United States v. Alfredo Martinez Riquene , 552 F. App'x 940 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10034
Non-Argument Calendar
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D.C. Docket No. 3:10-cr-00227-MMH-TEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO MARTINEZ RIQUENE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 16, 2014)
Before MARCUS, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
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Alfredo Riquene appeals his conviction and 235-month total sentence for
production of child pornography, in violation of 18 U.S.C. § 2251(a), (e), and
making false statements to the Federal Bureau of Investigation (FBI), in violation
of 18 U.S.C. § 1001. Riquene asserts four issues on appeal, which we address in
turn. After review, we affirm Riquene’s conviction and sentence.
Motion to Suppress
Riquene first asserts the district court erred in denying his motion to
suppress because, based on the totality of the circumstances, he did not make his
statements to the officers voluntarily. He contends a reasonable person would not
have believed he was not in custody and could have refused to talk to the officers
in the circumstances presented. Specifically, Riquene’s native language is
Spanish, he was on pain medication, and he was intimidated by the officers in his
home due to having grown up under an authoritarian regime in Cuba. Moreover,
Officer Bisplinghoff was a large man, while Riquene was of small stature, and
there were numerous officers in Riquene’s home. Further, when the officers
arrived, they immediately informed Riquene that it was illegal to lie to law
enforcement. Had the officers given Riquene his Miranda warnings when they
first arrived, he contends he would not have wanted to answer their questions.
“Whether a person was in custody and entitled to Miranda warnings is a
mixed question of law and fact.” United States v. McDowell, 250 F.3d 1354, 1361
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(11th Cir. 2001). We review factual findings for clear error and legal conclusions
de novo. Id. This Court “construe[s] the facts in the light most favorable to the
party who prevailed below.” United States v. Muegge, 225 F.3d 1267, 1269 (11th
Cir. 2000).
“[T]he prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege
against self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). A
suspect is not entitled to Miranda warnings for pre-custodial questioning, however.
United States v. Street, 472 F.3d 1298, 1309 (11th Cir. 2006).
Custodial interrogation occurs “after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.” Miranda, 384
U.S. at 444. Whether a suspect is in custody is an objective inquiry that goes
beyond whether a reasonable person would have felt free to leave. United States v.
Luna-Encinas, 603 F.3d 876, 881 (11th Cir. 2010). Rather, the proper question is
whether “a reasonable person would have understood his freedom of action to have
been curtailed to a degree associated with formal arrest.” Id. (quotation omitted).
In this context, a reasonable person is “a reasonable innocent person,” and the
suspect’s and interviewing officer’s subjective beliefs are irrelevant. Id. at 881 n.1
(quotation omitted); McDowell, 250 F.3d at 1362. In determining whether a
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suspect was in custody, “we consider the totality of the circumstances, including
whether the officers brandished weapons, touched the suspect, or used language or
a tone that indicated that compliance with the officers could be compelled, as well
as the location and length of the detention.” Luna-Encinas, 603 F.3d at 881
(quotation and citation omitted). “[W]e are much less likely to find the
circumstances custodial when the interrogation occurs in familiar or at least neutral
surroundings, such as the suspect’s home.” Id. at 882 (quotation omitted).
The district court did not err in denying Riquene’s motion to suppress. His
statements prior to being advised of his Miranda rights were given before he was
in custody, so no Miranda warnings were required. Considering the totality of the
circumstances, Riquene was interviewed in his living room and he was not
handcuffed. The officers wore civilian clothes, did not display any weapons, and
did not use force against Riquene. In these circumstances, “a reasonable
[innocent] person would [not] have understood his freedom of action to have been
curtailed to a degree associated with formal arrest.” See Luna-Encinas, 603 F.3d
at 881 & n.1 (quotation omitted).
Riquene’s reliance on Missouri v. Seibert, 542 U.S. 600 (2004) is misplaced.
There, the Supreme Court considered “a police protocol for custodial interrogation
that calls for giving no warnings of the rights to silence and counsel until
interrogation has produced a confession,” after which the officer provides Miranda
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warnings and the suspect repeats his pre-Miranda statement. Id. at 604. In
contrast, as discussed above, Riquene was not in custody before he was advised of
his rights under Miranda. Accordingly, we affirm the denial of Riquene’s motion
to suppress.
Mistake of Age Defense
Riquene next contends the district court abused its discretion by prohibiting
him from asserting a mistake of age defense, even though there is no mens rea
element regarding age in 18 U.S.C. § 2251(a). Because A.B. was addicted to crack
cocaine, working as a prostitute, and not living with her parents, an average person
would have thought she was an adult. Without a mistake of age defense, Riquene
had no means to defend himself, which violated his First, Fifth, and Sixth
Amendment rights.
