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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16400
________________________
D.C. Docket No. 1:15-cr-20579-JAL-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROLANDO MULET,
ODALYS MARRERO,
a.k.a. Tita,
Defendants - Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(March 27, 2018)
Before MARCUS, FAY, and HULL, Circuit Judges.
PER CURIAM:
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Rolando Mulet and Odalys Marrero appeal their convictions for conspiracy
to defraud the United States,
18 U.S.C. § 371, and unlawfully encouraging an alien
to reside in the United States,
8 U.S.C. § 1324(a)(1)(A)(iv). Mulet also appeals his
total sentence. Both defendants argue that the district court deprived them of their
constitutional right to present a defense by excluding evidence that they had little
financial incentive to commit immigration fraud. Mulet further asserts that his
right to remain silent was violated when the government elicited testimony that he
had said he “had nothing to say.” Mulet also contends that the district court erred
by imposing a three-level enhancement under the Sentencing Guidelines and that
his total sentence is substantively unreasonable. We conclude that the district court
did not abuse its discretion by excluding evidence of Marrero and Mulet’s
legitimate business activities and that Mulet’s argument regarding the comment on
his right to remain silent is foreclosed by binding precedent. Even if the district
court erred in assessing a three-level Guidelines enhancement, such error does not
warrant reversal because his total sentence was reasonable. Accordingly, we
affirm.
I. BACKGROUND
From 1999 until 2015, Marrero and Mulet owned and operated Tita’s
Tramite & Travel (Tita’s), a Florida business that provided immigration services.
In 2015, a grand jury returned an indictment charging Marrero and Mulet with
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conspiracy to defraud the United States (Count 1) and unlawfully encouraging an
alien to reside in the United States (Counts 7 through 12).1 Specifically, the
indictment alleged that Marrero and Mulet arranged fraudulent marriages between
Cuban citizens and non-Cuban aliens in order to qualify the non-Cuban aliens for
immigration benefits, including lawful permanent residency. 2
Prior to trial, the government filed a motion in limine to exclude, in relevant
part, evidence of the defendants’ legitimate business activities. In response to the
government’s motion in limine, Marrero stated that she was “prepared to present
evidence that Tita’s Tramite & Travel was by and large a legitimate business” that
“offered a wide variety of immigration services besides . . . marriage-based
petitions,” including “applications for employment authorization, applications for
travel, applications to bring alien relatives to the United States, and naturalization
applications.” The district court granted the motion in part, finding that evidence
of Marrero and Mulet’s legitimate business activities was not admissible to negate
the elements of the charged offenses.
At trial, the government presented the following evidence. Manuel Andres
Gomez, Okyvi Olmar Yoll Mesa, and Natacha Perera Quintana—Venezuelan
1
Several codefendants were also charged with conspiracy to defraud the United States
and marriage fraud,
8 U.S.C. § 1325(c).
2
Under the Cuban Adjustment Act of 1966, Pub. L. No. 89-732,
80 Stat. 1161, a Cuban
citizen may adjust his status to lawful permanent resident after living in the United States for a
year and one day. The spouse of a lawful permanent resident Cuban may also adjust his status to
lawful permanent resident.
Id.
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citizens who wanted to become lawful permanent residents—were told to contact
Marrero and Mulet to “fix” their immigration statuses. Each of the aliens met with
Marrero and Mulet at Tita’s. Marrero told the aliens that she had been in business
for a long time and that she “knew the tricks of the trade,” “had people in
Immigration,” and had a lot of experience “getting [immigration] papers.” She
explained that the aliens could marry Cubans and that doing so would allow them
to obtain “green cards”—cards given to lawful permanent residents. Marrero’s
price for arranging such a marriage ranged from $16,000 to $21,000.3 Marrero
also specified that all payments had to be in cash, and everything was to be
discussed either in person with her or Mulet, or over the phone using code words.
Once the aliens made initial payments, Marrero introduced them to their
future spouses, three Cuban citizens, whom the defendants procured and paid. The
aliens subsequently “married” the Cubans, and Mulet notarized the marriage
certificates.4 Each couple had a wedding ceremony and reception, during which
pictures were taken. In accordance with Marrero’s instructions, the couples also
took pictures in other places to make their marriages appear to be real. None of the
marriages were legitimate.
3
Yoll paid the defendants $16,000, Perera paid between $18,000 and $20,000, and
Gomez paid $21,000.
4
No party to these sham marriages had any intention of having a real ceremony.
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With Mulet’s help, the aliens completed applications for permanent
residency. To prepare for the immigration interviews, Marrero or Mulet gave the
aliens and their Cuban spouses questionnaires to study. The questionnaires, which
were 100 or more items long, listed questions that were frequently asked at
immigration interviews, such as biographical information about each spouse.
Gomez and his new wife also met with Marrero and Mulet two or three times to do
mock interviews. Ultimately, only Perera obtained a green card; Gomez’s and
Yoll’s applications were denied.
