United States v. Willington Barona-Bravo , 685 F. App'x 761 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13024
________________________
D.C. Docket No. 8:14-cr-00394-SCB-AEP-8
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLINGTON BARONA-BRAVO,
ROGER TEJADA-PIEDRAHITA,
VICTOR OTERO-POMARES,
JACINTO TORRES,
RAFAEL ANTONIO PATINO-VILLALOBOS,
JUAN CARRASQUILLA-LOMBADA,
EDUARDO EMILIO ORTIZ-CERVANTES,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(April 14, 2017)
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Before TJOFLAT, HULL, and O’MALLEY, * Circuit Judges.
HULL, Circuit Judge:
In September 2014, a dilapidated cargo vessel, the Borocho, was on its way
from Colombia to Panama to pick up cargo. Unbeknownst to the Borocho’s
captain, the crew had smuggled hundreds of kilograms of cocaine on board. Each
of these crew members knew about certain amounts of drugs, but no one knew
everything. There was one simple rule governing the conspiracy—you got paid
based on how much you knew. In the midst of this voyage, the Borocho was
boarded by the U.S. Coast Guard, who discovered the contraband and arrested all
thirteen crew members. A federal grand jury indicted those thirteen crew members
on conspiracy and drug charges. After trial, a jury convicted seven of them. This
appeal followed. After thorough review, and with the benefit of oral argument, we
affirm all of the defendant-appellants’ convictions, but we vacate all of their
sentences and remand for resentencing.
I. FACTUAL BACKGROUND
In April 2014, Yensi Manuel Medrano-Blanquiceth (“Medrano”) was hired
as a crewman aboard the Borocho. The Borocho, a 208-foot cargo freighter,
traveled regularly between Puerto Nuevo, Colombia, and Colón, Panama. It would
travel empty from Colombia to Panama, load legitimate merchandise (such as
*
Honorable Kathleen M. O’Malley, United States Circuit Judge for the Federal Circuit,
sitting by designation.
2
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appliances and other household goods) on board at the free-trade zone in Colón,
and then travel back to Colombia.
After Medrano was hired, a man he knew as Grand Old Parr approached
Medrano and asked if he would smuggle cocaine onto the ship. Medrano agreed.
Medrano was then approached by Andres Ramon Fontalvo-Martinez (“Fontalvo”),
who already worked on the Borocho, about smuggling additional cocaine onto the
vessel. In addition to the cocaine that Medrano personally brought onboard, there
was an additional 400 kilograms of cocaine already hidden on the ship. The
Borocho sailed in June 2014 and arrived without incident in Panama. In addition
to Medrano and Fontalvo, defendants Roger Tejada-Piedrahita (“Tejada”), Jacinto
Torres (“Torres”), and Eduardo Emilio Ortiz-Cervantes (“Ortiz”) were also
crewmen on that voyage, and each of them knew about, and helped participate in,
the smuggling scheme.
The crew stayed in Panama for 40 to 50 days. While in Panama, Fontalvo
and Medrano met with a drug supplier, “Mufasa,” and Mufasa’s apprentice,
“Benedito,” to discuss another drug smuggling operation aboard the Borocho.
The Borocho eventually returned to Colombia. When the ship was moored
off the coast of Colombia at the end of this return trip, a 100-kg load of cocaine
was transported to the Borocho by a smaller boat and hidden in the Borocho’s
forepeak. Once the Borocho was docked in Puerto Nuevo, Colombia, the crew
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unloaded the legitimate merchandise, leaving the 100 kilograms of cocaine hidden
onboard.
When the Borocho returned to Colombia, some of the prior crewmen were
fired or left voluntarily, some remained, and some new crewmen were hired.
Among the new crewmen hired were defendants Juan Carrasquilla-Lombada
(“Carrasquilla”), Victor Otero-Pomares (“Otero-Pomares”), Rafael Antonio
Patino-Villalobos (“Patino-Villalobos”), and Willington Barona-Bravo (“Barona-
Bravo”).1
Thereafter, Roger Barrios, a former Borocho crewman who was in charge of
delivering drugs to the Borocho, told Fontalvo to expect a 200-kg delivery of
cocaine. 2 Fontalvo, in turn, notified Medrano and defendants Torres and Tejada of
the impending 200-kg delivery. The 200 kilograms arrived in approximately eight
bales. The cocaine was delivered by a small boat in the middle of the night while
the Borocho was moored off the dock in Puerto Nuevo. Medrano and defendant
Otero-Pomares hauled the bales onboard the Borocho as Fontalvo and defendants
Torres and Carrasquilla watched. Defendant Tejada also knew about this delivery
and was tasked with distracting the captain. After the cocaine was on board, the
crew hid it in a ballast tank underneath the cargo hold. The crew also moved the
1
In this opinion, we have adopted each defendant’s surname as used in their briefs.
2
A crewman named Roberto Acosta (aka “Calvo”) was formerly in charge of
coordinating deliveries of cocaine to the Borocho, but Fontalvo was tapped as the man to handle
future deliveries of cocaine after Calvo was fired.
4
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100 kilograms of cocaine previously hidden in the forepeak down to the same
ballast tank.3
For participating in and/or having knowledge of each load of cocaine, the
crew members were paid advances either directly in cash or through money
deposited into third-party accounts of their choosing. Medrano acknowledged that
crew members were only paid for the narcotics they knew about and “the less that
other people know, the less money you have to share with them.”
For example, Fontalvo was given 90 million Colombian pesos to pay the
crewmen for the 200-kg load. To facilitate payments, Fontalvo compiled the third-
party account information in a ledger entitled “night orders” and sent the
information to Barrios via the “What’s Up” app on his cell phone.
