United States v. De La Cruz Suarez

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 31, 2010

No. 08-13675

JOHN LEY

CLERK

D.C. Docket No. 07-10019-CR-JLK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALEXIS DE LA CRUZ SUAREZ,

a.k.a. Alexis de la Cruz,

RAMON BARRABI-PUENTES,

a.k.a. Ramon Barrabi,

Defendants-Appellants.

No. 08-13808

D.C. Docket No. 07-10019-CR-JLK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE VAZQUEZ,

Defendant-Appellant.

Appeals from the United States District Court

for the Southern District of Florida

(March 31, 2010)

Before CARNES and HULL, Circuit Judges, and GOLDBERG,* Judge.

GOLDBERG, Judge:

In December 2007, a federal grand jury returned a superseding indictment

against Appellants Alexis De La Cruz Suarez (“De La Cruz”), Ramon Barrabi

Puentes (“Barrabi”), and Jose Vazquez (“Vazquez”), and three other co-defendants.

The indictment charged the Appellants with conspiracy in violation of 8 U.S.C. §

1324(a)(1)(A)(v)(I) to commit alien smuggling in violation of 8 U.S.C. §

1324(a)(1)(A)(iv), and to bring aliens into the United States at a place other than a

designated port of entry in violation of 8 U.S.C. § 1324(a)(1)(A)(I) (“Count 1");

and attempting to bring aliens into the United States for the purpose of commercial

advantage and private financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii)

* Honorable Richard W. Goldberg, Judge. United States Court of International Trade, sitting by

designation.

2

and 18 U.S.C. § 2 (“Counts 2-35"). Vazquez was charged with 35 additional

counts of attempting to bring aliens into the United States for the purpose of

commercial advantage and private financial gain (“Counts 36-70"). Barrabi was

charged with 66 additional counts of attempting to bring aliens into the United

States for the purpose of commercial advantage and private financial gain (“Counts

36-101"). After a joint trial, a jury found the Appellants guilty as to Count 1. As to

the remaining counts, the Appellants were either acquitted, or the charges were

dismissed.1

On appeal, the Appellants, either separately or jointly, challenge several

rulings made by the District Court during trial regarding: (1) a Motion to Dismiss

the Indictment; (2) a Motion to Suppress Electronic Surveillance; (3) the admission

of a prior inconsistent statement; (4) a Motion for Judgment of Acquittal; and (5) a

Motion for Mistrial. They also raise various issues with regard to their sentences:

(1) De La Cruz and Vazquez challenge an enhancement to their sentencing

guidelines calculation under U.S.S.G. § 3C1.2, for utilizing a special skill to

facilitate the offense; (2) De La Cruz also challenges enhancements to his sentence

pursuant to U.S.S.G. §§ 3C1.2 and 2L1.1(b)(6), arguing that they amounted to

1

The Superseding Indictment included an additional charge concerning criminal forfeiture

pursuant to 18 U.S.C. § 982(a)(6)(A) that is not at issue on appeal.

3

impermissible double counting; (3) Vazquez argues that the District Court

improperly calculated his guideline range by including certain inappropriate

enhancements; (4) Vazquez also challenges the district court’s refusal to apply a

reduction for acceptance of responsibility; (5) Barrabi and Vazquez jointly argue

that the District Court erred in determining that the statutory maximum penalty for

the conspiracy offense was 10 years’ imprisonment; and (6) Barrabi maintains that

his sentence is procedurally and substantively unreasonable. As explained further

below, we AFFIRM the rulings of the District Court and the sentences imposed

upon the Appellants.

BACKGROUND

A joint task force consisting of the FBI and the U.S. Coast Guard, with the

assistance of confidential informants, uncovered an operation that smuggled

individuals from Cuba to the Florida Keys. According to the evidence at trial, from

approximately June 2005 to March 30, 2007, Barrabi ran the operation and offered

undocumented Cuban nationals boat transportation to the United States for the

price of $10,000 per person. With information gathered from the investigation and

from a month-long authorized wiretap on Barrabi’s two cellular phones, three

smuggling trips were intercepted. Each smuggling trip involved a similar course of

4

conduct. Barrabi would arrange for two vessels to leave the Florida Keys–a

primary vessel to pick up the aliens from Cuba, and a secondary vessel to provide

supplies and fuel to the primary vessel. Through the use of satellite telephones,

Barrabi remained in close contact with the crew aboard the transport vessel during

the trip. The primary vessel would travel to Cuba, and return with migrants

dropping them near shore in the Florida Keys.

On February 21, 2007, Vazquez piloted a 32-foot Scarab boat and was

stopped by the Coast Guard en route from Miami to the Florida Keys. Vazquez

called Barrabi about the stop, and explained that everything was fine. Vazquez

then continued the trip to rendezvous with a second vessel, on which Barrabi was

onboard. The second vessel provided fuel and equipment to Vazquez’s vessel.

Vazquez drove the now-equipped primary vessel to the Upper Florida Keys, where

he delivered it to De La Cruz and another crew member, Janny Grijalva Gonzalez.2

Vazquez then departed; and De La Cruz piloted the boat to Cuba. Intercepted calls

revealed that the vessel picked up individuals from Cuba around 4:00 a.m.

On his return from Cuba, De La Cruz was approached by the U.S. Coast

Guard. He ignored the Coast Guard’s instructions to stop the vessel, and a two-

2

Grijalva Gonzalez was an original co-defendant and entered a guilty plea. Pursuant to a

plea agreement, he testified at the Appellants’ trial.

