United States v. Rene Alba Fernandez ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 24, 2009
No. 09-10001 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00089-CR-FTM-99SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RENE ALBA FERNANDEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 24, 2009)
Before BLACK, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Rene Alba Fernandez appeals his convictions and sentences for conspiracy
to bring aliens into the United States for private financial gain, and attempting to
bring and aid and abet the bringing of aliens into the United States for private
financial gain. For the reasons set forth below, we affirm.
I.
Fernandez was charged with conspiracy to bring aliens into the United States
for private financial gain, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(i) and
1324(a)(1)(A)(v)(l), (“Count 1”); and attempting to bring and aid and abet the
bringing of aliens into the United States for private financial gain, in violation of 8
U.S.C. §§ 1324(a)(2) and 1324(a)(2)(B)(ii), (“Counts 2 and 3”). These charges
were based on a conspiracy to bring Cuban nationals into the United States
illegally during two trips – one in November and December 2007 and one in April
2008. Fernandez pled not guilty to all counts and proceeded to trial.
Trial testimony established that the United States Coast Guard, on December
1, 2007, intercepted two vessels – on vessel manufactured by Luhrs and a Fins
vessel with registration number FL 8945 NL, carrying 20 Cuban nationals and two
individuals claiming to be United States residents. Jose Bello and Luis Lopez
Cordero operated the Fins vessel, while Roman Zambrana operated the Luhrs.
Cordero testified at trial that, in November 2007, he traveled on a vessel to
2
Bahia Honda, Cuba to pick up 21 Cuban nationals. He also identified
Government’s Exhibits (“GEs”) 26, 27, and 28 as photo-pack line-ups that he had
been shown during interviews with investigators. Defense counsel objected to the
admission of the exhibits, but the court overruled the objection. Cordero stated
that he had identified an individual pictured in GE 26 as Raul Rodriguez (“Chino”)
and an individual in GE 28 as Fernandez.
Bello testified that he had talked with Fernandez about smuggling Cubans
into the United States, and Fernandez put him in contact with Chino. He stated
that Chino and Fernandez drove him to a boat ramp to launch the boat that he
drove to Cuba. Bello picked up 20 people in Cuba, but on the way back to the
United States, the boat ran out of gasoline. On cross-examination, in response to
defense counsel’s questioning, Bello testified that he was 28 years old and that his
girlfriend, Adrianna Rodriguez, was 15 or 16 years old when she gave birth to his
son. The government objected to this testimony as irrelevant. The court sustained
the government’s objection, but refused to strike Bello’s testimony.
Steven Buckner, a Machinery Technician Third Class Supporting Officer
with the Coast Guard, testified that, on August 23, 2007, he boarded vessel FL
8945 NL to conduct a safety inspection. He recalled that Chino and Fernandez
were on board. Buckner reviewed his report, which, he stated, listed Fernandez’s
3
address as 2231 Northwest 7th Place, Cape Coral, Florida, and his telephone
number as (239) 810-6152. Buckner stated that he would not recognize Fernandez
if he saw him, because he did not remember what Fernandez looked like. After
Buckner testified, the court asked the parties whether Buckner’s testimony was
hearsay, since he could not identify Fernandez. The court ultimately determined
that it would not strike Buckner’s testimony, but noted that the government would
have to establish, through later circumstantial testimony, that the individual
Buckner was referencing in his testimony was actually Fernandez.
Christopher Brown, a Special Agent with ICE, testified that Chino owned a
vessel with Florida registration number 8945 NL, which was usually kept on a Real
Xtreme boat trailer. He testified that a December 1, 2007 photograph of
Fernandez’s residence showed an empty boat trailer, consistent with Chino’s Real
Xtreme boat trailer, parked outside.
Angel Blanco, Libertad Blanco’s son, testified that he came to the United
States on April 14, 2008 on a vessel carrying approximately 23 Cubans. Blanco’s
sister, Anola, was also on the boat.
Libertad Blanco (“Libertad”) testified that she once told Fernandez that she
wanted to bring her children from Cuba to the United States. Fernandez told her
that she would have to pay $10,000 per person once they arrived in the United
4
States. She stated that Fernandez introduced her to Chino and she agreed to pay
$20,000 by April 22nd. On May 22nd, Libertad still had not paid Chino, and she
decided to alert law enforcement, because of intense phone calls and threats
between Chino and Fernandez, which Fernandez then relayed to her.
Libertad met with Fernandez at a restaurant to introduce him to an
undercover law enforcement agent, named Roberto, (subsequently referred to as
“Gonzalez”). Libertad was asked about the understanding that was reached at the
end of the meeting. She replied, “[t]hat between [Gonzalez] and [Fernandez], they
would take a boat to Cuba, they would bring more people, and my –.” At this
point, defense counsel objected, stating that Libertad’s testimony was hearsay. The
court overruled the defense’s objection. Libertad explained that a boat would be
made available to bring in more people from Cuba: “[Gonzalez] and [Fernandez]
agreed that they would put a boat out to Cuba. [Fernandez] would be in charge of
everything, and they would – that would pay off my debt, the $20,000 debt that I
had.”
