United States v. Pedro Perez

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-15906
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-20110-MGC-4
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PEDRO PEREZ,
a.k.a. Luis Perez,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 4, 2013)
Before CARNES, BARKETT and KRAVTICH, Circuit Judges.
PER CURIAM:
Pedro Perez was convicted on six counts after a jury trial: conspiracy to
commit a Hobbs Act robbery, attempt to commit a Hobbs Act robbery, conspiracy
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to possess with intent to distribute cocaine, attempted possession with intent to
distribute cocaine, carrying of a firearm in furtherance of a crime of violence and a
drug trafficking crime, and possession of a firearm and ammunition by an illegal
alien. Perez appeals the district court’s denial of his motions for a continuance,
mistrial, and new trial. And he contends the court’s failure to permit him time to
secure an expert witness deprived him of due process. He also appeals the district
court’s denial of his motion to sever Count 6 of the indictment, possession of a
firearm and ammunition by an illegal alien. After thorough review, we affirm.
I.
This case involves a sting operation in which Perez and several co-
conspirators planned with undercover special agent Erik Espinosa and a
confidential informant to rob a cocaine stash house. Agent Espinosa began
communicating with one of Perez’s co-conspirators in December 2010. On
January 25, 2011, Espinosa had a telephone conversation with a person referred to
only as “Mexico” about the planned robbery. On January 27, Perez and three co-
conspirators met with the confidential informant, planning to go to the stash house
later that day to commit the robbery. Before they could rob the house, agents
arrested them. Of the four co-conspirators, Perez was the only one of Mexican
origin.
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At trial, the defense’s theory of the case was that Perez first became
involved on January 27 and at that time had not yet agreed to commit the crimes.
To debunk this theory, the government was prepared to have Agent Espinosa
testify that the person referred to as “Mexico” in the January 25 phone
conversation was Perez. Because Espinosa did not form that belief until shortly
before trial, however, the government did not disclose during discovery its
intention to elicit the belief from Espinosa. On that ground, the district court
prevented Espinosa from testifying to the identity of “Mexico.” Instead, the
government admitted a transcript and a recording of the January 25 phone
conversation in which one of the conspirators was referred to as “Mexico.” And
the government admitted evidence that Perez was the only Mexican member of the
conspiracy.
At the close of evidence, Perez informed the government and the district
court that he intended to argue in closing that he was not the person referred to as
“Mexico.” The government requested that the district court permit it to argue the
opposite. The district court granted the request. Perez then moved for a
continuance to obtain a voice-recognition expert, but the district court denied the
motion. Perez moved for a mistrial, which the court denied, and the jury convicted
him on all six counts.
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After his conviction, Perez obtained a voice-recognition expert, who opined
that the voice of “Mexico” did not match that of Perez. Perez then moved for a
new trial based on newly discovered evidence, namely the voice-recognition
expert’s report. The district court denied that motion. This is Perez’s appeal.
II.
Perez first argues that the district court erred in denying his motions for a
continuance, mistrial, and new trial. We review the district court’s denial of a
motion for a continuance for abuse of discretion. United States v. Valladares, 544
F.3d 1257, 1261 (11th Cir. 2008). Where the purpose of the continuance is to have
additional time to gather evidence, “a defendant must show that the denial of the
motion for continuance . . . resulted in specific substantial prejudice.” United
States v. Verderame, 51 F.3d 249, 251 (11th Cir. 1995). We also review the denial
of a mistrial for abuse of discretion. United States v. Trujillo, 146 F.3d 838, 845
(11th Cir. 1998). “A defendant is entitled to grant of mistrial only upon a showing
of substantial prejudice.” United States v. Chastain, 198 F.3d 1338, 1352 (11th
Cir. 1999).
Perez argues that, when the government asserted in its closing statement that
the person identified in the January 25 phone call as “Mexico” was actually him,
the district court should have given him a continuance to hire an expert to testify
that the voice on the recording did not match his. But the record reveals that the
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district court’s failure to grant the motion for a continuance did not result in
specific substantial prejudice. Prior to empaneling the jury, the district court stated
that it would not allow Agent Espinosa to testify that the unidentified male in the
transcript was Perez. The government nonetheless introduced the transcript, the
only relevance of which was to tie Perez to the conspiracy at least as early as
January 25. And the only way that could be accomplished was if the jury inferred
Perez, the only Mexican co-conspirator, was the individual referred to as “Mexico”
during the conversation. Perez does not, as he could not, argue that inference is
unsustainable. Yet Perez never asked for permission to get an expert until after the
evidence was closed. The district court’s refusal to grant a continuance at this late
hour, when the relevance of the evidence should have been apparent even before
the jury was empaneled, did not cause specific substantial prejudice. See United
States v. Douglas, 489 F.3d 1117, 1128 (11th Cir. 2007).