Gomez subsequently met with Special Agent Mildred Laboy, a criminal
investigator for the United States Department of Homeland Security. Gomez
“[came] clean” to Laboy and told her that Tita’s was arranging marriages between
Cubans and non-Cubans so the non-Cubans could obtain green cards. At Laboy’s
request, Gomez went to Tita’s three times with a recording device and recorded
conversations between himself, Marrero, and Mulet. During the first recorded
conversation, Marrero offered to “fix [Gomez’s] situation” in return for another
$25,000. Gomez returned to Tita’s twice more, attempting to have Marrero refund
part of the money he had already paid. At the last meeting, Marrero was “very
angry” and upset because Gomez had spoken to an attorney about his situation.
According to Gomez, Marrero did not want others to know that he had made “this
sort of a deal” with her.
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Once Gomez completed the first recording, Laboy applied for and executed
a search warrant for Tita’s. After Laboy began searching the business, Marrero
and Mulet arrived. Laboy provided them with a copy of the search warrant and
told them about the allegations against them. Laboy testified that Marrero denied
the allegations. The prosecutor then asked, “And as for Mr. Mulet, what did he say
to you?” Laboy responded, “[H]e said he had nothing to say about that.” Mulet
objected and moved for a mistrial; the district court denied the motion.
After the government rested,5 the defense called two character witnesses,
who testified that the defendants were honest. Marrero also called Carmen
Cabrera, who testified that she had met Marrero when her Cuban husband took her
to Tita’s to “try to legalize [her] situation and . . . to get married.” Shortly
thereafter, the government objected to Cabrera’s testimony. During a sidebar
conference, the defense proffered that Cabrera would testify that she had been
Marrero’s client, that she had returned to Marrero after she had a difficult time
during her immigration interviews, and that she had communicated her experience
to Marrero. Relying on its prior ruling on the government’s motion in limine, the
district court sustained the government’s objection and stated that Cabrera could
not testify as to particular services Marrero provided during the period of the
5
At the conclusion of the government’s case, the district court entered a judgment of
acquittal as to Counts 8 and 11.
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alleged conspiracy. Following deliberations, the jury convicted Marrero and Mulet
of Counts 1, 7, 9, 10, and 12.
At sentencing, Marrero and Mulet objected to the assessment of a three-level
enhancement based on the number of aliens smuggled, transported, or harbored,
pursuant to U.S.S.G. § 2L1.1(b)(2)(A).6 The district court overruled Marrero’s and
Mulet’s objections. The defendants’ resulting Guidelines ranges were 30 to 37
months’ imprisonment. For both defendants, the district court imposed a 37-month
sentence as to Count 1 and 48-month sentences as to Counts 7, 9, 10, and 12, all to
run concurrently. The court noted that it would have imposed the same sentences
even if its Guidelines calculations were erroneous.
II. DISCUSSION
A. Exclusion of Evidence
We review district courts’ decisions as to the admission of evidence for
abuse of discretion, but we review constitutional challenges de novo. United
States v. Rushin,
844 F.3d 933, 941 (11th Cir. 2016). “[A] defendant’s
[constitutional] right to a fair trial is violated when the evidence excluded is
6
Section 2L1.1(b)(2)(A) of the Sentencing Guidelines provides for a three-level
enhancement if the offense involved the smuggling, transportation, or harboring of between 6
and 24 aliens. U.S.S.G. § 2L1.1(b)(2)(A). Aside from the evidence discussed above, the
government presented evidence at trial that the defendants arranged a fourth sham marriage
between a Cuban and an alien. At sentencing, Laboy testified regarding two more sham
marriages that the defendants arranged. The district court credited Laboy’s testimony and found
that the offense involved the smuggling, transportation, or harboring of between 6 and 24 aliens.
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material in the sense of a crucial, critical, highly significant factor.” Id. (quotation
omitted).
The district court did not abuse its discretion by excluding Cabrera’s
testimony. 7 The government did not contend at trial that Tita’s was an entirely
illegitimate business, so this evidence was unnecessary to rebut the government’s
arguments. Moreover, the government’s evidence of guilt was overwhelming. At
trial, three aliens testified that Marrero and Mulet charged them large sums of
money to arrange illegitimate marriages with people they had never met. Marrero
instructed the aliens to discuss the marriage arrangements only in person or over
the phone using code words and commented several times that the purpose of the
marriages was for the aliens to obtain green cards, which strongly suggests that she
knew the marriages were illegitimate and intended to engage in a scheme to
7
We do not review whether the district court abused its discretion by excluding other
evidence of the defendants’ legitimate business activities because the defendants failed to make a
sufficient proffer regarding this evidence. The preferred way to make a proffer is to file an
affidavit or deposition, or to call the witness to present testimony outside the presence of the
jury. However, counsel’s statements, standing alone, may form an adequate basis for a proffer
provided that they outline a witness’s anticipated testimony in sufficient detail. See United
States v. Stephens,
365 F.3d 967, 973-974 (11th Cir. 2004) (concluding that the record was
sufficiently developed to review a claim that evidence was improperly excluded when counsel
explained in detail the anticipated contents of three witnesses’ testimony). Here, Marrero
explained in sufficient detail the anticipated contents of Cabrera’s testimony to allow us to
review the defendants’ claim that the district court abused its discretion by excluding her
testimony. By contrast, we can only guess as to what other evidence the defense would have
offered to show that Tita’s provided legitimate immigration services, given that Marrero only
outlined the general topics about which she was prepared to present evidence. Because the
defendants failed to make a sufficient proffer with respect to any other evidence they would have
offered regarding their legitimate business activities, we have nothing to decide with respect to
that issue. See Busby v. City of Orlando,
931 F.2d 764, 786 (11th Cir. 1991) (“Because we have
no proffered testimony before us to review, we have nothing to decide with respect to [the issue
of whether the district court abused its discretion by excluding a witness’s testimony].”).
