United States v. Enkeleon Manati

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15294
________________________
D.C. Docket No. 1:13-cr-00338-CAP-RGV-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ENKELEON MANATI,
a.k.a. Keli,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 14, 2017)
Before JORDAN and JULIE CARNES, Circuit Judges, and VINSON, * District
Judge.
*
The Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
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PER CURIAM:
Enkeleon Manati appeals his convictions on one count of conspiracy to
engage in alien smuggling for the purpose of financial gain, in violation of
8 U.S.C. § 1324(a)(1)(A)(v)(I), and alien smuggling for the purpose of financial
gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2. Mr. Manati
argues that the district court improperly admitted several pieces of evidence and
improperly limited defense counsel’s cross-examination of a key witness. He also
asserts that his trial counsel rendered ineffective assistance by failing to object to
the government’s motion in limine with respect to an immigration judge’s
credibility finding. Following oral argument and a review of the record, we affirm
Mr. Manati’s convictions and sentence.
I
Because we write for the parties, we assume their familiarity with the
underlying record and recite only what is necessary to resolve this appeal.
Lush Gjura contacted Mr. Manati for assistance in bringing his nephew,
Daniel Gjura, to the United States from Albania. Lush testified that he received
Mr. Manati’s information from his cousin, Artu Gjura. Mr. Manati agreed to bring
Daniel to the United States for $24,000. Mr. Manati instructed Lush to tell Daniel
to move to Greece, where he did not need to obtain a visa before entering the
United States. Daniel traveled to Greece, where he stayed for approximately
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two-and-a-half months. Mr. Manati put Daniel in touch with Matrona Koulga, who
Mr. Manati had met through an individual named Vassily. Ms. Koulga assisted
Daniel with fraudulently obtaining a Greek identification card and passport.
Majlinde Marku testified that Ms. Koulga and two other individuals in
Greece helped her come to the United States. She further testified that she was to
pay Ms. Koulga approximately $24,000 upon arriving in the United States, and that
Ms. Koulga had arranged for all of her travel. Ms. Marku testified that she never
spoke to or met with Mr. Manati.
On April 25, 2013, Daniel, Ms. Marku, and Ms. Koulga traveled together
from Greece, arriving at the Atlanta airport five days later. Both Daniel and
Ms. Marku presented false Greek passports upon arrival and initially lied about
their nationality to Customs and Border Patrol officers. Daniel and Ms. Marku
were detained, and eventually admitted the truth during a second interview with
CBP officers. Daniel and Ms. Marku both applied for asylum, but were denied.
After a three-day trial, the jury convicted Mr. Manati on one count of
conspiracy to engage in alien smuggling (Count One) and one count of alien
smuggling of Daniel (Count Two). The jury acquitted Mr. Manati on the third
count, which charged him with alien smuggling involving Ms. Marku. The district
court sentenced Mr. Manati to 24 months’ imprisonment as to Count One, and
36 months’ imprisonment as to Count Two, to run concurrently.
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II
We review the district court’s evidentiary rulings for an abuse of discretion.
See United States v. Bradley, 644 F.3d 1213, 1270 (11th Cir. 2011). But where “a
defendant fails to preserve an evidentiary ruling by contemporaneously objecting,
our review is only for plain error.” United States v. Turner, 474 F.3d 1265, 1275
(11th Cir. 2007). To demonstrate plain error, a defendant must show that there was
“(1) an error (2) that is plain and (3) that has affected the defendant’s substantial
rights; and if the first three prongs are satisfied, [we] may exercise [our] discretion
to correct the error if (4) the error seriously affects the fairness, integrity[,] or
public reputation of judicial proceedings.” United States v. Madden, 733 F.3d
1314, 1320 (11th Cir. 2013) (internal alterations and citation omitted).
III
Mr. Manati asserts four evidentiary arguments on appeal: (1) the district
court plainly erred by admitting prior statements made by Daniel and Ms. Koulga
to federal officers in a detention cell at the Atlanta airport; (2) the district court
abused its discretion by admitting Ms. Koulga’s testimony regarding jail telephone
conversations with Vassily and Mr. Manati’s wife; (3) the district court abused its
discretion by admitting Lush’s testimony regarding statements made by his cousin,
Artu; and (4) the district court abused its discretion by limiting Daniel’s
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cross-examination regarding the immigration court’s finding that Daniel was not
credible. We address each claim in turn.
