United States v. Bladimiro Parra-Mercado

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

AUG 9, 2006

No. 04-14638 THOMAS K. KAHN

Non-Argument Calendar CLERK

________________________

D. C. Docket No. 04-60054-CR-JIC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BLADIMIRO PARRA-MERCADO,

a.k.a. Carlos Posadas,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(August 9, 2006)

Before ANDERSON, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Bladimiro Parra-Mercado (“Parra”) appeals his convictions and concurrent

360-month sentences for: (1) conspiracy to import cocaine, in violation of 21

U.S.C. § 963; (2) importation of cocaine, in violation of 21 U.S.C. § 952(a);

(3) conspiracy to possess with intent to deliver cocaine, in violation of 21 U.S.C.

§ 846; and (4) possession with intent to distribute cocaine, in violation of 21

U.S.C. § 841(a)(1). Parra raises five issues on appeal, including that his sentence

unconstitutionally was enhanced, pursuant to United States v. Booker, 543 U.S.

220, 125 S.Ct. 738, 160 L.Ed 621 (2005), which was decided after Parra was

sentenced.

I. Limitation of Cross-Examination

First, Parra contends that the district court violated his Sixth Amendment

right to confront witnesses by preventing him from cross-examining Angel Chain

(“Angel”) and Patricia Chain (“Patricia”), key government witnesses whose

testimony was essential to the government’s case, about their witness protection

agreement with the government. He argues that their testimony on cross-

examination: (1) would have established that their family members actually were

not in fear for their safety, in conflict with their testimony; and (2) was essential to

his defense, which centered on impeaching their credibility. Parra posits that,

because other evidence in the record showed the untrustworthiness of Angel and

Patricia, he should have been allowed to inquire further about the agreement with

the government in order to bolster his argument that they were motivated by

hidden agendas.

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We review the district court’s restrictions on cross-examination for an abuse

of discretion. United States v. Baptista-Rodriguez, 17 F.3d 1354, 1370-71 (11th

Cir. 1994). The Confrontation Clause of the U.S. Constitution provides that, “[i]n

all criminal prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him.” U.S. Const. amend. VI. The right to

cross-examine witnesses is included in the Confrontation Clause. Pointer v.

Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). The

Confrontation Clause, however, “guarantees only ‘an opportunity for effective

cross-examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.’” Kentucky v. Stincer, 482 U.S. 730,

739, 107 S.Ct. 2658, 2664, 96 L.Ed.2d 631 (1987) (citation omitted). “[W]here the

witness sought to be cross-examined is the government's ‘star’ witness, providing

an essential link in the prosecution’s case, the importance of full cross-examination

to disclose possible bias is necessarily increased.” United States v. Lankford, 955

F.2d 1545, 1548 (11th Cir. 1992) (internal quotations and citations omitted).

“Unless the defendant has been permitted sufficient cross-examination to allow a

jury to adequately assess the witness’ credibility, the district court’s limitation of

cross-examination will be in error.” Id. Once there is sufficient cross-examination

to satisfy the Confrontation Clause, the district court may limit further cross-

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examination within its discretion. United States v. Diaz, 26 F.3d 1533, 1539 (11th

Cir. 1994).

In Lankford, we noted that:

[T]he Sixth Amendment does not require unlimited inquiry into the

potential bias of a witness . . . [and a]s long as sufficient information

is elicited from the witness from which the jury can adequately assess

possible motive or bias, the Sixth Amendment is satisfied. Where . . .

a witness’ motive for testifying may be exposed through alternative

lines of questioning, the district court's refusal to allow prejudicial

inquiry into motive that is grounded in nothing more than speculation

is not in error.

Lankford, 955 F.2d at 1549 n.10. Moreover, we have found that limiting the cross-

examination of witnesses, regarding their addresses, was not erroneous, where

there was reason to believe that the disclosure of the information would put the

witnesses in physical danger, because they were in a government witness

protection program. United States v. Crockett, 506 F.2d 759, 762-63 (5th Cir.

1975).

Because Parra had a full and fair opportunity to extract impeaching evidence

from the key government witnesses, no abuse of discretion occurred regarding the

district court’s limitation of Parra’s cross-examination. The district court permitted

Parra to elicit testimony from Angel and Patricia that the government brought

fifteen of their family members to the United States, in an effort to protect them

from the members of the conspiracy, but did not allow further questioning about

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the details regarding the relatives’ participation in the witness protection program.