A few days after the meeting at the restaurant. Libertad and Gonzalez met
Fernandez, Fernandez’s wife, Chino, a man named Sergio, and two other
individuals, at the garage where Fernandez worked. Sergio wanted Libertad to pay
him the $20,000, because he was the person who had brought Libertad’s children
5
into the country. At the conclusion of the meeting, Libertad was given one more
month to repay the money. Libertad explained that Chino owed Fernandez
$15,000 – $10,000 for boat repairs, and $5,000 for “an outing that he had been
on.”
Maria Conde, a translator, recognized GEs 31-A, 31-B, 32-A, 32-B, 33-A,
33-B, 34, 34-A, 35, 35-A, 36, and 36-A, because she “worked on them” and
“produced them.” She explained that another employee in her office listened to the
tapes and did the transcription, and that she then reviewed the transcripts in
conjunction with the recordings to ensure their accuracy. She stated that GEs
31-B, 32-B, and 33-B were true and accurate transcripts of GEs 31-A, 32-A, and
33-A; and GEs 34-A, 35-A, and 36-A were true and accurate transcripts of GEs 34,
35, and 36.
Selecio Gonzalez, a U.S. Customs and Border Protection Agent, testified
that he participated in the investigation of Fernandez, using the undercover name
“Roberto.” Gonzalez identified GE 33-B as a transcript a conversation he had with
Fernandez. Defense counsel objected to the introduction of GEs 31-A, 31-B, 32-A,
32-B, and 33-B, “based upon the fact that a proper predicate has not been
established.” The court overruled the defense’s objection and admitted the
exhibits.
6
During a meeting between Gonzalez, Fernandez, and Libertad, Fernandez
discussed the December 2007 smuggling trip, stating that “we lost that trip.”
Fernandez also explained to Gonzalez that, of the 23 Cubans that were brought into
the country with Libertad’s children, 18 people had paid. He stated that “[w]e gave
20,000 dollars for gas.” Gonzalez testified that Fernandez told him that Chino
owed him $7,000 – $5,000 “from a prior incident,” and $2,000 for assisting Sergio
in his trip to Cuba.
Paul Mangone, a Senior Special Agent with the U.S. Department of
Homeland Security, Immigration and Customs Enforcement (“ICE”), identified GE
21 as two pieces of paper that he removed from a small black notebook found in a
filing cabinet in Chino’s home. Defense counsel objected to the admission of the
exhibit “on relevancy grounds,” but the court overruled the objection.
Christopher Brown identified GE 23 as a receipt from Atlantic Radio
Telephone reflecting the purchase of 150 prepaid minutes for an Iridium satellite
phone. Defense counsel objected to admission of the receipt, but the court
overruled the objection, subject to later testimony connecting the receipt to Chino
and Fernandez. Brown testified that the receipt, dated April 3, 2008, was found in
Chino’s vehicle. Brown also testified that Fernandez’s wife, Maria Perez, owned a
cell phone with the number (786) 539-6591. The government then asked the court
7
to rule on the admissibility of Buckner’s previous testimony, noting that the phone
number given by Buckner “is the same phone number that the witness just testified
that record relates to.” Defense conceded that the court could “admit [Buckner’s
testimony] now.” The court admitted Buckner’s previous testimony.
Brown testified that tracking data showed that the Luhrs vessel departed a
home in Pirate Harbor, Florida at 1:56 am on November 29, 2007, and traveled to a
destination near the coast of Cuba. Between November 28 and December 3, 2007,
a satellite phone associated with the Luhrs vessel called Perez’s cell phone 17
times, and Chino placed 62 calls to Perez. He stated that the Iridium satellite
phone linked to the receipt found in Chino’s vehicle traveled from Cape Coral,
Florida to Cuba, and then back to Florida between April 11, 2008 and April 13,
2008. Between April 10 and April 15, 2008, Chino called Perez’s phone 26 times,
and Perez called Chino 45 times.
Joseph Gonzalez, a Special Agent with ICE, testified that Fernandez told
him during an interview “that Chino pays him approximately $1,000 as a finders
fee per person.” Fernandez also told Joseph Gonzalez that Chino owed him about
$5,000 for introducing Libertad to Chino and arranging for her family to be
brought to the United States.
After Joseph Gonzalez’s testimony, the government rested. Fernandez
8
moved for a Fed.R.Crim.P. Rule 29 judgment of acquittal on all counts, and the
court denied the motion.
Perez testified that her 17-year-old daughter, Adrianna Rodriguez, began a
relationship with Bello when she was 14 years old and had a two-year old son with
him.
