trash pull was conducted at Barrabi’s residence.
8
The wiretaps led to indictments of 12 individuals not previously known to the
government.
13
ongoing investigation. The Magistrate Judge found her to be a “highly credible
witness whose testimony was straightforward and candid.” Agent Himes
sufficiently described the prior investigation methods employed in the case, and
was not, as the Appellants argue, required to comprehensively exhaust all other
techniques before requesting authorization for electronic surveillance.
Additionally, the Appellants argue that the evidence obtained from the
wiretap should be suppressed because the government failed to comply with the
minimization requirement for electronic surveillance. Electronic surveillance must
be “conducted in such a way as to minimize the interception of communications not
otherwise subject to interception.” 18 U.S.C. § 2518(5). “The statute does not
forbid the interception of all nonrelevant conversations, but rather instructs the
agents to conduct the surveillance in such a manner as to ‘minimize’ the
interception of such conversations.” Scott v. United States, 436 U.S. 128, 140
(1978). Agent Himes defined minimization as “the act of stopping to hear the
audio content of a call based on the fact that there is a privileged call either
between a lawyer, a priest, personal relative, something of non-legal nature.”
Conversations lasting less than two minutes are considered too brief “to identify
the caller and characterize the conversation as merely social or possibly tainted.”
14
United States v. Bynum, 485 F.2d 490, 500 (2d Cir. 1973). A standard of
reasonableness is applied to the government’s actions regarding electronic
interceptions. United States v. Moody, 977 F.2d 1425, 1433 (11th Cir. 1992). The
Appellants argue that the government made no true effort to separate relevant calls
from personal ones because only 92 of the total 3,600 calls were minimized. Based
on the numbers, Appellants simply suggest that more calls should likely have been
minimized.
At the evidentiary hearing, the government’s evidence showed that there
were a total of 4,866 calls made during the duration of the wiretap. Of these calls,
3,365 were less than one minute in duration. A substantial number of calls
contained no communications and resulted in hangups. 642 calls lasted longer than
two minutes. A total of 92 calls were minimized, 70 of which were longer than two
minutes.
Agent Himes testified that the agents ceased monitoring any call “when it
pertained to legal subjects and the target.” They also ceased monitoring calls of a
personal nature.9 The vast majority of the calls had been so short (less than one
9
Some calls between Barrabi and his wife were not minimized because she was listed as a
target in the affidavit in support of the electronic surveillance application. See United States v.
Malekzadeh, 855 F.2d 1492, 1496 (11th Cir. 1988) (the government does not have a duty to
minimize calls where a husband and wife are targets and believed to be involved in the
conspiracy under investigation).
15
minute) that it was not possible to determine whether they should be minimized
before they were over. As stated above, Agent Himes’s testimony was found to be
credible and believable. Evidence that a small number of calls were minimized
does not, by itself, indicate that the minimization procedures used by the
government were unreasonable. Appellants did not provide sufficient evidence to
show otherwise.
Accordingly, the District Court did not err in denying the motion to suppress
evidence obtained from the electronic surveillance.
III. Admission of a Prior Inconsistent Statement
De La Cruz argues that the district court should have permitted the
introduction of a prior inconsistent statement by a witness. A district court’s
admission or denial of evidence is reviewed for abuse of discretion. United States
v. Smith, 122 F.3d 1355, 1357 (11th Cir. 1997). “Even if the district court abused
its discretion by admitting or excluding evidence, the conviction must be affirmed
unless the defendant can meet its burden of demonstrating that substantial rights
were affected by the error.” United States v. Saget, 991 F.2d 702, 709 (11th Cir.
1993).
Hector Suarez Gonzalez, one of the individuals on board the vessel driven by
16
De La Cruz and interdicted by the Coast Guard, was interviewed by Agent Himes
on September 26, 2007. Agent Himes recorded in her summary of the interview
that Suarez Gonzalez stated, “The captains noticed that the boat was sitting very
low in the water and were concerned. However, no one wanted to exit the boat.”
