[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 22, 2006
No. 04-12034
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 03-10016-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVENIS ARIAS-IZQUIERDO,
EDUARDO JAVIER MEJIA MORALES,
NEUDIS INFANTES HERNANDEZ,
YAINER OLIVARES-SAMON,
ALEXIS NORNEILLA MORALES,
MIAKEL GUERRA-MORALES,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(May 22, 2006)
Before BLACK, BARKETT and COX, Circuit Judges.
BARKETT, Circuit Judge:
This cases arises from the hijacking of an aircraft bound for Havana from
Nueva Gerona, Cuba that was diverted to Key West, Florida. Appellants
Alvenis Arias-Izquierdo, Eduardo Javier Mejia Morales, Neudis Infantes
Hernandez, Yainer Olivares-Samon, Alexis Norneilla Morales, and Miakel Guerra
Morales were tried on four counts pertaining to the hijacking of the plane: (1)
conspiracy to commit aircraft piracy, in violation of 49 U.S.C. §§ 46502(a)(1)(A),
(a)(2)(A), and 18 U.S.C. § 2 (“Count 1”); (2) aircraft piracy, in violation of 49
U.S.C. § 46502(a)(1)(A) (“Count 2”); (3) conspiracy to interfere with a flight
crew, in violation of 49 U.S.C. § 46504 and 18 U.S.C. § 2 (“Count 3”); and (4)
interference with a flight crew, in violation of 49 U.S.C. § 46504 (“Count 4”).
Each appellant now appeals his conviction, and Hernandez, Norneilla-Morales,
and Guerra Morales also appeal the sentence imposed by the district court.
I. BACKGROUND
The government presented evidence at trial demonstrating that on March 19,
2003, the six appellants boarded an Aerotaxi DC-3 aircraft1 scheduled to fly to
Havana, Cuba from Nueva Gerona, a town located on a Cuban island known as the
Isle of Youth. Alexis Norneilla-Morales boarded the flight along with his wife
and young child. Norneilla-Morales’s cousin, Mejia Morales, boarded the plane
1
Aerotaxi is an airline owned and operated by the Cuban Civil Aviation System.
2
with his wife and daughter. Norneilla-Morales’s brother Guerra-Morales and
cousin Olivares-Samon both boarded with their wives. Hernandez and Arias-
Izquierdo, neither of whom is related to Norneilla-Morales, boarded alone.
The government presented evidence that several of the appellants entered
the cockpit by knocking down the door, and that Norneilla-Morales held a knife to
the pilot’s throat and told him to head north to Miami. The government presented
evidence that several of the appellants tied up the remaining crew members and
held knives and an emergency axe throughout the flight.
The Florida Air National Guard was monitoring the radar screen at Tindel
Air Force Base in Panama City, Florida on the evening in question, and after
observing the aircraft make a 90 degree turn north, approximately 12 seconds after
its transponder started to emit the 7500 hijack signal, “scrambled” fighter jets to
intercept the aircraft. Captain Adam Langston responded from Homestead Air
Force Base, picked up the DC-3 emitting the 7500 signal, intercepted the aircraft,
and escorted it to the Key West airport.
After the airplane landed in Key West, the airplane was met by law
enforcement officers, who interrogated the appellants. U.S. Border Patrol Agent
Kerry Heck testified that Norneilla-Morales told him he had planned for over a
year to overtake an aircraft by force in order to go to the United States and had
3
recruited “the other five.” He stated that a week before the March 19 flight, he
had placed knives in a duffel bag, which he passed through the window of the
airport bathroom to someone inside who hid the bag in the bathroom ceiling.
Norneilla-Morales retrieved the duffel bag directly before the flight and passed the
knives to others just prior to boarding. Norneilla-Morales signaled the takeover
when he saw the lights of Havana and broke down the door to the cockpit.
Agent Heck testified that Guerra-Morales told him he had been involved in
the takeover plan for six months, that others were involved, and that pursuant to a
prearranged signal, he had stood up and pulled out his knife. His role was to
guard the crew. Guerra-Morales explained that the knives had been placed in a
duffel bag and hidden in the airport bathroom, that two persons had brought the
knives past security, and that he had been given a knife prior to boarding.
U.S. Border Patrol Agent Gordon Solis testified that Mejia Morales told him
that planning for the event had started four or five months ago, but he was not in
charge. He had been given a knife, which he hid in the back of his pants, and the
others also had knives. His role was to stay near the cockpit.
FBI Special Agent Anthony Russo testified at trial that the Key West police
had recovered five knives and several sheaths that had been thrown on the tarmac.
Two more sheaths were found on the aircraft during the search, along with a
4
hatchet, cord and tape that had been used to bind the crew, a role of tape, and the
battered-in cockpit door.
The appellants’ defense at trial centered on the theory that the entire crew
was “in” on the plan to divert the aircraft to Miami. Norneilla-Morales testified
that he had been approached by a Michael De la Nuez and by the co-pilot of the
flight, Gustavo Salas Cleger, to plan a staged hijacking as a means of reaching the
United States and obtaining political asylum. Norneilla-Morales testified that co-
pilot Cleger designed the takeover plan, and that Cleger ensured that the airplane
would have enough fuel to reach Miami, procured the appellants’ tickets, and
enabled them to board with knives. Norneilla-Morales claimed that he never held
a knife to the Captain’s throat because it was unnecessary, as the Captain was in
on the plan. He explained the testimony of the crew members who testified
against the appellants as arising from the crew’s concerns about repercussions
back in Cuba if they were to be implicated in the staging of a hijacking.
Guerra-Morales testified at trial as well. He stated that his brother,
Norneilla-Morales, told him about the plan to take over an Aerotaxi flight to get to
the United States. Guerra-Morales never met De La Nuez or Cleger. Guerra-
Morales testified that after they boarded the plane, he gave two knives to
Norneilla-Morales, who took them up to the cockpit, and three knives to
5
Hernandez and Arias-Izquierdo, but at no point did he see anyone holding a knife
to the crew, and his own knife remained sheathed throughout the flight. Guerra-
Morales explained that he and Norneilla-Morales had planned to tie up the crew as
part of the “show,” with shoe laces or draw strings on their underwear or bathing
suits.
On rebuttal, co-pilot Cleger testified that he had never seen the appellants
before the date of the flight. He denied knowing Norneilla-Morales or De La
Nuez, denied that he had instructed appellants in any way, and denied that he gave
Norneilla-Morales a compass.
