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Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT JUNE 24, 2008 No. 07-10485 THOMAS K. KAHN _ CLERK D. C. Docket No. 05-20915-CR-DMM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ORLANDO ARIEL GONZALEZ PEREZ, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (June 24, 2008) Before BIRCH, PRYOR, and KRAVITCH, Circuit Judges. PER CURIAM: Defendant-appellant O
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT JUNE 24, 2008 No. 07-10485 THOMAS K. KAHN _ CLERK D. C. Docket No. 05-20915-CR-DMM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ORLANDO ARIEL GONZALEZ PEREZ, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (June 24, 2008) Before BIRCH, PRYOR, and KRAVITCH, Circuit Judges. PER CURIAM: Defendant-appellant Or..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 24, 2008
No. 07-10485
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-20915-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORLANDO ARIEL GONZALEZ PEREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 24, 2008)
Before BIRCH, PRYOR, and KRAVITCH, Circuit Judges.
PER CURIAM:
Defendant-appellant Orlando Ariel Gonzalez Perez was convicted of
conspiracy to possess with intent to distribute cocaine and sentenced to 60 months’
imprisonment. On appeal, he challenges (1) the denial of his motion to suppress
intercepted phone calls, (2) evidentiary rulings, (3) the jury instructions, and (4) the
amount of drugs for which he was held responsible at sentencing.1 After oral
argument and a thorough review of the record, we affirm.
I.
Gonzalez Perez was charged along with Jairo Sanz de la Rosa (“Sanz”),
Wilfredo Robles, Rudy Rodriguez, Jorge Isaacs Diaz (“Isaacs”), and Humberto
Rua in a three-count indictment.2 Count 1 charged all defendants with conspiracy
to import five kilograms of more of cocaine, in violation of 21 U.S.C. §§ 952,
960(b), and 963. Count 2 alleged that all defendants engaged in conspiracy to
possess with intent to distribute five kilograms or more of cocaine, in violation of
21 U.S.C. § 846. Count 3 charged Sanz, Isaacs, and Rua with possession with
intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C.
§ 841.
1
Gonzalez Perez’s challenge to his sentence is without merit. The jury found Gonzalez
Perez to be responsible for less than 500 grams of cocaine. The evidence at trial established his
involvement in close to 2 kilograms of cocaine. Thus, the court did not err in determining the
amount of drugs to be between 400 and 500 grams. We affirm the sentence without further
discussion.
2
Rua was eventually dismissed from the indictment. Isaacs pleaded guilty to a single
count and testified for the government. Following a trial, Sanz was convicted on all three
counts. Robles and Rodriguez were convicted of conspiracy to possess with intent to distribute
cocaine. Gonzalez Perez fled and was tried separately.
2
A. Pre-trial Motions
1. Motion to Suppress Wiretap Evidence
United States DEA Agents began investigating the Del Toro drug ring in
2004. Wiretaps obtained by the U.S. government as part of that investigation
identified Del Toro, William de Jesus Arias, Jorge Neiro Cuadra, and Sanz as
sources of cocaine in the United States. The scheme involved an extensive
structure of importation and distribution “cells.” One such cell was under Sanz’s
leadership. The participants in the scheme used multiple phones to
compartmentalize the cells and limit liability. In December 2004, as a result of
intercepted calls, authorities were able to seize over twenty kilograms of cocaine
that Del Toro imported using cargo planes.
In February 2005, DEA agents obtained information from a confidential
informant regarding importation of drugs through Miami International Airport
using airport employees. The informant confirmed that Sanz was involved in
narcotics importation using Isaacs, an airport employee and Sanz’s cousin, to
remove drugs from incoming planes. In June 2005, Colombian officials
intercepted a call, pursuant to a Colombian-issued wiretap, which led United States
DEA agents to believe that Sanz was planning to import narcotics with Del Toro.