Suarez Gonzalez testified at trial. When questioned on cross-examination about
the overcrowded conditions on the boat, he responded, “I don’t know anything
about that.” De La Cruz’s defense counsel sought to refresh Suarez Gonzalez’s
recollection by showing him a summary of his FBI interview testimony. Suarez
Gonzalez denied recalling his prior statement about the boat sitting low in the
water.
De La Cruz’s defense counsel later argued for admission of Suarez
Gonzalez’s initial statement. Defense counsel stated that the inconsistency in the
statements was material because it provided support for De La Cruz’s argument
that he only intended to pick up Grijalva Gonzalez’s family in Cuba, and was
concerned about the number of people onboard the boat. The district court refused
to admit the statement and denied defense counsel the opportunity to recall Agent
Himes to the stand to ask her about Suarez Gonzalez’s original statement reasoning
that the statement was not material to the argument. The district court specifically
17
stated, “I think the fact that the boat was overloaded or not overloaded would not
have any real relevancy to that or materiality to that.” The district court added that
De La Cruz had other opportunities, such as the testimony of Grijalva Gonzalez, to
support his position.
On appeal, De La Cruz maintains that Suarez Gonzalez’s original statement
was relevant to impeach Suarez Gonzalez as a witness, and that it was also proof of
De La Cruz’s state of mind at the time the boat was loaded.
“Extrinsic evidence of a prior inconsistent statement by a witness is not
admissible unless the witness is afforded an opportunity to explain or deny the
same....” Fed. R. Evid. 613(b). A witness may be impeached with a third-party
statement only if he has adopted it as his own. Saget, 991 F.2d at 710. A witness
may not be impeached by a non-verbatim statement, i.e., one that is in a
government prepared summary, “which could not fairly be said to be the witness'
own rather than the product of the investigator's selections, interpretations, and
interpolations.” Id. (quoting Palermo v. United States, 360 U.S. 343, 350 (1959)).
Here, the report was created by Agent Himes, and when questioned about the prior
statement, Suarez Gonzalez stated he did not recall making it. De La Cruz was still
18
afforded the opportunity to support his argument with Grijalva Gonzalez’s
testimony, and to discuss it during closing arguments.
Contrary to the Appellant’s argument, the statement is not an exception to
the hearsay rule as an admission of the declarant’s state of mind. See Fed. R. Evid.
803(3). It was not offered as “[a] statement of the declarant's then existing state of
mind, emotion, sensation, or physical condition.” Id. The statement was made after
the fact, not at the time of the incident. In addition, the state of mind in the
exception “refers to the state of mind of the declarant, not to the state of mind of
the listener or hearer of the statement.” United States v. Arbolaez, 450 F.3d 1283,
1290 n.6 (11th Cir. 2006). De La Cruz was not the declarant of the statement in
question.
The District Court did not abuse its discretion in refusing to admit Suarez
Gonzalez’s prior statement.
IV. Motion for Judgment of Acquittal
The Appellants challenge the denial of their Rule 29 Motion for Judgment of
Acquittal and their Renewed Motion for Judgment of Acquittal and/or Motion for
New Trial filed post-trial. “Whether the record contains sufficient evidence to
19
support the jury's verdict is a question of law subject to de novo review.” United
States v. To, 144 F.3d 737, 743 (11th Cir. 1998).
The Appellants present two arguments supporting their claim that the Motion
for Judgment of Acquittal should have been granted. They first argue that the trial
court did not have jurisdiction over the incident since the interdiction occurred on
the high seas, 40 miles off the coastline, and not within the territorial limits of the
United States. See Yenkichi Ito v. United States, 64 F.2d 73, 75 (9th Cir. 1933)
(typically the territorial domain of the United States extends three miles from its
shore). Notwithstanding, a conspiracy may be prosecuted in any district where the
agreement was made or where an overt act took place. United States v. Perez-
Herrera, 610 F.2d 289, 291 (5th Cir. 1980); Yenkichi Ito, 64 F.2d at 76. Here, trial
evidence showed that multiple acts in furtherance of the alien smuggling
conspiracy occurred in southern Florida, including Barrabi’s house in Miami and
the designated drop-off and pick-up points in the Florida Keys. Even though the
actual migrant interception took place on the high seas, the organization of the plan
and the arranging and transportation of the boats took place in southern Florida,
giving the trial court proper jurisdiction over the case. This argument is meritless.