5

hour chase ensued. During the chase, De La Cruz instructed Grijalva Gonzalez to

throw the onboard satellite phone and GPS overboard. Once the Coast Guard was

able to stop the vessel, 34 Cuban migrants were observed onboard. The boat was

designed to carry approximately 10 to 12 passengers, and there were no life jackets

available. The migrants were interviewed by the Coast Guard for potential political

asylum purposes, and 33 of the 34 individuals were repatriated.3

In planning the second intercepted trip, Barrabi and Vazquez were overheard

discussing the retention of a vessel for the trip. A boat was eventually obtained

from Edelsis Lozano.4 Similar to the first trip, Barrabi and Vazquez met on two

separate vessels, and exchanged supplies. The primary vessel was piloted to Cuba

and returned to the Florida Keys with 35 Cuban migrants. The vessel was pursued

by the Coast Guard both going to and returning from Cuba.

During the third intercepted trip, 31 Cuban migrants were discovered

onboard the vessel by law enforcement.

Prior to their arrest, Barrabi had begun planning future smuggling trips, and

had contacted Vazquez to obtain more vessels.

3

One migrant was sent to Guantanamo Bay based on a potentially credible asylum

application.

4

Lozano was also a named co-defendant in the Superseding Indictment. He was tried

jointly with the Appellants and was found not guilty on all counts.

6

DISCUSSION

The Appellants challenge several rulings made by the court on evidentiary

issues, various motions brought throughout trial, and sentencing calculations.

Some issues have been argued by an individual Appellant, while others were raised

by multiple Appellants or adopted post-briefing.5

I. Motion to Dismiss the Indictment

De La Cruz contends that the District Court erred in denying his motion to

dismiss the indictment for loss of testimonial evidence that may have been

favorable to him. A district court’s denial of a motion to dismiss an indictment is

reviewed for an abuse of discretion. United States v. Waldon, 363 F.3d 1103, 1108

(11th Cir. 2004).

In a statement to the government given approximately six weeks after his

arrest, De La Cruz claimed that the trip he made on February 21, 2007 to Cuba was

to assist Grijalva Gonzalez in bringing back his wife and two children. According

to De La Cruz, upon his arrival to Cuba, a large group was waiting and insisted

upon boarding the boat. He stated that he could not get the people off the boat, that

he was threatened with a “sharp metal object,” and that he was forced to leave

5

Vazquez was granted leave by this Court to adopt his co-Appellant’s arguments with

regards to issues discussed here as I., II., IV., V., and VI.E.

7

Cuba with all of them aboard. De La Cruz argues that after stopping the boat, the

Coast Guard should have questioned the 34 Cuban migrants before repatriating

them, not just as to any legitimate asylum claims, but also to ascertain what they

knew about the offenses committed. He claims that his due process rights under

the Fifth Amendment and his compulsory process rights under the Sixth

Amendment were violated because of his inability to question those individuals

before their repatriation, and that the district court should have dismissed the

indictment for loss of testimonial evidence.

At the two evidentiary hearings held on this motion,6 FBI Special Agent

Jennifer Himes testified. She explained that the repatriation was executed

according to standard U.S. Coast Guard operating procedure, and that she had not

been involved in the decision to repatriate the migrants. She also testified that she

did not believe that the migrants were questioned about facts relating to the boat

trip nor about De La Cruz and Grijalva Gonzalez. At the second evidentiary

hearing, Agent Himes stated that De La Cruz had been interviewed on February 23,

2007, two days after the interdiction. Agent Himes clarified that at this interview,

6

After an evidentiary hearing, the motion was denied by the district court without

prejudice. De La Cruz later renewed the motion. The Magistrate Judge reviewed the motion,

held a second evidentiary hearing, and recommended that it be denied. The district court adopted

the report and recommendation and denied the motion a second time.

8

De La Cruz made no mention that he had been threatened by the Cuban migrants

awaiting his boat, nor that they had forced their way onto the boat. These claims

were not mentioned until several weeks later on April 4, 2007, when Agent Himes

interviewed De La Cruz.

To show a violation of his due process rights or compulsory process rights,

De La Cruz is required to show that there was a reasonable basis to believe that the

testimony would be material and favorable to him, and that the government had

acted in bad faith in repatriating the aliens. United States v. Valenzuela-Bernal, 458

U.S. 858, 872-73 (1982); United States v. Schaefer, 709 F.2d 1383, 1386 (11th Cir.

1983); see also United States v. Gastelum-Almeida, 298 F.3d 1167, 1174 (9th Cir.

2002). The Appellant meets neither prong of this test. “The mere fact that the

Government deports [illegal-alien] witnesses is not sufficient to establish a

violation of the Compulsory Process Clause of the Sixth Amendment or the Due

Process Clause of the Fifth Amendment.” Valenzuela-Bernal, 458 U.S. at 872-73.

De La Cruz made no showing, other than his own conclusory allegations,

that the testimony of the repatriated migrants would have been material to the case,

and favorable to him. He merely states that the Government should have been

aware that the migrants had information material to the case, and should have

9

questioned them prior to repatriating them. Notably, De La Cruz never mentioned

any threats or compulsion to take the migrants aboard until he was interviewed

again weeks after the Coast Guard’s interdiction and his arrest. As the Magistrate

Judge recognized, the statements made in the April 4 interview are inconsistent

with his statements shortly after he was stopped by the Coast Guard. Further, there

were three cooperating migrants who testified about the boat trip at trial, and none

corroborated De La Cruz’s story about coercion and threats. In addition, Grijalva

Gonzalez testified, and the jury was able to consider his testimony in their

deliberations.

