United States v. Noel Albanes-Gomez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10752 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 21, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:08-cr-14060-JEM-6
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NOEL ALBANES-GOMEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 21, 2010)
Before TJOFLAT, BLACK and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Noel Albanes-Gomez was convicted at the hands of a jury on
both counts of a superceding indictment—Count 1, which charged him with
conspiring in violation of 18 U.S.C. § 1349 to commit mail fraud in violation of 18
U.S.C. § 1341, and Count 2, which charged him with the substantive § 1341
offense—and the district court sentenced him to concurrent prison terms of thirty-
six months. He now appeals his convictions. The charges against appellant were
based on fraudulent applications he and his coconspirators submitted to a
mortgage company to obtain funds to purchase residential properties—at least ten
of which were used as marijuana grow houses. Appellant asks that we vacate his
convictions and grant him a new trial on several grounds. None have merit.
I.
Appellant contends that the district court abused its discretion by admitting
Federal Rule of Evidence 404(b) evidence of his marijuana arrest on November
10, 2005. The arrest occurred after a Miami police officer approached the front
door of a Miami residence, smelled marijuana emanating from the house, and
knocked. Appellant answered the knock and permitted the officer to enter. Once
inside, the officer discovered five rooms that were constructed to grow marijuana
and contained evidence of such purpose. He placed appellant under arrest and
read him his Miranda rights. Appellant then admitted to the officer that he had
been using the house to grow marijuana.
We review the district court’s decision to admit or exclude the evidence of
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the arrest for an abuse of discretion. United States v. Matthews, 431 F.3d 1296,
1311 (11th Cir. 2005). Rule 404(b) prohibits evidence of other crimes, wrongs, or
acts to prove a person’s character in order to show action in conformity therewith.
This type of evidence is admissible, however, for other purposes, such as proof of
motive, intent, or absence of mistake or accident provided that the government
provides reasonable notice of the general nature of any such evidence it intends to
introduce at trial. “Evidence, not part of the crime charged but pertaining to the
chain of events explaining the context, motive and set-up of the crime, is properly
admitted if . . . it forms an integral and natural part of an account of the crime, or is
necessary to complete the story of the crime for the jury.” United States v.
Church, 955 F.2d 688, 700 (11th Cir. 1992) (internal quotation omitted). “In such
a situation, because the evidence is intrinsic, not extrinsic, we do not engage in a
Rule 404(b) analysis.” Id.
We apply a three-part test to determine whether extrinsic evidence of prior
bad acts is admissible under Rule 404(b):
First, the evidence must be relevant to an issue other than
the defendant’s character; Second, the act must be
established by sufficient proof to permit a jury finding that
the defendant committed the extrinsic act; [and] Third, the
probative value of the evidence must not be substantially
outweighed by its undue prejudice, and the evidence must
meet the other requirements of Rule 403.
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Matthews, 431 F.3d at 1310-11. Under the first prong, “in every conspiracy case,
a not guilty plea renders the defendant’s intent a material issue,” and extrinsic
evidence which may be probative of a defendant’s state of mind is admissible
“unless the defendant affirmatively takes the issue of intent out of the case.” Id. at
1311 (alterations and internal quotation marks omitted). A jury is entitled to
believe as much or as little of the witnesses’ testimony as it finds credible, and the
“difficulty of proving intent in conspiracies is what creates the presumption that
intent is always at issue.” Id. at 1312.
A district court may exclude relevant evidence “if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury . . .” Fed. R. Evid. 403. This determination “calls
for a common sense assessment of all the circumstances surrounding the extrinsic
offense, including prosecutorial need, overall similarity between the extrinsic act
and the charged offense, as well as temporal remoteness.” United States v.
Jernigan, 341 F.3d 1273, 1282 (11th Cir. 2003) (quotation omitted). Although the
district court has a great degree of discretion in weighing probative value and
prejudice under Rule 403, we have “also recognized that Rule 403 is an
extraordinary remedy which the district court should invoke sparingly, and the
balance . . . should be struck in favor of admissibility.” United States v. Dodds,
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347 F.3d 893, 897 (11th Cir. 2003) (quotations omitted).
We find no abuse of discretion in the admission of appellant’s marijuana
arrest. First, the evidence was relevant to an issue other than appellant’s character,
namely his intent, which, by pleading not guilty, appellant placed at issue. See
Matthews, 431 F.3d at 1311. Second, appellant concedes that he was growing
marijuana in his home; hence, the second prong is not at issue. See Matthews, 431
F.3d at 1311 n.14 (concluding that where the defendant does not challenge the
sufficiency of the evidence supporting the extrinsic act, the second prong need not
be considered). Third, the probative value and the government’s need for this
evidence substantially outweighed any unfair prejudice.
