United States v. Jesus Hernando Angulo Mosquera

Case: 16-10261 Date Filed: 03/30/2018 Page: 1 of 52
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10261
________________________
D.C. Docket No. 8:14-cr-00379-CEH-TGW-5
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JESUS HERNANDO ANGULO MOSQUERA,
JUAN RODRIGUEZ ACOSTA,
ARLEY LOPEZ ENCISO,
EFRAIN BILBAO VARELA,
Defendants - Appellants.
________________________
No. 16-10313
________________________
D.C. Docket No. 8:14-cr-00379-CEH-TGW-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
Case: 16-10261 Date Filed: 03/30/2018 Page: 2 of 52
versus
JUAN RODRIGUEZ ACOSTA,
Defendant - Appellant.
________________________
No. 16-10381
________________________
D.C. Docket No. 8:14-cr-00379-CEH-TGW-6
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ARLEY LOPEZ ENCISO,
Defendant - Appellant.
________________________
No. 16-10414
________________________
D.C. Docket No. 8:14-cr-00379-CEH-TGW-4
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EFRAIN BILBAO VARELA,
2
Case: 16-10261 Date Filed: 03/30/2018 Page: 3 of 52
Defendant - Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(March 30, 2018)
Before MARCUS, MARTIN, and NEWSOM, Circuit Judges.
MARCUS, Circuit Judge:
In this large cocaine conspiracy, the appellants, Jesus Hernando Angulo-
Mosquera (“Angulo”), Juan Rodriguez-Acosta (“Acosta”), Efrain Bilbao-Varela
(“Varela”), and Arley Lopez-Enciso (“Lopez”), were charged, along with four
other co-conspirators, with conspiring to possess and possessing cocaine with
intent to distribute while aboard a vessel on the high seas and subject to United
States jurisdiction. Before trial the four other co-conspirators pled guilty, and at
trial they testified that all of the appellants knew there were drugs on the vessel
they sailed and all were knowing participants in the conspiracy. Angulo, alone
among the appellants, testified in his own defense. Each of the appellants was
convicted by the jury and each was sentenced to a 235-month prison term.
The appellants argue that the district court’s denial of their motions for a
new trial amounted to an abuse of the district court’s discretion because polygraph
evidence offered by Angulo in support of his claimed lack of knowledge
3
Case: 16-10261 Date Filed: 03/30/2018 Page: 4 of 52
prejudiced the remaining appellants in a joint trial and should have resulted in
severance. They also claim that the prosecutor improperly cross-examined
Angulo, that the district court erroneously allowed the introduction of hearsay
evidence, and that the court erred in not including a particular jury instruction
sought by Acosta, Varela, and Lopez. Finally, Varela and Acosta contest their
sentences.
We can discern no error, and, accordingly, affirm the judgments of the
district court.
I.
Angulo, Acosta, Varela, and Lopez were part of an eight-member crew on
board the Hope II, a Panamanian-flagged cargo ship that departed from Cartagena,
Colombia in August 2014 laden with nearly 1500 kilograms of cocaine secreted in
a hidden compartment. The other four crewmembers were Simon Bolivar
Ferreras-Trinidad, Euclides Tous-Calle, Manuel DeJesus Crespo-Marin, and
Emerson Julio Carcedo.
Three of the appellants -- Acosta, Varela, and Angulo -- had been working
on the Hope II for several months before the Coast Guard intercepted the vessel.
Acosta was the ship’s captain, Varela was its chief engineer, and Angulo claims to
have been the cook. One of the co-conspirators, Crespo-Marin, testified that the
August 2014 voyage was not the Hope II’s first drug run. Rather, the Hope II had
4
Case: 16-10261 Date Filed: 03/30/2018 Page: 5 of 52
sailed with cocaine at least one other time in February 2014, and according to
Crespo-Marin, the entire crew for that voyage, including Acosta, Varela, and
Angulo, had been involved in the drug conspiracy. Prior to that run, a secret
compartment to house the drugs was built inside a fuel tank beneath the hallway
outside the crew’s cabins.
While the Hope II was undergoing repairs after the first run, the crew was
told about an opportunity to participate in another drug run with about twice the
cargo of cocaine; each crewmember would net between 50 and 120 million pesos
for undertaking the task. Ferreras-Trinidad testified that everyone, including the
four appellants, agreed to take part in the enterprise. Ferreras-Trinidad and Tous-
Calle added that Angulo used the ship’s crane to load some 61 boxes of cocaine
onto the Hope II while Varela directed him from the deck, and Ferreras-Trinidad
testified that Lopez detached the boxes from the crane when they got to the ship.
The crew also stored some empty rice bags in the steering room -- a type of bag
often used to facilitate the delivery of drugs.
On August 28, 2014, a maritime patrol aircraft spotted the Hope II traveling
in an area of “known drug-smuggling activity” some 47 nautical miles north of San
Blas, Panama. The aircraft reported to a Coast Guard ship that it had encountered
a vessel acting in a suspicious manner: the ship was seen changing course as soon
as the aircraft approached, and its automated information system -- which
5
Case: 16-10261 Date Filed: 03/30/2018 Page: 6 of 52
broadcasts the ship’s last port of call, next port of call, and purpose -- was not
active. A Coast Guard cutter hailed the Hope II and ultimately boarded it. Co-
conspirator Tous-Calle testified that not long before the Hope II was boarded,
Acosta tried to call someone on a satellite phone and ordered Tous-Calle to throw
the phone overboard when the call did not go through “[s]o that it would not be
seized.”
Six Coast Guard personnel boarded the ship and began to conduct a safety
sweep. They asked the captain, Acosta, to muster the crew on deck, and to
produce documentation for the ship and its crew, along with the crew’s passports.
The Coast Guard then conducted an “at-sea space accountability” inspection -- a
visual inspection of “every single square inch of the vessel” to look for hidden
compartments and drugs. They discovered the empty rice bags in the steering
room, which added to their suspicions, because this kind of bag is often associated
with contraband. Coast Guard personnel also discovered that the ship’s automated
information system worked but had been switched off. During the inspection, co-
conspirator Carcedo overheard Varela warn Acosta that the Coast Guard was “right
on top of the secret compartment.”
The Coast Guard eventually found a hatch in the middle of the berthing area
hallway that had been covered by two mats: a black rubber mat placed on top and a
“welcome” mat found underneath. Coast Guard personnel assumed the hatch led
6
Case: 16-10261 Date Filed: 03/30/2018 Page: 7 of 52
to a fuel hold, but one officer became suspicious because of its unusual location
near the berthing area. Closer inspection revealed other oddities: the hatch was not
airtight, which is highly unusual for a fuel hold; some of the bolts holding the
hatch closed were shiny, indicating they had been manipulated recently; and there
was caulking discerned around the access plate, which is not typically used for a
fuel hold. The officer opened the hatch just a little bit to see if he could smell any
fuel. Once he determined that he could not, he opened the hatch fully. Inside, the
Coast Guard found 1483 kilograms of cocaine. Ion scans of the ship also revealed
trace amounts of cocaine on the crane and in the galley area of the ship.
The crew was arrested, brought to Tampa, and each was indicted in the
United States District Court for the Middle District of Florida for possessing
cocaine with the intent to distribute while aboard a vessel subject to United States
jurisdiction, under 46 U.S.C. §§ 70503(a) and 70506(a), and 21 U.S.C.
§ 960(b)(1)(B); and for conspiracy to possess cocaine with the intent to distribute,
under 46 U.S.C. §§ 70503(a) and 70506(a)–(b), and 21 U.S.C. § 960(b)(1)(B)).
Four of the co-conspirators -- Ferreras-Trinidad, Tous-Calle, Crespo-Marin,
and Carcedo -- pled guilty. One of them, Crespo-Marin, testified that after
pleading guilty and returning to the holding area, Angulo came up to him and they
had “a verbal fight.” Angulo allegedly called Crespo-Marin a traitor, which
Crespo-Marin took to be a reference to his decision to plead guilty. According to
7
Case: 16-10261 Date Filed: 03/30/2018 Page: 8 of 52
Crespo-Marin, Angulo also said “that he [Angulo] was a man that demanded
respect,” and then Angulo threatened him by saying “[y]ou don’t know who I am.”
