United States v. Sandra Milena Nieves , 666 F. App'x 778 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10297
Non-Argument Calendar
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D.C. Docket No. 6:15-cr-00126-CEM-KRS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANDRA MILENA NIEVES,
EILEEN SANTOS,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(November 10, 2016)
Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Eileen Santos and Sandra Nieves were convicted as participants in a
counterfeit currency conspiracy. They both challenge their convictions, raising
numerous issues regarding the district court’s evidentiary rulings, its instructions to
the jury, and the sufficiency of the evidence. Nieves also challenges her sentence.
I.
A grand jury indicted Santos, Nieves, Ramon Rodriguez, and Carlos Fuentes
as participants in a counterfeit currency scheme. Count One charged all four
defendants with conspiracy to pass or attempt to pass or possess counterfeit
currency. Count Two charged all four with substantively possessing counterfeit
currency. Count Three charged Fuentes alone with passing or attempting to pass
counterfeit currency. And Count Four charged Nieves alone with passing or
attempting to pass counterfeit currency. All of those charges arose under 18
U.S.C. § 472.
Rodriguez and Fuentes reached plea deals with the government, while
Santos and Nieves proceeded to trial. At Santos and Nieves’ joint trial, Rodriguez
testified that he learned about the scheme, which already involved Santos and
Nieves, from Fabian Ortiz and his father Jorge Ortiz.1 He testified that Fabian and
Nieves hid counterfeit currency in the lining of suitcases in order to smuggle it into
1
To avoid confusion we will refer to the Ortizes by their first names.
2
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this country from Colombia. Then the group would go to various stores and buy
low-cost items with counterfeit $100 bills, receiving real money as change for their
purchases. In addition to the counterfeit currency, the group would carry authentic
$100 bills and withdrawal receipts from legitimate banks. That way, if a group
member got caught, he or she could say that it was an innocent mistake and that the
bad bill had come from a bank.
Rodriguez testified that at one point he traveled across the East Coast with
Santos, Nieves, Fuentes, and Jorge, exchanging counterfeit currency along the
way. 2 As they became more experienced, they realized that it was especially easy
to pass counterfeit currency at Target stores. Santos even joked that Target “was
an easy target.”
At trial Santos and Nieves attempted to introduce, for impeachment
purposes, evidence of Rodriguez’s prior convictions for a slew of crimes including
grand theft, possession of cocaine, and possession of a fictitious license. The
district court sustained the government’s motion to exclude the convictions. The
result was that on Rodriguez’s cross-examination Nieves and Santos impeached
him not with his prior convictions but by having him confirm that he was testifying
2
Rodriguez’s fiancée also came along, but she was never charged with passing
counterfeit currency.
3
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as part of a plea deal and by asking him about discrepancies between his testimony
and his initial statements to the police.
The government also called Fuentes as a witness. He stated that he had
personally seen Santos and Nieves pass counterfeit currency multiple times on
their East Coast trip. When he tried to testify that Jorge had told him that Santos
and Nieves had gone to Colombia to collect counterfeit bills, Santos objected. She
argued that admitting Jorge’s out-of-court statement implicating her would violate
Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968), because Jorge was
not available for cross-examination.3 The court overruled that objection and
allowed Fuentes to repeat Jorge’s statement.
In addition, the government offered circumstantial evidence that Santos and
Nieves had passed or possessed counterfeit currency. It presented security camera
footage of Santos visiting multiple Target stores within the span of an hour during
the East Coast trip. And it offered bank records showing that Nieves visited the
same cities as the others during the East Coast trip, and that she had traveled to
Colombia.
As evidence of its charge that Nieves individually had passed or attempted
to pass counterfeit currency (Count Four), the government called Joseph Aguilera,
3
Fabian and Jorge were unavailable to testify because they had been deported to
Colombia.
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a police officer with the Casselberry (Florida) Police Department. He testified that
he had been dispatched to a Casselberry Walmart because Nieves had attempted to
pass a counterfeit bill. When he arrived at the Walmart he took a statement from
Nieves, who claimed that the bad bill had come from her bank. During his
investigation at the Walmart, the Walmart manager gave Aguilera the counterfeit
bill, and Aguilera placed and sealed it in a signed evidence bag. During Aguilera’s
direct examination at trial, the government proffered that bill as evidence, and the
court admitted it over Nieves’ objection. The government did not call the Walmart
cashier who had received the counterfeit bill from Nieves.