De La Cruz likewise did not show any bad faith on behalf of the government

in choosing to repatriate the migrants. According to Agent Himes’s testimony, the

Coast Guard was simply following standard operating procedure in returning 33 of

the migrants to Cuba. Since De La Cruz made no statements that he had been

threatened until weeks after the incident, the government, at the time, would have

been unaware of any material or favorable testimony the migrants could have

offered.

Because De La Cruz did not meet his burden of showing either that the

repatriated migrants’ testimony would have been material and favorable to him, or

10

that the Government acted bad faith, the District Court did not abuse its discretion

in denying the motion to dismiss the indictment.

II. Motion to Suppress Electronic Surveillance

Prior to trial, Barrabi and De La Cruz filed motions, which were later

adopted by Vazquez, to suppress all evidence obtained through the electronic

surveillance of Barrabi’s two cellular phones. After two evidentiary hearings and

in accordance with the Magistrate Judge’s recommendation, the district court

denied the motions. A district court’s denial of a motion to suppress evidence is

reviewed as a mixed question of law and fact, with the rulings of law reviewed de

novo and the findings of fact reviewed for clear error, in the light most favorable to

the prevailing party. United States v. Boyce, 351 F.3d 1102, 1105 (11th Cir. 2003).

De La Cruz, Barrabi, and Vazquez argue that the issuance of the wiretap on

Barrabi’s cell phone was premature. Title 18 U.S.C. § 2518(1)(c) requires that an

application for electronic surveillance 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.”

The Appellants argue that this requires the government’s affidavit to show with

specificity why ordinary means of investigation have failed, and that Agent

11

Himes’s affidavit neglected to explain why the traditional methods of investigation

were insufficient. According to the Appellants, other less intrusive investigative

methods were available to the government, such as continued use of confidential

informants and consensually recorded conversations. Thus, they argue that the

wiretap should not have been authorized and the evidence obtained from it is

suppressible as fruits of the poisonous tree.

The required explanation of other investigative procedures in an electronic

surveillance application is “designed to assure that wiretapping is not resorted to in

situations where traditional investigative techniques would suffice to expose the

crime.” United States v. Kahn, 415 U.S. 143, 153 n.12 (1974). The affidavit in

support of a search warrant “must simply explain the retroactive or prospective

failure of several investigative techniques that reasonably suggest themselves.”

United States v. Van Horn, 789 F.2d 1492, 1496 (11th Cir. 1986). However, a

comprehensive exhaustion of all possible investigative techniques is not necessary

before applying for a wiretap. United States v. Alonso, 740 F.2d 862, 868 (11th

Cir. 1984). The statute was not intended “to foreclose electronic surveillance until

every other imaginable method of investigation has been unsuccessfully attempted,

12

but simply to inform the issuing judge of the difficulties involved in the use of

conventional techniques.” Id.

Agent Himes’s testimony regarding the contents of the affidavit provides

ample support for the authorization of the wiretap. Agent Himes of the FBI

testified to the prior investigative techniques that had been employed and the extent

of their success.7 This information had been included in her original affidavit when

applying for the wiretap. However, despite the information obtained from other

methods, she testified that she felt that a wiretap was necessary to determine the

scope of the conspiracy, and all of its members.8 She also testified that the

prolonged use of physical surveillance was not feasible because the agents

surveilling Barrabi were increasingly likely to be discovered. Pen registers and

trap and trace devices were not entirely useful because of the probability of

multiple subscribers to the previously identified phone numbers and the frequent

use of aliases. Agent Himes also stated that the use of search warrants would not

have been appropriate because it would likely have alerted co-conspirators to the

7

She explained that five confidential informants had been employed, one of which had

engaged in consensual monitoring on one of the target telephones. Pen registers on the two

target cellular phones were utilized, and resulted in the identification of various persons involved

in the smuggling operation. Physical surveillance was conducted. Government agents also

obtained information from real estate properties and bank accounts owned by Barrabi. At least

one trash pull was conducted at Barrabi’s residence.

8

The wiretaps led to indictments of 12 individuals not previously known to the

government.

13

ongoing investigation. The Magistrate Judge found her to be a “highly credible

witness whose testimony was straightforward and candid.” Agent Himes

sufficiently described the prior investigation methods employed in the case, and

was not, as the Appellants argue, required to comprehensively exhaust all other

techniques before requesting authorization for electronic surveillance.

Additionally, the Appellants argue that the evidence obtained from the

wiretap should be suppressed because the government failed to comply with the

minimization requirement for electronic surveillance. Electronic surveillance must

be “conducted in such a way as to minimize the interception of communications not

otherwise subject to interception.” 18 U.S.C. § 2518(5). “The 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.” Scott v. United States, 436 U.S. 128, 140

(1978). Agent Himes defined minimization as “the act of stopping to hear the

audio content of a call based on the fact that there is a privileged call either

between a lawyer, a priest, personal relative, something of non-legal nature.”

Conversations lasting less than two minutes are considered too brief “to identify

the caller and characterize the conversation as merely social or possibly tainted.”

14

United States v. Bynum, 485 F.2d 490, 500 (2d Cir. 1973). A standard of

reasonableness is applied to the government’s actions regarding electronic

interceptions. United States v. Moody, 977 F.2d 1425, 1433 (11th Cir. 1992). The

Appellants argue that the government made no true effort to separate relevant calls

from personal ones because only 92 of the total 3,600 calls were minimized. Based

on the numbers, Appellants simply suggest that more calls should likely have been

minimized.

