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United States v. Mosquera

United States Court of Appeals, Eleventh Circuit

March 30, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
JUAN RODRIGUEZ ACOSTA, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
ARLEY LOPEZ ENCISO, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
EFRAIN BILBAO VARELA, Defendant-Appellant.

          Appeals from the United States District Court for the Middle District of Florida D.C. Docket Nos. 8:14-cr-00379-CEH-TGW-4, 8:14-cr-00379-CEH-TGW-1, 8:14-cr-00379-CEH-TGW-6

          Before MARCUS, MARTIN, and NEWSOM, Circuit Judges.

          MARCUS, Circuit Judge:

         In this large cocaine conspiracy, the appellants, Jesus Hernando Angulo-Mosquera ("Angulo"), Juan Rodriguez-Acosta ("Acosta"), Efrain Bilbao-Varela ("Varela"), and Arley Lopez-Enciso ("Lopez"), were charged, along with four other co-conspirators, with conspiring to possess and possessing cocaine with intent to distribute while aboard a vessel on the high seas and subject to United States jurisdiction. Before trial the four other co-conspirators pled guilty, and at trial they testified that all of the appellants knew there were drugs on the vessel they sailed and all were knowing participants in the conspiracy. Angulo, alone among the appellants, testified in his own defense. Each of the appellants was convicted by the jury and each was sentenced to a 235-month prison term.

         The appellants argue that the district court's denial of their motions for a new trial amounted to an abuse of the district court's discretion because polygraph evidence offered by Angulo in support of his claimed lack of knowledge prejudiced the remaining appellants in a joint trial and should have resulted in severance. They also claim that the prosecutor improperly cross-examined Angulo, that the district court erroneously allowed the introduction of hearsay evidence, and that the court erred in not including a particular jury instruction sought by Acosta, Varela, and Lopez. Finally, Varela and Acosta contest their sentences.

         We can discern no error, and, accordingly, affirm the judgments of the district court.


         Angulo, Acosta, Varela, and Lopez were part of an eight-member crew on board the Hope II, a Panamanian-flagged cargo ship that departed from Cartagena, Colombia in August 2014 laden with nearly 1500 kilograms of cocaine secreted in a hidden compartment. The other four crewmembers were Simon Bolivar Ferreras-Trinidad, Euclides Tous-Calle, Manuel DeJesus Crespo-Marin, and Emerson Julio Carcedo.

         Three of the appellants -- Acosta, Varela, and Angulo -- had been working on the Hope II for several months before the Coast Guard intercepted the vessel. Acosta was the ship's captain, Varela was its chief engineer, and Angulo claims to have been the cook. One of the co-conspirators, Crespo-Marin, testified that the August 2014 voyage was not the Hope II's first drug run. Rather, the Hope II had sailed with cocaine at least one other time in February 2014, and according to Crespo-Marin, the entire crew for that voyage, including Acosta, Varela, and Angulo, had been involved in the drug conspiracy. Prior to that run, a secret compartment to house the drugs was built inside a fuel tank beneath the hallway outside the crew's cabins.

         While the Hope II was undergoing repairs after the first run, the crew was told about an opportunity to participate in another drug run with about twice the cargo of cocaine; each crewmember would net between 50 and 120 million pesos for undertaking the task. Ferreras-Trinidad testified that everyone, including the four appellants, agreed to take part in the enterprise. Ferreras-Trinidad and Tous-Calle added that Angulo used the ship's crane to load some 61 boxes of cocaine onto the Hope II while Varela directed him from the deck, and Ferreras-Trinidad testified that Lopez detached the boxes from the crane when they got to the ship. The crew also stored some empty rice bags in the steering room -- a type of bag often used to facilitate the delivery of drugs.

         On August 28, 2014, a maritime patrol aircraft spotted the Hope II traveling in an area of "known drug-smuggling activity" some 47 nautical miles north of San Blas, Panama. The aircraft reported to a Coast Guard ship that it had encountered a vessel acting in a suspicious manner: the ship was seen changing course as soon as the aircraft approached, and its automated information system -- which broadcasts the ship's last port of call, next port of call, and purpose -- was not active. A Coast Guard cutter hailed the Hope II and ultimately boarded it. Co-conspirator Tous-Calle testified that not long before the Hope II was boarded, Acosta tried to call someone on a satellite phone and ordered Tous-Calle to throw the phone overboard when the call did not go through "[s]o that it would not be seized."