In August 2005, Colombian authorities intercepted a call to Del Toro from Sanz at
3
786-426-7009 (target phone 1). Del Toro later informed Arias that Sanz’s number
was 786-356-9973 (target phone 2). Throughout August, Colombian authorities
intercepted calls on these two phones concerning narcotics deliveries. Agents were
able to intercept calls from Gonzalez Perez and Isaacs to target phone 1.
Intercepted calls to target phone 2 identified Del Toro, Arias, and Isaacs as
participants.
Based on this information, the U.S. government requested wiretaps for target
phones 1 and 2 in September 2005. According to the affidavit, there was probable
cause to believe agents would intercept calls connected to drug trafficking by Del
Toro, Sanz, Arias, Isaacs, and others, via the two targeted phones. The
government also identified Gonzalez Perez as a participant in Del Toro’s
organization based on information that he had been indicted in the Western District
of Pennsylvania in 1992. The charges had been dismissed in 2000 after authorities
were unable to locate him. The only other mention of Gonzalez Perez in the
affidavit was evidence that he sent two wire transfers and that he had made two
calls to target phone 1.
In its affidavit, the government stated that the intercepted calls would reveal
evidence of the participants in drug trafficking offenses, and that other normal
investigative techniques had failed. Specifically, the affidavit explained that
4
traditional methods such as surveillance, pen registers, and confidential informants
had been of limited use due to the international scope of the scheme and Sanz’s
ability to conceal his location and identity. The affidavit also confirmed that the
confidential informant had been arrested and could no longer provide new
information. The affiant further explained why other techniques such as
subpoenas, interviews, and undercover operations would not be successful and
would draw attention to the investigation. According to the affidavit, the wiretaps
would enable agents to identify additional participants and their locations and
permit surveillance without alerting the participants to the investigation. Finally,
the affidavit confirmed that agents would take all necessary steps to minimize the
interceptions. The district court concluded that the affidavit established probable
cause and issued the wiretap authorization for thirty days.
As a result of the initial wiretaps, agents intercepted numerous calls in which
the targets used what agents believed to be code words to discuss deliveries. They
also intercepted numerous calls involving Gonzalez Perez. In a September 30,
2005 call from Gonzalez Perez to Sanz on target phone 1, the two discussed what
agents believed to be an attempted delivery of drugs to Willie, which according to
a criminal database, was Robles’s alias.
The government provided the court with updates during the initial wire tap
5
period. In one of these updates, the government informed the court that Gonzalez
Perez was in possession of target phone 2.
The government obtained a second wiretap in November 2005 for target
phone 1 and a new number 786-356-2676, which agents believed was another
phone assigned to Sanz. The government informed the court that target phone 1
was being used by Sanz and the former target phone 2 (the 9973 number) was
being used by Gonzalez Perez. Agents identified about 100 calls between target
phone 1 and former target phone 2, leading them to believe that Gonzalez Perez
was a participant in the narcotics scheme. Through the second authorizations,
agents expected to intercept calls from Sanz, Gonzalez Perez, Del Toro, Arias, and
Robles, among others. According to the affidavit, continued wiretaps could assist
in identifying additional participants and narcotics deliveries. The remainder of the
affidavit detailed the reasons the wiretap was necessary, the failure of other
investigative techniques, and the methods of minimization. The district court
granted authorization.
Gonzalez Perez moved to suppress the wiretap evidence on the grounds that
the government had, inter alia (1) failed to show probable cause with respect to
Gonzalez Perez, (2) failed to show necessity, and (3) failed to comply with the
minimization requirements in 18 U.S.C. § § 2515 and 2518. He also requested a
6
Franks3 hearing, alleging that the affidavits were contradictory and false.
Following a hearing, the district court denied the motion to suppress and for a
Franks hearing, concluding that there was probable cause to intercept Sanz’s
conversations and the statute did not require probable cause as to the likely or
possible interceptees, as interceptions necessarily involved other people. The court
further found that the government complied with the minimization requirements
because the statute did not require the government to cease interceptions after
Gonzalez Perez received the target phone from Sanz. Finally, the court concluded
that the affidavit accompanying the September 2005 wiretap application
sufficiently explained why traditional techniques would not work and was detailed
and specific, and there was no allegation of deliberate falsehood in the application
and no evidence that the affidavit contained false or deliberately misleading
statements.