At the conclusion of the trial, the jury convicted Arias-Izquierdo of Count
II, Olivares-Samon and Mejia Morales of Counts I, II, and III, and Norneilla-
Morales, Hernandez, and Guerra-Morales of all four counts of the superceding
indictment. The district court imposed the following sentences: Arias-Izquierdo
to 250 months’ incarceration, three years’ supervised release, and a $100 special
assessment; Olivares-Samon and Mejia Morales to 240 months’ incarceration and
three years’ supervised release as to each of Counts I, II, and III, all to run
concurrently, in addition to a $300 special assessment; Hernandez to 240 months’
incarceration and three years’ supervised release as to each of the four Counts, all
to run concurrently, and a $400 special assessment; and Norneilla-Morales and
6
Guerra-Morales to 292 months’ incarceration and three years’ supervised release
as to each of the four Counts, to run concurrently, and a $400 special assessment.
All six appellants now raise timely appeals challenging their convictions and
sentences on a variety of grounds, with each appellant adopting the arguments of
his co-appellants pursuant to Federal Rule of Appellate Procedure 28(i).
II. DISCUSSION
A. Arias-Izquierdo
Arias-Izquierdo was convicted of Count II, aircraft piracy, and acquitted of
Counts I, III, and IV. He challenges his conviction for aircraft piracy on two
grounds. First, he argues that the government failed to present sufficient evidence
to convict him of aircraft piracy or as an aider and abettor of aircraft piracy.
Second, he argues that the district court erred when it denied his motion for
mistrial relating to a false statement by the prosecutor during closing arguments.
1. Sufficiency of the Evidence2
In order to convict Arias-Izquierdo of aircraft piracy, the government was
2
Whether the record contains sufficient evidence to support a guilty verdict is reviewed de
novo. United States v. Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997). We view the evidence
in a light most favorable to the government and the jury’s verdict, with all reasonable inferences
and credibility choices made in the government’s favor. Id. Because Arias-Izquierdo did not
introduce any evidence following his Rule 29 motion, the sufficiency of the evidence against him
must be evaluated solely in terms of the proof presented in the government’s case-in-chief.
United States v. Thomas, 987 F.2d 697, 702-03 (11th Cir. 1993).
7
required to prove: (1) a seizure of, or exercise of control over, an aircraft, (2) by
means of force, violence, threat of force or violence, or any form of intimidation,
(3) with wrongful intent, (4) when that the aircraft was within the special
jurisdiction of the United States. See 49 U.S.C. § 46502.
We have our doubts as to whether the government proved that Arias-
Izquierdo himself seized or exercised control over the aircraft. However, the
government did not need to prove Arias-Izquierdo’s guilt as a principal because it
successfully demonstrated Arias-Izquierdo’s guilt as an aider and abettor, which is
sufficient to support the conviction. See 18 U.S.C. § 2(a) (“Whoever commits an
offense against the United States or aids, abets, counsels, commands, induces or
procures its commission, is punishable as a principal.”).
In order to prove aircraft piracy under a theory of aiding and abetting, the
government was required to prove that (1) the aircraft piracy offense was
committed by someone, (2) Arias-Izquierdo committed an act which contributed to
and furthered the offense of aircraft piracy, and (3) Arias-Izquierdo intended to aid
its commission. See 18 U.S.C. § 2; see also United States. v. Walser, 3 F.3d 380,
387 (11th Cir. 1993). The government was not required to prove that Arias-
Izquierdo participated in each element of the substantive offense in order to hold
him liable as an aider and abettor. United States v. Sellers, 871 F.2d 1019, 1022
8
(11th Cir. 1989). Arias-Izquierdo admits that the government presented sufficient
evidence to establish that the crime of air piracy was committed by someone.
Instead, he argues that the government failed to prove that he associated himself
with the criminal venture and committed an act in furtherance thereof. Based on
the record, we reject this contention.
The aircraft steward, Abilio Hernandez-Garcia, testified that Arias-
Izquierdo stood on the first seat of the aircraft, walked through the aircraft holding
a knife or an axe3, and occasionally walked to the rear of the aircraft to speak with
Hernandez and Guerra-Morales, who were guarding the crew. According to
Garcia, Arias-Izquierdo announced to the passengers that they should remain
seated and that nothing was going to happen to anyone. This testimony was
corroborated by passengers Amauri Silva Bareda and Tania Dieguez Santana, both
of whom identified Arias-Izquierdo in court and testified that Arias-Izquierdo
announced to the passengers that they did not want any problems, and that they
3
Both Arias-Izquierdo and the government explain in their briefs that there were problems
at trial with the translators and the court reporter. Garcia testified that Arias-Izquierdo carried a
knife, but Garcia also appears, from the transcripts, to have testified at one point that Arias-
Izquierdo and Guerra-Morales carried axes rather than knives. Arias-Izquierdo argues that
because the only weapons on the aircraft were five knives and one aircraft emergency axe that the
jury could not reasonably have concluded that he was armed at all. However, the jury could have
reasonably concluded from Garcia’s testimony, taken as a whole, that Arias-Izquierdo was armed
with a dangerous, sharp-edged weapon during the course of the hijacking, regardless whether that
weapon was a knife or axe.
9
just wanted to reach the United States.
Furthermore, Officer Madiedo testified that after the aircraft landed, he
spoke with a man in a green shirt at the door of the aircraft, who was among the
defendants in the courtroom. The man in the green shirt told Officer Madiedo that
they were armed with knives and then helped the man dressed in all white to throw
the knives on the tarmac. Although Officer Madiedo did not identify Arias-
Izquierdo at trial as the man in the green shirt, he did state that the man in the
green shirt was one of the defendants present in court, and photographic evidence
admitted at trial confirmed that Arias-Izquierdo was the only defendant wearing a
green shirt.
We conclude that the jury could have reasonably inferred that Arias-
Izquierdo committed an act which contributed to and furthered the offense of
aircraft piracy, and intended to aid its commission, by wielding a sharp weapon on
the flight, by exclaiming to the passengers that they should remain seated and
quiet, and by his admission to Officer Madiedo that he and the other hijackers
were armed with knives. See United States v. Pablo-Lugones, 725 F.2d 624, 626
(11th Cir. 1984) (holding that “a display of a dangerous weapon is a sufficient use
of force and violence for the purpose of hijacking,” even when a defendant does
not intend to use the weapon). Accordingly, the district court did not err in
10
denying Arias-Izquierdo’s Rule 29 motion.
