Case: 17-10248 Date Filed: 07/12/2018 Page: 1 of 14
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-10248
Non-Argument Calendar
________________________
D.C. Docket No. 8:15-cr-00480-SCB-JSS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OLEKSII TSURKAN,
IGOR POLSHYN,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(July 12, 2018)
Before WILSON, JORDAN, and EDMONDSON, Circuit Judges.
Case: 17-10248 Date Filed: 07/12/2018 Page: 2 of 14
PER CURIAM:
Defendants Igor Polshyn and Oleksii Tsurkan appeal their convictions and
300-month sentences for conspiracy to possess with intent to distribute -- and for
possession of -- cocaine while aboard a vessel subject to the jurisdiction of the
United States, in violation of 46 U.S.C. §§ 70503(a), 70506(a), (b), 18 U.S.C. § 2,
and 21 U.S.C. § 960(b)(1)(B)(ii). No reversible error has been shown; we affirm.
Briefly stated, Defendants were arrested after United States Coast Guard
(“USCG”) officers found them in possession of 370 kilograms of cocaine while on
a sailboat in international waters south of the Dominican Republic. At trial,
Defendants asserted that, while sailing at night on the open sea, their rented
sailboat became ensnared in rogue ropes. In attempting to disentangle the sailboat,
Defendants discovered that the ropes were attached to several wrapped packages,
which Defendants decided to bring onboard. Suspecting that the packages
contained illegal drugs, Defendants say they intended to deliver the packages to
authorities when they returned to the Dominican Republic.
2
Case: 17-10248 Date Filed: 07/12/2018 Page: 3 of 14
I.
On appeal, Defendants challenge the constitutionality of their convictions
under the Maritime Drug Law Enforcement Act, 46 U.S.C. § 70501, et seq.
(“MDLEA”). In particular, Defendants assert these arguments: (1) the question of
whether the sailboat was “subject to the jurisdiction of the United States”
constitutes an element of the offense that must be proved to a jury beyond a
reasonable doubt; (2) Congress has no constitutional authority to punish offenses
on the high seas without a nexus to the United States; and (3) the government’s
exercise of jurisdiction over Defendants without first establishing such a nexus
violated Defendants’ due process rights.
Defendants acknowledge that their arguments about the MDLEA have been
foreclosed by our binding precedent in United States v. Campbell, 743 F.3d 802
(11th Cir. 2014), and in United States v. Cruickshank, 837 F.3d 1182 (11th Cir.
2016). “Under the prior precedent rule, we are bound to follow a prior binding
precedent unless and until it is overruled by this court en banc or by the Supreme
Court.” United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008)
(quotations omitted).
3
Case: 17-10248 Date Filed: 07/12/2018 Page: 4 of 14
II.
We next address Defendants’ challenges to the district court’s evidentiary
rulings. Polshyn argues that the district court deprived him of his Fifth and Sixth
Amendment rights to present a defense by excluding his testimony about his
brother’s death due to a drug overdose. “Whether the exclusion of evidence
violated a constitutional guarantee is a legal question reviewed de novo.” United
States v. Sarras, 575 F.3d 1191, 1209 n.24 (11th Cir. 2009).
The Sixth Amendment guarantees a defendant the right “to have compulsory
process for obtaining witnesses in his favor.” U.S. Const. Amend. VI. “Implicit in
this right -- as well as in the basic notion of ‘due process of law’ in general -- is the
idea that criminal defendants must be afforded the opportunity to present evidence
in their favor.” United States v. Hurn, 368 F.3d 1359, 1362 (11th Cir. 2004)
(citation omitted).
During trial, Polshyn testified that he and Tsurkan suspected the packages
contained illegal drugs and that they “were too worried to throw it away because
we didn’t think it was a good idea for it to end up in somebody else’s hands.”
Polshyn then added, “We do have a special relationship with drugs, meaning my
younger brother actually died of drugs.” The government objected; and the district
court instructed the jury to disregard the statement about Polshyn’s brother.