Another government witness, Agent Jeffrey Seeger of the United States
Secret Service, described his investigation of the counterfeit currency ring. He
explained that an undercover buy from Fabian and searches of Fabian’s car, motel
room, and suitcases resulted in the seizure of over $280,000 in counterfeit
currency. He also testified that the serial number on the Casselberry Walmart
counterfeit bill matched the serial number of several counterfeit bills seized during
those searches.
After the government’s case in chief, Santos testified in her own defense.
She stated that she had thought the East Coast trip had an innocent purpose and
that she didn’t know that the others were passing counterfeit bills. Nieves’ son and
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ex-boyfriend also testified; both stated that Nieves was never a member of any
counterfeit currency ring.
After both sides rested, the district court instructed the jury that it could find
that the defendants “knowingly” possessed and attempted to pass counterfeit
currency if the evidence proved beyond a reasonable doubt that the defendants had
every reason to know the counterfeit nature of the bills but deliberately shut their
eyes to that fact. The court overruled Santos’ objection to that “deliberate
ignorance” instruction. The jury found Santos and Nieves guilty on all counts.
Nieves’ presentence investigation report (PSR) found her responsible for
$289,200 in loss — the total amount of counterfeit currency the government had
seized from the conspirators during its investigation. It also found that part of
Nieves’ offense took place outside the United States, triggering a two-level
increase to her offense level. See United States Sentencing Guidelines
§ 2B5.1(b)(5) (Nov. 2015). Nieves objected to both findings. At Nieves’ sentence
hearing the government called Agent Seeger to support the PSR’s
recommendations; he testified that Fabian had told him that Nieves had brought
back $176,000 in counterfeit currency over the course of two trips to Colombia.
The district court adopted the PSR in full. It calculated Nieves’ advisory
guidelines range to be 46 to 57 months and sentenced her to 46 months
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imprisonment. Santos, who had been charged with and convicted of one count less
than Nieves and whose specific offense characteristics did not include having
committed an “offense outside the United States” was sentenced to 7 months
imprisonment.
II.
We first address Santos’ contention that there was insufficient evidence for
the jury to find her guilty of conspiracy to pass or attempt to pass or possess
counterfeit currency (Count One), and possession of counterfeit currency (Count
Two). Santos did not make a renewed motion for a judgment of acquittal at the
close of trial, so we review her challenge to the sufficiency of the evidence only for
a manifest miscarriage of justice. United States v. House, 684 F.3d 1173, 1196
(11th Cir. 2012). That means that we will affirm her conviction unless “the
evidence on a key element of the offense is so tenuous” that the conviction is
“shocking.” Id.Santos details the evidence that, in her view, points to her innocence. But “it
is not enough for a defendant to put forth a reasonable hypothesis of innocence,
because the issue is not whether a jury reasonably could have acquitted but
whether it reasonably could have found guilt beyond a reasonable doubt.” United
States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006), abrogated on other
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grounds as recognized in United States v. DiFalco, — F.3d —, No. 15-14763, 2016
WL 5092599 (11th Cir. Sept. 20, 2016). She fails to address the overwhelming
direct and circumstantial evidence that the government presented at trial. For
example, Rodriguez and Fuentes testified about Santos’ actual knowledge of, and
active participation in, the scheme, including her remark that Target was “an easy
target” for passing counterfeit bills. And security camera footage showed her
visiting in a short period of time multiple Target stores that reported receiving
counterfeit bills. In light of that evidence, there is nothing “shocking” about her
convictions, and there was no manifest miscarriage of justice.
Santos also contends that the district court erred by allowing Fuentes to
testify that Jorge had told him that Santos and Nieves were going to Colombia to
bring back counterfeit currency. Because Jorge was unavailable for cross-
examination, Santos asserts that testimony about his out-of-court statements
violated Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968). We review
“issues concerning a district court’s evidentiary rulings, such as the Bruton claim
here, for abuse of discretion . . . .” United States v. Turner, 474 F.3d 1265, 1275
(11th Cir. 2007).
In Bruton the Supreme Court held that the Confrontation Clause of the Sixth
Amendment generally bars admitting a codefendant’s confession inculpating the
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defendant unless that codefendant is subject to cross-examination. 391 U.S. at
126, 88 S. Ct. at 1622. That rule does not apply here for two reasons.
First, Bruton applies only “in the context of a joint trial.” Id. at 137, 88 S.
