United States v. Carlos Cardenas

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 9, 2007
No. 05-12336 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-20450-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS CARDENAS,
ROSA LASSERRE SANCHEZ,
BEATRIZ MARRERO,
a.k.a. Bee,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(May 9, 2007)
Before TJOFLAT, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
I.
Defendants Carlos Cardenas, Beatriz Marrero, and Rosa Sanchez appeal
their convictions related to a conspiracy to possess with intent to distribute Ecstacy
and the laundering of the proceeds from that conspiracy. For the reasons that
follow, we AFFIRM the appellants’ convictions.
II.
On June 27, 2003, a federal grand jury returned a superseding indictment
charging twenty defendants with eighty-five counts relating to a conspiracy to
possess with intent to distribute methylenedioxymethamphetamine (“MDMA” or
“Ecstacy”) and the laundering of the proceeds from the importation, sale, and
distribution of the drug. Cardenas was charged with conspiracy to possess with
intent to distribute and with possession with intent to distribute. Sanchez and
Marrero were charged with conspiracy to launder monetary instruments. Sanchez
also was charged with two counts of money laundering. Marrero also was charged
2
with two counts of conducting financial transactions with drug proceeds.
The head of the drug conspiracy to which Cardenas, Marrero, and Sanchez
were alleged to have belonged was Edward Diaz, a long time drug dealer who had
been indicted for distribution of cocaine in the Middle District of Florida in 1998
and, as a result, had fled to Spain where he established a cigarette company. The
company’s only venture was an attempt to export six containers of cigarettes to
Venezuela, but the shipment was held by customs for failure to pay import duties.
After this tobacco venture failed, Diaz returned to Miami under the name Eduardo
Gonzalez, and, returning to the drug trade, he began to import Ecstacy.
Diaz’s Ecstacy enterprise had several facets. Drug couriers would bring the
Ecstacy to Miami on commercial flights from Spain. Diaz then would sell the
drugs and launder the money by having other participants in the conspiracy carry
cash back to Spain to be given to his drug supplier. Cardenas, who had an
established relationship with Diaz dating back to Diaz’s previous cocaine trade in
Florida, was alleged to have acquired both Ecstacy and cocaine from Diaz for
distribution. Marrero and Sanchez were alleged to have each made trips to Spain
carrying cash to be delivered to Diaz’s drug supplier. In return for carrying the
cash, the government contended that Marrero and Sanchez received a percentage of
the total amount of monies transported.
3
On July 21, 2001, Diaz was arrested as a fugitive from the earlier charges in
the Middle District of Florida and a search of his home ensued. During the search,
police discovered several notebooks (“drug ledgers”) containing numbers and
names; some of the names were coded or abbreviated.1 Although he had been
arrested on the earlier cocaine charges, it became clear to the DEA that Diaz was
involved in a new drug enterprise. Shortly after his arrest, Diaz entered into a
cooperation agreement with the government.
DEA Agent Timothy Reagan lead the investigation into Diaz’s Ecstacy
dealings and used the drug ledgers seized from Diaz’s home to identify other
individuals involved. Through a process of matching the names in the drug ledgers
to other sources, Agent Reagan was able to identify those he believed to be
smuggling Ecstacy into the country and those who were transporting money back
to Spain. This technique, however, was unsuccessful in identifying some of the
individuals named in the drug ledgers, so Agent Reagan asked Diaz for assistance.
One name that appeared in the drug ledgers was “Bee.” During the
investigation of this name, Agent Reagan discovered a piece of paper in Diaz’s
apartment with the letter “B” and four telephone numbers. Two of those telephone
numbers matched the telephone numbers for a “Beatriz Marrero” in Diaz’s address
1
During the trial of Cardenas, Marrero, and Sanchez, these drug ledgers were admitted as
coconspirator statements under Federal Rule of Evidence (“FRE”) 801(d)(2)(E).
4
book, and Diaz later testified at trial that “Bee” was, in fact, Marrero.
