United States v. Halima Ouedraogo

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15310
________________________
D.C. Docket No. 0:17-cr-60015-FAM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HALIMA OUEDRAOGO,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 12, 2020)
Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.
BRANCH, Circuit Judge:
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Halima Ouedraogo appeals the denial of her motion to suppress evidence
seized from her purse and hotel room upon her arrest for identity fraud and the
denial of her motion to suppress the post-Miranda statements she made to police
officers after they refused to give her blood pressure medication. Ouedraogo also
challenges the district court’s admission of her pre-Miranda statements at trial by
asserting that her trial counsel did not open the door for the government to admit
them. Finally, Ouedraogo appeals the addition of a guidelines enhancement to her
sentence for using a sophisticated means to commit identity fraud. After review,
we affirm.
I. Background
A grand jury indicted Ouedraogo for using unauthorized access devices with
the intent to defraud, 18 U.S.C. § 1029(a)(2) (Count 1), aggravated identity theft,
18 U.S.C. § 1028A(a)(1) (Counts 2, 4–12), and possessing 15 or more
unauthorized access devices, 18 U.S.C. § 1029(a)(3) (Count 3). Prior to trial,
Ouedraogo moved to suppress several categories of evidence, including: (1)
statements she made prior to receiving her Miranda rights where she lied about her
identity and relationship to one of the victims, (2) statements she made after
receiving her Miranda rights following the denial of her requests for blood
pressure medicine, (3) a notebook found in her purse that the officers seized while
arresting her which contained numerous items containing stolen personally
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identifiable information (“PII”), and (4) the luggage seized from her hotel room
after her arrest.
The district court held a hearing on Ouedraogo’s motion.1 At the hearing,
four witnesses testified as follows. Detective Goldsworthy of the Fort Lauderdale
Police Department testified that he was called to the Embassy Suites regarding an
individual who had recently vacated her room, without paying, following a stay of
several days. Upon arrival, the hotel staff showed him unpaid invoices from the
hotel room, a photo of Ouedraogo (which they had sent to other Hilton hotels in
the area), and several pieces of paper from her vacated room that contained PII.
Goldsworthy and two Fort Lauderdale police officers—Officer Cavalier and
Officer Kuras—then left the Embassy Suites and headed to the Hilton Marina,
another Hilton hotel in the area that Ouedraogo had reportedly checked into that
morning. At the Hilton Marina, Goldsworthy spoke with Murphy, a Hilton Marina
security guard, who informed him that Ouedraogo had checked into the hotel under
a Hilton Honors account under a name that did not match hers (“J.B.”). While
Goldsworthy was speaking with Murphy, Ouedraogo walked into the hotel lobby;
Murphy pointed her out, and Goldsworthy approached her. While the other
officers were speaking with Ouedraogo, Goldsworthy called the real J.B. and
1
At the hearing, the government represented that they did not intend to introduce
Ouedraogo’s statements made before she was given her Miranda warnings, and so that issue was
not litigated or ruled on by the court at the time.
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confirmed that J.B. did not know Ouedraogo. J.B. also told Goldsworthy that she
did not have a Hilton Honors account and had recently had her identity stolen.
Goldsworthy then arrested Ouedraogo and conducted a search of her person,
including the purse she was holding, as part of his normal procedure after an
arrest. 2 Inside Ouedraogo’s purse, Goldsworthy found a small amount of
narcotics, twenty hotel key cards from different Hilton hotels, a Hilton wireless
card and code for a Hilton Honors room (matching the number of the Hilton
Marina room Ouedraogo was staying in), four credit cards with names that did not
match Ouedraogo’s, four cell phones, and a lined notebook.
Goldsworthy did a “quick flip” through the pages of the notebook and
noticed several names that stood out to him, including J.B.’s. The page with J.B.’s
name on it also listed her date of birth, Social Security number, address, and her
mother’s maiden name. He spent only fifteen seconds looking through the
notebook in search of contraband and evidence.
Goldsworthy then went with Murphy to Ouedraogo’s hotel room because
Ouedraogo had informed him that someone else was still inside. Murphy unlocked
the hotel room, and then the police entered. Goldsworthy observed clothing, a
computer, an open binder, a suitcase, and several papers around the room. He
2
Goldsworthy testified later in the hearing that the hotel security officer, Murphy,
informed Ouedraogo that she was trespassing and was no longer welcome on the property just
before the officers arrested her.
