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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-14938
Non-Argument Calendar
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D.C. Docket No. 1:19-cr-20224-UU-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAYCOL MENDEZ MARADIAGA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 23, 2021)
Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Maycol Mendez Maradiaga appeals his conviction for possession with intent
to distribute cocaine, in violation of
21 U.S.C. § 841(a)(1). On appeal, he raises
four arguments.
First, Mendez Maradiaga asserts that the district court abused its discretion
by allowing the government to cross-examine him about a 2012 arrest for
possession of MDMA (“molly”) because the government did not show that he
committed the offense by a preponderance of the evidence. He also asserts that the
district court plainly erred by allowing the government to cross-examine him about
his prior recorded drug sales to Marvin Reyes, a confidential informant (“CI”)
because, without transcripts of those conversations, the questioning violated Fed.
R. Evid. 404(b), Fed. R. Crim. P. 16, and the best evidence rule.
Second, Mendez Maradiaga argues that the district court abused its
discretion by excluding his evidence that he did not participate in drug dealing
outside of his involvement with Reyes. Third, he contends that the district court
abused its discretion by excluding his evidence about Reyes’s prior bad acts
because that evidence would show Reyes’s motive in entrapping him and rebut the
government’s evidence. Lastly, Mendez Maradiaga argues that the evidence was
insufficient to support the jury’s finding that he was predisposed to commit the
offense. We address each argument in turn.
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I.
We “review evidentiary rulings for abuse of discretion.” United States v.
Wenxia Man,
891 F.3d 1253, 1264 (11th Cir. 2018). Accordingly, district courts
enjoy wide discretion in making evidentiary rulings. United States v. Stephens,
365 F.3d 967, 973 (11th Cir. 2004). Evidentiary challenges raised for the first time
on appeal are reviewed only for plain error. Fed. R. Crim. P. 52(b); United states
v. Charles,
722 F.3d 1319, 1322 (11th Cir. 2013). Plain error occurs where: (1)
there is an error; (2) that is plain; (3) that affects the defendant’s substantial rights;
and (4) that seriously affects the fairness, integrity, or public reputation of judicial
proceedings. United States v. Presendieu,
880 F.3d 1228, 1237 (11th Cir. 2018).
In general, evidence of a defendant’s prior crimes, wrongs, or other bad acts
is not admissible to prove his character and show that he acted in accordance with
that character on a particular occasion. Fed. R. Evid. 404(b)(1). However, this
evidence may be admissible to prove motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. Fed. R. Evid.
404(b)(2). Further, evidence of prior bad acts is not extrinsic, and thus is
admissible, if it is (1) an uncharged offense which arose out of the same transaction
or series of transactions as the charged offense, (2) necessary to complete the story
of the crime, or (3) inextricably intertwined with the evidence regarding the
charged offense. United States v. Ellisor,
522 F.3d 1255, 1269 (11th Cir. 2008).
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To be admissible under Rule 404(b), evidence of prior bad acts must withstand a
three-part test: (1) the evidence must be relevant to an issue other than character;
(2) the probative value must not be substantially outweighed by its undue
prejudice; and (3) the government must offer sufficient proof so that the jury could
find that defendant committed the act.
Id. at 1267.
Although the government normally may not introduce evidence of a
defendant’s predisposition to engage in criminal activity, it may do so once a
defendant submits evidence which raises the possibility that he was induced to
commit the crime. United States v. Salisbury,
662 F.2d 738, 741 (11th Cir. 1981).
The introduction of extrinsic offense evidence is a reliable method of proving the
criminal predisposition needed to rebut the allegation of entrapment.
Id.
Rule 16 requires the government to disclose, upon the defendant’s request,
any: (1) relevant written or recorded statement by the defendant that is within the
government’s possession, custody, or control, and the government knows that it
exists; (2) the portion of any written record containing the substance of any
relevant oral statement made before or after arrest if the defendant made the
statement in response to interrogation by a person the defendant knew was a
government agent; and (3) the defendant’s recorded testimony before a grand jury
relating to the charged offense. Fed. R. Crim. P. 16(a)(1)(B). In addition, “[t]he
best evidence rule, codified as Federal Rule of Evidence 1002, requires the
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production of originals to prove the content of any writing, recording or
photograph.” United States v. Guevara,
894 F.3d 1301, 1309 (11th Cir. 2018); see
also Fed. R. Evid. 1002. “The purpose of the best evidence rule is to prevent
inaccuracy and fraud when attempting to prove the contents of a writing.”