2. Motion for Mistrial
Arias-Izquierdo also argues that his conviction should be reversed because
the district court erred in denying his motion for mistrial, which was based on
alleged prosecutorial misconduct during closing arguments. Arias-Izquierdo
alleges two instances of prosecutorial misconduct during closing arguments: first,
he challenges the prosecutor’s statement that the evidence showed that Arias-
Izquierdo was “the person who made all the announcements, and this is the person
in the green shirt that also talked to Officer Madiedo,” and second, he challenges
the prosecutor’s statement that “there is no evidence of anyone else with a green
shirt in this case.” Arias-Izquierdo bases his claim of error on the facts that
Officer Madiedo never formally identified Arias-Izquierdo as the man in the green
shirt, and that there existed several photographs depicting the more than thirty
passengers on the aircraft, several of whom were wearing shirts with some green
in them.4 Arias-Izquierdo argues that the prosecutor misstated the evidence and
4
Arias-Izquierdo’s counsel stated during his closing argument that Officer Madiedo never
identified Arias-Izquierdo as the man in the green shirt and that several of the individuals
photographed as passengers on the airplane “seem to have some green in their shirts.” The
government objected, stating that “[t]here is no evidence of anyone else with a green shirt in this
case.” The district court stated to the jury, “Well, ladies and gentlemen, you can look at the
pictures. If it is otherwise important, decide who has the green shirt on.” Arias-Izquierdo’s
counsel went on to admit that Arias-Izquierdo was wearing a green shirt.
11
vouched for witnesses, so his conviction must be reversed.
In reviewing a claim of prosecutorial misconduct, we must assess (1)
whether the challenged comments were improper, and (2) if so, whether they
prejudicially affected the substantial rights of the defendant. See United States v.
Castro, 89 F.3d 1443, 1450 (11th Cir. 1996). When reviewing a defendant’s
“vouching” claim, we examine whether (1) the prosecutor placed the prestige of
the government behind the witness by making explicit personal assurances of the
witness’s credibility, or (2) the prosecutor implicitly vouched for the witness’s
credibility by implying that evidence not formally presented to the jury supports
the witness’s testimony. United States v. Cano, 289 F.3d 1354, 1365 (11th Cir.
2002); Castro, 89 F.3d at 1457.
We find no merit in Arias-Izquierdo’s contention that the prosecutor’s
statements were improper or prejudicial. The government’s argument that Arias-
Izquierdo was the man in the green shirt who talked to Officer Madiedo was based
upon photographic evidence depicting Arias-Izquierdo in a green shirt. The jury
was free to determine whether the exhibits showed any other men wearing green
shirts, whether Arias-Izquierdo was one of them or was the only one, and whether
Officer Madiedo’s reference to the hijacker in the green shirt, who, he testified,
was one of the defendants in the courtroom, could have been someone other than
12
Arias-Izquierdo, in light of all the evidence introduced at trial. See United States
v. Young, 470 U.S. 1, 16 (1985) (reviewing assertion of prosecutorial misconduct
against the entire record). Accordingly, we conclude that the district court did not
err in denying Arias-Izquierdo’s motion for mistrial based upon prosecutorial
misconduct.
B. Eduardo Javier Mejia Morales
Eduardo Javier Mejia Morales argues that the district court abused its
discretion when it refused to allow the defense to cross-examine government
witnesses about their membership in the Cuban government’s Communist party as
a means of showing the witnesses’ motives and bias in testifying against the
defendants.5 He argues that the court violated his Sixth Amendment right to
confront adverse witnesses by restricting the scope of cross-examination in a
manner which prevented him from challenging the biases of the government’s
witnesses.
The Confrontation Clause of the Sixth Amendment guarantees criminal
defendants an opportunity to impeach through cross-examination the testimony of
adverse witnesses. United States v. Baptista-Rodriguez, 17 F.3d 1354, 1370 (11th
5
Several other appellants, including Guerra-Morales, also raise this same argument. We
address here all of the Appellants’ claims of error with respect to their right to cross-examine the
government’s witnesses.
13
Cir. 1994). The right to full cross-examination increases in importance where the
witness is a chief government witness. Baptista-Rodriguez, 17 F.3d at 1366. In
evaluating a Confrontation Clause violation, we must keep in mind that
“[c]onfrontation means more than being allowed to confront the witness
physically.” Davis v. Alaska, 415 U.S. 308, 315 (1974). The Court held in Davis
that the Confrontation Clause requires a defendant to have some opportunity to
show bias on the part of a prosecution witness. Id.
Nevertheless, the right to cross-examination is limited, as “[t]rial judges
retain wide latitude to impose reasonable limits on cross-examination based on
concerns about, among other things, confusion of the issues or interrogation that is
repetitive or only marginally relevant,” and “[s]uch restrictions are reviewed solely
for abuse of discretion.” Baptista-Rodriguez, 17 F.3d at 1370-71; De Lisi v.
Crosby, 402 F.3d 1294, 1302-03 (11th Cir. 2005). “A defendant's confrontation
rights are satisfied when the cross-examination permitted exposes the jury to facts
sufficient to evaluate the credibility of the witness and enables defense counsel to
establish a record from which he properly can argue why the witness is less than
reliable.” Baptista-Rodriguez, 17 F.3d at 1371. We must therefore review
whether the district court permitted the defendants to establish a record from
which they could challenge the credibility of the government’s witnesses.
14
The defendants’ theory of the case centered on the contention that the
hijacking was an event staged with the participation of the aircraft’s crew, and
thus could not have constituted aircraft piracy; part of this theory explained that
the crew could not openly participate in the staged hijacking because of potential
repercussions from the Cuban government. The defendants thus sought to cross-
examine the crew members who testified for the government in order to show that
their testimony was biased and dictated by the Cuban government, including by
Fidel Castro himself.
The district court summarized the defendants’ theory of the case as follows:
“What you wish to inject, as I understand it through this series of questions, that
they are coming here and not telling the truth. They are perjuring themselves
because they want to curry favor with a Communist dictatorship and/or because a
Communist dictatorship has told them to come here and perjure themselves.” The
district court on several occasions denied the defense the right to cross-examine
witnesses on their allegiance to the Cuban government’s Communist party as
foundation to show a motive or bias to lie on the stand. The court explained that it
was sustaining objections to the defendants’ questions about witnesses’
membership in the Communist party because he concluded that line of questioning
was only for the purpose of prejudicing anti-Communist jury members against a
15
Communist witness.
Nevertheless, the court permitted questions concerning: (1) whether Captain
Sanchez received any benefit from the Cuban government or his employer as a
result of the incident, (2) whether Captain Sanchez received any pictures with
Fidel Castro, (3) whether Captain Sanchez was interviewed by Cuban security
officers, (4) whether Captain Sanchez ever served in the Cuban military, (5)
whether Captain Sanchez was threatened by anyone in Cuba into testifying against
the Defendants, (6) whether Fidel Castro was present when Cuban security
interviewed Captain Sanchez regarding the hijacking, (7) whether Hernandez-
Garcia received any promotions as a result of his participation in the trial, (8)
whether co-pilot Gustavo Adolfo Salas Cleger met with representatives of the
Cuban government before testifying at trial, (9) whether Salas Cleger gave
television interviews to high ranking officials of the Cuban government, including
Fidel Castro, and (10) whether Salas Cleger was accompanied at trial by a
representative of the Cuban government.
