United States v. Ronald Howard Merker , 334 F. App'x 953 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 19, 2009
No. 08-13200 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-20636-CR-RWG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD HOWARD MERKER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 19, 2009)
Before DUBINA, Chief Judge, TJOFLAT and HULL, Circuit Judges.
PER CURIAM:
This appeal arises out of a scheme to smuggle aliens through the Miami
International Airport (“the Airport”). Ronald Howard Merker (“Merker”), a
former Customs and Border Protection (“CBP”) agent at the Airport, appeals his
convictions and sentences for bribery, 18 U.S.C. § 201(b)(2)(C), conspiracy to
commit an offense against the United States for financial gain, 18 U.S.C. § 371
and 8 U.S.C. § 1324(a)(2)(B)(ii), and bringing aliens into the United States for
financial gain, 8 U.S.C. § 1324(a)(2)(B)(ii). After review, we find no reversible
error and affirm.
I. Factual Background
On September 26, 2007, federal authorities charged Merker
and co-defendants Clodoaldo Ribeiro-Albequerque (“Ribeiro”), Sidney Herberth
Sathler (“Sathler”), and Alair Campos (“Campos”) with engaging in an alien
smuggling and bribery scheme.
The government’s theory of the case was this. Ribeiro would arrange to
have the illegal aliens brought to the Airport. Once they got there, Ribeiro would
direct them to Merker’s booth. Merker would then pass them through customs in
violation of internal operating procedures and federal law. At times, Ribeiro relied
on others—Campos and Sathler—to help him steer aliens through Merker’s
security line. The aliens would pay Ribeiro who would in turn pay Merker.
Merker was charged with (1) one count of bribery, 18 U.S.C.
2
§ 201(b)(2)(C); (2) one count of conspiracy to commit an offense against the
United States by bringing aliens into the country for financial gain during the time
period of October 31, 2005 to July 25, 2007, 18 U.S.C. § 371 and 8 U.S.C.
§ 1324(a)(2)(B)(ii); and (3) five counts of bringing aliens into the United States for
financial gain, 8 U.S.C. §§ 1324(a)(2)(B)(ii) and 2. He was charged with
smuggling the following five aliens into the country on specific dates: (1) Solange
Duarte on October 31, 2005; (2) Agnaldo Duarte on February 1, 2006; (3) Daniele
Watanabe on July 7, 2007; (4) Daniele Mascarenhas on July 25, 2007; and (5)
Rosewelt Oliveira on July 25, 2007.
Co-defendants Ribeiro, Sathler, and Campos pled guilty to the conspiracy
count of the superseding indictment. Only Merker went to trial. The jury
convicted Merker on all seven counts.
A. The Government’s Case-in-Chief
The government put forth a number of witnesses and a wealth of evidence.
First, Jose Castellanos, a Chief with CBP, testified about CBP passenger screening
procedures at the Airport. Castellanos testified that, generally, CBP officers
stationed in booths at the Airport’s Passport Control section screen individuals as
they arrive from international flights.
During initial inspections, CBP officers fingerprint and photograph all
3
nonimmigrants who have visas. Each CBP officer carries an admission stamp that
contains a specific number. After this “primary” screening, a reviewing officer
either admits the person or refers her to “secondary” for additional screening.
Officers are required to refer passengers to secondary if they believe that the
passenger is using fraudulent identification documents, is being evasive, or if the
computer records check reveals a problem.
Castellanos noted that during both initial and secondary screening, CBP
relies on the Treasury Enforcement Communication (“TEC”) system to check
records. This system shows whether a passenger has a criminal record or has
overstayed a visa. The TEC’s Advanced Passenger Information System (“APIS”)
also provides flight information about the passengers. Officers are barred from
accessing these records for non-work reasons.
Cheryl Joann Arnold Castellanos, a CBP enforcement officer, testified about
computer records obtained from the TEC system. These records listed work
schedules and booth assignments for the four specific dates that the five aliens
listed in the indictment entered through Merker’s booth, (October 31, 2005,
February 1, 2006, July 7, 2007, and July 25, 2007), and contained information
about aliens processed on those days.
According to Cheryl Castellanos, the TEC records showed that Merker was
4
assigned to Booth 8 on the four dates in question and that he processed Solange
Duarte, Daniele Watanabe, Rosewelt Oliveira, and Daniele Mascarenhas on those
dates. APIS records for February 1, 2006, revealed that co-defendant Campos and
Agnaldo Duarte traveled from Brazil to the United States and arrived during
Merker’s shift.
On cross-examination, Cheryl Castellanos testified that Merker often worked
the night shift, had done so for several years, and that he requested the shift. She
described him as experienced and noted that he often worked in secondary. She
also claimed that Merker was a senior officer and that he knew that passengers
with temporary stamps, which indicated that they were in the process of becoming
legal permanent residents, had to be sent to secondary.
