United States v. Jose Eligio Rios , 264 F. App'x 863 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 11, 2008
THOMAS K. KAHN
No. 06-14494
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 05-20718-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ELIGIO RIOS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 11, 2008)
Before DUBINA, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Appellant Jose Eligio Rios appeals his convictions and 240-month total
sentence for conspiracy to commit alien smuggling and alien smuggling, in
violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 371; possession with
intent to distribute marijuana in the form of hashish oil, in violation of 21 U.S.C.
§ 841(a)(1); attempt to import marijuana in the form of hashish oil, in violation of
21 U.S.C. § 963; and possession with intent to distribute marijuana in the form of
hashish oil aboard a vessel, in violation of 46 U.S.C. Appx. § 1903(a) (now
codified in 46 U.S.C. § 70503).
On appeal, Rios first argues that the district court abused its discretion in
admitting evidence regarding his contemporaneous drug use and prior drug
conviction, under Fed.R.Evid. 404(b), to address his knowledge and intent
regarding the instant drug charges. Second, Rios argues that the district court
abused its discretion in denying his motion for mistrial based on prosecutorial
misconduct in the government’s closing arguments. Finally, he argues that the
district court violated his constitutional rights by making factual determinations
regarding the amount of drugs involved in the instant offenses, for the purposes of
sentencing.
I.
We review a district court’s decision to admit or exclude Rule 404(b)
evidence of extrinsic acts for an abuse of discretion. United States v. Matthews,
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431 F.3d 1296, 1311 (11th Cir. 2005). Although evidence of other crimes or bad
acts is not admissible to prove the character of a person, it may be admissible for
other purposes, such as to prove intent or knowledge. Fed.R.Evid. 404(b). In a
criminal case, upon the defendant’s request, the prosecution must provide
reasonable notice of the bad acts evidence it intends to use at trial. Id.Rule 404(b) evidence is admissible if: (1) it is relevant to an issue other than
the defendant’s character; (2) sufficient proof would allow a jury to find that the
defendant committed the extrinsic act; and (3) its probative value is not
substantially outweighed by its undue prejudice, and it meets the other
requirements of Rule 403. Matthews, 431 F.3d at 1310-11. Under Rule 403,
otherwise relevant evidence may be excluded if “its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Fed.R.Evid. 403.
Because Rule 403 allows the exclusion of otherwise probative evidence, it
must only be used sparingly and the district court must strike the balance in favor
of admissibility. United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992).
If the government presents a strong case regarding the defendant’s intent and
knowledge, outside of the Rule 404(b) evidence, the court should be more willing
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to exclude the Rule 404(b) evidence as overly prejudicial. Matthews, 431 F.3d at
1312. If the issue of the defendant’s knowledge or intent is determinative, it is less
likely that Rule 404(b) evidence showing knowledge or intent would be needlessly
cumulative or prejudicial, under Rule 403. United States v. Gaskell, 985 F.2d
1056, 1063 (11th Cir. 1993).
The district court should consider the following three factors in determining
whether the government’s notice of intent to use Rule 404(b) evidence was
reasonable: “(1) When the Government, through timely preparation for trial, could
have learned of the availability of the [evidence]; (2) The extent of prejudice to the
opponent of the evidence from a lack of time to prepare; and (3) How significant
the evidence is to the prosecution’s case.” United States v. Perez-Tosta, 36 F.3d
1552, 1562 (11th Cir. 1994). In Perez-Tosta, after considering the above-stated
factors, we found that the district court did not abuse its discretion in finding that
the government’s notice of intent to use Rule 404(b) evidence, provided
immediately before voir dire and six days before presentation of the evidence, was
reasonable. Id. at 1560, 1562-63.
Based on our review of the record, we conclude that the district court did not
abuse its discretion in admitting evidence of Rios’s heroin use and possession,
which occurred contemporaneously with the instant offenses, and his prior cocaine
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conviction. The government was required to prove Rios’s knowledge and intent
regarding the hashish oil for convictions on the drug charges, and his defense
depended on the argument that the government did not prove those elements
beyond a reasonable doubt. Even though other evidence might have shown his
knowledge and intent, the record does not indicate that evidence of his heroin use
and possession and prior cocaine conviction was needlessly cumulative. Also, to
the extent that Rios preserved any error regarding the timeliness of the
government’s notice of intent to use Rule 404(b) evidence, we conclude that the
district court did not abuse its discretion in finding that notice was reasonable.
II.