“[W]e review a district court’s determination of the availability of a defense
under a statute de novo.” United States v. Preacher, 631 F.3d 1201, 1203 (11th
Cir. 2011). Although a defendant has a constitutional right to present a defense, he
must still comply with the rules of evidence, and is not entitled “to place before the
jury irrelevant or otherwise inadmissible evidence.” United States v. Anderson,
872 F.2d 1508, 1519 (11th Cir. 1989). “Irrelevant evidence is not admissible,”
Fed. R. Evid. 402, and “[e]vidence is relevant if: (a) it has any tendency to make a
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fact more or less probable than it would be without the evidence; and (b) the fact is
of consequence in determining the action,” Fed. R. Evid. 401.
Under § 2251(a):
Any person who employs, uses, persuades, induces, entices, or
coerces any minor to engage in, or who has a minor assist any other
person to engage in, or who transports any minor in or affecting
interstate or foreign commerce, or in any Territory or Possession of
the United States, with the intent that such minor engage in, any
sexually explicit conduct for the purpose of producing any visual
depiction of such conduct or for the purpose of transmitting a live
visual depiction of such conduct, shall be punished as provided under
subsection (e) . . . .
18 U.S.C. § 2251(a). Section 2251(c) prohibits similar conduct, with the exception
of not including a clause regarding transporting a minor:
Any person who, in a circumstance described in paragraph (2),
employs, uses, persuades, induces, entices, or coerces any minor to
engage in, or who has a minor assist any other person to engage in,
any sexually explicit conduct outside of the United States, its
territories or possessions, for the purpose of producing any visual
depiction of such conduct, shall be punished as provided under
subsection (e).
Id. § 2251(c)(1). In United States v. Deverso, 518 F.3d 1250 (11th Cir. 2008), the
defendant appealed the district court’s refusal to instruct the jury on a mistake of
age defense in regard to the charge under § 2251(c) that he had used “a minor to
engage in sexually explicit conduct outside of the United States.” Id. at 1257. We
held knowledge of the victim’s age is not an element of § 2251 and “the
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Constitution does not mandate a mistake of age defense under § 2251.” Id. at
1257-58.
The district court did not err in prohibiting Riquene from raising a mistake
of age defense at trial. In Deverso, we held that knowledge of the victim’s age was
not an element of § 2251. 518 F.3d at 1257. That holding also applies here.
Riquene’s argument that a mens rea element should be read into § 2251(a) is
without merit. Riquene relies on the clause in § 2251(a) regarding transporting a
minor, as that clause includes the language “with the intent that such minor engage
in . . . .” However, Riquene was charged under the first clause of § 2251(a), which
does not include the “with the intent that such minor engage in” language.
Because Riquene was not charged under the transportation clause of § 2251(a), his
reliance on its language regarding intent is misplaced.
Because knowledge of the victim’s age is not an element of the offense with
which Riquene was charged, evidence relating to his perception of the victim’s age
was irrelevant. The district court did not err in prohibiting Riquene from placing
irrelevant evidence before the jury. See Fed. R. Evid. 402; Anderson, 872 F.2d at
1519.
Finally, Riquene’s reliance on the Fifth and Sixth Amendments is misplaced.
The Fifth and Sixth Amendments “require criminal convictions to rest upon a jury
determination that the defendant is guilty of every element of the crime with which
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he is charged, beyond a reasonable doubt.” United States v. Gaudin, 515 U.S. 506,
509-10 (1995). That Riquene’s jury was not asked to consider a fact that is not an
element of the charged crime does not violate this principle. Accordingly, we
affirm the district court’s refusal to allow Riquene to raise a mistake of age defense
at trial.
Admission of Video Recordings
Riquene next contends that, under Federal Rules of Evidence 403 and 404,
the district court should not have admitted Government’s Exhibits 30 and 31, video
recordings of Riquene having sexual intercourse with adult women, as these
recordings were irrelevant and prejudicial. He asserts the recordings were not
relevant to the issues of intent or motive, and the risk of unfair prejudice
substantially outweighed any possible probative value. “We review the district
court’s evidentiary rulings for clear abuse of discretion.” United States v. Smith,
459 F.3d 1276, 1295 (11th Cir. 2006).
“The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403.
“Evidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. 404(b)(1). Such evidence is
admissible, however, for other purposes, such as to show “motive, opportunity,
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intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Fed. R. Evid. 404(b)(2). Evidence is properly admitted under Rule
404(b) if: (1) it is “relevant to an issue other than the defendant’s character;”
(2) there is sufficient proof that the defendant committed the act; and (3) undue
prejudice from the evidence will not substantially outweigh the probative value of
the evidence, and the evidence otherwise meets the requirements of Rule 403.