Fernandez testified that Libertad once asked him if he knew anyone that
could bring her children into the United States. He introduced Libertad to Chino,
telling Libertad that Chino might know someone that could help her bring her
children into the country. He stated that he never asked Libertad for money for
introducing her to Chino. Fernandez denied driving with Bello and Chino to a boat
ramp to launch the Fins vessel. He also stated that he did not know that Chino was
involved in Cuban smuggling. When asked about his comments to Gonzalez in
reference to the December 2007 smuggling trip, Fernandez stated “that trip is not
mine and I don’t have anything to do with it.”
After Fernandez’s testimony, the defense rested, renewed its previous
objections, and again moved for a Rule 29 judgment of acquittal with respect to
Counts 1, 2, and 3. The court denied the Rule 29 motion. The jury found
Fernandez guilty of all three counts, and it found that Fernandez committed all
three offenses for purposes of private financial gain.
9
The presentence investigation report (“PSI”) set Fernandez’s base offense
level at 12, pursuant to U.S.S.G. § 2L1.1(a)(3). Fernandez received a 6-level
increase under § 2L1.1(b)(2), because his offense involved at least 43 illegal aliens.
His base offense level was increased by an additional two levels, pursuant to
§ 2L1.1(b)(6), because the offense involved “intentionally or recklessly creating a
substantial risk of death or serious bodily injury to another person.” Fernandez
also received a two-level enhancement under § 3C1.1, for obstruction of justice
based on his false testimony at trial. Fernandez’s total offense level of 22
combined with criminal history category VI to yield a guideline imprisonment
range of 63 to 78 months. Fernandez objected to the application of the
§ 2L1.1(b)(6) and § 3C1.1 enhancements.
At the sentencing hearing, Fernandez argued that he should not receive a
two-level enhancement for obstruction of justice, because he testified “based upon
what he thought the facts of the case were” and his testimony was not material,
since the jury found him guilty of all counts. The court determined that the
§ 3C1.1 enhancement was warranted, based on Fernandez’s testimony that (1) he
did not accompany Bello and Chino to launch Chino’s speedboat, (2) he did not
know that Chino was involved in Cuban smuggling, and (3) he did not have
anything to do with the alien smuggling trip. With respect to the § 2L1.1(b)(6)
10
enhancement, Fernandez argued that there was no evidence that the particular
vessels used in the smuggling operations were unsafe. The court overruled
Fernandez’s objection.
The court adopted the factual statements and guideline calculations set forth
in the PSI, stated that it had considered the § 3553(a) sentencing factors, and noted
that Fernandez was involved in two separate transactions and was an active
participant in both, although Chino was “more the organizer” than Fernandez.”
The court sentenced Fernandez to 63 months’ imprisonment on each count, to run
concurrently with one another, followed by a term of three years’ supervised
release on each count, to run concurrently.
II.
Substantial Evidence Supporting Convictions
We review challenges to the sufficiency of the evidence in criminal cases de
novo, viewing the evidence in the light most favorable to the government. United
States v. Williams, 527 F.3d 1235, 1244 (11th Cir. 2008). “[E]vidence is sufficient
to support a conviction if a reasonable trier of fact could find that the evidence
established guilt beyond a reasonable doubt.” Id. (internal quotations omitted). We
“assume that the jury made all credibility choices in support of the verdict” and
“accept all reasonable inferences that tend to support the government’s case.” Id.11
A. Count 1 – Conspiracy
Pursuant to 8 U.S.C. § 1324(a)(1)(A)(i), it is a crime for “[a]ny person
who[,] . . . knowing that a person is an alien, [to] bring[] to or attempt[] to bring to
the United States in any manner whatsoever such person at a place other than a
designated port of entry. . . .” 8 U.S.C. § 1324(a)(1)(A)(i). It is also a crime for a
person to enter into a conspiracy to commit such an act. 8 U.S.C.
§ 1324(a)(1)(A)(v)(I). “The essential elements of criminal conspiracy are an
agreement between two or more persons to commit a crime and an overt act in
furtherance of the agreement by one of the conspirators.” United States v. Avila-
Dominguez, 610 F.2d 1266, 1271 (5th Cir. 1980). “Once the existence of the
conspiracy is established, there must be substantial evidence that each alleged
conspirator knew of, intended to join and participated in the conspiracy.” Id.“The existence of an agreement may be proven by circumstantial evidence,
including inferences from the conduct of the alleged participants or from
circumstantial evidence of a scheme.” United States v. Silvestri, 409 F.3d 1311,
1328 (11th Cir. 2005) (internal quotations omitted). Furthermore, the government
is not required to “prove that each conspirator agreed with every other conspirator,
knew of his fellow conspirators, was aware of all of the details of the conspiracy,
or contemplated participating in the same crime.” United States v. Browne, 505
12
F.3d 1229, 1274 (11th Cir. 2007), cert. denied, 128 S.Ct. 2962 (2008).
The evidence at trial established an agreement between Fernandez, Chino,
and several other individuals, to bring Cuban aliens into the United States illegally.