The question presented is thus whether the district court abused its
discretion in prohibiting the defendants to question the government’s witnesses
about their membership in the Communist party, notwithstanding the other
questions concerning bias that the court permitted the defense to ask. The
16
defendants argue that the question is controlled by the Supreme Court’s decision
in United States v. Abel, 469 U.S. 45 (1984), in which the Court held that a trial
court properly admitted evidence pertaining to a defense witness’s membership in
the Aryan Brotherhood because “[a] witness’ and a party’s common membership
in an organization, even without proof that the witness or party has personally
adopted its tenets, is certainly probative of bias.” Id. at 52. The defendants argue
that if membership in an organization may be relevant as evidence of the bias of a
defense witness, it must also be relevant as evidence of the bias of a government
witness, particularly because of the Sixth Amendment Confrontation Clause
concerns at stake.
We conclude, however, that Abel is distinguishable from the case at bar
because the mere fact of membership in the Aryan Brotherhood necessarily
implied a willingness to commit perjury on behalf of one of a witness’s “brothers”;
in other words, lying on behalf of a fellow member was one of the defining tenets
of one’s membership in the Brotherhood. See id. at 54 (“The attributes of the
Aryan Brotherhood – a secret prison sect sworn to perjury and self-protection –
bore directly not only on the fact of bias but also on the source and strength of
Mills' bias. The tenets of this group showed that Mills had a powerful motive to
slant his testimony towards respondent, or even commit perjury outright.”). The
17
Court held that the nature of the Aryan Brotherhood organization made testimony
regarding the witness’s membership particularly probative; thus, the lower court in
Abel did not abuse its discretion when it conducted the balancing inquiry, under
Federal Rule of Evidence 403, between the probative and prejudicial qualities of
the evidence at issue.
In this case, the witnesses’ membership in the Communist party did not, by
definition, impugn their credibility. Membership in a political party, by itself,
does not necessarily signify anything about a person’s truthfulness and is thus
distinguishable from “a secret prison sect sworn to perjury and self-protection.”
Id. at 54. Furthermore, the district court permitted the defendants to question the
government’s witnesses concerning their potential biases in terms of, inter alia,
their meetings with Communist officials in Cuba, whether they felt pressured by
the Cuban government to testify in a certain manner, and whether they received
any benefits or promotions from the government in exchange for their testimony.
In addition, the defendants cross-examined the government witnesses on the
reason for there being sufficient fuel in the aircraft to reach Florida, the presence
of nautical charts for South Florida on the aircraft, and alleged discrepancies
between their testimony at trial and their statements as described in an FBI report.
The defendants were not permitted to present a justification defense (i.e., that they
18
were justified in hijacking the aircraft in order to come to the United States to
escape a repressive regime),6 but were permitted to “expose[] the jury to facts
sufficient to evaluate the credibility of the witness” or to “establish a record from
which [they] properly [could] argue why the witness is less than reliable.”
Baptista-Rodriguez, 17 F.3d at 1370-71. Accordingly, having reviewed the record
as a whole, we hold that the district court did not abuse its discretion in
disallowing the questions directly inquiring into Communist party membership.
C. Neudis Infantes Hernandez
Neudis Infantes Hernandez argues that: (1) the government failed to present
sufficient evidence to support his convictions; (2) the district court erred in
denying his motion to exclude a Cuban government document which was a
summary prepared for the trial rather than an official record; (3) the district court
erred in refusing to grant Hernandez a mistrial and severance after a Bruton
violation by the government; (4) the district court erred in denying Hernandez’s
requested jury instructions and verdict form; (5) he was denied a fair trial because
of the cumulative effect of erroneous rulings by the district court; and (6) the
6
The district court granted the government’s unopposed renewed motion in limine to
preclude the defendants from raising the affirmative defenses of duress, necessity or justification,
and prevented the defendants from introducing evidence regarding the difficult economic and
political living conditions in Cuba. The grant of this motion in limine is not being challenged on
appeal.
19
district court erred in sentencing Hernandez in violation of the Eighth Amendment
prohibition against cruel punishment.
1. Sufficiency of the Evidence
Hernandez was convicted by the jury of all four counts – aircraft piracy,
conspiracy to commit aircraft piracy, interference with a flight crew, and
conspiracy to interfere with a flight crew. The evidence at trial demonstrated that
Hernandez, like Arias-Izquierdo, wielded a knife in order to maintain security on
the flight. Garcia testified that as he approached Olivares-Samon, Hernandez and
Guerra-Morales grabbed him from behind, pressed a knife to him, pushed him face
down on the floor of the cabin, warned him that he would be killed if he resisted,
bound his hands behind him, and left him on the floor. Garcia stated that
Hernandez remained at the rear of the cabin, guarding the crew, for most of the
flight. Passenger Barreda testified that Hernandez distributed snacks to the
passengers while holding a long knife.7
7
Unlike Arias-Izquierdo, Hernandez does not argue that he did not have a weapon, but
seems to be arguing that he did not actually use it. He cites in support Barreda’s testimony that
Hernandez did not hold the knife “in a threatening manner” while he distributed snacks, but
rather held it in a “protective” manner. However, the flight steward, Garcia, testified that earlier
in the flight, Hernandez indeed used his knife to threaten Garcia as he was being tied up. Even if
Hernandez did not wield the weapon in a threatening way towards the passengers, he did so
towards the crew. Furthermore, even if he did not actually use the knife, the fact that he
threatened to kill Garcia if he resisted is sufficient under 49 U.S.C. § 46502. See Pablo-Lugones,
725 F.2d 624 (holding that threatening to use a dangerous weapon, even if it is never actually
used, is a sufficient use of force and violence to convict for aircraft piracy).
20
With respect to aircraft piracy, Hernandez argues that he did not seize or
exercise control of an aircraft, as required by 49 U.S.C. § 46502, because he only
acted to secure the aircraft steward, Garcia, did not have a role in the security or
control of the aircraft, and never entered the cockpit. Hernandez argues that
because Congress passed two separate provisions – one for aircraft piracy and one
for interference with the performance of a flight crew member, see 49 U.S.C.
§ 46504 – Congress did not intend for the aircraft piracy statute to be used
against persons who interact only with the flight crew during a flight and never
enter the cockpit.