The smuggled aliens also testified. Daniele Mascarenhas, a Brazilian
citizen, testified that she entered the United States through the Airport on July 25,
2007 and that Merker was the inspector who admitted her. Because Mascarenhas
previously had overstayed an American visa in 2000, she knew that reentry into the
United States would be difficult. So, in 2006, she met Ribeiro in Brazil. Ribeiro
told her that he had a friend who worked for immigration and promised that he
could smuggle her in for a $2,000 fee. Mascarenhas accepted Ribeiro’s offer and
paid him. On July 25, 2007, she flew to the United States through Miami with
5
Ribeiro and another man. With Ribeiro by her side, Merker processed her through
customs. Although Merker examined her passport, he asked her no questions and
admitted her. On cross-examination, Mascarenhas admitted that nothing in her
passport suggested that Mascarenhas overstayed her visa and that she might have
been admitted without paying Ribeiro.
Rosewelt Oliveira, a Brazilian citizen, testified that he came to the United
States on an H1 visa in October 1999. He violated the terms of his visa by
changing jobs and subsequently returned to Brazil. Years later, he decided to
return to the United States with his children. He met with Ribeiro, who offered to
get him an adulterated passport to assist his illegal entry into the United States for
$12,000. Ribeiro told Oliveira to mail his passport to Oliveira’s son who was
living in the United States. Oliveira sent the passport, and it was returned to him
by mail, but with an additional stamp.
On July 25, 2007, Ribeiro, Oliveira, and another woman (presumably
Mascarenhas) traveled to the United States by plane. Once they arrived, Ribeiro
and Oliveira went through customs. Oliveira testified that during inspections he
stood in line directly behind Ribeiro. Both men went through Merker’s booth.
Merker examined Oliveira’s newly adulterated passport and allowed him to
proceed.
6
Thomas Cason, a Special Agent with ICE, also testified. Cason explained
that an ADIT stamp shows that an alien has permanent resident status and includes
the individual’s alien number (or “A number”). The government showed Cason a
copy of the ADIT stamp from Rosewelt Oliveira’s passport. Cason testified that
the A number on the stamp was incorrectly formatted and had too many digits.
Matthew Couch, a Special Agent with Immigration and Customs
Enforcement (“ICE”), testified that ICE suspected Ribeiro of alien smuggling and
that Couch assisted with the investigation. According to Couch, immigration
officials deported Ribeiro after an October 2001 drug conviction. Couch also
stated that Ribeiro obtained a fraudulent passport under the name “Johnny Rivera.”
Shane Glassing, a Special Agent with the Department of Homeland
Security’s Office of the Inspector General, echoed Couch’s testimony. Glassing
added that on July 25, 2007, Ribeiro, Mascarenhas, and Rosewelt Oliveira entered
the United States through Merker’s inspection line. Glassing noted that Rosewelt
Oliveira’s passport stamp indicated that he was in the process of becoming a legal
permanent resident, and therefore, should have been sent to secondary. Instead,
Merker admitted him.
The government entered phone records into evidence of all calls made to and
from Merker’s cellular phone between November 2005 and September 2007. Two
7
of the numbers were registered to Jose Neto—another of Ribeiro’s aliases.
Merker’s and Ribeiro’s phones connected 968 times during the four dates in the
indictment. Merker contacted Ribeiro 793 times; Ribeiro contacted Merker 175
times. But none of the calls was recorded.
Co-defendant Campos testified that he and Ribeiro agreed to smuggle aliens
into the United States on four different occasions. According to Campos, Ribeiro
said that he knew an immigration officer who would help with the scheme.
Campos would accompany the alien from Brazil to the United States. When the
flight arrived, Campos would call Ribeiro. Ribeiro would tell Campos which line
led to Merker’s booth. Campos then would guide the alien through the line.
Campos admitted that he never saw Merker outside of the Airport or spoke to him
on the phone. Campos earned $1,000 for every alien he helped smuggle. Campos
admitted that he helped smuggle Agnaldo and Solange Duarte through Merker’s
booth.
Selma Oliveira, a Brazilian citizen, testified that Ribeiro, Merker, and
Campos helped smuggle her into the United States from Brazil. Selma Oliveira
met with Ribeiro in Brazil. Because she had previously overstayed an American
visa, she thought she needed Ribeiro’s help. Ribeiro guaranteed
admission—provided that she could secure a seat on a particular incoming flight.
8
Ribeiro emphasized that the flight he selected was important, and he instructed her
to cancel the flight if it was substantially delayed since “the guy who was working
the booth would be leaving in the morning.” Ribeiro also recommended that
Oliveira use her sister’s passport since the two looked alike.