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observed that the open binder revealed several names, Social Security numbers,
and credit card numbers in plain view. Goldsworthy put all the items he found in
the purse and in the hotel room into evidence. He later obtained search warrants
for the cell phones.
Meanwhile, Ouedraogo was taken to the Fort Lauderdale police station and
brought into an interview room. When Goldsworthy and another Fort Lauderdale
detective, Detective Hoffer, entered the room, but prior to reading Ouedraogo her
Miranda rights, Ouedraogo asked for blood pressure medicine. Goldsworthy gave
her the “standard response”: he could not give her medicine or allow her to take
medicine. Ouedraogo responded by asking Goldsworthy “Are you trying to kill
me?” and “Do you want me to die?” Ouedraogo repeated her request for medicine
several times. Goldsworthy then asked if she needed medical assistance. When
she indicated she did, Hoffer stepped out and called Fire Rescue. It took “about
90 seconds” for Ouedraogo to request assistance, Hoffer to step out and call, and
for him to come in and inform her that Fire Rescue was on the way.
After calling for medical assistance, the detectives reviewed Ouedraogo’s
Miranda rights with her using the standard Fort Lauderdale Police Department
rights waiver form. Ouedraogo signed the waiver, acknowledging that she
understood her rights, that no promises or threats had been made to her, and that
she was willing to answer questions without an attorney present. Ouedraogo asked
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Goldsworthy at one point for legal advice regarding the Miranda waiver, and he
informed her that he could not give her any. After she signed the waiver, the
detectives then moved to the substantive portion of the interview. At no point did
Ouedraogo state that she did not want to speak with them. Goldsworthy stated that
Ouedraogo appeared coherent the entire interview, she never stated that she did not
wish to speak with them, and he did not make the threat that she would not receive
treatment unless she spoke with them. Fire Rescue arrived and Ouedraogo initially
refused to go to the hospital, but she was required to be medically cleared before
taken to jail.
Officer Cavalier, who had accompanied Goldsworthy to the Hilton Marina,
testified that he transported Ouedraogo to the police station for her interview and
did not remember her complaining about her medical condition or showing signs
of distress.
The two Fire Rescue paramedics who were dispatched to Fort Lauderdale
Police Department on the day of Ouedraogo’s arrest testified that they took her
blood pressure a total of three times, and the readings showed that her blood
pressure level was above average and rose to “a little on the high side.”
Ouedraogo expressed symptoms of lightheadedness and dizziness, but other than
the slightly high blood pressure, Ouedraogo did not manifest any physical issues
and appeared “normal.” One of the paramedics testified that he believed that her
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blood pressure was rising because Ouedraogo had not taken her medicine for
hypertension, or high blood pressure.3
At the conclusion of the hearing, the district court orally denied Ouedraogo’s
motion to suppress her post-Miranda statements. The court found that her requests
for medicine did not make her waiver involuntary because there was no evidence
that the police indicated she could not get her medicine unless she spoke with
them. After the suppression hearing, the district court denied in a written order the
balance of Ouedraogo’s motion to suppress. The court found that the notebook in
her purse was properly searched incident to Ouedraogo’s arrest. Regarding the
items found in Ouedraogo’s hotel room, the court found that she had no reasonable
expectation of privacy in the hotel room because, by the time Ouedraogo was
arrested, Hilton personnel had explicitly evicted her and provided a verbal
trespassing warning for her fraudulent use of J.B.’s information. Therefore, the
court found that she did not have standing to contest the search.
Ouedraogo proceeded to trial. During the trial, the government questioned
Murphy, the hotel security officer, about speaking with Goldsworthy and
observing Ouedraogo walk into the lobby. Murphy testified that when he pointed
out Ouedraogo to Goldsworthy, the detective “motioned to her and asked, ‘hey can
3
According to the paramedic, high blood pressure could have complications that may
result in death, but it would have to be “much higher” than what Ouedraogo experienced.
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we talk to you for a minute?’” According to Murphy, Ouedraogo “kinda stopped
in her tracks, kind of looked for a second and then continued to walk.”