B. Trial
At trial, the government proffered evidence connecting Gonzalez Perez to
Sanz’s drug organization. Imer Diaz testified that he accompanied Robles on three
occasions in which they met Gonzalez Perez. The first meeting was at a car
dealership, where Gonzalez Perez and Robles sat in a truck listening to music and
3
Franks v. Delaware, 438 U.S. 154,
98 S. Ct. 2674,
57 L. Ed. 2d 667 (1978).
7
Gonzalez Perez offered to obtain some CDs for Robles. The following two
meetings occurred at Gonzalez Perez’s trailer, where Diaz and Robles met with
Gonzalez Perez to discuss moving a boat. At the first of these two meetings,
Robles, Diaz and Gonzalez Perez were present. At the second trip to the trailer,
about a week later, Sanz was also present. Robles and Diaz measured the boat and
discussed the need for a flatbed truck. Before leaving, Diaz and Robles entered the
trailer, where Gonzalez Perez handed Robles a package wrapped in electrical tape
and told Robles to sell it for him. Diaz could not say what was in the package.
Robles did not take the package and later told Diaz that Gonzalez Perez was crazy
and wanted to get him in trouble.
As a result of these meetings, Diaz was able to recognize Gonzalez Perez’s
voice. At the government’s request, Diaz listened to recorded calls and identified
Gonzalez Perez’s voice. Defense counsel objected for lack of foundation.4
Counsel did not object to the admission of the tapes or the transcripts, but
challenged the voice identification. Defense counsel also objected to the
government’s use of Diaz as a credible witness because, according to counsel, the
government had questioned Diaz’s credibility in the prior trial during closing
4
The government proffered testimony from the transcription services regarding the
manner of translating and transcribing calls.
8
argument.5 Counsel sought to strike the testimony, admit the closing statement, or,
alternatively, to read portions of it into the record under Fed. R. Evid. 801(d) as an
admission of a party. The government responded that it was not taking
inconsistent positions, as the testimony in the two trials was consistent and that the
prosecutor, at most, misspoke during closing argument. The government further
asserted that admitting the closing argument would be prejudicial. The court
denied the motion to strike, finding the testimony consistent, and denied the
request to admit closing argument because it would be prejudicial and confusing
for the jury. The court instructed the jury, however, that it was up to them to
determine the identity of the speakers.
At the close of the evidence, defense counsel requested the jury be instructed
per the pattern jury instructions, which included the term “willfully.” The
government requested that the court use the same instruction as in the prior trial,
which mirrored the statutory language and excluded the term “willfully.” The
court granted the government’s motion over defense counsel’s objection. The jury
5
During Robles’s trial, the government proffered evidence that DEA agents surveilling
the trailer on September 30 observed Robles, Diaz, and Gonzalez Perez waiting for Sanz to
arrive because they were locked out of the trailer. Diaz, however, testified that he entered in the
trailer and saw the black package. In closing, the government questioned Diaz’s credibility
because the surveillance contradicted his testimony that he had been in the trailer. The
government explained that there had been confusion as to the sequence of events, but that Diaz’s
testimony in the instant trial clarified that he had been at the trailer twice but only inside once
and there was no doubt that he had not entered the trailer on September 30.
9
convicted Gonzalez Perez of conspiracy to possess with intent to distribute
cocaine, finding that the amount of cocaine involved was less than 500 grams.
Gonzalez Perez was acquitted of conspiracy to import cocaine.
The court, in keeping with the jury’s verdict, held Gonzalez Perez
responsible for between 400 and 500 grams of drugs. The resulting advisory
guidelines range was 51 to 63 months’ imprisonment. The court sentenced
Gonzalez Perez to a term of 60 months’ imprisonment. Gonzalez Perez now
appeals.