Libertad testified that Fernandez spoke with individuals who would bring her
children to the United States, and later introduced her to these individuals. She
stated that Fernandez called to tell her when the vessel had departed from the
United States, and later called to inform her that her children had arrived in the
country. During a meeting with Gonzalez and Libertad, Fernandez stated that only
18 of the 23 Cubans, brought into the United States with Libertad’s children, had
paid. Referring to this trip, he noted that “[w]e [paid] $20,000 dollars for gas.”
Gonzalez testified that Chino owed Fernandez $7,000 – $5,000 from “a prior
incident” and $2,000 “for assisting Sergio in showing him the route that he had to
take, taking the vessel out to Sergio, [and] meeting the refueler.” He later noted
that “$2,000 is for sure owed to [Fernandez] for what he did with bringing in
[Libertad’s] son and daughter, that he admitted to.” These assertions are supported
by Fernandez’s statements during a recorded conversation with Gonzalez. Phone
records also showed that, during the April 2008 smuggling operation, in which
Libertad’s children were brought into the country, Chino called Perez’s cell phone
26 times and Perez called Chino 45 times over a 5-day period. Finally, Fernandez
13
himself admitted to Joseph Gonzalez that Chino paid him approximately $1,000
per person as a “finders fee” and that Chino owed him $5,000 for introducing him
to Libertad and arranging for her family to be brought. There was also evidence
that one of Fernandez’s co-conspirators committed an overt act in furtherance of
the conspiracy, as Libertad’s children were actually brought, illegally, from Cuba
into the United States. Fernandez’s own statements that he was paid
approximately $1,000 per person as a “finders fee,” as well as Gonzalez’s
testimony that Gonzalez was owed $2,000 for assisting Sergio during the April
2008 smuggling operation, similarly support the jury’s finding that Fernandez
participated in the conspiracy for purposes of private financial gain. Accordingly,
viewing the evidence in the light most favorable to the government, there was
sufficient evidence to support Fernandez’s conviction on Count 1. See Williams,
527 F.3d at 1244.
B. Counts 2 and 3 – Attempting and Aiding and Abetting
Section 1324 also provides for criminal penalties against an individual who,
“for the purpose of . . . private financial gain,” “knowing or in reckless disregard of
the fact that an alien has not received prior official authorization to come to, enter,
or reside in the United States, brings to or attempts to bring to the United States in
any manner whatsoever, such alien.” 8 U.S.C. § 1324(a)(2)(B)(ii).
14
To prove an attempt offense, the government must prove (1) that the
defendant had the specific intent to engage in the criminal conduct for which he is
charged and (2) that he took a substantial step toward commission of the offense.
See United States v. Baptista-Rodriguez, 17 F.3d 1354, 1369 (11th Cir. 1994). A
substantial step “must be more than remote preparation, and must be conduct
strongly corroborative of the firmness of the defendant’s criminal intent.” United
States v. Ballinger, 395 F.3d 1218, 1238 n.8 (11th Cir. 2005) (internal quotations
omitted).
To prove a substantive alien-smuggling offense under a theory of aiding and
abetting, pursuant to 18 U.S.C. § 2, the evidence must establish that (1) the
substantive offense was committed by someone, (2) the defendant committed an
act that contributed to and furthered the offense, and (3) the defendant intended to
aid in its commission. United States v. Comacho, 233 F.3d 1308, 1317 (11th Cir.
2000).
The attempt charge focused on Fernandez’s action with respect to the
November-December 2007 smuggling venture. Fernandez’s intent to commit that
particular smuggling offense is evidenced by his statements to Gonzalez.
Fernandez noted that the boat used during this venture was intercepted by the
Coast Guard, and a child on board was dehydrated. He then stated “[w]e lost that
15
trip.” Fernandez’s use of the word “we,” as well as his knowledge of the
circumstances surrounding the November-December 2007 smuggling operation
indicate that he was involved in the operation. There is also evidence that
Fernandez took a substantial step in furtherance of the November-December 2007
operation. Bello testified that Fernandez put him in contact with Chino after Bello
told Fernandez about his plans to smuggle individuals from Cuba. Bello also
stated that Fernandez drove him to Chino’s house to meet with Chino the day
before Bello traveled to Cuba. He stated that Fernandez was present during Chino
and Bello’s discussions and, later, Fernandez asked Bello if he “knew what he was
doing.” The next morning, Fernandez accompanied Chino and Bello to the boat
ramp to launch the boat that Bello drove to Cuba. Brown testified that an empty
boat trailer “consistent with the boat trailer that the Fins normally is on or was on”
was parked at Fernandez’s residence on December 1, 2007. This evidence, viewed
in the light most favorable to the government, was sufficient for jurors to infer that
Fernandez attempted to smuggle aliens into the United States in late November and
early December 2007. See Williams, 527 F.3d at 1244.
