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Summary: Case: 13-12534 Date Filed: 09/22/2014 Page: 1 of 25 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-12534 Non-Argument Calendar _ D.C. Docket No. 1:10-cr-20672-KMM-2 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LAWRENCE PEREZ, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (September 22, 2014) Before ED CARNES, Chief Judge, and RESTANI, * Judge, and ROBRENO, ** District Judge. * Honorable
Summary: Case: 13-12534 Date Filed: 09/22/2014 Page: 1 of 25 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-12534 Non-Argument Calendar _ D.C. Docket No. 1:10-cr-20672-KMM-2 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LAWRENCE PEREZ, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (September 22, 2014) Before ED CARNES, Chief Judge, and RESTANI, * Judge, and ROBRENO, ** District Judge. * Honorable ..
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Case: 13-12534 Date Filed: 09/22/2014 Page: 1 of 25
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12534
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cr-20672-KMM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAWRENCE PEREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 22, 2014)
Before ED CARNES, Chief Judge, and RESTANI, * Judge, and ROBRENO, **
District Judge.
*
Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
**
Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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PER CURIAM:
Lawrence Perez is a former detective with the Hialeah Gardens Police
Department. Over the course of several months, he used his authority as a police
officer to help his drug-dealing friend procure and transport marijuana. In return
he received a share of the profits that his friend made when the marijuana was sold.
An FBI investigation led to Perez’s arrest, and a jury eventually convicted him of
conspiring and attempting to possess marijuana with the intent to distribute. He
was sentenced to 151 months imprisonment for his crimes. This is his appeal.
I. Facts
Around 1996 or 1997 and before he became a police officer, Perez met
Carlos Santurtun Teran and the two men became close friends. 1 Over the course of
their friendship, Perez learned that Teran was a convicted felon who was making
money as a marijuana dealer. The two men maintained their friendship after Perez
became a police officer, and Teran continued to tell Perez about his deals buying
and selling marijuana. At some point during their relationship, Perez told Teran
that he could “count on him” to help with “whatever [Teran] needed him to do” to
further his marijuana deals, so long as Perez “could make some money.” Perez
offered to help Teran because he needed money to pay child support. He also
1
Because there are sufficiency of the evidence challenges, we set out the facts in some
detail.
2
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needed money to pay for the house where his ex-wife and child lived, as well as
the apartment where he lived with his girlfriend.
A. Perez and Others Steal Ten Pounds of Marijuana from a Drug Dealer
In March 2010 Perez, Teran, and two other men — Wilfredo Gonzalez Arce
and Javier Lopez — devised a plan to steal ten pounds of marijuana from Danny
Zequiera, an acquaintance of Lopez. Teran proposed to the group that they could
steal the marijuana by having Perez perform a traffic stop of the car that Zequiera
would be traveling in with the marijuana.
Pursuant to the plan, Lopez told Zequiera that Arce had a buyer for his
marijuana, and Zequiera met Arce at Lopez’s house to bring the drugs to Arce’s
buyer. Zequiera placed the marijuana in Arce’s car, and the two of them drove
together toward Miami Beach to meet the alleged buyer. On the way to Miami
Beach, Arce drove past an intersection where Perez was waiting in an unmarked
police car. At that intersection, Arce intentionally ran a stop sign and Perez pulled
the car over. After Arce and Zequiera gave Perez their drivers’ licenses, Perez
asked for Arce’s consent to search the car because he said he smelled “a bad odor”
inside the car. Arce consented to the search, and Perez “discovered” Zequiera’s
marijuana when he opened the trunk of the car. Arce told Perez that the marijuana
belonged to him, and Perez allowed Zequiera to leave because Arce had claimed
responsibility for the marijuana. Perez cuffed Arce and placed him in his police
3
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car. In the meantime, Teran, who was nearby in his car, called for a tow truck to
come get Arce’s car. Perez began driving toward the jail with Arce in case he was
being followed, but he soon changed course and drove to Teran’s house.