III.
In reviewing the denial of a motion to suppress, we review factual findings
for clear error and the application of the law to those facts de novo. United States
v. Newsome, 475 F.3d 1221, 1223 (11th Cir. 2007). All facts are construed in the
light most favorable to the prevailing party, in this case the government.
Id. at
1223-1224. A district court’s finding with respect to whether an affidavit in
support of a wiretap adequately demonstrated that law enforcement had exhausted
normal investigative techniques, as required by 18 U.S.C. § 2518(1)(c), is subject
to clear error review. United States v. Weber,
808 F.2d 1422, 1424 (11th Cir.
1987). A district court’s determination that law enforcement agents’ minimization
procedures were reasonable under the circumstances is a factual determination
10
subject to the clearly erroneous standard of review. United States v. Moody, 977
F.2d 1425, 1433 (11th Cir. 1992). Evidentiary issues are reviewed for abuse of
discretion. United States v. Jimenez,
224 F.3d 1243, 1249 (11th Cir. 2000). We
review a trial court’s rejection of a proposed jury instruction for an abuse of
discretion. United States v. Garcia,
405 F.3d 1260, 1273 (11th Cir. 2005). We
review a challenge to the substance of a jury instruction de novo. United States v.
Stone,
9 F.3d 934, 937 (11th Cir. 1993).
IV.
A. Motion to Suppress
Under 18 U.S.C. § 2518, an application for a wire tap must include, inter
alia: “a full and complete statement of the facts and circumstances relied upon by
the applicant . . . including details as to the particular offense . . . , a particular
description of . . . the type of communications sought to be intercepted, the identity
of the person . . . whose communications are to be intercepted”, and “a full and
complete statement as to whether or not other investigative procedures have been
tried and failed or why they reasonably appear to be unlikely to succeed if tried or
to be too dangerous.” 18 U.S.C. § 2518(1)(b), (c).
The court may then issue an order “if the judge determines on the basis of
the facts submitted by the applicant that– (a) there is probable cause for belief that
11
an individual is committing, has committed, or is about to commit a particular
offense . . . ; (b) there is probable cause for belief that particular communications
concerning that offense will be obtained through such interception; (c) normal
investigative procedures have been tried and have failed or reasonably appear to be
unlikely to succeed if tried or to be too dangerous [and] (d). . . there is probable
cause for belief that . . . the facilities from which, or the place where, the . . .
communications are to be intercepted are being used, . . . are leased to, listed in the
name of, or commonly used by such person.” 18 U.S.C. § 2518(3).
Gonzalez Perez argues that there was no probable cause to support the initial
interception of his calls, the government failed to show necessity of any wire taps,
and the government improperly intercepted all of his calls. He explains that he
requested a Franks hearing because the government’s false and misleading
statements concerning an indictment in Pennsylvania served to justify probable
cause, and that the government did not produce all the alleged evidence supporting
its theory. He notes that the majority of the affidavit submitted in support of the
wire tap application referred to Sanz’s activities, and he was not even named as a
co-conspirator until after the others were arrested and cooperated with the
government. He further asserts that the government should not have continued to
intercept all the calls on Sanz’s second phone after it learned that Sanz had given
12
the phone to Gonzalez Perez.
The government responds that the affidavits submitted established probable
cause against Sanz and indicated that Gonzalez Perez was a potential target for
intercepted calls on that phone. It contends that it was not obligated, under the
minimization requirement, to cease intercepting calls when it learned that Gonzalez
Perez was using the phone because the taps were intended to identify others
involved in the conspiracy. The government disputes that it proffered any false or
misleading information, and contends that no Franks hearing was required.
1. Probable Cause
An application for a wiretap authorization must be supported by the same
probable cause necessary for a search warrant. United States v. Nixon, 918 F.2d
895, 900 (11th Cir. 1990). The issuing magistrate is to make a “practical,
common-sense decision” about whether the “totality of the circumstances” indicate
that there is probable cause that the sought-for evidence will be obtained.