II.
Appellant contends that the district court erred in admitting the statements
he made to the officer following his arrest infringed his Fifth Amendment right to
remain silent. Use of a defendant’s post-Miranda silence to impeach his defense
at trial violates the defendant’s due process rights. Doyle v. Ohio, 426 U.S. 610,
619, 96 S. Ct. 2240, 2245, 49 L. Ed. 2d 91 (1976); United States v. O’Keefe, 461
F.3d 1338, 1345-46 (11th Cir. 2006). However, not every mention of a
defendant’s post-Miranda silence is a Doyle violation. Our precedent has, for
example, distinguished the situation of a suspect who chooses to speak in part and
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assert his right to silence in part, from one who remains silent altogether. Lofton v.
Wainwright, 620 F.2d 74, 76-79 (5th Cir. 1980) (habeas context); see also United
States v. Dodd, 111 F.3d 867, 869-70 (11th Cir. 1997) (asking whether the
prosecutor addressed Dodd’s silence or rather the context of the statement that
Dodd offered). Additionally, a single comment does not constitute a Doyle
violation when that comment is not used by the government in making a specific
inquiry or argument about the defendant’s post-arrest silence. See United States v.
Stubbs, 944 F.2d 828, 834-35 (11th Cir.1991).
In this case, as in Stubbs, the government made no specific inquiry or
argument about appellant’s post-arrest silence. Id. at 835. Moreover, the
government did not attempt to use appellant’s post-arrest silence to impeach his
testimony, for appellant testified that he was in fact growing marijuana in his
home. In short, we find no Fifth Amendment violation occurred.
III.
Appellant contends that the district court abused its discretion in (a)
admitting Rule 404(b) evidence that he failed to file a 2005 or 2006 income tax
return and evidence that he structured cash deposits into his bank account; (b)
denying his motion for a mistrial; and/or (c) refusing his request for a curative
instruction. Finally, he argues that the cumulative effect of these errors deprived
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him of a fair trial.
We find no abuse of discretion in the court’s admission of the evidence of
appellant’s failure to file income tax returns for 2005 and 2006. The mortgage
application stated that he made over $90,000 a year, which was material to the
lender’s decision to grant the loan requests. The evidence that appellant had not
filed the returns for 2005 and 2006 demonstrated that he had lied about his income
on the mortgage application. The evidence was clearly relevant and probative of
the charged offenses.
We review a denial of a mistrial motion for abuse of discretion. United
States v. Ramirez, 426 F.3d 1344, 1353 (11th Cir. 2005). Because a trial judge is
in the “best position to evaluate the prejudicial effect of a statement or evidence on
the jury,” it is within that judge’s discretion to grant or deny a mistrial. United
States v. Delgado, 321 F.3d 1338, 1346-47 (11th Cir. 2003) (quotation omitted).
“Evidentiary . . . errors do not constitute grounds for reversal unless there is a
reasonable likelihood that they affected the defendant’s substantial rights.” United
States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990). A defendant’s
substantial rights are not affected if properly admitted evidence sufficiently
establishes his guilt. Ramirez, 426 F.3d at 1353.
“The cumulative error doctrine provides that an aggregation of non-
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reversible errors (i.e., plain errors failing to necessitate reversal and harmless
errors) can yield a denial of a constitutional right to a fair trial, which calls for
reversal.” United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005) (quotation
omitted). We address a claim of cumulative error by first considering the validity
of each claim individually, and then examining any errors in the aggregate and the
trial as a whole to determine whether the appellant was afforded a fundamentally
fair trial. See United States v. Calderon, 127 F.3d 1314, 1333 (11th Cir. 1997).
However, where there is no error or only a single error, there can be no cumulative
error. United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004).
Appellant moved for a mistrial after IRS agent Andrew Schmit referred
briefly to the fact that cash deposits to appellant’s bank accounts in amounts less
than $10,000 constituted “structuring.” Assuming that the court’s admission of
this brief reference was improper, we are satisfied that it did not affect appellant’s
substantial rights—especially in light of the overwhelming proof of guilt.1
AFFIRMED.
1
Appellant’s argument that the court’s errors cumulatively denied him a fair trial is
frivolous.
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