Additionally, Parra was permitted to challenge the Chains’ credibility through

various other avenues, such as questioning their motivation to provide safety for

their family members, and eliciting that they hoped to receive lesser sentences and

that the government allowed them to avoid their debts in Colombia. Finally, the

line of questioning might have endangered the family members because it may

have revealed their whereabouts. Accordingly, we conclude that the district court

did abuse its discretion.

II. Admission of Evidence

Next, Parra argues that the district court erred by admitting evidence of

communications between Angel and Parra’s brother, Orlando Parra-Mercado

(“Orlando”), occurring before Angel became involved in the conspiracy at a time

when he was acting as an attorney for Orlando, and involving Orlando’s alleged

prior criminal activities. Parra posits that the evidence established that Angel

represented Orlando. Parra further argues that the district court erred by admitting

evidence of the threats made by Orlando because: (1) the threats were made when

Orlando was in Colombia, and there was no evidence that Parra knew about them;

(2) had Parra been allowed to cross-examine Angel and Patricia about the witness

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protection program, it would have been revealed that the threats were fabricated;

and (3) the threats were unforeseeable to Parra. Parra also argues that, because the

indictment did not identify his co-conspirators, the statements of his co-

conspirators, such as evidence about the arrest one co-conspirator, Ricardo Linares,

and the computer disk found in his residence, should not have been admitted

without the court’s explicit determination that they were admissible under Federal

Rule of Evidence 801(d)(2)(E). He posits that “the record is replete with

inadmissible hearsay testimony,” including statements made by Orlando. In the

conclusion section of his brief, Parra asserts that the cumulative effect of all of the

errors warranted the reversal of his conviction.

We review evidentiary rulings of the district court for an abuse of discretion.

United States v. Delgado, 321 F.3d 1338, 1347(11th Cir. 2003). “On appeal, we

look at the evidence in a light most favorable to its admission, maximizing its

probative value and minimizing its undue prejudicial effect.” United States v.

Elkins, 885 F.2d 775, 784 (11th Cir. 1989). However, “[w]hen the opponent of

evidence fails to object to its admission and thus denies the trial court an

opportunity to cure immediately any error created by the admission,” we review

only for plain error. United States v. Chilcote, 724 F.2d 1498, 1503 (11th Cir.

1984). Under plain error review, we “correct only for errors that are particularly

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egregious and that seriously affect the fairness, integrity or public reputation of

judicial proceedings, and then only when a miscarriage of justice would result.”

United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003) (internal

quotations and citations omitted).

a. Attorney-Client communications

Because the only evidence that Parra points to on appeal as violative of the

attorney-client privilege is evidence that his own counsel solicited on cross-

examination, Parra cannot now complain that the district court plainly erred in

admitting the evidence.

b. Evidence of Threats

Pursuant to Fed.R.Evid. 402, all relevant evidence is admissible. Under

Fed.R.Evid. 403, however, relevant evidence is excluded if the danger of unfair

prejudice substantially outweighs its probative value. “Rule 403 is an

extraordinary remedy which the district court should invoke sparingly.” Elkins,

885 F.2d at 784.

Parra has failed to establish that the admission of evidence of threats made

by his co-conspirator substantially affected his rights, or that error occurred in the

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court’s compliance with Rule 801. Parra did not object below to the testimony

regarding the threats and identifies no legal reason why the testimony’s admission

was an abuse of discretion.

c. Co-conspirators’ statements

Rule 801(d)(2)(E) provides that “statements of co-conspirators made during

the course and in furtherance of the conspiracy are not hearsay.” United States v.

Hasner, 340 F.3d 1261, 1274 (11th Cir. 2003), cert. denied, 543 U.S. 810 (2004).

In order to admit evidence under Rule 801(d)(2)(E), the government must establish

by a preponderance of the evidence that “(1) a conspiracy existed; (2) the

conspiracy included the declarant and the defendant against whom the statement is

offered; and (3) the statement was made during the course and in furtherance of the

conspiracy.” Id.