20
The Appellants also claim that the government failed to prove that the
Southern District of Florida was the appropriate venue for the case.
For purposes of venue, the government must prove by a preponderance of
the evidence that the crimes occurred within the district of trial. United States v.
Males, 715 F.2d 568, 569 (11th Cir. 1983). “[W]hen circumstantial evidence as a
whole reasonably supports the inference that the crime was committed in the trial
district, the government’s burden is satisfied.” United States v. Rivamonte, 666
F.2d 515, 517 (11th Cir. 1982).
In addition to the jurisdictional evidence described above, Agent Himes
identified photographs of Barrabi’s houses in Miami-Dade and Monroe Counties in
southern Florida, where the coconspirators assembled for the smuggling trips. The
surveillance agents testified to related activities that occurred in both counties.
Evidence was introduced of departures from and arrivals to Barrabi’s house in
Miami, as well as evidence of the boat exchange that occurred at Marathon Key,
Florida. A chart depicting the southern United States, the Florida Straits, and Cuba
was also admitted into evidence. There were references to the Black Point Marina
and to the cities of Miami, Islamorada, and Tavenier in southern Florida. As a
whole, there was more than sufficient evidence that crimes were committed in the
21
trial district.
The District Court properly denied the Motion for Judgment of Acquittal.
V. Motion for Mistrial
Barrabi challenges the district court’s denial of his motion for a mistrial. A
court’s refusal to grant a mistrial will be upheld unless an abuse of discretion has
occurred. United States v. Christopher, 923 F.2d 1545, 1554 (11th Cir. 1991).
During closing statements, the prosecutor commented on testimony given by
cooperating co-defendants. Attempting to bolster their credibility, she stated:
You heard a lot of argument by defense counsel about [co-
conspirators] Janny Grijalva Gonzalez, Enrique Manzano, Aramis
Ramos Fragaso, Emilio Yanes. They’re here. Their motivation
was to reduce their sentence.
And they made the argument to you they’d say anything in the
world to reduce their sentence, to spend less time in jail. But you
heard very important testimony from them.
Yes, they’re here to reduce their sentences, but who sentenced
them? Two of them have already been sentenced, two are yet to
be sentenced. It’s Judge King. Their case is pending before Judge
King, just like these gentlemen. Judge King decides what the
sentence is going to be.
Use your common sense, ladies and gentlemen. You think
somebody’s sentence is going to be reduced if they come here and
tell something other than the truth?
22
Defense counsel immediately objected to the statement as improper
prosecutorial vouching; the objection was sustained. Based on the prosecutor’s
comments, Barrabi later moved for a mistrial; the motion was denied. He also
moved for a new trial for several of the same reasons he had argued in his mistrial
motion; this was also denied. On appeal, Barrabi renews his argument that it was
inappropriate for the prosecutor to make personal assurances as to a witness’s
veracity, and that the comments unfairly prejudiced the jury against him.
To establish prosecutorial vouching, a party must show that “(1) the
prosecutor placed the prestige of the government behind the witness by making
explicit [personal] assurances of the witness’s credibility, or (2) the prosecutor
implicitly vouched for the witness’s credibility by implying that evidence not
formally presented to the jury supports the witness’s testimony.” United States v.
Cano, 289 F.3d 1354, 1365 (11th Cir. 2002). However, prosecutorial misconduct,
such as vouching, is “a basis for reversing an appellant's conviction only if, in the
context of the entire trial in light of any curative instruction, the misconduct may
have prejudiced the substantial rights of the accused.” United States v. Lopez, 898
F.2d 1505, 1511 (11th Cir. 1990). “A defendant’s substantial rights are
prejudicially affected when a reasonable probability arises that, but for the remarks,
23
the outcome of the trial would be different.” United States v. Hall, 47 F.3d 1091,
1098 (11th Cir. 1995).