We find the relevant distinction between aircraft piracy and interference
with a flight crew member to be the act of the defendant rather than the identity of
the victim – § 46502 prohibits the “seizing or exercising control of an aircraft . . .
by force, violence, threat of force or violence, or any form of intimidation,” while
§ 46504 criminalizes “assaulting or intimidating a flight crew member or flight
attendant of the aircraft” in a manner that “interferes with the performance of the
duties of the member or attendant or lessens the ability of the member or attendant
to perform those duties . . . .” There is no support for Hernandez’s assertion that
the object of a defendant’s force, violence, or intimidation must be directly and
exclusively the pilot of an aircraft. See, e.g., United States v. Compton, 5 F.3d
21
358 (9th Cir. 1993) (holding that defendant’s delivery of a threatening note to
flight attendant was sufficient to attempt air piracy because he “set in motion a
chain of events that he must have intended to affect the captain of the plane” and
because “the statute does not require a specific intent”). The government proved
that Hernandez used intimidation and threats of violence to maintain control over
the passenger cabin of the aircraft, in a manner meant to influence the flight plan
and the pilot, thus the government proved sufficient evidence of Hernandez’s guilt
under the plain language of § 46502.
Hernandez next argues that the government did not prove sufficient
evidence to convict him of conspiracy to commit aircraft piracy. The elements of
the offense of conspiracy are: (1) an agreement between the defendant and one or
more persons, (2) the object of which is to do either an unlawful act or a lawful act
by unlawful means. United States v. Toler, 144 F.3d 1423, 1426 (11th Cir. 1998).
“Because the crime of conspiracy is ‘predominantly mental in composition,’ it is
frequently necessary to resort to circumstantial evidence to prove its elements.”
Id. (quoting United States v. Shabani, 513 U.S. 10, 16 (1994)). The government is
therefore not required to demonstrate the existence of a “formal agreement,” but
may instead demonstrate by circumstantial evidence a meeting of the minds to
commit an unlawful act. Id. Proof that the accused committed an act which
22
furthered the purpose of the conspiracy is an example of the type of circumstantial
evidence the government may introduce to prove the existence of agreement.
United States v. Sullivan, 763 F.2d 1215, 1218-19 (11th Cir. 1985).
Hernandez argues that the government presented no evidence that
Hernandez agreed to participate in the crimes of air piracy and interference with a
flight crew member because there was no evidence that the crimes were pre-
planned. We conclude, however, that the jury reasonably could have inferred from
the rapid execution of the hijacking, with each defendant springing into action
upon a signal from Norneilla-Morales, that the crime had been pre-planned and
that each defendant had agreed to participate by accepting those instructions. The
government presented substantial evidence demonstrating Hernandez’s role in the
conspiracy as a person responsible for controlling the crew in the passenger cabin
of the aircraft. The flight steward Garcia testified that Hernandez restrained him
and remained at the rear of the cabin, guarding the crew.
Hernandez also argues that there was no evidence he agreed to a conspiracy
to commit aircraft piracy because he restrained only a flight steward, thus his
restraint did not contribute to the seizure and control of the aircraft. However,
even if it were not true that Garcia was responsible, in part, for maintaining
security in the passenger cabin of the aircraft, Garcia also testified that Hernandez
23
restrained and guarded the flight security guard, the flight technician, and the
flight engineer. All of the gentlemen restrained by Hernandez held responsibilities
pertaining to the security and physical integrity of the aircraft and were prevented
from performing those duties by physical restraint, thus enabling Hernandez’s co-
conspirators to control the aircraft.
From Hernandez’s actions, the jury reasonably could have inferred that
Hernandez had agreed to participate in conspiracies to commit the crimes of
aircraft piracy and interference with a flight crew member. Accordingly, the court
did not err in denying Hernandez’s Rule 29 motion for a judgment of acquittal.
2. Admission of Cuban Government Document
Hernandez argues that the court erred by admitting in evidence a foreign
records certification and report from Cubana Airlines showing that five of the
defendants previously had been passengers on the Nueva Gerona/Havana flight,
and in particular, that Hernandez and Norneilla-Morales had traveled on the flight
a month prior to the hijacking. The exhibit is a typed document in Spanish entitled
“CERTIFICO.” The document lists the flights the Defendants had taken on
Cubana Airlines in 2002 and 2003. It was authenticated at trial by means of an
accompanying document entitled “CERTIFICACION DE REGISTROS
COMERCIALES EXTRANJEROS,” or “CERTIFICATION OF FOREIGN
24
COMMERCIAL REGISTRIES.” The authenticating document was also
typewritten, however blanks were filled in by hand by Ana Isis Toboso Moreno,
the Revenues Department Head of Cubana Airlines. Ms. Moreno’s foreign
records certification, pursuant to Federal Rule of Evidence 902(12), stated that the
attached documents were prepared on or about the day that the event transpired, by
persons with knowledge and in the ordinary course of business. Ms. Moreno, in
certifying it as a business record, stated that Cubana Airlines maintained
handwritten records, stored in folders, documenting the passengers on all of its
flights.
Hernandez argues that the exhibit did not qualify as a summary of Cuban
airlines records because the government did not produce the underlying originals
or copies of the documents as demanded, and that it was inadmissible because the
report had been generated at the request of the government for trial. The
government argues that the district court properly admitted the document as a
business record in the form of a report or data compilation by Cubana Airlines
pursuant to Federal Rule of Evidence 803(6), not as a summary exhibit of other
trial exhibits pursuant to Federal Rule of Evidence 1006.
The relevant rule, 803(6), provides that the following evidence is not
excluded by the hearsay rule, even though the declarant is available as a witness:
25
A memorandum, report, record, or data compilation, in any form, of
acts, events, conditions, opinions, or diagnoses, made at or near the
time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business
activity, and if it was the regular practice of that business activity to
make the memorandum, report, record or data compilation, all as
shown by the testimony of the custodian or other qualified witness, or
by certification that complies with Rule 902(11), Rule 902(12), or a
statute permitting certification, unless the source of information or the
method or circumstances of preparation indicate lack of
trustworthiness. The term "business" as used in this paragraph
includes business, institution, association, profession, occupation, and
calling of every kind, whether or not conducted for profit.
Fed. R. Evid. 803(6). We have held that “[t]he touchstone of admissibility under
[Rule 803(6)] is reliability, and a trial judge has broad discretion to determine the
admissibility of such evidence . . . .” United States v. Bueno-Sierra, 99 F.3d 375,
378-79 (11th Cir. 1996).
In this case, the district court found that the exhibit in question was a report
or data compilation created by Cubana Airlines from the company’s own records
documenting its passengers, and thus was admissible as a business record.