Another co-conspirator, Ferreras-Trinidad, testified that Angulo and Varela
“threatened to kill [him] 50 times over,” observing “that [he] know[s] how
[pleading guilty] is rewarded in Colombia,” and that when Ferreras-Trinidad pled
he “became a rat.” A third co-conspirator, Carcedo, added that Angulo told him he
had thrown away the gloves and clothing he had worn while loading the drugs on
board the ship in order to dispose of any evidence against him. An unrelated
prisoner, Jose Yamir Lopez-Marrero, testified that while the crew was incarcerated
at Pinellas County Jail awaiting trial, Varela explained the Hope II operation to
him, including that the vessel had been headed for San Andrés Island where the
crew intended to drop off the dope and then sail on to Costa Rica in order to pick
up a load of gravel.
For his part, Angulo swore before the jury that he never threatened anyone,
and offered an entirely different version of the “verbal fight” with Crespo-Marin.
According to Angulo, Crespo-Marin had been rude to him, and Angulo simply
responded, “[b]e respectful to me because I’ve always been respectful to you.” In
fact, Angulo testified that it was Crespo-Marin who exclaimed that Angulo “didn’t
know who he [Crespo-Marin] was.” As Angulo told it, this altercation had nothing
to do with the criminal proceedings.
8
Case: 16-10261 Date Filed: 03/30/2018 Page: 9 of 52
Before trial, Lopez moved to sever his trial from Angulo’s, based solely on
the possible introduction by Angulo of rehabilitative polygraph evidence. Lopez
claimed that the polygraph evidence would prejudice him because the jury might
well assume that he either refused to take a lie detector test or, maybe, had failed a
similar exam. The district court denied the motion to sever, explaining that
severance in a conspiracy trial is particularly disfavored, that none of the
exceptional reasons for severance applied in this case, and that a limiting
instruction would cure any potential prejudice. During trial, Lopez renewed his
motion to sever; Acosta and Varela joined in the application. Again, the trial court
denied the motion.
Trial began on June 8, 2015. However, at the conclusion of the
Government’s case a mistrial was declared because one of the Government’s
witnesses commented on Acosta’s decision not to testify, which, the trial court
ruled, was a violation of Acosta’s Fifth Amendment rights.
The re-trial began on October 13, 2015. Angulo testified. On direct
examination, he swore that he did not know that there were any drugs on the
vessel, had not been told anything about any drugs when he was hired or at any
point thereafter, and had not been involved with the drug shipment in any way.
Angulo also said that he had never before heard of the Hope II’s prior drug run.
He offered that he had only done maintenance work on the ship and later cooked
9
Case: 16-10261 Date Filed: 03/30/2018 Page: 10 of 52
for the crew. He further observed that he had been in the process of obtaining a
new mariner’s license to replace his expired one. Finally, Angulo testified that he
had never been convicted of a crime and that he had no criminal record involving
narcotics, but acknowledged that he had been detained once before in the Bahamas
in 1998.
On cross examination, the prosecutor elicited details surrounding Angulo’s
prior detention, which had involved a load of drugs found on another ship, and
questioned him further about his role on the Hope II. Angulo then called as a
rehabilitative witness a polygraph examiner he had hired to conduct a polygraph
test in preparation for trial. The polygrapher did not testify about the substance of
the examination, but did opine that Angulo had been “truthful when [he had] tested
him on November 6th.”
The jury deliberated for only two hours before finding all four defendants
guilty on both counts. The district court denied the motion for a new trial, and
sentenced each defendant who went to trial to a 235-month term of imprisonment
on each of the counts, to be served concurrently, followed by a 5-year period of
supervised release. As for the four co-conspirators who had pled guilty and
testified on behalf of the Government, the court sentenced each of them to a 63-
month term of imprisonment, followed by a 5-year period of supervised release.
10
Case: 16-10261 Date Filed: 03/30/2018 Page: 11 of 52
Angulo, Acosta, Varela, and Lopez now timely appeal from their
convictions, and Acosta and Varela appeal from their sentences.
II.
The appellants argue that numerous prejudicial errors infected their trial,
and, therefore, that the district court abused its discretion when it denied their
motions for a new trial. We can discern no abuse of discretion in the trial court’s
determinations.
A.
Acosta, Varela, and Lopez 1 first claim that the district court abused its
discretion by refusing to sever their trial from Angulo’s on the ground that
Angulo’s intended introduction of polygraph testimony would prejudice them. But
they have failed to show that there was any likelihood that impermissible prejudice
would arise from the polygraph evidence, or that they were in fact prejudiced in
any way.
The decision whether to grant a severance lies within the district court’s
sound and substantial discretion. United States v. Lopez, 649 F.3d 1222, 1235–36
(11th Cir. 2011). “We will not reverse the denial of a severance motion absent a
clear abuse of discretion resulting in compelling prejudice against which the
district court could offer no protection.” United States v. Ramirez, 426 F.3d 1344,
1
Acosta, Varela, and Lopez have each adopted the others’ arguments on appeal, and each
has adopted Angulo’s arguments as well.
11
Case: 16-10261 Date Filed: 03/30/2018 Page: 12 of 52
1352 (11th Cir. 2005) (quotation omitted). “Joint trials play a vital role in the
criminal justice system and serve important interests: they reduce the risk of
inconsistent verdicts and the unfairness inherent in serial trials, lighten the burden
on victims and witnesses, increase efficiency, and conserve scarce judicial
resources.” Lopez, 649 F.3d at 1233. We have explained that “defendants who are
indicted together are usually tried together.” Id. at 1234 (quotation omitted). And
“[t]hat rule is even more pronounced in conspiracy cases.” Id. This rule is not
ironclad. Id. Federal Rule of Criminal Procedure 14(a) explains that
[i]f the joinder of offenses or defendants in an indictment, an information, or
a consolidation for trial appears to prejudice a defendant or the government,
the court may order separate trials of counts, sever the defendants’ trials, or
provide any other relief that justice requires.
The circumstances justifying severance are “few and far between”; a
defendant seeking severance “must carry the heavy burden of demonstrating that
compelling prejudice would result from a joint trial.” Lopez, 649 F.3d at 1234
(quotation omitted and alteration adopted). To establish this level of prejudice, a
defendant must show that “a joint trial would actually prejudice the defendant and
that a severance is the only proper remedy for that prejudice -- jury instructions or
some other remedy short of severance will not work.” Id.; see also Zafiro v.
United States, 506 U.S. 534, 539 (1993) (noting that limiting instructions will often
cure any potential prejudice resulting from a joint trial). It is not enough that a
12
Case: 16-10261 Date Filed: 03/30/2018 Page: 13 of 52
defendant argues he may have a better result had the trials been severed. Zafiro,
506 U.S. at 540 (“[I]t is well settled that defendants are not entitled to severance
merely because they may have a better chance of acquittal in separate trials.”).
We have identified four discrete circumstances in which severance may be
required: where defendants rely on mutually antagonistic defenses; where one
defendant would exculpate another in a separate trial, but will not testify in a joint
setting; where inculpatory evidence will be admitted against one defendant that is
not admissible against another; and where a cumulative and prejudicial “spill over”
may prevent the jury from sifting through the evidence to make an individualized
determination of guilt as to each defendant. United States v. Chavez, 584 F.3d
1354, 1360–61 (11th Cir. 2009). The final category is limited in application,
because “a court’s cautionary instructions ordinarily will mitigate the potential
‘spillover effect’ of evidence of a co-defendant’s guilt.” United States v. Kennard,
472 F.3d 851, 859 (11th Cir. 2006).
The district court did not abuse its discretion when it declined to sever this
trial. No antagonistic defenses, exculpatory testimony from co-defendants, or
inculpatory evidence were at issue; the appellants can only argue that cumulative
and prejudicial spillover warranted severance. But, for starters, our spillover
precedent is generally concerned with circumstances in which “overwhelming
evidence of [a co-defendant’s] guilt” might bias another defendant -- not
13
Case: 16-10261 Date Filed: 03/30/2018 Page: 14 of 52
circumstances in which evidence of a co-defendant’s innocence might spill over.
Lopez, 649 F.3d at 1235 (emphasis added). In fact, as the Government points out,
any spillover from the polygraph evidence suggesting Angulo’s innocence might
well have helped the other defendants in this case.
Moreover, the district court made it clear that Angulo’s polygraph evidence
would only be allowed under “very limited” circumstances: only if Angulo
testified and his credibility was impeached could he then present evidence that he
passed a polygraph test in an effort to rehabilitate his credibility. “[Testifying]
[wa]s a prerequisite to the admission of [the polygraph] evidence”; a prerequisite
none of the other defendants satisfied. The conditional and rehabilitative nature of
the evidence in question made prejudicial spillover even less likely. We add that
the trial court instructed the jury unambiguously to “consider the case of each
Defendant separately and individually,” and cautioned them that if they “find a
Defendant guilty of one crime, that must not affect [the] verdict for any other crime
or any other Defendant.” And we have repeatedly said that “[a] jury is presumed
to follow the instructions given to it by the district judge.” Ramirez, 426 F.3d at
1352; United States v. Mock, 523 F.3d 1299, 1303 (11th Cir. 2008).