         Six Coast Guard personnel boarded the ship and began to conduct a safety sweep. They asked the captain, Acosta, to muster the crew on deck, and to produce documentation for the ship and its crew, along with the crew's passports. The Coast Guard then conducted an "at-sea space accountability" inspection -- a visual inspection of "every single square inch of the vessel" to look for hidden compartments and drugs. They discovered the empty rice bags in the steering room, which added to their suspicions, because this kind of bag is often associated with contraband. Coast Guard personnel also discovered that the ship's automated information system worked but had been switched off. During the inspection, co-conspirator Carcedo overheard Varela warn Acosta that the Coast Guard was "right on top of the secret compartment."

         The Coast Guard eventually found a hatch in the middle of the berthing area hallway that had been covered by two mats: a black rubber mat placed on top and a "welcome" mat found underneath. Coast Guard personnel assumed the hatch led to a fuel hold, but one officer became suspicious because of its unusual location near the berthing area. Closer inspection revealed other oddities: the hatch was not airtight, which is highly unusual for a fuel hold; some of the bolts holding the hatch closed were shiny, indicating they had been manipulated recently; and there was caulking discerned around the access plate, which is not typically used for a fuel hold. The officer opened the hatch just a little bit to see if he could smell any fuel. Once he determined that he could not, he opened the hatch fully. Inside, the Coast Guard found 1483 kilograms of cocaine. Ion scans of the ship also revealed trace amounts of cocaine on the crane and in the galley area of the ship.

         The crew was arrested, brought to Tampa, and each was indicted in the United States District Court for the Middle District of Florida for possessing cocaine with the intent to distribute while aboard a vessel subject to United States jurisdiction, under 46 U.S.C. §§ 70503(a) and 70506(a), and 21 U.S.C. § 960(b)(1)(B); and for conspiracy to possess cocaine with the intent to distribute, under 46 U.S.C. §§ 70503(a) and 70506(a)-(b), and 21 U.S.C. § 960(b)(1)(B)).

         Four of the co-conspirators -- Ferreras-Trinidad, Tous-Calle, Crespo-Marin, and Carcedo -- pled guilty. One of them, Crespo-Marin, testified that after pleading guilty and returning to the holding area, Angulo came up to him and they had "a verbal fight." Angulo allegedly called Crespo-Marin a traitor, which Crespo-Marin took to be a reference to his decision to plead guilty. According to Crespo-Marin, Angulo also said "that he [Angulo] was a man that demanded respect, " and then Angulo threatened him by saying "[y]ou don't know who I am." Another co-conspirator, Ferreras-Trinidad, testified that Angulo and Varela "threatened to kill [him] 50 times over, " observing "that [he] know[s] how [pleading guilty] is rewarded in Colombia, " and that when Ferreras-Trinidad pled he "became a rat." A third co-conspirator, Carcedo, added that Angulo told him he had thrown away the gloves and clothing he had worn while loading the drugs on board the ship in order to dispose of any evidence against him. An unrelated prisoner, Jose Yamir Lopez-Marrero, testified that while the crew was incarcerated at Pinellas County Jail awaiting trial, Varela explained the Hope II operation to him, including that the vessel had been headed for San Andrés Island where the crew intended to drop off the dope and then sail on to Costa Rica in order to pick up a load of gravel.

         For his part, Angulo swore before the jury that he never threatened anyone, and offered an entirely different version of the "verbal fight" with Crespo-Marin. According to Angulo, Crespo-Marin had been rude to him, and Angulo simply responded, "[b]e respectful to me because I've always been respectful to you." In fact, Angulo testified that it was Crespo-Marin who exclaimed that Angulo "didn't know who he [Crespo-Marin] was." As Angulo told it, this altercation had nothing to do with the criminal proceedings.