Hernandez argues that because the exhibit in question was prepared for purposes
of litigation, it should have been ruled inadmissible. We agree.
Rule 803(6) requires that both the underlying records and the report
summarizing those records be prepared and maintained for business purposes in
the ordinary course of business and not for purposes of litigation. See United
26
States v. Kim, 595 F.2d 755, 760-64 (D.C. Cir. 1979) (holding inadmissible a
summary of bank records even assuming the underlying records would be
admissible). The government argues that the summary should be admissible
because the records regarding the passengers were maintained in the ordinary
course of business, citing United States v. Fugii, 301 F.3d 535, 539 (7th Cir. 2002)
in support. In Fugii, the Seventh Circuit upheld the admission, under Rule 803(6),
of Korean Airlines check-in and reservation records and flight manifests printed at
the request of the government for use in an alien smuggling trial because such
records were compiled in the airlines’ ordinary course of business. Those records
are distinguishable from the present records, however, because the records in Fugii
were electronically stored information and the summary was simply a printout of
that information.
Here, rather than a simple printout of regularly kept, computerized records,
the Government sought to have admitted a typed summary of handwritten business
records. This printed summary was prepared solely for trial. Rule 803(6) does not
allow for the admission of such a summary. See Kim, 595 F.2d at 760-64. The
Federal Rules do provide in Rule 1006 for the admission of a summary of
voluminous business records, but only if certain requirements are met. Among
these requirements is that other parties to the case must be provided the original
27
records upon which the summary is based -- or duplicates of those originals --
prior to the admission of the summary. In this case, the government did not
provide the defendants with the original handwritten records of the passenger
manifests, or any duplicates of those originals, before seeking admission of the
summary. We therefore conclude that it was error for the district court to admit
this document at trial.
Nevertheless, Hernandez has failed to show substantial prejudice because
there was sufficient evidence of his guilt even absent the document in question.
The conduct of the Defendants aboard the airplane, testified to by multiple
witnesses at trial, was sufficient to support a conspiracy even without the
erroneously admitted CERTIFICO.
3. Bruton Error With Respect to Severance
Hernandez argues that the district court committed Bruton error when it
denied Hernandez’s motions for mistrial and severance after Agent Heck testified
that Norneilla-Morales had told her that he had planned to overtake an aircraft by
force for over a year and that he had recruited “the other five.” The district court
denied Hernandez’s motion for severance on the basis that because Norneilla-
Morales was testifying at trial and would be subject to cross-examination,
Hernandez’s Sixth Amendment rights were not implicated by the admission of
28
Agent Heck’s testimony.
In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held
that the admission of a “powerfully incriminating extrajudicial statement” of a co-
defendant violates a defendant’s Sixth Amendment right of confrontation even
when the court instructs the jury to consider the confession only against the co-
defendant. Id. at 135-36. A statement is powerfully incriminating if it expressly
implicates the defendant. Id.
However, the Court clarified the Bruton rule in Nelson v. O’Neill, 402 U.S.
622 (1971), when it held that there is no Confrontation Clause problem when the
“confessing” co-defendant is subject to cross-examination at trial. Id. at 627 (“The
Constitution as construed in Bruton, in other words, is violated only where the
out-of-court hearsay statement is that of a declarant who is unavailable at the trial
for ‘full and effective’ cross-examination.”); see also United States v. Clemons, 32
F.3d 1504 (11th Cir. 1994) (holding that because one defendant waived his Fifth
Amendment right and testified, thus making him available for cross-examination,
the court did not err in admitting his post-arrest statement implicating his co-
defendant).
In this case, Norneilla-Morales testified at trial and was available for cross-
examination, thus Hernandez’s Sixth Amendment rights were not violated and his
29
motion for severance was properly denied.8
4. Jury Instructions
Hernandez next argues that the district court erred in denying his request for
a jury instruction that interfering with a flight crew and conspiracy to interfere
with a flight crew were lesser included offenses of the conspiracy and substantive
aircraft piracy charges. Hernandez does not dispute that the superseding
indictment charged the lesser included offenses as Counts III and IV. Instead, he
argues that the court’s failure to instruct specifically that Counts III and IV were
lesser included offenses of Counts I and II deprived him of his right to argue his
theory of the defense. He also argues that the court erred by refusing to instruct
the jury that carrying a dangerous weapon on board an aircraft, in violation of 49
U.S.C. § 46505, and battery, in violation of Fla Stat. § 784.03 pursuant to 18
U.S.C. § 13, were lesser included offenses.
The district court’s refusal to give a defendant’s requested jury instruction is
8
Hernandez also argues that his right to confront adverse witnesses was violated by the
government’s remarks during closing argument regarding Norneilla-Morales’s statement.
Hernandez did not object to these remarks during trial, so we review them for plain error. United
States v. Humphrey, 164 F.3d 585, 588 n.3 (11th Cir. 1999) (holding that we may not correct an
error the defendant failed to raise in the district court unless there is (1) error, (2) that is plain, (3)
that affects substantial rights, and even then, only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings). We conclude that there was no plain error
because the prosecutor never suggested that the jury should ignore the court’s limiting instruction
that Norneilla-Morales’s confession was to be considered only against himself, and because there
was abundant evidence against Hernandez irrespective of the challenged remarks at closing.
30
reviewed for an abuse of discretion. United States v. Schlei, 122 F.3d 944, 969
(11th Cir. 1997). To prove reversible error, a defendant must show that the
instruction: “(1) was a correct statement of the law; (2) was not adequately
covered in the instructions given to the jury; (3) concerned an issue so substantive
that its omission impaired the accused’s ability to present a defense; and (4) dealt
with an issue properly before the jury.” United States v. Lyons, 53 F.3d 1198,
1200 (11th Cir. 1995).
We conclude that the district court did not abuse its discretion in declining
to specifically state that the interference with a flight crew charges were lesser
included offenses. The court instructed the jury that a separate offense was
charged against one or more of the defendants in each count of the indictment, that
each charge and the evidence pertaining to it should be considered separately, that
the case of each defendant should be considered separately and individually, and
that they had to determine from the evidence in the case whether each individual
defendant was guilty or not guilty of each of the individual charges set forth in the
indictment. The jury clearly understood this instruction, as several of the
defendants were found guilty of some but not all of the four charges, while others
were found guilty of all four charges. We conclude that the jury did not need a
redundant instruction that there were offenses other than aircraft piracy that they
31
could consider in evaluating Hernandez’s guilt. Hernandez’s requested instruction
was covered by the court’s instruction that Hernandez could be found guilty of
some charges in the indictment and not others. Accordingly, his request was
properly denied.
