United States v. Celerino Gabriel-Martinez

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 4, 2008
No. 07-13284 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 06-00280-CR-T-26-TGW

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CELERINO GABRIEL-MARTINEZ,
BLAS ROMERO-BRAVO, et al.,

Defendants-Appellants.

________________________

Appeals from the United States District Court
for the Middle District of Florida
_________________________

(August 4, 2008)

Before BIRCH, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
 Celerino Gabriel-Martinez, Artemio Castellon-Falcon, Juan Jose

Valenzuela-Rodriguez, Blas Romero-Bravo, and Victor Perez-Duran appeal their

convictions and 235-month sentences for conspiracy to posses with intent to

distribute cocaine while on a vessel subject to the jurisdiction of the United States,

in violation of 46 U.S.C. § 70506(b), and possession with intent to distribute

cocaine while on a vessel subject to the jurisdiction of the United States, in

violation of 18 U.S.C. § 2, 46 U.S.C. § 70503(a). Appellants bring multiple issues

on appeal, which we address in turn.1 After review, we affirm their convictions

and sentences.

I.

Castellon-Falcon, Romero-Bravo, and Perez-Duran assert the district court

abused its discretion by prohibiting them from cross-examining a Government

witness about his encounter with a second vessel on the date in question.

Ordinarily, we review limitations placed on cross-examination for an abuse of

discretion. United States v. Orisnord, 483 F.3d 1169, 1178 (11th Cir.), cert.

denied, 128 S. Ct. 673 (2007). However, arguments raised for the first time on

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Gabriel-Martinez, Castellon-Falcon, Valenzuela-Rodriguez, and Perez-Duran attempt
to adopt their codefendants’ arguments. Under our rules, to adopt parts of other briefs, a party
must describe in detail which briefs, and which portions of those briefs, he is adopting. 11th Cir.
R. 28-1(f). Here, Appellants have not properly adopted their codefendants’ arguments, as they
have not specified which arguments, by which codefendants, they are adopting.

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appeal are reviewed for plain error. United States v. Peters, 403 F.3d 1263, 1270

(11th Cir. 2005). To establish plain error, the defendant must

show that there is (1) error (2) that is plain and (3) that affects
substantial rights. If all three conditions are met, an appellate court
may then exercise its discretion to notice a forfeited error, but only if
(4) the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.

United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003) (citations,

quotations, and alterations omitted).

Only relevant cross-examination is protected by the Sixth Amendment, and,

under the Confrontation Clause, a district court has wide latitude to impose

reasonable limits on cross-examination that is only marginally relevant. United

States v. Lyons, 403 F.3d 1248, 1255-56 (11th Cir. 2005). While a presumption

favors free cross-examination of a government “star” witness, the cross-

examination must be relevant. United States v. Phelps, 733 F.2d 1464, 1472 (11th

Cir. 1984). Evidence is relevant if it has “any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Fed. R. Evid. 401.

However, where the relationship between the evidence a defendant seeks to

introduce and his defense is too attenuated, the district court may exclude it, as

there comes a point when evidence no longer is relevant because the chain of

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inferences is too long or attenuated. United States v. Hurn, 368 F.3d 1359, 1366

(11th Cir. 2004). In determining whether the Confrontation Clause is satisfied for

impeachment purposes, we address whether a witness’s credibility would have

been significantly different in a reasonable juror’s mind if defense counsel could

have pursued the proposed line of cross-examination. United States v. Diaz, 26

F.3d 1533, 1539-40 (11th Cir. 1994).

A. Castellon-Falcon

Castellon-Falcon argues the district court erred in not permitting him to

impeach Officer Wylie with his proffered testimony regarding the second vessel,

but, at trial, his codefendant, Perez-Duran, argued the evidence was admissible

because it was not hearsay and was relevant. Accordingly, Castellon-Falcon is

asserting his impeachment argument for the first time on appeal, and we review it

for plain error. See Peters, 403 F.3d at 1270.

While Castellon-Falcon asserts he was not seeking to question Officer Wylie

about the second vessel to prove it had arrived to rescue him and his codefendants,

at trial, he attempted to introduce the evidence to establish the second vessel was

looking for friends that had been on a boat that sank. Accordingly, Castellon-

Falcon was seeking to introduce the statements for the truth of the matter asserted,

and they were hearsay. Fed. R. Evid. 801(c) (defining hearsay as a statement

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offered to prove the truth of the matter asserted); Fed. R. Evid. 802 (stating hearsay

is inadmissable, unless it falls within an exception to the general rule).

