United States v. Braulio Hilario Perez

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-15083
Non-Argument Calendar
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D.C. Docket No. 1:19-cr-20003-RAR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRAULIO HILARIO 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 25, 2021)
Before JORDAN, NEWSOM and ANDERSON, Circuit Judges.
PER CURIAM:
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Braulio Perez appeals his conviction and his 188-month sentence for
possession of a firearm and ammunition by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924(e)(1). He argues that the district court made a variety
of evidentiary errors, that the evidence doesn’t support the jury’s verdict, and that
he doesn’t qualify as an armed career criminal under the Armed Career Criminal
Act. For the reasons set forth below, we affirm.
I
On August 2, 2018, defendant Braulio Perez got into a verbal altercation
with his landlord’s son Julio Hernandez and Hernandez’s guest, during which
Perez flashed a firearm. Hernandez called the police, who came and arrested
Perez. While the police were at the residence, they and Hernandez searched the
yard but couldn’t find a firearm. After the police left, Perez’s dog was left barking
in the yard, and Hernandez took the dog into Perez’s apartment and locked him in
the bathroom. While in the apartment, he saw a firearm. Hernandez’s sister
Lisbeth Perello called 911, and when the police didn’t come, Hernandez called the
police again to say that he had found a firearm in the apartment. The police
subsequently arrived with a search warrant and recovered the firearm from Perez’s
apartment.
After a trial, a jury found Perez guilty of possession of a firearm and
ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and
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§ 924(e)(1), and the district court sentenced him to 188 months in prison and a
five-year term of supervised release.
II
On appeal, Perez challenges a variety of evidentiary rulings, the sufficiency
of the evidence, and the district court’s finding that Perez qualified as an armed
career criminal. We’ll address each in turn.
A
Perez raises a Fourth Amendment challenge to the district court’s denial of
his motion to suppress the firearm recovered from his apartment. He argues that
Hernandez was an agent of the government when he found the firearm in Perez’s
apartment because: (1) law enforcement encouraged, instructed, and worked with
Hernandez to search for the firearm in the backyard and then failed to instruct him
to stop searching when they left; and (2) Hernandez’s primary motive for entering
the apartment was to assist law enforcement in the prosecution of Perez.
Generally, the “district court’s denial of a motion to suppress is a mixed
question of law and fact.” United States v. Barsoum, 763 F.3d 1321, 1328 (11th
Cir. 2014). Accordingly, we review a district court’s factual findings for clear
error and review the application of law to facts de novo. Id. We construe all facts
in the light most favorable to the government and give substantial deference to the
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factfinder’s credibility determinations. United States v. Lewis, 674 F.3d 1298,
1303 (11th Cir. 2012).
Because the Fourth Amendment proscribes only governmental action, “[a]
search by a private person does not implicate the Fourth Amendment unless he acts
as an instrument or agent of the government.” United States v. Steiger, 318 F.3d
1039, 1045 (11th Cir. 2003). We consider two critical factors when determining
whether a private person was acting as an instrument or agent of the government:
(1) “whether the government knew of and acquiesced in the intrusive conduct”;
and (2) “whether the private actor’s purpose was to assist law enforcement efforts
rather than to further his own ends.” Id. Related to the first factor, we also
consider whether the government “openly encouraged or cooperated in the search.”
See United States v. Ford, 765 F.2d 1088, 1090 (11th Cir. 1985).
Here, the district court didn’t err in denying the motion to suppress because
Hernandez was not acting as the government’s agent when he found the firearm.
Hernandez testified that he went into Perez’s apartment only after law enforcement
left in order to tie up Perez’s dog, which had been left barking in the yard and was
scaring his mother. Moreover, while Hernandez initially searched the backyard for
the firearm with the police, the district court found that the officers hadn’t
instructed or directed Hernandez to go back and look for the firearm in the
apartment. Construing the facts in the light most favorable to the government,
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there is sufficient evidence to support the district court’s determination that law
enforcement had no knowledge of Hernandez’s search of the apartment and that
they did not instruct, direct, or openly encourage Hernandez to enter or search the
apartment. See Steiger, 318 F.3d at 1045. There is also nothing in the record to
indicate that we should disturb the district court’s credibility determinations, as the
testimony of the government’s witnesses are consistent and corroborate one
another. See United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002)
(noting that this Court accepts a district court’s credibility determination “unless it
is contrary to the laws of nature, or is so inconsistent or improbable on its face that
no reasonable factfinder could accept it.” (quotation marks omitted)). Therefore,
we affirm the denial of Perez’s motion to suppress.
