[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-10202
January 23, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-10015-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN MELTON KIVETT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 23, 2008)
Before HULL, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Steven Melton Kivett appeals his convictions and 27-month sentence,
imposed after a jury trial, for conspiracy to commit alien smuggling, a violation of
8 U.S.C. § 1324(a)(1)(A)(v)(i); six counts of alien smuggling, violations of 8
U.S.C. § 1324(a)(1)(A)(iv); unlawful entry into Cuban waters, a violation of 50
U.S.C. § 192, 33 C.F.R. §§ 107.215, 107.230; and making a false statement to
Coast Guard officials, a violation of 18 U.S.C. § 1001(a)(2). On appeal, Kivett
raises three claims: (1) that the district court erred by admitting into evidence, at
trial, a document which was not produced during discovery; (2) that insufficient
evidence supported his convictions for alien smuggling and conspiracy to commit
alien smuggling; and (3) that his sentence was unreasonable because the district
court did not take into account the 18 U.S.C. § 3553(a) factors, including his age
and health.1 After careful review, we affirm.
The relevant facts are straightforward. On June 22, 2006, Kivett was
charged with one count of conspiracy to commit alien smuggling, 8 U.S.C. §
1324(a)(1)(A)(v)(I) (Count One); six counts of alien smuggling, 8 U.S.C. §
1324(a)(1)(A)(iv) (Counts Two through Seven); one count of unlawful entry into
Cuban waters, 50 U.S.C. § 192, 33 C.F.R. §§ 107.215, 107.230 (Count Eight); and
one count of making a false statement to a member of the Coast Guard, 18 U.S.C. §
1001(a)(2) (Count Nine). Count One alleged that Kivett had committed three overt
acts in furtherance of the conspiracy: (1) by departing Florida in a vessel, (2)
1
Kivett received a sentence within the Guidelines range. Kivett never challenged the range,
nor did he request a sentence outside of the range. To the extent Kivett suggests, for the first time
on appeal, that he was entitled to a downward variance, that is, a sentence below the Guidelines
range, we discern no plain error.
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taking approximately six Indian nationals onboard near a Cuban beach, and (3) by
traveling on the high seas with the Indian nationals onboard a vessel with Florida
registration. The indictment also contained a criminal forfeiture count. Kivett pled
not guilty and proceeded to trial.
The government presented the following evidence. Joshua Soto, a Boat
Mate Second Class with the U.S. Coast Guard, testified that on June 6, 2006, he
received a telex from the Cuban Border Guard indicating the presence of a
suspected alien-smuggling vessel. Soto subsequently saw Kivett fishing on a
vessel traveling north at a rate of between five and six knots. Soto observed six
other individuals onboard the vessel, all of whom appeared to Soto to be nervous.
Soto subsequently boarded the vessel and determined that Kivett was the master or
chief operator. Soto asked Kivett the purpose of his voyage and Kivett responded
that he had left Key West to go on a fishing trip and had picked up the six
passengers from a sinking vessel. Soto attempted to speak with the passengers, but
they did not speak English, and he instructed the boarding team to search for
identification. The boarding team discovered passports that contained Cuban visa
stamps. Kivett provided Soto with a Canadian citizenship card bearing the name
“Steven Matthew Kelly.” 2 The vessel, however, was on the U.S. registry and
2
The parties subsequently stipulated that Kivett was not a Canadian citizen, provided false
identification at the time of his arrest, and his real name was not “Steven Matthew Kelly.”
3
Soto’s team found no Coast Guard permit allowing travel to Cuba onboard the
vessel. During the search, over 100 gallons of fuel were discovered, which Soto
opined was an excessive amount. Moreover, despite how far offshore the vessel
was located, only light fishing tackle was found. Excessive amounts of food and
water for one person were also found, as were charts of Cuban waters and a
cruising guide for the area. Sections in the guide were highlighted, including an
area Soto said was popular with alien smugglers.
During Soto’s testimony, the government moved to admit Exhibit Eight as a
self-authenticating document. The exhibit was a “certificate of non-existence of a
permit,” presumably to enter Cuban waters, relating to Kivett, issued by the
Commander of the Seventh Coast Guard District. Kivett’s counsel objected to the
admissibility, arguing that he had not seen the document before earlier that day and
that it was not provided during discovery. The government responded that the
exhibit had been obtained only a few days before trial. The district court held a
sidebar conference, which was not transcribed, after which Exhibit Eight was not
admitted. The government continued its examination of Soto, asking him whether
he knew if Kivett had permission to enter Cuban territorial seas. Soto responded in
the negative, stating that, to his knowledge, the vessel did not have the required
permit.