Hernandez next argues that the district court erred in refusing to instruct the
jury that carrying a dangerous weapon on board an aircraft and battery were lesser
included offenses. In order for an offense to be a lesser-included offense of a
parent offense, its elements must be contained within the elements of the parent
offense. See Schmuck v. United States, 489 U.S. 705, 716 (1989); United States
v. Stone, 139 F.3d 822, 839 n.15 (11th Cir. 1998).
The elements of carrying a dangerous weapon on board an aircraft, under
§ 46505, are that the defendant: (1) boarded an aircraft involved in air
transportation; (2) knowingly had on or about his person a concealed dangerous
weapon which would be accessible to him in flight, or placed a loaded firearm on
the aircraft in property not accessible during flight, or placed a bomb or incendiary
device on the aircraft; and (3) acted willfully and with reckless disregard for the
safety of human life. See Eleventh Circuit Pattern Jury Instruction 104, at 505
(2003). Section 46505 involves elements not included within the offenses charged
in the indictment, thus it was not an abuse of discretion to decline to instruct the
32
jury as to this offense. Similarly, the elements of battery are not included within
the charged offenses. Accordingly, the district court did not commit reversible
error in declining to give Hernandez’s desired instruction.
5. Cumulative Error
Hernandez argues that even if each of the district court’s asserted errors,
standing alone, are insufficient to merit reversal, we should evaluate the
cumulative effect of the asserted errors to find prejudice requiring reversal. See,
e.g., United States v. Preciado-Cordobas, 981 F.2d 1206, 1215 n.8 (11th Cir.
1993). Because we conclude that the district court did not commit prejudicial
error, whether standing alone or taken cumulatively, we affirm Hernandez’s
conviction.
6. Sentencing
Hernandez received the statutory minimum sentence of 20 years, but
challenges his sentence on the basis that 20 years constitutes cruel and unusual
punishment in violation of the Eighth Amendment.
Because this is a non-capital case involving a statutory minimum, “the
Eighth Amendment encompasses, at most, only a narrow proportionality
principle.” United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005). We
must make a threshold determination that a sentence imposed is grossly
33
disproportionate to the offense committed and, if it is grossly disproportionate, we
must then consider the sentences imposed on others convicted in the same
jurisdiction and the sentences imposed for the commission of the same crime in
other jurisdictions. Brant, 62 F.3d at 368. Furthermore, a sentence which is not
otherwise cruel and unusual does not become so simply because it is “mandatory.”
Id. (citing Harmelin v. Michigan, 501 U.S. 957, 995 (1991)).
We conclude that the 240-month, or 20 year, statutory minimum sentence is
not grossly disproportionate to the offense of conviction. The hijacking of a
passenger aircraft is an extraordinarily dangerous undertaking, putting at risk the
lives of all passengers and, as we know too well after the events of September 11,
2001, potentially the lives of many others as well. Congress assigned a mandatory
minimum sentence of twenty years for air piracy cases when it enacted 49 U.S.C. §
46502(a)(2)(A) and (B), except in those instances in which death of another
individual results, in which case the defendant shall either receive a sentence of
life imprisonment or death. We are required to “grant substantial deference to the
broad authority that legislatures necessarily possess in determining the types and
limits of punishments for crimes, as well as to the discretion that trial courts
possess in sentencing convicted criminals.” Solem v. Helm, 463 U.S. 277, 290
(1983); see also Raad, 406 F.3d at 1323. Furthermore, the fact that Hernandez
34
claims, in his defense, that he was fleeing a repressive Cuban government is not a
consideration in the proportionality inquiry. Cf. United States v. Rojas, 47 F.3d
1078, 1082 (11th Cir. 1995) (holding that downward departure was not warranted
under guidelines applicable when defendant commits a crime in order to avoid
perceived greater harm where defendant professed the belief that his criminal
action is furthering a greater political good in Cuba). Accordingly, we find that
the statutory minimum sentence of 20 years imprisonment was not cruel or
unusual in violation of the Eighth Amendment.9
D. Yainer Olivares Samon
Yainer Olivares Samon argues that the district court erred in denying the
defense the opportunity to cross-examine government witnesses as to their motives
and bias in testifying against the defendants. We have already rejected this
argument, which is the only one raised by Olivares Samon in his brief.
E. Alexis Norneilla-Morales and Miakel Guerra Morales
Alexis Norneilla-Morales argues that: (1) the district court erred in denying
his theory of defense instruction; (2) the district court erred in denying post-trial
9
We also conclude that the district court did not commit reversible Booker error with
respect to Hernandez’s sentence. Hernandez's substantial rights were not affected even though he
was sentenced under a mandatory guidelines system because the district court sentenced
Hernandez to the statutory minimum, without resort to any guideline enhancements.
35
discovery regarding the flight attendant’s defection to the United States; (3) he
was denied a fair trial because of the cumulative effect of erroneous rulings by the
district court; and (4) the district court committed Booker error in applying the
guidelines. Guerra-Morales raises arguments with respect to his conviction that
we have already rejected,10 and also raises the same sentencing objection as
Norneilla-Morales.
1. Jury Instructions
Norneilla-Morales argues that the court erred by denying his “wrongful
intent” instruction, which defined “knowingly” as acting “voluntarily and
intentionally and not because of mistake or accident or other innocent reason.”
(emphasis added). He contends that this language would have enabled him to
argue his defense to the jury that the crew was complicit in the hijacking.
The government objected to the proposed instruction on the grounds that the
term “knowingly” was correctly defined in the Eleventh Circuit Pattern Instruction
and that the same definition for “knowingly” should be used throughout the
10
Miakel Guerra Morales argues that: (1) the district court abused its discretion when it
refused to allow the defense to cross-examine government witnesses as to their motives and bias
in testifying against the defendants; (2) the district court abused its discretion in limiting the
scope of the lead defense witness as to the defendants' plan to come to the United States; (3) the
district court abused its discretion by denying Morales's request for disclosure of information
pertaining to government witness Abilio Hernandez-Garcia; and (4) the district court erred in
enhancing his base offense level by two points for obstruction of justice based upon trial
testimony.
36
instructions. The court denied Norneilla-Morales’s request because it found that
his desired “wrongful intent” instruction was “not really applicable to the case in
the sense that there is no question of mistake or accident, and the innocent reason
is the violent strong feeling against the regime in Cuba.”
We conclude that the district court did not commit reversible error in
denying Norneilla-Morales’s requested instruction because the requested “or other
innocent reason” language would have misled the jury into thinking that
Norneilla-Morales’s conduct could be excused because their desire to leave Cuba
and come to the United States was an “innocent reason” for hijacking the aircraft.