          Before trial, Lopez moved to sever his trial from Angulo's, based solely on the possible introduction by Angulo of rehabilitative polygraph evidence. Lopez claimed that the polygraph evidence would prejudice him because the jury might well assume that he either refused to take a lie detector test or, maybe, had failed a similar exam. The district court denied the motion to sever, explaining that severance in a conspiracy trial is particularly disfavored, that none of the exceptional reasons for severance applied in this case, and that a limiting instruction would cure any potential prejudice. During trial, Lopez renewed his motion to sever; Acosta and Varela joined in the application. Again, the trial court denied the motion.

         Trial began on June 8, 2015. However, at the conclusion of the Government's case a mistrial was declared because one of the Government's witnesses commented on Acosta's decision not to testify, which, the trial court ruled, was a violation of Acosta's Fifth Amendment rights.

         The re-trial began on October 13, 2015. Angulo testified. On direct examination, he swore that he did not know that there were any drugs on the vessel, had not been told anything about any drugs when he was hired or at any point thereafter, and had not been involved with the drug shipment in any way. Angulo also said that he had never before heard of the Hope II's prior drug run. He offered that he had only done maintenance work on the ship and later cooked for the crew. He further observed that he had been in the process of obtaining a new mariner's license to replace his expired one. Finally, Angulo testified that he had never been convicted of a crime and that he had no criminal record involving narcotics, but acknowledged that he had been detained once before in the Bahamas in 1998.

         On cross examination, the prosecutor elicited details surrounding Angulo's prior detention, which had involved a load of drugs found on another ship, and questioned him further about his role on the Hope II. Angulo then called as a rehabilitative witness a polygraph examiner he had hired to conduct a polygraph test in preparation for trial. The polygrapher did not testify about the substance of the examination, but did opine that Angulo had been "truthful when [he had] tested him on November 6th."

         The jury deliberated for only two hours before finding all four defendants guilty on both counts. The district court denied the motion for a new trial, and sentenced each defendant who went to trial to a 235-month term of imprisonment on each of the counts, to be served concurrently, followed by a 5-year period of supervised release. As for the four co-conspirators who had pled guilty and testified on behalf of the Government, the court sentenced each of them to a 63-month term of imprisonment, followed by a 5-year period of supervised release.

          Angulo, Acosta, Varela, and Lopez now timely appeal from their convictions, and Acosta and Varela appeal from their sentences.


         The appellants argue that numerous prejudicial errors infected their trial, and, therefore, that the district court abused its discretion when it denied their motions for a new trial. We can discern no abuse of discretion in the trial court's determinations.


         Acosta, Varela, and Lopez[1] first claim that the district court abused its discretion by refusing to sever their trial from Angulo's on the ground that Angulo's intended introduction of polygraph testimony would prejudice them. But they have failed to show that there was any likelihood that impermissible prejudice would arise from the polygraph evidence, or that they were in fact prejudiced in any way.

         The decision whether to grant a severance lies within the district court's sound and substantial discretion. United States v. Lopez, 649 F.3d 1222, 1235-36 (11th Cir. 2011). "We will not reverse the denial of a severance motion absent a clear abuse of discretion resulting in compelling prejudice against which the district court could offer no protection." United States v. Ramirez, 426 F.3d 1344, 1352 (11th Cir. 2005) (quotation omitted). "Joint trials play a vital role in the criminal justice system and serve important interests: they reduce the risk of inconsistent verdicts and the unfairness inherent in serial trials, lighten the burden on victims and witnesses, increase efficiency, and conserve scarce judicial resources." Lopez, 649 F.3d at 1233. We have explained that "defendants who are indicted together are usually tried together." Id. at 1234 (quotation omitted). And "[t]hat rule is even more pronounced in conspiracy cases." Id. This rule is not ironclad. Id. Federal Rule of Criminal Procedure 14(a) explains that

[i]f the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires.