At the evidentiary hearing, the government’s evidence showed that there

were a total of 4,866 calls made during the duration of the wiretap. Of these calls,

3,365 were less than one minute in duration. A substantial number of calls

contained no communications and resulted in hangups. 642 calls lasted longer than

two minutes. A total of 92 calls were minimized, 70 of which were longer than two

minutes.

Agent Himes testified that the agents ceased monitoring any call “when it

pertained to legal subjects and the target.” They also ceased monitoring calls of a

personal nature.9 The vast majority of the calls had been so short (less than one

9

Some calls between Barrabi and his wife were not minimized because she was listed as a

target in the affidavit in support of the electronic surveillance application. See United States v.

Malekzadeh, 855 F.2d 1492, 1496 (11th Cir. 1988) (the government does not have a duty to

minimize calls where a husband and wife are targets and believed to be involved in the

conspiracy under investigation).

15

minute) that it was not possible to determine whether they should be minimized

before they were over. As stated above, Agent Himes’s testimony was found to be

credible and believable. Evidence that a small number of calls were minimized

does not, by itself, indicate that the minimization procedures used by the

government were unreasonable. Appellants did not provide sufficient evidence to

show otherwise.

Accordingly, the District Court did not err in denying the motion to suppress

evidence obtained from the electronic surveillance.

III. Admission of a Prior Inconsistent Statement

De La Cruz argues that the district court should have permitted the

introduction of a prior inconsistent statement by a witness. A district court’s

admission or denial of evidence is reviewed for abuse of discretion. United States

v. Smith, 122 F.3d 1355, 1357 (11th Cir. 1997). “Even if the district court abused

its discretion by admitting or excluding evidence, the conviction must be affirmed

unless the defendant can meet its burden of demonstrating that substantial rights

were affected by the error.” United States v. Saget, 991 F.2d 702, 709 (11th Cir.

1993).

Hector Suarez Gonzalez, one of the individuals on board the vessel driven by

16

De La Cruz and interdicted by the Coast Guard, was interviewed by Agent Himes

on September 26, 2007. Agent Himes recorded in her summary of the interview

that Suarez Gonzalez stated, “The captains noticed that the boat was sitting very

low in the water and were concerned. However, no one wanted to exit the boat.”

Suarez Gonzalez testified at trial. When questioned on cross-examination about

the overcrowded conditions on the boat, he responded, “I don’t know anything

about that.” De La Cruz’s defense counsel sought to refresh Suarez Gonzalez’s

recollection by showing him a summary of his FBI interview testimony. Suarez

Gonzalez denied recalling his prior statement about the boat sitting low in the

water.

De La Cruz’s defense counsel later argued for admission of Suarez

Gonzalez’s initial statement. Defense counsel stated that the inconsistency in the

statements was material because it provided support for De La Cruz’s argument

that he only intended to pick up Grijalva Gonzalez’s family in Cuba, and was

concerned about the number of people onboard the boat. The district court refused

to admit the statement and denied defense counsel the opportunity to recall Agent

Himes to the stand to ask her about Suarez Gonzalez’s original statement reasoning

that the statement was not material to the argument. The district court specifically

17

stated, “I think the fact that the boat was overloaded or not overloaded would not

have any real relevancy to that or materiality to that.” The district court added that

De La Cruz had other opportunities, such as the testimony of Grijalva Gonzalez, to

support his position.

On appeal, De La Cruz maintains that Suarez Gonzalez’s original statement

was relevant to impeach Suarez Gonzalez as a witness, and that it was also proof of

De La Cruz’s state of mind at the time the boat was loaded.

“Extrinsic evidence of a prior inconsistent statement by a witness is not

admissible unless the witness is afforded an opportunity to explain or deny the

same....” Fed. R. Evid. 613(b). A witness may be impeached with a third-party

statement only if he has adopted it as his own. Saget, 991 F.2d at 710. A witness

may not be impeached by a non-verbatim statement, i.e., one that is in a

government prepared summary, “which could not fairly be said to be the witness'

own rather than the product of the investigator's selections, interpretations, and

interpolations.” Id. (quoting Palermo v. United States, 360 U.S. 343, 350 (1959)).

Here, the report was created by Agent Himes, and when questioned about the prior

statement, Suarez Gonzalez stated he did not recall making it. De La Cruz was still

18

afforded the opportunity to support his argument with Grijalva Gonzalez’s

testimony, and to discuss it during closing arguments.

Contrary to the Appellant’s argument, the statement is not an exception to

the hearsay rule as an admission of the declarant’s state of mind. See Fed. R. Evid.

803(3). It was not offered as “[a] statement of the declarant's then existing state of

mind, emotion, sensation, or physical condition.” Id. The statement was made after

the fact, not at the time of the incident. In addition, the state of mind in the

exception “refers to the state of mind of the declarant, not to the state of mind of

the listener or hearer of the statement.” United States v. Arbolaez, 450 F.3d 1283,

1290 n.6 (11th Cir. 2006). De La Cruz was not the declarant of the statement in

question.

The District Court did not abuse its discretion in refusing to admit Suarez

Gonzalez’s prior statement.