The district court held that the defendants could not raise a justification defense,
and that ruling is not being challenged on appeal. Norneilla-Morales’s proposed
jury instructions were merely a backdoor means of making the justification
defense. The district court’s instruction regarding intent – that “knowingly”
means “the act was done voluntarily and intentionally and not because of mistake
or accident” was a correct statement of the law and adequate to cover the charged
crimes.
Furthermore, the instruction was not necessary for Norneilla-Morales to
argue his theory of defense – that the hijacking had been staged and the crew was
“in on it.” Norneilla-Morales, Arias-Izquierdo, and Guerra-Morales argued that
37
the hijacking had been staged. Olivares-Samon characterized the hijacking as a
“freedom flight,” arguing that there was no credible evidence that he had
committed acts of violence or intimidation. So too did Hernandez. Mejia Morales
compared the flight to the Jews who tried to flee Nazi Germany and the Germans
who died attempting to cross the Berlin Wall. Defense counsel suggested in
closing argument that the conduct of the defendants was justified.
2. Post-Trial Discovery
Norneilla-Morales argues that the district court abused its discretion when it
denied the appellants’ motion for post-trial discovery involving the flight steward
Garcia’s decision to remain in the United States after the government learned of
Garcia’s defection. He claims that the fruits of such an inquiry might have
supported a motion for a new trial based upon either perjured information or the
government’s failure to disclose exculpatory evidence as required by Brady v.
Maryland, 373 U.S. 83 (1963). He maintains that at the very least, the court was
required to hold an evidentiary hearing, order the release of Garcia’s asylum
application or to conduct an in camera review of such materials.
The record demonstrates the following. The trial ended on December 11,
2003. On December 19, 2003, the government informed the defendants that the
prosecutors had just learned of Garcia’s decision not to return to Cuba. The
38
defendants filed motions to require the government to provide them with Garcia’s
contact information or to produce him for interview. On March 4, 2004, the court
denied the defendants’ motions, finding that they had not contended that the
government had obtained exculpatory information from Garcia, but ordered the
government to inquire whether Garcia wished to change his testimony or be
interviewed by the defendants.
On March 11, 2004, the government responded that Garcia has stated he did
not wish to change his testimony nor be interviewed by the defendants. The
following week, Guerra-Morales filed a motion demanding interview reports
pertaining to Garcia, or at a minimum, for an in camera review of asylum
application documents, asserting that they constituted exculpatory evidence under
Brady. The court denied the motion for production, holding that the defendants’
vigorous cross-examination of Garcia at trial meant that any information
surrounding Garcia’s defection would not make his testimony any less believable
and would not constitute grounds for changing the verdict or ordering a new trial.
The rule regarding exculpatory evidence announced in Brady applies after
trial when it is discovered that the prosecution had material information of which
the defense was unaware. Untied States v. Agurs, 427 U.S. 97, 103 (1976). In
Untied States v. Quinn, 123 F.3d 1415 (11th Cir. 1997), we held that the
39
government was not required to disclose the contents of personnel files or submit
them for in camera review simply based on the defendant’s unsupported
contention that they might contain information of significance to his case. Id. at
1421-22. We declined to order discovery based upon mere speculation as to
whether the material would contain exculpatory evidence because to do so would
“convert Brady into a discovery device and impose an undue burden upon the
district court.” Id. at 1422 (quotation marks and citation omitted).
This case is unlike those cited by the defendants in which a witness perjures
himself at trial and the defense discovers exculpatory evidence to that effect after
trial. See, e.g., United States v. Espinosa-Hernandez, 918 F.2d 911 (11th Cir.
1990). The defendants here made no showing that Garcia perjured himself at trial,
during his pre-trial deposition, or at any other point. Instead, they merely
speculate that his asylum application might show that he lied at trial, not because
he was trying to curry favor with the Cuban government, as they alleged at trial,
but under their new theory that he was trying to curry favor with the United States
government. However, Garcia’s testimony at trial – that he was tied up at knife-
point by the defendants – was corroborated by multiple witnesses at trial.
Accordingly, we conclude that the district court did not commit reversible error in
denying defendants’ request for post-trial discovery as to Garcia’s immigration
40
status.
3. Cumulative Error
Like Hernandez, Norneilla-Morales argues that even if each of the district
court’s asserted errors, standing alone, are insufficient to merit reversal, we should
evaluate the cumulative effect of the asserted errors to find prejudice requiring
reversal. Here too, because we conclude that the district court did not commit
prejudicial error, whether standing alone or taken cumulatively, we affirm
Norneilla-Morales’s conviction.
4. Sentencing Error
Both Norneilla-Morales and Guerra-Morales argue that the court erred in
enhancing their base offense levels by two points for obstruction of justice based
upon trial testimony. We agree, as we find that there is reversible Booker
statutory error here. The first prong of the plain error test is easily satisfied
because the district court considered the guidelines as mandatory during
sentencing. See Shelton, 400 F.3d at 1330-31. The second prong is also satisfied
because “where the law at the time of trial was settled and clearly contrary to the
law at the time of appeal – it is enough that an error be ‘plain’ at the time of
appellate consideration.” Johnson v. United States, 520 U.S. 461, 468 (1997).
Under Booker, viewing the guidelines as mandatory is plainly erroneous. United
41
States v. Dacus, 408 F.3d 686, 689 (11th Cir. 2005).
As to the third prong, Norneilla-Morales and Guerra-Morales must
demonstrate that the plain error affects their substantial rights and that the error
“actually did make a difference.” Rodriguez, 398 F.3d at 1298. They have met
this burden because they have shown a reasonable probability that the court would
have imposed a lower sentence if the guidelines had been advisory. The court
stated that it was “reluctant” to apply the obstruction of justice enhancement
because of the “very substantial increase” in sentencing. The court also stated that
it was sentencing all of the co-defendants at the low end of the guidelines range
because “this is sufficient or indeed more than sufficient punishment and
deterrent.” The combination of these facts and statements demonstrates a
reasonable probability that the court would have imposed a different sentence if
the guidelines were advisory, thus the defendants have shown that plain error
affected their substantial rights. For these same reasons, Norneilla-Morales and
Guerra-Morales also satisfy the fourth prong of the plain error test – a reasonable
probability that the court would impose a lesser sentence.
III. CONCLUSION
Based on the foregoing, the appellants’ convictions are AFFIRMED. The
sentences of Hernandez, Olivares Samon, Mejia Morales, and Arias-Izquierdo are
42
AFFIRMED. We VACATE the sentences of Norneilla-Morales and Guerra
Morales and REMAND to the district court for resentencing as to those
defendants.
43