Filed: Oct. 17, 2013
Latest Update: Feb. 12, 2020
Summary: Case: 12-11578 Date Filed: 10/17/2013 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-11578 _ D. C. Docket No. 1:11-cr-00016-SPM-GRJ-2 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PEDRO ENRIQUE PEREZ RODRIGUEZ, ALEXANDER SALAZAR CASTILLO, CARIDAD MOREJON HERNANEZ, ALFREDO CRUZ CARO, Defendants-Appellants. _ Appeals from the United States District Court for the Northern District of Florida _ (October 17, 2013) Before PRYOR and ANDERSON
Summary: Case: 12-11578 Date Filed: 10/17/2013 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-11578 _ D. C. Docket No. 1:11-cr-00016-SPM-GRJ-2 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PEDRO ENRIQUE PEREZ RODRIGUEZ, ALEXANDER SALAZAR CASTILLO, CARIDAD MOREJON HERNANEZ, ALFREDO CRUZ CARO, Defendants-Appellants. _ Appeals from the United States District Court for the Northern District of Florida _ (October 17, 2013) Before PRYOR and ANDERSON,..
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Case: 12-11578 Date Filed: 10/17/2013 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11578
________________________
D. C. Docket No. 1:11-cr-00016-SPM-GRJ-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO ENRIQUE PEREZ RODRIGUEZ,
ALEXANDER SALAZAR CASTILLO,
CARIDAD MOREJON HERNANEZ,
ALFREDO CRUZ CARO,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Florida
_________________________
(October 17, 2013)
Before PRYOR and ANDERSON, Circuit Judges, and RESTANI, Judge.∗
PER CURIAM:
∗
Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
Case: 12-11578 Date Filed: 10/17/2013 Page: 2 of 7
This case involves an appeal of their convictions in connection with a
marijuana conspiracy by four Appellants – Pedro Enrique Perez Rodriguez
(“Perez”), Alexander Salazar Castillo (“Castillo”), Caridad Morejon Hernanez
(“Hernanez”), and Alfredo Cruz Caro (“Cruz Caro”). After careful consideration of
the briefs and relevant parts of the record, and with the benefit of oral argument, we
conclude that the judgment of the district court should be affirmed. We address the
several arguments of the Appellants in turn.
A. Sufficiency Challenge by Hernanez, Cruz Caro, and Castillo.
Appellants Hernanez, Cruz Caro, and Castillo challenge the sufficiency of the
evidence. Appellants Cruz Caro and Castillo do not make a traditional challenge to
the sufficiency of the evidence. Rather, each acknowledges, explicitly or implicitly,
the sufficiency of the evidence to convict them of a conspiracy with Perez, but argue
that their conspiracy with Perez was separate and distinct from the overall
conspiracy charged in the indictment. After careful consideration of the evidence,
and in light of binding case law in this Circuit, we reject this argument by Appellants
Castillo and Cruz Caro. See United States v. Taylor, 17 F.3d 333 (11th Cir. 1994);
United States v. Stitzer,
785 F.2d 1506 (11th Cir. 1986). We also reject Appellant
Hernanez’s sufficiency challenge; we conclude that a reasonable jury could have
found him guilty beyond a reasonable doubt.
2
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B. Brady/Confrontation Clause Challenge by Perez, Hernanez, and Cruz Caro
Appellants Perez, Hernanez, and Cruz Caro raise an issue based upon Brady 1
and the Confrontation Clause. The government’s star witness was Alex Rodriguez.
He was deeply involved in the conspiracy, but pled guilty and testified at trial
against his previous co-conspirators. After considerable surveillance of Perez and
Rodriguez, law enforcement made a traffic stop on Rodriguez on April 4, 2011.
Rodriguez was first interviewed by Agent Hunter on April 7, 2011, at which time he
told the agent that he had no knowledge of any marijuana grow operations in the
relevant counties. It is Agent Hunter’s summary of this interview that is the subject
of this Brady/Confrontation Clause issue. After Agent Hunter completed his
testimony on the second day of the trial, the court ordered, and the government
produced, what it thought at the time was all of the reports which the law
enforcement agents had taken of the several witnesses. This occurred at noon on the
second day of the trial. However, toward the end of the fourth day of trial, counsel
for one of the defendants noticed that Agent Hunter’s report of his June 6, 2011,
interview with Rodriguez referenced an earlier interview of Rodriguez in April, and
brought attention to this fact and the fact that no report of an April 2011 interview of
Rodriguez had been produced on the second day of trial. Government counsel
indicated that his intent on the second day of trial had been to copy and produce all
1
Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194 (1963).
3
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of the relevant reports, but stated that he would find the report of the April interview
as soon as court recessed for the evening. The next morning, government counsel
apologized for the inadvertent omission of the report of the April 7, 2011, interview
of Rodriguez, and reported that he had produced same to the defense. The district
court ruled that Agent Hunter could be recalled and subjected to further cross-
examination, but the district court declined the defense request to recall witness
Rodriguez for further cross-examination. The district court had earlier ruled that
such reports were not Jencks 2 material, in that they were not signed, adopted or
approved by Rodriguez, and were not a substantially verbatim recital of Rodriguez’s
oral statement. Thus, the report could not be used to impeach Rodriguez, and there
was no cause to recall Rodriguez. Appellant Cruz Caro moved for a mistrial based
on not being able to cross-examine Rodriguez using Agent Hunter’s report of his
April 7, 2011, interview of Rodriguez. The motion was joined by counsel for Perez
and Hernanez.
