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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10252
Non-Argument Calendar
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D.C. Docket No. 9:12-cr-80234-DMM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAMMY LYNN VALDES,
RAFAEL OSCAR VALDES,
a.k.a. Rafael O. Valdez,
Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(March 9, 2017)
Before HULL, WILSON and BLACK, Circuit Judges.
PER CURIAM:
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Tammy and Rafael Valdes appeal their convictions for one count of dealing
in firearms without a license, in violation of 18 U.S.C. § 922(a)(1), and four counts
of filing false income tax returns, in violation of 26 U.S.C. § 7206(1). Rafael also
appeals his convictions for one count of making a false statement in connection
with the sale of firearms, in violation of 18 U.S.C. § 922(a)(6), and one count of
selling stolen property, in violation of 18 U.S.C. § 2314. They raise separate issues
on appeal, which we address in turn. After review, we affirm their convictions.
I. DISCUSSION
A. Conflict of interest
Tammy contends a conflict of interest arose at trial because her attorney had
formerly represented Rafael and she did not knowingly and voluntarily waive her
right to conflict-free representation. The Sixth Amendment guarantees a criminal
defendant the right to effective assistance of counsel. Wheat v. United States, 486
U.S. 153, 158-59 (1988). This right is violated when the defendant’s counsel “has
an actual conflict of interest that affects the defendant adversely.” United States v.
Rodriguez, 982 F.2d 474, 477 (11th Cir. 1993). However, a criminal defendant
may waive his right to conflict-free counsel. United States v. Garcia, 517 F.2d
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272, 276 (5th Cir. 1975),1 abrogated on other grounds by Flanagan v. United
States, 465 U.S. 259 (1984).
When made aware of a potential conflict of interest, the court should
conduct an inquiry, akin to the plea colloquy under Federal Rule of Criminal
Procedure 11, to determine whether a defendant wishes to waive the conflict. Id. at
278. During the hearing, the court should address the defendant “personally and
forthrightly” about the potential consequences of the conflict and elicit a narrative
response from the defendant that she has been advised of her right to effective
counsel, understands the details of the potential conflict and its consequences, has
discussed the matter with her attorney or an independent counsel, and voluntarily
waives her right. Id. In order to be valid, a waiver must be not only voluntary, but
also must be a “knowing, intelligent act[] done with sufficient awareness of the
relevant circumstances and likely consequences.” Id. at 276 (quotation omitted).
In order for a defendant’s waiver to be knowing and intelligent, he must be
informed “(1) that a conflict of interest exists; (2) the consequences to his defense
from continuing with conflict-laden counsel; and (3) that he has a right to obtain
other counsel.” Duncan v. State of Ala., 881 F.2d 1013, 1017 (11th Cir. 1989).
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
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Tammy’s Sixth Amendment right to conflict-free representation was not
violated. See Hamilton v. Ford, 969 F.2d 1006, 1010 (11th Cir. 1992) (reviewing
whether a defendant waived his right to conflict-free counsel de novo). Tammy’s
waiver was knowing and intelligent. First, the record shows Tammy knew of the
conflict because she acknowledged in both of her waivers of conflict that she had
discussed all potential areas of conflict with her counsel. Most importantly, in both
waivers of conflict, Tammy stated she had discussed the conflict issues raised by
the Government, and the Government addressed the very conflict that she is
arguing on appeal she did not know about—her lack of knowledge. The district
court also warned Tammy during the second Garcia hearing that conflicts of
interest could arise before, during, and after trial. Second, Tammy was aware of
the consequences because the Government explained in detail in its motion for a
Garcia hearing, its motion to disqualify her attorney, and at both Garcia hearings
that Tammy’s defenses might be limited by her continued representation by her
attorney. Third, Tammy acknowledged she knew she had a right to conflict-free
representation at the second Garcia hearing. Because Tammy knew of the
conflict, had been informed of the potential consequences, and understood she had
a right to conflict-free representation and still chose to waive her right, her waiver
was valid. See Duncan, 881 F.2d at 1017.
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B. Dealing firearms without a license
Tammy next asserts there was insufficient evidence she knowingly engaged
in the business of dealing firearms without a license. Under 18 U.S.C.