Finally, it is patently clear that Acosta, Varela, and Lopez cannot show the
requisite prejudice to merit reversal. See id. (“We will not reverse the denial of a
severance motion absent a clear abuse of discretion resulting in compelling
14
Case: 16-10261 Date Filed: 03/30/2018 Page: 15 of 52
prejudice.” (quotation omitted)). Their argument is built on the possibility that the
introduction of the polygraph evidence drew a distinction between Angulo and the
other defendants in the minds of the jury, to their demonstrable detriment. But
Angulo ultimately was convicted on both charged counts, just as the others were.
On this record the defendants cannot show that the polygraph evidence helped
Angulo -- much less that the jury’s rejection of that evidence was likely considered
in relation to, or had any deleterious effect on, their verdicts. The appellants have
made no attempt to explain how Angulo’s conviction (and the jury’s concomitant
rejection of his polygraph evidence) does not doom their allegation of prejudice,
and so have failed to discharge their “heavy burden of demonstrating compelling
prejudice.” United States v. Browne, 505 F.3d 1229, 1268 (11th Cir. 2007). On
this record, we can discern no abuse of discretion in rejecting the severance
application.
B.
The same appellants, Acosta, Varela, and Lopez, also claim that the district
court denied them their right to be present during trial when it failed to timely
notify them of the pretrial evidentiary hearing to consider the admissibility of
Angulo’s polygraph evidence. The appellants did not make this argument before
the district court, and so we can review it only for plain error. Under plain-error
review, the defendant is required to show that there is “(1) error (2) that is plain
15
Case: 16-10261 Date Filed: 03/30/2018 Page: 16 of 52
and (3) that affects substantial rights.” United States v. Monroe, 353 F.3d 1346,
1349 (11th Cir. 2003) (quotation omitted). If all three conditions are met, we may
exercise our discretion to notice a forfeited error, but only if “(4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id.
The district court committed no error, plain or otherwise.
The right of a criminal defendant to be present at his trial is axiomatic. “[It]
has three bases: the Confrontation Clause of the Sixth Amendment, the Due
Process Clause of the Fifth Amendment, and Federal Rule of Criminal Procedure
43.” United States v. Novaton, 271 F.3d 968, 997 (11th Cir. 2001). Rule 43 itself
explains that the defendant must be present at: “the initial appearance, the initial
arraignment, and the plea”; “every trial stage, including jury impanelment and the
return of the verdict”; and “sentencing.” Considered in concert, the right to be
present “extends to all hearings that are an essential part of the trial -- i.e., to all
proceedings at which the defendant’s presence has a relation, reasonably
substantial, to the fullness of his opportunity to defend against the charge.” Proffitt
v. Wainwright, 685 F.2d 1227, 1256 (11th Cir. 1982) (quotation omitted and
emphasis added). However, it “does not confer upon the defendant the right to be
present at every hearing or conference with the trial judge at which a matter
relative to the case is discussed.” United States v. Pepe, 747 F.2d 632, 654 (11th
Cir. 1984) (quotation omitted, alterations adopted, and emphasis added).
16
Case: 16-10261 Date Filed: 03/30/2018 Page: 17 of 52
Our precedent suggests that there may be no general right to be present at all
evidentiary hearings -- let alone at an evidentiary hearing solely relating to the
admissibility of exculpatory rehabilitative evidence proffered by another defendant
in a joint trial. Thus, for example, in United States v. Pepe we held that a
defendant had no right under the Sixth Amendment or Rule 43 to be present at a
pretrial evidentiary hearing to consider whether certain evidence proffered by the
Government was inadmissible hearsay. 747 F.2d 632, 652–54 (11th Cir. 1984).
We observed that a hearing that does not “bind the court to make any particular
evidentiary ruling at trial” is far from essential, and that Rule 43 “does not apply to
hearings on motions made prior to or after trial.” Id. at 653–54 (quoting Fed. R.
Crim. P. 43, advisory committee n.1).
But we have no occasion to decide whether defendants have a right to be
present at all evidentiary hearings concerning all of the defendants in a case; all we
hold today is that the trial court did not commit plain error when it did not notify
the other three appellants of Angulo’s evidentiary hearing concerning the
admissibility of exculpatory polygraph evidence offered by and relating to only
one of the defendants. For starters, this hearing occurred well before trial began.
And it did not concern the guilt or innocence of the other appellants. Indeed,
Angulo’s polygraph evidence was not directly relevant to them; the only possibility
of prejudice was that the jury might draw adverse inferences from their failure to
17
Case: 16-10261 Date Filed: 03/30/2018 Page: 18 of 52
produce similar evidence. Finally, the hearing did not result in a binding
ruling -- in fact, the court explicitly reserved ruling on the evidentiary question for
trial. It is simply not plain that the appellants had a right to be present at that
hearing.
But even if they did, there can be little question that they have failed to show
that they were prejudiced by their absence, let alone that the fairness and integrity
of the judicial process has been tainted. The appellants in no way suggest how
their presence might have led the court to bar the limited admission of the
polygraph evidence. Indeed, if they did have a colorable argument that they might
have been able to exclude exculpatory evidence for another defendant, that would
have been a ground for severance. But here the appellants do not point to any
impact their presence may have had on the evidentiary hearing, and, as we’ve
already said, the defendants cannot show that the admissibility of the polygraph
evidence prejudiced them in any way.
Moreover, to the extent appellants suggest they suffered a Sixth Amendment
violation because they were unable to cross-examine Angulo’s polygraph expert at
the pretrial hearing, we are unpersuaded. For one thing, no one introduced any
testimony from the pretrial hearing at the trial itself, and, more importantly, the
defendants had the opportunity to cross-examine the polygrapher and codefendant
Angulo as well at trial.
18
Case: 16-10261 Date Filed: 03/30/2018 Page: 19 of 52
C.
Turning to the trial itself, the appellants claim reversible error in a discovery
violation that occurred when the Government failed to turn over a report about
Angulo’s 1998 detention in connection with a different cocaine-smuggling ship,
and then improperly asked Angulo questions based on the undisclosed report
during cross-examination. But the district court properly limited the prosecution’s
questioning to asking only about information fully disgorged in a report that was
available to the defense, and Angulo did not seek any further relief at trial. No
prejudice can be shown from the discovery violation.
At the beginning of the Government’s cross-examination of Angulo, this
exchange occurred:
BY MR. RUDDY [prosecutor]:
Q: Mr. Angulo, let’s talk about February 18th, 1998.
A (through interpreter): Yes, sir.
Q: You were on the Motor Vessel Sea Star II; is that right?
A (through interpreter): Yes, sir.
...
Q: And also on the vessel were 2236 kilograms of cocaine; right?
A (through interpreter): Correct.
Q: And there were also a lot of line throwing guns and polypropylene lines
to be used for at-sea transfers of bales of cocaine; right?
19
Case: 16-10261 Date Filed: 03/30/2018 Page: 20 of 52
MR. KERR [defense counsel]: Your Honor, may we approach?
THE COURT: Yes.
At the bench conference conducted out of the presence of the jury, the court and
the parties discussed whether the information underlying these questions had been
properly disclosed to the defense. The court determined that the prosecutor was
working from an undisclosed report of the 1998 incident, but that most of the
information regarding the incident had previously been disclosed to the defense.
The trial court thus agreed with defense counsel that the prosecutor could only ask
questions based on information that had previously been disgorged, and defense
counsel did not seek any further relief at that time.
After trial, Angulo moved for a new trial on various bases, including the
discovery violation and attendant questioning regarding his prior apprehension.
The district court denied that motion, finding as to the discovery violation that
“there were no questions asked that . . . were unduly prejudicial.”
In the context of Federal Rule of Evidence 404(b), the admission of extrinsic
act evidence requires “the prosecution to provide notice of its intended use to the
defense, regardless of how it intends to use the extrinsic act evidence at trial, i.e.,
during its case-in-chief, for impeachment, or for possible rebuttal.” United States
v. Bradley, 644 F.3d 1213, 1273 (11th Cir. 2011) (quoting the advisory
committee’s note to the 1991 amendments of Rule 404(b)) (alteration adopted).