Diaz met Marrero shortly after returning to the United States from Spain to
begin his Ecstacy business, and Marrero had been introduced to Diaz as someone
who could lend him money. Marrero owned the San Mar Insurance Agency and,
according to the government, loaned Diaz $100,000 to assist in the starting of his
new drug organization. Marrero, on the other hand, testified that she met with
Diaz to became a partner in his tobacco business with a focus on securing the
release of the cigarettes being held in Venezuela. To secure the cigarettes, Marrero
retained an attorney in Venezuela. The attempts were unsuccessful, however, and
the cigarettes were incinerated shortly before Diaz’s arrest. After the initial
business meeting between Diaz and Marrero to discuss the $100,000 loan, Diaz
proposed that Marrero also begin taking drug money to Spain for him in return for
a percentage of the proceeds. According to Diaz, she accepted his offer and also
began changing the denominations of the cash from small bills to large bills to
make the funds easier to transport.
At some point, Diaz became concerned that Marrero’s travel to Spain was
suspicious. As such, Marrero proposed that Sanchez, her employee at the San Mar
Insurance Agency, transport the money in her place. Diaz knew Sanchez from his
interactions with Marrero at the insurance agency, and he paid her for the trips
5
through Marrero. When attempting to identify Sanchez’s name in Diaz’s drug
ledgers, Agent Reagan was unable to make a direct connection. Agent Reagan
asked Diaz, and Diaz told him that the name “Rosa” in the drug ledgers referred to
Rosa Sanchez.
In addition to taking money to Spain, Marrero and Sanchez also helped
facilitate the purchase of two cars for Diaz. Although she had never worked there,
Diaz’s girlfriend listed her employer as the San Mar Insurance Agency in
connection with the purchase of a Ford Excursion. Agent Reagan also located a
check from the San Mar Insurance Agency, which was signed by Sanchez, for
partial payment on the Excursion. Diaz also purchased a Jaguar for $35,000 using
a check from the San Mar Insurance Agency, which was signed by Marrero.
When arrested, Sanchez contended that she only had traveled to Spain on
two occasions to deliver documents for the tobacco company. Marrero also denied
any involvement in a money laundering or money courier operation when arrested
and claimed to have met Diaz merely to become a partner in the tobacco business.
With regard to the two cars purchased by Diaz and his girlfriend, Marrero claimed
that these payments were loans to Diaz as a favor.
In one of Diaz’s drug ledgers, Agent Reagan found an entry for a “Carlos”
accompanied by two telephone numbers. Agent Reagan then matched these two
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telephone numbers to an entry in Diaz’s address book for a “Carlos,” along with
one additional telephone number. Using telephone records, Agent Reagan traced
two of these three numbers to Maria Cardenas, who is the wife of appellant Carlos
Cardenas. According to the government, Cardenas was one of Diaz’s drug
distributors. Diaz had met Cardenas at a family event and began dealings in
cocaine and marijuana in the early 1990s. After Diaz returned to the United States
in 2000, he approached Cardenas about becoming an Ecstacy distributor. Cardenas
preferred cocaine, however, and, in a compromise, Diaz supplied him with both
cocaine and Ecstacy.
Cardenas, Marrero, and Sanchez proceeded to a joint jury trial, which
included two other defendants. Both Agent Reagan and Diaz testified on behalf of
the government. The only defendant to testify was Marrero. During the trial,
several issues arose which are now part of this appeal. First, over hearsay
objections and under an instruction to the jury that Diaz’s information was not
being offered “for the truth” but to show what process Agent Reagan used to
continue his investigation, Agent Reagan was permitted to testify as to Diaz’s
answers to his questions regarding the identities of those listed in the drug ledgers.
Second, Cardenas unsuccessfully objected to Diaz testifying as to their previous
relationship dealing drugs in the 1990s. Third, the district court denied Cardenas’s
7
request for a buyer-seller jury instruction. Finally, Marrero unsuccessfully moved
for a continuance and a mistrial after the government questioned her about an
equity check the government alleged had been used to fund the loan from Marrero
to Diaz when they first met.