4
Petty Officer Victor J. Rosario was a member of the Coast Guard boarding
team that boarded and searched Kivett’s vessel. Rosario noticed that Kivett reeled
in a school of fish just prior to the boarding and appeared nervous. According to
Petty Officer Rosario, Kivett claimed that he was a Canadian, rather than
American, citizen. Kivett also stated that he had been fishing early in the morning,
when he found the six passengers onboard a sinking a boat. Kivett claimed to have
rescued them and put their belongings in bags on his vessel. Petty Officer Rosario
found this explanation to be suspicious because six hours had passed since the
alleged rescue and the Coast Guard had not been informed by Kivett. Kivett
claimed that his radio was not operational, but Rosario conducted a radio check
with the Coast Guard boat and determined that the radio was working. Moreover,
Petty Officer Rosario observed the six passengers and noticed that they were
completely dry, as were their belongings, and that their belongings included
backpacks full of clothes and documents from India, including passports and high
school diplomas. Rosario also determined that the vessel was not carrying an
adequate quantity of bait.
The government also presented the testimony of some of the Indian
passengers, who all stated that they were Indian citizens. Hareshkumar Kandas
Patel further testified that his paternal uncle knew someone named “Alley” who
5
had helped the passengers get visas to Cuba and plane tickets. Upon arrival in
Cuba, an Indian spokesperson spoke with Alley, booked the passengers into a
hotel, and subsequently took them to two different houses. Ultimately, a different
person took them to a beach, where Kivett picked them up in his boat. H.K. Patel
testified that he did not speak English and never spoke with Kivett or paid him any
money. Another of the passengers testified and provided a similar version of
events.
Jeffrey Concet, a cooperating witness appearing pursuant to a plea
agreement, testified that Kivett had admitted going to Cuba to pick up six Indians,
being paid $10,200 per person, and having received $20,000 by the time of the
incident. Concet testified that Kivett indicated a Pakistani named Mohammed was
the middleman and that the Indian nationals’ family lived in New York and was
paying for the transport. According to Concet, Kivett had been smuggling since
1984, when he took college kids from Miami to the Bahamas and then returned to
Miami with illegal aliens. Kivett told Concet that the Indians were not dressed
properly when he picked them up and that they were supposed to be dressed as
tourists. Kivett also told Concet that he wanted Mohammed and the Indian
nationals’ families to contact the Indian nationals and tell them to testify that he
had rescued them from a sinking ship, rather than that he picked them up on a
6
Cuban beach. Kivett also said that he had thrown several empty containers of fuel
off the boat.
Steven Bausmith, a customs and border protection officer, interviewed
Kivett after his detention by the Coast Guard. Kivett stated that he was an
American citizen and explained that he had used false identification because of an
outstanding warrant. Kivett also indicated that he co-owned the boat on which he
had been detained. His told Bausmith that his co-owner was named Mohammed.
After Bausmith’s testimony, the government again moved to admit Exhibit
Eight, but Kivett’s counsel objected based on Fed. R. Crim. P. 16, arguing that the
document was not timely provided during discovery. The district court overruled
the objection and admitted the exhibit, finding no prejudice resulting from the late
discovery.
At the close of the government’s case-in-chief, Kivett moved for a judgment
of acquittal, pursuant to Fed. R. Crim. P. 29, on the basis of insufficient evidence,
which the court denied. After introducing several exhibits, the defense rested and
renewed its motion for a judgment of acquittal, which was also denied. The jury
subsequently convicted Kivett on all nine counts and he proceeded to sentencing.
The presentence investigation report (“PSI”) recommended a base offense
level of 12, pursuant to U.S.S.G. § 2L1.1(a)(3), and a 3-level upward adjustment,
7
pursuant to § 2L1.1(b)(2)(A), because the offense involved the smuggling,
transporting or harboring of six illegal aliens. With an adjusted offense level of 15,
and a criminal history category of II, the advisory Guidelines imprisonment range
was 21 to 27 months. Also under the Guidelines, Kivett faced a supervised-release
term of two to three years, § 5D1.2(a)(2), and a fine range of between $4,000 and
$40,000, § 5E1.2(c)(3). Kivett did not object to the PSI’s facts or calculations.
At the sentencing hearing, no new objections were raised and the district
court implicitly adopted the PSI. After Kivett stated that he would not continue
engaging in criminal activities, his counsel noted that Kivett had cooperated at the
time of the incident. Counsel also highlighted that Kivett was 57 years old and
“not in the best of health.” Kivett’s counsel requested a low-end Guidelines
sentence of 21 months’ imprisonment. The district court stated that it had
considered the statements of all parties, “the Presentence Report which contains the
advisory guidelines,” and the statutory factors. The court then sentenced Kivett to
27 months’ imprisonment on all nine counts, to be served concurrently, followed
by three years of supervised release on each count, also to run concurrently, and
ordered Kivett to pay a $1,000 fine and a $900 special assessment. Kivett raised
no objections to the findings of fact or to the manner in which sentence was
pronounced. This appeal followed.