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defraud the United States by arranging such marriages. Mulet, who was present
for Marrero’s conversations with the aliens, notarized the marriage certificates and
helped fill out the aliens’ applications for permanent residency. At most, Cabrera’s
testimony might have suggested that they had little financial incentive to commit
immigration crimes. Such evidence was not crucial to their defense, as it did not
counter any of the government’s extensive evidence of guilt. Accordingly, we
conclude that it was not an abuse of discretion to exclude Cabrera’s testimony.
B. Denial of Mulet’s Motion for a Mistrial
“We review the district court’s denial of a motion for a mistrial for abuse of
discretion.” United States v. Abraham,
386 F.3d 1033, 1036 (11th Cir. 2004).
Here, the district court did not err, much less abuse its discretion, by denying
Mulet’s motion. When Mulet told Laboy that he “had nothing to say about that,”
he had not been arrested or given his Miranda 8 warnings. We have previously
stated that the government may comment on a defendant’s silence under these
circumstances. United States v. Rivera,
944 F.2d 1563, 1568 (11th Cir. 1991).
Even if Rivera was wrongly decided, which we do not think is the case, we have
no authority to overrule it. Hazewood v. Found. Fin. Grp., LLC,
551 F.3d 1223,
1227 (11th Cir. 2008) (“[T]he holding of a three-judge panel is the law of the
8
Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602 (1966).
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circuit unless it is overruled (or undermined to the point of abrogation) by the en
banc Eleventh Circuit, or by the Supreme Court of the United States.”).
C. Reasonableness of Mulet’s Total Sentence
We review the reasonableness of a defendant’s sentence under a deferential
abuse-of-discretion standard. United States v. Livesay,
525 F.3d 1081, 1090 (11th
Cir. 2008). When a district court errs in calculating a defendant’s Guidelines
range, but states that it would have imposed the same sentence regardless of any
Guidelines calculation errors, we will uphold the defendant’s sentence so long as it
is reasonable. See United States v. Keene,
470 F.3d 1347, 1348-50 (11th Cir.
2006).
Assuming arguendo that the district court erred in assessing a three-level
enhancement under U.S.S.G. § 2L1.1(b)(2)(A), such error does not warrant
reversal of Mulet’s sentences. If the district court had decided the enhancement
issue in Mulet’s favor, his Guidelines range would have been 21 to 27 months’
imprisonment. 9 Even using this lower Guidelines range, Mulet’s 48-month total
sentence was reasonable in light of the facts of the case. As discussed above, the
government presented overwhelming evidence that Marrero and Mulet charged
9
Under the district court’s calculations, Mulet had a total offense level of 19 and a
criminal history category of I, which yielded a Guidelines range of 30 to 37 months’
imprisonment. Without the three-level enhancement, Mulet would have had a total offense level
of 16 and a criminal history category of I, resulting in a Guidelines range of 21 to 27 months’
imprisonment. The district court could have imposed much higher sentences as to Counts 7, 9,
10, and 12, and made these sentences run consecutively. At sentencing, the district court made
clear that it would have imposed the same sentence absent the enhancement.
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aliens thousands of dollars each to arrange sham marriages for the purpose of
defrauding the United States. They facilitated every step of the immigration
process, from procuring Cubans to act as spouses for the aliens, to introducing the
aliens to their Cuban spouses, to notarizing the aliens’ marriage certificates, to
filling out the residency applications, to preparing the aliens for immigration
interviews. Under these circumstances, Mulet’s 48-month total sentence was not
unreasonable regardless of whether his Guidelines imprisonment range is 21 to 27
months or 30 to 37 months. For the same reasons, we conclude that Mulet’s total
sentence was substantively reasonable.
III. CONCLUSION
The district court did not abuse its discretion by excluding Cabrera’s
testimony. The district court also did not abuse its discretion by denying Mulet’s
motion for a mistrial because his argument in support of his motion is foreclosed
by binding caselaw. Finally, any error in assessing a three-level Guidelines
enhancement does not warrant reversing Mulet’s total sentence, and Mulet’s total
sentence was substantively reasonable.
AFFIRMED.
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