There was also sufficient evidence to support Fernandez’s conviction for
aiding and abetting. First, the substantive offense was committed by someone,
because the evidence showed that Sergio brought Libertad’s children into the
16
United States. Secondly, Fernandez committed an act that contributed to and
furthered the offense. According to Gonzalez, Fernandez assisted Sergio by
showing him the route that he had to take, taking a vessel out to Sergio, and
meeting the refueler. Fernandez also introduced Libertad to Chino for the purpose
of arranging their illegal entry into the United States. With respect to the
November-December 2007 smuggling venture, Bello testified that Fernandez put
him in contact with Chino when Bello mentioned that he was planning a smuggling
operation, and that Fernandez accompanied Chino and Bello to launch the vessel
that Bello drove to Cuba. Finally, the fact that Fernandez expected to be paid for
his assistance indicates that he intended to aid in the commission of the offense.
Evidentiary Issues
We review a district court’s decision to admit evidence for an abuse of
discretion. United States v. Cole, 755 F.2d 748, 766 (11th Cir. 1985). “An
erroneous evidentiary ruling will result in reversal only if the resulting error was
not harmless.” Untied States v. Hands, 184 F.3d 1322, 1329 (11th Cir. 1999). “An
error is harmless unless there is a reasonable likelihood that [it] affected the
defendant’s substantial rights.” Id. (internal quotations omitted).
A. Photo Pack Line-Up (GEs 26-28)
To determine whether an out-of-court identification was properly admitted,
17
we first ask “whether the original identification procedure was unduly suggestive.”
United States v. Brown, 441 F.3d 1330, 1350 (11th Cir. 2006). If the procedure
was unduly suggestive, we next consider “whether, under the totality of the
circumstances, ‘the identification was nonetheless reliable.’” Id. If a defendant
fails to argue or present evidence suggesting that identification techniques were
“unduly suggestive,” a district court does not abuse its discretion in admitting the
identification evidence without further inquiry. Id.As an initial matter, although the government argues that Fernandez’s
confrontation clause argument should be reviewed for plain error, Fernandez, in
objecting to the admission of the photo pack line-up in the district court, argued
that “the agent that actually showed these items to [Cordero] . . . needs to be able to
testify,” regarding how the photo line-up was created and how Cordero made the
identifications. Thus, it appears that Fernandez preserved his confrontation clause
argument. However, even under an abuse-of-discretion standard, Fernandez’s
argument must fail. Because Fernandez never argued, in either the district court or
on appeal, that the identification techniques employed were “unduly suggestive,”
the district court did not abuse its discretion in admitting the identification
evidence without requiring an agent to testify about the identification process. See
Brown, 441 F.3d at 1350.
18
B. Government’s Objection to a Question Regarding Bello’s Character
Evidence of prior bad acts “is not admissible to prove the character of a
person in order to show action in conformity therewith.” Fed.R.Evid. 404(b).
“The rule is one of inclusion which allows [prior bad acts] evidence unless it tends
to prove only criminal propensity.” United States v. Cohen, 888 F.2d 770, 776
(11th Cir. 1989). Evidence of prior bad acts is subject to a three-part test: “(1) the
evidence must be relevant to an issue other than the defendant’s 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 the
defendant committed the act.” United States v. Ellisor, 522 F.3d 1255, 1267 (11th
Cir. 2008).
In the district court, defense counsel stated that the purpose of Bello’s
testimony regarding Rodriguez’s age at the time she gave birth to his son was “to
show that [Bello] was engaged in criminal activity when he first came [to the
United States.]” Thus, it appears that defense counsel’s intent was to use Bello’s
testimony “to prove only criminal propensity.” See Cohen, 888 F.2d at 776.
Although Fernandez argues on appeal that Bello’s testimony was relevant to the
truthfulness of his testimony, it is not clear how Bello’s relationship with an
underage woman would have any bearing on his propensity for truthfulness.
19
Finally, although the court sustained the government’s objection to the
questioning, it refused to strike Bello’s testimony that he was 28 years old and
Rodriguez was 15 or 16 at the time she gave birth to his child. Later, Perez
testified that Bello and Rodriguez began their relationship when Rodriguez was 14
years old, and Rodriguez testified that she was 17 years old and had a son that was
1 year and 10 months’ old. Accordingly, even if the district court had erred in
excluding the testimony, the error would have been harmless, because Bello’s
testimony would have been cumulative in light of Perez’s and Rodriguez’s
subsequent testimony. See Hands, 184 F.3d at 1329 (providing that “an erroneous
evidentiary ruling will result in reversal only if the resulting error was not
harmless”).
C. Buckner’s Testimony
A knowing and affirmative withdrawal of a previously articulated objection
constitutes a waiver that precludes appellate review of the alleged error, and the
plain error doctrine is inapplicable. See United States v. Horsfall, 552 F.3d 1275,
1283-84 (11th Cir. 2008), cert. denied, 129 S.Ct. 2034 (2009).