8
First, Kivett challenges the district court’s admission of Exhibit Eight.
Again, the exhibit consisted of a certificate of non-existence of a permit from the
Commander, Seventh Coast Guard District. It is undisputed that the government
did not receive the document until a few days before the trial and did not provide it
to the defense during discovery. We review evidentiary rulings for abuse of
discretion. United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir. 2005).
Under Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure, the
government must disclose, upon a defendant’s request, documents that are “within
the government’s possession, custody, or control” if requested documents are
material to preparing the defense or the government intends to use the documents
during its case-in-chief. Rule 16 further provides that one of the remedies for a
violation of the rule is the exclusion of the subject undisclosed evidence. Fed. R.
Crim. P. 16(d)(2)(C). It is well-settled, however, there is no Rule 16 violation
occurs where the requested materials are not in the government’s possession,
custody, or control. See United States v. Brazel, 102 F.3d 1120, 1150 (11th Cir.
1997); United States v. Cannington, 729 F.2d 702, 712 (11th Cir. 1984). Because
Exhibit Eight was not “within the possession, custody, or control” of the
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government prior to a few days before the trial, the district court did not abuse its
discretion by admitting the exhibit and denying relief under Rule 16(d)(2)(C).3
Kivett also challenges the sufficiency of the evidence to support his
convictions for alien smuggling and engaging in a conspiracy to do so (Counts One
through Seven). We review challenges to the sufficiency of the evidence de novo,
resolving all reasonable inferences from the evidence in favor of the jury’s verdict.
See United States v. Rudisill, 187 F.3d 1260, 1267 (11th Cir. 1999). The evidence
is sufficient where a reasonable trier of fact, choosing among reasonable
interpretations of the evidence, could find guilt beyond a reasonable doubt. United
States v. Lluesma, 45 F.3d 408, 409-10 (11th Cir. 1995). “A conviction must be
upheld unless the jury could not have found the defendant guilty under any
reasonable construction of the evidence.” United States v. Chastain, 198 F.3d
1338, 1351 (11th Cir. 1999). “It is not necessary that the evidence exclude every
reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt.” United States v. Faust, 456 F.3d 1342, 1345 (11th
Cir.), cert. denied, 127 S.Ct. 615 (2006).
3
Even if we found an abuse of discretion in the district court’s ruling, any error in admitting
the contested document unquestionably was harmless. Cf. United States v. Baker, 432 F.3d 1189,
1202 (11th Cir. 2005) (reviewing preserved evidentiary objection for harmless error). An error is
harmless if it “had no substantial influence on the outcome and sufficient evidence uninfected by
error supports the verdict.” United States v. Dickerson, 248 F.3d 1036, 1048 (11th Cir. 2001). Here,
evidence independent of the alleged evidentiary error showed that Kivett’s vessel did not have the
required permit to enter Cuban waters.
10
To establish a criminal violation of § 1324(a), the Government must prove
beyond a reasonable doubt that the defendant “(1) encouraged or induced the alien
to enter or reside in the United States, (2) knowing or in reckless disregard that the
alien’s coming to, entry, or residence in the United States was in violation of the
law.” United States v. Ndiaye, 434 F,3d 1270, 1297 (11th Cir.), cert. denied, 127
S. Ct. 128 (2006). In the instant case, the government presented abundant evidence
to support Kivett’s alien-smuggling convictions. With respect to the six counts of
encouraging or inducing aliens to come to the United States, Kivett claimed to
have picked up the aliens from a sinking vessel, but the six aliens onboard the
vessel and their belongings were dry. The vessel also contained excessive food
and fuel for the fishing trip described by Kivett, in addition to charts of Cuban
waters. Two of the Indian nationals testified that he had picked up all six
passengers from a Cuban beach. Moreover, Concet testified that Kivett was paid a
substantial sum and wanted the aliens to change their testimony and declare that
they had been rescued, despite Kivett’s statements to the contrary, which he made
to authorities after his detention. In short, the evidence was sufficient to support
the jury’s guilty verdicts
As for the sufficiency of the evidence to support Kivett’s conviction on the
conspiracy count, “[t]he essential elements of criminal conspiracy are an agreement
11
between two or more persons to commit a crime and an overt act in furtherance of
the agreement by one of the conspirators.” United States v. Avila-Dominguez, 610
F.2d 1266, 1271 (5th Cir. 1980) (conspiracy to encourage or induce the entry of
illegal aliens into the United States and to transport those aliens within the United
States). “Once the existence of the conspiracy is established, there must be
substantial evidence that each alleged conspirator knew of, intended to join and
participated in the conspiracy.” Id.