20
Case: 16-10261 Date Filed: 03/30/2018 Page: 21 of 52
The Government does not dispute that a discovery violation occurred here -- rather,
it argues that the court properly remedied the issue, and the appellants were in no
way prejudiced by the error.
When a discovery violation occurs under Rule 404(b) or Federal Rule of
Criminal Procedure 16, there is no automatic consequence -- relief for the violation
“lies within the discretion of the trial court.” United States v. Rodriguez, 799 F.2d
649, 652 (11th Cir. 1986). “To support a claim for reversal . . . , the defendant
must show prejudice to substantial rights.” See id. (explaining the reversal
standard for a Rule 16 violation); Bradley, 644 F.3d at 1273–74 (explaining the
reversal standard for a Rule 404(b) violation). We have said that “[s]ubstantial
prejudice exists when a defendant is unduly surprised and lacks an adequate
opportunity to prepare a defense, or if the mistake substantially influences the
jury.” United States v. Camargo-Vergara, 57 F.3d 993, 998–99 (11th Cir. 1995).
The problem for the appellants is that they cannot show that the district court
abused its discretion. The trial court was correct -- and the defendants do not argue
otherwise -- that all of the information contained in the 1998 report, except for
information concerning the line guns, had already been disclosed in the
handwritten report about the incident that had been provided to Angulo. Thus any
possible error or prejudice arising from the discovery violation could only be the
result of the prosecutor’s single question about the lines and line-throwing guns.
21
Case: 16-10261 Date Filed: 03/30/2018 Page: 22 of 52
No error or prejudice flowed from the singular question. In the first place,
the question was never answered. The district court sustained the objection to the
question before Angulo said anything, and prohibited the government from asking
any questions drawn from a document that was not provided to the defense.
Moreover, no follow up questions were asked about the line-throwing equipment.
The jury never learned whether, according to Angulo, the information was correct
or not. Instead, the bulk of the information the jury heard about the incident --
including the size of the Sea Star II, the number of crew members on board, and
most significantly, that 2200 kilograms of cocaine was found on the vessel -- had
been disclosed in the report that the Government had provided defense counsel
earlier. Moreover, the district court properly instructed the jury that anything the
attorneys said at trial -- which included any questions they asked -- was not
evidence. See United States v. Works, 526 F.2d 940, 945 n.19 (5th Cir. 1976).
There is no showing that the single additional question drawn from the
undisclosed report amounted to a surprise robbing defense counsel of the
opportunity to prepare a defense. Angulo asserts that the decisions whether to
testify and whether to raise the previous apprehension on direct examination were
both difficult ones that would have been influenced by the additional information
from the undisclosed report. While it may be the case that defense strategy
decisions were close -- as the decision whether to testify often is -- there is
22
Case: 16-10261 Date Filed: 03/30/2018 Page: 23 of 52
virtually no explanation how the singular piece of information used from the report
to ask a question would have been significant in making those decisions,
particularly in light of the inculpatory material that had been disclosed earlier
about the prior voyage.
It’s worth noting that on direct examination, defense counsel elicited from
Angulo that he had no record of criminal history, and that in order to obtain his
mariner’s license, Angulo had to pass a test certifying that he had no problem in
relation to narcotics. Indeed, defense counsel also elicited from Angulo that he
was a crew member on the ship in 1998 and that he had been detained in the
Bahamas. He was also asked by his lawyer whether he heard anything about
whether drugs had been found on the ship and, indeed, whether he had ever seen
any drugs onboard the vessel. On cross-examination, the prosecutor also asked,
notably without any objection, about whether drugs were found on the vessel.
Only when the prosecutor asked about the “line-throwing guns” did defense
counsel object and only then did the court bar any inquiry about that singular piece
of information.
Finally, it’s worth observing that Angulo’s counsel did not seek any further
relief, such as an instruction to the jury to disregard the question itself, and so any
claimed failure by the trial court is reviewable only for plain error. See United
States v. Marquardt, 695 F.2d 1300, 1305 (11th Cir. 1983) (rejecting a challenge to
23
Case: 16-10261 Date Filed: 03/30/2018 Page: 24 of 52
a question that was successfully objected to but still heard by the jury because
“[the defendant] never moved to strike [the offending] statement and never moved
for a mistrial. The trial court thus did all [the defendant] asked it to do by
sustaining the objection.”). It was not plain error -- indeed, it was not error at
all -- for the court to not strike the question sua sponte.
Appellants also seem to suggest that the bench conference (conducted by the
trial court out of the jury’s presence) itself somehow was prejudicial because it
may have made the jury think that counsel successfully convinced the trial court to
bar incriminating evidence relating to Angulo’s prior detention, but absent some
extraordinary circumstance, a court’s discussion of an evidentiary issue out of the
presence of the jury (a very common trial procedure) cannot be deemed to be
prejudicial.
D.
All of the defendants also assert error when the prosecutor asked Angulo
whether he was the Hope II’s “load guard” -- the individual responsible for
ensuring the drugs were safely delivered -- without a good-faith basis. But the
prosecutor had sufficient reason to ask the question, the district court did not abuse
its broad discretion in allowing the inquiry, and regardless any claimed error would
have been harmless.
24
Case: 16-10261 Date Filed: 03/30/2018 Page: 25 of 52
Toward the end of the cross-examination of Angulo, this exchange took
place between the prosecutor and the defendant:
Q: You know what a load guard is, Mr. Angulo?
A (through interpreter): I don’t know because I’ve never been into that.
Q: You weren’t on that vessel to ensure that all the drugs that were going --
the 31 bales that were delivered the first time and the 31 bales that were
going to be delivered on the August trip were delivered as planned at sea at
night in the middle of the ocean? You were there to verify for the drug
owners that those bales were delivered; correct?
A (through interpreter): No, sir.
Q: That’s who you are; right?
MR. KERR [defense counsel]: Objection, Your Honor. I assume counsel has
a good-faith basis for asking the question.
MR. RUDDY [prosecutor]: No further questions, Your Honor.
THE COURT: The legal basis for the objection?
MR. KERR: You can’t ask questions on cross-examination for which you
don’t have a good-faith basis.
THE COURT: All right, the objection is overruled.
In at least some circumstances, a prosecutor must have a good-faith basis for
questions asked during trial. See, e.g., United States v. Crutchfield, 26 F.3d 1098,
1102 (11th Cir. 1994); United States v. Glass, 709 F.2d 669, 673 (11th Cir. 1983).
Even if we assume a good-faith basis was required for the prosecutor’s “load
guard” question, the district court properly concluded that a sound basis existed,
25
Case: 16-10261 Date Filed: 03/30/2018 Page: 26 of 52
and in any event, any claimed error would have been harmless. Where a good-
faith basis is required, that basis “does not have to be definitive proof.” Coquina
Investments v. TD Bank, N.A., 760 F.3d 1300, 1313 (11th Cir. 2014) (quotation
omitted). Based on the testimony of the co-conspirators, there was powerful
reason indeed to believe that Angulo had played a specific and substantial role in
the drug scheme: among other things, he had been involved at least as a crew
member on a different vessel that smuggled more than a ton of cocaine; he
operated the crane to move a very large quantity of drugs onboard the vessel in this
case; he knew enough to discard clothing and gloves that he had worn evidencing
his participation in the drug conspiracy; he lacked a proper mariner’s license and
thus was less likely to be on the ship for a legitimate maritime reason; and, by one
take, he appeared to threaten a co-conspirator with his status and power.
In order to show that the prosecutor could not have thought he was a load
guard, Angulo submitted a sworn declaration from a former DEA special agent.
The agent opined that “while the captain of this type of ship is almost always
involved in the smuggling, crew members are often left in the dark.” He further
suggested that “it would be unheard of for the lowest-ranking crewmember, the
cook, to assume any witting responsibility for the drugs and/or paid role in the
overall transaction.” He concluded that if there was a load guard, “this man, using
drug trafficker logic, would have a considerable record of success in this area
26
Case: 16-10261 Date Filed: 03/30/2018 Page: 27 of 52
before being hired, again, as security for such an immense undertaking”; “[h]is
record and reputation would be visible, at minimum, in his life style” -- a
conclusion that ran contrary to reports of Angulo and his family living in a shack.
But all of this at most only shows ultimately that the prosecutor may have been
wrong; it does not establish that the prosecutor acted in bad faith when he asked
the question of the defendant. Moreover, much of the evidence drawn from the co-
conspirators’ testimony flatly contradicts the picture the former DEA agent
painted. Thus, for example, the co-conspirators testified that the entire crew was
involved in the smuggling enterprise, and one testified that Angulo, the “lowest-
ranking crewmember,” insinuated by threat that he actually had significant status
and power. There was no abuse of discretion in allowing the prosecutor to inquire
of the defendant about his putative role as a load guard.