On February 1, 2006, Selma Oliveira arrived at the Airport, met Campos,
and followed him through Merker’s line. Merker said nothing to her, took no
fingerprints, and processed her quickly. She paid Ribeiro $5,000 for his services.
She later asked Ribeiro to smuggle in her son for $2,500. Again, Ribeiro
delivered.
Solange Duarte, another Brazilian citizen, testified that she entered the
United States on October 31, 2005 and identified Merker as the customs officer
who admitted her. Solange Duarte said that her application for a visa to the United
States was denied. In response, her brother, Agnaldo Duarte, contacted Ribeiro.
Ribeiro met with Solange Duarte and guaranteed her admission to the United
States “[b]ecause the guy from immigration was going to go ahead and invent the
story and then bought off [sic].” Ribeiro told her that Campos would escort her
through immigration screening.
Solange Duarte gave her passport to Ribeiro. He adulterated it by adding
pages and stamps to make it look like she was a legal permanent resident. Once
9
Solange Duarte arrived, she was processed through Merker’s line, showed Merker
the passport, and was admitted.
Solange Duarte’s brother, Agnaldo Duarte, testified that he entered the
United States on February 1, 2006. He stated that Ribeiro was reputed to have the
power to get people into the United States. Agnaldo Duarte paid Ribeiro $20,000
to smuggle him and his sister into the United States. Ribeiro “guaranteed 100
percent” that his efforts would succeed because “he had someone from
immigration who would facilitate [Duarte’s] entrance.”
Agnaldo Duarte testified that he traveled to the United States with Selma
Oliveira, Campos, and Campos’s aunt Luzia. When they arrived at the Airport,
Campos instructed them to use Merker’s line. Merker examined Agnaldo Duarte’s
passport and admitted the others.
Co-defendant Sathler, who also worked for Ribeiro’s construction company,
described the scope of his agreement with Ribeiro to smuggle aliens into the
United States. The strategy was to smuggle aliens who had overstayed their visas,
to adulterate passports using a fake stamp, and to rely on Ribeiro’s
contact—Merker—to process the aliens through customs.
Sathler indicated that Ribeiro set up a meeting with Merker on a street
corner near Merker’s apartment. Sathler testified that Ribeiro told him to
10
remember Merker’s face since the scheme required processing people through
Merker’s line. Sathler testified that he personally escorted aliens on about fifteen
flights from Brazil to the United States. Twelve of the smuggling attempts
succeeded and three failed. According to Sathler, the three failures were triggered
by problems in Brazil—not hangups at the Airport. Once the flights reached the
Airport, Sathler sent the aliens through Merker’s line (while Sathler went through
another line to avoid suspicion).
Sathler testified that, on one occasion, Ribeiro gave him a fake immigration
stamp. Sathler said that he used that stamp to mark Rosewelt Oiveira’s passport
after Oliveira’s son delivered it to him. Sathler stamped the passport and sent it
back to Oliveira’s son. Sathler explained that he used the stamp to trick Brazilian
officials into authorizing aliens to travel to the United States and that the stamp
required an official security ink that Ribeiro provided.
Sathler testified about his and Merker’s role in the July 7, 2007 smuggling
attempt. On that day, Sathler, Ribeiro, and Merker attempted to smuggle Giomar
Martin DeMelo and Daniele Watanabe into the United States. Sathler recounted
that DeMelo and Watanabe’s flight landed at the Airport at 4:30 a.m. After they
arrived, Sathler told Watanabe and DeMelo that Sathler would go through one
immigration line while Watanabe and DeMelo were to enter the line immediately
11
to his right. Once Merker emerged from Booth 8, Sathler pointed at Merker and
told Watanabe to go to Merker’s line. Instead of proceeding to Booth 8 (Merker’s
booth) with Watanabe, DeMelo followed Sathler to Booth 9. Sathler gestured to
DeMelo that he should enter Merker’s booth. DeMelo went through Booth 7
instead. Watanabe, who was processed through Merker’s booth, was admitted.
DeMelo was not.1 The government played a videotape of the incident at trial.
Rey Rodriguez, a special agent with the DHS Office of the Inspector
General, testified that Merker improperly accessed computer records known as
terminal playbacks. These records showed what types of computer searches
Merker conducted on the relevant nights.2 Rodriguez testified that on July 7, 2007,
Merker made unauthorized searches for “lookouts” on an incoming flight from Rio
de Janeiro. A “lookout” from the National Crime Information Center indicates that
a passenger has a criminal history or an outstanding warrant. The results showed a
primary lookout on DeMelo for human smuggling and trafficking and a flag
1
Sathler also made comments that may have benefitted the defense. For example, his
memories were hazy on exactly when Ribeiro told Sathler to remember Merker’s face, and he
did not know whether Ribeiro was speaking Portugese at the time. Sathler also testified that
Ribeiro said that he was connected to an official even higher up than Merker. Further, Sathler
stated that Ribeiro was a “liar” and a “braggart.” But whether Sathler was telling the truth was
an issue for the jury to decide.