On appeal, all three Appellants present both a Brady claim and a claim of
violation of the Confrontation Clause. After careful consideration, we conclude that
Appellants have failed to establish either violation.
With respect to the Brady claim, Appellants cannot establish that there is a
reasonable probability of a different result had the report been produced in a more
2
The Jencks Act, 18 U.S.C. § 3500.
4
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timely manner. The jury already knew from the testimony of Agent Hunter that, in
the April 7, 2011, interview, Rodriguez had denied knowledge of the grow houses,
and that the interview was terminated because the agent thought Rodriguez was
lying. Thus, the substance of the April 7 interview report was clearly placed before
the jury. We readily conclude that there is no Brady violation.
We also conclude that there has been no Confrontation Clause violation.
Appellants do not challenge the district court’s ruling that the April 7, 2011,
interview report itself is not Jencks material. Thus, the district court’s ruling that
the report itself could not be used to impeach Rodriguez stands unchallenged. 3
However, the government conceded at oral argument that the district court should
have allowed the recall of Rodriguez for further cross-examination – not with the
report itself, i.e., not with the Jencks material – but merely to inquire about prior
statements by Rodriguez to law enforcement agents inconsistent with his trial
testimony claiming extensive knowledge and participation with respect to the
marijuana grow operations.4 Even assuming error in this regard, we cannot
conclude that there has been a violation of the Confrontation Clause. In view of the
3
Appellant Cruz Caro does assert that the report was a verbatim report of Rodriguez’s
April 7, 2011, statement. However, the assertion is a bald one, supported by no facts or
argument. Such a bald assertion is not sufficient to present the issue for appellate review.
Moreover, the report of the April 7, 2011, interview is apparently not in the record on appeal; and
thus, even if Appellant had presented a viable argument, we would have no way to review the
district court’s ruling.
4
We agree with the government that any evidentiary error in this regard is harmless.
5
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fact that the jury clearly knew from Agent Hunter’s testimony that Rodriguez had
initially denied knowledge of the grow houses in the April 7, 2011, interview, 5 we
cannot conclude that a reasonable jury would have had a significantly different
impression of Rodriguez’s credibility had the defense been permitted to question
Rodriguez, again pointing up this inconsistency with his trial testimony. See United
States v. Garcia, 13 F.3d 1464, 1469 (11th Cir. 1994) (“The test for the
Confrontation Clause is whether a reasonable jury would have received a
significantly different impression of the witness’s credibility had counsel pursued
the proposed line of cross-examination.”).
C. Cumulative Error Challenge by Hernanez 6
Finally, Appellant Hernanez asserts cumulative error, listing the
Brady/Confrontation Clause claim and two additional alleged errors. Having
rejected the Brady/Confrontation Clause claim, we turn to the two additional alleged
errors. First, Appellant Hernanez argues that, after his cross-examination of
Rodriguez was finished, the witness admitted to another defendant on cross-
examination that the agents had shown him photos of the co-defendants during his
5
Although the explicit corroboration by Rodriguez of Agent Hunter’s testimony to
this effect occurred in a proffer outside the presence of the jury, nothing in Rodriguez’ testimony
before the jury is inconsistent with Agent Hunter’s testimony. To the contrary, it is clear even
from Rodriguez’ own testimony before the jury that he did not decide to cooperate with law
enforcement until after he got an attorney.
6
Appellant Perez also raises an issue of cumulative error, listing the
Brady/Confrontation Clause error and a vouching error. We have already rejected the former and
the latter is frivolous.
6
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June 9, 2011, interview with the agents. He argues that he was thus denied the
ability to cross-examine and confront Rodriguez with the possibility that this tainted
his in-court identification of Hernanez. In light of the evidence in this case, we
cannot conclude that “a reasonable jury would have received a significantly different
impression of [Rodriguez’s] credibility” had Hernanez’s own counsel himself been
permitted to ask Rodriguez about the effect of the June 9 showing of the photos.
Garcia, 13 F.3d at 1469. It was clear from the testimony of Rodriguez that he had
personally seen Hernanez multiple times – including at least twice at the Marion
Oaks grow house and once or twice in a public parking lot to drop off and pick up
marijuana or cash.
Finally, Appellant Hernanez argues that the district court erred in admitting
Exhibit 50, an analysis of the telephone calls between the co-conspirators. We note
that the raw data, from which the analysis was derived, was timely produced to the
defense. We cannot conclude that the district court abused its broad discretion in
admitting Exhibit 50.
Other arguments of Appellants are rejected without need for discussion. For
the foregoing reasons, the judgment of the district court with respect to each of the
four Appellants is
AFFIRMED.
7
