Appeals from the United States District Court for the
Southern District of Florida D.C. Docket No.
WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges.
NEWSOM, CIRCUIT JUDGE.
Junior Baptiste was a businessman. In addition to a portfolio
of media and entertainment companies, Baptiste owned and
operated Surveillance Master CCTV. Surveillance Master
installed security cameras, repaired computers, and- one of
these things is not like the others-cashed checks. In 2016, a
jury found that Baptiste had taken part in an $11 million
scheme that involved cashing tax-refund checks that he had
fraudulently obtained in the names of inmates, minors, dead
people, and other insentient or otherwise unsuspecting
"clients." Baptiste now appeals his conviction and
Baptiste raises a number of issues on appeal, we focus
primarily on two questions related to the hearsay testimony
of a government witness. The abridged version of the story:
Francesse Chery was one of Baptiste's key witnesses. The
government countered with her brother, Anael Chery, who
testified (among other things) that Francesse had told him
that, in exchange for her (false) testimony supporting
Baptiste's narrative, Baptiste would give her a Mercedes.
Baptiste argues that Anael's testimony was inadmissible
hearsay and that the district court's error in allowing
the jury to hear it tainted both his conviction and his
challenge presents two questions. First, was Anael's
testimony indeed inadmissible hearsay? The district court
admitted the testimony pursuant to the
statement-against-interest exception to the general
prohibition on hearsay evidence, and on appeal the government
has offered a smattering of additional theories of
admissibility. We conclude that we needn't decide whether
Anael's testimony was inadmissible hearsay because even
if the district court did err in allowing it, the error was
harmless. There was more than enough compelling-and
undoubtedly admissible-evidence to support Baptiste's
and (sort of) relatedly, did the district court err in
relying on Anael's testimony when it imposed a sentencing
enhancement for obstructing justice? If you're saying,
"Didn't they just say they weren't going to
decide whether the testimony was admissible?"-we hear
you. As it turns out, though, thanks to a doctrine called
(somewhat oxymoronically) "reliable hearsay" we can
answer the second question without deciding the first. Under
the reliable-hearsay doctrine, so long as certain
preconditions are met, a sentencing court can rely on
evidence that would be off-limits in the guilt phase. For
Baptiste, this means that even if Anael's description of
his sister's supposed deal was inadmissible hearsay (and
we aren't saying either way) the district court might not
have erred in relying on that testimony for the obstruction
enhancement-again, so long as the preconditions are met.
what are they? Well, our case law has arguably sent mixed
signals about that. There is, though, a synthesis. We hold
(and clarify) today that the Sentencing Guidelines permit use
of hearsay testimony so long as the overall record provides
"sufficient indicia of reliability"-and we conclude
that the indicia of reliability here are sufficient.
because we find that none of Baptiste's other arguments
has merit-we affirm Baptiste's conviction and, with one
asterisk, his sentence. The asterisk? Pursuant to the
parties' joint request, we remand the case to the
district court for the limited purpose of allowing Baptiste
to allocute, a right that he was denied at sentencing.
Baptiste's trial, two cooperating witnesses, Andy
Louissaint and Karl Moltimer, described the tax-refund
scheme. Baptiste would first provide tax preparers such as
Louissaint and Moltimer with a list of individuals-many of
them young, incarcerated, dead, or otherwise unlikely to
discover the use of their identities-along with accompanying
personal information such as birthdates and social security
numbers. The tax preparers used that information to
(fraudulently) obtain refund checks from the IRS, which they
then brought to Baptiste's Surveillance Master for
contracted with a third party to process the checks. He would
fabricate the necessary documents-work permits, passports,
green cards, driver's licenses-to avoid raising red
flags. Baptiste and the tax preparers would divide the
proceeds, with Baptiste often taking a cut of between 25% and
50%. Not bad, given that typical check-cashing fees range
from 1.5% to 3%.
the IRS reviewed Surveillance Master's records in
conjunction with a routine inspection, an agent noticed that
several refund checks were for identical (or nearly
identical) amounts. During a subsequent investigation, the
IRS obtained copies of identification documents, Treasury
checks, and lists containing personal information for both
the quick and the dead. Customs and Immigration Services
conducted an evaluation of approximately 630
permanent-resident and employment-authorization cards that
Baptiste had used to verify the checks; all but one-belonging
to Baptiste's wife-were fraudulent.
ensuing indictment charged Baptiste with money laundering,
conspiracy to commit money laundering, possession of false
identification documents with unlawful intent, theft of
government money, and aggravated identity theft. At trial,
Baptiste's story was that he was an unwitting participant
in a broader scheme concocted by a now-dead business partner,
Marvin Pagnon. Pagnon's ex-girlfriend, the aforementioned
Francesse Chery, echoed Baptiste's account in her
testimony and explained how Pagnon operated. In particular,
she explained that because Pagnon had poor credit, he would
ask would-be associates such as Baptiste to partner with him.