Because Parra identifies no specific co-conspirator statement that should

have been excluded from evidence, and, in the instances when Parra objected to the

introduction of co-conspirators’ statements, the district court made specific

findings, the district court did not err in admitting evidence of statements made by

Parra’s co-conspirators.

III. Requested Jury Instruction

Next, Parra argues that, because his defense was tailored toward showing

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that the government failed to investigate the character of Ray Bayona and the

Melodico company and to corroborate the key witnesses’ statements, the district

court erred by denying his requested “theory of defense” instruction. The proposed

instruction stated: “The [g]overnment in this cause has the burden of proving the

[d]efendant guilty beyond a reasonable doubt. If you find that the failure to

investigate and corroborate the alleged co-conspirators’ declarations causes you to

have reasonable doubt, then you must find the [d]efendant not guilty.” Parra posits

that while some of the government’s oversights could be covered by the

“reasonable doubt” instruction, his instruction nonetheless was required because

some oversights were too significant to be covered, and the addition of several

smaller oversights by the government had a cumulative impact.

We “review a district court’s refusal to give a requested jury instruction for

abuse of discretion.” United States v. Fulford, 267 F.3d 1241, 1245 (11th Cir.

2001) (internal quotations and citations omitted). We will only find reversible

error if: “(1) the requested instruction correctly stated the law; (2) the actual charge

to the jury did not substantially cover the proposed instruction; and (3) the failure

to give the instruction substantially impaired the defendant’s ability to prepare an

effective defense.” Id. Moreover, a district court is “vested with broad discretion

in formulating [its] charge to the jury so long as it accurately reflects the law and

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the facts.” United States v. Silverman, 745 F.2d 1386, 1395 (11th Cir. 1984). A

“defendant is entitled to have presented instructions relating to a theory of defense

for which there is any foundation in the evidence, even though the evidence may

be weak, insufficient, inconsistent, or of doubtful credibility.” United States v.

Lively, 803 F.2d 1124, 1126 (11th Cir. 1986) (emphasis in original) (internal

quotations and citations omitted).

As Parra conceded at trial, and the district court found, Parra’s proposed jury

instruction was sufficiently covered by the instruction defining reasonable doubt.

Parra was able to present his theory of the defense in his closing argument.

Upon careful review of the record and consideration of the parties’ briefs,

we discern no reversible error regarding Parra’s convictions and, accordingly, we

affirm them.

IV. Parra’s sentence

Finally, Parra argues that his sentence violates Booker, because it was

enhanced based on his role in the offense and the drug quantity, which were not

charged in the indictment, admitted by him, or proven to a jury. He asserts that the

district court committed constitutional error when it enhanced his sentence based

on its factual findings as to the drug amount and his role, and statutory error when

it applied the guidelines in a mandatory fashion. He contends that the government

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could not show that the errors were harmless, since the district court:

(1) specifically noted that it was imposing the lowest possible sentence in the

guideline range; (2) limited Parra’s sentences to concurrent, instead of consecutive,

terms of incarceration; and (3) rejected the government’s request for an alternative

sentence. Parra also contends that the district court erred by enhancing his

sentence based on his leadership role in the offense, arguing that the evidence

established that Orlando was the leader who organized the activities of the co-

conspirators and that his role was that of a person who ran errands and made

deliveries for Orlando. He points out that Orlando recruited and advised Angel,

organized Angel’s delivery of money to certain co-conspirators, provided Angel

with cell phones, recruited Patricia, conducted the necessary transactions for the

movement of the cocaine into the United States, overrode Parra’s decision to have

Patricia move out of the stash house, conducted the leadership of the organization

on the day of the seizure, sent Angel’s sister to visit him in prison to convey

threats, and provided support for Angel’s family.

a. Booker error

Because Parra objected to his sentence based on Blakely v. Washington, 542

U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 403 (2004), we review his sentence de novo in

light of Booker. See United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).

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Under this standard, we will reverse only if any error was harmful. Id.