IV. Motion for Judgment of Acquittal

The Appellants challenge the denial of their Rule 29 Motion for Judgment of

Acquittal and their Renewed Motion for Judgment of Acquittal and/or Motion for

New Trial filed post-trial. “Whether the record contains sufficient evidence to

19

support the jury's verdict is a question of law subject to de novo review.” United

States v. To, 144 F.3d 737, 743 (11th Cir. 1998).

The Appellants present two arguments supporting their claim that the Motion

for Judgment of Acquittal should have been granted. They first argue that the trial

court did not have jurisdiction over the incident since the interdiction occurred on

the high seas, 40 miles off the coastline, and not within the territorial limits of the

United States. See Yenkichi Ito v. United States, 64 F.2d 73, 75 (9th Cir. 1933)

(typically the territorial domain of the United States extends three miles from its

shore). Notwithstanding, a conspiracy may be prosecuted in any district where the

agreement was made or where an overt act took place. United States v. Perez-

Herrera, 610 F.2d 289, 291 (5th Cir. 1980); Yenkichi Ito, 64 F.2d at 76. Here, trial

evidence showed that multiple acts in furtherance of the alien smuggling

conspiracy occurred in southern Florida, including Barrabi’s house in Miami and

the designated drop-off and pick-up points in the Florida Keys. Even though the

actual migrant interception took place on the high seas, the organization of the plan

and the arranging and transportation of the boats took place in southern Florida,

giving the trial court proper jurisdiction over the case. This argument is meritless.

20

The Appellants also claim that the government failed to prove that the

Southern District of Florida was the appropriate venue for the case.

For purposes of venue, the government must prove by a preponderance of

the evidence that the crimes occurred within the district of trial. United States v.

Males, 715 F.2d 568, 569 (11th Cir. 1983). “[W]hen circumstantial evidence as a

whole reasonably supports the inference that the crime was committed in the trial

district, the government’s burden is satisfied.” United States v. Rivamonte, 666

F.2d 515, 517 (11th Cir. 1982).

In addition to the jurisdictional evidence described above, Agent Himes

identified photographs of Barrabi’s houses in Miami-Dade and Monroe Counties in

southern Florida, where the coconspirators assembled for the smuggling trips. The

surveillance agents testified to related activities that occurred in both counties.

Evidence was introduced of departures from and arrivals to Barrabi’s house in

Miami, as well as evidence of the boat exchange that occurred at Marathon Key,

Florida. A chart depicting the southern United States, the Florida Straits, and Cuba

was also admitted into evidence. There were references to the Black Point Marina

and to the cities of Miami, Islamorada, and Tavenier in southern Florida. As a

whole, there was more than sufficient evidence that crimes were committed in the

21

trial district.

The District Court properly denied the Motion for Judgment of Acquittal.

V. Motion for Mistrial

Barrabi challenges the district court’s denial of his motion for a mistrial. A

court’s refusal to grant a mistrial will be upheld unless an abuse of discretion has

occurred. United States v. Christopher, 923 F.2d 1545, 1554 (11th Cir. 1991).

During closing statements, the prosecutor commented on testimony given by

cooperating co-defendants. Attempting to bolster their credibility, she stated:

You heard a lot of argument by defense counsel about [co-

conspirators] Janny Grijalva Gonzalez, Enrique Manzano, Aramis

Ramos Fragaso, Emilio Yanes. They’re here. Their motivation

was to reduce their sentence.

And they made the argument to you they’d say anything in the

world to reduce their sentence, to spend less time in jail. But you

heard very important testimony from them.

Yes, they’re here to reduce their sentences, but who sentenced

them? Two of them have already been sentenced, two are yet to

be sentenced. It’s Judge King. Their case is pending before Judge

King, just like these gentlemen. Judge King decides what the

sentence is going to be.

Use your common sense, ladies and gentlemen. You think

somebody’s sentence is going to be reduced if they come here and

tell something other than the truth?

22

Defense counsel immediately objected to the statement as improper

prosecutorial vouching; the objection was sustained. Based on the prosecutor’s

comments, Barrabi later moved for a mistrial; the motion was denied. He also

moved for a new trial for several of the same reasons he had argued in his mistrial

motion; this was also denied. On appeal, Barrabi renews his argument that it was

inappropriate for the prosecutor to make personal assurances as to a witness’s

veracity, and that the comments unfairly prejudiced the jury against him.

To establish prosecutorial vouching, a party must show that “(1) the

prosecutor placed the prestige of the government behind the witness by making

explicit [personal] assurances of the witness’s credibility, or (2) the prosecutor

implicitly vouched for the witness’s credibility by implying that evidence not

formally presented to the jury supports the witness’s testimony.” United States v.

Cano, 289 F.3d 1354, 1365 (11th Cir. 2002). However, prosecutorial misconduct,

such as vouching, is “a basis for reversing an appellant's conviction only if, in the

context of the entire trial in light of any curative instruction, the misconduct may

have prejudiced the substantial rights of the accused.” United States v. Lopez, 898

F.2d 1505, 1511 (11th Cir. 1990). “A defendant’s substantial rights are

prejudicially affected when a reasonable probability arises that, but for the remarks,

23

the outcome of the trial would be different.” United States v. Hall, 47 F.3d 1091,

1098 (11th Cir. 1995).

Here, there were multiple attempts to ameliorate any possible prejudice to

the jury caused by the prosecutor’s comments. In sustaining defense counsel’s

objections to the prosecutor’s statements, the district judge instructed the jury to

disregard the comments. The jury was advised that the testimony of witnesses with

regard to their expectation of receiving “some help or some reduction” that “only

the Government can move for” was to be evaluated “with greater care than that of

the ordinary person that comes in and testifies.” The judge also informed the jury

that it would include in its final charge guidance about how to evaluate such a

witness’s testimony, but that the jury remained the sole judge of witness credibility.

