United States v. Amisaday Aguilar , 188 F. App'x 897 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 7, 2006
No. 05-10872 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-10002-CR-SH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AMISADAY AGUILAR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 7, 2006)
Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
Amisaday Alvarez-Aguilar appeals his conviction and 60-month sentence
for conspiracy to bring aliens into the United States for private gain, in violation of
18 U.S.C. § 371, and, attempt to bring 12 illegal aliens into the United States for
private financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii). On appeal,
Alvarez-Aguilar argues that the district court erred in denying his motion for
judgment of acquittal because the evidence was insufficient to establish that he
smuggled illegal aliens into the United States “for commercial advantage or private
financial gain,” an essential element of the offense. He also argues that the district
court abused its discretion in denying his motion for a new trial when: (a) a juror
slept through portions of the trial; (b) the prosecutor improperly inquired into the
conviction status of two co-defendants; and (c) there was insufficient evidence
because the testimony of three cooperating witnesses was not credible. Finally, he
argues that the statutory mandatory minimum sentence of five years was harsh and
unreasonable.
I.
Upon a defendant’s motion, a district court “must enter a judgment of
acquittal of any offense for which the evidence is insufficient to sustain a
conviction.” Fed. R. Crim. P. 29(a). “We review de novo the legal question of
whether the record contains sufficient evidence to support the guilty verdict.”
United States v. Tinoco, 304 F.3d 1088, 1122 (11th Cir. 2002). “When conducting
2
the review of the record, we view the evidence in the light most favorable to the
government and resolve all reasonable inferences and credibility evaluations in
favor of the jury's verdict.” Id. “We uphold the jury’s verdict unless no trier of
fact could have found guilt beyond a reasonable doubt.” Id. (quotation omitted).
All credibility choices are made in the government's favor. United States v.
Munoz, 430 F.3d 1357, 1367 n. 9 (11th Cir. 2005). “[C]redibility determinations
are for a jury to make.” United States v. Ndiaye, 434 F.3d 1270, 1296 (11th Cir.
2006).
Federal law provides criminal penalties against any person who knowingly
smuggles an illegal alien into the United States “for the purpose of commercial
advantage or private financial gain.” 8 U.S.C. 1324(a)(2)(B)(ii). We have defined
“commercial advantage” as “a profit or gain in money obtained through business
activity” and “private financial gain” as “an additional profit specifically for a
particular person or group.” United States v. Zheng, 306 F.3d 1080, 1086 (11th
Cir. 2002).
Alvarez-Aguilar contends that the government failed to establish that he
acted for commercial advantage or private gain, one of the essential elements of the
offense. According to Alvarez-Aguilar, three witnesses testified that he did not
receive money for his role and only one witness testified that he saw Alvarez-
3
Aguilar get paid.
In this case, there was sufficient evidence for the jury to find that Alvarez-
Aguilar was paid for his services. Co-defendant Lopez testified that Alvarez-
Aguilar admitted that he was paid to act as co-driver of the boat. Two passengers,
Alexis Ulloa-Martinez and Mayra Martinez-Nodal, testified that they saw Alvarez-
Aguilar on the boat. Joyset Ulloa-Martinez testified that he saw Alvarez-Aguilar
get paid. The jury was free to believe this testimony over the testimony of Alvarez-
Aguilar’s main witness, his cousin Addiel Aguilar. This court will not make
credibility determinations.
We conclude that a judgment of acquittal was not warranted because any
credibility choices are reviewed in the government’s favor, and the evidence was
sufficient to establish that Alvarez-Aguilar smuggled aliens into the United States
for private financial gain.
II.
A district court may vacate a judgment and grant a new trial if the interest of
justice requires. Fed. R. Crim. P. 33. We review a district court’s denial of a
motion for a new trial for abuse of discretion. United States v. Hernandez, 433
F.3d 1328, 1336 (11th Cir. 2005).
Alvarez-Aguilar argues that the district court abused its discretion in
4
denying his motion for a new trial for three reasons: (a) a juror slept through
portions of the trial; (b) the prosecutor improperly inquired into the conviction
status of two co-defendants; and (c) there was insufficient evidence because the
testimony of three witnesses was not credible.