Guevara, 894 F.3d at 1309-1310.
It is well established that, when a defendant testifies in his own defense, the
jury may disbelieve his testimony, conclude that the opposite of his testimony is
true, and consider it as substantive evidence of his guilt. United States v. Brown,
53
F.3d 312, 314 (11th Cir. 1995). This Court has found that the district court did not
abuse its discretion in allowing the government to question a defendant about a
prior drug arrest, without offering testimony from the arresting officers or lab
reports about the drugs, because the prior arrest was probative to the defendant’s
charges on trial. United States v. Ramirez,
426 F.3d 1344, 1354 (11th Cir. 2005).
Here, the district court did not abuse its discretion by admitting evidence of
Mendez Maradiaga’s prior arrest. Mendez Maradiaga is correct in noting that the
government did not produce the arresting officer or a lab report with regard to the
2012 arrest. However, the arrest was relevant and probative to whether he was
truthful in asserting that he had never sold drugs before his interactions with the
government. See Fed. R. Evid. 404(b); Salisbury,
662 F.2d at 741. By asserting an
entrapment defense, Mendez Maradiaga placed his predisposition to commit drug
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offenses at issue and allowed the government to offer evidence that would
establish that predisposition. See Salisbury,
662 F.2d at 741. As with the defendant
in Ramirez, the district court did not abuse its discretion in allowing the
government to question Mendez Maradiaga about a probative arrest that was
directly related to his defense at trial. See Ramirez,
426 F.3d at 1354. Moreover,
Mendez Maradiaga was not unduly prejudiced by the government’s questioning
because the district court allowed him to rebut it on redirect, and the jury was free
to believe his testimony. See Brown,
53 F.3d at 314.
As to the transcripts, Mendez Maradiaga did not object to the use of the
transcripts on Rule 404(b) or Rule 16 grounds. Thus, we review those arguments
for plain error. See Presendieu, 880 F.3d at 1237. The district court did not plainly
err in allowing Mendez Maradiaga to be cross-examined about his prior drug deals
with Reyes.
First, the government did not quote from the recorded conversations,
characterize those conversations, or ask Mendez Maradiaga about specific
statements in those conversations. The government only asked whether Mendez
Maradiaga, at any point during those prior deals, mentioned helping Reyes because
of his troubles in Honduras. Thus, the government’s failure to produce English
translations of those transcripts did not violate the best evidence rule because the
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government did not ask about the content of those conversations. See Guevara, 894
F.3d at 1309; Fed. R. Evid. 1002.
Similarly, the government’s questioning did not violate Rule 16 because that
rule does not require that the government translate a recorded statement, and the
government did not utilize the transcripts on cross-examination. Fed. R. Crim. P.
16(a)(1)(B). Indeed, the district court later excluded use of the transcripts in accord
with Mendez Maradiaga’s objection and prevented the jury from reviewing the
transcripts during their deliberation.
Lastly, as noted above, Mendez Maradiaga’s entrapment defense allowed the
government to offer evidence that would show that he was predisposed to commit
the offenses in his indictment under Rule 404(b). See Salisbury,
662 F.2d at 741.
Moreover, Mendez Maradiaga’s prior drug deals were inextricably intertwined
with the charged offenses because they occurred within a year of the deals at issue
during his trial and were all with the government’s CI. See Ellisor,
522 F.3d at
1269. Mendez Maradiaga’s testimony that he only sold drugs to Reyes to help him
placed the veracity of his testimony at issue and allowed the government to inquire
as to the reason for his prior drug deals with Reyes. See Salisbury,
662 F.2d at 741.
Further, Mendez Maradiaga’s counsel did not dispute that he received the
recordings of prior drug sales, and the government notified the district court and
Mendez Maradiaga that it intended to introduce evidence of his prior drug sales
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under either the inextricably intertwined doctrine or Rule 404(b). Thus, the district
court did not plainly err. Accordingly, we affirm in this respect.