After Zequiera, Arce, and Perez left the scene of the traffic stop, Zequiera
retrieved his car from Lopez’s house and returned to the scene of the stop. He saw
the tow truck taking away the car and he followed the truck, eventually ending up
at Teran’s condo. He made his way inside and confronted Arce, Teran, and Perez
about the theft. Although Perez “wanted to shoot” Zequiera, Teran defused the
tension and convinced Zequiera to come back the next day for his marijuana. But
Teran never returned the marijuana, telling Zequiera that “the policeman [did not]
want to give it” back. Teran eventually sold the marijuana for $33,000 and split
the proceeds between himself, Arce, and Perez.
More than a month after the conspirators stole Zequiera’s marijuana, Teran
and Perez met with Eric Diaz, one of Teran’s associates, to plan a “rip” of a
woman who was driving from New York to Broward County with a large amount
of money to purchase marijuana.2 Diaz was an FBI informant, and he recorded the
conversation he had with Teran and Perez. During the conversation, Teran and
Perez told Diaz about how they had ripped off Zequiera. Teran recounted how
Perez “was going to shoot” Zequiera until Teran “got in the middle and told him
2
Throughout Perez’s trial, the conspirators’ planned thefts were colloquially referred to
as “rips” or “rip offs.”
4
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not” to do it. Perez confirmed Teran’s version of events, responding with
comments such as “[n]o kidding bro” and “I swear to God, bro.” Perez also said to
Diaz: “I’d kill him bro, we needed [the marijuana] so badly.”
B. Perez, Teran, and Arce Steal 14 Pounds of Marijuana from Drug Dealers
In May 2010 Arce learned that one of his father’s friends was looking to sell
14 pounds of marijuana. He set up a meeting with Teran and Perez, and the three
men agreed that Perez would perform another phony traffic stop so they could steal
the marijuana from the seller, just as they had done with Zequiera. Following
through with the plan, Arce met with the seller on May 24 at a prearranged
location and told the seller that he would lead him to the buyer. Perez, who was
dressed in his police uniform and waiting nearby in his police car, followed Arce
and the seller.3 He eventually pulled over the seller’s car and brought 14 pounds of
marijuana to Teran’s house after the stop. Teran then sold the drugs and divided
the proceeds between himself, Perez, and Arce. Perez’s share was $17,600.
C. Teran Transports Marijuana with Perez Serving as an Escort
Jesus Mancha Guerra, a marijuana grower, was one of Teran’s suppliers. On
July 10, 2010, Teran went to the home of Guerra’s cousin to pick up 35 pounds of
marijuana that he had purchased from Guerra. When Teran arrived to pick up the
3
Hialeah Gardens police records indicate that Perez was not on duty on May 24 and that
he did not report any property seizures on that date.
5
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drugs, he called Perez and asked him to come escort him while he was driving with
the marijuana, explaining that he wanted Perez to protect him and his illicit cargo
“from any person who might try to rip us off or [from] some police officer who
might stop us.”4 Perez came to the house and left with Teran, following his
friend’s car until Teran felt safe enough for Perez to leave.
Ten days later, on July 20, 2010, Teran went back to Guerra’s cousin’s
house and bought about 40 pounds of marijuana. He called Perez and again asked
his friend to escort him while he was transporting the marijuana. 5 Perez agreed to
help, and he drove to the cousin’s house and followed Teran while he was driving
with the drugs in his car. For his assistance on those two occasions, Teran paid
Perez about $1,400.
D. Teran, Perez, and Others Plan to Steal Marijuana Plants from a Warehouse
On July 25, 2010, Guerra spoke over the phone with Teran about a “huge”
warehouse where he knew marijuana was being grown. Guerra and Teran
discussed robbing the warehouse, but Guerra said that it would be a difficult job
because the warehouse doors were “very strong” and made of metal. He also
mentioned that the people inside were armed. Teran proposed that they could
overcome those problems with the help of Perez, whom Teran called his “ace.”