2
Although Rodriguez testified that Merker conducted a search for Johnny Rivera, one of
Ribeiro’s known aliases, there was also evidence suggesting that there was a “lookout” for
another Johnny Rivera.
12
requiring DeMelo to report to secondary on arrival. Two hours after his first
search, Merker searched DeMelo’s records again to check whether anyone had
processed him through immigration. After the search, Merker called Ribeiro nine
times throughout the morning—at 5:12 a.m., 5:14 a.m., 8:14 a.m., 8:16 a.m., 8:17
a.m., 8:19 a.m., 8:21 a.m., 8:22 a.m., and 11:16 p.m.. But another officer
eventually processed DeMelo—not Merker.
B. The Defense
On appeal, Merker argues that his defense was hampered by constant
objections to his questions and interruptions by the district court. Therefore, we
recount relevant portions of the defense testimony.
The defense first called Leonel Aguilar, who was a CBP supervisor from
March 1997 until March 2007. Aguilar testified that he directly supervised Merker
on a number of occasions, that between 8 and 12 CBP officers typically worked the
night shift, and that Merker was trained in both primary and secondary screening.
Shortly after this testimony, the government initiated a series of objections
to defense counsel’s questions. The district court sustained nearly all of them. For
example, the government objected to defense counsel asking Aguilar whether
Merker was required to send all passengers to secondary. The district court
sustained the objection on the ground that Aguilar’s testimony could address only
13
the conspiracy’s time frame. The government also objected to defense counsel
asking Aguilar how frequently Merker worked in secondary. The district court
overruled the objection, but cautioned defense counsel to “zero in on the night in
question.”
Aguilar testified that CBP authorized experienced officers to perform
secondary screens at their booths (rather than sending passengers to the secondary
area). In 2003, CBP required officers to personally escort passengers to secondary.
The government objected that Aguilar’s testimony about general airport procedures
was irrelevant. The district court sustained the objection and stated that defense
counsel “need[ed] to get the point.”
Aguilar noted that passengers with ADIT stamps in their passports were,
generally, referred to secondary. But if the staff was shorthanded on a particular
night, experienced officers were authorized to question passengers with ADIT
stamps at their own booths. Defense counsel showed Aguilar one of the
adulterated passports with an ADIT stamp. Aguilar observed that the A number on
the stamp had too many digits, but said that he would not have noticed the problem
during a quick inspection.
Aguilar then explained how ADIT stamps are affixed on passports. The
government, again, objected on relevance grounds, and the district court sustained
14
the objection. Just as Aguilar was explaining how it was not unusual to see an
“SRC” number on a passport, the government objected again. The district court
told Aguilar, “Sir, we’re really not interested in what the officers do,” and
instructed him to confine his testimony to the particular document before him.
Aguilar claimed that in 2003 or 2004, CBP started using fingerprint
machines. This prompted the district court to remark, “we’re off the chart again.”
Defense counsel explained that the testimony was relevant since government
witnesses testified that Merker often failed to take passenger fingerprints. The
court stated, “Well, he wasn’t there. So there’s really not a lot of relevance here.”
Defense counsel asked more questions about fingerprinting procedures. For
example, defense counsel asked whether fingerprint machines ever stopped
working. The government objected, and the district court sustained the objection.
Defense counsel asked whether Aguilar had ever evaluated Merker’s work
performance. The government objected, and the district court sustained the
objection. Defense counsel asked what officers did in the downtime between the
arrival of flights. The government objected, again on relevance grounds, and the
district court sustained the objection. Although defense counsel requested a
sidebar, the district court rebuffed the suggestion and insisted that defense counsel
keep it moving.
15
When Aguilar testified about whether CBP officers checked incoming flight
records every night, the district court interrupted, insisted that such testimony had
“absolutely no relevance,” and asked Aguilar whether he knew the meaning of the
word “relevant.” Aguilar answered affirmatively.
Aguilar testified that CBP officers were required to process individuals
within set time limits. The government objected. The district court sustained the
objection and noted that “[t]his case is about certain dates certain times, and certain
happenings, and so far we don’t have that.” Aguilar then testified that, during the
time frame of the indictment, inspectors were required to process 45 passengers a
minute. During the midnight shift, officers screened 2,000 to 3,000 passengers a
night. At a sidebar, the district court instructed defense counsel to tie Aguilar’s
testimony to the specific dates mentioned in the indictment.