4
Case: 17-10248 Date Filed: 07/12/2018 Page: 5 of 14
Tsurkan’s lawyer later sought to question Polshyn about his brother’s death,
asserting that the testimony would establish that Defendants had no intent to sell
the drugs. The district court denied the request on grounds that the testimony was
not relevant and was more prejudicial than probative.
We suspect that the district court erred in excluding Polshyn’s proposed
testimony. We question the district court’s determination that the testimony was
excludable as irrelevant or as unduly prejudicial. As a practical matter, intent was
the only issue in this case. Because the proposed testimony had some tendency to
make more probable Polshyn’s assertion that he had no intent to sell the drugs, the
testimony was “relevant” within the meaning of Fed. R. Evid. 401. Moreover,
although the testimony might have elicited with the jury some sympathy for
Polshyn, we doubt that the testimony’s probative value for the main issue was
“substantially outweighed” by the risk of unfair prejudice. See Fed. R. Evid. 403.
Generally speaking, a defendant has a constitutional right “to present
evidence that has a direct bearing on a formal element of the charged offense.”
Hurn, 368 F.3d at 1363. A defendant also “has the right to introduce evidence that
is not directly relevant to an element of the offense, but that makes the existence or
non-existence of some collateral matter somewhat more or less likely, where that
collateral matter bears a sufficiently close relationship to an element of the
offense.” Id. at 1364.
5
Case: 17-10248 Date Filed: 07/12/2018 Page: 6 of 14
Evidence of Polshyn’s brother’s death seems to fall within this second
category: it constitutes evidence of a collateral matter that bears at least some
relationship to the intent element of the charged offense. Evidence that a person
has lost a close family member to a drug overdose could -- “through a reasonable
chain of inferences” -- make it less likely that that person possessed the requisite
intent to engage in a drug trafficking offense. See id. at 1363. We avoid deciding
constitutional questions when we can; so we will just assume for purposes of this
appeal that the district court made a constitutional error in excluding Polshyn’s
proposed testimony. See Spector Motor Service, Inc. v. McLaughlin, 323 U.S.
101, 105 (1944) (stressing that courts “ought not to pass on questions of
constitutionality . . . unless such adjudication is unavoidable”).
Our focus today is on whether the supposed constitutional error was
“harmless beyond a reasonable doubt.” See Hurn, 368 F.3d at 1362-63. In
deciding whether constitutional error is harmless, we ask “whether there is a
reasonable possibility that the evidence complained of might have contributed to
the conviction.” Chapman v. California, 386 U.S. 18, 23-24 (1967). Our
determination about whether reversal is warranted “must be based on our own
reading of the record and on what seems to us to have been the probable impact of
[the constitutional error] on the minds of an average jury.” Harrington v.
California, 395 U.S. 250, 254 (1969). In some cases, a constitutional error may be
6
Case: 17-10248 Date Filed: 07/12/2018 Page: 7 of 14
deemed harmless beyond a reasonable doubt when the evidence of the defendant’s
guilt is “so overwhelming.” Id.
Based on our review of the record in this case, we conclude that the district
court’s assumed error in excluding the proposed testimony was harmless beyond a
reasonable doubt. Defendants were found traveling on a sailboat displaying a
fraudulent registration number and in an area known for drug trafficking.
Defendants were in possession of 370 kilograms of cocaine, which was stashed
throughout the vessel’s stowage compartments. The only element in dispute at
trial was whether Defendants possessed the requisite intent to distribute the drugs
found onboard. Intent can be inferred based on the large quantity of cocaine found
within Defendants’ possession. See United States v. Tinoco, 304 F.3d 1088, 1123
(11th Cir. 2002).