Id. This
court’s standard for review is “simply to ensure that the magistrate had a
‘substantial basis for ... conclud[ing]’ that probable cause existed.”
Id. (citation
omitted). Moreover, the practical nature of the magistrate’s decision justifies
“great deference” upon review and calls for upholding the magistrate’s findings
even in marginal or doubtful cases.
Id.
13
At issue is whether probable cause to intercept Sanz’s calls extends to
Gonzalez Perez’s conversations, especially once the government was aware that
Gonzalez Perez has possession of the phone, or if the government was required to
show probable cause to intercepting Gonzalez Perez’s calls. Gonzalez Perez
concedes that there was probable cause to intercept Sanz’s calls.
Upon review, we conclude that there was sufficient probable cause to obtain
wire taps in September 2005.6 Conversations, by there very nature, require two
people. The government had information linking Gonzalez Perez to the drug
organization. The court’s order authorizing the wire tap stated that its purpose
was, in part, to locate “the identity of the participants and conspirators of the
organization.” And the affidavit specifically identified Gonzalez Perez as a
possible interceptee. Moreover, Gonzalez Perez does not dispute that there was
probable cause to intercept Sanz’s calls and many of those properly intercepted
calls involved Gonzalez Perez.
The government’s likely mistake concerning a prior indictment does not
alter our analysis. The officers seeking the warrant acted in good faith based on
6
Because we conclude the initial wiretaps were properly obtained, there is no merit to
Gonzalez Perez’s argument that the November wiretap was tainted by an illegal interception.
Even if there was no probable cause to intercept Gonzalez Perez’s phone, authorities were
permitted to intercept Sanz’s calls, many of which involved coded conversations with Gonzalez
Perez. Once authorities intercepted these calls, they were able to establish probable cause for the
November application.
14
information from authorities in Pennsylvania that there was a prior indictment. In
any event, even without the information concerning the indictment, there was
sufficient probable cause arising from the earlier investigation and communications
intercepted by Colombian authorities.7
Finally, even if we were to conclude that probable cause was lacking,
suppression is not the proper remedy. See United States v. Donovan, 429 U.S.
413, 438,
97 S. Ct. 658, 673,
50 L. Ed. 2d 652 (1977) (holding that a violation of the
requirement that the application identify all those likely to be overheard, 18 U.S.C.
§ 2518(1)(b)(iv), did not mandate suppression because the requirement did not
play a central role in the decision to authorize surveillance); see also United States
v. Van Horn,
789 F.2d 1492, 1500 (11th Cir. 1986).
2. Necessity
An application for an order authorizing a wiretap must include “a full and
complete statement as to whether or not other investigative procedures have been
tried and failed or why they reasonably appear to be unlikely to succeed if tried or
to be too dangerous.” 18 U.S.C. § 2518(1)(c). The affidavit supporting an
application need not show a “comprehensive exhaustion of all possible
7
Gonzalez Perez cites United States v. Santana, 342 F.3d 60, 64 (1st Cir. 2003), to
support his claim that probable cause as to the interceptee is required. We do not agree. As
discussed, conversations necessarily involve two persons. And the statute requires the
government to minimize its interception of unrelated calls; it does not require exclusion.
15
techniques,” but need explain only the failure of those techniques “that reasonably
suggest themselves.” United State v. Van Horn, 789 F.2d 1492, 1496 (11th Cir.
1986).
Here, the affiant provided extensive explanation as to the techniques already
employed and the reasons why the wire tap was necessary.
3. Minimization
Under the statute, “[e]very order and extension thereof shall . . . be
conducted in such a way as to minimize the interception of communications not
otherwise subject to interception under this chapter . . . .” 18 U.S.C. § 2518(5).