II.
A defendant who has raised an entrapment defense is entitled to present
evidence of specific conduct to show a lack of predisposition to commit the
charged crime. See United States v. Rutgerson,
822 F.3d 1223, 1239-40 (11th Cir.
2016).
Here, the district court did not abuse its discretion in limiting Lampkins’s
and Mendez Maradiaga’s testimony. Although the district court sustained the
government’s objections regarding Mendez Maradiaga’s lack of involvement in
drug deals outside of those with Reyes, it allowed him to testify to that lack of
involvement during his cross-examination and redirect. On cross-examination,
Mendez Maradiaga testified that he never sold drugs to anyone other than Reyes.
Further, during his redirect, the district court permitted Mendez Maradiaga to
testify that, between 2015 and 2019, he was not investigated for any drug deals that
did not involve Reyes. Thus, the district court allowed Mendez Maradiaga to
introduce evidence of his lack of drug dealing outside of his involvement with
Reyes.
III.
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A defendant may, under some circumstances, introduce evidence concerning
the criminal history, or prior bad acts, of a non-testifying confidential informant,
pursuant to Rule 404(b). See United States v. Stephens,
365 F.3d 967, 974-75
(11th Cir. 2004).
Here, the district court did not abuse its discretion in excluding Mendez
Maradiaga’s evidence about Reyes’s prior bad acts. As an initial matter, Mendez
Maradiaga largely was able to elicit testimony about Reyes’s prior bad acts, even
though the district court sustained some of the government’s objections. Indeed,
Mendez Maradiaga elicited testimony showing that Reyes’s motive to assist law
enforcement was to remain in the United States, which was relevant to Mendez
Maradiaga’s argument that Reyes persuaded him to sell drugs. Further, Mendez
Maradiaga has not established how Reyes’s illegal reentries would have shown that
Mendez Maradiaga was not predisposed to commit drug crimes. Moreover, the
district court did not err in excluding evidence about Reyes’s subsequent arrest in
2019 and his drug dealing activity after his transactions with Mendez Maradiaga in
2015. Fed. R. Evid. 404(b). Those acts occurred after the 2015 drug deals and do
not establish Mendez Maradiaga’s lack of predisposition to commit the drug
crimes in his indictment. Id.; Ellisor,
522 F.3d at 1269.
Similarly, the district court did not abuse its discretion in excluding
Vladimir’s testimony, which concerned Reyes’s subsequent drug arrest and was
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not relevant to Mendez Maradiaga’s entrapment defense, because the testimony
focused on events that occurred years after Mendez Maradiaga’s case. See Fed. R.
Evid. 404(b). Additionally, the jury was already aware of Reyes’s drug dealing
because Mendez Maradiaga testified as such during trial. Finally, Vladimir’s
proffered testimony that Reyes used a “sob story” to persuade others to sell drugs
was not relevant to whether Mendez Maradiaga was predisposed to commit drug
crimes. See Fed. R. Evid. 404(b). Accordingly, we affirm in this respect.
IV.
Entrapment is generally a jury question. United States v. Brown,
43 F.3d
618, 622 (11th Cir. 1995). Therefore, entrapment as a matter of law is a
sufficiency of the evidence inquiry.
Id. When an entrapment defense is rejected
by the jury, our review is limited to deciding whether the evidence was sufficient
for a reasonable jury to conclude that the defendant was predisposed to take part in
the illicit transaction.
Id. Further, a jury’s verdict cannot be overturned if any
reasonable construction of the evidence would allow the jury to find the defendant
guilty beyond a reasonable doubt.
Id. We “review the sufficiency of the evidence
de novo, viewing the evidence in the light most favorable to the government and
making [a]ll reasonable inferences and credibility choices . . . in favor of the
government and the jury’s verdict.” Wenxia Man, 891 F.3d at 1264 (internal
quotations omitted).
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The entrapment defense has two elements: “(1) government inducement of
the crime; and (2) lack of predisposition on the part of the defendant.” Id. The
defendant bears the burden of production to show that the government induced him
to commit the crime, and he can meet the burden by producing evidence that the
government’s conduct “created a substantial risk that the offense would be
committed by a person other than one ready to commit it.” Id.
