[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 31, 2001
No. 99-15148 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 98-00432-CR-JTC-1-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OLEG ZLATOGUR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 31, 2001)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
The defendant, Oleg Zlatogur, challenges the following: (1) the district
court’s admission of hearsay evidence under Federal Rule of Evidence 804(b)(6);
(2) the jury instruction providing a definition for the term “reckless disregard”;
(3) the district court’s failure to use the defendant’s proposed jury instructions
regarding “good faith”; (4) the district court’s failure to provide a cautionary
instruction sua sponte with respect to hearsay evidence; and (5) the enhancement
of his sentence under Section 3C1.1 of the Sentencing Guidelines for obstruction
of justice.
BACKGROUND
The defendant and his wife, Albina Zlatogur, were both convicted of one
count of conspiracy to violate the immigration laws of the United States under 18
U.S.C. § 371, and three counts of the transportation of illegal aliens in violation of
8 U.S.C. § 1324. At trial, the defense moved to exclude testimony regarding
threats made by the defendant to Yuri Yezhek, an unindicted co-conspirator.
However, the district court held that the testimony was admissible under Rule
804(b)(6), because the court found by a preponderance of the evidence that the
defendant’s wrongdoing caused the witness to flee the United States. The
defendant did not request a cautionary instruction as to the reliability of hearsay
evidence and the court did not provide one. In addition, the district court’s jury
instructions provided a definition for the term reckless disregard, but did not
include the defendant’s proposed instructions regarding good faith.
2
After the trial, the court held a sentencing hearing at which the defendant
was sentenced to thirty-nine months of imprisonment with one year of supervised
release. The court had enhanced his sentence pursuant to Section 3C1.1 of the
Sentencing Guidelines for obstruction of justice. In so doing, the court cited the
defendant’s threats against witnesses, including those against Yezhek.
DISCUSSION
I.
The defendant contends that the district court relied on the wrong standard
when it decided to admit hearsay evidence under Rule 804(b)(6). He argues,
relying on United States v. Thevis, 665 F.2d 616, 631 (5th Cir. Unit B 1982), that
Eleventh Circuit precedent requires that the government show by clear and
convincing evidence that the defendant’s misconduct brought about the
unavailability of the witness. Although it is true that Thevis adopts the clear and
convincing evidence standard, we must depart from our prior holding because the
Federal Rules of Evidence have changed since the Thevis decision was issued, and
one of those rule changes supercedes our prior decisional rule.
At the time we decided Thevis, the Federal Rules of Evidence did not
provide a hearsay exception based on the misconduct of the wrongdoer, but the
doctrine of waiver by misconduct was widely adopted and permitted the admission
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of hearsay under the residual exception to the hearsay rule. In 1997 the waiver by
misconduct doctrine was codified in Rule 804(b)(6), and the advisory committee
note to this new rule provided that “[t]he usual Rule 104(a) preponderance of the
evidence standard has been adopted in light of the behavior the new Rule 804(b)(6)
seeks to discourage.” Fed. R. Evid. 804(b)(6) advisory committee’s note.
Therefore, we now adopt the preponderance of the evidence standard for
determining whether a defendant, through his own misconduct in procuring the
unavailability of a witness, has waived his right to object to evidence on hearsay
grounds under Rule 804(b)(6). 1
The defendant also contends that there is insufficient evidence to support a
finding that he caused the unavailability of Yezhek through the use of threats and
intimidation. He argues that Yezhek fled the United States out of fear of future
prosecution. However, we find that there was sufficient evidence to satisfy the
preponderance of the evidence standard. Agent Robert S. Godshall of the
Immigration and Naturalization Service testified that Yezhek was frightened by
threats from the Zlatogurs and refused to cooperate further with the government
1
Statutory change – and the enactment of a new rule provision is equivalent to a statutory
change – can supercede one of our decisions for purposes of the prior panel precedent rule. See
United States v. Hanna, 153 F.3d 1286, 1288 (11th Cir. 1988) (“In this Circuit, only the Court of
Appeals sitting en banc, and overriding United States Supreme Court decision, or a change in the
statutory law can override a previous panel decision).”
