United States v. Alejandro Estrada Aplesa

Case: 16-12399 Date Filed: 05/23/2017 Page: 1 of 18

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-12399

Non-Argument Calendar

________________________

D.C. Docket No. 3:15-cr-00141-TJC-PDB-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALEJANDRO ESTRADA APLESA,

a.k.a. Paco,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(May 23, 2017)

Before HULL, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:

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After a jury trial, Alejandro Aplesa was convicted of conspiracy to possess

with intent to distribute and possession with intent to distribute 500 grams or more

of cocaine, in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1), (b)(1)(B),

respectively. For these offenses, Aplesa was sentenced to a total term of 60

months of imprisonment, which was the statutory minimum. On appeal, Aplesa

contends that his convictions should be overturned because the district court

erroneously instructed the jury on both offenses and the government improperly

vouched for the credibility of a key cooperating witness. He challenges his

sentence on the ground that the court clearly erred in determining that he did not

qualify for a minor-role reduction under U.S.S.G. § 3B1.2. After careful review,

we affirm.

I. Jury Instructions

Aplesa argues that the district court erred in instructing the jury in two

respects. Aplesa first contends that the court omitted an essential element of the

drug-conspiracy charge—that the object of the conspiracy was to possess with

intent to distribute cocaine, and not just to possess cocaine—and therefore

constructively amended the indictment by broadening the possible bases for

conviction beyond what was alleged in the indictment. Second, he argues that the

court’s instruction on aiding-and-abetting liability is inconsistent with the Supreme

Court’s decision in Rosemond v. United States, 134 S. Ct. 1240 (2014).

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We ordinarily review jury instructions de novo “to determine whether the

instructions misstated the law or misled the jury to the prejudice of the objecting

party.” United States v. Felts, 579 F.3d 1341, 1342 (11th Cir. 2009). We will not

reverse a conviction because of an erroneous instruction unless we are “left with a

substantial and ineradicable doubt as to whether the jury was properly guided in its

deliberations.” Id. at 1342–43 (quotation marks omitted). We evaluate the

instruction as a whole and in the context of the entire trial. United States v.

Seabrooks, 839 F.3d 1326, 1333 (11th Cir. 2016), petition for cert. filed, (U.S. Feb.

16, 2017) (No. 16-8072).

Challenges to jury instructions that are raised for the first time on appeal,

however, are reviewed for plain error only. United States v. Madden, 733 F.3d

1314, 1322–23 (11th Cir. 2013) (holding that plain-error review applies “where the

defendant fails to object to a constructive amendment”); United States v. Schlei,

122 F.3d 944, 973 (11th Cir. 1997). “An error is plain if it is obvious and clear

under current law.” United States v. Eckhardt, 466 F.3d 938, 948 (11th Cir. 2006).

Unless the explicit language of a statute or rule specifically resolves an issue, there

can be no plain error without precedent from the Supreme Court or this Court

directly resolving the issue. United States v. Hesser, 800 F.3d 1310, 1325 (11th

Cir. 2015).

When a party “induces” or “invites” the district court to make an error, the

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doctrine of invited error precludes the party from seeking review of that error on

appeal, even if plain error would result. United States v. Silvestri, 409 F.3d 1311,

1327 (11th Cir. 2005). While the mere failure to object to jury instructions does

not constitute invited error, United States Dortch, 696 F.3d 1104, 1112 (11th Cir.

2012), a party invites error by indicating that proposed jury instructions are

acceptable, Silvestri, 409 F.3d at 1337. See United States v. Frank, 599 F.3d 1221,

1240 (11th Cir. 2010) (“[W]hen a party agrees with a court’s proposed

instructions, the doctrine of invited error applies, meaning that review is waived

even if plain error would result.”).

A. Drug-conspiracy Instruction

This Circuit’s pattern instruction for a drug-conspiracy offense under 21

U.S.C. § 846 lists the elements of that crime as follows:

(1) two or more people in some way agreed to try to accomplish a

shared and unlawful plan to possess or import [substance];

(2) the Defendant, knew the unlawful purpose of the plan and

willfully joined in it; and

(3) the object of the unlawful plan was to [possess with the intent to

distribute] [import] more than [threshold] of [substance].

11th Cir. Pattern Crim. Jury Instructions (Criminal) Instruction O100 (2015)

(alteration in original). Commentary to this instruction states that “if the bracketed

language in this instruction concerning weights is made a part of the overall

instructions, followed by use of the special verdict form below, then the Third

element of the instructions defining the offense should be deleted.” Id.