About intent, Polshyn testified at length about his version of the events,
including that he had no intention of selling the accidentally-discovered drugs and,
instead, intended to turn the drugs over to authorities. Although testimony about
Polshyn’s brother’s death might have lent some support to Polshyn’s assertion that
he lacked the requisite intent, powerful objective evidence in the record
contradicted expressly Polshyn’s version of the events leading up to his being in
possession of the cocaine. In particular, data from the sailboat’s global positioning
system (“GPS”) clashed with Polshyn’s inconsistent testimony about Defendants’
7
Case: 17-10248 Date Filed: 07/12/2018 Page: 8 of 14
direction of travel and his testimony that the sailboat remained stationary for at
least an hour while Defendants purportedly untangled the sailboat from the ropes
and hauled the packages on board. Expert testimony and photographic evidence
also demonstrated that the sailboat’s hull and rudder showed no signs of damage:
this evidence conflicted with Defendants’ testimony about the sailboat having been
entangled in ropes. Defendants also took no steps to report the suspected
contraband to the USCG officers -- even when the USCG officers boarded the
sailboat -- despite Defendants’ asserted intention to turn the drugs over to
authorities.
In the light of the overwhelming evidence of Defendants’ guilt -- including
strong evidence contradicting directly Polshyn’s version of the events -- we are
convinced that the exclusion of the proposed testimony about Polshyn’s brother
contributed in no way to Defendants’ convictions. Having concluded that the
district court’s assumed constitutional error was harmless beyond a reasonable
doubt, no reversal is warranted.
III.
We next address Tsurkan’s argument that the district court abused its
discretion by excluding expert testimony from Captain John Timmel. In pertinent
8
Case: 17-10248 Date Filed: 07/12/2018 Page: 9 of 14
part, Captain Timmel’s proffered testimony would have run this way: it is not
uncommon for sailboats to become entangled in rogue ropes or netting while at
sea. Following a hearing, the district court determined that Captain Timmel’s
testimony was inadmissible under Federal Rule of Evidence 702.
We review the district court’s ruling about the admissibility of expert
testimony under an abuse-of-discretion standard. United States v. Frazier, 387
F.3d 1244, 1258 (11th Cir. 2004). Under this standard, we will not reverse the
district court’s decision “unless the ruling is manifestly erroneous.” Id.
In determining whether an expert’s testimony is admissible under Rule 702,
we consider three factors: (1) whether the expert is qualified to testify competently;
(2) whether the expert has used sufficiently reliable methodology in reaching his
conclusions; and (3) whether the testimony will assist the trier of fact. Id. at 1260.
When a witness relies primarily on his experience to qualify him as an expert, “the
witness must explain how that experience leads to the conclusion reached, why that
experience is a sufficient basis for the opinion, and how that experience is reliably
applied to the facts.” Id. at 1261.
The district court abused no discretion by excluding Captain Timmel’s
proffered testimony. Captain Timmel’s curriculum vitae showed that Captain
Timmel is an experienced harbor pilot who has worked chiefly in the Tampa Bay
area and with motorboats. Nothing demonstrated that Captain Timmel had
9
Case: 17-10248 Date Filed: 07/12/2018 Page: 10 of 14
specialized knowledge or experience sufficient to qualify him as an expert either in
the frequency with which sailboats become ensnared in rogue ropes or nets at sea
or in the sailing conditions south of the Dominican Republic. The testimony was,
thus, excluded properly under Rule 702.
We are also unpersuaded that the exclusion of the proffered testimony
deprived Tsurkan of his Fifth and Sixth Amendment rights. Captain Timmel’s
proffered testimony had no “direct bearing on a formal element of the charged
offense.” See Hurn, 368 F.3d at 1363. Nor would the proffered testimony have
had “a substantial impact on the credibility of an important government witness.”
See id. Testimony about the general likelihood of a sailboat becoming entangled
in ropes at sea would not rebut or cast doubt on the USCG investigator’s testimony
about the condition of the sailboat in this case. Tsurkan has thus demonstrated no
constitutional violation.
IV.