The Supreme Court in Scott v. United States, 436 U.S. 128,
98 S. Ct. 1717,
56
L. Ed. 2d 168 (1978), set forth the standards for reviewing challenges to the
government’s minimization efforts: courts must make an objective assessment of
the monitoring agents’ actions in light of the facts and circumstances confronting
them at the time.
Id. at 136. The Court counseled that “[t]he statute does not
forbid the interception of all nonrelevant conversations, but rather instructs the
agents to conduct the surveillance in such a manner as to ‘minimize’ the
interception of such conversations.”
Id. at 140. The standard to be applied to the
government’s actions is one of reasonableness. See United States v. Van Horn,
789 F.2d 1492, 1501 (11th Cir. 1986).
16
Notably, neither side offers any case law supporting its claims regarding
whether the government could continue to intercept calls once it learned that
Gonzalez Perez was the user of the phone. Here, the affidavit in support of the
wiretap confirmed that the government would act to minimize interceptions by
ceasing to intercept calls once it was clear that the call did not involve a participant
in the scheme or involved an innocent conversation. Thus, the government was
permitted to intercept calls to determine participants and properly ceased
interceptions when the calls did not involve the drug organization.
4. Franks Hearing
In order to be entitled to relief, Gonzalez Perez must show (1) that the
alleged misrepresentations or omissions were knowingly or recklessly made by the
agent, and (2) that the result of excluding the alleged misrepresentations and
including the alleged omissions would have been a lack of probable cause for
issuance of the warrants. United States v. Jenkins, 901 F.2d 1075, 1080 (11th Cir.
1990). Upon review of the motion to suppress and the wiretap application, we
conclude that Gonzalez Perez has not met this burden. The information concerning
the 1992 indictment came from authorities in Pennsylvania. The agents did not act
recklessly. Gonzalez Perez has offered nothing more than conclusory statements to
establish his burden. We find such statements insufficient.
17
B. Evidentiary Issues
1. Voice Identification
Gonzalez Perez argues that the district court should not have admitted
transcripts of recorded conversations without evidence that he had made the
incriminating statements in the recordings. He explains that none of the speakers
on the tapes identified themselves and that Diaz’s testimony was insufficient to
meet the government’s burden to establish the identity of the speakers. The
government responds that the court did not abuse its discretion because Diaz’s
testimony, along with other circumstantial evidence, was sufficient to establish
identity.
This court has previously held that, to admit into evidence a recorded
conversation, the government must establish, inter alia, the identification of the
speakers.8 United States v. Harrell, 788 F.2d 1524, 1527 (11th Cir. 1986) (citing
8
The proponent who seeks to introduce written transcripts of audio tapes must introduce
“some evidence that the transcripts are accurate, that the words are accurately reproduced, and
the voices accurately identified.” United States v. Rochan, 563 F.2d 1246, 1251 (5th Cir. 1977).
Moreover, when the transcript contains a translation into English of conversations spoken in a
foreign language, the proponent must introduce the testimony of a qualified witness to
authenticate and verify the translation. See United States v. Llinas,
603 F.2d 506, 509 n.3, 510
(5th Cir. 1979). However, this court later explained “[w]here there is sufficient independent
evidence of the accuracy of the tape recordings to insure their reliability, we will not disturb the
trial court’s decision to admit them even though at the time that judgment was made the
government had not carried its particularized burden.” United States v. Hughes,
658 F.2d 317,
323 (5th Cir.1981). Here, however, Gonzalez Perez does not raise these issues and his argument
is limited to whether the government laid a proper foundation for identification of the speakers.
18
United States v. Biggins, 551 F.2d 64, 66 (5th Cir. 1977) 9 (footnote added).
A speaker’s voice may be identified by opinion testimony “based upon
hearing the voice at any time under circumstances connecting it with the alleged
speaker.” Fed.R.Evid. 901(b)(5). “Once a witness establishes familiarity with an
identified voice, it is up to the jury to determine the weight to place on the
witness’s voice identification.” Brown v. City of Hialeah, 30 F.3d 1433, 1437
(11th Cir. 1994).