E.
The appellants also argue that the district court abused its discretion in
allowing the prosecutor to introduce inadmissible hearsay evidence. The
appellants say that the district judge erroneously allowed the prosecutor to ask one
of its own witnesses leading questions based on an agent’s summary of an earlier
interview with the witness, and later improperly allowed the prosecutor to have
sections of the report translated and read to the witness in order to refresh the
witness’s recollection. Because the appellants concede that these claimed errors do
27
Case: 16-10261 Date Filed: 03/30/2018 Page: 28 of 52
not warrant reversal standing alone, we only review them to determine whether
they might have contributed to a claim of cumulative prejudicial error. Here too
the district court committed no error.
During the cross-examination of Crespo-Marin, one of the co-conspirators
who pled guilty, defense counsel for Varela asked a number of questions regarding
what he had told government agents during an interview conducted in January
2015. On re-direct examination, the prosecutor sought to read to Crespo-Marin
four paragraphs from a summary of the interview. The defense objected; the
prosecution then asserted that the rule of completeness allowed introduction of the
remainder of the summary report, since “on cross-examination there were
questions asked about details of the report that were published to the jury.” The
trial court limited the prosecutor to questioning Crespo-Marin only about the
report. After asking a few more questions, the defense again objected, claiming
that the prosecutor was improperly leading the witness. The court overruled the
objection because the agent’s report had “been called into question” during cross-
examination. After a few more questions were asked, the defense again objected,
claiming that the prosecutor was effectively trying to introduce the agent’s
summary as evidence. The court agreed that the prosecutor had improperly led the
witness and sustained the objection.
28
Case: 16-10261 Date Filed: 03/30/2018 Page: 29 of 52
The prosecutor then asked Crespo-Marin whether he had told the agents how
cocaine had been loaded onto the Hope II. When Crespo-Marin answered that he
had not, the prosecutor asked that a sentence from the agent’s report be translated
into Spanish and read to Crespo-Marin, in order to refresh his recollection about
that matter. The defense unsuccessfully objected. This happened once more, and
again the defense unsuccessfully objected on the ground that the jury might
overhear the read translation.
The exchange implicated two evidentiary rules on which the prosecution
asserted it could, and to some extent was permitted to, use portions of the agent’s
report from Crespo-Marin’s January 2015 interview, both of which the appellants
cite as error. First, the appellants claim there was error in initially allowing
questioning from the report under the rule of completeness. The appellants also
claim error in allowing Crespo-Marin’s recollection to be refreshed by having a
portion of the report read to the witness in Spanish by the interpreter. Neither
constituted an abuse of discretion.
i.
The evidentiary rulings made by a district court are made at the court’s
discretion. See, e.g., Hessen ex rel. Allstate Ins. Co. v. Jaguar Cars, Inc., 915 F.2d
641, 645 (11th Cir. 1990). The “rule of completeness,” as embodied in Federal
Rule of Evidence 106, provides: “If a party introduces all or part of a writing or
29
Case: 16-10261 Date Filed: 03/30/2018 Page: 30 of 52
recorded statement, an adverse party may require the introduction, at that time, of
any other part . . . that in fairness ought to be considered at the same time.” We
have held that the policy behind Rule 106 applies “when a written document is
admitted into evidence” or where “a document is used in such a way that it is
‘tantamount’ to introduction of the document itself.” United States v. Ramirez-
Perez, 166 F.3d 1106, 1112–13 (11th Cir. 1999). Thus, for example, where a line
of questioning led to publication of two paragraphs of a writing, those parts of the
writing “effectively were introduced into evidence” and could be subject to the rule
of completeness. Id. at 1113 (discussing Rainey v. Beech Aircraft Corp., 784 F.2d
1523, 1529 n.11 (11th Cir. 1986), reinstated on reh’g en banc, 827 F.2d 1498 (11th
Cir. 1987), rev’d on other grounds, 488 U.S. 153 (1988)).
Under Rule 106, additional admissions from a writing are allowable when
“relevant and . . . necessary to qualify, explain, or place into context the portion
already introduced.” United States v. Pendas-Martinez, 845 F.2d 938, 944 (11th
Cir. 1988). For example, where small portions of a writing are read out of context
and give a misleading impression of the full contents of the writing, additional
portions of the writing may be admitted to avoid misrepresentation. See Rainey v.
Beech Aircraft Corp., 784 F.2d 1523, 1529–30 (11th Cir. 1986). However, we
have clarified that after introduction of part of a document, “Rule 106 does not
automatically make the entire document admissible.” Pendas-Martinez, 845 F.2d
30
 Case: 16-10261 Date Filed: 03/30/2018 Page: 31 of 52
at 944. We have previously overturned a district court’s evidentiary decision to
allow admission of an entire report into evidence when “the great majority of it
was irrelevant to the issue [for which it was introduced].” Id. at 945.
The appellants say that Rule 106 does not apply here. That is, the rule of
completeness did not allow introduction of the additional portions of the agent’s
report because the defense had not, in fact, read anything from the report during
cross-examination. Thus, if we understand the argument, there was no
“introduc[tion] . . . of a writing or recorded statement,” as Rule 106 requires.
Instead, appellants argue, the cross-examination used “information derived from”
the report “without ever introducing any verbatim statements from” the report.
The appellants also say that the portions of the report introduced by the prosecution
were not relevant to any previous use of the report. Finally, they urge that the rule
of completeness did not allow the prosecutor to ask leading questions based on
additional contents found in the report.
The district court considered and limited the use of the report’s contents on
re-direct in response to the previous use of the report on cross-examination. It did
not explicitly clarify whether it found both that the remainder of the report was
subject to the rule of completeness and that the contents introduced by the
prosecution were relevant to the explanation of the previously introduced portions.
31
Case: 16-10261 Date Filed: 03/30/2018 Page: 32 of 52
We need not determine whether the district court did, in fact, allow the
limited use of the report because of the rule of completeness; whether the rule of
completeness applied because the cross-examination use of the report was
“tantamount” to the document’s introduction; or whether the questioning by the
prosecutor effectively introduced parts of the report that were properly relevant to
the previously used portions. Instead, we conclude that even if there was any error
in the evidentiary ruling, there was no prejudice nor any clear error to contribute to
a showing of cumulative error. The first line of questioning from the report was
otherwise admissible under Federal Rule of Evidence 801(d)(1)(B), which defines
as nonhearsay Crespo-Marin’s prior consistent statement “offered to rebut an
express or implied charge that [he] recently fabricated [the testimony] . . . or to
rehabilitate [his] credibility as a witness when attacked on another ground.” See
also United States v. Ettinger, 344 F.3d 1149, 1160–61 (11th Cir. 2003) (finding
admissible under 801(d)(1)(B) a prior consistent statement of a witness contained
in an FBI report offered to rebut an implied charge of recent fabrication during
cross-examination).
32
Case: 16-10261 Date Filed: 03/30/2018 Page: 33 of 52
ii.
There was also no abuse of discretion in permitting the prosecutor to have a
few sentences of the report read to Crespo-Marin in Spanish in order to refresh his
memory. Under the Federal Rules of Evidence, any document may be used to
refresh a witness’s recollection. See Fed. R. Evid. 612. And “[w]hen there is
careful supervision by the court, the testimony elicited through refreshing
recollection may be proper, even though the document used to refresh the
witness[’s] memory is inadmissible.” United States v. Scott, 701 F.2d 1340, 1346
(11th Cir. 1983). As the trial court explained, the difficulty here largely arose from
examining a Spanish-speaking witness with a document that had been written in
English; once the court was notified that the translation might be improperly
overheard by the jury, it acted quickly to resolve the issue. The district court’s
supervision of the examination was careful and proper. The appellants also argue
that the prosecution did not properly wait for a showing that the witness’s memory
of the interview had failed before attempting to refresh Crespo-Marin’s
recollection about the January 2015 interview. This is not supported by the record.
Instead, the prosecution confirmed it was refreshing Crespo-Marin’s recollection,
and followed the appropriate procedure to do so, only after Crespo-Marin denied
telling the agents a piece of information that was contained in the relevant report.
Again, the record reveals no abuse of discretion.
33
Case: 16-10261 Date Filed: 03/30/2018 Page: 34 of 52
F.