After a lengthy jury trial, Cardenas, Marrero, and Sanchez were convicted.
Cardenas was convicted of conspiracy to possess Ecstacy with intent to distribute
in violation of 18 U.S.C. § 846 and possession of Ecstacy with intent to distribute
in violation of 18 U.S.C. § 841(a)(1). Cardenas was sentenced to two concurrent
terms of 78 months in prison and three years supervised release. Marrero was
found guilty of conspiracy to commit money laundering in violation of 18 U.S.C.
§ 1956(h), laundering of monetary instruments in violation of 18 U.S.C.
§§ 1956(a)(2)(A) and (a)(2)(B)(i), and laundering of monetary instruments in
violation of 18 U.S.C. § 1956(a)(1)(B)(i). Marrero was sentenced to concurrent
terms of 97 months imprisonment and three years supervised release. Sanchez was
convicted of conspiracy to commit money laundering in violation of 18 U.S.C.
§ 1956(h) and laundering of monetary instruments in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i). Sanchez was sentenced to concurrent terms of 63 months
imprisonment and two years supervised release. Appellants now appeal.
8
III.
A. Carlos Cardenas
1. Agent Reagan’s Testimony
Cardenas first argues that the district court committed reversible error by
allowing Agent Reagan to testify as to what Diaz told him when, during the
investigation, Agent Reagan asked Diaz to identify the individuals listed in the
drug ledgers. We review the district court’s decision to allow this testimony for
abuse of discretion. United States v. Hands, 184 F.3d 1322, 1326 (11th Cir. 1999).
FRE 801(c) defines hearsay as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Hearsay is inadmissible unless excepted by another
rule. See United States v. Fernandez, 892 F.2d 976 (11th Cir. 1989). More
specifically, a declarant’s out-of-court statement made while cooperating with the
police is inadmissible if offered for the truth of the matter asserted. United States
v. Perez-Garcia, 904 F.2d 1534, 1540 (11th Cir. 1990). This is true even when the
cooperating individual later testifies at trial because the out-of-court statements
9
“were not made by the declarant[] while testifying at a trial or hearing.” United
States v. Summers, 598 F.2d 450, 459 n.11 (5th Cir. 1979).2
Cardenas argues that the government here improperly used the out-of-court
statements from Diaz for the truth of the matter asserted and to prove the
government’s case. The government concedes that some of Agent Reagan’s
testimony exceeded the progress-of-the-investigation rationale and was
impermissible hearsay because it was admitted for the truth of the matters asserted
by Diaz.3 We conclude, however, that even if this introduction of the actual
identities of the individuals in the drug ledgers was impermissible hearsay, this
error does not require reversal in this case.
Evidentiary decisions do not constitute reversible error unless a substantial
right of the party is affected, and errors affect a substantial right of a party if they
“have a ‘substantial influence’ on the outcome of a case or leave ‘grave doubt’ as
to whether they affected the outcome of a case.” United States v. Frazier, 387 F.3d
1244, 1266 n.20 (11th Cir. 2004) (en banc), cert. denied, 544 U.S. 1063 (2005).
Here, we conclude that the error in admitting Agent Reagan’s testimony regarding
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions handed down by the former Fifth Circuit before the
close of business on September 30, 1981.
3
The government states that the out-of-court revelations of the actual identities of the
individuals listed in Diaz’s ledgers were impermissible hearsay.
10
what Diaz told him about the identities of the individuals in the drug ledgers was
harmless error because (1) the same information imparted to the jury by Agent
Reagan came in through Diaz’s own testimony, and, thus, Agent Reagan’s
testimony did not contribute evidence not otherwise before the jury, and (2) the
government properly introduced other overwhelming evidence of Cardenas’s guilt.
Summers, 598 F.2d at 458-59.