4
The conversation was recorded by the FBI, which had a wiretap on Teran’s phone, and
played before the jury at Perez’s trial.
5
This conversation was also recorded by the FBI and played for the jury at trial.
6
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Teran suggested that they could have Perez, acting as a police officer, knock on the
warehouse door, which would cause the occupants to run away. The
coconspirators would then be able to safely go into the warehouse and take the
marijuana plants and other drugs that were inside. The next day, Teran discussed
the planned “rip” of the warehouse with Perez, who agreed to participate in the
scheme. 6
On July 27, Teran and Perez met at a prearranged location and drove
together in Perez’s car to the warehouse. Relying on an insider who worked at the
warehouse, Teran learned which building contained the marijuana plants and
where the plants could be found within the structure. Teran and Perez drove past
the warehouse two times and a Miami-Dade detective who was monitoring the
men observed Perez’s car “in front of [the] warehouse for an extended period of
time.” Perez and Teran then drove to a nearby tow truck yard where they met with
other people involved in the scheme and spent 15 to 20 minutes discussing “how
the plan was going to go to get into the warehouse and steal the marijuana.” At the
end of that meeting, the coconspirators agreed to let Perez know when they were
ready to execute the plan. Before leaving the area, Perez drove past the warehouse
and recorded the license plate number of a truck that was parked in the warehouse
yard. He ran the tag number to find out the owner’s name and address, which he
6
The discussion was recorded by the FBI and played for the jury at Perez’s trial.
7
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passed along to Teran. Teran then gave that information to another coconspirator,
who said that he would use it to “rob [the owner] at his house” if they could not
“get him at the warehouse.” In a phone call that same evening, Guerra asked Teran
whether Perez thought their plan could work, and Teran replied that Perez said “it
[could] be done.” Teran told Guerra that he and his associates were waiting to
execute the plan because the warehouse owner had not gone home yet. The men
did not attempt to invade the warehouse that night because they felt that they
“didn’t have the final plan yet.”
On July 28, the FBI, DEA, and Miami-Dade Police Department raided the
warehouse pursuant to a search warrant. Based on their surveillance and
monitoring of Teran’s calls, the authorities had determined that they did not want
to allow the planned theft to proceed because the risk of a violent confrontation
was too high. The raid uncovered an extensive marijuana grow operation. In total
the authorities recovered 629 marijuana plants, 15.25 kilograms of marijuana that
was packaged and ready to be sold, firearms, and a small amount of cocaine.
Soon after the raid, one of the coconspirators told Teran that the police had taken
the warehouse. Teran then called Perez, who confirmed that police had raided the
warehouse. Perez assured Teran however that “he had nothing to do with” the
police operation.
8
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E. Perez’s Arrest
On September 10, 2010, FBI agents arrested Perez. The agents seized
Perez’s cell phone, which had Teran’s number stored inside. After receiving
Miranda warnings, Perez admitted that he knew Teran but said that his friend had
“not done anything illegal in front of him.” He also admitted that he had driven
past the warehouse that the police had raided, but he said that he planned to give
information about the warehouse to Luis Ledesma, a DEA informant whom he
knew. He told the agents that Teran wanted to steal the marijuana from the
warehouse and that he “played along.” He claimed that he played along because
he considered Teran a valuable source of information, and he did not want to lose
his trust. A search of Perez’s police locker and car uncovered several firearms,
$2,600 in cash and jewelry, a plastic bag containing marijuana, and a small scale
used to weigh drugs.
F. Perez’s Prosecution
On September 27, 2011, a federal grand jury returned a second superseding
indictment charging Perez with one count of conspiracy to possess a controlled
substance with intent to distribute, in violation of 21 U.S.C. §§ 841 and 846, and
one count of attempting to possess a controlled substance with intent to distribute,
9
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in violation of the same U.S. Code provisions. 7 At his trial, Perez testified in his
own defense. He admitted to the jury that he had a close relationship with Teran,
but he asserted that he fostered the friendship to advance his long-term career
goals. Perez stated that he wanted “to work with a bigger agency,” like the DEA,
because he was interested in “do[ing] something bigger” than the type of police
work he did with the Hialeah Gardens Police Department. He testified that he
decided to pursue that goal by working on his own as an “undercover operative”
because the Hialeah Gardens Police Department did not handle large drug cases.