A jury is presumed to follow its instructions. United States v. Ramirez, 426 F.3d

1344, 1352 (11th Cir. 2005). Barrabi does not argue that the jury failed to do so.

In addition, defense counsel, during his closing argument, commented that the

government witnesses had “a deal” with the government, and they had been offered

“something much more valuable than money, and they present these witnesses to

you as if they give a whit about telling the truth. All they care about is going

home....” The jury was allowed to consider this statement as well.

24

There was significant evidence presented against Barrabi linking him to the

smuggling conspiracy. He cannot show that but for the prosecutor’s comments the

jury would have found him not guilty. Since Barrabi did not show that his

substantial rights were prejudiced by the prosecutor’s comments, the district court

did not abuse its discretion in denying the motion for mistrial.

VI. Sentencing

The Appellants individually, and in some cases jointly, challenge several

aspects of their sentences.

A. Special Skill Enhancement

De La Cruz and Vazquez both argue that a two-level special skill

enhancement should not have been added to their sentencing guideline calculation.

The district court’s legal interpretation of the term “special skills” is reviewed de

novo, but whether the defendant possesses a special skill under § 3B1.3 of the

Sentencing Guidelines is a factual finding reviewed for clear error. United States v.

Foster, 155 F.3d 1329, 1331 (11th Cir. 1998). For a factual finding to be clearly

erroneous, we “must be left with a definite and firm conviction that a mistake has

been committed.” Id.

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“‘Special skill’ refers to a skill not possessed by members of the general

public and usually requiring substantial education, training, or licensing. Examples

would include pilots, lawyers, doctors, accountants, chemists, and demolition

experts.” U.S. Sentencing Guidelines Manual § 3B1.3 cmt. n.4 (2009). If the

special skill was used “in a manner that significantly facilitated the commission or

concealment of the offense,” a defendant’s sentencing guidelines offense level is

increased by 2 levels. § 3B1.3. If an “average person off the street” does not

possess the skill, then the skill is considered “special” for the purposes of applying

the enhancement. United States v. Calderon, 127 F.3d 1314, 1339 (11th Cir. 1997).

De La Cruz and Vazquez argue that there are no special skills required to pilot the

Scarab boat, and no license is required to do so.

Here, U.S. Coast Guard Officer Evan Sanborn attested that De La Cruz’s

ability to outrun a Coast Guard vessel during a two-hour chase at night in an

overloaded boat was a special skill, particularly after the GPS and satellite phone

were thrown overboard. Even with the assistance of a GPS, De La Cruz used

specialized knowledge of the area to find a predetermined location in Cuba to pick

up the migrants. The average person could not operate a vessel in this manner

without the use of unique skills. See id. at 1339-40 (“[W]e do not believe that an

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average person off the street would possess the requisite skills to captain a cocaine

laden boat on the high seas from the Bahamas to a predetermined specific location

in Southern Florida using a chart and compass at night without lights while taking

care to elude detection by the throng of law enforcement agencies tasked with

preventing the importation of cocaine.”); see also United States v. Malgoza, 2 F.3d

1107, 1110-11 (11th Cir. 1993) (holding that advanced radio operating ability

required special skills within the meaning of § 3B1.3).

Officer Sanborn also testified that Vazquez possessed special skills in boat

mechanics because he had installed new engines to the vessels, and was able to

take apart boats, perform fiberglass work, and install fuel tanks. In addition,

Vazquez was able to navigate a boat at night in the Florida Keys with no lights.

Similar to De La Cruz’s skills, these are not skills possessed by the general public.

It was not clear error for the district court to rely on this testimony and apply

the special skills enhancement.

B. Enhancement for Substantial Risk of Death and Enhancement for

Reckless Endangerment

The district court applied two separate two-level enhancements to De La

Cruz’s sentencing guidelines calculation for intentionally or recklessly creating a

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substantial risk of death or bodily injury to another person under U.S.S.G. §

2L1.1(b)(6) and for reckless endangerment during flight under U.S.S.G. § 3C1.2.

De La Cruz maintains that applying both enhancements is double counting because

two enhancements cannot be applied for the same conduct, i.e., overcrowding the

boat.

We review a claim of double counting de novo. United States v. Dudley, 463

F.3d 1221, 1226 (11th Cir. 2006). “Impermissible double counting occurs only

when one part of the Guidelines is applied to increase a defendant’s punishment on

account of a kind of harm that has already been fully accounted for by application

of another part of the Guidelines.” United States v. Matos-Rodriguez, 188 F.3d

1300, 1309 (11th Cir. 1999) (quoting United States v. Alexander, 48 F.3d 1477,

1492 (9th Cir. 1995)) (citations and internal quotation marks omitted). “Double

counting a factor during sentencing is permissible if the Sentencing Commission

intended the result, and if the result is permissible because each section concerns

conceptually separate notions related to sentencing.” United States v. Adeleke, 968

F.2d 1159, 1161 (11th Cir. 1992) (citations and internal quotation marks omitted).

The two-level enhancement under § 2L1.1(b)(6) applies if the offense

conduct intentionally or recklessly creates a risk of serious bodily injury to another.

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This includes “carrying substantially more passengers than the rated capacity of a .

