[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 18, 2008
No. 06-16603
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-60214-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS MEJIA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 18, 2008)
Before BIRCH, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Luis Mejia appeals his conviction for (1) producing counterfeit, alien-
registration cards, in violation of 18 U.S.C. § 1546(a); and (2) committing
identification-document fraud, in violation of 18 U.S.C. § 1028(a)(1). We affirm.
I. BACKGROUND
The facts of Mejia’s crimes were presented at his trial by Pedro Guillen, a
confidential informant for the government, who provided information in exchange
for being given a work permit. In April 2006, while working at Port Everglades,
Florida, Guillen testified that he overheard Mejia and another man discussing
producing false identification documents. Guillen told Mejia that Guillen had three
friends who needed fake residence and Social Security cards and asked Mejia if he
could obtain the identification cards. Mejia responded that he could provide the
documents for $225.
The government provided Guillen with a photograph, name, and birth date
for Mejia to use on one set of the identification documents. When Guillen
delivered the photo, Mejia introduced him to an individual named Bernardo.
Guillen gave Mejia the photograph but not the payment and informed Mejia that
the individual for whom Guillen was having the documents made would pay him
later. Guillen was supposed to bring photographs of three different individuals but
brought only one, and Mejia told him that it was not worth it for him to provide
one set of identification documents.
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Mejia told Guillen to avoid talking about the documents on the telephone,
because making false identification documents was a federal crime. Guillen later
met with Mejia to obtain the documents and some of the money. Mejia was upset,
because Guillen did not give him photographs of the other two individuals for
whom Mejia was to have identification documents made and the balance of the
money Guillen was to pay Mejia.
Guillen again met with Mejia to give him another photograph and $225 for
Mejia to obtain a second set of identification documents; Mejia later provided
those documents to Guillen. On a subsequent occasion, Guillen brought Mejia
another photograph with the payment of $225 and $150 in extra money that Mejia
had requested, because Guillen needed the documents to be provided as soon as
possible. Of the money paid, $100 was to compensate Mejia, who later provided
the final identification documents. During Guillen’s trial testimony, the
government presented audio and video recordings and photographs of several of
Guillen’s meetings with Mejia.
Matthew Leary, a special agent for the United States Immigration and
Custom Enforcement, testified that the government provided money to Guillen for
the identification documents and also provided photographs, false names, birth
dates, and Social Security numbers. The parties stipulated that the documents
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provided to Guillen by Mejia were counterfeit.
Mejia testified that, before meeting Guillen, he had not been involved in
providing or obtaining false identification documents for anyone. Mejia further
testified that Guillen had approached him and that Guillen introduced the subject of
false identification documents. Guillen had told him that he had family members
who needed identification documents, and Guillen had asked Mejia if he could
help him obtain those documents. Mejia initially told Guillen that he could not
help him. After their first meeting, Guillen repeatedly mentioned the subject of
counterfeit identification documents, and Mejia continued to say that he could not
help Guillen. Mejia gave Guillen his telephone number so that they could discuss
legitimate work. Mejia finally agreed to help Guillen and spoke with Bernardo
Alvarado, who knew an individual, Suarli Salazar, who could assist with producing
the false identification documents. Mejia had not met Salazar prior to being
introduced to him by Bernardo. Mejia testified that he would not have provided
fake identification documents if Guillen had not presented the idea to him. Mejia
was paid $75 each time that he produced a set of false identification documents.
He further testified that the only false identification documents that he had
produced were those for Guillen. Mejia represented that he had provided the false
identification documents to help Guillen, whom he thought was his friend.
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During his rebuttal closing argument, the prosecutor argued that the only
question was whether Mejia was entrapped. The prosecutor then read a significant
portion of the judge’s jury instructions:
The defendant asserts entrapment concerning the offense
charged in the indictment. The defendant is entrapped when law
enforcement officers or cooperating individuals under their direction
induce or persuade a defendant to commit a crime the defendant had
no previous intent to commit, and the law as a matter of policy forbids
a conviction in such case.
However, there is no entrapment, . . . where a defendant is
ready and willing to break the law, and the government merely
provides what appears to be a favorable opportunity for the defendant
to commit a crime. For example, it is not entrapment for a
government agent to pretend to be someone else, and to offer either
directly or through an informant or other decoy to engage in an
unlawful transaction with the defendant.
And it is not for you to evaluate the conduct of law enforcement
officials or the conduct of persons acting for or at the request of law
enforcement officials, including informers and cooperating witnesses,
to determine if you approve or disapprove of that conduct, or to
determine if you think that that conduct was moral or immoral.
Except to the extent that such conduct may bear on the central
issue of whether a defendant was ready and willing to break the law,
and the government merely provided the defendant with what
appeared to be a favorable opportunity.