Acosta, Varela, and Lopez further claim that the district court abused its
discretion when it refused to give the following “blind mule” jury instruction:
If you find from the evidence that a Defendant was unaware of the hidden
packages of cocaine on the Hope II, then you must find him not guilty,
because he could not have acted knowingly and willfully.
An unknowing courier is not guilty of possessing cocaine nor is he guilty of
a conspiracy to distribute cocaine.
In order to find a Defendant guilty, you must be convinced that the
government has proven beyond a reasonable doubt that the Defendant knew
of the presence of the hidden packages of cocaine on the Hope II, and that he
acted with the intent that the hidden cocaine be possessed and delivered.
A Defendant’s mere presence on the Hope II without actual knowledge of
the hidden packages of cocaine does not constitute a conspiracy to distribute
cocaine, nor does it constitute possession of cocaine with the intent to
distribute it.
Likewise, the requisite proof of knowledge on the part of the Defendant
cannot be established by merely demonstrating that the Defendant was
negligent, careless or foolish.
But this proposed instruction was repetitive of the instructions the trial court
actually gave, and the court did not err in declining to include it.
“We review a district court’s refusal to give a requested jury instruction for
abuse of discretion.” United States v. Martinelli, 454 F.3d 1300, 1309 (11th Cir.
2006) (quotation omitted). The refusal to give a requested instruction is reversible
“if (1) the requested instruction was a correct statement of the law, (2) its subject
34
Case: 16-10261 Date Filed: 03/30/2018 Page: 35 of 52
matter was not substantially covered by other instructions, and (3) its subject
matter dealt with an issue in the trial court that was so important that failure to give
it seriously impaired the defendant’s ability to defend himself.” Id. (quotation
omitted).
The trial court unambiguously instructed the jury that the defendants were
charged with “knowingly and willfully” conspiring to possess with intent to
distribute and to distribute cocaine (Count 1), and with “knowingly and
intentionally” possessing with intent to distribute cocaine (Count 2). The court
properly defined “knowingly” and “willingly” using these words:
The word “knowingly” means that an act was done voluntarily and
intentionally and not because of a mistake or by accident.
The word “willfully” means that the act was committed voluntarily and
purposely, with the intent to do something the law forbids; that is, with the
bad purpose to disobey or disregard the law. While a person must have acted
with the intent to do something the law forbids before you can find that the
person acted “willfully,” the person need not be aware of the specific law or
rule that his conduct may be violating.
As for the first count, the district court explained that in order to find a
defendant guilty of conspiracy beyond a reasonable doubt, “the Defendant [must
have known] the unlawful purpose of the plan and willfully joined in it,” later
reiterated that to find a defendant guilty that defendant must have “willfully joined
in the plan on at least one occasion,” and also clarified that “a person who doesn’t
know about a conspiracy but happens to act in a way that advances some purpose
35
Case: 16-10261 Date Filed: 03/30/2018 Page: 36 of 52
of one doesn’t automatically become a conspirator.” And as for the second count,
the district court explained that in order to find a defendant guilty of knowingly
possessing cocaine with intent to distribute, the jury must find, beyond a
reasonable doubt, that “the Defendant knowingly possessed cocaine” and
“intended to distribute” it. The court emphasized that “[t]o ‘possess with intent to
distribute’ means to knowingly have something while intending to deliver or
transfer it to someone else.” Finally, the court explained that while a defendant
may be found guilty of a crime for aiding and abetting its commission, for this to
be the case the jury “must find beyond a reasonable doubt that the Defendant was a
willful participant and not merely a knowing spectator.”
It is abundantly clear from the record of the court’s instructions to the jury
that the appellants’ requested instruction was unnecessarily repetitive. The court
explained in detail what “knowingly” and “willfully” mean, and expressly said that
the defendants could not be convicted if these requirements were absent. All the
proposed instruction would have done is connect the court’s statements of the law
about knowledge and specific intent to the facts at issue in this case. Cf. United
States v. Takhalov, 827 F.3d 1307, 1318–19 (11th Cir. 2016) (explaining that when
given instructions “substantially cover[ ]” more specific requested ones and the
only difference is an easily bridged “logical gap,” the requested instruction need
not be given). The subject matter covered by the requested instruction was not a
36
Case: 16-10261 Date Filed: 03/30/2018 Page: 37 of 52
technical point of law that might have been overlooked or misunderstood if not
emphasized -- rather, it was the entire defense of all of the defendants; was
conceptually straightforward; and was discussed by the court at length. In a
similar circumstance we have affirmed a district court’s non-inclusion of “good
faith” instructions explicating how the defendant’s knowledge of the specific facts
of the case could bear on his guilt, because “[those] concepts were substantially
included in the instruction that the criminal act must be done ‘knowingly’ or
‘willfully.’” United States v. Jordan, 582 F.3d 1239, 1248 (11th Cir. 2009). The
appellants have offered no reason to think that the court’s instructions were
insufficient.
G.
The appellants also claim that even if all of the issues they have raised were
harmless, their cumulative effect nevertheless deprived them of a fair trial. “The
cumulative error doctrine provides that an aggregation of non-reversible errors
(i.e., plain errors failing to necessitate reversal and harmless errors) can yield a
denial of the constitutional right to a fair trial, which calls for reversal.” United
States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005), abrogated in part on other
grounds by Davis v. Washington, 547 U.S. 813 (2006) (internal quotation marks
omitted). “We address claims of cumulative error by first considering the validity
of each claim individually, and then examining any errors that we find in the
37
Case: 16-10261 Date Filed: 03/30/2018 Page: 38 of 52
aggregate and in light of the trial as a whole to determine whether the appellant
was afforded a fundamentally fair trial.” Morris v. Sec’y, Dep’t of Corr., 677 F.3d
1117, 1132 (11th Cir. 2012). The appellants’ cumulative error argument fails
because they have been unable to identify any actual error. “This Court has made
clear that where there is no error in any of the trial court’s rulings, the argument
that cumulative trial error requires that this Court reverse the defendant’s
convictions is without merit.” Id. (quotation omitted and alterations adopted).
III.
Finally, Acosta and Varela urge us to vacate their sentences as being
substantively unreasonable. The reasonableness of a sentence is reviewed for
abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). On this record,
there was no abuse of discretion in either case.
The district court imposed concurrent sentences of 235 months for both
Acosta and Varela. As for Acosta, the court found that his total offense level was
40, his criminal history category was I, yielding an advisory guidelines range of
292–365 months’ imprisonment along with five years’ supervised release on each
count. However, after considering the factors identified in 18 U.S.C.
§ 3553(a) -- balancing Acosta’s age (67), medical issues (including Type I
diabetes, high blood pressure, and thyroid and kidney issues), light criminal
history, and low likelihood of recidivism against the serious nature of the crime
38
Case: 16-10261 Date Filed: 03/30/2018 Page: 39 of 52
(smuggling more than 1400 kilograms of cocaine) -- the court varied the sentence
downward two points, yielding a new advisory range of 235–293 months, and
sentenced him at the low end to 235 months’ imprisonment on each count, to run
concurrently. The court explained that it was not imposing a life sentence, but
acknowledged that, given Acosta’s age and the length of sentence, the defendant
may well be in custody for the rest of his life.
Acosta claims that his sentence is substantively unreasonable because he
will be in excess of 86 years old when released, and that this effectively amounts to
a life sentence. But a sentence which may result in a defendant passing away
while in custody, however tragic, is neither automatically a life sentence nor
presumptively unreasonable. See, e.g., United States v. Joseph, 709 F.3d 1082,
1105 (11th Cir. 2013) (affirming a 30-year sentence that the defendant argued
“effectively amount[ed] to a life sentence”). On this record, we cannot say that the
district court’s sentence was substantively unreasonable. The court considered the
§ 3553(a) factors; it awarded Acosta a two-point downward variance; and then it
sentenced him at the bottom of the new advisory range. Absent some other
indication to the contrary, the sentence did not amount to an abuse of discretion.
As for Varela, the district court determined that his total offense level was
38 and his criminal history category was I, thus yielding an advisory range of 235–
293 months’ imprisonment, along with five years’ supervised release. Again, the
39
Case: 16-10261 Date Filed: 03/30/2018 Page: 40 of 52
court considered the § 3553(a) factors, and considered and declined Varela’s
request for a variance. The court sentenced him at the bottom of the guidelines
range to 235 months on each count, also to be served concurrently.