Perez claimed that he wanted to use his friendship with Teran “to [his] advantage
to identify” drug dealers, which would enable him to “start building . . . a case that
would get [him] notoriety from a different agency.” Perez asserted that that he did
not intend to engage in criminal activity. Instead, he was merely “playing along”
with Teran to further his own law enforcement career.
The jury convicted Perez on both counts alleged in the indictment. It also
entered special verdicts indicating that each count involved 100 or more marijuana
plants and a detectable amount of marijuana. The district court sentenced Perez to
a concurrent 151-month prison term on each count.
7
In the initial indictment, Teran and Guerra were charged along with Perez. Those two
men pleaded guilty, agreed to cooperate with the government, and testified against Perez at his
trial. Arce was indicted in the second superseding indictment. He also pleaded guilty and
testified against Perez.
10
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II. Discussion
Perez challenges his convictions on three grounds. First, he contends that
the government improperly charged him in a duplicitous indictment. Second, he
challenges the sufficiency of the evidence to convict him on the conspiracy and
attempt counts. Third, he contends that his convictions should be reversed because
of cumulative error that occurred during his trial.
A. Duplicitous Indictment
Perez asserts that his indictment was duplicitous because each count charged
him with “two or more separate and distinct offenses.” He contends that the counts
were duplicitous because the indictment alleged that he both conspired and
attempted to possess “100 or more marijuana plants or a mixture and substance
containing a detectable amount of marijuana.” In Perez’s view, each count
charged him with one crime involving marijuana plants and another crime
involving a marijuana substance.
Whether an indictment is duplicitous is a question of law that is ordinarily
reviewed de novo. See United States v. Caldwell, 302 F.3d 399, 407 (5th Cir.
2002). However, unless he can show good cause, a defendant waives his right to
challenge his indictment as duplicitous when he fails to raise the issue before trial.
United States v. Seher,
562 F.3d 1344, 1358–59 & n.15 (11th Cir. 2009); United
11
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States v. Rivera, 77 F.3d 1348, 1352 & n.4 (11th Cir. 1996); United States v.
Creech,
408 F.3d 264, 270 (5th Cir. 2005).
In this case, Perez did not make his duplicity challenge before trial and
instead raises it for the first time on appeal. He has therefore waived the issue
unless he can show good cause for his failure to raise it before trial. See Fed. R.
Crim. P. 12(b)(3)(B) (noting that “a motion alleging a defect in the indictment”
must be raised before trial); see also United States v. Barrington, 648 F.3d 1178,
1189–90 (11th Cir. 2011) (noting that a defendant waives a duplicity challenge not
brought before trial unless he can show good cause);
Seher, 562 F.3d at 1359
(“Generally, a defendant must object before trial to defects in an indictment, and
the failure to do so waives any alleged defects.”). Perez has not explained why he
did not raise the duplicity issue before his trial. In any event, we find that he
cannot show good cause because he challenges only the indictment’s language,
which he had the opportunity to review well before his trial. See
Seher, 562 F.3d
at 1359 n.15 (“Good cause is not shown where the defendant had all the
information necessary to bring a Rule 12(b) motion before the date set for pretrial
motions, but failed to file it by that date.”); see also
Barrington, 648 F.3d at 1190
(same). Therefore, Perez has waived his challenge to the indictment.
12
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B. Sufficiency of the Evidence
Perez argues that there was insufficient evidence to convict him on both the
conspiracy and attempt charges alleged in the indictment. We ordinarily review de
novo “whether sufficient evidence supports a conviction, viewing the evidence and
taking all reasonable inferences in favor of the jury’s verdict.” United States v.