During cross-examination, Ouedraogo’s counsel addressed Murphy’s
testimony about the initial meeting of Ouedraogo and Goldsworthy: “You
mentioned that Ms. Ouedraogo stopped in her track and then walked. To clarify,
you meant walk towards you, is that correct?” Separately, a few minutes later,
defense counsel asked “When she was asked her name [by the officers], to the best
of your recollection, she provided it, correct?” and “She answered the questions
that you and the officers had, correct?” Murphy responded affirmatively to these
questions.
On re-direct, the government returned to the defense’s questions concerning
Ouedraogo’s interaction with the officers at the hotel. Over objection, the
government asked Murphy whether Ouedraogo “introduce[d] herself . . . as a
different name” before Ouedraogo said that her name was Halima Ouedraogo.
Murphy replied affirmatively and stated that she first introduced herself as J.B.
The government then asked if Ouedraogo had “made any statements regarding her
relationship” with J.B., and Murphy confirmed that Ouedraogo had said that J.B.
was her aunt.
The jury found Ouedraogo guilty on all counts. In the presentence
investigation report (“PSI”), two levels were added to Ouedraogo’s offense
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conduct for an offense involving sophisticated means, § 2B1.l(b)(10)(C). Thus,
Ouedraogo’s total offense level was calculated at 24. Based on an offense level of
24 and a criminal history category of II, the PSI determined that Ouedraogo’s
advisory guideline range was 57 to 71 months’ imprisonment, with 2 years to run
consecutively for each of the remaining counts (Counts 2 and 4–12). In the PSI
addendum, the probation officer noted that the enhancement was warranted due to
the fact that Ouedraogo (1) possessed 1,500 pieces of PII from the Florida State
Corporation Credit Card Transaction list, (2) carried several access cards from
multiple hotels gained through the use of aliases to avoid detection, and (3) used
the identities of real individuals to create hotel guests accounts.
Ouedraogo objected, in relevant part, to the PSI’s determination that she was
eligible for the sophisticated means enhancement. She argued that the facts
serving as the basis for that determination—her use of shell companies, credit
repair fraud, and a PayPal card reader—were not proved as things that she used to
further the fraud. As well, she argued that her stealing of identities was not, by
itself, sophisticated and there was nothing about her case that demonstrated she
acted in an especially complex or intricate manner. Lastly, Ouedraogo argued at
sentencing that the approximately 1,500 pieces of PII was not an unusually high
number for an identity theft crime.
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The court disagreed. It found Ouedraogo’s case sufficiently sophisticated to
warrant the enhancement and overruled her objection. The court reasoned as
followed:
See, this is what I think about this case: This was sophisticated. This
was especially intricate. The thing is the loss amount and what she
gained by it is not like some other fraud cases, but it was a pretty
sophisticated thing, especially by someone who has committed fraud
before.
…
That’s because she knew how the Hilton chain worked. See, that’s
what’s sophisticated. I certainly couldn’t do that. . . . But she knew
what she was doing, that she would go from one hotel to another, and
when you look at the prior record, it shows that she's learned how to
do different things that have to do with fraud. That’s what I see here,
though, see. We’re not talking about someone who just doesn't know
what’s going on.
The court then adopted the PSI’s sentence calculation and found her guideline
range to be 57 to 71 months for Counts 1 and 3, with 2 years’ consecutive
imprisonment for Counts 2 and 4–12. The court sentenced Ouedraogo to 71
months’ imprisonment for Counts 1 and 3 to run concurrently, 24 months each for
Counts 2, 4, and 5 to run consecutively, and 24 months for the remaining Counts to
run concurrently, totaling 143 months’ imprisonment. Ouedraogo filed a timely
notice of appeal.
II. Standards of Review
We review a district court’s denial of a motion to suppress under a mixed
standard of review, reviewing the district court’s findings of fact for clear error and
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its application of the law to those facts de novo. United States v. Jones, 377 F.3d
1313, 1314 (11th Cir. 2004). When considering a motion to suppress on appeal,
we construe all facts in the light most favorable to the prevailing party below.
United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000). A district court’s
conclusion on the voluntariness of a confession is a question of law we review de
novo. United States v. Barbour, 70 F.3d 580, 584 (11th Cir. 1995).