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At the charge conference, the district court stated that, consistent with

commentary to the pattern § 846 instruction, it would remove a reference to the

third element because the issue of weight was discussed later in the charge and on

the verdict form. 1 Neither party objected to the court’s proposal. When the court

instructed the jury, it omitted the third element—that the “the object of the

unlawful plan” was to possess with intent to distribute a quantity of cocaine. The

court also instructed the jurors that they must “unanimously agree on the weight of

the cocaine the defendant possessed and specify the amount on the verdict form.”

Shortly after the jury retired to begin its deliberations, the district court on its

own initiative raised the issue that Aplesa advances on appeal. The court noted

that the instruction “just says a common unlawful plan to possess cocaine” and not

“to possess cocaine with intent to distribute.” But the court expressed its

inclination to “stay with the pattern [instruction] . . . unless somebody thinks

differently.” Asked for their input, both the government and Aplesa requested that

the court stay with the pattern instruction.

Now, however, Aplesa contends that the district court plainly erred by

failing to instruct the jury that it was required to find that the object of the

conspiracy was “to possess cocaine with intent to distribute.” We conclude that

1

In contrast to the special verdict form in the commentary, however, the verdict form

used at trial referred only generally to the “amount of the cocaine involved in the offense charged

in Count One.” The special verdict form in the commentary specifically requires the jury to find

the amount that the defendant “distributed,” “possessed with intent to distribute,” or “conspired

to possess with intent to distribute.”

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Aplesa has waived review of the drug-conspiracy instruction because he agreed to

the court’s instruction and thereby invited the alleged error of which he complains.

See Frank, 599 F.3d at 1240; Silverstri, 409 F.3d at 1337.

Aplesa’s argument for why invited error does not apply here is

unconvincing. He admits that his counsel agreed to the “pattern instruction” and

that such agreement may constitute invited error. But, he contends, the district

court did not actually use the pattern instruction when it omitted the third element

of the charge, so by agreeing to the pattern instruction he “certainly did not invite

the district court not to use the pattern instruction.” Aplesa’s argument, however,

wholly ignores the context of his agreement to the “pattern instruction.”

The district court, correctly or not, characterized the instruction that it gave

to the jury as the “pattern instruction.” So when the court asked the parties

whether they wanted to “stay with the pattern [instruction]” or to include additional

language relating to the object of the conspiracy, the court clearly was referring to

the instruction that had just been given. By affirmatively requesting that the court

stay with the “pattern instruction,” Aplesa agreed with the court’s decision not to

supplement the instruction with additional language relating to the object of the

conspiracy. In other words, he agreed to an instruction which omitted the language

he now claims should have been included. This amounts to invited error.

Accordingly, Aplesa has waived his challenge to the drug-conspiracy instruction.

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B. Aiding and Abetting Instruction

Next, Aplesa argues that the district court erred by instructing the jury on

aiding-and-abetting liability. Under 18 U.S.C. § 2, a person who “aids” or “abets”

the commission of a crime is “punishable as a principal.” The court instructed the

jury as follows:

It’s possible to prove the defendant guilty of a crime even without

evidence that the defendant personally performed every act charged.

Ordinarily, any act a person can do may be done by directing

another person, or “agent.” Or it may be done by acting with or under

the direction of others.

A defendant “aids and abets” a person if the defendant

intentionally joins with the person to commit a crime.

A defendant is criminally responsible for the acts of another

person if the defendant aids and abets the other person. A defendant

is also responsible if the defendant willfully directs or authorizes the

acts of an agent, employee, or other associate. But finding that a

defendant is criminally responsible for the acts of another person

requires proof that the defendant intentionally associated with or

participated in the crime, not just proof that the defendant was simply

present at the scene of a crime or knew about it.

In other words, you must find beyond a reasonable doubt that

the defendant was a willful participant and not merely a knowing

spectator.

Aplesa argues that this instruction, which is this Circuit’s pattern instruction, is “no

longer accurate” in light of Rosemond for two reasons: (1) it does not require the

jury to find an act in furtherance of the crime; (2) it permits the jury to convict

based on mere association with a criminal venture. We disagree.

In Rosemond, the Supreme Court resolved “the Circuit conflict over what it

takes to aid and abet a § 924(c) offense.” Rosemond, 134 S. Ct. at 1245, 1249.