§ 922(a)(1)(A), it is unlawful for a person to engage in the business of dealing in
firearms without a license. A person is “engaged in the business of selling firearms
at wholesale or retail” if she “devotes time, attention, and labor to dealing in
firearms as a regular course of trade or business with the principal objective of
livelihood and profit through the repetitive purchase and resale of firearms.” 18
U.S.C. § 921(a)(11)(A), (a)(21)(C). In contrast, a person does not engage in the
business of selling firearms if she “makes occasional sales, exchanges, or
purchases of firearms for the enhancement of a personal collection or for a hobby,
or . . . sells all or part of [her] personal collection of firearms.” 18 U.S.C.
§ 921(a)(21)(C). The government must prove the defendant’s activity rose above
“the occasional sale of a hobbyist,” but does not need to show “the defendant’s
primary business was dealing in firearms or that [she] necessarily made a profit
from dealing.” United States v. Wilmoth, 636 F.2d 123, 125 (5th Cir. Unit A Feb.
1981). “It is enough to prove that the accused has guns on hand or is ready and
able to procure them for the purpose of selling them from time to time” for
customers. Id. A conviction requires proof the defendant knew her conduct was
unlawful. Bryan v. United States, 524 U.S. 184, 196 (1998).
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The district court did not err in denying Tammy’s motion for a judgment of
acquittal because there is sufficient evidence to conclude Tammy knew her
conduct was illegal. See United States v. Hunt, 526 F.3d 739, 744 (11th Cir. 2008)
(reviewing de novo a district court’s denial of a Federal Rule of Criminal
Procedure 29 motion for a judgment of acquittal, viewing the evidence in the light
most favorable to the government and drawing all reasonable inferences in favor of
the jury’s verdict). Tammy admitted to knowing a business that sells firearms was
required to have a federal firearms license (FFL). She also admitted to having
filled out a Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) form,
which stated it was unlawful to engage in the business of dealing in guns without
an FFL. While she denied knowing she was conducting a business, when viewing
the evidence in the light most favorable to the Government, it is reasonable to infer
Tammy was aware she was engaging as a business based on the fact that (1) at the
gun shows where she sold firearms with Rafael, Tammy referred to her buyers as
customers, (2) she called her activity a “hustle,” (3) she and Rafael sold a high
volume of firearms—600 in 7 years, (4) she offered to search out specific firearms
for customers, (5) she discussed which firearms were her best sellers, and (6) she
handed out business cards. Therefore, a rational fact-finder could conclude that
not only did Tammy know businesses engaging in the sale of firearms were
required to have an FFL, but also that Tammy knew her actions qualified as a
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business, and therefore, her conduct was illegal because she did not have an FFL.
Additionally, the jury was entitled to take Tammy’s testimony denying knowledge
that she was breaking the law as substantive evidence of her guilt. See United
States v. Williams, 390 F.3d 1319, 1325 (11th Cir. 2004) (stating a defendant who
chooses to testify runs the risk of the jury disbelieving her, concluding the opposite
of her testimony is true, and considering her statements as substantive evidence of
her guilt).
C. Filing false income tax returns
Tammy contends there was insufficient evidence she willfully filed false
income tax returns and she was entitled to invoke the “innocent spouse” provision
of 26 U.S.C. § 6013(e) because she did not prepare the tax documents.
A person has filed false income tax returns, in violation of 26 U.S.C.
§ 7206(1), if the government can show “(1) [the defendant] willfully made and
signed a tax return; (2) the return contained a written declaration that it was made
under penalties of perjury; (3) the return was false as to a material matter; and
(4) [the defendant] did not subjectively believe that the return was true as to that
material matter.” United States v. Hough, 803 F.3d 1181, 1188 (11th Cir. 2015);
see 26 U.S.C. § 7206(1).
26 U.S.C. § 6013(e) was repealed in 1998. See 26 U.S.C. § 6013(e).
Section 6015 of Title 26 currently provides for the possibility of relief from joint
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and several liability on a joint tax return. Under this section, a person may elect to
seek relief from liability if:
(A) a joint return has been made for a taxable year; (B) on such return
there is an understatement of tax attributable to erroneous items of one
individual filing the joint return; (C) [she] establishes that in signing
the return . . . she did not know, and had no reason to know, that there
was such understatement; (D) taking into account all the facts and
circumstances, it is inequitable to hold [her] liable for the deficiency
in tax for such taxable year attributable to such understatement; and
(E) [she] elects . . . the benefits of this subsection not later than the
date which is 2 years after the date the Secretary has begun collection
activities [for her].