2. Diaz’s Testimony Regarding Prior Drug Dealings with Cardenas
During the trial, Diaz testified regarding how he met Cardenas and about
their prior drug dealings together. Before this testimony was introduced, the
district court instructed the jury regarding how it might receive the evidence, and
made the following statement.
Second, I had previously told you that evidence of prior bad acts or
wrongs or crimes is not admissible to prove the character of the person
in order to show that that person committed the bad acts charged in the
Indictment.
Do you remember that? We went over that previously. I said that you
may receive this evidence only for a limited purpose and, that is, to
explain how the alleged relationship between the participants in the
crime charged in the Indictment developed and to explain the alleged
mutual trust that existed between the participants.
Diaz testified that he met Cardenas, a distant relative, at a family function. They
11
then began dealing cocaine and marijuana together around 1991, before Diaz fled
to Spain. Diaz testified that, after returning from Spain, he approached Cardenas
regarding purchasing Ecstacy because of their established business relationship.
We review the district court’s decision to allow the admissibility of such
evidence for abuse of discretion. United States v. Hands, 184 F.3d 1322, 1326
(11th Cir. 1999).
Under FRE 404(b), “Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.” FRE 404(b), however, extends only to extrinsic evidence, and “bad
acts” evidence is not extrinsic under FRE 404(b) if it is “(1) an uncharged offense
which arose out of the same transaction or series of transactions as the charged
offense, (2) necessary to complete the story of the crime, or (3) inextricably
intertwined with the evidence regarding the charged offense.” United States v.
Utter, 97 F.3d 509, 513 (11th Cir. 1996). Evidence fitting within one of these
prongs is governed by FRE 403 and may still be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. United States v.
Fallen, 256 F.3d 1082, 1091 (11th Cir. 2001).
Here, the district court did not err in admitting Diaz’s testimony regarding
his prior drug dealings with Cardenas because the evidence was introduced for the
12
limited purpose of demonstrating why Diaz turned to Cardenas to distribute the
new product line. United States v. Costa, 691 F.2d 1358, 1360-61 (11th Cir. 1982)
(“The trial court did not abuse its discretion in allowing Campbell to testify
concerning his prior relationship with Costa, even though his testimony showed
Costa previously had dealt in cocaine.”); see also United States v. Richardson, 764
F.2d 1514, 1521-22 (11th Cir. 1985). Because Diaz and Cardenas had an
established relationship and the testimony was offered to explain this relationship
and why Diaz approached Cardenas to distribute the Ecstacy, the evidence was
inextricably intertwined with the evidence regarding the charged offense.4
Furthermore, the district court gave the jury a limiting instruction to ensure there
was no confusion regarding the purpose of this evidence. United States v.
Shenberg, 89 F.3d 1461, 1472 (11th Cir. 1996) (“We presume that a jury follows
the court’s instructions.”).
4
The term “inextricably intertwined”is defined in United States v. Williford:
Evidence, not part of the crime charged but pertaining to the chain of events
explaining the context, motive and setup of the crime, is properly admitted if
linked in time and circumstances with the charged crime, or forms an integral and
natural part of the account of the crime, or is necessary to complete the story of
the crime for the jury.
764 F.2d 1493, 1499 (11th Cir. 1985).
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3. Cardenas’s Requested Jury Instruction
A district court’s decision not to give a proposed jury instruction is reviewed
for abuse of discretion. United States v. Puche, 350 F.3d 1137, 1150 (11th Cir.
2003). A defendant is entitled to have a jury instruction presented relating to a
theory of defense for which there is any foundation in the evidence, even if the
evidence is weak, insufficient, inconsistent, or of doubtful credibility. United
States v. Opdahl, 930 F.2d 1530, 1535 (11th Cir. 1991). If the requisite evidence
exists, the refusal to give a requested jury instruction “warrants reversal only if
(1) the instruction is substantially correct, (2) the requested instruction was not
addressed in the charge actually given, and (3) the failure to give the requested
instruction seriously impaired the defendant’s ability to present an effective
defense.” United States v. Moorman, 944 F.2d 801, 802 (11th Cir. 1991); see also
United States v. Ruiz, 59 F.3d 1151, 1154 (11th Cir. 1995).