Fries, 725 F.3d 1286, 1291 (11th Cir. 2013). But when a defendant challenges the
sufficiency of the evidence on a ground that was not raised below, he “must
shoulder a somewhat heavier burden” on appeal because we will reverse his
conviction only if doing so is necessary to prevent a “manifest miscarriage of
justice.” Id.; see also United States v. Esquenazi,
752 F.3d 912, 935 (11th Cir.
2014) (“Where the specific grounds upon which a defendant made his sufficiency-
of-the-evidence challenge at trial differ from those he asserts on appeal, we review
under his new theory only for manifest miscarriage of justice.”). Under that
standard, we will not reverse the defendant’s convictions unless “the record is
devoid of evidence of an essential element of the crime” or “the evidence on a key
element of the offense is so tenuous that a conviction would be shocking.”
Fries,
725 F.3d at 1291 (quotation marks omitted).
13
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1. Conspiracy Count
Perez contends that the government presented insufficient evidence for the
jury to find that he knowingly joined any conspiracy. 8 Asserting that many of his
codefendants had a motive to give false testimony and claiming that the
government presented conflicting testimony at trial, Perez asserts that reasonable
doubt exists as to whether he was guilty.
We find Perez’s argument unpersuasive. Testimony from Teran and the
other coconspirators, as well as wiretap recordings played for the jury,
overwhelmingly established that Perez knowingly and voluntarily entered into an
agreement with others to steal marijuana from various drug dealers during the time
period alleged in the indictment. According to the testimony of the government’s
witnesses, Perez was an active participant in the conspiracy, helping Teran and
others to both plan and carry out the drug thefts that took place.
Although Perez takes issue with the testimony of his coconspirators, we are
bound to credit their testimony unless it was incredible as a matter of law. 9 E.g.,
8
To convict Perez on the conspiracy count, the government had to prove that “(1) an
illegal agreement existed to possess with intent to distribute a controlled substance; (2) [Perez]
knew of the agreement; and (3) [Perez] knowingly and voluntarily joined the agreement.”
United States v. Isnadin, 742 F.3d 1278, 1305 (11th Cir. 2014).
9
Perez does not argue that his coconspirators’ testimony was incredible as a matter of
law. And even if he had made that argument, it would not have been convincing because the
coconspirators did not testify about events that they did not observe or that could not have
possibly occurred. See United States v. Isaacson, 752 F.3d 1291, 1304 (11th Cir. 2014)
(“Testimony is incredible as a matter of law only if it concerns facts that the witness physically
14
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United States v. Isaacson, 752 F.3d 1291, 1304 (11th Cir. 2014); United States v.
Chastain,
198 F.3d 1338, 1351 (11th Cir. 1999) (“To the extent that Appellants’
argument depends upon challenges to the credibility of witnesses, the jury has
exclusive province over that determination and the court of appeals may not revisit
this question.”). Doing so is part of our duty to view the evidence in the light most
favorable to the jury’s verdict. See
Fries, 725 F.3d at 1291. In this case, the
testimony of Perez’s coconspirators provided the jury with more than enough
evidence to find that Perez knowingly participated in the charged conspiracy.
In addition, we have said again and again that “a statement by a defendant, if
disbelieved by the jury, may be considered as substantive evidence of the
defendant’s guilt.” United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). As
a result, “where some corroborative evidence of guilt exists for the charged
offense . . . and the defendant takes the stand in his own defense,” his testimony
denying guilt may, by itself, establish elements of the charged offense.
Id. at 314–
15. That principle “applies with special force where the elements to be proved for
could not have possibly observed or events that could not have occurred under the laws of
nature.”) (quotation marks omitted).
15
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a conviction include highly subjective elements: for example, the defendant’s
intent or knowledge.”10 Id. at 315.
In this case, Perez testified in his own defense and the jury did not believe
his testimony. Therefore, we may view his testimony as substantive evidence of
guilt. See id. at 314. Because there was other corroborative evidence of Perez’s
guilt, the jury’s rejection of Perez’s testimony is sufficient to establish that he was
a knowing participant in the charged conspiracy, see
id. at 314–15, even without
the testimony of his coconspirators.