A
Mr. Manati first argues that the district court improperly admitted prior
statements made by Daniel and Ms. Koulga to federal officers after being detained
at the airport.
During a second interview with CBP officers, Daniel admitted his real name,
that he was Albanian, that his Greek passport was fraudulent, that he had been
assisted in Greece by Ms. Koulga and two others, and that he had been assisted by
Mr. Manati, who was to be paid approximately $24,000 by his uncle. The second
interview was recorded, and a portion of that interview—approximately five to ten
minutes—was played for the jury and a transcript from that portion was entered
into evidence. The district court also read a cautionary instruction regarding the
transcript at the time the recording was played. Mr. Manati did not object to the
admission of the recording or the transcript.
The prior statement of Ms. Koulga at issue here was not recorded, but was
introduced via Special Agent Martin Kautz. He testified that during her second
interview, Ms. Koulga provided him with the phone number of the person she was
meeting at the airport, known to her as “Keli.” Mr. Manati did not object to this
testimony either.
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Because Mr. Manati failed to object to the introduction of this evidence, we
review for plain error. Under Rule 801(d)(1)(B), “a prior consistent statement by a
witness is not hearsay if (1) the declarant testifies at the trial or hearing and is
subject to cross-examination concerning the statement, and (2) the statement is
consistent with the declarant’s testimony and is offered to rebut an express or
implied charge against the declarant of recent fabrication or improper influence or
motive.” United States v. Prieto, 232 F.3d 816, 819 (11th Cir. 2000). Prior
consistent statements, however, “must have been made before the alleged influence
or motive to fabricate arose.” Id.
Mr. Manati argues only that the statements of Daniel and Ms. Koulga were
not admissible as prior consistent statements because there was a motivation for
Daniel and Ms. Koulga to fabricate their stories. Specifically, when these
statements were made, Daniel and Ms. Koulga had spent the night in custody and
understood that they could be prosecuted for their actions.
Statements made after an arrest, however, “are not automatically and
necessarily contaminated by a motive to fabricate in order to curry favor with the
government”—to hold otherwise “would effectively swallow the rule with respect
to prior consistent statements made to government officers[.]” Id. at 821 (internal
alteration and citation omitted). Indeed, we have identified other, less
self-interested, motivations for disclosing past criminal acts, such as one’s
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conscience, religious beliefs, or remorse. See id. Because we have declined to draw
a bright line rule regarding statements made to government officials following
arrest, and given that the question of “whether a witness had a motive to fabricate
when prior consistent statements were made is plainly a question of fact to be
resolved by the trial court based precisely on the particular circumstances of an
individual case,” id., we cannot say that the admission of Daniel’s and
Ms. Koulga’s prior statements constituted plain error.
B
Mr. Manati next argues that the district court abused its discretion by
admitting Ms. Koulga’s testimony regarding a series of jail phone calls with
Vassily and Mr. Manati’s wife. During her testimony, Ms. Koulga explained that
she promised Vassily that she would not testify against Mr. Manati in exchange for
a $5,000 payment, and that Vassily and Mr. Manati’s wife agreed to those terms
and paid her the money. She further testified that Mr. Manati was afraid “[b]ecause
the lawyer of Mr. Manati [was] screaming don’t pay,” and “if they find he was
involved also, [he] has a problem like me.” D.E. 93-3 at 69. Following objection
by Mr. Manati’s counsel, the government argued that the statements were made by
members of the conspiracy, as a continuation of and in furtherance of the
conspiracy. The district court made no specific findings, but overruled the
objection.
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Here, even assuming the district court erred by admitting Ms. Koulga’s
testimony, such error was harmless. See Fed. R. Crim. P. 52(a) (“Any error . . . that
does not affect substantial rights must be disregarded.”); United States v. Bradley,
644 F.3d 1213, 1270 (11th Cir. 2011) (“Even if a ruling constitutes an abuse of
discretion, it will result in reversal only if the error was not harmless[,] [meaning]
there is a reasonable likelihood that it affected the defendant’s substantial rights.”)