United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003) (quotation
omitted).
“[T]he court’s discretion to exclude evidence under Rule 403 is narrowly
circumscribed.” Smith, 459 F.3d at 1295 (quotation omitted). “Rule 403 is an
extraordinary remedy, which should be used only sparingly since it permits the
trial court to exclude concededly probative evidence.” Id. (quotations and
alteration omitted). “The balance under the Rule, therefore, should be struck in
favor of admissibility.” Id. (quotation omitted). Thus, “we look at the evidence in
a light most favorable to its admission, maximizing its probative value and
minimizing its undue prejudicial impact.” Id. (quotation omitted).
In Smith, we held that the district court did not err in admitting pictures that
depicted the defendant and naked women in a room identical to the one in which
the victim was photographed. Id. at 1295-96. The pictures were relevant “to
establish identity, knowledge, and sexual content.” Id. at 1296. Further, we
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explained the prosecution need not “be deprived of its most probative evidence”
simply because the nature of the crime and the evidence of the crime are
emotionally charged, particularly where the district court provided “limiting
instructions as to the proper purpose of admitted evidence.” Id.
The district court did not abuse its discretion in admitting videos of Riquene
having sexual intercourse with adult women. First, the videos, which showed
Riquene taking steps to set up his camera to record the sexual acts, were relevant to
issues other than Riquene’s character—specifically, his knowledge, intent,
preparation, and absence of mistake in producing videos of his sexual acts. See
Jernigan, 341 F.3d at 1280. Second, there was sufficient proof Riquene committed
the acts in the videos, as he agrees he is the individual shown in the videos. See id.
Third, the evidence meets the requirements of Rule 403 because the danger of
undue prejudice did not substantially outweigh the probative value of the videos
showing Riquene taking steps to record his sexual acts. See Fed. R. Evid. 403;
Jernigan, 341 F.3d at 1280. Moreover, the court provided limiting instructions to
the jury both before the videos were shown and during the final jury charge. See
Smith, 459 F.3d at 1296. Accordingly, we affirm the district court’s decision to
admit these videos.
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Obstruction of Justice Enhancement
Riquene contends the district court erroneously applied the § 3C1.1
sentencing enhancement for obstruction of justice. As he was arrested shortly after
making the false statements, he asserts his statements did not obstruct, significantly
or otherwise, the investigation. Additionally, because Riquene was convicted of
making false statements, applying the obstruction of justice enhancement
constituted double counting. In reviewing the imposition of a § 3C1.1
enhancement, “we review the district court’s factual findings for clear error” and
“the district court’s application of the Sentencing Guidelines to those facts de
novo.” United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006).
The Sentencing Guidelines provides for a two-level enhancement
[i]f (1) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to (A) the
defendant’s offense of conviction and any relevant conduct; or (B) a
closely related offense.
U.S.S.G. § 3C1.1. Where a defendant is convicted of an obstruction offense and of
an underlying offense, the obstruction and underlying offenses are to be grouped
together under U.S.S.G. § 3D1.2(c). Id., comment. (n.8). “The offense level for
that group of closely related counts will be the offense level for the underlying
offense increased by the 2-level adjustment specified by this section, or the offense
level for the obstruction offense, whichever is greater.” Id. Certain conduct,
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including but not limited to making false statements to officers when not under
oath, does not ordinarily warrant application of a § 3C1.1 adjustment. Id.,
comment. (n.5). This application note goes on, however, to specify that, “if the
defendant is convicted of a separate count for such conduct, this adjustment will
apply and increase the offense level for the underlying offense.” Id.
The district court did not err in applying the § 3C1.1 enhancement.1
Riquene is correct that some conduct does not warrant application of this
adjustment. See id. However, because Riquene was convicted under a separate
count for making false statements, the § 3C1.1 enhancement applies even if his
false statements would not otherwise warrant this adjustment. See id.
Additionally, Riquene’s double counting argument is without merit. Riquene’s
base offense level was based only on his production of child pornography
conviction, and absent the obstruction of justice enhancement, his Guidelines range
would not have reflected his conviction for making false statements to the FBI.
Accordingly, we affirm the application of the § 3C1.1 enhancement.
For the foregoing reasons, we affirm Riquene’s conviction and sentence.
AFFIRMED.
1
Riquene and the Government dispute whether plain error review applies to this issue.
We need not determine whether plain error is the correct standard of review, however, because
there has been no error, plain or otherwise. See United States v. Tome, 611 F.3d 1371, 1375 n.2
(11th Cir. 2010).
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