This Court reviews a district court’s admission of rebuttal evidence for abuse
of discretion, acknowledging the trial court’s “broad discretion” in the matter.
United States v. Hawkins, 905 F.2d 1489, 1493, 1496 (11th Cir. 1990). A court
may admit evidence for rebuttal purposes even if the evidence was previously
inadmissible. United States v. West, 898 F.2d 1493, 1500 (11th Cir, 1990).
We review the district court’s findings of fact related to the imposition of a
sentencing enhancement for sophisticated means for clear error. United States v.
Clarke, 562 F.3d 1158, 1165 (11th Cir. 2009). “[R]eview for clear error is
deferential,” United States v. Robertson, 493 F.3d 1322, 1330 (11th Cir. 2007), and
“we will not disturb a district court’s findings ‘unless we are left with a definite
and firm conviction that a mistake has been committed.’” Clarke, 562 F.3d at 1165
(quoting United States v. Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005)).
III. Discussion
A. Motion to Suppress
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On appeal, Ouedraogo contests the failure to suppress three specific
categories of evidence. We address each in turn.
Notebook in Ouedraogo’s Purse
First, Ouedraogo contests the district court’s failure to suppress evidence
obtained from the officer’s quick search of a notebook in her purse which she had
on her person at the time of her arrest. This notebook contained PII, including that
of J.B., which caught Goldsworthy’s attention.
We conclude that the search of the notebook in the purse which was on
Ouedraogo’s person when she was arrested was a lawful search incident to arrest.
As the Supreme Court observed in United States v. Robinson, “[i]t is well settled
that a search incident to a lawful arrest is a traditional exception to the warrant
requirement of the Fourth Amendment.” 414 U.S. 218, 224 (1973). In Robinson,
the Court upheld the search of a cigarette package (which turned out to contain
heroin pills) in an arrestees’ pocket. See id. at 236. Because the arresting officer
came across the cigarette package “in the course of a lawful search,” the Court held
that “he was entitled to inspect it.” Id. And because the items inspected were
“‘fruits, instrumentalities, or contraband’ probative of criminal conduct,” the
officer was entitled to seize it. Id. (quoting Harris v. United States, 331 U.S. 145,
154–55 (1947)).
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Under Robinson, then, even absent probable cause or suspicion of danger,
police can routinely search individuals and personal items the individuals have on
them when they are arrested and seize anything probative of proving criminal
conduct. Our Circuit’s application of this rule in a variety of circumstances shows
that Goldsworthy’s search of the notebook found in the purse Ouedraogo was
holding was appropriate. For instance, in United States v. Sonntag, 684 F.2d 781,
786 (11th Cir. 1982), we reaffirmed an earlier ruling that wallets, including papers
or packets inside them, may be searched incident to arrest. See also United States
v. Watson, 669 F.2d 1374, 1383–84 (11th Cir. 1982) (affirming denial of a motion
to suppress when items “including an address book, receipts, and a piece of paper
containing names, were taken from the wallet and placed in a plastic evidence bag”
pursuant to a search incident to arrest). We have also ruled that “personal papers”
which are on a defendant at the time of an arrest are subject to search. United
States v. Richardson, 764 F.2d 1514, 1527 (11th Cir. 1985). Thus, the search of
the notebook found in her purse was within the scope of a lawful search incident to
arrest.
Ouedraogo argues that her notebook should receive additional Fourth
Amendment protection based on Riley v. California, which held that officers
needed a warrant to search a cell phone seized from a defendant during arrest. See
573 U.S. 373, 386 (2014). The Court in Riley distinguished its holding from
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Robinson by noting that the “privacy interests retained by an individual after
arrest” in his cell phone are more significant than in regular items because cell
phones “place vast quantities of personal information literally in the hands of
individuals.” Riley, 573 U.S. at 385−86. Moreover, there are “no comparable
risks” of “harm to officers and destruction of evidence” when the information
being sought is “digital data.” Id. Thus, the Court in Riley specifically limited its
holding to a cell phone. Id. at 386.