2. Attempt Count
To convict Perez on the attempt count, the government had to prove that
Perez “had the specific intent to engage in criminal conduct and that he took a
substantial step toward commission of the offense.” United States v. Baptista-
Rodriguez, 17 F.3d 1354, 1369 (11th Cir. 1994). “A substantial step must be more
than remote preparation, and must be conduct strongly corroborative of the
firmness of the defendant’s criminal intent.” United States v. Ballinger,
395 F.3d
1218, 1238 n.8 (11th Cir. 2005) (quotation marks omitted). For the first time on
appeal, Perez contends that there was insufficient evidence on the attempt charge
10
Perez also argues that the evidence was insufficient to show that the defendants knew
that the warehouse contained over 100 marijuana plants, and thus “attributing to them an intent
to possess more than 100 marijuana plants [was] completely speculative.” Appellant’s Br. at
49–51. Even assuming that Perez’s reading of the record is accurate, the government was not
required to prove that Perez knew of the type and amount of the controlled substance intended to
be distributed. See United States v. Sanders, 668 F.3d 1298, 1309–10 (11th Cir. 2012).
16
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because the government failed to show that he took a “substantial step” toward
possessing marijuana plants.11 He asserts that the evidence showed, at most, that
he was merely “planning and fantasizing about raiding a marijuana grow house” at
“some future undetermined time.”
Perez’s argument is reviewable under the “manifest miscarriage of justice”
standard because he did not raise it in his Rule 29 motion, but we would find it
unconvincing even under de novo review. The evidence at trial showed that Perez
participated in discussions on at least two occasions about how he and his
coconspirators were going to steal the marijuana plants from the warehouse. He
also went to the warehouse with Teran, driving past the structure twice to scope it
out after Teran received inside information about where the plants could be found
in the building. Finally, he recorded the license plate number of a truck that was
parked in the warehouse yard and ran the number to find out the owner’s name and
address, which he then passed along to Teran so the other conspirators would have
more information about the warehouse owner. Taken together, those acts went
well beyond “remote preparation” and were “strongly corroborative of the firmness
of [Perez’s] criminal intent.” See Ballinger, 395 F.3d at 1238 n.8; see also United
States v. Carothers,
121 F.3d 659, 661–62 (11th Cir. 1997) (finding sufficient
11
The attempt charge in Perez’s indictment was focused solely on the planned warehouse
theft.
17
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evidence of a substantial step toward possessing cocaine with intent to distribute
where (1) the defendant had previously purchased drugs from the seller, (2) the
defendant discussed a possible cocaine deal with the seller, (3) the defendant drove
to the city where the drug deal was to take place, and (4) the defendant possessed a
gun as well as a microscope that could be used to test the cocaine being sold);
United States v. Brown, 604 F.2d 347, 349–50 (5th Cir. 1979) (finding sufficient
evidence that the defendant took a substantial step toward blowing up a building
where he “made a firm agreement” to acquire the explosives he needed to do the
deed and dispatched two other men “to reconnoiter and inspect the building in
preparation for its destruction”).12
C. Cumulative Error
Perez argues that cumulative errors committed during his trial justify
reversal of his convictions. He specifically identifies four purported errors in
support of his argument. First, he asserts that the district court erroneously
directed a verdict on an element when it gave the jury the following instruction:
“As a matter of fact and law, the defendant was not authorized by law enforcement
to perform the acts with which he is charged. To work with law enforcement and
engage in undercover actions requires special approval which the Defendant did
12
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
18
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not have.” Second, he contends that the district court should have clarified which
statements it was referring to when it instructed the jury that “certain prior
statements of certain witnesses were admitted during the cross-examination of
those witnesses for a limited purpose” and could “be considered [only] for
impeachment purposes.” Third, he claims that the government improperly
vouched for its witnesses and unfairly disparaged his own testimony when it said
the following at closing: “I submit to you there is only one witness who had an
interest in the outcome of the case, one of the factors that the Court will tell you, is
appropriate for you to consider. One witness who had an interest in the outcome of
the case and that is the defendant, Lawrence Perez.” Fourth, he contends that the
government improperly disparaged defense counsel when it said at closing that
Perez’s lawyer “would like [the jury] to worry about [whether Teran paid Perez for
his services] all day long because he doesn’t want you to pay attention to the
evidence.”