So a defendant would not be the victim of entrapment if you
should find beyond a reasonable doubt that the defendant before
contact with the government officers or cooperating individuals was
ready, willing, and able to commit the crime charged in the indictment
whenever opportunity was afforded, and that the government did no
more than offer an opportunity.
R4 at 63-64. The prosecutor asserted that Guillen had offered Mejia an
opportunity and that Mejia had taken it. The prosecutor stated that “[a] defendant
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is predisposed and not entrapped when he admits that he’s committing a federal
crime but continues to act. A defendant is predisposed and not entrapped when he
participates not once, not twice, but three times.” Id. at 67. Mejia’s counsel
objected and contended that the government had misstated the law. The district
judge then clarified for the jury that “[w]hat the lawyers say isn’t the law. I’ll tell
you what the law is in a few moments, but I allow a wide latitude during closing
argument.” Id. The prosecutor continued:
Three times [acting] in criminal conduct. A defendant is not
entrapped, he is predisposed when he makes all the arrangements,
quotes a price, sets up meeting locations, drop off locations, and
handles all aspects of a criminal activity over a period of four months.
A defendant is predisposed and not entrapped when he takes a
cut of the purchase price proceeds.
Id. Mejia’s counsel again objected to the government’s characterization of the law,
and the judge informed the jury, “[the prosecutor is] not telling you that that’s the
law, he’s telling you that that’s what his interpretation of the facts is.” Id. at 68.
The prosecutor added:
A defendant is predisposed and not entrapped when he increases the
price when it’s required to complete a rush job.
A defendant is predisposed and not entrapped when he never
attempts to withdraw from the criminal conduct. Never says no, not
even once. And continues to make deals for counterfeit documents,
despite knowing his actions constitute fraud. All he had to do in this
case was throw out the picture.
. . . A defendant is predisposed and not entrapped when he
makes fake documents for another person before beginning
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negotiations with our informant.
Id. at 68-69. The prosecutor later stated that the jury “must follow the law as
instructed by the Judge.” Id. at 71. The jury found Mejia guilty on both counts,
and the trial judge sentenced him to one year and one day of imprisonment and
three years of supervised release.1
II. DISCUSSION
On appeal, Mejia argues that he is entitled to a new trial because the
prosecutor repeatedly misstated the scope and elements of the entrapment defense
by saying that a defendant is not entrapped when he (1) admits that he is
committing a federal crime but continues to act, (2) participates three times in a
criminal activity, (3) makes all arrangements for a criminal activity over a period
of four months, (4) takes a portion of the proceeds of the crime, (5) increases the
price of his illegal work for a “rush job,” and (6) never attempts to withdraw from
the criminal conduct. Mejia also contends that the district judge did not provide a
curative instruction.
We review de novo claims of prosecutorial misconduct, a mixed question of
law and fact. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006), cert.
denied, __ U.S. __, 127 S.Ct. 1305 (2007). To establish prosecutorial misconduct,
1
Mejia was released from custody in August 2007 and currently is serving his term of
supervised release.
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Mejia must show that the prosecutor’s remarks (1) were improper and
(2) prejudicially affected his substantial rights. Id. “A defendant’s substantial
rights are prejudicially affected when a reasonable probability arises that, but for
the remarks, the outcome of the trial would have been different. When the record
contains sufficient independent evidence of guilt, any error is harmless.” Id.
(citations omitted). “There are two elements to an entrapment claim:
(1) government inducement of the crime and (2) the defendant’s lack of
predisposition to commit the crime before the inducement.” United States v.
Orisnord, 483 F.3d 1169, 1178 (11th Cir.), cert. denied, __ U.S. __, 128 S.Ct. 673
(2007).
The prosecutor’s remarks in his closing argument were not improper,
because they elaborated on the government’s interpretation of the facts. See
Eckhardt, 466 F.3d at 947. The prosecutor stated facts that were inconsistent with
Mejia’s claim that he was not predisposed to commit the crime. The prosecutor
also read the standard for entrapment from the jury instructions and, at one point,
told the jury that it was to rely on the law that the judge would provide. Moreover,
the judge made it clear that the prosecutor was not stating the law when he made
the contested remarks; instead, he was giving his interpretation of the facts.
Consequently, there is little chance that the jury was misled by the prosecutor’s
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remarks.
Finally, even if the government’s statements were improper, any error by the
district judge in allowing those statements did not affect Mejia’s substantial rights.
Eckhardt, 466 F.3d at 947. Guillen’s testimony and the surveillance evidence
provided sufficient independent evidence from which the jurors could have
concluded that Mejia was predisposed to assist in obtaining fraudulent documents
based on his procurement of three separate sets of counterfeit identification
documents for Guillen.
III. CONCLUSION
Mejia has appealed his conviction for producing counterfeit, alien-
registration cards and committing identification-document fraud, based on the
prosecutor’s remarks during his closing argument. Because the prosecutor’s
remarks were not improper and did not affect Mejia’s substantial rights, Mejia’s
conviction is AFFIRMED.
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