Here, Gonzalez Perez challenges only whether the government properly
identified the speakers. The government used testimony by Isaacs and Diaz to
establish that it was Gonzalez Perez’s voice on the tape. Diaz stated that he had
spoken with Gonzalez Perez three times and recognized his voice. Isaacs testified
that he was with Sanz when Sanz called Gonzalez Perez and he heard the
conversation. The case agents further testified that the voices on the tapes
belonged to Gonzalez Perez. The other evidence submitted included that Gonzalez
Perez had obtained Sanz’s phone, the phone was subject to the wire tap, and
Gonzalez Perez admitted using the phone that was the subject of the recordings.
The jury was instructed that the issue of identity was within their discretion, and a
9
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this
court held that all decisions handed down by the former Fifth Circuit before the close of business
on September 30, 1981, are binding precedent in the Eleventh Circuit.
19
jury’s credibility determinations will not be disturbed by this court. United States
v. Parrado, 911 F.2d 1567, 1571 (11th Cir. 1990). Accordingly, we find no error.
2. Diaz’s testimony
Gonzalez Perez argues that the court abused its discretion by refusing to
strike Diaz’s testimony because the prosecutor in Robles’s trial had attacked Diaz’s
testimony and credibility in closing argument. He contends that his conviction
cannot stand in light of the false or perjured testimony and the government’s
inconsistent positions in the two cases. Alternatively, Gonzalez Perez asserts that
the court erred by denying his request that the court permit him to admit the
government’s closing statement from Robles’ trial into evidence under Fed. R.
Evid. 801(d)(2)(B) and (d)(2)(D).10
The government responds that the testimony was consistent with the earlier
testimony,11 but that even if the closing statement was admissible under Rule
10
Gonzalez Perez also contends the closing statement was admissible under Rule
801(d)(2)(B)(2) as an adoptive admission. He did not raise this issue at trial. But nevertheless,
his argument fails because the statement’s admissibility is still subject to Rule 403's balancing
test.
11
There is no merit to Gonzalez Perez’s argument that the government proffered
inconsistent arguments in the two trials requiring this court strike the testimony under the
doctrine of judicial estoppel. “Judicial estoppel is an equitable doctrine invoked at a court’s
discretion, designed to protect the integrity of the judicial process.” Stephens v. Tolbert, 471
F.3d 1173, 1177 (11th Cir. 2006) (citations omitted). A district court may invoke the doctrine
“to prevent a party from asserting a claim in a legal proceeding that is inconsistent with a claim
taken by that party in a previous proceeding.”
Id. “[T]he circumstances under which judicial
estoppel should be invoked are not reducible to a general formulation of principle,” but courts
have traditionally looked at three factors: (1) whether a later position asserted by a party was
20
801(d), it was subject to the balancing test of Rule 403, and as such was properly
excluded as potentially confusing to the jury.
In United States v. DeLoach, 34 F.3d 1001 (11th Cir. 1994), the defendant
sought to have the court admit the government’s closing statement from the trial of
a codefendant on the grounds that the statement was inconsistent with the
government’s position in the current trial. This court explained that such
statements are admissible where they are: “(1) ‘assertions of fact’ that are the
‘equivalent of a testimonial statement by the [client];’ and 2) ‘inconsistent with
similar assertions in a subsequent trial.’”
Id. at 1005 (quoting United States v.
McKeon,
738 F.2d 26, 33 (2d Cir. 1984).
Here, the court did not abuse its discretion by denying the motion to strike
Diaz’s testimony. Diaz’s statements were consistent with his testimony in
Robles’s trial. Upon review of the records, we agree that the sequence of events
was confusing and, as the government explained, it simply misunderstood Diaz’s
clearly inconsistent with an earlier position; (2) whether a party succeeded in persuading a court
to accept an earlier position, “so that judicial acceptance of an inconsistent position in a later
proceeding would create the perception that either the first or the second court was misled”; and
(3) whether the party with an inconsistent position would derive an unfair advantage or impose
an unfair detriment on the opposing party if not estopped. Id. Here, there is no reason for us to
apply this doctrine. The government’s statements were consistent and nothing about the
statements would mislead the court or result in an unfair advantage.