“The cumulative error doctrine provides that an aggregation of non-
reversible errors (i.e., plain errors failing to necessitate reversal and harmless
errors) can yield a denial of the constitutional right to a fair trial, which calls for
reversal.” United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005) (quotation
marks omitted). We review de novo the cumulative impact of errors at a trial,
United States v. Dohan,
508 F.3d 989, 993 (11th Cir. 2007), but we will not
19
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reverse a conviction unless the defendant can show that an aggregation of non-
reversible errors affected his substantial rights, United States v. Capers, 708 F.3d
1286, 1299 (11th Cir. 2013).
For purposes of our analysis, we must first consider each error individually
because a defendant cannot have a valid cumulative error claim if there was no
error committed in the first place. Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117,
1132 (11th Cir. 2012) (“This Court has made clear that where there is no error in
any of the trial court’s rulings, the argument that cumulative trial error requires that
this Court reverse the defendant’s convictions is without merit.”) (brackets and
quotation marks omitted). Once we have considered each individual alleged error,
we “examin[e] any errors that we find in the aggregate and in light of the trial as a
whole to determine whether the appellant was afforded a fundamentally fair trial.”
Id. We exclude from our analysis any alleged errors that were invited by the
defendant. United States v. Banks, No. 11-1487, — F.3d —,
2014 WL 3805481,
at *28 (10th Cir. Aug. 4, 2014) (holding that “cumulative error cannot be
predicated on non-errors, or on invited error”) (brackets, citation, and quotation
marks omitted); see also
Baker, 432 F.3d at 1214–16, 1228–29 (observing that the
defendant invited an error that was committed at trial and then ignoring that error
when analyzing the defendant’s cumulative error claim); United States v.
Necoechea,
986 F.2d 1273, 1282–83 (9th Cir. 1993) (“In reviewing for cumulative
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error, the court must review all errors preserved for appeal and all plain errors.”).
To determine whether a defendant was prejudiced by the cumulative effect of non-
reversible errors, we consider:
the nature and number of the errors committed; their interrelationship,
if any, and combined effect; how the district court dealt with the
errors as they arose (including the efficacy—or lack of efficacy—of
any remedial efforts); [] the strength of the government’s case, and the
length of trial.
Baker, 432 F.3d at 1223 (alteration in original and quotation marks omitted).
In this case, we will not consider in our cumulative error analysis the first
alleged error that Perez asserts (relating to the court’s jury instruction that Perez
was not authorized by law enforcement to engage in the charged acts) because
Perez invited that purported error. See Banks, 2014 WL 3805481, at *28. As
Perez concedes in his opening brief, the jury instruction at issue was included in
the proposed instructions that he submitted to the district court. In addition, after
the district court asked Perez whether he had any objections to the jury
instructions, Perez responded that he had no objections. Because he proposed the
jury instruction that he now complains about and later told the district court that he
did not object to the instruction, Perez invited the alleged error. See United States
v. Harris,
443 F.3d 822, 823–24 (11th Cir. 2006) (“The doctrine of invited error is
implicated when a party induces or invites the district court into making an error.
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Where a party invites error, the Court is precluded from reviewing that error on
appeal.”); see also United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009).
We review the second alleged error with the district court’s jury instructions
only for plain error because Perez failed to object to the instruction. See United
States v. Rodriguez, 627 F.3d 1372, 1380 (11th Cir. 2010). Under the plain error
standard, Perez bears the burden of establishing that “(1) an error occurred; (2) the
error was plain; (3) it affected [his] substantial rights; and (4) it seriously affected
the fairness of the judicial proceedings.”