. . vessel.” § 2L1.1 cmt. n.5. The two-level enhancement under § 3C1.2 applies if

the defendant recklessly creates a substantial risk of death or seriously bodily

injury to another person in the course of fleeing from a law enforcement officer. If

conduct justifying an enhancement under § 2L1.1(b)(6) is solely related to fleeing

from law enforcement, then § 3C1.2 should not be applied. § 2L1.1 cmt. n.5.

Similarly, an enhancement under § 3C1.2 should not be applied where “the offense

guideline in Chapter Two, or another adjustment in Chapter Three, results in an

equivalent or greater increase in offense level solely on the basis of the same

conduct.” § 3C1.2 cmt. n.1. When acts of reckless conduct are temporally and

spatially separated, an enhancement based on separate guidelines provisions is

permissible. Matos-Rodriguez, 188 F.3d at 1312.

Here, the enhancement for substantial risk of death was applied because De

La Cruz had 36 individuals onboard a vessel designed to hold no more than 12

people, and there were no life jackets available. This qualified as a substantial risk

of serious injury or death to the Cuban migrants under § 2L1.1(b)(6). In contrast,

the enhancement for endangerment during flight under § 3C1.2 was applied

because De La Cruz led the Coast Guard on a two-hour high-speed chase in the

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darkness. Thus, the enhancements were not for the same conduct, and the district

court did not commit impermissible double counting in applying both

enhancements.

C. Enhancement for Substantial Risk of Death and Enhancement for

Conspiring to Smuggle at Least 100 Aliens

Vazquez individually disputes two specific elements of his sentencing

calculation. He contests the enhancements applied to his sentencing guidelines

calculation for creating a substantial risk of death or bodily injury to another

person, and for conspiring to smuggle 100 or more unlawful aliens. With regard to

sentencing guideline calculation, we review for clear error a district court’s factual

findings, and review de novo the application of the law to those facts. United States

v. Cover, 199 F.3d 1270, 1274 (11th Cir. 2000).

Vazquez argues that he should not have received an enhancement for

substantial risk of death or bodily injury under U.S.S.G. § 2L1.1(b)(6) because he

did not know how many people would be transported from Cuba and he was not

personally involved with transporting the Cuban migrants. He states that he was

only involved with maneuvering the boats within the Florida Keys. The district

court ruled that it was reasonably foreseeable to anyone involved in a criminal

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conspiracy to import aliens into the United States that the people transported would

be placed in great risk of death and harm and serious bodily injury. The district

court also rejected Vazquez’s argument that he should not be found responsible for

the transportation of at least 100 aliens because he was not aware of how many

people would be transported.

Under U.S.S.G. § 2L1.1(b)(6), a two-level enhancement applies where the

“offense involved intentionally or recklessly creating a substantial risk of death or

serious bodily injury to another person.” “Offense” is defined as “the offense of

conviction and all relevant conduct under § 1B1.3 . . . unless a different meaning is

specified or is otherwise clear from the context.” § 1B1.1 cmt. n.1(H). Because no

other meaning is specified or clear from the context, § 1B1.3(a)(1)(B) provides that

“relevant conduct” includes “all reasonably foreseeable acts and omissions of

others in furtherance of the jointly undertaken criminal activity.” If a defendant is

aware of the scope of a conspiracy outside of his individual actions, he may be held

accountable for actions by co-conspirators even though he was not personally

involved. See United States v. McCrimmon, 362 F.3d 725, 732-33 (11th Cir.

2004).

31

Vazquez had recommended certain vessels to Barrabi for the smuggling

trips, and also installed commercial gas tanks on the vessels so that the vessels

could transport larger numbers of people. Given the evidence presented at trial as

to the scope of the smuggling conspiracy and Vazquez’s specific knowledge of

certain details of the conspiracy, it was certainly reasonably foreseeable to Vazquez

that the individuals transported were placed at great risk of death or serious bodily

injury.

Vazquez also contests a nine-level enhancement under § 2L1.1(b)(2)(C)

because the offense involved transporting 100 or more unlawful aliens. A

defendant’s participation in a conspiracy is presumed to continue “until all objects

of the conspiracy have been accomplished or until the last overt act has been

committed by any of the conspirators.” United States v. Arias, 431 F.3d 1327, 1340

(11th Cir. 2005).

Again, as a member of the conspiracy, Vazquez remains accountable for the

actions of the other members. The trips that Vazquez participated in resulted in the

transportation of 34 Cuban migrants on the first trip, 35 individuals on the second

trip, and 31 more on the third trip. Furthermore, the Presentence Investigation

Report stated, and Vazquez did not dispute, that he participated in a fourth

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smuggling venture to transport 37 Cuban migrants to the United States.

Because of the scope of the conspiracy and Vazquez’s participation in it, the

district court did not err in apply these two enhancements to his sentence

calculation.

D. Reduction for Acceptance of Responsibility

Vazquez disputes the denial of a Sentencing Guidelines reduction for his

acceptance of responsibility. As stated above, we review for clear error a district

court’s factual findings, and review de novo the application of the law to those

facts. Cover, 199 F.3d at 1274.

The Sentencing Guidelines provide for a two-level reduction when the

“defendant clearly demonstrates acceptance of responsibility for his offense.” §

3E1.1(a). “[A] defendant who falsely denies, or frivolously contests, relevant

conduct that the court determines to be true has acted in a manner inconsistent with

acceptance of responsibility.” § 3E1.1, cmt. n.1(a).