The defense called Jacob Achterberg, a former Chief with CBP who had also
served as Merker’s supervisor. In response to a question about Merker’s duties,
Achterberg said that Merker’s experience and professionalism rendered him a
senior inspector. The government objected, and the district court instructed
Achterberg to answer only the question.
Achterberg testified that he frequently assigned Merker to work in secondary
and that officers were not necessarily required to send all passengers with ADIT
16
stamps to secondary. Defense counsel asked whether an officer with Merker’s
experience was required to send passengers with ADIT stamps to secondary. The
government objected to this question, and the district court sustained the objection.
However, Achterberg testified that Merker had discretion as to whether to send a
passenger with an ADIT stamp to secondary.
Achterberg discussed pre-September 11th procedures. The district court
interrupted and instructed Achterberg to confine his testimony to the conspiracy’s
time frame (which began in 2005). The district court observed that Achterberg was
“having a great deal of difficulty with relevance.” Achterberg also testified that
inspectors were required to administer ADIT stamps using security ink, but that ink
shortages led to the use of other ink types. Following Achterberg’s testimony, the
defense rested.
At the close of the evidence, defense counsel argued that the district court
had unduly limited the defense by requiring its witnesses to tie testimony to the
dates listed in the indictment. The district court acknowledged the legitimacy of
the objection, but noted that both witnesses ended up testifying about airport
procedures.
Defense counsel moved for a mistrial on the ground that the district court’s
restrictions on Aguilar’s and Achterberg’s testimony “essentially limited and
17
hobbled the defense.” The district court denied the motion.
The jury convicted Merker on all seven counts of the superseding
indictment. Merker filed a written motion for a judgment of acquittal or,
alternatively, for a new trial. The district court denied both motions.3
C. Sentencing
The Presentence Investigation Report (“PSI”) set Merker’s base offense
level at 14, pursuant to U.S.S.G. § 2C1.1(a)(1), because Merker was a public
official. The PSI recommended increasing Merker’s offense level to 28 by adding:
(1) two levels, pursuant to U.S.S.G. § 2C1.1(b)(1), because the offense involved
more than one bribe; (2) six levels, pursuant to U.S.S.G. § 2B1.1(b)(1)(D) and §
2C1.1(b)(2), because Merker received payments between $30,000 and $70,000; (3)
four levels, pursuant to U.S.S.G. § 2C1.1(b)(3), because Merker was a public
official in a high-level decision-making or sensitive position; and (4) two levels,
pursuant to U.S.S.G. § 2C1.1(b)(4)(A), because Merker was a public official who
facilitated entry of a person into the United States. Merker’s total offense level of
28 and criminal history category of I yielded an advisory guidelines range of 78 to
97 months in prison.
Defense counsel objected that the overlapping enhancements were
3
During trial, Merker had made oral motions for a judgment of acquittal, which the
district court also denied.
18
impermissible “double counting,” that Merker was not a “public official in a high-
level decision-making or sensitive position,” and that the PSI’s recommended
sentence was substantively unreasonable (as compared to the sentences of his co-
defendants). The district court rejected those arguments and adopted the PSI’s
recommended advisory guidelines range. The district court imposed a 78-month
sentence, at the low end of that range, and a $12,000 fine.
II. Discussion
Merker raises three types of claims on appeal—two evidentiary challenges
and several issues relating to sentencing. We address each in turn.
A. Merker’s Ability to Present a Defense
Merker contends that the district court’s evidentiary rulings and trial
“manner” violated his right to present a defense and denied him a fair trial.4
4
Citing his Sixth Amendment Confrontation Clause rights and his “right to present a
defense, the right to present [his] version of the facts,” see Washington v. Texas, 388 U.S. 14,
19, 87 S. Ct. 1920, 1923 (1967), Merker argues that the district court improperly restricted his
defense by constantly interrupting him and excluding relevant testimony. The government
responds that Merker’s claim should be treated as one implicating the Fourteenth Amendment’s
guarantee of due process and it points out that a passage in Washington v. Texas cited by Merker
suggests as much. See 388 U.S. at 19, 87 S. Ct. at 1923 (“The right to offer the testimony of
witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a
defense, the right to present the defendant's version of the facts as well as the prosecution's to the
jury so it may decide where the truth lies. Just as an accused has the right to confront the
prosecution's witnesses for the purpose of challenging their testimony, he has the right to present
his own witnesses to establish a defense. This right is a fundamental element of due process of
law.”). Whether it is styled as a Fourteenth Amendment claim or one arising out some amalgam
of the Fifth and Sixth Amendments, Merker's argument is that the district court prevented him
from adequately defending himself.