Here, there were multiple attempts to ameliorate any possible prejudice to
the jury caused by the prosecutor’s comments. In sustaining defense counsel’s
objections to the prosecutor’s statements, the district judge instructed the jury to
disregard the comments. The jury was advised that the testimony of witnesses with
regard to their expectation of receiving “some help or some reduction” that “only
the Government can move for” was to be evaluated “with greater care than that of
the ordinary person that comes in and testifies.” The judge also informed the jury
that it would include in its final charge guidance about how to evaluate such a
witness’s testimony, but that the jury remained the sole judge of witness credibility.
A jury is presumed to follow its instructions. United States v. Ramirez, 426 F.3d
1344, 1352 (11th Cir. 2005). Barrabi does not argue that the jury failed to do so.
In addition, defense counsel, during his closing argument, commented that the
government witnesses had “a deal” with the government, and they had been offered
“something much more valuable than money, and they present these witnesses to
you as if they give a whit about telling the truth. All they care about is going
home....” The jury was allowed to consider this statement as well.
24
There was significant evidence presented against Barrabi linking him to the
smuggling conspiracy. He cannot show that but for the prosecutor’s comments the
jury would have found him not guilty. Since Barrabi did not show that his
substantial rights were prejudiced by the prosecutor’s comments, the district court
did not abuse its discretion in denying the motion for mistrial.
VI. Sentencing
The Appellants individually, and in some cases jointly, challenge several
aspects of their sentences.
A. Special Skill Enhancement
De La Cruz and Vazquez both argue that a two-level special skill
enhancement should not have been added to their sentencing guideline calculation.
The district court’s legal interpretation of the term “special skills” is reviewed de
novo, but whether the defendant possesses a special skill under § 3B1.3 of the
Sentencing Guidelines is a factual finding reviewed for clear error. United States v.
Foster, 155 F.3d 1329, 1331 (11th Cir. 1998). For a factual finding to be clearly
erroneous, we “must be left with a definite and firm conviction that a mistake has
been committed.” Id.
25
“‘Special skill’ refers to a skill not possessed by members of the general
public and usually requiring substantial education, training, or licensing. Examples
would include pilots, lawyers, doctors, accountants, chemists, and demolition
experts.” U.S. Sentencing Guidelines Manual § 3B1.3 cmt. n.4 (2009). If the
special skill was used “in a manner that significantly facilitated the commission or
concealment of the offense,” a defendant’s sentencing guidelines offense level is
increased by 2 levels. § 3B1.3. If an “average person off the street” does not
possess the skill, then the skill is considered “special” for the purposes of applying
the enhancement. United States v. Calderon, 127 F.3d 1314, 1339 (11th Cir. 1997).
De La Cruz and Vazquez argue that there are no special skills required to pilot the
Scarab boat, and no license is required to do so.
Here, U.S. Coast Guard Officer Evan Sanborn attested that De La Cruz’s
ability to outrun a Coast Guard vessel during a two-hour chase at night in an
overloaded boat was a special skill, particularly after the GPS and satellite phone
were thrown overboard. Even with the assistance of a GPS, De La Cruz used
specialized knowledge of the area to find a predetermined location in Cuba to pick
up the migrants. The average person could not operate a vessel in this manner
without the use of unique skills. See id. at 1339-40 (“[W]e do not believe that an
26
average person off the street would possess the requisite skills to captain a cocaine
laden boat on the high seas from the Bahamas to a predetermined specific location
in Southern Florida using a chart and compass at night without lights while taking
care to elude detection by the throng of law enforcement agencies tasked with
preventing the importation of cocaine.”); see also United States v. Malgoza, 2 F.3d
1107, 1110-11 (11th Cir. 1993) (holding that advanced radio operating ability
required special skills within the meaning of § 3B1.3).
Officer Sanborn also testified that Vazquez possessed special skills in boat
mechanics because he had installed new engines to the vessels, and was able to
take apart boats, perform fiberglass work, and install fuel tanks. In addition,
Vazquez was able to navigate a boat at night in the Florida Keys with no lights.
Similar to De La Cruz’s skills, these are not skills possessed by the general public.
It was not clear error for the district court to rely on this testimony and apply
the special skills enhancement.