Pagnon, she said, laid out a collaboration that was
straightforward and above board: Pagnon would obtain (real)
refund checks from tax preparers; Baptiste would cash
whatever Pagnon handed him. Baptiste signed up, and he seems
to have been well compensated for his efforts. During the
scheme, Baptiste purchased a Mercedes Benz CL 63, a Mercedes
Benz E Class, a Range Rover, and-again, one of these things
is not like the others-a $345, 000 share in a 200-foot long
government painted a different picture. Moltimer and
Louissaint both testified, for instance, that Pagnon played
no role in Baptiste's check-cashing operation. Louissaint
added that when Baptiste first became aware that an
indictment could be coming down the pike, he had told
Louissaint that he planned to "basically blame
everything on Marvin [Pagnon]." The government also
offered testimony from Francesse Chery's brother, Anael.
Anael first opined, as a general matter, that his sister just
wasn't a very truthful person. He went on to testify,
much more specifically, that Francesse had told him that
Baptiste was going to give her a Mercedes CLA 45 so long as
she "h[e]ld up her end of the bargain" by backing
Baptiste's it-was-all-Pagnon's-idea narrative.
Baptiste objected that Anael's testimony-relaying what
his sister had allegedly told him-was inadmissible hearsay.
The district court ultimately admitted Anael's statement,
citing the statement-against-interest exception to the
general prohibition on hearsay evidence. See Fed. R.
jury convicted Baptiste on all counts. At sentencing, the
district court applied enhancements for the amount of money
that Baptiste had fraudulently obtained from the government
(exceeding $11 million), for the number of victims (perhaps
hundreds), for the victims' vulnerable status (many
incapacitated in some form or fashion), and for obstructing
justice (for the perjury-for-a-Mercedes deal with Francesse).
The district court sentenced Baptiste to 212 months'
imprisonment and restitution of more than $11
million. This is Baptiste's appeal.
already noted, our focus here will be the related contentions
that the district court (1) abused its discretion by
admitting Anael's hearsay testimony as evidence against
Baptiste and (2) violated the Sentencing Guidelines by
imposing an obstruction-based enhancement that relied on the
same. Before getting there, though, we'll address a few
other guilt-phase matters-namely, whether the district court
erroneously refused to admit Rule 404(b) evidence, whether
the government failed to reveal (alleged) deals with its
witnesses, and whether the prosecutor made improper
statements to the jury during his closing argument. Then,
after dealing with the Anael-related issues, which span the
trial and sentencing phases, we'll conclude with a few
additional, sentencing-specific arguments-namely, that the
district court erred in increasing Baptiste's sentence
due to the amount of money that the government lost as well
as the number and vulnerability of the scheme's victims,
as well as in declining to permit Baptiste to allocute
the trial, the district court refused to allow Baptiste to
put on evidence that Marvin Pagnon had duped others into
participating in similar schemes. On appeal, Baptiste
contends that, in so doing, the district court misapplied
Federal Rule of Evidence 404(b), which states, in relevant
(1) Prohibited Uses. Evidence of a crime,
wrong, or other act is not admissible to prove a person's
character in order to show that on a particular occasion the
person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal
Case. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.
Fed. R. Evid. 404(b). In particular, Baptiste argues that his
evidence would have demonstrated only Pagnon's
capacity to implement his scheme-he had done so
before, and so could do so again-rather than Pagnon's
character or propensity more generally, and was therefore
admissible as "reverse" 404(b) evidence-i.e.,
bad-acts evidence that "tends to negate the
defendant's guilt of the crime charged against him."
United States v. Seals, 419 F.3d 600, 606 (7th Cir.
2005); see also, e.g., United States v.
Cohen, 888 F.2d 770, 776 (11th Cir. 1989) (admitting