Ct. at 1628; see Dutton v. Evans, 400 U.S. 74, 87, 91 S. Ct. 210, 219 (1970)
(distinguishing Bruton on the ground that the defendant was not tried jointly with
the confessor). While Santos was tried jointly with Nieves, she was not tried
jointly with Jorge, so Bruton does not apply to the admission of Jorge’s out-of-
court statements at Santos’ trial.
Second, this Court has held that the admission of a co-conspirator’s
statement made in furtherance of the conspiracy does not violate Bruton. United
Sates v. Ayarza-Garcia, 819 F.2d 1043, 1049 (11th Cir. 1987), superseded by
statute on other grounds by 46 U.S.C. app. § 1903(f); see also Dutton, 400 U.S. at
87, 91 S. Ct. at 219 (holding that a Georgia evidence rule allowing admission of
co-conspirators’ statements did not violate the Confrontation Clause). Here,
Jorge’s statement was admitted on the ground that it was not hearsay because it
was a co-conspirator’s statement made in furtherance of a conspiracy, and Santos
does not challenge that ruling. That means that under our Ayarza-Garcia decision
Bruton does not bar admission of the challenged statement.
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Santos’ final contention is that the district court erred by instructing the jury
that it could find that she acted “knowingly” if it found that she was “deliberately
ignorant.” But “[w]e need not decide whether evidence justified the deliberate
ignorance instruction, because our decision in United States v. Stone, 9 F.3d 934(11th Cir. 1993), says that it does not matter.” United States v. Kennard, 472 F.3d
851, 858 (11th Cir. 2006). That is because an errant deliberate ignorance
instruction is harmless if the jury could have convicted on a sufficiently supported
theory of actual knowledge. Id.In addition to circumstantial evidence of Santos’ actual knowledge of the
counterfeit currency scheme, Rodriguez and Fuentes testified about her actual
knowledge of the scheme and recounted her statement that it was easy to target
Target. So, even assuming the deliberate ignorance instruction was in error, the
error was harmless because the jury had sufficient evidence to find that Santos had
actual knowledge.
III.
Having disposed of all of Santos’ contentions, we now turn to Nieves’
appeal.
A.
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Nieves first contends that there was insufficient foundation to admit into
evidence the Casselberry Walmart counterfeit $100 bill and that the bill was not
relevant evidence. We review a district court’s evidentiary rulings for abuse of
discretion, United States v. Dortch, 696 F.3d 1104, 1110 (11th Cir. 2012), and
there was no abuse here.
Under Federal Rule of Evidence 901(a), proffered evidence must be
authenticated before admission by “evidence sufficient to support a finding that the
item is what the proponent claims it to be.” Importantly, the proponent need only
make out a prima facie case that the evidence is what he says it is; after that, the
ultimate question of authenticity is left to the jury. United States v. Belfast, 611
F.3d 783, 819 (11th Cir. 2010).
Nieves argues that the government failed to lay the proper foundation for the
Casselberry Walmart bill because it did not put on testimony that the proffered bill
was the one that she actually handed to a Walmart cashier. But that argument
ignores all of the circumstantial evidence that linked Nieves to the proffered bill.
Aguilera testified that he received the counterfeit bill from the Walmart’s manager
and that Nieves admitted to having tried to pay with a bill that turned out to be “not
good.” He also connected the bill he received that day to the bill offered into
evidence by noting that he had placed the counterfeit note in the same evidence
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bag that was presented at trial. And through their matching serial numbers, Agent
Seeger linked the proffered bill to other counterfeit bills that had been seized
during the investigation of the conspiracy. That evidence, taken together,
established a prima facie case that the bill was what the government claimed it
was, and the district court properly admitted it.
Nieves’ argument that the bill was not relevant is also based on her assertion
that the government’s evidence did not directly link the proffered bill to the
counterfeit bill she was accused of passing. Under Federal Rule of Evidence 401,
evidence is relevant if “it has any tendency to make a fact more probable” than it
would be without the evidence and the “fact is of consequence in determining the
action.” Here, the matching serial numbers on the proffered bill and other bills
seized from the conspiracy establish its relevance because they make it more
probable that Nieves took part in the counterfeit currency conspiracy. The district
court acted within its discretion when it admitted the proffered bill.
B.
Nieves next challenges the district court’s decision to exclude Rodriguez’s
conviction history; she had intended to use the convictions to impeach him on
cross-examination. As an evidentiary ruling, we review that district court ruling
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for abuse of discretion. United States v. Pritchard, 973 F.2d 905, 908 (11th Cir.
1992).