26 U.S.C. § 6015(a)(1), (b)(1)(A)-(E). The wording of the former Section 6013(e)
of Title 26 is substantially the same as the wording of Section 6015 of Title 26.
See 26 U.S.C. § 6013(e) (repealed in 1998); see also 26 U.S.C. § 6015.
The district court did not plainly err by not applying the innocent spouse
exception because the exception applies to tax liability, not criminal liability, and
there is no binding precedent that extends it to criminal prosecutions for tax fraud.
See United States v. Bonilla, 579 F.3d 1233, 1238 (11th Cir. 2009) (stating we
review issues raised for the first time in a direct appeal for plain error only).
Therefore, Tammy cannot show there was an error that was obvious and clear
under current law because neither this Court nor the Supreme Court have applied
§ 6013(e) in a criminal context. See United States v. Humphrey, 164 F.3d 585, 588
(11th Cir. 1999) (“A plain error is an error that is ‘obvious’ and is ‘clear under
current law.’”).
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The district court did not err by denying Tammy’s motion for a judgment of
acquittal because there was sufficient evidence to conclude she did not believe the
tax return was true. 2 See Hunt, 526 F.3d at 744 (reviewing sufficiency argument
de novo). Tammy’s actions support the conclusion she knew about the additional
income. She was heavily involved in the gun show sales, and as discussed above,
there was sufficient evidence that Tammy knew she and Rafael were conducting a
business. Tammy also knew about Rafael’s GunBroker.com activity and had even
helped with a purchase, and deposited the rent checks. Furthermore, the money
from Rafael’s GunBroker.com sales went into a bank account with her name on it.
Therefore, even if Tammy did not know the exact numbers, it was not
unreasonable for a fact-finder to conclude Tammy had knowledge she and Rafael
were earning more than just their salaries. Furthermore, the jury was entitled to
disbelieve Tammy’s complete denials of knowledge and take them as substantive
evidence of her guilt. See Williams, 390 F.3d at 1325.
D. Selling stolen property
Rafael contends there was insufficient evidence he sold stolen property or
that the property had a value of at least $5,000. A defendant violates 18 U.S.C.
§ 2314 if (1) he transports goods in interstate commerce, (2) those goods had a
value of $5,000 or more, and (3) he knew the goods were “stolen, converted or
2
Tammy only disputes the last element, which is whether she believed the return was
truthful.
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taken by fraud.” Value is defined as “the face, par, or market value, whichever is
the greatest, and the aggregate value of all goods . . . referred to in a single
indictment shall constitute the value thereof.” 18 U.S.C. § 2311.
The district court did not err in denying Rafael’s motion for a judgment of
acquittal because there was sufficient evidence to conclude he knowingly
transported more than $5,000 in stolen goods. First, there was sufficient evidence
to conclude the gun parts Rafael sold online were stolen. Through his employment
with the Hialeah Police Department (HPD), Rafael had access to all the firearms
on the destruction logs, and Agent Barborini testified that the types of firearms that
were listed in the destruction logs, including some rare types of firearms, were
consistent with the type of firearms parts that Rafael sold online. Furthermore, the
Government was able to show that two of Rafael’s online gun parts sales
definitively matched to firearms on the destruction log. Additionally, it was
unusual to sell parts kits without a frame unless the parts were obtained for free,
and therefore, Rafael’s ability to sell so many part kits aligns with the undisputed
fact he had access to parts from the HPD destruction logs. Second, there was
sufficient evidence to conclude the stolen goods had a total value that exceeded
$5,000, because an ATF forensic auditor was able to match the online
advertisements to money order payments that Rafael had received. He was able to
total the money orders and concluded Rafael sold more than $6,000 in gun parts.
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The $6,000 represents the value of the firearm parts because that is the price a
buyer was willing to pay. See United States v. Robinson, 687 F.2d 359, 360 (11th
Cir. 1982) (stating if the goods have no face or par value, the market value is “the
price a willing buyer would pay . . . either at the time and the place that the
property was stolen or at any time during the receipt or concealment of the
property”). Because the $6,000 figure was the total gun parts sales from August
2008 to March 2009, it is possible to infer the sales of stolen parts from September
2008 to March 2009, the time period charged in the indictment, exceeded $5,000.