Additionally, solely based on Officer Wylie’s proffered testimony,

Castellon-Falcon would have invited the jury to infer that (1) he and his

codefendants originally were on a fishing boat, (2) the vessel sank after they issued

a distress call, (3) the go-fast vessel rescued them, (4) the second vessel was

looking for the codefendants, and (5) the drug smugglers who operated the go-fast

vessel were turned over to Mexico. The district court did not plainly err by finding

this chain of inference was too attenuated to be relevant, as there was no evidence

the defendants originally had been on another vessel, or the second vessel was

looking for the defendants, and thus, the jury would have had to make these

conclusions based on pure speculation. See Lyons, 403 F.3d at 1255-56; Hurn, 368

F.3d at 1366; Phelps, 733 F.2d at 1472.

Additionally, contrary to Castellon-Falcon’s assertion, the court was not

forcing Castellon-Falcon to choose between his Fifth Amendment right not to

testify and his Sixth Amendment right to cross-examine Government witnesses,

but was requiring that Officer Wylie’s proffered testimony be relevant before

Castellon-Falcon could address the subject on cross-examination, which would

have required some evidence to support the inferences he would have asked the

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jury to make. Therefore, the district court did not plainly err by prohibiting

Castellon-Falcon from cross-examining Officer Wylie regarding the second vessel

based on relevance grounds. See Monroe, 353 F.3d at 1349.

Finally, it does not appear the jury would have been left with a significantly

different impression of Officer Wylie’s credibility had Castellon-Falcon been

permitted to use his proffered testimony for impeachment because Officer Wylie

did not testify on direct examination that he did not see any other vessels on the

date in question, but stated he did not see any other vessels from the time he left

the Hamilton until he rescued the ten individuals. Therefore, his proffered

testimony, that he saw another vessel several hours after he had rescued the ten

individuals, was not an inconsistent statement. See Diaz, 26 F.3d at 1539-40.

Further, Officer Wylie stated the vessel looked like a go-fast vessel, but he did not

consider it to be one because it only had two engines, and thus, this would not have

impeached his or Officer Santulli’s trial testimony. See id.

B. Romero-Bravo

Contrary to Romero-Bravo’s assertion, the court was not forcing him to

testify before the evidence was relevant, but was requiring that Officer Wylie’s

proffered testimony be relevant before Romero-Bravo could address the subject on

cross-examination, which would have required some evidence to support the

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inferences that he would have asked the jury to make. Additionally, solely based

on Officer Wylie’s proffered testimony, Romero-Bravo would have invited the

jury to infer that (1) he and his codefendants originally were on a fishing boat,

(2) the vessel sank after he issued a distress call, (3) the go-fast vessel rescued him

and his codefendants, (4) the second vessel was looking for the codefendants, and

(5) the drug smugglers who operated the go-fast vessel were turned over to

Mexico. The district court did not abuse its discretion by finding that this chain of

inference was too attenuated to be relevant, as there was no evidence the

defendants originally had been on another vessel, or the second vessel was looking

for the defendants, and thus, the jury would have had to make these conclusions

based on pure speculation. See Lyons, 403 F.3d at 1255-56; Hurn, 368 F.3d at

1366; Phelps, 733 F.2d at 1472.

C. Perez-Duran

Perez-Duran asserts the evidence regarding the second vessel was not

hearsay because it would have been offered for impeachment, but, at trial, he

attempted to introduce the evidence to establish that the second vessel was looking

for friends that had been on a boat that sank. Accordingly, Perez-Duran was

seeking to introduce the statements for the truth of the matter asserted, and the

district court did not err in excluding them as hearsay. Fed. R. Evid. 801(c)

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(defining hearsay as a statement offered to prove the truth of the matter asserted);

Fed. R. Evid. 802 (stating hearsay is inadmissable, unless it falls within an

exception to the general rule).

Additionally, Officer Wylie did not testify on direct examination that he did

not see any other vessels on the date in question, but stated he did not see any other

vessels from the time he left the Hamilton until he rescued the ten individuals.