Polshyn next challenges the district court’s application of a two-level
obstruction-of-justice enhancement -- pursuant to U.S.S.G. § 3C1.1 -- for testifying
falsely at trial. We review for clear error the district court’s factual findings and
review de novo the court’s application of the guidelines to those facts. United
10
Case: 17-10248 Date Filed: 07/12/2018 Page: 11 of 14
States v. Doe, 661 F.3d 550, 565 (11th Cir. 2011). “Under the clearly erroneous
standard, we must affirm the district court unless review of the entire record leaves
us with the definite and firm conviction that a mistake has been committed.”
United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003) (quotation
omitted).
In pertinent part, section 3C1.1 provides for a two-level increase to the
defendant’s base offense level if “(1) the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administration of justice with
respect to the investigation, prosecution, or sentencing” of his offense of
conviction, and “(2) the obstructive conduct related to . . . the defendant’s offense
of conviction and any relevant conduct.” U.S.S.G. § 3C1.1. The Application
Notes to section 3C1.1 list examples of conduct warranting the enhancement,
including “committing, suborning, or attempting to suborn perjury.” Id. § 3C1.1,
comment. (n.4(B)).
A defendant’s testimony constitutes perjury when the testimony: (1) is made
under oath; (2) is false; (3) is material; and (4) is given “with the willful intent to
provide false testimony, rather than as a result of confusion, mistake, or faulty
memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993). For purposes of
section 3C1.1, “material . . . means evidence, fact, statement, or information that, if
11
Case: 17-10248 Date Filed: 07/12/2018 Page: 12 of 14
believed, would tend to influence or affect the issue under determination.”
U.S.S.G. § 3C1.1, comment. (n.6).
The record supports the district court’s factual determination that Polshyn
committed perjury during trial. Polshyn’s testimony that he intended to turn the
cocaine over to authorities was inconsistent with evidence that neither he nor
Tsurkan took steps to notify the USCG agents that Defendants suspected
contraband was aboard the sailboat. Moreover, the sailboat’s GPS data
contradicted Polshyn’s testimony (1) that Defendants had been traveling toward
Grenada and (2) that the sailboat had been stationary for at least an hour while
Defendants worked to free the sailboat from the ropes and to load the cocaine-
filled packages onboard. A USCG investigator who examined the sailboat also
testified that he observed no disturbance in the marine growth or other damage to
the hull or rudder that would be consistent with Polshyn’s version of the events.
Viewing the record as a whole, we are not left “with the definite and firm
conviction” that the district court committed a mistake in determining that Polshyn
testified falsely. The district court committed no clear error in determining that
Polshyn perjured himself and, thus, applied properly a two-level enhancement
under section 3C1.1.
12
Case: 17-10248 Date Filed: 07/12/2018 Page: 13 of 14
V.
Tsurkan challenges the district court’s application of a two-level role
enhancement, pursuant to U.S.S.G. § 2D1.1(b)(3), for acting as a pilot or copilot of
a vessel carrying a controlled substance.
The Sentencing Guidelines provide for a two-level increase to a defendant’s
base offense level if he “acted as a pilot, copilot, captain, navigator, flight officer,
or any other operation officer aboard any craft or vessel carrying a controlled
substance.” U.S.S.G. § 2D1.1(b)(3)(C). We have said that a defendant need not
have formal training or licensure to qualify as a “pilot” or “copilot” for purposes of
a section 2D1.1(b)(3) enhancement. United States v. Cartwright, 413 F.3d 1295,
1298-99 (11th Cir. 2005). Nor must the defendant have been in “position of
authority” for the enhancement to apply. Id. (concluding that the district court
committed no clear error in applying the enhancement to a defendant who took
turns driving the boat, and who followed instructions on where to steer the boat).
Polshyn and Tsurkan each testified that, at night, they took two-hour shifts at
the helm while the other would sleep. Based on this evidence, the district court
committed no clear error in determining that Tsurkan acted as a pilot or copilot for
purposes of the section 2D1.1(b)(3) enhancement. That Tsurkan lacked
13
Case: 17-10248 Date Filed: 07/12/2018 Page: 14 of 14
specialized training or knowledge about sailing and was following Polshyn’s
instructions does not preclude application of the enhancement. See id.
AFFIRMED.
14