(internal alterations and citation omitted). The evidence presented against
Mr. Manati was substantial if not overwhelming. See United States v. Guzman, 167
F.3d 1350, 1353 (11th Cir. 1999) (“Overwhelming evidence of guilt is one factor
that may be considered in finding harmless error.”).
Specifically, the government introduced significant evidence to convict
Mr. Manati of conspiracy to engage in alien smuggling and the alien smuggling of
Daniel, including testimony from Lush Gjura, Amarilda Gjura, Amorido Gjura,
and Daniel Gjura that Lush and Mr. Manati had agreed Mr. Manati would bring
Daniel to the United States for $24,000; car rental records and airport surveillance
footage showing that Mr. Manati met the Gjuras and the Markus at the Atlanta
airport (and Mr. Manati stipulated that he was at the airport on the date Daniel
arrived); phone records establishing that Lush and Mr. Manati spoke frequently
between November of 2012 (when Lush first contacted Mr. Manati) until the date
Daniel arrived at the airport with Ms. Koulga and Ms. Marku; phone records
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corroborating Daniel’s story that he called Mr. Manati from Greece to ask why the
process was taking so long; Daniel’s testimony that he went to Greece on
Mr. Manati’s instruction and contacted Ms. Koulga through the phone number
provided by Mr. Manati; Ms. Koulga’s testimony regarding her role in obtaining
fraudulent Greek documents and traveling with individuals as needed, and that she
was paid by Mr. Manati to do so; and travel records corroborating testimony from
Daniel and Ms. Koulga regarding their trip from Greece to Atlanta, as well as
Ms. Koulga’s testimony regarding other individuals she and Mr. Manati had
previously smuggled.
Mr. Manati argues that the evidence against him was not overwhelming
because he denied the allegations, he offered five character witnesses, a search of
his home yielded no evidence of international alien smuggling, and Ms. Marku and
her family testified that they did not know him and he was acquitted of smuggling
Ms. Marku. Given the evidence presented, however, we disagree with
Mr. Manati’s view of the record. We cannot conclude, from the record as a whole,
that the admission of Ms. Koulga’s statements—even those potentially implicating
Mr. Manati in an attempt to bribe a witness—“had a ‘substantial influence’ on the
outcome of the proceeding.” Bradley, 644 F.3d at 1270.
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C
Mr. Manati also argues that the district court abused its discretion by
permitting Lush to testify that his cousin Artu gave him Mr. Manati’s phone
number and told him that Mr. Manati “has helped me before and I think he will
help you, too.” We agree with the district court’s conclusion that this statement
was not hearsay because it was not offered to prove the truth of the matter asserted,
but rather to explain Lush’s subsequent course of conduct in contacting
Mr. Manati, seeking his help in bringing Daniel to the United States, and agreeing
to pay him $24,000 to do so. See United States v. Tokars, 95 F.3d 1520, 1535 (11th
Cir. 1996) (statements offered to explain course of conduct were not offered to
prove the truth of the matter asserted and therefore were not hearsay). Moreover,
Mr. Manati’s counsel did not request a curative instruction after the district court
ruled on his objection. We therefore see no abuse of discretion in the district
court’s admission of this statement.
D
Mr. Manati finally argues that the district court abused its discretion by
limiting his trial counsel’s cross-examination of Daniel regarding the immigration
judge’s finding that he was not credible in denying his asylum application. Before
trial, the government filed a motion in limine seeking to exclude Mr. Manati from
referencing the immigration judge’s credibility finding, and Mr. Manati’s trial
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counsel agreed that it was inadmissible. The district court granted the
government’s motion. During trial, however, Mr. Manati’s trial counsel argued that
the door had been opened to question Daniel about the credibility finding based
upon CBP Officer Corey Lee Chaney’s testimony about Daniel’s “credible fear” of
returning to Albania, and Daniel’s testimony that his life was in danger in Albania.
Mr. Manati argues on appeal that the immigration judge’s credibility finding was
admissible under Rule 106 and Rule 608(b). 1
We have not located any binding precedent on this issue, and there appears
to be a split among those circuits that have addressed it. See, e.g., United States v.
Woodward, 699 F.3d 1188 (10th Cir. 2012) (permitting introduction of credibility
finding under Rule 608(b)); United States v. Cedeno, 644 F.3d 79 (2d Cir. 2011)
(same); United States v. Dawson, 434 F.3d 956 (7th Cir. 2006) (same); United
States v. Whitmore, 359 F.3d 609 (D.C. Cir. 2004) (same). Contra United States v.