         The circumstances justifying severance are "few and far between"; a defendant seeking severance "must carry the heavy burden of demonstrating that compelling prejudice would result from a joint trial." Lopez, 649 F.3d at 1234 (quotation omitted and alteration adopted). To establish this level of prejudice, a defendant must show that "a joint trial would actually prejudice the defendant and that a severance is the only proper remedy for that prejudice -- jury instructions or some other remedy short of severance will not work." Id.; see also Zafiro v. United States, 506 U.S. 534, 539 (1993) (noting that limiting instructions will often cure any potential prejudice resulting from a joint trial). It is not enough that a defendant argues he may have a better result had the trials been severed. Zafiro, 506 U.S. at 540 ("[I]t is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials.").

         We have identified four discrete circumstances in which severance may be required: where defendants rely on mutually antagonistic defenses; where one defendant would exculpate another in a separate trial, but will not testify in a joint setting; where inculpatory evidence will be admitted against one defendant that is not admissible against another; and where a cumulative and prejudicial "spill over" may prevent the jury from sifting through the evidence to make an individualized determination of guilt as to each defendant. United States v. Chavez, 584 F.3d 1354, 1360-61 (11th Cir. 2009). The final category is limited in application, because "a court's cautionary instructions ordinarily will mitigate the potential 'spillover effect' of evidence of a co-defendant's guilt." United States v. Kennard, 472 F.3d 851, 859 (11th Cir. 2006).

         The district court did not abuse its discretion when it declined to sever this trial. No antagonistic defenses, exculpatory testimony from co-defendants, or inculpatory evidence were at issue; the appellants can only argue that cumulative and prejudicial spillover warranted severance. But, for starters, our spillover precedent is generally concerned with circumstances in which "overwhelming evidence of [a co-defendant's] guilt" might bias another defendant -- not circumstances in which evidence of a co-defendant's innocence might spill over. Lopez, 649 F.3d at 1235 (emphasis added). In fact, as the Government points out, any spillover from the polygraph evidence suggesting Angulo's innocence might well have helped the other defendants in this case.

         Moreover, the district court made it clear that Angulo's polygraph evidence would only be allowed under "very limited" circumstances: only if Angulo testified and his credibility was impeached could he then present evidence that he passed a polygraph test in an effort to rehabilitate his credibility. "[Testifying] [wa]s a prerequisite to the admission of [the polygraph] evidence"; a prerequisite none of the other defendants satisfied. The conditional and rehabilitative nature of the evidence in question made prejudicial spillover even less likely. We add that the trial court instructed the jury unambiguously to "consider the case of each Defendant separately and individually, " and cautioned them that if they "find a Defendant guilty of one crime, that must not affect [the] verdict for any other crime or any other Defendant." And we have repeatedly said that "[a] jury is presumed to follow the instructions given to it by the district judge." Ramirez, 426 F.3d at 1352; United States v. Mock, 523 F.3d 1299, 1303 (11th Cir. 2008).

         Finally, it is patently clear that Acosta, Varela, and Lopez cannot show the requisite prejudice to merit reversal. See id. ("We will not reverse the denial of a severance motion absent a clear abuse of discretion resulting in compelling prejudice." (quotation omitted)). Their argument is built on the possibility that the introduction of the polygraph evidence drew a distinction between Angulo and the other defendants in the minds of the jury, to their demonstrable detriment. But Angulo ultimately was convicted on both charged counts, just as the others were. On this record the defendants cannot show that the polygraph evidence helped Angulo -- much less that the jury's rejection of that evidence was likely considered in relation to, or had any deleterious effect on, their verdicts. The appellants have made no attempt to explain how Angulo's conviction (and the jury's concomitant rejection of his polygraph evidence) does not doom their allegation of prejudice, and so have failed to discharge their "heavy burden of demonstrating compelling prejudice." United States v. Browne, 505 F.3d 1229, 1268 (11th Cir. 2007). On this record, we can discern no abuse of discretion in rejecting the severance application.


         The same appellants, Acosta, Varela, and Lopez, also claim that the district court denied them their right to be present during trial when it failed to timely notify them of the pretrial evidentiary hearing to consider the admissibility of Angulo's polygraph evidence. The appellants did not make this argument before the district court, and so we can review it only for plain error. Under plain-error review, the defendant is required to show that there is "(1) error (2) that is plain and (3) that affects substantial rights." United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003) (quotation omitted). If all three conditions are met, we may exercise our discretion to notice a forfeited error, but only if "(4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. The district court committed no error, plain or otherwise.