B
Next, Perez contends that the district court shouldn’t have permitted the
government to introduce body-camera footage in Exhibits 15 and 16 that contained
incendiary statements that he made after he was in custody but prior to being
Mirandized. He argues that the evidence is irrelevant, inadmissible hearsay, is
substantially more prejudicial than probative, and violates his Fifth Amendment
rights.
We review rulings on the admissibility of evidence for abuse of discretion.
United States v. Shabazz, 887 F.3d 1204, 1216 (11th Cir. 2018). When employing
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an abuse-of-discretion standard, we must affirm unless we find that the district
court has made a clear error of judgment or has applied the wrong legal standard.
United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc).
The district court didn’t err by refusing to exclude the body-camera footage.
First, the evidence is relevant. The statements in Exhibit 15 were probative of
Perez’s possession of a firearm and lend credibility to one witness’s testimony that
he had run into the house because he saw that Perez had a firearm. The statements
in Exhibit 16 were probative of Perez’s motive and animosity toward Hernandez.
Second, the statements were not inadmissible hearsay because they were made by
Perez and were therefore admissible under the party-opponent hearsay exception.
See Fed. R. Evid. 801(d)(2)(A). Third, the evidence wasn’t inadmissible under
Rule 403 because exclusion is an extraordinary remedy and the footage here has
probative value which is not substantially outweighed by any overwhelming risk of
prejudice. See Shabazz, 887 F.3d at 1216 (stressing that Rule 403 “should be used
only sparingly” and that we “look at the evidence in a light most favorable to its
admission, maximizing its probative value and minimizing its undue prejudicial
impact.” (quotation marks omitted)).
Finally, the admission of the evidence didn’t violate Perez’s Fifth
Amendment rights. While the statements on the body-camera footage were made
after Perez was in custody, they weren’t the product of interrogation, as they were
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voluntary and spontaneous statements that weren’t made in response to any express
police questioning or its functional equivalent. See United States v. Suggs, 755
F.2d 1538, 1541 (11th Cir. 1985) (“Voluntary incriminating statements, however,
not made in response to an officer's questioning are freely admissible.”).
Accordingly, we affirm the district court’s admission of the body-camera footage.
C
Perez also argues that there was insufficient evidence at trial to convict him
of possession of a firearm because the government failed to prove actual or
constructive possession of the firearm that Hernandez found in his apartment. We
review the sufficiency of the evidence supporting a criminal conviction de novo,
“view[ing] the evidence in the light most favorable to the government, with all
reasonable inferences and credibility choices made in the government’s favor.”
United States v. Frazier, 605 F.3d 1271, 1278 (11th Cir. 2010) (quotation marks
omitted). We will not disturb a guilty verdict unless no trier of fact would have
found guilt beyond a reasonable doubt. United States v. White, 663 F.3d 1207,
1213 (11th Cir. 2011).
To prove a violation of 18 U.S.C § 922(g), the government must show that
(1) the defendant knew he was a convicted felon, (2) the defendant knowingly
possessed a firearm, and (3) the firearm was in or affected interstate commerce.
Rehaif v. United States, 139 S. Ct. 2191, 2195–96 (2019). To demonstrate
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“knowing possession,” the government must prove that the defendant had actual or
constructive possession of a firearm. United States v. Vereen, 920 F.3d 1300, 1310
(11th Cir. 2019). Actual possession requires showing that the defendant had either
physical possession of or personal dominion over the firearm. Id. Constructive
possession requires the government to show that the defendant exercised
“ownership, dominion, or control over the firearm or the premises concealing the
firearm.” Id. (alterations adopted) (quotation marks omitted).