Cardenas argues that the government failed to establish more than a buyer-
seller relationship and, therefore, he requested a specific jury instruction on this
defense. “Even if a requested jury instruction is proper, the trial court has some
discretion in framing the instruction. If the charge to the jury adequately and
correctly covers the substance of the requested instruction, there is no reversible
14
error.” United States v. Lively, 803 F.2d 1124, 1128 (11th Cir. 1986) (affirming
district court’s refusal to give a “buyer/seller” instruction where the district court
had instructed the jury on the elements of a drug conspiracy). Here, the district
court instructed the jury on the elements of a drug conspiracy and specifically
stated that “a person who has no knowledge of a conspiracy but who happens to act
in a way which advances some purpose of one does not thereby become a
conspirator.” As in Lively, the drug conspiracy instruction here adequately
addressed the substance of Cardenas’s requested buyer-seller instruction because it
noted that a single act does not constitute participation in the conspiracy. See id. at
1128-29. Therefore, the district court did not abuse its discretion when it refused to
give Cardenas’s requested jury instruction.
4. Sufficiency of the Evidence
Cardenas also challenges the sufficiency of the evidence and the district
court’s denial of his motions for judgment of acquittal and for a new trial. Based
on a careful review of the record and the parties’ arguments, we conclude that the
evidence was sufficient to uphold Cardenas’s conviction, and we affirm his
conviction without further discussion.
15
B. Rosa Sanchez
Sanchez challenges the sufficiency of the evidence as to her conviction for
conspiracy to commit money laundering and for laundering of monetary
instruments. Whether there is sufficient evidence to support a conviction is a
question of law which we review de novo. United States v. Tarkoff, 242 F.3d 991,
993 (11th Cir. 2001). The relevant inquiry is “whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. “ Id.(quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct.
2781, 2789 (1979)).
Based on a careful review of the record and the parties’ arguments, we
conclude that, although the government’s evidence against Sanchez was not
overwhelming, the evidence was sufficient to uphold Sanchez’s conviction.
First, Diaz testified that when he warned Marrero that her continued travel
between Miami and Spain might raise suspicion, Marrero nominated Sanchez to
replace her. Although Diaz testified that he did not have a direct conversation with
Sanchez about the transportation of the monies, he did testify that he instructed
Marrero to talk with Sanchez and tell her what to do. Diaz also testified that to his
16
knowledge, Sanchez agreed to take the money to Spain, and the funds he believed
were being transported by Sanchez did end up in the hands of his Ecstacy supplier
in Spain. Furthermore, Diaz testified that he paid Sanchez for transporting the
money, though these payments were made through Marrero. The government
contended that Sanchez took a total of $325,000 to Spain during her two trips.
Second, the name “Rosa” appeared in Diaz’s drug ledgers, and he testified
during trial that “Rosa” referred to Sanchez, who he identified for the jury. The
drug ledgers contained two entries for “Rosa,” and Diaz explained that each entry
indicated when the money was transported, how much money was transported, and
that the money had been received by his drug supplier in Spain. Travel records
regarding Sanchez from a travel agency, the governments Treasury Enforcement
Communication System (“TECS”), and Iberian Airlines were also introduced by
the government to demonstrate that the travel dates listed for “Rosa” in Diaz’s drug
ledgers corresponded to Sanchez’s dates of travel to Spain. The first entry in the
drug ledgers for “Rosa” listed the date May 3, and Agent Reagan was able to
establish that Sanchez left the United States for Spain on May 4, 2001 and returned
on May 6, 2001. The second entry in the drug ledgers for “Rosa” listed the date
May 19, and Agent Reagan was able to establish that Sanchez left the United States
for Spain on or about May 19, 2001 and returned on May 21. The government also
17
introduced evidence to show that numerous calls had been made between Spain
and the San Mar Insurance Agency when either Marrero or Sanchez was in Spain.