If the defendant produces such evidence of inducement, the burden shifts,
and the government must “prove beyond a reasonable doubt that the defendant was
predisposed to commit the crime.” United States v. Dixon,
901 F.3d 1322, 1343
(11th Cir. 2018). Predisposition is a fact-intensive inquiry into the defendant’s
state of mind, and juries may consider evidence such as how readily he committed
the crime and whether he had the opportunity to back out of it. Wenxia Man, 891
F.3d at 1270. “The government need not produce evidence of predisposition prior
to its investigation.” Brown,
43 F.3d at 625. Moreover, post-crime statements will
support a jury’s rejection of an entrapment defense, and the existence of prior
related offenses is relevant, but not dispositive.
Id.
Additionally, “[p]redisposition may be demonstrated simply by a
defendant’s ready commission of the charged crime.” United States v. Isnadin,
742 F.3d 1278, 1298 (11th Cir. 2014) (internal quotations omitted). Further, “[a]
predisposition finding is also supported by evidence that the defendant was given
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opportunities to back out of illegal transactions but failed to do so.”
Id. Finally,
the fact-intensive nature of the entrapment defense often makes jury consideration
of demeanor and credibility evidence a pivotal factor. Brown,
43 F.3d at 625.
“The jury is free to choose among alternative reasonable interpretations of
the evidence, and the government’s proof need not exclude every reasonable
hypothesis of innocence.” United States v. Tampas,
493 F.3d 1291, 1298 (11th
Cir. 2007). Inconsistent jury verdicts are generally insulated from review because
“a jury may reach conflicting verdicts through mistake, compromise, or lenity,” but
“it is impossible to determine whose ox has been gored.” See United States v.
Powell,
469 U.S. 57, 68–69 (1984); United States v. Mitchell,
146 F.3d 1338, 1344
(11th Cir. 1998). Thus, “as long as the guilty verdict is supported by sufficient
evidence, it must stand, even in the face of an inconsistent verdict on another
count.” Mitchell,
146 F.3d at 1345.
Here, the government met its burden to show that Mendez Maradiaga was
predisposed to commit the offense, because his meetings with Lampkins and Reyes
showed that he possessed expertise in dealing drugs, and he referred to that
expertise during those meetings. During the October 2015 meeting, Mendez
Maradiaga used drug terminology in referring to the amount of cocaine that he had
procured for Lampkins. Similarly, during the November 2015 deal, Mendez
Maradiaga complained about the money that he was making from the deal and
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stated that he had not “gotten [himself] out there like [he] want[ed] to.” Indeed,
Mendez Maradiaga stated that he had dealt with others involved in illegal drug
dealing for years. Mendez Maradiaga further demonstrated his predisposition to
commit drug crimes by stating that he had “a cat right here” who sold crack
cocaine, when Lampkins asked Mendez Maradiaga if he knew anyone who dealt
crack cocaine. He also stated that he was “getting back in the game.” Further,
Mendez Maradiaga admitted that he had engaged in four prior drug deals with
Reyes before the offenses charged in his indictment. Mendez Maradiaga’s
statements during the transactions demonstrated his “ready commission” of the
deals and showed his refusal to back out of the deals. Isnadin, 742 F.3d at 1298.
Additionally, because Mendez Maradiaga testified in his own defense, the jury was
free to disbelieve his assertion that he had never sold drugs before and was entitled
to conclude the opposite. Brown,
53 F.3d at 314. Mendez Maradiaga’s assertion
that the jury’s acquittal on Counts 1 and 2 shows that no reasonable jury could find
him guilty on Count 3 is inapposite because this Court has held that inconsistent
jury verdicts are generally insulated from review, and the jury’s guilty verdict is
supported by sufficient evidence. Powell,
469 U.S. at 68–69; Mitchell,
146 F.3d at
1344-45.
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Accordingly, we affirm. 1
AFFIRMED.2
1
We need not address Mendez Maradiaga’s assertion that cumulative error requires a new
trial because his final claim necessarily fails, as there can be no cumulative error where there are
no individual errors. United States v. Azmat,
805 F.3d 1018, 1045 (11th Cir. 2015).
2
Mendez Maradiaga’s motion to supplement the record is DENIED.
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