Here, the record contains sufficient evidence that a reasonable factfinder
could have found that Perez knowingly possessed a firearm beyond a reasonable
doubt. Two witnesses testified that Perez threatened to kill Hernandez’s guest and
lifted up his shirt to reveal a firearm and that a firearm was later found in Perez’s
apartment. While there were no fingerprints on the firearm, the government
provided evidence to exclude Hernandez and his guest as owners of the firearm.
“Viewing the evidence in the light most favorable to the Government and resolving
all reasonable inferences and credibility evaluations in favor of the jury's verdict,”
we affirm the jury’s guilty verdict. United States v. Suba, 132 F.3d 662, 675 (11th
Cir. 1998).
D
Perez argues that the district court violated his constitutional right to a fair
trial when it denied his request to introduce a 911 call made by Hernandez’s sister
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from the day of his arrest. He further argues that the evidence was not hearsay
because it was being offered to impeach Hernandez and not for the truth of the
matter asserted.
Even though “the Constitution unquestionably provides a defendant with the
right to be heard,” a defendant “does not have an unfettered right to offer testimony
that is incompetent, privileged, or otherwise inadmissible under standard rules of
evidence.” Frazier, 387 F.3d at 1271 (quotation marks omitted). A defendant’s
right to present a complete defense is subject to reasonable restrictions. United
States v. Scheffer, 523 U.S. 303, 308 (1998). “To the extent that it is ever
admissible, extrinsic evidence to attack credibility is usually subject to the
discretion of the trial judge.” United States v. Corbin, 734 F.2d 643, 655 (11th Cir.
1984) (quotation marks omitted). And “[a]s a general matter, a party’s right to
impugn the character for truthfulness of an opposing party’s witness is limited to
questioning the witness on cross-examination.” Id.The district court correctly concluded that Perez’s proposed use of the 911
call was improper impeachment and an improper attack on Hernandez’s credibility
because it was extrinsic evidence and because it was offered outside of cross-
examination. Perez conceded at trial that the evidence didn’t fall under a hearsay
exception but argued that he wanted to attack the credibility of Hernandez, a
witness who didn’t even make the phone call. Moreover, we cannot say that Perez
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was denied an opportunity to attack Hernandez’s credibility through proper
avenues, because he intentionally chose not to use this evidence during cross-
examination and did not attempt to call Perello as a witness during his case in
chief. Because the district court correctly applied the Federal Rules of Evidence to
exclude hearsay, Perez’s constitutional right to put on a complete defense was not
violated. See Scheffer, 523 U.S. at 308 (noting that rules excluding evidence “do
not abridge an accused's right to present a defense so long as they are not arbitrary
or disproportionate to the purposes they are designed to serve” (quotation marks
omitted)).
E
Lastly, Perez challenges the district court’s classification of him as an armed
career criminal, but he concedes that this Court’s precedent is contrary to his
position. We review de novo whether a prior conviction qualifies as a “violent
felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).
United States v. Joyner, 882 F.3d 1369, 1377 (11th Cir. 2018).
Perez argues that both his 1987 Florida conviction for resisting arrest with
violence and 1993 Florida strong-arm robbery conviction are not ACCA-qualifying
offenses. But in United States v. Hill, we held that a prior conviction for resisting
an officer with violence in violation of Fla Stat. § 843.01 categorically qualifies as
a violent felony under the elements clause of the ACCA. 799 F.3d 1318, 1322
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(11th Cir. 2015). And in Welch v. United States, we held that a prior conviction
under Fla. Stat. § 812.13 for strong-arm robbery qualifies as a “violent felony”
under the elements clause of the ACCA. 958 F.3d 1093, 1097 (11th Cir. 2020);
see also Stokeling v. United States, 139 S. Ct. 544, 554–55 (2019). Because “[w]e
are bound by prior panel decisions unless or until we overrule them while sitting en
banc, or they are overruled by the Supreme Court,” we affirm the district court’s
determination that Perez qualified as an armed career criminal. United States v.
Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011).
AFFIRMED.
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