Third, although Sanchez did not testify at trial, Marrero was asked about
Sanchez’s trips during her testimony. Marrero testified that she wanted to
purchase two containers of cigarettes from the tobacco company in Spain, but she
needed $12,000 each for a down payment. Marrero asked Sanchez for the money,
and, according to Marrero, Sanchez agreed. Before giving Marrero the money,
however, Sanchez wanted to travel to Spain to meet the tobacco contact in person.
According to Marrero, she drew up a contract regarding the purchase of the two
containers, and Sanchez took the contract to deliver during her trip to Spain to
meet with the tobacco supplier.
Agent Reagan testified that, during a post-arrest interview, Sanchez admitted
that she had traveled to Spain twice, but she claimed that she had traveled to Spain
to deliver documents related to the tobacco business, not to transport drug monies
for Diaz. Agent Reagan testified that when he inquired further, Sanchez offered no
explanation for why her travels were documented in Diaz’s ledgers. Sanchez also
told Agent Reagan that she was unable to deliver the documents she took to Spain
during either trip. Although Sanchez explained that she returned without
delivering the documents the first time because of a sick child, she was unable to
18
give Agent Reagan an explanation for having not delivered the same documents
during her second trip. Furthermore, the government was able to demonstrate that
Marrero made a trip to Spain around May 11, which was between the two times
Sanchez traveled to Spain to deliver the contract Marrero had drawn up for the
tobacco sale.
Taking this evidence as a whole, we conclude that the jury enjoyed the
prerogative to accept Diaz’s testimony and the other evidence and draw the
reasonable inference that Sanchez knew the money she transported was drug
proceeds.
C. Beatriz Marrero
Marrero challenges the district court’s denial of her motion for a continuance
and mistrial. The denial of a motion for continuance is reviewed for abuse of
discretion. United States v. Bowe, 221 F.3d 1183, 1189 (11th Cir. 2000). A
district court’s denial of a motion for new trial based upon the ground that the
government withheld evidence is reviewed for an abuse of discretion. United
States v. Fernandez, 136 F.3d 1434, 1438 (11th Cir. 1998). “This issue must be
decided in light of the circumstances presented, focusing upon the reasons for the
19
continuance offered to the trial court when the request was denied.” United States
v. Knowles, 66 F.3d 1146, 1160-61 (11th Cir. 1995) (citation and quotation marks
omitted). To the extent Marrero makes a claim of prosecutorial misconduct, this
claim is reviewed de novo. United States v. Noriega, 117 F.3d 1206, 1218 (11th
Cir. 1997).
During direct examination, Marrero testified that by January 2000 she had
lost all of her money and credit status. With such limited resources, she argued,
she could not have made the $100,000 loan to Diaz as alleged. On cross-
examination, the government challenged this assertion by questioning Marrero
about an equity check from First Union National Bank for $45,495 on September
7, 2000. Marrero stated she believed these funds went into working capital for the
San Mar Insurance Agency. The government, however, showed Marrero a bank
statement which illustrated that no deposits had been made into the San Mar
Insurance Agency from September to December 2000. Marrero’s counsel then
requested production of the equity check and the government agreed to provide a
copy. Prior to redirect, Marrero’s counsel again requested production of the check,
but the government claimed it was not available. Marrero then testified that she
could not recall the purpose of the check without seeing it, but stated that the
money had not gone to Diaz. Marrero’s counsel then requested the district court to
20
grant a reasonable opportunity to obtain the check. The Government’s rebuttal
case ended that evening, Thursday, July 8, 2004, and the court granted Marrero’s
request for surrebuttal for the following Monday, if the check became available.
On Monday morning, Marrero’s counsel informed the court that pursuant to
a subpoena issued to the bank, the equity check would be available later that day.