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because of those threats. When Yezhek’s wife was contacted after the family fled
to Moscow, she stated that they left the United States because they were being
threatened by criminals. In addition, both Marina Grishkova and Irina Khloponina
testified that they were threatened by the Zlatogurs, and Grishkova also testified
that the defendant informed her that they had taken care of Yezhek.
As the district court applied the preponderance of the evidence standard and
there was sufficient evidence to satisfy that standard, we affirm the decision to
admit the testimony.2
II.
A.
The defendant also takes issue with the jury instructions provided in this
case. He argues that the court should not have provided the jury with a definition
for the term reckless disregard. “We review jury instructions de novo to determine
whether they misstate the law or mislead the jury to the prejudice of the objecting
2
The defendant also argues that the district court did not consider the reliability of the
testimony. However, we have not considered this argument, because even if the reliability of the
evidence must be considered under Rule 804(b)(6), there was sufficient corroborating evidence
to establish reliability. See Thevis, 665 F.2d at 633 n.17 (stating that corroborating evidence is
sufficient to show reliability).
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party.” Palmer v. Bd. of Regents of the Univ. Sys. of Ga., 208 F.3d 969, 973 (11th
Cir. 2000). “So long as the instructions accurately reflect the law, the trial judge is
given wide discretion as to the style and wording employed in the instructions.”
Id.
Section 1324 provides,
Any person who . . . knowing or in reckless disregard of
the fact that an alien has come to, entered, or remains in
the United States in violation of law, transports, or moves
or attempts to transport or move such alien within the
United States by means of transportation or otherwise, in
furtherance of such violation of law . . . shall be punished
as provided in subparagraph (B).
8 U.S.C. § 1324(a)(1)(A)(ii) (emphasis added). It is clear that reckless disregard is
an element of the offense of transporting illegal aliens, so it was proper for the
district court to provide a definition for the term. As we have not approved a
definition for the term as it is used under Section 1324, the district court adopted
the following definition approved by the Tenth Circuit:
The phrase ‘reckless disregard of the fact,’ as it has
been used from time to time in these instructions, means
deliberate indifference to facts which, if considered and
weighed in a reasonable manner, indicate the highest
probability that the alleged aliens were in fact aliens and
were in the United States unlawfully.
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United States v. Uresti-Hernandez, 968 F.2d 1042, 1046 (10th Cir. 1992). We find
that this instruction, defining an element of the offense, fairly and accurately stated
the law and was therefore proper.3
B.
The defendant also argues that the district court should have provided the
following proposed jury instructions regarding good faith as a theory of the
defense:
If you find the Defendants hired the workers in the
indictment, believing the workers were legally able to
work in the United States or had applied to become
legally working in the United States, you must acquit the
Defendants of the charges against them.
If you find the defendants relied on other
individuals to make sure the workers in the indictment
were legally able to work in the United States, even if
that reliance was mistaken or misplaced, you must acquit
the Defendants of the charges against them.
If you find the Defendants, in good faith, believed
they had complied with the laws of the United States
regarding the hiring of alien workers, also referred to as
foreign nationals, then you must acquit the Defendants of
the charges against them.
3
The defendant argues that this instruction is akin to that of deliberate ignorance, which
should only be used when the evidence points to actual or no knowledge. We find the Tenth
Circuit’s analysis of this issue persuasive. The Tenth Circuit distinguished the two when it
stated that “[a] ‘deliberate ignorance’ instruction . . . gives the jury a method by which to
evaluate circumstantial evidence that the person against whom it is employed has actual
knowledge of a fact in issue.” Uresti-Hernandez, 968 F.2d at 1046. The Tenth Circuit also
noted, as we did above, that reckless disregard is an element of the offense and, as such, was
properly defined to aid the jury in its deliberations. Id. Thus, we find no merit in the
defendant’s contention that this instruction constitutes a deliberate ignorance instruction.
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We review the district court’s failure to provide additional jury instructions for
abuse of discretion. United States v. Morales, 978 F.2d 650, 652 (11th Cir. 1992).