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The Court began its opinion by reviewing “basics” about aiding-and-abetting

liability under § 2, explaining that, “[a]s a common law, a person is liable under

§ 2 for aiding and abetting a crime if (and only if) he (1) takes an affirmative act in

furtherance of that offense, (2) with the intent of facilitating the offense’s

commission.” Id. at 1245. The Court explained that a defendant intends to aid an

offense’s commission if he “actively participates in [the offense] knowing its

extent and character.” Id. at 1249. Applying these principles to the context of

§ 924(c), the Court stated that “[a]n active participant in a drug transaction has the

intent needed to aid and abet a § 924(c) violation when he knows that one of his

confederates will carry a gun.” Id. And that knowledge, the Court held, must be

“advance knowledge”—“knowledge that enables him to make the relevant legal

(and indeed, moral) choice.” Id. That means “knowledge at a time the accomplice

can do something with it—most notably, opt to walk away.” Id. at 1249–50.

Aplesa’s reliance on Rosemond is misplaced. Rosemond did not purport to

change the law of aiding and abetting generally, only to clarify its application to a

§ 924(c) firearm offense. Since Aplesa’s case does not involve a conviction under

§ 924(c), Rosemond has no direct application here.

Moreover, the parts of Rosemond on which Aplesa relies are wholly

consistent with the well-established law of this Circuit. Aplesa cites Rosemond’s

formulation of the two requirements for aiding-and-abetting liability, but our

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precedent has long made clear “[a]iding and abetting has two components: [a]n act

on the part of a defendant which contributes to the execution of a crime and the

intent to aid its commission.” United States v. Brantley, 733 F.2d 1429, 1434 (11th

Cir. 1984) (internal quotation marks omitted) (second alteration in original); see

also United States v. Pareja, 876 F.2d 1567, 1568 & n.10 (11th Cir. 1989)

(collecting cases and noting that the test is sometimes stated with three elements).

Aplesa also cites Rosemond’s statement of the “canonical formulation” of

the intent requirement, which is derived from an opinion by Judge Learned Hand

in 1938. See Rosemond, 134 S. Ct. at 1348 (“To aid and abet a crime, a defendant

must not just in some sort associate himself with the venture, but also participate in

it as in something that he wishes to bring about and seek by his action to make it

succeed.”) (internal quotation marks omitted). But we have never held that it is

enough for the government to prove that the defendant “in some sort associate[d]

himself with the venture.” Rather, the government must prove that the defendant

had the “criminal intent that the undertaking be successfully completed.” United

States v. Smith, 546 F.2d 1275, 1285 (5th Cir. 1977). 2 That requires proof that the

defendant “shared in the criminal intent of the principal” and “participat[ed] in the

criminal act in furtherance of the common design.” Id. at 1284 (citing and

expanding upon Judge Learned Hand’s formulation).

2

This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,

1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

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Given our long-standing precedent, it cannot be that the pattern instruction is

“no longer accurate” in light of Rosemond in the ways advanced by Aplesa. If the

pattern instruction is erroneous after Rosemond, it was erroneous before it. But

Aplesa relies solely upon Rosemond. And we have approved substantially similar

instructions as those given by the district court in this case. See United States v.

Broadwell, 870 F.2d 594, 607 n.32 (11th Cir. 1989). In the absence of any

controlling authority, Aplesa cannot establish a “plain” error in the instruction. See

Hesser, 800 F.3d at 1325.

We also cannot conclude that the instruction, taken as a whole, prejudiced

Aplesa’s substantial rights, even if isolated clauses are “technically imperfect[] or

otherwise subject to criticism.” Seabrooks, 839 F.3d at 1333 (quotation marks

omitted). The instruction adequately conveyed the requirements for criminal

liability under 18 U.S.C. § 2. It stated that Aplesa was guilty of aiding and

abetting if he “intentionally join[ed]” with another person “to commit a crime,”

and that the jury was required to find that he was a “willful participant” (that he

“intentionally associated with or participated in the crime”) and “not merely a

knowing spectator” (that he was “simply present at the scene of a crime or knew

about it”).

In the context of the trial, the instruction conveyed that Aplesa could not be

found guilty of aiding and abetting the possession with intent to distribute cocaine

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simply because he was driving a car in which cocaine was found, even if he knew

about the cocaine. Rather, Aplesa must have been a “willful participant” in the

cocaine delivery, which implies that he knew about the delivery and acted with the

intent to aid its commission. Viewing the instruction in light of the trial as a

whole, we are not “left with a substantial and ineradicable doubt as to whether the

jury was properly guided in its deliberations.” Felts, 579 F.3d at 1342–43.

For these reasons, the district court did not plainly err in instructing the jury

on aiding-and-abetting liability.