Therefore, his proffered testimony was not an inconsistent statement. Further,

Officer Wylie’s trial testimony that every go-fast vessel he had seen 400 miles off

shore was transporting narcotics or large supplies of gasoline was not inconsistent

with his statement the second vessel did not have narcotics or a large supply of

gasoline, as he stated, in his proffer, that, while the vessel looked similar to a go-

fast vessel, he did not consider it to be a go-fast vessel because it had only two

engines. Because Officer Wylie’s proffered testimony was not inconsistent with

his trial testimony, it does not appear his credibility in the jurors’ minds would

have been significantly different had Perez-Duran been permitted to question

Officer Wylie about his proffered testimony. See Diaz, 26 F.3d at 1539-40.

Therefore, Perez-Duran’s Confrontation Clause rights were not violated, and the

district court did not plainly err in prohibiting reference to the second vessel. See

Monroe, 353 F.3d at 1349; Diaz, 26 F.3d at 1539-40.

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 II.

Castellon-Falcon and Perez-Duran contend the district court abused its

discretion by permitting the Government to comment, during its rebuttal closing

argument, on their failure to testify and to make impermissible burden shifting

comments during its closing argument. The government must not make burden-

shifting arguments that suggest to the jury that the defendant has the burden to

produce evidence or prove his innocence, but improper government remarks are

rendered harmless by adequate jury instructions regarding the government’s

burden of proof. United States v. Simon, 964 F.2d 1082, 1086-87 (11th Cir. 1992).

It is not a violation of a defendant’s Fifth Amendment right not to testify when the

government comments during its closing argument that defense counsel did not

counter or explain certain evidence. United States v. Hernandez, 145 F.3d 1433,

1439 (11th Cir. 1998).

A. Castellon-Falcon

Castellon-Falcon did not object to the Government’s closing argument, and

we review this issue for plain error. United States v. Foley, 508 F.3d 627, 637

(11th Cir. 2007), cert. denied, Osborne v. United States, 128 S. Ct. 1912 (2008)

(reviewing whether the government shifted the burden of proof during closing

argument for plain error when the defendant did not object). The district court did

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not plainly err by not sua sponte declaring a mistrial based on impermissible

burden shifting because, even if the Government’s comment that Castellon-

Falcon’s counsel had not explained why he was 400 miles off shore in a vessel

carrying cocaine was improper, the error was rendered harmless by the court’s

instructions to the jury that the Government had the burden of proving his guilt

beyond a reasonable doubt and that Castellon-Falcon did not have to produce any

evidence. See Simon, 964 F.2d at 1086-87. Additionally, the Government did not

err by impermissibly commenting on Castellon-Falcon’s right to remain silent, as

its statements were directed at Castellon-Falcon’s counsel’s failure to address why

Castellon-Falcon was on a go-fast vessel carrying drugs. See Hernandez, 145 F.3d

at 1439.

B. Perez-Duran

Perez-Duran did not object to the Government’s closing argument, thus we

review this issue for plain error. See Foley, 508 F.3d at 637. Contrary to Perez-

Duran’s assertions, the Government did not impermissibly comment on his right to

remain silent, but commented on his counsel’s failure to address why Perez-Duran

was on a go-fast vessel carrying drugs, and thus, the Government’s statements

were not error. See Hernandez, 145 F.3d at 1439. Additionally, the district court

did not plainly err by not sua sponte declaring a mistrial based on impermissible

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burden shifting because, even if the Government’s comment that Perez-Duran’s

counsel had not explained why he was 400 miles off shore in a vessel carrying

cocaine was improper, any error was rendered harmless by the court’s instruction

to the jury that the government had the burden of proving his guilt beyond a

reasonable doubt and that Perez-Duran did not have to produce any evidence. See

Simon, 964 F.2d at 1086-87.

III.

Gabriel-Martinez, Valenzuela-Rodriguez, Romero-Bravo, and Perez-Duran

assert the evidence was insufficient to support their convictions. We review

challenges to the sufficiency of the evidence de novo, with the evidence viewed in

the light most favorable to the government. United States v. Garcia, 405 F.3d

1260, 1269 (11th Cir. 2005). A defendant’s conviction must be affirmed unless a

jury could not, under a reasonable construction of the evidence, have found him

guilty beyond a reasonable doubt. Id.

To convict a defendant for conspiracy to possess with intent to distribute

cocaine, the government must establish beyond a reasonable doubt that (1) there

was an illegal agreement, (2) of which the defendant was aware, and (3) he

knowingly and voluntarily joined it. United States v. Hernandez, 433 F.3d 1328,

1333 (11th Cir. 2005). The agreement forming the basis of the conspiracy can be

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proved by circumstantial evidence, including the conduct of the alleged

participants. United States v. Obregon, 893 F.2d 1307, 1311 (11th Cir. 1990).