The rationale announced in Riley does not extend to the search of the
notebook found in a purse because a notebook is a single, physical object, not a
repository of digital data like a cell phone. Our precedent recognizes that physical
objects akin to a notebook, such as “personal papers,” are subject to search. See
Sonntag, 684 F.2d at 786; see also United States v. Rodriguez, 995 F.2d 776, 778
(7th Cir. 1993) (upholding officer’s photocopying of the contents of arrestee’s
notebook as a permissible search incident to arrest). Thus, Ouedraogo’s arguments
as to the notebook in her purse fail, and the search was lawful.
Binder and Luggage in Hotel Room
The second category of evidence Ouedraogo challenges comes from the
search of Ouedraogo’s personal effects in her hotel room, including her luggage
and a larger notebook (a “binder”) that was located open on the desk in the room.
The binder had what appeared to be PII inside.
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Both parties addressed whether Ouedraogo has standing 4 to contest the
search of the hotel room in their briefs. The government argues that Ouedraogo
lacked standing to contest the search of the hotel room because she, as a trespasser,
no longer had a legitimate privacy interest in the room. Ouedraogo contends she
had a reasonable expectation of privacy in her personal belongings within the
room, even if she did not have such an expectation for the room itself. In the
alternative, the government argues that we can affirm because the suitcase search
was reasonable as part of an inventory search.
We find it unnecessary to address those issues. First, with respect to the
suitcase, even if the district court erred by failing to suppress evidence within the
suitcase, the error was harmless. A constitutional error does not always require
reversal. See Chapman v. California, 386 U.S. 18, 22 (1967). Errors may be
considered harmless only where the government can show beyond a reasonable
doubt that the error did not influence the verdict in the case. Id. at 24. We have
applied that rule to the admission of evidence and the denial of a motion to
suppress when the “other evidence against the appellants was [ ] overwhelming."
United States v. Villabona-Garnica, 63 F.3d 1051, 1055 (11th Cir. 1995); United
States v. Fortenberry, 971 F.2d 717 (11th Cir. 1992) (“A district court's erroneous
4
Our use of the term “standing” in this opinion refers to Fourth Amendment, not Article
III, standing. See United States v. Ross, 963 F.3d 1056, 1062 (11th Cir. 2020) (en banc).
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admission of evidence does not warrant reversal if the purported error had no
substantial influence on the outcome and sufficient evidence uninfected by error
supports the verdict.”).
Sections 1029(a)(2) and (a)(3) prohibit the knowing, and with intent to
defraud, use of one or more unauthorized access devices to obtain anything of
value totaling over $1,000, and the possession of 15 or more of such unauthorized
or counterfeit devices. Section 1028A(a)(1) prohibits the knowing possession or
use of another person’s identity in relation to a felony. Putting aside any evidence
found within Ouedraogo’s suitcase, the government presented overwhelming
evidence at trial proving that Ouedraogo had violated those statutes. Any
purported error with respect to admission of evidence found within the suitcase
was therefore harmless. See United States v. Alexander, 835 F.2d 1406, 1411
(11th Cir. 1988) (admission of evidence from an improper search harmless error
because “the government’s [other] evidence at trial was more than sufficient to
convict”).
And second, with respect to the binder, we need not reach the standing issue,
either, because the plain-view doctrine applies. The plain-view doctrine permits
the warrantless seizure of an object where an officer is lawfully located in a place
from which the object can be plainly viewed, the officer has a lawful right to
access the object, and the incriminating character of the object is “immediately
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apparent.” United States v. Smith, 459 F.3d 1276, 1290 (11th Cir.2006). Here, the
hotel had given the officer’s permission to enter Ouedraogo’s former hotel room
and the binder was open on the desk in the hotel room in such a way that allowed
Goldsworthy to identify immediately the illicit PII inside. So, the plain view
exception applies.
Statements Made in Custody
Finally, Ouedraogo contests the admission of statements she made during
her interview at the police station following a signed waiver of her Miranda rights.
She argues that the district court should have suppressed these statements because
the detectives’ refusal to dispense her medication, coupled with their request that
she waive her right to silence, constituted an implicit threat that she would not get
medical treatment unless she signed a waiver. She asserts that this implicit threat
made her statements involuntary. See Bell v. State of Ala., 367 F.2d 243, 247 (5th
Cir. 1966) (for a confession to be free and voluntary, it “must not be extracted by
any sort of threats or violence, nor obtained by any direct or implied promises,
however slight, nor by the exertion of any improper influence”).