Third, because the evidence supported the conclusion Rafael personally stole the
firearm parts, there was sufficient evidence to conclude Rafael knew the goods
were stolen. Moreover, the jury was entitled to consider Rafael’s testimony as
substantive evidence of his guilt. Williams, 390 F.3d at 1325. Accordingly,
because a rational factfinder could have reasonably concluded Rafael is guilty, we
affirm. Brown, 665 F.3d at 1248.
E. Expert testimony
Rafael also asserts the district court erred by allowing Agent Barborini to
testify that firearm parts sold by Rafael were of the same type as firearms listed on
the HPD property destruction logs because the district court did not evaluate
Barborini’s methodology or reliability and the testimony was highly prejudicial.
Rule 702 of the Federal Rules of Evidence states:
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A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a
fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
The district court performs a gatekeeping function by requiring that scientific and
technical expert testimony meets the standards of Rule 702. United States v.
Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004).
In determining the admissibility of expert testimony, trial courts must
consider whether:
(1) the expert is qualified to testify competently regarding the matters
he intends to address; (2) the methodology by which the expert
reaches his conclusions is sufficiently reliable as determined by the
sort of inquiry mandated in Daubert;[3] and (3) the testimony assists
the trier of fact, through the application of scientific, technical, or
specialized expertise, to understand the evidence or to determine a
fact in issue.
Id. The proponent of the expert testimony bears the burden of showing his expert
meets those three factors. Id.
3
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993) (holding the
Federal Rules of Evidence required the trial judge to ensure that “an expert’s testimony both
rests on a reliable foundation and is relevant to the task at hand).
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To assess the reliability of an expert opinion, the court considers a number
of factors, including those listed by the Supreme Court in Daubert: “(1) whether
the expert’s theory can be and has been tested; (2) whether the theory has been
subjected to peer review and publication; (3) the known or potential rate of error of
the particular scientific technique; and (4) whether the technique is generally
accepted in the scientific community.” Id. at 1262. The Daubert factors are only
illustrative and may not all apply in every case. Id.
The district court did not abuse its discretion by admitting Barborini as an
expert witness and allowing him to testify. See id. at 1258 (stating we review a
district court’s decisions pertaining to the admissibility and reliability of expert
testimony and opinion for an abuse of discretion). First, Barborini’s years of
experience working with firearms and familiarizing himself with the manufacturers
and their products made him qualified as a firearms identification expert. Second,
Barborini’s methodology was sufficiently reliable. The factors outlined in Daubert
are inapplicable here, as the methodology in this case involves mere identification
and comparison, but since those factors are merely illustrative, that does not mean
that Barborini’s testimony was inadmissible. Id. at 1262. As already established,
Barborini’s experience made him qualified to identify firearms, and it follows that
someone who is qualified as an expert in firearm identification would be able to
determine the make and models of the firearms listed in the HPD destruction logs
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or Rafael’s advertisements. Furthermore, Rafael’s firearms identification expert
did not testify an expert would not be able to look at a firearm part and identify the
make and model of the firearm. He only said that, without serial numbers, it would
be impossible to tell whether two guns of the same make and model were the same
particular firearm, but Barborini admitted as much in his own testimony. The fact
Barborini could not definitively testify the parts matched the firearms in the HPD
destruction logs or that Rafael had stolen the parts he sold goes to the weight of the
testimony, not the reliability of his methods or the admissibility of his testimony.
Furthermore, even if the district court abused its discretion, the error was
harmless. Without Barborini’s testimony, there was still evidence Rafael had
unique access to a source of gun parts, the sale of gun part sets was unusual and
not ordinarily profitable, on two occasions Rafael sold gun parts with serial
numbers that matched firearms from the HPD destruction logs, and Rafael received
over $6,000 from selling gun parts online. A reasonable factfinder could conclude
from that evidence that Rafael was guilty. Additionally, the jury was entitled to
disbelieve Rafael’s denials and take his testimony as substantive evidence of guilt.
Williams, 390 F.3d at 1325.
II. CONCLUSION
Accordingly, we affirm the Valdeses’ convictions.
AFFIRMED.
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