Varela claims that his sentence was unreasonable, but he has abandoned this
by failing to offer a single specific argument in support of this claim, as required
by the Federal Rules of Appellate Procedure. See Fed. R. App. P. 28(a)(8)
(explaining that an appellant’s argument must contain the “contentions and the
reasons for them, with citations to the authorities and parts of the record on which
the appellant relies,” along with “a concise statement of the applicable standard of
review”). “We have long held that an appellant abandons a claim when he either
makes only passing references to it or raises it in a perfunctory manner without
supporting arguments and authority.” Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 681 (11th Cir. 2014). But even if we were to address Varela’s claim on
the merits, we could discern no abuse of discretion. Again, the court considered
the § 3553(a) factors and sentenced Varela at the very bottom of his recommended
guideline range. The crime was a serious one, and the amount of cocaine was
extraordinarily large. “Although we have not adopted a presumption that a
sentence within the guideline range is reasonable, we have stated that ordinarily we
would expect a sentence within the Guidelines range to be reasonable.” Joseph,
709 F.3d at 1105 (quotation omitted).
40
Case: 16-10261 Date Filed: 03/30/2018 Page: 41 of 52
The long and short of it is that the district court managed this trial well. As
we see it, the appellants can point to no instance where the trial court abused its
discretion, and it’s even more clear that they were not impermissibly prejudiced by
any of the claimed errors. On this record, we find no ground to upset the jury’s
verdict or the court’s sentences.
AFFIRMED.
41
Case: 16-10261 Date Filed: 03/30/2018 Page: 42 of 52
MARTIN, Circuit Judge, concurring in the judgment:
I concur in large part with the majority opinion, but I have not arrived at my
view with the ease the majority opinion displays. I find this to be a closer case.
Also, in light of the seriousness of the crimes of which these men have been
convicted, and the length of the sentences they will serve, I believe some of the
problems with the prosecution and the trial merit further discussion.
The cargo ship known as the Hope II is a 165-foot freighter. About fifteen
hundred kilograms of cocaine were found on the ship. The cocaine was hidden in
a disguised fuel tank kept in a space accessible only by a single hatch. It took U.S.
Coast Guard personnel 17 hours to find it. And these are people trained and
experienced in conducting this type of drug search, and accustomed to using
sophisticated drug-detection equipment capable of picking up any trace of cocaine.
I emphasize these facts to explain (at least part of) the reason why I do not view the
defendants’ claim of lack of knowledge of the drugs to be so far-fetched as to be
reflexively dismissed as untrue. I am also mindful that the defendants’ claim of
lack of knowledge of the presence of the drugs should be carefully evaluated
against the only evidence the government presented as proof that they did know the
drugs were there. That is, the testimony of the four cooperating witnesses who had
been shipmates of the defendants whose case we consider here.
42
Case: 16-10261 Date Filed: 03/30/2018 Page: 43 of 52
I. MOTION TO SEVER & POLYGRAPH EVIDENCE
I ultimately agree with the majority that the convictions of Juan Rodriguez
Acosta, Arley Lopez Enciso, and Efrain Bilbao Varela, are not due to be reversed
on account of the fourth defendant’s, Jesus Hernando Angulo Mosquera (“Mr.
Angulo”),1 presentation of evidence of his polygraph examination. But I read the
majority to conclude that no possibility of prejudicial spillover existed from the
introduction of Mr. Angulo’s polygraph evidence. Maj. Op. at 14–16. My
conclusion is different. I am well aware that conflicts routinely arise in
multidefendant cases about evidence that might help one defendant, but hurt
another. However, the speculation and inferences that necessarily arise from one
of several defendants presenting polygraph evidence go beyond this type of run-of-
the-mill conflict.
When one defendant presents evidence that he passed a polygraph test,
surely a juror would be left to wonder: Why is only one defendant giving us
evidence of his polygraph test? Did the other defendants refuse to submit to a
polygraph test? Did they take one but fail it? A juror could logically infer from all
this that the defendants not submitting polygraph evidence must be guilty. The
only other court that I am aware of to have confronted this exact circumstance
1
I refer to him as Mr. Angulo because that is the name he uses in his briefs.
43
Case: 16-10261 Date Filed: 03/30/2018 Page: 44 of 52
noted that “[t]he admission of [polygraph] evidence as to one defendant does raise
questions as to the inferences an unguided jury might draw about the other
defendant regardless of whether or not that defendant testifies.” SEC v. Saul, No.
90 C 2633, 1992 WL 3696, at *2 (N.D. Ill. Jan. 6, 1992).
Also in contrast to the majority’s ruling, I believe the way the District Court
conditionally admitted the polygraph evidence increased, rather than lessened, the
possibility of prejudicial spillover to the no-lie-detector defendants. Maj. Op. at
14–15. The District Court admitted the polygraph evidence solely for
rehabilitation purposes, and in doing so, tied the admission of the evidence to Mr.
Angulo’s decision to testify. This loaded more significance onto the decision the
other defendants had to make about whether to testify. If they chose not to testify,
Mr. Angulo would be not just the only defendant to testify, but his testimony could
be backed up by polygraph evidence of his truthfulness. This starkly different
presentation would certainly amplify any thoughts a juror might have about a
defendant choosing not to testify because he is guilty. On the other hand,
testifying would come with risks as well. Any codefendant who testified
inevitably would draw more attention to the fact that Mr. Angulo had polygraph
evidence to rehabilitate his credibility while the testifying codefendant did not.
Since this jury was presented with little more than a swearing match between the
cooperating witnesses and the defendants (again, all shipmates), the credibility of
44
Case: 16-10261 Date Filed: 03/30/2018 Page: 45 of 52
witnesses was mostly all the jury had to decide. Polygraph evidence takes on
heightened importance in this circumstance.
For me, the government’s argument that if the jury believed Mr. Angulo,
there would have been an “innocence spillover,” only underscores the relationship
between Mr. Angulo’s polygraph evidence and the jury’s decision about the guilt
or innocence of his codefendants. All four codefendants (including Mr. Angulo)
offered the same “lack of knowledge” defense to the same charges. Thus, (1) Mr.
Angulo’s desire to put polygraph evidence before the jury; (2) the District Court’s
order allowing the polygraph evidence only if Mr. Angulo testified; (3) Mr.
Angulo’s decision to testify; and (4) the codefendants’ resulting constrained
decision not to testify, had the cumulative effect of making Mr. Angulo the de
facto spokesperson for the group. That tied the codefendants’ fates to Mr.
Angulo’s: If the jury believed him, his codefendants stood to benefit. If the jury
rejected his testimony, his codefendants stood to suffer.
But as I’ve said, I ultimately agree with my colleagues that this issue does
not require reversal of these convictions. Employing the standard that defendants
must meet in this circuit, I cannot say they have shown that the dynamics
surrounding the District Court’s ruling on the polygraph issues rose to the level of
“compelling prejudice,” such that “severance [was] the only proper remedy.” See
United States v. Lopez, 649 F.3d 1222, 1234 (11th Cir. 2011). The defendants
45
Case: 16-10261 Date Filed: 03/30/2018 Page: 46 of 52
point to this as a problem of an “unguided jury.” See Saul, 1992 WL 3696, at *2.
But we know that this jury was instructed to consider the evidence separately as to
each defendant and not to use a defendant’s exercise of his right to remain silent as
a basis for deciding guilt or innocence. And we assume that juries follow the
instructions they are given. See Bruton v. United States, 391 U.S. 123, 135, 88 S.
Ct. 1620, 1627 (1968) (noting that in many cases “the jury can and will follow the
trial judge’s instructions”). Thus, while the introduction of polygraph evidence
created a possibility of prejudicial spillover, I have concluded that the District
Court did not abuse its discretion by denying the motion for severance.
II. ADMISSION OF INADMISSIBLE HEARSAY EVIDENCE
I next take up the government’s argument that it was entitled to read from an
agent’s report to question a cooperating witness on re-direct examination under
Federal Rule of Evidence 106, the “rule of completeness.” I write only to address
the propriety of the government’s argument in this regard, which the majority does
not decide. See Maj. Op. at 29–30, 32–33.
I do not read the government’s argument to be consistent with the record.
For example, the government’s brief states that “[t]he prosecutor asked Marin
about the portion of the report that defense counsel had not read.” Gov’t Br. at 44.