19
First, Merker argues that the district court improperly restricted Achterberg
and Aguilar’s testimony about general procedures at the Airport. The government
had an opportunity to paint a picture of how things normally worked. And it
argued that Merker’s behavior was inconsistent with normal CBP protocol.
Merker claims he was denied the opportunity to counter that image. Had he been
able to offer more evidence of CBP procedure, his behavior would have appeared
innocuous and innocent. Second, Merker claims that the district court’s constant
interruptions, “derogatory tone, and “implicit disapproval” of Merker’ arguments
denied him a fair trial.
We reject Merker’s arguments for a number of reasons.5 First, the district
court did not abuse its discretion in excluding certain testimony that was
untethered to the time frame of the conspiracy and irrelevant. See Fed. R. Evid.
401, 403. For example, defense witnesses did not know whether the fingerprint
5
We review evidentiary rulings for abuse of discretion. United States v. Anderson, 872
F.2d 1508, 1515 (11th Cir. 1989). Even if the district court committed "constitutional error," we
will not reverse errors that are "harmless." See United States v. Candelario, 240 F.3d 1300, 1307
(11th Cir. 2001). “Under the harmless-error standard articulated in Chapman and its progeny, a
conviction may be affirmed only if the reviewing court conclude[s] that, on the whole record, the
error was harmless beyond a reasonable doubt[.] Put differently, the reviewing court must
consider whether there is a reasonable possibility that the evidence complained of might have
contributed to the conviction.” LaMarca v. Sec'y, Dep't of Corrs., — F.3d —, 2009 WL
1377235, at *11 (11th Cir. May 19, 2009) (citations and quotation marks omitted). “[A]
non-constitutional error is harmless if, viewing the proceedings in their entirety, a court
determines that the error did not affect the verdict, or had but very slight effect.” United States
v. Arias, 431 F.3d 1327, 1338 (11th Cir. 2005).
20
machines were malfunctioning on the dates listed in the indictment. At one point,
Achterberg offered testimony about pre-September 11, 2001 procedures, even
though the conspiracy began in 2005. Such testimony was properly excluded.
That the district court did not abuse its discretion in excluding such
testimony undermines Merker’s argument that he was denied the right to present a
defense. Defendants do not have “an unfettered right” to offer irrelevant
testimony. See Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 653 (1988).
Second, Merker was given ample opportunity to present a robust defense.
For starters, the district court allowed him to present evidence of CBP procedures
(that inspectors were forced to process a large volume of individuals quickly, that
they had discretion over when to send individuals to secondary, that Merker was an
experienced inspector, that the adulterated passports were not obvious forgeries,
etc.).6 Aguilar and Achterberg provided much of that information. Admittedly,
portions of their testimony were punctured by a number of objections, but this was
not true for all of their testimony. For example, the district court overruled the
government’s objection and allowed Aguilar to testify that in some cases an
6
Merker outlines four things that his witnesses were unable to prove as a result of the
district court’s interruptions: (1) Merker was an experienced, senior inspector; (2) Merker was
not required to send passengers with ADIT stamps to secondary; (3) Merker was permitted to
perform secondary work in his booth; and (4) manpower shortages forced inspectors to process
people quickly. But Aguilar and other witnesses testified as to all of these facts. Defense
counsel relied on many of these arguments during closing.
21
inspector does not have to refer an individual to secondary. The jury also heard
that Merker was experienced and had the discretion to perform secondary
inspections at his booth. Defense counsel had the opportunity to build on this
evidence of CBP procedures to counter the government’s depiction of how the
CBP worked. Indeed, defense counsel relied on this evidence during closing
argument.
Furthermore, the record does not support the suggestion that the district
court impermissibly commented on the quality of the evidence, the credibility of
the witnesses, or displayed a bias against Merker such that it impeded his ability to
present a defense. See United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th
Cir. 2005) (“[I]n order to amount to reversible error, a judge’s remarks must
demonstrate such pervasive bias and unfairness that they prejudice one of the
parties in the case.”(alteration in original)) (quotation marks and citation omitted).
To the extent that the district court “constantly” interrupted defense counsel, such
interruptions were prompted by defense counsel’s desire to consistently run afoul
of the district court’s evidentiary rulings.
Third, the sheer volume of record evidence showing Merker’s guilt
persuades us that any error was “harmless.” The government presented a vast
array of testimony and documentary evidence showing that Merker was guilty
22
beyond any reasonable doubt. We recounted the evidence above in great detail. In
short, the government presented evidence about Merker’s active involvement in the
conspiracy on the critical dates in question. We are persuaded that there is no
reasonable possibility that the alleged errors might have contributed to the
convictions.
Lastly, Merker had the opportunity to cross-examine witnesses and to
challenge the evidence against him. In short, the district court committed no
reversible error.