Id. Perez contends that the district court
erred by failing to instruct the jury on which prior witness statements could be
considered only for impeachment purposes. Perez has not shown plain error,
however, because he has not established that his substantial rights were affected by
the district court’s failure to give a more specific jury instruction. The government
presented overwhelming evidence against Perez, including many wiretap
recordings in which Perez discussed his participation in the alleged crimes. It also
presented testimony from numerous witnesses, most of which was admitted as
substantive evidence against Perez. In light of the substantial evidence presented
by the government, Perez has not shown that the district court’s instruction
affected his substantial rights. See
id. at 1382 (noting that satisfying the third
prong of the plain error standard “almost always requires that the error must have
affected the outcome of the district court proceedings” and that a defendant “must
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establish a reasonable probability of a different result but for the error”) (quotation
marks omitted). So we do not consider it in our cumulative error analysis.
The third purported error that Perez asserts was not an error because the
government’s statement at closing that Perez was the “only . . . witness who had an
interest in the outcome of the case” was not inappropriate. The comment focused
on Perez, did not allude to information that had not been presented to the jury, and
did not improperly vouch for the credibility of the government’s witnesses. See
United States v. Epps, 613 F.3d 1093, 1100 (11th Cir. 2010) (“Improper vouching
occurs in two different circumstances: (1) if the prosecutor places the prestige of
the government behind the witness, by making explicit personal assurances of the
witness’ veracity, or (2) if the prosecutor implicitly vouches for the witness’
veracity by indicating that information not presented to the jury supports the
testimony.”) (brackets and quotation marks omitted). Nor did the comment
unfairly disparage Perez’s testimony. See United States v. Eley,
723 F.2d 1522,
1526 (11th Cir. 1984) (“Defense counsel in this case attacked the credibility of the
government’s witnesses and, in response, the prosecutor was entitled to argue
fairly to the jury the credibility of the government and defense witnesses.”); see
also United States v. Poole,
735 F.3d 269, 277 (5th Cir. 2013) (noting that “where
the defendant elects to testify and, in so doing, puts his veracity at issue,” the
government “does not commit error by characterizing the defendant as a liar”);
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United States v. Iacona, 728 F.3d 694, 699–700 (7th Cir. 2013) (“The central
question in determining whether [prosecutorial comments were improper] is
whether the comments reflected reasonable inferences from the evidence adduced
at trial rather than an expression of the prosecutor’s personal opinion, and whether
the comments became so excessive as to impair the jury’s detached search for the
truth. If the evidence supports the comments, a prosecutor is at liberty to speak
harshly about the defendant.”) (citations omitted).
Finally, we reject Perez’s contention that the government improperly
disparaged his attorney in closing arguments. During defense counsel’s closing, he
argued that reasonable doubt existed as to whether Perez was guilty because Perez
claimed to have a modest lifestyle and the government allegedly did not present
much evidence that he was paid for the work he did with Teran. In rebuttal, the
government asked the jury to “look closely at [the] jury instructions” because there
was “absolutely no requirement that [Perez receive] any financial benefit” to be
guilty of the charged crimes. The government then stated that defense counsel
wanted the jury “to worry about money all day long because he [did not] want [the
jury] to pay attention to the evidence.” Contrary to Perez’s contention, the
government’s comment did not improperly disparage defense counsel and it was
permissible given the argument that Perez’s lawyer had made.
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Perez has failed to identify a single preserved error or plain error that
occurred at his trial. Therefore, his cumulative error argument fails because
“[w]here there is no error or only a single error, there can be no cumulative error.”
United States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011); see also
Morris, 677
F.3d at 1132; United States v. Waldon,
363 F.3d 1103, 1110 (11th Cir. 2004).
III. Conclusion
For these reasons, we affirm Perez’s convictions.
AFFIRMED. 13
13
This appeal was originally scheduled for oral argument but was removed from the oral
argument calendar by unanimous agreement of the panel under 11th Cir. R. 34-3(f).
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