         The right of a criminal defendant to be present at his trial is axiomatic. "[It] has three bases: the Confrontation Clause of the Sixth Amendment, the Due Process Clause of the Fifth Amendment, and Federal Rule of Criminal Procedure 43." United States v. Novaton, 271 F.3d 968, 997 (11th Cir. 2001). Rule 43 itself explains that the defendant must be present at: "the initial appearance, the initial arraignment, and the plea"; "every trial stage, including jury impanelment and the return of the verdict"; and "sentencing." Considered in concert, the right to be present "extends to all hearings that are an essential part of the trial -- i.e., to all proceedings at which the defendant's presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge." Proffitt v. Wainwright, 685 F.2d 1227, 1256 (11th Cir. 1982) (quotation omitted and emphasis added). However, it "does not confer upon the defendant the right to be present at every hearing or conference with the trial judge at which a matter relative to the case is discussed." United States v. Pepe, 747 F.2d 632, 654 (11th Cir. 1984) (quotation omitted, alterations adopted, and emphasis added).

          Our precedent suggests that there may be no general right to be present at all evidentiary hearings -- let alone at an evidentiary hearing solely relating to the admissibility of exculpatory rehabilitative evidence proffered by another defendant in a joint trial. Thus, for example, in United States v. Pepe we held that a defendant had no right under the Sixth Amendment or Rule 43 to be present at a pretrial evidentiary hearing to consider whether certain evidence proffered by the Government was inadmissible hearsay. 747 F.2d 632, 652-54 (11th Cir. 1984). We observed that a hearing that does not "bind the court to make any particular evidentiary ruling at trial" is far from essential, and that Rule 43 "does not apply to hearings on motions made prior to or after trial." Id. at 653-54 (quoting Fed. R. Crim. P. 43, advisory committee n.1).

         But we have no occasion to decide whether defendants have a right to be present at all evidentiary hearings concerning all of the defendants in a case; all we hold today is that the trial court did not commit plain error when it did not notify the other three appellants of Angulo's evidentiary hearing concerning the admissibility of exculpatory polygraph evidence offered by and relating to only one of the defendants. For starters, this hearing occurred well before trial began. And it did not concern the guilt or innocence of the other appellants. Indeed, Angulo's polygraph evidence was not directly relevant to them; the only possibility of prejudice was that the jury might draw adverse inferences from their failure to produce similar evidence. Finally, the hearing did not result in a binding ruling -- in fact, the court explicitly reserved ruling on the evidentiary question for trial. It is simply not plain that the appellants had a right to be present at that hearing.

         But even if they did, there can be little question that they have failed to show that they were prejudiced by their absence, let alone that the fairness and integrity of the judicial process has been tainted. The appellants in no way suggest how their presence might have led the court to bar the limited admission of the polygraph evidence. Indeed, if they did have a colorable argument that they might have been able to exclude exculpatory evidence for another defendant, that would have been a ground for severance. But here the appellants do not point to any impact their presence may have had on the evidentiary hearing, and, as we've already said, the defendants cannot show that the admissibility of the polygraph evidence prejudiced them in any way.

         Moreover, to the extent appellants suggest they suffered a Sixth Amendment violation because they were unable to cross-examine Angulo's polygraph expert at the pretrial hearing, we are unpersuaded. For one thing, no one introduced any testimony from the pretrial hearing at the trial itself, and, more importantly, the defendants had the opportunity to cross-examine the polygrapher and codefendant Angulo as well at trial.


         Turning to the trial itself, the appellants claim reversible error in a discovery violation that occurred when the Government failed to turn over a report about Angulo's 1998 detention in connection with a different cocaine-smuggling ship, and then improperly asked Angulo questions based on the undisclosed report during cross-examination. But the district court properly limited the prosecution's questioning to asking only about information fully disgorged in a report that was ...

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