Federal Rule of Evidence 609 creates a presumption against admissibility for
convictions when the witness was convicted or released more than ten years before
he testifies. Evidence of those convictions is barred unless its probative value
“substantially outweighs” its prejudicial effect. Fed. R. Evid. 609(b)(1). The
upshot is that “such convictions will be admitted very rarely and only in
exceptional circumstances.” Pritchard, 973 F.3d at 908 (quotation marks omitted).
And in the exceptional case where the district court does not admit a ten-year-old
conviction that should have been admitted, the error is harmless “if the witness’
credibility was sufficiently impeached by other evidence . . . .” United States v.
Burston, 159 F.3d 1328, 1336 (11th Cir. 1998).
All of Rodriguez’s convictions were over ten years old, and the district court
did not abuse its discretion in finding that this was not an exceptional circumstance
warranting their admission.4 Indeed, the probative value was especially slim here
because Nieves was able to impeach Rodriguez’s credibility in other ways,
including bringing up his plea deal with the prosecution and the discrepancies
4
As stated above, the Rule 609(b) presumption does not apply to convictions where the
witness was released within ten years of his testifying, even if his conviction was earlier. But
Nieves has not asserted that Rodriguez was released within the ten year window, and we do not
address that possibility.
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between his initial statements and his testimony. That also means that, even if the
district court had erred by excluding the prior convictions, the error would have
been harmless because Rodriguez was sufficiently impeached by other evidence.
C.
Nieves also contends that the district court erred by not granting her renewed
motion for a judgment of acquittal after the jury’s verdict. We review de novo a
district court’s post-trial ruling on a renewed motion for a judgment of acquittal,
but we make all reasonable inferences in the government’s favor. United States v.
Edouard, 485 F.3d 1324, 1349 (11th Cir. 2007). Furthermore, all credibility
determinations are for the jury to make, and we assume that it made them in a way
that supports the verdict. Thompson, 473 F.3d at 1142.
The thrust of Nieves’ argument is that Rodriguez’s and Fuentes’ testimony
was not credible because they were co-conspirators who received plea agreements
in exchange for their testimony. Without that testimony, she asserts, there was
insufficient evidence to prove that she knew the unlawful purpose of the
conspiracy and willfully joined it (Count One) or that she willfully possessed
counterfeit currency with intent to defraud (Count Two). But because we must
assume that the jury found that testimony credible, there was more than enough
evidence to support those convictions.
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Nieves also asserts that the government did not present sufficient evidence
regarding her mental state to convict her on Count Four, which charged her with
knowingly passing or attempting to pass counterfeit currency. She argues that
there was no evidence that she knew the Casselberry Walmart bill was counterfeit
and no evidence that she intended to defraud. Here again she relies on the fact that
the government did not call a witness who directly received the proffered bill from
her. A reasonable jury could infer, however, that Nieves passed that bill because
its serial number matched the serial numbers of other counterfeit bills seized
during the investigation of the conspiracy. A reasonable jury could find that
Nieves knew that the bill, like all of the bills held by the conspirators, was
counterfeit, and that she tried to pass the bill with the intent to defraud. The
evidence also showed that Nieves followed the conspiracy’s MO after being caught
— offering authentic currency and blaming her bank — which could lead a
reasonable jury to find that she had both knowledge and intent. The evidence,
therefore, was sufficient to sustain the verdict.
D.
Finally, Nieves challenges her sentence on four grounds. We will address
each in turn. First, Nieves contends that the district court erred by increasing her
offense level by two levels because it found that part of the offense occurred
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outside the United States. We review that factual finding for clear error, United
States v. Williams, 340 F.3d 1231, 1234–35 (11th Cir. 2003), and we hold that it
was not clearly erroneous. Rodriguez testified at trial that Nieves went to
Colombia twice to bring back counterfeit currency, and bank records introduced
into evidence showed that she was in Colombia when he said she was. That was
enough for the district court to find by a preponderance of the evidence that part of
her offense occurred outside the United States. 5
Nieves also challenges the increase in her offense level on due process
grounds. She points to the out-of-court statement by Fabian, repeated at the
sentence hearing by Agent Seeger, that she smuggled $176,000 of counterfeit
currency from Colombia into the United States. While she concedes that hearsay
is admissible at sentencing, see United States v. Ghertler, 605 F.3d 1256, 1269
(11th Cir. 2010), Nieves argues that basing her sentence on such “unreliable”
evidence violated her right to due process.