We review a district court’s denial of a requested mistrial based on
prosecutorial misconduct for an abuse of discretion. United States v. Knowles, 66
F.3d 1146, 1163 (11th Cir. 1995). We review a claim of prosecutorial misconduct
by assessing “(1) whether the challenged comments were improper, and (2) if so,
whether they prejudicially affected the substantial rights of the defendant.” United
States v. Arias-Izquierdo, 449 F.3d 1168, 1177 (11th Cir. 2006), cert. denied,
Olivares-Samon v. U.S., 127 S. Ct. 521 (2006). The comments prejudicially
affected a defendant’s substantial rights if “a reasonable probability arises that, but
for the remarks, the outcome [of the trial] would be different.” United States v.
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Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998) (citations omitted). In assessing the
prejudicial impact of comments, we evaluate them in the context of the entire trial
and any curative instructions, which may render them harmless. Id.During closing arguments, the prosecutor is forbidden from making
improper suggestions, insinuations, and assertions calculated to mislead or inflame
the jury’s passions. United States v. Rodriguez, 765 F.2d 1546, 1560 (11th Cir.
1985). The government may not rely on the defendant’s bad character for a
conviction, unless character is at issue. Id. at 1559. “A prosecutor’s remarks are
improper if they attempt to bolster the credibility of a witness based on the
government’s reputation or by alluding to evidence not formally before the jury.”
United States v. Chandler, 996 F.2d 1073, 1094 (11th Cir. 1993). Disparaging
remarks about defense counsel are also improper. United States v. Bourg, 598 F.2d
445, 449 (5th Cir. 1979).1
A prosecutor acts improperly at closing argument if his argument exceeds
the evidence presented. United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir.
1997). But a prosecutor may “urge[] the jury to draw inferences and conclusions
from the evidence produced at trial.” United States v. Johns, 734 F.2d 657, 663
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In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to October 1, 1981.
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(11th Cir. 1984). “[A]n attorney’s statements that indicate his opinion or
knowledge of the case as theretofore presented before the court and jury are
permissible if the attorney makes it clear that the conclusions he is urging are
conclusions to be drawn from the evidence.” Id.The record here demonstrates that the district court did not abuse its
discretion in denying Rios’s motion for a mistrial due to prosecutorial misconduct
at closing arguments. First, the record does not reveal any remarks by the
prosecutor about the defense counsel or about Rios’s character that prejudiced
Rios’s substantial rights. Although the prosecutor referred to Rios’s character at
one point, the court sustained Rios’s objection to that statement, and instructed the
jury that Rios’s character was not at issue. The prosecutor’s only other references
to character were made in telling the jury that Rios’s character was not at issue and
the evidence of his drug use and prior conviction should not be used as evidence of
his character.
Moreover, the record does not show that Rios’s substantial rights were
prejudiced by any improper comments made by the prosecutor regarding
inconsistencies in the witness testimony. The prosecutor and the court made clear
that the jury was responsible for drawing that conclusion based on the evidence,
and the statements by the lawyers were not evidence.
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III.
“We review constitutional challenges to a sentence de novo.” United States
v. Chau, 426 F.3d 1318, 1321 (11th Cir. 2005). In United States v. Booker, 543
U.S. 220, 125 S. Ct. 738 (2005), the Supreme Court held that a district court’s
enhancement of a defendant’s sentence based on facts neither found by the jury nor
admitted by the defendant violated the defendant’s Sixth Amendment rights under
a mandatory system of sentencing guidelines. Booker, 543 U.S. at 232-33, 125 S.
Ct. at 749. However, the Sixth Amendment violation would not occur if the
district court treated the guidelines as advisory rather than mandatory. Id. at 233,
125 S. Ct. at 749-50.
Based on Booker, we have recognized that a district court may enhance a
defendant’s sentence based on facts outside of the jury verdict in a non-mandatory
guidelines system. United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir.
2005). Therefore, a district court may enhance a defendant’s sentence based on
facts not found by the jury, without violating the defendant’s Sixth Amendment
right to trial by jury, if the guidelines are not treated as mandatory. Id. at 1297-98.
Because the record makes clear that the district court treated the sentencing
guidelines as advisory, rather than mandatory, we conclude that the district court
did not violate Rios’s constitutional rights by imposing on him a greater sentence
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based on its finding that his drug charges involved 31.98 kilograms of hashish oil.
For the above-stated reasons, we affirm Rios’s convictions and his 240-
month total sentence.
AFFIRMED.
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