In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63,

147 L.Ed.2d 435 (2000), the Supreme Court held that, “[o]ther than the fact of a

prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” The Supreme Court also held, in Blakely, that the

imposition—based solely on the sentencing judge’s factual findings—of a

sentencing enhancement violated the defendant’s Sixth Amendment rights because

the facts supporting the findings neither were admitted by the defendant, nor found

by a jury. Blakely, 542 U.S. at 296-97, 124 S.Ct. at 2534-38. After Parra was

sentenced and while his case was pending on direct appeal, the Supreme Court, in

Booker, extended Blakely to the Sentencing Guidelines and held that the

mandatory nature of the Guidelines rendered them incompatible with the Sixth

Amendment’s guarantee of a right to a jury trial. Booker, 543 U.S. at 231-36 , 125

S.Ct. at 749-51. The Court ruled that sentencing courts nevertheless must consider

the Guidelines together with the factors set forth in § 3553(a) when imposing

sentences. Id. at 244, 125 S.Ct. at 765.

In United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)

(emphasis in original), cert. denied, 125 S.Ct. 2935 (2005), we stated that, under

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the holding in Booker, “the Sixth Amendment right to trial by jury is violated

where under a mandatory guidelines system a sentence is increased because of an

enhancement based on facts found by the judge that were neither admitted by the

defendant nor found by the jury.” We since have held that there are two types of

Booker errors: (1) constitutional error resulting from enhancements based on

judicial fact-finding; and (2) non-constitutional statutory error resulting from

mandatory application of the Sentencing Guidelines. United States v. Shelton, 400

F.3d 1325, 1330-31 (11th Cir. 2005). We have held that, where the defendant

admitted to the facts that enhanced his sentence, there was no Sixth Amendment

violation under Booker. Id. at 1330.

A different standard of reviewing for harmless error applies depending on

the type of Booker error. See United States v. Mathenia, 409 F.3d 1289, 1291

(11th Cir. 2005). “When the error is of the constitutional variety, a higher

[harmless-error] standard is applied and it must be clear beyond a reasonable doubt

that the error complained of did not contribute to the sentence obtained.” United

States v. Robles, 408 F.3d 1324, 1327 (11th Cir. 2005) (internal quotations

omitted). “The burden to prove the error was harmless beyond a reasonable doubt

rests squarely on the government.” Id.

Parra objected to the district court’s factual finding that he was leader and

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application of the enhancement. Therefore, he made an objection to a

constitutional error. The government concedes that it cannot show that the error is

harmless and we agree: based on statements the district court made, it is unclear

what it would have done had there not been a mandatory sentencing scheme.

Therefore, Parra’s sentence is vacated.

b. Role Enhancement

We review for clear error a district court’s determination of a defendant’s

role in the offense. United States v. DeVaron, 175 F.3d 930, 937 (11th Cir. 1999)

(en banc). Section 3B1.1(a) provides for a four-level enhancement if a “defendant

was an organizer or leader of a criminal activity that involved five or more

participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). “The government

bears the burden of proving by a preponderance of the evidence that the defendant

had an aggravating role in the offense.” United States v. Yeager, 331 F.3d 1216,

1226 (11th Cir. 2003). In determining the nature of the defendant’s role, the court

may consider “the exercise of decision making authority, the nature of participation

in the commission of the offense, the recruitment of accomplices, the claimed right

to a larger share of the fruits of the crime, the degree of participation in planning or

organizing the offense, the nature and scope of the illegal activity, and the degree

of control and authority exercised over others.” U.S.S.G. § 3B1.1, comment. (n.4).

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In addition, “[t]here can, of course, be more than one person who qualifies as a

leader or organizer of a criminal association or conspiracy.” Id.

The district court did not clearly err by applying a four-level enhancement

based on Parra’s role as an organizer or leader. While the evidence may have

established Orlando as a leader in the organization, it also established that Parra

was the leader and organizer of operations in the United States, while Orlando was

in Colombia. The record does not support Parra’s claims of being only a courier or

errand boy but rather shows his planning and organizing of the United States size

of the operation.

As the government concedes, because Parra’s sentence was enhanced, under

a mandatory guidelines system, based on facts that were not charged in the

indictment, admitted by Parra, or found by a jury, the district court committed

constitutional and statutory error in sentencing him, and, because it is not clear

beyond a reasonable doubt that these errors were harmless, Parra’s sentence is

vacated and remanded for resentencing in light of Booker. We note, however, that

the district court did not err factually by applying the role enhancement.

CONVICTIONS AFFIRMED, SENTENCE VACATED AND

REMANDED.1

1

Parra’s request for oral argument is denied.

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