A. Juror Bivins
A district court has discretion to replace with alternates “any jurors who are
unable to perform or who are disqualified from performing their duties.” Fed. R.
Crim. P. 24(c)(1). We will not disturb a district court’s discretion to remove a juror
absent a showing of bias or prejudice to one of the parties. See United States v.
Fajardo, 787 F.2d 1523, 1525 (11th Cir. 1986)
The record indicates that the district court judge noticed that Juror Bivins
was sleeping or having trouble staying awake during both side’s opening
arguments and on the first day of trial. No mention is made of Bivins being asleep
on the second day of trial. At the end of the third day of trial, the district court
judge noted that Bivins slept through a considerable portion of that day’s session.
In his order denying a new trial, the district court judge stated that he kept a close
watch on Bivins and instructed a court officer to do the same. The district court
believed that it was not necessary to remove Bivins, as he was alert through the
substantial portions of the trial. Additionally, the judge was satisfied by Bivins’s
5
reassurances that he could perform his duty.
We hold that the district court did not abuse its discretion in allowing Bivins
to remain on the jury. See United States v. Freitag, 230 F.3d 1019, 1023 (8th Cir.
2000) (holding that the district court did not abuse its discretion in retaining a
possibly sleeping juror because the judge had only noticed inattentiveness on one
occasion). The district court judge was in the best position to determine the extent
of Bivins’s inattention and he decided that Bivins could deliberate and render
judgment in this case.
B. The Co-Defendants’ Convictions
We have concluded that a “co-defendant’s guilty plea or conviction may be
brought out at trial provided that 1) the evidence serves a legitimate purpose and 2)
the jury is properly instructed about the limited use they may make of it.” United
States v. DeLoach, 34 F.3d 1001, 1003 (11th Cir. 1994). The use of a
codefendant’s guilty plea or conviction as substantive evidence of the guilt of
another is improper. Id. at 1004. Proper uses of a codefendant’s guilty plea or
conviction include impeachment of a testifying codefendant, bolstering or
weakening a witness’s credibility, and preventing a jury from concluding that a
culpable co-defendant escaped prosecution. Id. A district court must caution the
jury that the conviction of a co-defendant cannot be used to determine the guilt or
6
innocence of the accused. Id. at 1005. We presume that a jury follows the
instructions given to it by the district judge. United States v. Ramirez, 426 F.3d
1344, 1352 (11th Cir. 2005).
In the instant case, the government asked its witness, case agent Pedro
Cintron, about the conviction status of two co-defendants, Addiel Aguilar and Jose
Agra. Alvarez-Aguilar objected, but the district court overruled his objections.
Cintron reported that both co-defendants had pled guilty and were awaiting
sentencing. The district court then informed the jury that they were not to consider
the co-defendants’ convictions in determining whether Alvarez-Aguilar was guilty.
Alvarez-Aguilar subsequently moved for a new trial.
The government in this case does not argue that the introduction of the co-
defendant convictions was proper. Instead, the government argues that it was
harmless. We conclude that this testimony was not prejudicial to Alvarez-Aguilar’s
interests so as to require a new trial. The district court immediately provided an
oral curative instruction and a written instruction in its charge to the jury. The
district court cautioned the jury that the convictions of Alvarez-Aguilar’s co-
defendants could not be used to determine his guilt or innocence. Moreover, later
in the trial, the defense itself elicited information about one of these co-defendant’s
guilty pleas. When Addiel Aguilar testified for the defense, he testified that he had
7
pled guilty to his charge and had a plea agreement with the government. Because
Addiel Aguilar testified for the defense, the government also would have been
entitled to use Aguilar’s guilty plea as impeachment evidence. This later exchange
suggests that the defense suffered little prejudice from the mention of Addiel
Aguilar’s conviction.