Vazquez argues that he should have received a two-level reduction for

acceptance of responsibility because he attempted to plead guilty to the conspiracy

charge, even though he did not admit guilt to the remaining charges. However,

Vazquez proceeded to trial and falsely denied relevant conduct that the district

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court later determined to be true.10 The district court did not err in denying this

reduction.

E. Challenge to the Maximum Statutory Penalty

Barrabi and Vazquez argue that the maximum statutory penalty for the

convicted offense should be five years, and not ten years. We review a district

court’s legal interpretation of a statute de novo. United States v. Burge, 407 F.3d

1183, 1186 (11th Cir. 2005).

Section 1324(a) of United States Code Title 8 states that:

(1)(A) Any person who–

(i) knowing that a person is an alien, brings to or attempts to bring

to the United States in any manner whatsoever such person at a

place other than a designated port of entry or place other than as

designated by the Commissioner, regardless of whether such alien

has received prior official authorization to come to, enter, or

reside in the United States and regardless of any future official

action which may be taken with respect to such alien; ...

(iv) encourages or induces an alien to come to, enter, or reside in

the United States, knowing or in reckless disregard of the fact that

such coming to, entry, or residence is or will be in violation of

law; or

(v)(I) engages in any conspiracy to commit any of the preceding

acts . . .

10

Immediately after arrest, Vazquez gave false statements to Special Agent Derrick Beyss

of the FBI about staying with Barrabi, failed to acknowledge meeting another boat to exchange

crew members, and lied about not calling Barrabi after being stopped by the Coast Guard.

34

shall be punished as provided in subparagraph (B).

Subparagraph (B) provides that:

(B) A person who violates subparagraph (A) shall, for each alien

in respect to whom such a violation occurs--

(i) in the case of a violation of subparagraph (A)(I) or (v)(I) or in

case of a violation of subparagraph (A)(ii), (iii), or (iv), in which

the offense was done for the purpose of commercial advantage or

private financial gain, be fined under Title 18, United States

Code, imprisoned not more than 10 years, or both;

(ii) in the case of a violation of subparagraph (A)(ii), (iii), or

(v)(II), be fined under Title 18, United States Code, imprisoned

not more than 5 years, or both….

Pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), Barrabi and

Vazquez maintain that because they were not charged nor was it proven that they

committed the offense “for the purpose of commercial advantage or private

financial gain,” (B)(i) does not apply, and instead the five-year statutory maximum

explained in (B)(ii) applies. However, Barrabi and Vazquez were convicted under

8 U.S.C. 1324(a)(1)(A)(v)(I), which according to (B)(i) does not carry the added

burden of “commercial advantage or private financial gain” to reach the ten-year

statutory maximum. Barrabi’s 120-month sentence and Vazquez’s 71-month

35

sentence did not exceed the 10-year statutory penalty. This argument is meritless.

See United States v. Martinez-Candejas, 347 F.3d 853, 860 (10th Cir. 2003).

F. Reasonableness

Sentencing decisions are reviewed for an abuse of discretion. Gall v. United

States, 552 U.S. 38, 51 (2007). Barrabi argues that his sentence is unreasonable

because the incorrect maximum statutory penalty was applied and because a

sentence at the lower end of the guideline range would have been more appropriate

and would have met the goals of 18 U.S.C. § 3553(a).

A sentence may be procedurally unreasonable if the district court improperly

calculated the guideline range, treated the guidelines as mandatory rather than

advisory, failed to consider the 18 U.S.C. § 3553(a) factors, selected a sentence

based on clearly erroneous facts, or failed to explain adequately the chosen

sentence. Gall, 552 U.S. at 51. After an appellate court has determined that the

sentence is procedurally sound, the substantive reasonableness of the sentence must

be determined. Id. This review involved examining the totality of the

circumstances, including the extent of any variance from the Guidelines range. Id.

“The fact that the appellate court might reasonably have concluded that a different

sentence was appropriate is insufficient to justify reversal of the district court.” Id.

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The burden of establishing unreasonableness belongs to the party challenging the

sentence. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).

Barrabi’s sentence is procedurally reasonable because, as the record

indicates, the district court correctly calculated the advisory guideline range and

considered the sentencing factors set forth in 18 U.S.C. § 3553(a).11 As explained

above, the correct statutory maximum was also applied. Furthermore, the record

shows that the court considered the purposes and goals of sentencing, Barrabi’s

characteristics, and the seriousness of the offense.

Likewise, Barrabi’s sentence is substantively reasonable. The district court

has wide discretion in selecting from a reasonable range of appropriate sentences.

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Here, the court

imposed a sentence at the high-end of the guideline range, finding such a sentence

was appropriate given the seriousness of the offense, and the duration of the

conspiracy. Barrabi did not show that the sentence was unreasonable, in light of

the record.

11

Although the court did not expressly state that it considered the 18 U.S.C. § 3553(a)

factors, the government discussed them at the sentencing hearing, and the court stated that it had

considered the parties’ statements. See United States v. Eggersdorf, 126 F.3d 1318, 1322-23

(11th Cir. 1997) (referencing the Government’s opposition to Defendant’s motion that discussed

§ 3553(a) factors, along with support in the record, indicated that the district court had provided

sufficient reasons for denying a resentencing).

37

Thus, the district court was within its discretion in imposing Barrabi’s

sentence.

CONCLUSION

Based on the foregoing reasons, we uphold the district court’s evidentiary

rulings, rulings on the motions, and sentencing decisions.

AFFIRMED.

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