Police coercion is a necessary component to finding that a defendant
“involuntarily” waived her right to remain silent. Colorado v. Connelly, 479 U.S.
157, 167 (1986). Even if Ouedraogo believed that she could not receive medical
treatment until she talked, or that her medical condition affected her to the point
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where she felt she had to speak, her statements could not be excluded as
involuntary unless objectively coercive police conduct was the cause of her
distress. See United States v. Barbour, 70 F.3d 580, 584–85 (11th Cir. 1995)
(defendant’s severe mental depression did not render statements involuntary
because there was no “psychological or physical coercion” from the questioning
agents); Atkins v. Singletary, 965 F.2d 952, 959 (11th Cir. 1992) (“Unless police or
other state actors exerted coercive tactics, [defendant’s] confession was
voluntary.”).
The record here reveals no police coercion. Ouedraogo asked the detectives
whether she should sign the waiver, and Goldsworthy told her he could not give
any advice. She asked a few times for medicine, and though the detectives said she
could not have it, they asked if she needed medical assistance. When she
responded that she did, one of the detectives immediately stepped out and called an
ambulance. The whole process took around 90 seconds. The paramedics who took
her to the hospital found her “alert” and “oriented” with a normal mental state.
There is no threat or even implication of a threat from the record which would
render Ouedraogo’s statements involuntary. Furthermore, the district court viewed
video of the interview and concluded that no coercion had occurred. On this
record, that factual finding is not clearly erroneous.
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In the absence of coercion, Ouedraogo cannot show her confession was
involuntary, and therefore the district court was correct to deny her motion to
suppress those statements.
B. Admission of Pre-Mirandized Statements at Trial
Ouedraogo objects to statements elicited by the government at trial during its
redirect examination of hotel security officer Murphy. We find that these
statements were properly admitted to rebut an insinuation of cooperation with
authorities made by the defense.
This Circuit allows evidence that is otherwise inadmissible, such as extrinsic
evidence of a defendant’s state of mind, to be admitted “on redirect as rebuttal
evidence, when defense counsel has opened the door to such evidence during
cross-examination.” United States v. West, 898 F.2d 1493, 1499–500 (11th Cir.
1990). “The district court has broad discretion in admitting rebuttal evidence.”
United States v. Hawkins, 905 F.2d 1489, 1496 (11th Cir. 1990). Rebuttal
evidence is testimony used “to explain, repel, counteract, or disprove the evidence
of the Adverse party ” such that “if the defendant opens the door to the line of
testimony, he cannot successfully object to the prosecution ‘accepting the
challenge and attempting to rebut the proposition asserted.’” United States v. Delk,
586 F.2d 513, 515–16 (5th Cir. 1978) (quoting Luttrell v. United States, 320 F.2d
462, 464 (5th Cir. 1963)). There is no error allowing evidence on rebuttal simply
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because it would have been impermissible to introduce that evidence during the
government’s case-in-chief. Delk, 586 F.2d at 519.
Here, defense counsel asked two questions of Murphy during his cross-
examination that implied Ouedraogo had been cooperative with the government
from the beginning of the investigation: first, when the officers initially
encountered her at the hotel, whether Ouedraogo “provided” “her name” when she
was asked; and second, whether Ouedrago “answered the questions” the officers
posed. Both questions were answered in the affirmative. It was only then, on
redirect, that the government elicited Ouedraogo’s initial, untruthful statements to
the police. The information the government elicited—that Ouedraogo lied to the
police about her name and her relation to J.B.—was intended to “explain, repel,
counteract, or disprove” defense’s position that Ouedraogo cooperatively answered
the questions she was asked. Delk, 586 F.2d at 516. Lying to the police is
certainly different than cooperating with them.
“When the defendant has opened the door to a line of testimony by
presenting evidence thereon, he cannot object to the prosecution’s accepting the
challenge and attempting to rebut the proposition asserted.” United States v. Hall,
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653 F.2d 1002, 1006 (5th Cir. 1981). By attempting to characterize Ouedraogo as
cooperative, defense counsel opened the door to the pre-Mirandized statements.5
C. Sophisticated Means Sentencing Enhancement
Ouedraogo’s final argument on appeal is that the district court clearly erred
by imposing an enhancement for sophisticated means. We disagree. The
Sentencing Guidelines state that, if “the offense otherwise involved sophisticated
means and the defendant intentionally engaged in or caused the conduct
constituting sophisticated means,” the offense level is increased by two. U.S.S.G.