Marrero’s counsel, therefore, requested a one day continuance. The government
objected, alleging that the bank statement presented at trial was in the possession of
the defendant and that the defense had been given ample time to prepare. The
district court then denied the request for a further continuance.
Later that day, Marrero secured the check and presented it to the district
court. The district court, however, denied Marrero’s motion to reopen the case.
Marrero’s counsel proffered that if Marrero had been permitted to testify, she
would have stated that after reviewing the check, she recalled that it was deposited
by her mother into her mother’s bank account, and the funds were to repay her
mother for a loan she had given to Marrero to pay certain debts. According to
Marrero, the loan from her mother was given before she met Diaz. Marrero also
moved for a mistrial at this point. The government responded that Marrero’s
proffer was dubious because the equity credit line was on Marrero’s mother’s
house, and it would not make sense for Marrero to repay her mother with money
21
from her mother’s home. Marrero responded that the credit line was drawn on
Marrero’s house, not her mother’s. The court then inquired as to whether the
government had in fact disclosed the bank statement to defense counsel as had
been alleged earlier. The government stated it would have to check. Defense
counsel noted that, as an indication that it had not been provided, the bank
statement admitted at trial did not contain a Bates stamp. The district court denied
the motion for a mistrial, finding that the check was just “one little piece of a lot of
evidence,” and Marrero, “having testified, could have anticipated or addressed
these issues if she wished.”
The district court commented further on the check issue when, in a February
2, 2005 order, it rejected Marrero’s post-verdict motion to dismiss for prosecutorial
misrepresentation of evidence and discovery violations. In this order, the district
court stated that the issue of the check did not have “any tendency to mislead the
jury and prejudice the accused,” especially because “the matter was isolated when
compared to the overwhelming evidence of guilty [sic] against Marrero and other
impeachment against Diaz, and that none of this was tactically or deliberately
placed before the jury by the Government in order to prejudice the defendant.”
The district court also stated that “Marrero’s testimony during her case was so
contradicted with other lies that this issue was de minimus in terms of the jury’s
22
weighing her credibility.”
The decision to grant a continuance is traditionally within the discretion of
the district court. Hicks v. Wainwright, 633 F.2d 1146, 1148-49 (5th Cir. 1981)
(“The matter of continuance is traditionally within the discretion of the trial judge,
and it is not every denial of a request for more time that violates due process even
if the party fails to offer evidence or is compelled to defend without counsel.”)
(quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L. Ed. 2d 921(1964)). Here, we conclude that the district court did not abuse its discretion in
rejecting Marrero’s motion for a continuance. First, the bank statement used by the
government to establish that the credit line had been used was not introduced as
part of the government’s case in chief, but, rather, during cross-examination for
impeachment purposes. Second, the government did not have a copy of the check
in question. Third, the district court granted Marrero from Thursday evening until
Monday morning to acquire a copy of her own check, which she failed to do.
Finally, as the district court noted, this was but one small piece of a much larger
case. As such, we conclude that the district court did not abuse its discretion by
denying Marrero’s motions for a continuance and a mistrial.
Marrero also argues that the district court should have granted her motion
for a mistrial because of prosecutorial misconduct. Prosecutorial misconduct is
23
established through a two-part test: (1) the questionable conduct must be improper,
and (2) the questionable conduct must prejudicially affect the substantial rights of
the defendant. United States v. Gonzalez, 122 F.3d 1383, 1389 (11th Cir. 1997);
United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991). The ultimate focus
is whether the accused received a fair trial. United States v. Crutchfield, 26 F.3d
1098, 1100 (11th Cir. 1994). After a review of the record as a whole, we conclude
that Marrero has failed to establish that the government’s actions here were
improper, and, even if such a showing were made, in light of the overwhelming
evidence against her, Marrero cannot demonstrate that the conduct prejudicially
affected her substantial rights.
IV.
For the foregoing reasons, we AFFIRM the district court’s rulings and the
appellants’ convictions.
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