United States v. Yves Nerva Nemorin

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-15872 OCTOBER 8, 2010
Non-Argument Calendar JOHN LEY
________________________ CLERK
D. C. Docket No. 09-20112-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YVES NERVA NEMORIN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 8, 2010)
Before EDMONSON, BLACK and MARTIN, Circuit Judges.
PER CURIAM:
Yves Nemorin appeals his conviction for attempt to possess with intent to
distribute at least 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1).
Nemorin asserts two issues on appeal: (1) the district court erred by admitting
extrinsic evidence in the form of rebuttal testimony; and (2) the government failed
to prove predisposition to commit the offense. After review, we affirm Nemorin’s
conviction.
I.
Nemorin first asserts the district court erred when it allowed the admission
of rebuttal witness Clifford Sibilia's testimony concerning an alleged prior history
of drug transactions with Nemorin.1 Specifically, he contends the evidence was
tenuous and speculative in nature and any probative value was outweighed by
prejudice.
The lack of a contemporaneous objection requires that we review the
admission of testimony for plain error. United States v. Perez-Garcia, 904 F.2d
1534, 1540 (11th Cir. 1990). Plain error means a legal error was committed, the
error is plain, and the error affected the substantial rights of the appellant. United
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Nemorin also claims the district court erred when it failed to give a limiting instruction
regarding Sibilia’s testimony despite the fact Nemorin never objected to the testimony or asked
for a limiting instruction. Because we conclude the district court did not err in admitting
Sibilia’s testimony, we decline to address this issue.
2
States v. Pielago, 135 F.3d 703, 708 (11th Cir. 1998). We will correct a plain
error if the error seriously affects the fairness, integrity or public reputation of
judicial proceedings. See United States v. Olano, 507 U.S. 725, 736 (1993).
The admission of Sibilia's testimony was not plain error. Sibilia’s testimony
was probative as to his predisposition to purchase cocaine. Moreover, the
testimony was neither speculative nor conclusory as Sabilia testified to the number
of times he dealt drugs with Nemorin, the pattern of behavior Nemorin exhibited
when purchasing drugs, the appearance of clients Nemorin brought to drug deals,
the presence of another drug dealer at some of Sibilia’s drug deals with Nemorin,
and the fact that Sibilia first identified Nemorin as a drug dealer to the FBI back in
2005. Finally, Sibilia’s testimony was not unfairly prejudicial because Nemorin's
past drug transactions were relevant to the offense charged and the testimony was
not so detailed that the jury would equate Nemorin's past drug deals with the
attempted drug deal at issue. See United States v. Salisbury, 662 F.2d 738, 741
(11th Cir. 1981) (describing how evidence of extrinsic offenses may be unfairly
prejudicial).
II.
Nemorin next asserts the government failed to prove predisposition to
commit the crime charged beyond a reasonable doubt. Specifically, Nemorin
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claims an alleged confidential informant named Momo exerted pressure on him to
participate in the drug sale.2 Nemorin also restates his argument regarding the
admissibility of Clifford Sibilia’s testimony.
When an entrapment defense is rejected by the jury, we limit our review to
whether the evidence was sufficient for a reasonable jury to conclude that the
defendant was predisposed to take part in the illicit transaction. United States v.
Brown, 43 F.3d 618, 622 (11th Cir. 1995). When a defendant challenges the
sufficiency of the evidence for the first time on appeal, we consider the challenge
under the plain error standard of review. See United States v. Hunerlach, 197 F.3d
1059, 1068 (11th Cir. 1999). Under a plain error review, we only reverse for
insufficient evidence to prevent a manifest miscarriage of justice. United States v.
Hamblin, 911 F.2d 551, 556-57 (11th Cir. 1990).
Nemorin does not argue Sibilia's testimony was insufficient, only that it was
inadmissible. As discussed in the previous section, Sibilia's testimony was
admissible, and Nemorin's insufficiency argument fails. Moreover, even without
Sibilia’s testimony, the tape recordings and Nemorin’s credibility issues provided
2
Other than Nemorin’s own trial testimony, there was no evidence offered to show he was
pressured into the drug sale. The jury was free to disbelieve Nemorin’s testimony and to rely
instead on the testimony of Sibilia. See U.S. v. Brown, 43 F.3d 618, 625 (11th Cir. 1995).
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sufficient evidence such that a reasonable jury could find Nemorin was
predisposed to buy cocaine. Accordingly, we affirm his conviction.
AFFIRMED.
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