Our decision is also influenced by the limited nature of the discussion about
the co-defendant convictions. The government never suggested that Alvarez-
Aguilar should be found guilty because his co-defendants were convicted, or that
the co-defendants were convicted on evidence similar to the instant case. Most
importantly, the district court issued oral and written curative instructions. See
United States v. De La Vega, 913 F.2d 861, 866-67 (11th Cir. 1990) (holding that
mention of co-defendant’s conviction was rendered harmless by the circumstances,
particularly the district court’s curative instruction); United States v. Lasteed, 832
F.2d 1240, 1243 (11th Cir. 1987) (holding that testimony about a co-defendant’s
conviction did not require reversal). Accordingly, we hold that the district court did
not abuse its discretion in denying Alvarez-Aguilar’s motion for a new trial.
C. Sufficiency of the Evidence
Alvarez-Aguilar also argues that the government’s cooperating witnesses
were not credible and, therefore, a new trial was warranted. Upon a Rule 33 motion
8
for a new trial based on the weight of the evidence, a court “may weigh the
evidence and consider the credibility of the witnesses.” United States v. Martinez,
763 F.2d 1297, 1313 (11th Cir. 1985). “Courts are to grant [motions for new trials]
sparingly and with caution, doing so only in those really exceptional cases.” Id.However, a court may grant such a new trial motion “where the credibility of the
government’s witnesses [was] impeached and the government’s case [was]
marked by uncertainties and discrepancies.” Id. We review the district court’s
denial of the motion for abuse of discretion. Id.We conclude that a new trial was not warranted based on Alvarez-Aguilar’s
challenges on appeal. The credibility of the government’s witnesses was not
impeached, and the government’s case was not marked by uncertainties and
discrepancies or upon compound inferences.
III.
Alvarez-Aguilar objected to certain enhancement in his PSI that affect his
Sentencing Guidelines range. These enhancements do not matter, because Alvarez-
Aguilar was sentenced to the statutory mandatory minimum sentence of 60 months.
Criminal penalties for smuggling illegal aliens into this country for
commercial advantage or private financial gain include a fine and imprisonment
for, “in the case of a first or second violation of subparagraph . . . (B)(ii), not less
9
than 3 nor more than 10 years, and for any other violation, not less than 5 nor more
than 15 years.” 8 U.S.C. § 1324(a)(2)(B).1 We must give effect to the plain and
unambiguous language of a statute. United States v. Rodriguez-Suarez, 856 F.2d
135, 137 (11th Cir. 1988).
When a district court correctly imposes the statutory mandatory minimum
sentence, any error in the Guidelines calculations is harmless, and we do not need
to address such arguments. United States v. Raad, 406 F.3d 1322, 1323 n.1 (11th
Cir.). The courts remain bound by the statutory mandatory minimum sentences,
and nothing in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d
621 (2005), changed that obligation. United States v. Shelton, 400 F.3d 1325,
1333 n.10 (11th Cir. 2005). Even when “a guidelines range falls entirely below a
mandatory minimum sentence, the court must follow the mandatory statutory
minimum sentence.” United States v. Clark, 274 F.3d 1325, 1328 (11th Cir. 2001).
We have emphasized that mandatory minimum sentences, established by Congress,
take precedence over the Guidelines range. Id.In the instant case, the jury convicted Alvarez-Aguilar of one count of
conspiracy and twelve counts of attempting to bring illegal aliens into the United
States. The statutory mandatory minimum sentence for Alvarez-Aguilar was 60
1
Each alien is counted as a separate violation. See United States v. Ortega-Torres, 174 F.3d
1199, 1201 (11th Cir. 1999).
10
months imprisonment. Even though the Guidelines range fell below the mandatory
minimum sentence, the district court was obligated to impose the mandatory
statutory minimum. Because we conclude that the district court correctly imposed
the statutory mandatory minimum sentence, Alvarez-Aguilar’s sentence was
neither too harsh nor unreasonable.
Upon full consideration of this case, we find no reversible error.
Accordingly, we affirm Alvarez-Aguilar’s conviction and sentence.
AFFIRMED.2
2
Appellant’s motion for oral argument is DENIED.
11