B. Enhancement for Substantial Risk of Death and Enhancement for
Reckless Endangerment
The district court applied two separate two-level enhancements to De La
Cruz’s sentencing guidelines calculation for intentionally or recklessly creating a
27
substantial risk of death or bodily injury to another person under U.S.S.G. §
2L1.1(b)(6) and for reckless endangerment during flight under U.S.S.G. § 3C1.2.
De La Cruz maintains that applying both enhancements is double counting because
two enhancements cannot be applied for the same conduct, i.e., overcrowding the
boat.
We review a claim of double counting de novo. United States v. Dudley, 463
F.3d 1221, 1226 (11th Cir. 2006). “Impermissible double counting occurs only
when one part of the Guidelines is applied to increase a defendant’s punishment on
account of a kind of harm that has already been fully accounted for by application
of another part of the Guidelines.” United States v. Matos-Rodriguez, 188 F.3d
1300, 1309 (11th Cir. 1999) (quoting United States v. Alexander, 48 F.3d 1477,
1492 (9th Cir. 1995)) (citations and internal quotation marks omitted). “Double
counting a factor during sentencing is permissible if the Sentencing Commission
intended the result, and if the result is permissible because each section concerns
conceptually separate notions related to sentencing.” United States v. Adeleke, 968
F.2d 1159, 1161 (11th Cir. 1992) (citations and internal quotation marks omitted).
The two-level enhancement under § 2L1.1(b)(6) applies if the offense
conduct intentionally or recklessly creates a risk of serious bodily injury to another.
28
This includes “carrying substantially more passengers than the rated capacity of a .
. . vessel.” § 2L1.1 cmt. n.5. The two-level enhancement under § 3C1.2 applies if
the defendant recklessly creates a substantial risk of death or seriously bodily
injury to another person in the course of fleeing from a law enforcement officer. If
conduct justifying an enhancement under § 2L1.1(b)(6) is solely related to fleeing
from law enforcement, then § 3C1.2 should not be applied. § 2L1.1 cmt. n.5.
Similarly, an enhancement under § 3C1.2 should not be applied where “the offense
guideline in Chapter Two, or another adjustment in Chapter Three, results in an
equivalent or greater increase in offense level solely on the basis of the same
conduct.” § 3C1.2 cmt. n.1. When acts of reckless conduct are temporally and
spatially separated, an enhancement based on separate guidelines provisions is
permissible. Matos-Rodriguez, 188 F.3d at 1312.
Here, the enhancement for substantial risk of death was applied because De
La Cruz had 36 individuals onboard a vessel designed to hold no more than 12
people, and there were no life jackets available. This qualified as a substantial risk
of serious injury or death to the Cuban migrants under § 2L1.1(b)(6). In contrast,
the enhancement for endangerment during flight under § 3C1.2 was applied
because De La Cruz led the Coast Guard on a two-hour high-speed chase in the
29
darkness. Thus, the enhancements were not for the same conduct, and the district
court did not commit impermissible double counting in applying both
enhancements.
C. Enhancement for Substantial Risk of Death and Enhancement for
Conspiring to Smuggle at Least 100 Aliens
Vazquez individually disputes two specific elements of his sentencing
calculation. He contests the enhancements applied to his sentencing guidelines
calculation for creating a substantial risk of death or bodily injury to another
person, and for conspiring to smuggle 100 or more unlawful aliens. With regard to
sentencing guideline calculation, we review for clear error a district court’s factual
findings, and review de novo the application of the law to those facts. United States
v. Cover, 199 F.3d 1270, 1274 (11th Cir. 2000).
Vazquez argues that he should not have received an enhancement for
substantial risk of death or bodily injury under U.S.S.G. § 2L1.1(b)(6) because he
did not know how many people would be transported from Cuba and he was not
personally involved with transporting the Cuban migrants. He states that he was
only involved with maneuvering the boats within the Florida Keys. The district
court ruled that it was reasonably foreseeable to anyone involved in a criminal
30
conspiracy to import aliens into the United States that the people transported would
be placed in great risk of death and harm and serious bodily injury. The district
court also rejected Vazquez’s argument that he should not be found responsible for
the transportation of at least 100 aliens because he was not aware of how many
people would be transported.