II. Credibility Vouching

Aplesa next argues that the government impermissibly vouched for the

credibility of Emma Abarca-Valdovinos, a cooperating witness. Abarca-

Valdovinos was a passenger in the car Aplesa was driving when it was pulled over

by law enforcement based on a tip that the car was involved in a cocaine delivery.

Officers conducted a traffic stop and, during the stop, a K-9 alerted to the presence

of narcotics. A search of the vehicle revealed three kilograms of cocaine in a blue

tote bag under the driver’s seat.

Abarca-Valdovinos entered into a plea agreement with the government and

testified against Aplesa at trial. In her trial testimony, Abarca-Valdovinos

explained that the organizer of the cocaine deal, Alejandro (“Alex”) Abarca, was

her nephew. Alex, in Aplesa’s presence, had asked her to accompany Aplesa to

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deliver three kilograms of cocaine. Abarca-Valdovinos stated that Aplesa gave her

the blue tote bag later found in the car.

On direct examination, Abarca-Valdovinos admitted that she initially lied to

law enforcement, primarily about her nephew Alex’s involvement in the cocaine

delivery. Defense counsel thoroughly questioned her about the false statements on

cross-examination. She said that she lied about her nephew Alex’s involvement, in

violation of her plea agreement, because she wanted to protect him.

Later, the government called as a witness Officer Michael Kelly, a Drug

Enforcement Agency task force officer who had interviewed Abarca-Valdovinos

several times after her arrest. Kelly testified that, based on his experience as a law-

enforcement officer, cooperating witnesses often initially lie when speaking to law

enforcement for reasons of self-preservation, protection of others, and lack of trust.

During closing arguments, the prosecutor in rebuttal referenced Kelly’s testimony

when discussing the factors the jury should consider in assessing Abarca-

Valvodinos’s credibility.

Aplesa contends that Kelly’s testimony and the prosecutor’s argument

amount to impermissible bolstering of “the credibility of the only witness who

testified that [Aplesa] knew about the drugs.” He asserts that the testimony and

argument invaded the province of the jury and violated his right to a fair trial.

Because Aplesa did not lodge a contemporaneous objection on these

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grounds either when Kelly’s testimony was elicited or during closing arguments,

we review for plain error only. See United States v. Turner, 474 F.3d 1265, 1275

(11th Cir. 2007) (“[I]t is well-settled that where, as here, a defendant fails to

preserve an evidentiary ruling by contemporaneously objecting, our review is only

for plain error.”); United States v. Eyster, 948 F.2d 1196, 1206 & n.14 (11th Cir.

1991) (“Where the defendant does not object to comments made by the

prosecution at trial, the standard of review is plain error.”).

The Federal Rules of Evidence preclude a witness from testifying as to the

credibility of another witness. United States v. Schmitz, 634 F.3d 1247, 1268–69

(11th Cir. 2011); United States v. Henderson, 409 F.3d 1293, 1299 (11th Cir.

2005). Witness credibility is the sole province of the jury. Id. Therefore, a

witness is not permitted to invade the jury’s province by testifying “that another

witness was truthful or not on a specific occasion.” Schmitz, 634 F.3d at 1268.

Also, we have indicated that it “might be improper” for the government “to use [a]

line of questioning as an indirect way of bolstering [a witness’s] credibility or

attacking that of [the defendant].” See Henderson, 409 F.3d at 1299.

Aplesa relies on our decision in Snowden v. Singletary, 135 F.3d 732 (11th

Cir. 1998) (28 U.S.C. § 2254 case). In that case, we held that an expert witness’s

testimony bolstering the credibility of the victim was improper and denied the

petitioner due process in a child sexual-abuse case. Id. at 737–38. There, the

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expert had testified that 99.5% of children tell the truth and that he, in his own

experience with children, had not encountered an instance where a child had

invented a lie about abuse. Id. at 737. We determined that the credibility-

bolstering testimony constituted a denial of fundamental fairness because the case

was based almost entirely upon the testimony of the victim and two other children,

without any significant physical evidence, and the prosecutor relied heavily upon

the credibility testimony in closing argument. Id.

Here, Kelly’s testimony arguably amounted to improper bolstering of

Abarca-Valdovinos’s credibility. Kelly testified that cooperating witnesses often

initially lie to law enforcement for various reasons, including to protect others.

Although Kelly did not directly comment on Abarca-Valdovinos’s credibility, the

clear import of his testimony was that she was telling the truth at trial. See

Henderson, 409 F.3d at 1299. Indeed, the government on appeal does not identify

an alternative purpose for Kelly’s testimony. Accordingly, we assume that Kelly’s

testimony, like the expert’s testimony in Snowden, invaded the province of the jury

on the issue of Abarca-Valdovinos’s credibility and was improperly admitted.