We review de novo constitutional challenges to sentences. Id. at 1268.
Nieves is correct that “[a] defendant has a due process right . . . not to be sentenced
based on false or unreliable information.” Id. at 1269. But the burden is on the
5
Nieves repeatedly asserts that the district court failed to make specific factual findings
at sentencing. That is incorrect. The court adopted the PSR’s factual findings as its own.
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defendant to show “(1) that the challenged evidence is materially false or
unreliable and (2) that it actually served as the basis for the sentence.” Id.Nieves has not met her burden. She argues that the statement was not
reliable because it was hearsay, but she does not account for the evidence at trial
that corroborated the statement, including Rodriguez’s testimony about her trips to
Colombia and Nieves’ bank statements showing she was there. That corroboration
established the reliability of Fabian’s statement. And she can point to nothing in
the record that suggests that the court “based” its increase on Fabian’s statement,
as opposed to on the evidence of Nieves’ trips to Colombia presented at trial.
Second, Nieves challenges the district court’s loss calculation, which we
review for clear error. United States v. Baldwin, 774 F.3d 711, 727 (11th Cir.
2014). She argues that she was only personally responsible for $221,000 of loss,
so the district court erred when it attributed over $250,000 in loss to her. The
higher loss calculation increased her offense level by 12 instead of 10. But Nieves’
personal responsibility is beside the point because at sentencing “[a] defendant
may be held responsible for the reasonably foreseeable acts of [her] co-
conspirators . . . .” Id. The district court pegged the loss amount at $289,200
because that was the amount of loss caused by the conspiracy as a whole. At trial
the government showed that Nieves’ actions, including smuggling counterfeit bills
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from Colombia and taking part in the East Coast spending spree, put her at the
heart of the conspiracy. Her co-conspirators’ conduct, then, was reasonably
foreseeable to Nieves and it was not clear error to hold her responsible for it at
sentencing.
Nieves also asserts that the district court based its loss calculation on
Fabian’s out-of-court statement that she brought back $176,000 from Colombia.
She repeats her argument that using Fabian’s statement at sentencing violated her
right to due process. But she again misunderstands the basis of the loss
calculation. The total loss of $289,200 was based on the amount of counterfeit
currency seized by the government during its investigation, not on Nieves’ own
conduct. Fabian’s statement was not relevant to the calculation, so Nieves’ due
process rights were not implicated.
Third, Nieves contends that the district court should have departed or varied
downward from the guidelines range because she had a minor daughter with an
abusive father. As an initial matter, we lack jurisdiction to review a district court’s
discretionary denial of a downward departure, United States v. Moran, 778 F.3d
942, 982 (11th Cir. 2015), so we will address only her downward variance
argument.
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The district court is accorded “considerable discretion” in deciding whether
the sentencing factors at 18 U.S.C. § 3553(a) justify a variance. United States v.
Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009). And we will overturn the court’s
decision only if it abused that discretion. United States v. Pugh, 515 F.3d 1179,
1191 (11th Cir. 2008). That would require a “clear error in judgment” resulting in
a sentence “outside the range of reasonable sentences dictated by the facts of the
case.” Id.The district court’s denial of the variance was not an abuse of discretion. It
considered that Nieves had a minor daughter, but it also considered that she left her
minor daughter for an extended period of time while she traveled the country
passing counterfeit bills. The balancing of those two factors was within the court’s
discretion, and its conclusion that Nieves was not entitled to a downward variance
was not an error in judgment.
Finally, Nieves contends that the district court erred by not granting a
downward variance in light of the unwarranted disparity in sentences between her
and her codefendants. The same abuse of discretion standard applies here. Shaw,
560 F.3d at 1238.
A disparity in sentences between codefendants in a single case is “generally
not an appropriate basis for relief on appeal.” United States v. Cavallo, 790 F.3d
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1202, 1237 (11th Cir. 2015). And it is not an appropriate basis here. Four of
Nieves’ co-conspirators — Fabian, Jorge, Rodriguez, and Fuentes — pleaded
guilty and cooperated with the government, justifying their shorter sentences.
Santos went to trial, but there were at least two reasons for the court to give her a
lighter sentence. First, because she was not involved in the Casselberry Walmart
incident, she was convicted of one less count than Nieves. Second, there was little
evidence that Santos actually smuggled counterfeit currency in from Colombia,
and as a result she did not receive an increase in her offense level for part of the
offense having occurred outside the United States. There were no unwarranted
sentencing disparities here.
AFFIRMED.
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