After the district court denied his motion for a continuance, Perez moved for
a mistrial on the same theory – that he did not have adequate time to rebut the
prosecution’s suggestion that he was the unidentified person in the January 25
phone call. For the reasons discussed above, Perez has not met his burden of
demonstrating substantial prejudice.
Perez also appeals the district court’s denial of his motion for a new trial
based on the expert’s report he obtained after the verdict that opines that the voice
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of “Mexico” on the January 25 recording does not match his. We review the
denial of a motion for new trial for abuse of discretion. United States v. Campa,
459 F.3d 1121, 1151 (11th Cir. 2006) (en banc). Where the motion is based on
newly discovered evidence, the defendant must show that: “(1) the evidence was
in fact discovered after trial; (2) the defendant exercised due care to discover the
evidence; (3) the evidence was not merely cumulative or impeaching; (4) the
evidence was material; and (5) the evidence was of such a nature that a new trial
would probably produce a different result.” United States v. Lee, 68 F.3d 1267,
1273 (11th Cir. 1995).
In this case, Perez could have produced the expert’s report before the verdict
if he had exercised due care. Although the district court opined that a voice-
recognition expert probably was not necessary “if the Government [was] going to
proceed on the theory to the jury that [the person referred to as “Mexico” in the
transcript] is an unknown male,” that did not foreclose Perez from requesting one.
Significantly, Perez explicitly considered on the record asking the court to appoint
a voice recognition expert before trial began. His choice not to do so does not
render the subsequently created report new evidence he could not have discovered
with due care.
Thus, we hold Perez cannot show that the district court abused its discretion
in failing to grant his motions for a continuance, mistrial, or new trial.
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III.
Perez also claims, for the first time on appeal, that his due process rights
were violated because he was not given the opportunity to adequately rebut the
prosecution’s theory that he was “Mexico” on the tape. Because Perez did not
raise this argument before the district court, we review for plain error. United
States v. Swatzie, 228 F.3d 1278, 1281 (11th Cir. 2000). To establish plain error,
Perez must show there is (1) error, (2) that is plain, (3) that affects substantial
rights, and (4) that seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Johnson v. United States, 520 U.S. 461, 467 (1997).
In support of his due process claim, Perez cites Ake v. Oklahoma, 470 U.S.
68 (1985), for the proposition that a defendant is deprived of due process when he
is not given adequate opportunity to rebut the prosecution’s theory of the case. Ake
held that, “when a defendant has made a preliminary showing that his sanity at the
time of the offense is likely to be a significant factor at trial, the Constitution
requires that a State provide access to a psychiatrist’s assistance on this issue if the
defendant cannot otherwise afford one.” 470 U.S. at 74. But we have never
expressly applied Ake’s rule outside of the context of psychiatric experts. See
United States v. Brown, 441 F.3d 1330, 1365 (11th Cir. 2006). Thus, the district
court did not plainly err. See United States v. Olano, 507 U.S. 725, 734 (1993)
(stating that plain errors are those that are “clear under current law”); United States
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v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (“It is the law of this circuit
that, at least where the explicit language of a statute or rule does not specifically
resolve an issue, there can be no plain error where there is no precedent from the
Supreme Court or this Court directly resolving it.”).
IV.
Finally, Perez argues that the district court erred by failing to sever Count 6
of the indictment. Count 6 charged Perez with being an illegal alien in possession
of a firearm. “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. Walser, 3 F.3d 380, 385 (11th
Cir. 1993).
Perez concedes that the mere failure to sever the charge did not cause
substantial prejudice. Rather, he argues that it would have been less prejudicial to
bifurcate the trial and try Count 6 separate from the others or to permit him to
stipulate outside of the jury’s presence that he was an illegal alien, thereby making
Count 6 only about whether he possessed a firearm. 1 But even assuming that one
of these alternatives would have been less prejudicial, that alone does not make the
1
Perez also contends that the district court should have permitted him to plead guilty or nolo
contendere to Count 6. But he indicated that he intended to contest whether he possessed a
firearm on Count 5, carrying of a firearm in furtherance of a crime of violence and a drug
trafficking crime. Accordingly, the district court did not abuse its discretion in refusing to accept
the plea. See United States v. Gamboa, 166 F.3d 1327, 1331 n.4 (11th Cir. 1999) (“A court
cannot accept a guilty plea unless it is satisfied that the conduct to which the defendant admits
constitutes the offense charged.”).
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district court’s refusal to accept one reversible error. See id. (“To justify reversal
more than some prejudice must be shown; the appellant must demonstrate that he
received an unfair trial and suffered compelling prejudice.” (internal quotation
marks omitted)). Therefore, Perez has not shown the district court abused its
discretion by failing to sever Count 6.
IV.
For the foregoing reasons, we affirm Perez’s convictions.
AFFIRMED.
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