Mere presence is insufficient to support a conviction for conspiracy, but the

jury is permitted to consider presence as a probative factor in determining whether

the defendant knowingly and intentionally participated in a criminal scheme.

Hernandez, 433 F.3d at 1333. A defendant’s presence is more significant when the

value of the cocaine is high, as it is very unlikely that drug smugglers would allow

someone not involved in the conspiracy to be present on a vessel containing

millions of dollars worth of cocaine. United States v. Tinoco, 304 F.3d 1088, 1123

(11th Cir. 2002).

To convict a defendant for possession with intent to distribute, the

government must establish beyond a reasonable doubt that he knowingly possessed

the controlled substance with the intent to distribute it, and possession may be

proved through either actual or constructive possession. Id. To establish actual

possession, the government must prove that the defendant had physical possession

of, or dominion over, the drugs. United States v. Leonard, 138 F.3d 906, 909 (11th

Cir. 1998). A defendant has constructive possession when he has “ownership,

dominion or control over an object itself or dominion or control over the premises

or the vehicle in which the object is concealed.” Hernandez, 433 F.3d at 1333. A

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jury may infer the defendant’s intent to distribute from the quantity of drugs

involved. Id.

The following factors are relevant in determining whether the evidence was

sufficient to convict for conspiracy and possession charges when the defendant is

present on a narcotics-laden vessel:

(1) probable length of the voyage, (2) the size of the contraband
shipment, (3) the necessarily close relationship between captain and
crew, (4) the obviousness of the contraband, and (5) other factors,
such as suspicious behavior or diversionary maneuvers before
apprehension, attempts to flee, inculpatory statements made after
apprehension, witnessed participation of the crew, and the absence of
supplies or equipment necessary to the vessel's intended use.

Tinoco, 304 F.3d at 1123. Once the government establishes the vessel was

transporting a large quantity of contraband, its burden of establishing the crew

members were knowing participants in the smuggling operation is “relatively

light,” and showing just one of the other factors is sufficient to meet this burden.

Id.

As an initial matter, the district court did not apply the wrong standard in

assessing Romero-Bravo’s motion for acquittal, as the cases that he cites state the

government must prove, by more than slight evidence, the defendant was

connected to the conspiracy. See United States v. Malatesta, 590 F.2d 1379, 1382

(5th Cir. 1979) (en banc); United States v. Baker, 432 F.3d 1189, 1231 n.49 (11th

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Cir. 2005); United States v. Toler, 144 F.3d 1423, 1427 (11th Cir. 1998). Here,

however, the district court was relying on this Court’s holding that, once the

government establishes a vessel was trafficking large quantities of narcotics, the

government’s remaining burden of establishing by substantial evidence that the

defendant was a part of the conspiracy is light. See Tinoco, 304 F.3d at 1123.

As to Gabriel-Martinez, Valenzuela-Rodriguez, Romero-Bravo, and Perez-

Duran, viewing the evidence in the light most favorable to the Government, it was

sufficient to support their convictions for possession with intent to distribute, and

conspiracy to do so, because the parties stipulated there was a large quantity of

contraband, 509.12 kilograms of a mixture containing cocaine on the vessel,

meaning the Government had the “relatively light” burden of establishing one of

the other factors identified in Tinoco. See Tinoco, 304 F.3d at 1123. The

Government satisfied this burden, as (1) Officer Cook testified the packages of

cocaine were visible on the deck of the vessel; (2) the vessel refused to stop in

response to the helicopter’s flashing light, siren, instructions to stop over the load

speaker, or warning shots fired in front of the vessel, which indicated the vessel

was attempting to flee from the Coast Guard; (3) the individuals elected to set the

vessel on fire and cling to a makeshift raft in the middle of the ocean, which,

viewed in the Government’s favor, is highly suspicious behavior; (4) Officer Wylie

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testified the vessel was intercepted 400 miles from the nearest land, indicating the

probable length of the voyage was long; and (5) Officer Foreman testified there

was no fishing equipment in the debris, but lots of packages of cocaine were

recovered. See Tinoco, 304 F.3d at 1123-24. Accordingly, the evidence was

sufficient to support the convictions of Gabriel-Martinez,2 Valenzuela-Rodriguez,3

Romero-Bravo, and Perez-Duran on both counts.

IV.