As long as there is some basis in the evidence and legal support, the jury should be
instructed on a theory of the defense. United States v. Orr, 825 F.2d 1537, 1542
(11th Cir. 1987). “We will reverse a trial judge’s refusal of a requested instruction
only if the rejected instruction was substantively correct, the actual charge to the
jury did not substantially cover the proposed instruction, and the failure to give it
substantially impaired the defendant’s ability to present an effective defense.” Id.
Here, the district court held that the proposed instructions did not accurately
reflect the law and we agree. The offenses under 18 U.S.C. § 371, and 8 U.S.C. §
1324, have nothing to do with the employment of illegal aliens, though the
proposed instructions refer to the employment of illegal aliens several times. The
proposed instructions also are erroneous, because they conflict with the reckless
disregard element of the offense of transporting illegal aliens. That element lends
itself to an objective test, while the language of the proposed instructions infers a
subjective test.
In addition, the proposed instructions were substantially covered in the
instructions the court actually provided. The district court instructed the jury as
follows:
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The defendants deny the allegations of the indictment,
and further deny that they actually knew that the aliens in
the indictment were in fact in the United States
unlawfully. The defendants further contend that their
belief in the lawful status of the aliens was not reckless,
as defined in this instruction.
If the government fails to prove that defendants
actually knew or recklessly disregarded that the aliens
had come to, entered, or remained in the United States in
violation of the law, then you must acquit.
Those instructions cover the good faith theory of the defense, so the defendant’s
proposed instructions would have been unnecessary even if they had been
substantively correct. Thus, we cannot find that the failure to provide the proposed
jury instructions was an abuse of discretion.
C.
The defendant’s final contention regarding jury instructions is that the court
failed to provide a cautionary instruction sua sponte with respect to the reliability
of hearsay evidence. “The effect of [a] failure to timely request an instruction is
that we can reverse [the] conviction only if the court’s failure to give the
instruction sua sponte constitutes plain error which significantly and substantially
prejudiced [the defendant].” United States v. Moore, 505 F.2d 620, 624 (5th Cir.
1974).
Here, the district court found that Agent Godshall’s testimony about
statements made by Yezhek regarding the threats was credible, and there was
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ample evidence corroborating that testimony. Yezhek’s wife told State Department
agents that she and her husband fled the United States because they were being
threatened by criminals. In addition, Grishkova and Khloponina testified that they
were threatened, and Grishkova also testified that the defendant told her that they
had taken care of Yezhek. As a result, we cannot find that the district court’s
failure to give the cautionary instruction significantly and substantially prejudiced
the defendant.
III.
Finally, the defendant contends that the district court should not have
enhanced his sentence under Section 3C1.1 of the Sentencing Guidelines for
obstruction of justice, because the court based its decision, in part, on hearsay.
However, the law of this Circuit clearly provides that reliable hearsay can be
considered during sentencing. United States v. Wilson, 183 F.3d 1291, 1301 (11th
Cir. 1999) (“A court may consider any information (including hearsay), regardless
of its admissibility at trial, in determining whether factors exist that would enhance
a defendant’s sentence, provided that the information is sufficiently reliable.”);
United States v. Castellanos, 904 F.2d 1490, 1495 (11th Cir. 1990). The district
court may rely on such evidence “as long as the evidence has sufficient indicia of
reliability, the court makes explicit findings of fact as to credibility, and the
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defendant has an opportunity to rebut the evidence.” United States v. Anderton,
136 F.3d 747, 751 (11th Cir. 1998) (per curiam), cert. denied, 525 U.S. 1126
(1999).
Here, the district court properly considered evidence of threats made to
Yezhek at the sentencing hearing. The district court found that Agent Godshall
was a credible witness, and there was ample evidence to corroborate his testimony.
In addition, both parties had an opportunity to submit their arguments to the court
before a ruling on the enhancement was entered. Thus, the district court properly
considered hearsay testimony when it enhanced the defendant’s sentence.
CONCLUSION
Finding no error in the decisions of the district court, we AFFIRM.
.
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