2B1.1(b)(10)(C). In the notes, the Advisory Committee defines “sophisticated
means” as an “especially complex or especially intricate offense conduct
pertaining to the execution or concealment of an offense.” U.S.S.G. § 2B1.1, cmt.
(n.1). As an example, the notes describe a situation in which a defendant “in a
telemarketing scheme, locat[es] the main office of the scheme in one jurisdiction
but locat[es] soliciting operations” elsewhere, and further “hid[es] assets or
transactions, or both, through the use of fictitious entities, corporate shells, or
offshore financial accounts.” Id.
5
To the extent Ouedraogo argues that her defense counsel was “only” trying to fix a
misleading statement the witness said during direct rather than opening the door to a new point,
we do not find that gloss to be a fair reading of the record of Murphy’s cross examination.
Defense counsel first elicited testimony that Ouedraogo had walked towards the officers, then
asked about something unrelated, before trying to insinuate that Ouedraogo was forthcoming
with the officers.
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Ouedraogo’s conduct falls within the general sort of conduct our Circuit has
deemed to be “sophisticated means.” In United States v. Ghertler, 605 F.3d 1256
(11th Cir. 2010), defendant engaged in a series of actions described by the court as
follows:
Mr. Ghertler had to conduct extensive research on the victim
companies to develop inside information which facilitated the scheme
to defraud; used unwitting couriers to pick up and deliver some of the
proceeds of his frauds in an effort to conceal the scheme; forged false
company documents, on at least one occasion referencing a
confidential internal account number to facilitate the execution of his
scheme; and had funds transferred to the accounts of unwitting third
parties, who in turn withdrew and transferred cash to him.
Id. at 1268. We held that the district court did not err in applying the enhancement,
reasoning that “the totality of these activities carried out over an extended period of
time” was “sufficient to support” the court’s application of the enhancement. Id. at
1267–68. Likewise, in United States v. Campbell, a defendant “utilized campaign
accounts and credit cards issued to other people to conceal cash expenditures in a
deliberate attempt to impede the discovery of both the existence and extent of his
tax fraud.” 491 F.3d 1306, 1315 (11th Cir. 2007). We concluded that the “unusual
spending pattern” was sufficient to warrant the sophisticated means enhancement,
as it was an attempt to conceal his fraud on the government. Id. at 1315–16.
Finally, in U.S. v. Barrington, a defendant “installed keyloggers” onto computers
“using stealthy means and personal contacts” to obtain passwords each time the
company changed its passwords. 648 F.3d 1178, 1199 (11th Cir. 2011). We
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upheld the enhancement because “each of these attempts involved a great deal of
planning and inside information” and required the defendants to learn to negotiate
a computer system which in turn required the defendants to access the computers
“on multiple occasions to practice and learn.” Id.
The government identifies four aspects of Ouedraogo’s criminal conduct that
parallel the cases cited above: (1) Ouedraogo was engaged in a repetitive and
lengthy course of conduct, (2) she exploited loopholes in the electronic reservation
system that allowed her to check in without using an identification card, (3) she
created online guest accounts, and (4) she used aliases in order to do so. We agree
that these aspects of Ouedraogo’s conduct match the actions of the defendants in
Ghertler, Campbell, and Barrington. In addition, Ouedraogo used eleven phones,
four credit cards, key cards from several different hotels, and a knowledge of the
Hilton online reservation system that Ouedraogo managed to use in a unique way
to effectuate her fraud. As we said in Ghertler, the evidence is sufficient for a
sophisticated means enhancement. Ghertler, 605 F.3d at 1267–68. Thus, we
affirm her sentence.
IV. Conclusion
We find the evidence in this case compels an affirmance on all grounds. The
motion to dismiss was correctly denied, the district court did not err in admitting
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rebuttal evidence, and the district court did not clearly err in imposing the
sophisticated means enhancement.
AFFIRMED.
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