“The existence of an agreement may be proven by circumstantial evidence,
including inferences from the conduct of the alleged participants or from
circumstantial evidence of a scheme.” United States v. Silvestri, 409 F.3d 1311,
1328 (11th Cir. 2005) (quotation marks omitted). In fact, an entire “[c]onspiracy
may be proven by circumstantial evidence and the extent of participation in the
conspiracy or extent of knowledge of details in the conspiracy does not matter if
the proof shows the defendant knew the essential objective of the conspiracy.”
United States v. Gupta, 463 F.3d 1182, 1194 (11th Cir. 2006) (quotation marks
omitted). Furthermore, the government is not required to “prove that each
conspirator agreed with every other conspirator, knew of his fellow conspirators,
was aware of all of the details of the conspiracy, or contemplated participating in
the same crime.” United States v. Browne, 505 F.3d 1229, 1274 (11th Cir. 2007).
12
Kivett’s conspiracy conviction also is amply supported by the evidence. The
government established the existence of a criminal agreement, circumstantially, by
presenting testimony about (1) the involvement of Alley, a paternal uncle of one of
the passengers, and multiple agents in Cuba; (2) the amount of money received by
Kivett for picking up the Indian nationals; and (3) Kivett’s failed attempts,
following his arrest, to have the aliens change their testimony to say that they were
rescued from a sinking boat rather than picked up on a Cuban beach. Moreover,
the evidence plainly supported a finding that Kivett committed at least one of the
three overt acts alleged in the indictment, including that he piloted a vessel with six
Indian nationals onboard after picking them up on a Cuban beach. On this record,
the jury readily could have found Kivett guilty under a reasonable construction of
the evidence.
Finally, Kivett argues his sentence was unreasonable. We review a
defendant’s ultimate sentence for reasonableness. United States v. Booker, 543
U.S. 220, 264 (2005); United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005).
Under the post-Booker, advisory Guidelines regime, district courts enjoy
significant latitude in imposing criminal sentences. Rita v. United States, 127 S.
Ct. 2456, 2465 (2007); see also Gall v. United States, 128 S. Ct. 586, 594 (2007).
The reasonableness standard of appellate review is akin to abuse of discretion. See
13
Gall, 128 S. Ct at 594 (“Our explanation of ‘reasonableness’ review in the Booker
opinion made it pellucidly clear that the familiar abuse-of-discretion standard of
review now applies to appellate review of sentencing decisions.”); Kimbrough v.
United States, 128 S. Ct. 558, 576 (2007) (stating that appellate courts should give
“due respect to [a] District Court’s reasoned appraisal” of the proper sentence for a
defendant). “[T]he party who challenges the sentence bears the burden of
establishing that the sentence is unreasonable in light of both [the] record and the
factors in section 3553(a).” Talley, 431 F.3d at 788.
Under § 3553(a), a sentencing court is charged with imposing a sentence that
is “sufficient, but not greater than necessary” to reflect the seriousness of the
offense, afford deterrence, protect the public from further crimes of the defendant,
and provide the defendant with educational or vocational training, medical care or
other treatment. The factors a court should consider include (1) the nature and
circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed to reflect the seriousness of the offense, deter
criminal conduct, protect the public from further crimes of the defendant, and
provide the defendant with correctional treatment in the most effective manner;
(3) the kinds of sentences available; (4) the sentencing guidelines; and (5) the need
to avoid unwarranted sentence disparities among defendants with similar records
14
who have been found guilty of similar conduct. 18 U.S.C. § 3553(a). The district
court need not recite a laundry list of the § 3553(a) factors; rather, some indication
in the record that the court adequately and properly considered the applicable
advisory Guidelines range and the § 3533(a) sentencing factors is sufficient.
United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
Here, the district court correctly calculated the Guidelines range and stated
that it had considered: the statements of the parties, which included Kivett’s
arguments about his age and health; the statutory factors; and the PSI and the
advisory guidelines included in the PSI. The district court did not recite a laundry
list of the § 3553(a) factors, but it was not required to do so. See Scott, 426 F.3d at
1329. The court then sentenced Kivett to 27 months’ imprisonment, which was
within the applicable Guidelines range, to which Kivett had not objected. On this
record, Kivett has not satisfied his burden to show his sentence was unreasonable.
AFFIRMED.
15