The district court initially admitted Buckner’s testimony “subject to some
evidence presented later” that would connect to Fernandez the address and phone
number Buckner had recorded. Subsequently, Brown testified that the phone
20
number (239) 810-6152 was registered to Perez. At this point, defense counsel
agreed that the court could “admit [Buckner’s testimony] now subject to some
evidence presented later.” The court asked for “[a]ny argument as to the
admissibility of [Buckner’s] testimony in light of the evidence we’ve received to
date,” and defense counsel responded “[n]ot at this time.” Defense counsel never
again addressed the admissibility of Buckner’s testimony during the course of trial.
Accordingly, Fernandez has waived and cannot now assert any argument that the
district court erred in admitting Buckner’s testimony. See Horsfall, 522 F.3d at
1283-84. Furthermore, even if Fernandez’s claim was not waived, any error would
be harmless, because other testimony, presented by Brown, established that
Fernandez resided at 2231 Northwest 7th Place, and that the phone number listed
in Buckner’s report was registered to Fernandez’s wife.
D. Libertad’s Testimony
We review determinations of the admissibility of evidence for abuse of
discretion. United States v. Miles, 290 F.3d 1341, 1351 (11th Cir. 2002)
(reviewing the admissibility at trial of hearsay evidence under Fed.R.Evid.
810(d)(2)(E)). Hearsay is defined as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Fed.R.Evid. 801(c).
21
The specific testimony to which Fernandez objected at trial was Libertad’s
statement that the agreement reached from the meeting at the restaurant was that
Gonzalez and Fernandez would organize another smuggling trip to Cuba to pay off
the $20,000 debt Libertad owed to Chino. This testimony does not constitute
hearsay, because Libertad did not testify about any specific statement that
Gonzalez or Fernandez made during the meeting. Instead, she testified regarding
the context, that is, the understanding that resulted from a meeting in which she
participated. Accordingly, the district court did not abuse its discretion in
admitting Libertad’s testimony.
E. Transcripts of Meetings Between Fernandez and Gonzalez
Transcripts may be provided to a jury to assist it in evaluating recorded
conversations, provided that the transcripts are accurate. United States v. Rochan,
563 F.2d 1246, 1251 (5th Cir. 1977). While the individual who typed a transcript
may lay the foundation for its use, “the issue in the authentication of supplemental
transcripts is not who made them; the issue is whether they are accurate.” Id. “In
this respect, a supplemental transcript is like a photograph that supplements the
testimony of a live witness. . . . [T]he witness who lays the foundation need not be
the photographer nor need he know anything of the time, conditions, or
mechanisms of the taking; he need only be familiar with the object the photograph
22
represents.” Id. (internal quotations omitted).
When a transcript contains a translation of conversations spoken in a foreign
language, a qualified witness must authenticate and verify the translation. See
United States v. Llinas, 603 F.2d 506, 509-10 (5th Cir. 1979). A party who wishes
to challenge the accuracy of a translation bears the burden of presenting another
translation so that the jury may choose which version to believe. United States v.
Rosenthal, 793 F.2d 1214, 1238 (11th Cir. 1986) (citing Llinas, 603 F.2d at 509).
As an initial matter, Fernandez objects to the introduction of the transcripts
of the recorded conversations, not to the introduction of the CDs. Accordingly, the
relevant inquiry is the accuracy of the transcripts. Rochan, 563 F.2d at 1251.
Conde identified GEs31-A, 32-A, 33-A, 34, 35, and 36 as the audio CDs that she
translated and GEs 31-B, 32-B, 33-B, 34-A, 35-A, and 36-A as accurate transcripts
of the conversations contained on the CDs. She stated that she reviewed the CDs
in conjunction with the transcripts and made corrections to the transcripts where
necessary. Because Conde testified that the transcripts were accurate and
Fernandez fails to allege that any specific sections of the transcripts are inaccurate,
the district court did not err in admitting the transcripts. See Rochan, 563 F.3d at
1251; Rosenthal, 793 F.2d at 1238; Llinas, 603 F.2d at 509-10.
F. GEs 21 and 23
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We review a district court’s rulings on the relevance of evidence for abuse of
discretion. United States v. Todd, 108 F.3d 1329, 1332 (11th Cir. 1997). The
Federal Rules of Evidence provide that only relevant evidence is admissible.
Fed.R.Evid. 402. “Relevant evidence” is “evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.”
Fed.R.Evid. 401. When proffered evidence is “of substantial probative value, and
will not tend to prejudice or confuse, all doubt should be resolved in favor of
admissibility.” Todd, 108 F.3d at 1332.
The district court did not abuse its discretion in admitting GE 21 because the
exhibit was relevant to Fernandez’s connection to the conspiracy. The exhibit,
which was two pieces of paper found in the home of one of Fernandez’s
co-conspirators, showed that a number of individuals, including Libertad’s
children, had not yet paid. This corroborates Fernandez’s statement to Gonzalez
that only 18 out of the 23 Cuban migrants that were brought into the country
during the April 2008 trip had paid. Thus, the paper shows that Fernandez had
knowledge of the specific details of the April 2008 trip and supports the argument
that he was involved in the conspiracy. The court also did not abuse its discretion
in admitting GE 23, because the receipt evidenced the purchase of minutes for a
24
satellite phone used in the smuggling offense. Accordingly, the district court did
not abuse its discretion in admitting GEs 21 and 23.