B. Co-Conspirator Evidence
Merker argues that the district court erred by admitting Ribeiro’s out-of-
court statements. While Ribeiro’s out-of-court statements were hearsay, there is an
exception for such a hearsay statement if it is “offered against a party and is . . . a
hearsay statement by a coconspirator of a party during the course and in
furtherance of the conspiracy.” Fed. R. Evid. 801(d)(2)(E).7
To fall within the co-conspirator hearsay exception, “the government must
prove by a preponderance of the evidence that (1) a conspiracy existed, (2) the
conspiracy included the declarant and the defendant against whom the statement is
7
We review evidentiary rulings for abuse of discretion. Underwood, 446 F.3d at
1345-46. And we apply “a liberal standard in determining whether a statement is made in
furtherance of a conspiracy.” United States v. Miles, 290 F.3d 1341, 1351 (11th Cir. 2002)
(quotation marks omitted).
23
offered, and (3) the statement was made during the course of and in furtherance of
the conspiracy.” United States v. Underwood, 446 F.3d 1340, 1345-46 (11th Cir.
2006). The district court may consider the hearsay statements themselves when
making this determination. Bourjaily v. United States, 483 U.S. 171, 181, 107
S. Ct. 2775, 2781 (1987).
Merker argues that the only evidence showing his involvement in the
conspiracy was the actual hearsay evidence itself—Ribeiro’s statements.
Therefore, the district court’s reliance on only that evidence to prove its
admissibility constituted impermissible “bootstrapping.” The United States
Supreme Court has never explicitly determined whether a district court can rely
exclusively on the hearsay statements themselves for the purpose of determining
their admissibility under Rule 801(d)(2)(E). See Bourjaily, 483 U.S. at 181, 107 S.
Ct. 1281 (“We need not decide in this case whether the courts below could have
relied solely upon Lonardo's hearsay statements to determine that a conspiracy had
been established by a preponderance of the evidence.”); id. at 184, 107 S. Ct. at
2783 (Stevens, J., concurring) (“An otherwise inadmissible hearsay statement
cannot provide the sole evidentiary support for its own admissibility—it cannot lift
itself into admissibility entirely by tugging on its own bootstraps.”).
There is no need for us to address the issue of impermissible bootstrapping
24
here because ample evidence, unrelated to Ribeiro’s out-of-court statements, shows
that Merker was a member of the conspiracy. First, six witnesses (Solange Duarte,
Agnaldo Duarte, Daniele Watanabe, Daniele Mascarenhas, Selma Oliveira, and
Rosewelt Oliveira), testified that they were admitted to the United States illegally
through Merker’s booth. Co-defendant Campos testified that he personally
escorted three illegal aliens, Solange Duarte, Agnaldo Duarte, and Selma Oliveira,
and directed all three of them to enter Merker’s line.
Co-defendant Sathler testified that he escorted Watanabe through Merker’s
line and that Watanabe was admitted. Sathler also explained that DeMelo’s failure
to enter Merker’s booth doomed his admission to the United States.8 Sathler
testified that he had participated in fifteen smuggling attempts and directed aliens
to enter through Merker’s booth on every occasion.
Further, cell phone records showed that Merker and Ribeiro contacted each
other 968 times between May 15, 2006 and August 17, 2007. This evidence
combined with the evidence of frequent short calls on dates such as July 7, 2007
(the date Watanabe was smuggled in) and on July 25, 2007 (when Daniele
Mascarenhas and Rosewelt Oliveira were smuggled in) supported the admission of
Ribeiro’s statements.
8
Plus, computer record evidence showed that Merker searched for DeMelo’s name prior
to his arrival.
25
Therefore, there was independent, sufficient evidence showing (1) that a
conspiracy existed, (2) that Merker and Ribeiro were involved in the conspiracy,
and (3) that Ribeiro’s statements were made in furtherance of the conspiracy.
Accordingly, the district court did not err in admitting Ribeiro’s out-of-court
statements.
C. Sentencing Issues
Merker raises three challenges to his sentence.9
First, Merker argues that the district court erred by increasing his offense
level under the guidelines for being a “public official in a high-level decision-
making or sensitive position,” pursuant to § 2C1.1(b)(3) (authorizing a four-level
increase). However, Merker easily falls under this label. Merker held “a position
characterized by a direct authority to make decisions for, or on behalf of, a
government department, agency, or other government entity, or by a substantial
influence over the decision-making process.” U.S.S.G. § 2C1.1 cmt. n.4. The
application notes list “agency administrator” and “law enforcement officer” as
9
We review de novo a district court’s interpretation and application of the Sentencing
Guidelines. United States v. Louis, 559 F.3d 1220, 1224 (11th Cir.), cert. denied, — S. Ct. —,
2009 WL 1146748 (U.S. May 26, 2009) (No. 08-10013); United States v. Miranda, 348 F.3d
1322, 1330 (11th Cir. 2003). We review de novo a claim that the district court double-counted a
sentencing factor. United States v. Dudley, 463 F.3d 1221, 1226 (11th Cir. 2006). And “[w]e
review the district court's findings of fact related to the imposition of sentencing enhancements .