Davis, 183 F.3d 231 (3d Cir. 1999) (concluding that credibility finding is
inadmissible extrinsic evidence under Rule 608(b)).
The government relies on our opinions in United States v. Jones, 29 F.3d
1549 (11th Cir. 1994), and United States Steel, LLC v. Tieco, Inc., 261 F.3d 1275
1
Rule 106 provides that “[i]f a party introduces all or part of a writing or recorded statement, an
adverse party may require the introduction . . . of any other part . . . that in fairness ought to be
considered at the same time.” Fed. R. Evid. 106. Rule 608(b) provides that “the court may, on
cross-examination, allow [extrinsic evidence to prove specific instances of a witness’ conduct to
attack or support the witness’ character for truthfulness] to be inquired into if they are probative
of the character for truthfulness or untruthfulness of . . . the witness[.]” Fed. R. Evid. 608(b).
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(11th Cir. 2001), for the proposition that another court’s credibility finding is not
admissible at trial. These civil cases, however, are not necessarily dispositive
because they do not squarely address the impeachment issue before us. See Jones,
29 F.3d at 1554 (determining that another court’s judgment containing findings of
fact and references to testimony could not be judicially noticed and is not
admissible under the Rule 803(8) public records exception); Tieco, 261 F.3d at
1286–88 (relying upon Jones to conclude that another court’s opinion containing
judicial findings was inadmissible as hearsay, and that it was unreliable and
misleading, causing a danger of prejudice under Rule 403).
But even assuming that the district court abused its discretion by limiting the
cross-examination, any error was harmless. See Bradley, 644 F.3d at 1270. First, it
is important to note that the immigration judge expressly stated that his credibility
finding was based on the fact that Daniel had used fraudulent travel documents and
provided false testimony to the government when he arrived. The jury heard that
same evidence. Moreover, the district court ruled that Mr. Manati’s counsel could
ask Daniel about his fears and the fact that he had applied for asylum, but was
denied. His counsel even responded, “Okay. That is fine. That is close enough.”
See D.E. 93-2 at 116. Because the jury heard that Daniel’s asylum claim was
denied, we cannot conclude that there is a reasonable likelihood that the inability
of Mr. Manati’s counsel to question Daniel regarding the credibility finding of the
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immigration judge—a finding based upon the same evidence heard by the jury—
affected Mr. Manati’s substantial rights. 2
IV
As for Mr. Manati’s related claim that his trial counsel rendered ineffective
assistance by failing to object to the government’s motion in limine seeking to
exclude the immigration judge’s credibility finding, he has failed to meet his heavy
burden of establishing that his counsel’s representation fell below an objective
standard of reasonableness. See Strickland v. Washington, 466 U.S. 668, 687–88,
691–92 (1984) (when “a convicted defendant complains of the ineffectiveness of
counsel’s assistance, the defendant must show that counsel’s representation fell
below an objective standard of reasonableness” and that this deficiency was
prejudicial to the defense.). Specifically, because there is no clear law in this
Circuit regarding whether another court’s credibility finding is admissible at trial,
we cannot say that “no competent counsel” would have declined to object to the
government’s motion. See Chandler v. United States, 218 F.3d 1305, 1315 (11th
2
For the same reason, we do not find that Mr. Manati’s Sixth Amendment rights were violated
because his counsel had the opportunity to question Daniel about his bias and motivations for
testifying for the government. See United States v. Van Dorn, 925 F.2d 1331, 1335 (11th Cir.
1991) (a defendant’s Sixth Amendment rights are not infringed where “the jury, through the
cross-examination that is permitted, [is] exposed to facts sufficient for it to draw inferences
relating to the reliability of that witness [and] the cross-examination conducted by defense
counsel [enables] him to make a record from which he could argue why the witness might have
been biased”).
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Cir. 2000) (en banc) (“[F]or a petitioner to show that [his counsel’s] conduct was
unreasonable, [he] must establish that no competent counsel would have taken the
action that his counsel did take.”).
V
For the reasons set forth above, Mr. Manati’s convictions and sentence are
affirmed.
AFFIRMED.
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