Cumulative Error
“The cumulative error doctrine provides that an aggregation of
non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless
errors) can yield a denial of the constitutional right to a fair trial, which calls for
reversal.” United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005) (quotation
marks omitted). Where there is no error or only a single error, there can be no
cumulative error. United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004).
As discussed above, the evidentiary rulings challenged by Fernandez were
not erroneous. Because the district court committed no errors in ruling on
Fernandez’s objections, Fernandez’s cumulative error argument must also fail. See
Waldon, 363 F.3d at 1110.
U.S.S.G. § 2L1.1(b)(6) Enhancement
With respect to sentencing guideline issues, we review legal questions de
novo and factual findings for clear error. United States v. Rodriguez-Lopez, 363
F.3d 1134, 1136-37 (11th Cir. 2004).
Section 2L1.1(b)(6) provides that if an alien smuggling, transporting, or
harboring offense “involved intentionally or recklessly creating a substantial risk
25
of death or serious bodily injury to another person,” the offense level is increased
by two levels. U.S.S.G. § 2L1.1(b)(6). Reckless conduct under this subsection
“includes a wide variety of conduct (e.g., transporting persons in the trunk or
engine compartment of a motor vehicle, carrying substantially more passengers
than the rated capacity of a motor vehicle or vessel, or harboring persons in a
crowded, dangerous, or inhumane condition).” U.S.S.G. § 2L1.1, comment. (n.5).
The PSI stated that a 2-level enhancement, pursuant to § 2L1.1(b)(6) was
appropriate, because (1) each vessel used in the smuggling operations contained
more people than is safe according to www.boatingbasicsonline.com, and (2) there
were a total of 22 individuals, including 2 children, but only 10 life vests on board
the Fins vessel during the December 1, 2007 smuggling venture. At the sentencing
hearing, Fernandez objected to the application of the enhancement, but he did not
object to the accuracy of the facts on which the court based the enhancement.
Because Fernandez failed to object to the facts set forth in the PSI, we accept those
facts as true and determine whether the § 2L1.1(b)(6) enhancement is warranted
where the vessels involved in the smuggling operations contained more people
than is safe, and there were only 10 life vests on board a vessel carrying 22
individuals from Cuba to Florida. See United States v. Shelton, 400 F.3d 1325,
1330 (11th Cir. 2005) (holding that where a defendant fails to object to factual
26
statements in the PSI, the facts are deemed admitted as true).
Fernandez argues that he did not intend to create a substantial risk of death
or serious bodily injury to another person, but such intent is not required to trigger
the enhancement; instead, it is sufficient if the defendant recklessly created such a
risk. See U.S.S.G. § 2L1.1(b)(6). The commentary to § 2L1.1(b)(6) specifically
lists “carrying substantially more passengers than the rated capacity of a
. . . vessel” as reckless conduct that would justify imposition of the enhancement.
U.S.S.G. § 2L1.1, comment. (n.5). In this case, the vessels not only carried more
passengers than was safe, but one vessel carried enough life vests for less than half
of the passengers on board. Under these circumstances, the district court did not
err in imposing the two-level enhancement.
U.S.S.G. § 3C1.1 Enhancement
When the district court imposes an enhancement for obstruction of justice,
we review the district court’s factual findings for clear error and its application of
the Sentencing Guidelines to those facts de novo. United States v. Massey, 443
F.3d 814, 818 (11th Cir. 2006).
Section 3C1.1 permits a two-level enhancement for obstruction of justice if
“the defendant willfully obstructed or impeded, or attempted to obstruct or impede,
the administration of justice with respect to the investigation, prosecution, or
27
sentencing of the instant offense of conviction” and “the obstructive conduct
related to (i) the defendant’s offense of conviction and any relevant conduct;
or (ii) a closely related offense.” U.S.S.G. § 3C1.1. We have explained that:
The district court must make an independent factual finding that
the defendant gave perjured testimony on a material matter in
order to apply the enhancement. It is preferable that the district
court make specific findings as to each instance of obstruction
by identifying the materially false statements individually. It is
sufficient, however, that the district court makes a general
finding of obstruction of justice that encompasses all of the
factual predicates of perjury.
United States v. Vallejo, 297 F.3d 1154, 1168 (11th Cir. 2002) (internal quotations
and citations omitted). Statements are “material” when, “if believed, [they] would
tend to influence or affect the issue under determination.” U.S.S.G. § 3C1.1,
comment. (n.6). The commentary to § 3C1.1 explains that “[t]his provision is not
intended to punish a defendant for the exercise of a constitutional right.” U.S.S.G.
§ 3C1.1, comment. (n.2). Where a defendant denies his guilt under oath in a
manner that constitutes perjury, however, the enhancement is appropriate. Id. The
Supreme Court has held that a defendant commits perjury where he “gives false
testimony concerning a material matter with the willful intent to provide false
testimony, rather than as a result of confusion, mistake, or faulty memory.” United
States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 1116, 122 L.Ed.2d 445(1993).