Under U.S.S.G. § 2L1.1(b)(6), a two-level enhancement applies where the
“offense involved intentionally or recklessly creating a substantial risk of death or
serious bodily injury to another person.” “Offense” is defined as “the offense of
conviction and all relevant conduct under § 1B1.3 . . . unless a different meaning is
specified or is otherwise clear from the context.” § 1B1.1 cmt. n.1(H). Because no
other meaning is specified or clear from the context, § 1B1.3(a)(1)(B) provides that
“relevant conduct” includes “all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal activity.” If a defendant is
aware of the scope of a conspiracy outside of his individual actions, he may be held
accountable for actions by co-conspirators even though he was not personally
involved. See United States v. McCrimmon, 362 F.3d 725, 732-33 (11th Cir.
2004).
31
Vazquez had recommended certain vessels to Barrabi for the smuggling
trips, and also installed commercial gas tanks on the vessels so that the vessels
could transport larger numbers of people. Given the evidence presented at trial as
to the scope of the smuggling conspiracy and Vazquez’s specific knowledge of
certain details of the conspiracy, it was certainly reasonably foreseeable to Vazquez
that the individuals transported were placed at great risk of death or serious bodily
injury.
Vazquez also contests a nine-level enhancement under § 2L1.1(b)(2)(C)
because the offense involved transporting 100 or more unlawful aliens. A
defendant’s participation in a conspiracy is presumed to continue “until all objects
of the conspiracy have been accomplished or until the last overt act has been
committed by any of the conspirators.” United States v. Arias, 431 F.3d 1327, 1340
(11th Cir. 2005).
Again, as a member of the conspiracy, Vazquez remains accountable for the
actions of the other members. The trips that Vazquez participated in resulted in the
transportation of 34 Cuban migrants on the first trip, 35 individuals on the second
trip, and 31 more on the third trip. Furthermore, the Presentence Investigation
Report stated, and Vazquez did not dispute, that he participated in a fourth
32
smuggling venture to transport 37 Cuban migrants to the United States.
Because of the scope of the conspiracy and Vazquez’s participation in it, the
district court did not err in apply these two enhancements to his sentence
calculation.
D. Reduction for Acceptance of Responsibility
Vazquez disputes the denial of a Sentencing Guidelines reduction for his
acceptance of responsibility. As stated above, we review for clear error a district
court’s factual findings, and review de novo the application of the law to those
facts. Cover, 199 F.3d at 1274.
The Sentencing Guidelines provide for a two-level reduction when the
“defendant clearly demonstrates acceptance of responsibility for his offense.” §
3E1.1(a). “[A] defendant who falsely denies, or frivolously contests, relevant
conduct that the court determines to be true has acted in a manner inconsistent with
acceptance of responsibility.” § 3E1.1, cmt. n.1(a).
Vazquez argues that he should have received a two-level reduction for
acceptance of responsibility because he attempted to plead guilty to the conspiracy
charge, even though he did not admit guilt to the remaining charges. However,
Vazquez proceeded to trial and falsely denied relevant conduct that the district
33
court later determined to be true.10 The district court did not err in denying this
reduction.
E. Challenge to the Maximum Statutory Penalty
Barrabi and Vazquez argue that the maximum statutory penalty for the
convicted offense should be five years, and not ten years. We review a district
court’s legal interpretation of a statute de novo. United States v. Burge, 407 F.3d
1183, 1186 (11th Cir. 2005).
Section 1324(a) of United States Code Title 8 states that:
(1)(A) Any person who–
(i) knowing that a person is an alien, brings to or attempts to bring
to the United States in any manner whatsoever such person at a
place other than a designated port of entry or place other than as
designated by the Commissioner, regardless of whether such alien
has received prior official authorization to come to, enter, or
reside in the United States and regardless of any future official
action which may be taken with respect to such alien; ...
(iv) encourages or induces an alien to come to, enter, or reside in
the United States, knowing or in reckless disregard of the fact that
such coming to, entry, or residence is or will be in violation of
law; or
(v)(I) engages in any conspiracy to commit any of the preceding
acts . . .