Castellon-Falcon, Valenzuela-Rodriguez, Romero-Bravo, and Perez-Duran

contend the district court clearly erred in denying them minor-role reductions. We

review the district court’s denial of a minor-role reduction for clear error. United

States v. De Varon, 175 F.3d 930, 934 (11th Cir. 1999) (en banc). The Guidelines

provide a defendant’s offense level should be decreased by two levels if he was a

minor participant. U.S.S.G. § 3B1.2(b). The decision of whether or not a

defendant is entitled to a § 3B1.2 reduction “falls within the sound discretion of the

trial court,” and the defendant bears the burden of proving he is entitled to a minor-

2
Because the evidence was sufficient to support a conviction on both counts, and since
the evidence was sufficient to find Gabriel-Martinez possessed the cocaine, we do not need to
address whether Gabriel-Martinez aided and abetted.
3
The fact the Government did not explain why five of the rescued individuals were
turned over to Mexico does not mean the evidence was insufficient to support conviction, as the
lack of an explanation does not change the fact Valenzuela-Rodriguez was on a vessel
transporting over 500 kilograms of cocaine and trying to avoid apprehension. See Tinoco, 304
F.3d at 1123-24.

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role reduction. De Varon, 175 F.3d at 939, 945. The district court determines

whether a defendant played a mitigating role by measuring (1) his role against the

conduct for which he is being sentenced, and (2) his role compared to that of other

participants in the illegal activity. Id. at 945. In many cases, the first prong is

dispositive, and the court does not need to consider the second prong. Id. Where a

defendant’s actual conduct is the only conduct being attributed to him, he cannot

meet his burden of proof by pointing to a larger criminal conspiracy. Id. at 941.

Additionally, the amount of drugs being delivered “is a material consideration in

assessing a defendant’s role.” Id. at 943. Further, a district court may only look to

other members of the conspiracy to the extent they are identifiable from the

evidence and were involved in the relevant conduct attributed to the defendant.

Id. at 944.

As to Castellon-Falcon, Valenzuela-Rodriguez, Romero-Bravo, and Perez-

Duran, they each claim their role was minor as compared to the larger conspiracy

involving the owners, producers, managers, and major transporters of the cocaine.

The district court did not clearly err in finding that the defendants were not entitled

to minor-role reductions, however, as they were only held accountable for their

actual conduct, transporting 500 kilograms of cocaine. See De Varon, 175 F.3d at

939, 941.

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 V.

Castellon-Falcon and Gabriel-Martinez assert the district court abused its

discretion by imposing unreasonable sentences. We review the sentence imposed

by the district court for reasonableness. United States v. Clay, 483 F.3d 739, 743

(11th Cir. 2007). “Our review for reasonableness is deferential, and the party

challenging the sentence has the burden of establishing unreasonableness.” Id.

The Supreme Court clarified that reasonableness review is synonymous with

reviewing for an abuse of discretion. Gall v. United States, 128 S. Ct. 586, 594

(2007)

District courts first must correctly calculate, and consult, the Guidelines

range, and, second, they must take into consideration the § 3553(a) factors. Id.;

United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). The § 3553(a) factors

include:

(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need
to protect the public; (5) the need to provide the defendant with
needed educational or vocational training or medical care; (6) the
kinds of sentences available; (7) the Sentencing Guidelines range;
(8) pertinent policy statements of the Sentencing Commission; (9) the
need to avoid unwanted sentencing disparities; and (10) the need to
provide restitution to the victims.

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Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)). The district court need not

state on the record that it has explicitly considered each factor, nor discuss each

factor, as it is sufficient for the court to acknowledge it has considered the

defendant’s arguments and § 3553(a) factors. Talley, 431 F.3d at 786.

Additionally, it is within the district court’s discretion how much weight an

individual § 3553(a) factor should receive. Clay, 483 F.3d at 743.

As to Gabriel-Martinez and Castellon-Falcon, the district court did not abuse

its discretion by imposing an unreasonable sentence. The district court

acknowledged it had considered the correctly calculated advisory Guidelines range

as well as the § 3553(a) factors. The district court did not err by not placing more

emphasis on Gabriel-Martinez’s and Castellon-Falcon’s history and characteristics

when imposing their sentences, as it was in the court’s sound discretion to

determine the weight to place on each factor. See Clay, 483 F.3d at 743. Their

low-end of the Guidelines sentences are reasonable.

AFFIRMED.

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