28
As an initial matter, Fernandez argues that the district court should not have
imposed this enhancement, because the jury did not determine whether his
statements hindered the prosecution. This argument is without merit, because a
district court may make extra-verdict factual findings at sentencing, using a
preponderance of the evidence standard, provided that the court treats the resulting
guideline range as advisory. United States v. Chau, 426 F.3d 1318, 1323 (11th Cir.
2005).
In determining that the § 3C1.1 enhancement applied, the district court made
an independent factual finding that Fernandez gave perjured testimony on three
material matters. See Vallejo, 297 F.3d at 1168. The court found that the
enhancement was warranted by Fernandez’s testimony that (1) he did not know
that Chino was involved in Cuban smuggling, (2) he did not have anything do with
the alien smuggling trip, and (3) he denied going with Bello and Chino to launch
Chino’s speedboat. Fernandez’s testimony that he did not have anything to do
with the December 2007 alien smuggling trip, standing alone, justifies the
enhancement, because it constitutes a denial of guilt under oath. See U.S.S.G.
§ 3C1.1, comment. (n.2). The district court also did not clearly err in determining
that Fernandez’s testimony, that he did not know that Chino was involved in
Cuban smuggling, constituted perjury. Libertad’s testimony and Fernandez’s own
29
statements in several recorded conversations show that Fernandez knew that
Libertad owed Chino money for his role in illegally bringing her children from
Cuba to the United States. Finally, Fernandez’s testimony that he did not go with
Bello and Chino to launch Chino’s speedboat, is contradicted by Bello’s testimony
that Fernandez was, in fact, present for the launching of the speedboat.
The district court also correctly determined that all three of these statements
were material. Fernandez’s statement that he did not know that Chino was
involved in Cuban smuggling is material, because, to prove a conspiracy, it was
necessary to show that Fernandez had an agreement with Chino to bring Libertad’s
children to the United States. Fernandez’s statement that he was not involved in
smuggling was material, because, if the jury would have believed this statement it
would have found Fernandez not guilty. Finally, Fernandez’s statement that he did
not go with Bello and Chino to launch Chino’s speedboat was material, because
the fact that Fernandez did accompany Bello and Chino shows that he aided and
abetted the smuggling activity. The fact that the jury did not believe Fernandez’s
testimony is irrelevant to the issue of materiality, because the guideline
commentary clearly states that statements are material when “if believed, they
would tend to influence or affect the issue under determination.” See U.S.S.G.
§ 3C1.1, comment. (n.6) (emphasis added). Accordingly, the district court did not
30
err in applying the § 3C1.1 enhancement.
Reasonableness of the Sentence
We review a sentence imposed by the district court for reasonableness,
under an abuse-of-discretion standard. United States v. Bonilla, 579 F.3d 1233,
1239 (11th Cir. 2009). A sentence may be procedurally unreasonable if the
sentencing court fails to accurately calculate the guideline range, treats the
guidelines as mandatory, fails to consider the factors set forth in 18 U.S.C.
§ 3553(a), or fails to adequately explain the chosen sentence. Gall v. United
States, 552 U.S. 38, __, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). The
§ 3553(a) factors a district court must consider include:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need
to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant
with needed educational or vocational training or medical
care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy
statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need
to provide restitution to victims.
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (citing 18 U.S.C.
§ 3553(a)). The district court need not discuss or state on the record each
§ 3553(a) factor explicitly. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.
31
2005). Instead, an acknowledgment by the district court that it has considered the
defendant’s arguments and the § 3553(a) factors will suffice. Id. at 1329-30. The
sentencing court “shall impose a sentence sufficient, but not greater than
necessary” to comply with the purposes of sentencing. See 18 U.S.C. § 3553(a).
A sentence is substantively unreasonable if the district court made a clear error in
judgment in weighing the § 3553(a) sentencing factors. United States v. Pugh, 515
F.3d 1179, 1191 (11th Cir. 2008). “[W]hen the district court imposes a sentence
within the advisory Guidelines range, we ordinarily will expect that choice to be a
reasonable one.” Talley, 431 F.3d at 788.
Fernandez’s sentence was not procedurally unreasonable, because the
district court accurately calculated the guideline range, considered Fernandez’s
arguments, stated that it had considered the § 3553(a) factors, and adequately
explained the chosen sentence. Fernandez’s sentence was also substantively
reasonable. First, his sentence was at the low end of the applicable guideline
range. Second, as the government pointed out, Fernandez’s guideline range was
higher than Chino’s because of Fernandez’s criminal history and because
Fernandez did not receive credit for acceptance of responsibility. Finally, as the
court noted, Fernandez was an active participant in two separate alien smuggling
operations. Accordingly, we affirm Fernandez’s 63-month sentences.
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AFFIRMED.
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