21
testimony in the earlier trial when it made the statements during closing.12
Even if this evidence was admissible under Rule 801(d), the court must
balance admissibility with potential prejudice. Here, the closing argument from
Robles’s trial would have confused or misled the jury. Thus, under Rule 403's
balancing test, the court did not abuse its discretion by excluding the evidence.
C. Jury Instructions
Gonzalez Perez argues that, as a matter of law, the government had to show
under § 846 that he acted “willfully” in addition to knowingly, and thus the court
erred by removing the element of willfulness from the instructions. The
government responds that the instruction was proper because it mirrored the
statutory language. It notes that the pattern jury instruction does not trump the
plain language of the statute, and that other circuits have changed the pattern
instructions to reflect this.
“The district court has broad discretion in formulating jury instructions as
long as those instructions are a correct statement of the law.” Garcia, 405 F.3d at
1273. This court will find reversible error only if “(1) the requested instruction
12
Gonzalez Perez’s reliance on United States v. Kattar, 840 F.2d 118 (1st Cir. 1988),
does not persuade us otherwise. In that case, the First Circuit was “troubled” by inconsistent
positions taken by the prosecutor in different trials. Nevertheless, the court concluded that there
was no constitutional error where there was no showing that the false testimony influenced the
verdict and the evidence of guilt was overwhelming. In the instant case, there is no evidence that
Diaz’s testimony was false, but rather was the likely result of a confusion, and no evidence that
the government knowingly elicited false testimony.
22
correctly stated the law; (2) the actual charge to the jury did not substantially cover
the proposed instruction; and (3) the failure to give the instruction substantially
impaired the defendant’s ability to present an effective defense.” United States v.
Fulford, 267 F.3d 1241, 1245 (11th Cir. 2001) (citing United States v. Martinez,
83
F.3d 371, 376 (11th Cir. 1996)).
Violations of § 846 are specific intent crimes. See United States v. Ettinger,
344 F.3d 1149, 1154 (11th Cir. 2003) (citing United States v. Cameron,
907 F.2d
1051, 1063 (11th Cir. 1990)); see also United States v. Stone,
139 F.3d 822, 833 (11th Cir. 1998) (“[t]he words ‘[i]t shall be unlawful for any
person knowingly or intentionally to possess a controlled substance’ identify the
mental state and the conduct Congress intended to prohibit.”). To support a
conviction for conspiracy to distribute cocaine in violation of § 846, the
government must prove, inter alia, that the defendant knowingly and voluntarily
participated in the conspiracy. United States v. Andrews,
953 F.2d 1312, 1318
(11th Cir. 1992) (emphasis added). To prove knowing and voluntary participation,
“the Government must prove beyond a reasonable doubt that [he] had a deliberate,
knowing, and specific intent to join the conspiracy.” United States v. Jenkins,
779
F.2d 606, 609 (11th Cir. 1986) (emphasis added); see also United States v. Davis,
583 F.2d 190, 193 (5th Cir. 1978) (discussing general conspiracy statute and
23
explaining that “the requirement of willfulness connotes a voluntary, intentional
violation of a known legal duty”).
District courts are not required to use the Pattern Jury Instructions, and this
court has routinely approved jury instructions which did not exactly track pattern
instructions. See United States v. Veltmann, 6 F.3d 1483, 1492 (11th Cir. 1993)
(listing cases). Moreover, pattern jury instructions cannot trump the statute’s plain
language. United States v. Polar,
369 F.3d 1248, 1252 (11th Cir. 2004) (rejecting
wilfulness instruction where statute indicated the element of the offense was
knowingly). Thus, we conclude that the district court properly instructed the jury.
V.
In conclusion, we AFFIRM Gonzalez Perez’s conviction and sentence.
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