. . for clear error.” United States v. Clarke, 562 F.3d 1158, 1165 (11th Cir. 2009). “Under this
standard, we will not disturb a district court's findings unless we are left with a definite and firm
conviction that a mistake has been committed.” Id. (quotation marks and citation omitted).
26
examples of the types of officials who fall under this broad category. Merker not
only had substantial influence over whether an individual could enter the United
States but also had law enforcement duties. Indeed, CBP officers carried weapons
and had arrest powers. Further, CBP officers had “direct authority” to decide
whether to admit an alien or to require them to produce additional documentation.
Therefore, the district court did not err in classifying Merker as a “public official in
a high-level decision-making or sensitive position.”
Second, Merker argues that the district court engaged in impermissible
double counting when it “repeatedly increased Merker’s base [offense] level under
U.S.S.G. § 2C1.1.” Merker contends that the district court was wrong to treat him
as both a “public official in a high-level decision-making or sensitive position,”
U.S.S.G. § 2C1.1(b)(3), and a “public official who facilitated . . . entry into the
United States for a person,” U.S.S.G. § 2C1.1(b)(4)(A).
“‘Impermissible double counting occurs only when one part of the
Guidelines is applied to increase a defendant’s punishment on account of a kind of
harm that has already been fully accounted for by application of another part of the
Guidelines.’” United States v. Dudley, 463 F.3d 1221, 1226-27 (11th Cir. 2006)
(quoting United States v. Matos-Rodriguez, 188 F.3d 1300, 1309 (11th Cir. 1999)).
Unless the guidelines direct otherwise, this Court presumes “that the Sentencing
27
Commission intended for separate guideline sections to apply cumulatively.” Id.
at 1227. “‘Double counting a factor during sentencing is permitted if the
Sentencing Commission . . . intended that result and each guideline section in
question concerns conceptually separate notions relating to sentencing.’” Id.
(quoting United States v, Stevenson, 68 F.3d 1292, 1294 (11th Cir. 1995)).
Further, “[t]he offense level adjustments from more than one specific offense
characteristic within an offense guideline are applied cumulatively (added
together) unless the guideline specifies that only the greater (or greatest) is to be
used.” U.S.S.G. § 1B1.1 cmt. n.4(a).
The district court did not engage in impermissible double-counting because
Merker’s enhancement under § 2C1.1(b)(4)(A) was not fully accounted for in his
enhancement under § 2C1.1(b)(3). The “public official in a high-level decision-
making or sensitive position” enhancement, § 2C1.1(b)(3), generally speaking,
applies to public servants with direct authority to make important governmental
decisions. Notably, this enhancement is not tied to whether an individual admits a
person into the United States, and no part of the applicable guidelines uproots our
normal presumption that enhancements are cumulative.
In contrast, the enhancement for an official who facilitates “entry into the
United States for a person” addresses the dangers caused by illegally admitting
28
persons into the United States. U.S.S.G. § 2C1.1(b)(4)(A). The concerns
addressed by this enhancement are not “fully accounted” for, see Matos-Rodriguez,
188 F.3d at 1309, by applying the § 2C1.1(b)(3) enhancement. Indeed, §
2C1.1(b)(3) applies even if an official denies an alien’s entry into the United
States, in exchange for bribes; whereas § 2C1.1(b)(3) would not. Because the
different enhancements address different aspects of Merker’s crimes, we find no
error in the district court’s application of both enhancements.
Third, Merker argues that his sentence was unreasonable because (1)
“virtually” the only factor that the district court addressed when imposing the
sentence was Merker’s role as an immigration inspector and (2) his sentence was
three times as long as Ribeiro’s sentence.
We review the substantive reasonableness of the sentence for an abuse of
discretion. Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597 (2007). A
defendant challenging his sentence bears the burden of establishing that it is
unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). The
record does not support Merker’s contention that the district court considered only
one of the factors listed in 18 U.S.C. § 3553(a). The district court examined all of
the relevant § 3553(a) factors, correctly calculated the guidelines range, and
arrived at a reasonable sentence at the low end of the guidelines range. Any
29
disparity between Merker’s and Ribeiro’s sentences can be attributed to the
seriousness of Merker’s crime, his breach of the public trust, and the fact that
Ribeiro pled guilty. Merker has failed to carry his burden to show that his sentence
was unreasonable. Therefore, we AFFIRM Merker’s convictions and sentence.
AFFIRMED.
30