Nevertheless, Aplesa has not shown that the error, even if plain, affected his

substantial rights. See Turner, 474 F.3d at 1276 (stating that defendants bear the

burden of establishing the third prong of plain-error review). For an error to affect

a substantial right of a party, it must “have a ‘substantial influence’ on the outcome

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of a case or leave ‘grave doubt’ as to whether [it] affected the outcome of a case.”

Id. (quoting United States v. Frazier, 387 F.3d 1244, 1268 n.20 (11th Cir. 2004)

(en banc)).

Here, we do not have any serious doubt that Kelly’s testimony or the

prosecutor’s comment referencing that testimony did not affect the outcome of the

case. Kelly’s testimony about the credibility of cooperating witnesses was touched

on only briefly at the trial. Cf. Snowden, 135 F.3d at 738. Far from “stressing the

significance” of the challenged testimony, as the prosecutor did in Snowden, the

prosecutor in this case referenced it just once in rebuttal when discussing the

various factors the jury should consider when evaluating Abarca-Valdovinos’s

credibility. See id. And Kelly did not directly offer a judgment about her

credibility or the credibility of cooperating witnesses generally, so there was little

danger that the jury would “substitute [Kelly’s] judgment about [Abarca-

Valdovinos’s] credibility for [its own] through the contested testimony.” See

Henderson, 409 F.3d at 1299. In short, we do not believe Kelly’s testimony and

the prosecutor’s brief reference to it swayed jurors’ assessment of Abarca-

Valdovinos’s credibility.

Aplesa argues that the error was prejudicial because Abarca-Valdovinos was

“the only witness who testified that Mr. Aplesa knew about the drugs before

getting into the car.” But the government’s case did not rise or fall on Abarca-

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Valdovinos’s credibility. Significantly, the government introduced a recorded

conversation, with an accompanying transcript, between Aplesa and Abarca-

Valdovinos in the back of a patrol car while the police were conducting the search

that revealed the cocaine. The transcript reflects that Aplesa knew the exact

amount of cocaine, that trafficking in cocaine carries high penalties, and that Alex

previously had served time for trafficking cocaine. Further, Aplesa told Abarca-

Valdovinos during that conversation exactly where he placed the cocaine in the

car, they speculated on what went wrong, and then they attempted to concoct an

innocent story about why they were driving in a car with three kilograms of

cocaine. Besides providing strong evidence of guilt, the recording and transcript

also undermined the plausibility of Aplesa’s testimony that he learned of the

cocaine only after he began driving, supposedly to take Abarca-Valdovinos to get

money from a friend.

Additionally, by testifying in his defense, Aplesa ran “a substantial risk of

bolstering the Government’s case.” United States v. Brown, 53 F.3d 312, 314

(11th Cir. 1995). “[W]hen a defendant chooses to testify, he runs the risk that if

disbelieved the jury might conclude the opposite of his testimony is true.” Id.

(internal quotation marks omitted). And “a statement by a defendant, if

disbelieved by the jury, may be considered as substantive evidence of the

defendant's guilt.” Id. (emphasis in original).

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Here, in light of the recording of Aplesa’s conversation with Abarca-

Valdovinos about the cocaine, as well as Aplesa’s testimony, which the jury was

free to use as substantive evidence against him, any error in admitting Kelly’s

testimony did not prejudice him. See Turner, 474 F.3d at 1276.

III.

Finally, Aplesa argues that the district court erred by refusing to grant a

minor-role reduction under U.S.S.G. § 3B1.2. Section 3B1.2 permits a two-level

decrease to the defendant’s offense level when he had a minor role in the offense.

U.S.S.G. § 3B1.2. The district court’s determination of a defendant’s mitigating

role for guideline-calculation purposes is a fact finding reviewed for clear error,

which the defendant bears the burden of proving. United States v. DeVaron, 175

F.3d 930, 937 (11th Cir. 1999) (en banc).

We need not address an alleged error in guideline calculations when the

defendant correctly receives a statutory minimum sentence, because even if error

occurred, it is harmless. See United States v. Raad, 406 F.3d 1322, 1322 n.1 (11th

Cir. 2005); see also United States v. Westry, 524 F.3d 1198, 1222 (11th Cir. 2008).

Here, because Aplesa received the mandatory minimum sentence, any error

in calculating his guideline range is harmless. See Raad, 406 F.3d at 1322 n.1.

Therefore, we do not address the merits of Aplesa’s arguments concerning the

denial of his request for a minor-role reduction.

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AFFIRMED.

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