10
Immediately after arrest, Vazquez gave false statements to Special Agent Derrick Beyss
of the FBI about staying with Barrabi, failed to acknowledge meeting another boat to exchange
crew members, and lied about not calling Barrabi after being stopped by the Coast Guard.
34
shall be punished as provided in subparagraph (B).
Subparagraph (B) provides that:
(B) A person who violates subparagraph (A) shall, for each alien
in respect to whom such a violation occurs--
(i) in the case of a violation of subparagraph (A)(I) or (v)(I) or in
case of a violation of subparagraph (A)(ii), (iii), or (iv), in which
the offense was done for the purpose of commercial advantage or
private financial gain, be fined under Title 18, United States
Code, imprisoned not more than 10 years, or both;
(ii) in the case of a violation of subparagraph (A)(ii), (iii), or
(v)(II), be fined under Title 18, United States Code, imprisoned
not more than 5 years, or both….
Pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), Barrabi and
Vazquez maintain that because they were not charged nor was it proven that they
committed the offense “for the purpose of commercial advantage or private
financial gain,” (B)(i) does not apply, and instead the five-year statutory maximum
explained in (B)(ii) applies. However, Barrabi and Vazquez were convicted under
8 U.S.C. 1324(a)(1)(A)(v)(I), which according to (B)(i) does not carry the added
burden of “commercial advantage or private financial gain” to reach the ten-year
statutory maximum. Barrabi’s 120-month sentence and Vazquez’s 71-month
35
sentence did not exceed the 10-year statutory penalty. This argument is meritless.
See United States v. Martinez-Candejas, 347 F.3d 853, 860 (10th Cir. 2003).
F. Reasonableness
Sentencing decisions are reviewed for an abuse of discretion. Gall v. United
States, 552 U.S. 38, 51 (2007). Barrabi argues that his sentence is unreasonable
because the incorrect maximum statutory penalty was applied and because a
sentence at the lower end of the guideline range would have been more appropriate
and would have met the goals of 18 U.S.C. § 3553(a).
A sentence may be procedurally unreasonable if the district court improperly
calculated the guideline range, treated the guidelines as mandatory rather than
advisory, failed to consider the 18 U.S.C. § 3553(a) factors, selected a sentence
based on clearly erroneous facts, or failed to explain adequately the chosen
sentence. Gall, 552 U.S. at 51. After an appellate court has determined that the
sentence is procedurally sound, the substantive reasonableness of the sentence must
be determined. Id. This review involved examining the totality of the
circumstances, including the extent of any variance from the Guidelines range. Id.
“The fact that the appellate court might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of the district court.” Id.
36
The burden of establishing unreasonableness belongs to the party challenging the
sentence. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).
Barrabi’s sentence is procedurally reasonable because, as the record
indicates, the district court correctly calculated the advisory guideline range and
considered the sentencing factors set forth in 18 U.S.C. § 3553(a).11 As explained
above, the correct statutory maximum was also applied. Furthermore, the record
shows that the court considered the purposes and goals of sentencing, Barrabi’s
characteristics, and the seriousness of the offense.
Likewise, Barrabi’s sentence is substantively reasonable. The district court
has wide discretion in selecting from a reasonable range of appropriate sentences.
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Here, the court
imposed a sentence at the high-end of the guideline range, finding such a sentence
was appropriate given the seriousness of the offense, and the duration of the
conspiracy. Barrabi did not show that the sentence was unreasonable, in light of
the record.
11
Although the court did not expressly state that it considered the 18 U.S.C. § 3553(a)
factors, the government discussed them at the sentencing hearing, and the court stated that it had
considered the parties’ statements. See United States v. Eggersdorf, 126 F.3d 1318, 1322-23
(11th Cir. 1997) (referencing the Government’s opposition to Defendant’s motion that discussed
§ 3553(a) factors, along with support in the record, indicated that the district court had provided
sufficient reasons for denying a resentencing).
37
Thus, the district court was within its discretion in imposing Barrabi’s
sentence.
CONCLUSION
Based on the foregoing reasons, we uphold the district court’s evidentiary
rulings, rulings on the motions, and sentencing decisions.
AFFIRMED.
38