Then, distinguishing this case from another, the government argued that in the
other case counsel “had not read from the report to suggest that the witness’s
46
Case: 16-10261 Date Filed: 03/30/2018 Page: 47 of 52
testimony was inconsistent with the report or otherwise attacked the witness’s
credibility with the report” but “[t]hat is precisely [] what opposing counsel did
here.” Id. at 47 (alterations adopted). In making these statements, the government
represents as a fact these defense lawyers took actions the record reveals they did
not. Indeed, a review of the record makes it plain that no defense counsel read
from the agent’s report or even mentioned the existence of the report. Thus, this
argument distorts the record, and the government should not have made it. See
Fed. R. Evid. 106 (“If a party introduces all or part of a writing or recorded
statement, an adverse party may require the introduction, at that time, of any other
part—or any other writing or recorded statement—that in fairness ought to be
considered at the same time.”); United States v. Ramirez-Perez, 166 F.3d 1106,
1112–13 (11th Cir. 1999) (holding Rule 106 does not apply when counsel
“questioned the agent only about what [a defendant] said rather than about what
was written in the document” and “did not refer to th[e] writing”).
III. GOVERNMENT CROSS-EXAMINATION OF MR. ANGULO
Finally, I address Mr. Angulo’s argument that the government was improper
in its cross-examination of him. 2 His first claim is based on the government’s
admitted discovery violation. At trial, the government used a report it had not
disclosed to Mr. Angulo, when it questioned him about a 17-year-old incident
2
That is, I address only the two improper questions Mr. Angulo raises on appeal.
47
Case: 16-10261 Date Filed: 03/30/2018 Page: 48 of 52
involving his presence on another ship. Maj. Op. at 19–21. The majority reduces
that violation down to a single improper question about “the lines and line-
throwing guns” and determines there was no prejudice. Id. at 22–24. Then the
majority marshals evidentiary bits it says could qualify Mr. Angulo as a “load
guard” and blesses that question entirely. See id. at 27. I disagree with both
conclusions.
I believe Mr. Angulo was prejudiced by the question about the “line-
throwing guns.” This question was the last in a series designed to point out the
similarities between the 1998 Sea Star II incident and the 2014 Hope II incident.
The prosecutor’s questions painted a picture for the jury, starting with the type of
ship; the ship size; the crew size; Mr. Angulo’s being there; the presence of over a
ton of hidden cocaine; and, finally, the equipment referred to as “line throwing
guns and polypropylene lines” necessary to make at-sea transfers of cocaine, which
was apparently common to both ships. Two things become clear from this context.
First, the jury could easily conclude that the last question about the line throwing
equipment revealed more detail about Mr. Angulo’s expertise and experience as a
drug trafficker. Second, as a result of the government’s admitted failure to turn
over the report, Mr. Angulo was denied the opportunity to anticipate the question,
48
Case: 16-10261 Date Filed: 03/30/2018 Page: 49 of 52
and be prepared to rebut it and all it implied. 3 Thus when Mr. Angulo stepped
down from the witness stand, the jury was left to understand that Mr. Angulo had a
long history of involvement with large cargo freighters equipped with specialized
line throwing guns and polypropylene lines used to make at-sea transfers of
thousands of kilograms of hidden cocaine. I don’t believe the evidentiary record,
as a whole, supports this. For this reason, I think Mr. Angulo was prejudiced by
the government’s failure to disclose the report which was the basis for its question
about the specialized equipment on the Sea Star II in 1998.
I also believe the government’s characterization of Mr. Angulo as a “load
guard” during its cross-examination of him “waft[ed] an unwarranted innuendo
into the jury box.” See United States v. Tucker, 533 F.3d 711, 714 (8th Cir. 2008)
(quotation omitted). In questioning Mr. Angulo before the jury, the prosecutor
defined a “load guard” as one who is “there to verify for the drug owners that those
[cocaine] bales were delivered.” However, the evidence the government offers and
which the majority accepts to justify the inquiry into this specialized role falls short
in my opinion. Maj. Op. at 27. The government’s basis for inquiring into Mr.
3
Mr. Angulo’s attorney argues that
[h]aving never seen the report, the defense ha[d] no way to know how accurately
the prosecutor recounted its contents for the jury. The defense had no opportunity
to learn where the purported drug-smuggling equipment was stored on the large
cargo ship, [or] whether Angulo would have had access to it or even reasonably
known of its existence. There was no opportunity to investigate whether the
equipment had legitimate uses that may have negated its sinister characterization
by the prosecutor.
49
Case: 16-10261 Date Filed: 03/30/2018 Page: 50 of 52
Angulo’s role as a load guard could have qualified anyone on the ship as such. 4
The cooperating witness’s (disputed) statement about Mr. Angulo’s threat of
“status and power” never suggested he was a “load guard,” or even used that term.
See id. at 8–9, 27. And the government’s agents’ general knowledge about where
load guards stand in the hierarchy of drug-trafficking organizations is not sufficient
to turn Mr. Angulo’s disputed taunt about his status, which the testimony
characterized as general in nature, into a “well reasoned suspicion.” See United
States v. Beck, 625 F.3d 410, 418 (7th Cir. 2010) (quotation omitted). A well-
reasoned suspicion requires more than what the government had here.
Compare United States v. Crutchfield, 26 F.3d 1098, 1101–02 (11th Cir. 1994)
(faulting prosecutor for asking witness, who admitted only to personal marijuana
use, about large-scale importation of drug when question was based only on
prosecutor’s “personal expertise in the prosecution of drug cases and . . .
knowledge of many illegal activities in the area where the witness resided”), with
Tucker, 533 F.3d at 714 (determining prosecutor had good-faith basis to ask about
4
Indeed, similar evidence would seem to apply to every member of the Hope II crew. For
example, one of the cooperating witnesses, Simon Bolivar Ferreras-Trinidad, testified that he
was supposed to be paid 10 million Columbian pesos more than the other crew members; that
he served as “the deck supervisor” for one trip; and that he was involved in not only loading
the crates containing the cocaine onto the ship, but also unpacking the crates and placing the
individual bales in the hidden compartment. He also previously was imprisoned by Cuban
authorities for trafficking in cocaine, and he had an expired license as well. Euclides Tous-
Calle, another cooperating witness, testified that he saw the hidden compartment being built;
that he helped load the cocaine into the compartment; and that he threw a satellite phone into
the water to prevent its seizure (but allegedly on the captain’s order).
50
Case: 16-10261 Date Filed: 03/30/2018 Page: 51 of 52
defendant’s knowledge of robberies based on FBI interview with other participant
who said defendant knew of robberies and defendant’s admission that she traveled
with participant to places that were robbed). That the prosecutor abruptly ended
his questioning after asking Mr. Angulo, twice, whether he was a “load guard,” is
consistent with a goal of leaving the jury with the impression that Mr. Angulo
played a role on the ship, for which there was no real evidentiary support.
Within the confines of this record, I believe the government’s discovery
violation together with its unsupported characterization of Mr. Angulo as a “load
guard” prejudiced him. See United States v. Rodriguez, 799 F.2d 649, 652 (11th
Cir. 1986) (per curiam) (“The actual prejudice will often turn on the strength of the
Government’s case.”). Aside from the cooperating witnesses’ entirely self-serving
testimony, the only evidence inculpating Mr. Angulo was his presence on the Sea
Star II 17 years earlier when over a ton of cocaine was found there, and the fact of
his expired mariner’s license, which the majority treats as meaning he was less
likely to have a “legitimate maritime reason” to be on the Hope II. See Maj. Op. at
5–11, 27. Mr. Angulo’s guilt or innocence thus turned almost completely on his
credibility compared to that of the cooperating witnesses. In cases that “turned
entirely upon which biased witnesses the jury chose to believe,” this Court has
recognized that “[e]vidence that tended to erode [the defendant’s] credibility and to
prejudice the jury against him [] could have had a substantial—perhaps
51
Case: 16-10261 Date Filed: 03/30/2018 Page: 52 of 52
overpowering—impact on the jury’s deliberations.” United States v. Hands, 184
F.3d 1322, 1332 (11th Cir. 1999).
Despite my view of the problems with the government’s actions toward Mr.
Angulo, I also think the District Court did the best it could to react to these actions.
The court stopped more questions about the undisclosed report. And although the
line-throwing question was left hanging, the District Court’s failure to strike the
question did not, in my view, amount to an abuse of discretion by the court. See
United States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989) (“The abuse of
discretion standard has been described as allowing a range of choice for the district
court, so long as that choice does not constitute a clear error of judgment.”).
Finally, the court instructed the jury that what the lawyers say is not evidence.
And we presume that juries follow their instructions. See Bruton, 391 U.S. at 135,
88 S. Ct. at 1627. While it’s possible that the prosecutor’s improper questioning of
Mr. Angulo created a “risk that the jury will not, or cannot, follow instructions,”
see id., Mr. Angulo has not shown that was in fact the case.
I therefore concur in the judgment affirming the convictions of Mr. Angulo,
as well as his codefendants.
52