After this delivery, Medrano hid another thirteen kilograms of cocaine,
contained in a blue duffel bag, in the ballast tank. This was a side deal that
Medrano and Fontalvo had struck with another supplier, and only these two knew
that the cocaine was in the ballast tank.
Then, before the vessel was underway, defendants Barona-Bravo, Patino-
Villalobos, and two other men delivered three barrels allegedly containing 86 total
3
The ballast tanks on the Borocho were large spaces, built with walls containing large
holes, or “baffles,” spaced every six to teen feet. There were multiple ballast tanks on the
Borocho, but the evidence established that the crew hid cocaine in only one of them.
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kilograms of cocaine to the Borocho via a small speedboat. 4 Medrano and
defendants Otero-Pomares, Ortiz, Torres, and Barona-Bravo hauled the barrels
onboard and hid them in the ballast tank. Carrasquilla observed.
Once the three barrels were hidden onboard, Barona-Bravo told the crew
that another 200 kilograms of cocaine were to be delivered that night. The second
200-kg load was then delivered to the Borocho via speedboat. As before, Medrano
and defendant Otero-Pomares threw down ropes and hauled the drugs onboard.
Defendants Torres, Barona-Bravo, and Ortiz were also present when the cocaine
was delivered. Carrasquilla again observed. Medrano and Otero-Pomares hid the
second 200 kilograms in the ballast tank.
On September 5, 2014, the Borocho left Puerto Nuevo, Colombia with more
than 600 kilograms of cocaine hidden onboard. After the Borocho set sail,
defendant Barona-Bravo, through defendant Tejada, paid Medrano for the second
200-kg load. Defendant Tejada gave Medrano $2,000 in U.S. currency (in the
form of 20 $100 bills) and 350,000 Colombian pesos (approximately $170). All of
the crewmen except for defendant Otero-Pomares received payment for that load
while on board; Otero-Pomares’s payment was sent directly to his mother.
4
Medrano testified that defendant Barona-Bravo told him there were 86 kilograms in the
barrels. The Coast Guard officer who helped remove the barrels from the ballast tank testified
that small packages of contraband were inside the barrels, but he did not know how much
cocaine was recovered from the barrels.
6
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On September 7, 2014, the U.S. Coast Guard cutter Bear, on patrol in the
Southern Caribbean, spied the Borocho in international waters 70 miles off the
coast of Panama. The Borocho was riding high in the water (indicating that it was
not carrying any cargo) and was not transmitting an electronic signal that is
“common for all commercial vessels,” prompting the Coast Guard to investigate.
Coast Guard boarding officer Stephen J. Fleming and his team conducted a
right-of-visit boarding on the morning of September 7. According to Officer
Fleming, the Borocho was in the worst condition he’d ever seen in his nearly
fifteen years of Coast Guard service. The ship’s handrails were unbolted and
rusted, the entire deck was covered in rust, the cargo hold was in “[v]ery poor”
condition, the single life raft on board was “non-operational,” there was a hose
illegally pumping oil and water from the bilge overboard, and the engine room had
two open fuel tanks (a fire hazard) and a floor covered in seawater.
The Coast Guard boarding team gathered all of the Borocho’s crew
members, with the exception of the captain, who remained on the bridge. Officer
Fleming spoke with the captain and requested the ship’s documentation. The
captain provided Officer Fleming with a crew list, naming thirteen crew members
and zero passengers, the crew’s passports, and a “zarpe,” a document that shows,
among other items, the ship’s name, captain’s name, and ports of call.
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The captain told the Coast Guard members that the Borocho was registered
in the West African country of Sao Tome and Principe. Coast Guard personnel
also located a vessel registration document that was purportedly issued by the
country of Sao Tome and Principe. The Coast Guard contacted the U.S. State
Department, who in turn reached out to the government of Sao Tome and Principe.
That country’s government refuted the vessel’s claim of registry. Consequently,
the Coast Guard determined that the Borocho was stateless and proceeded to
search the vessel.
At approximately 5:00 p.m. on September 7, Officer Fleming handed off
command to Coast Guard boarding officer William Kelly. By that time, the Coast
Guard had determined that the Borocho was stateless and had received
authorization to search the Borocho. During a search of the Borocho, Officer
Kelly discovered 55 kilograms of cocaine hidden in a lube oil tank located on the
upper deck of the engine room. Officer Kelly’s team then detained the crew.
At approximately 7:00 p.m. on September 8, Officer Fleming and his team
went back to the Borocho to relieve Officer Kelly. Officer Fleming continued
searching the vessel and discovered three blue barrels and twenty-three burlap
sacks filled with cocaine hidden in one of the ship’s ballast tanks, which normally
contain seawater in order to stabilize the ship. The ballast tank was located
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underneath the cargo hold, which was itself covered in trash and debris. 5 In total,
the Coast Guard boarding party found 640.9 kilograms of cocaine on the Borocho.
On September 9, 2014, the Borocho’s crewmen were transferred to the Bear.
Coast Guard officers searched each crew member and inventoried the property
seized from them. Nearly all of the crew members had thousands of dollars’ worth
of U.S. and Colombian currency in his possession.
The Borocho was towed to port in Miami, Florida. Before the Borocho
arrived in Miami, agents from the Drug Enforcement Administration (“DEA”)
boarded and searched the vessel and recovered cell phones and SIM cards
belonging to crew members. The thirteen crew members were transported to
Tampa, Florida, where DEA agents and immigration agents processed them into
the United States. The crew members were then transferred to a nearby jail to
await trial.
II. PROCEDURAL HISTORY
A federal grand jury indicted all thirteen crewmen on two charges:
(1) conspiracy to distribute and possess with intent to distribute five kilograms or
more of cocaine while aboard a vessel subject to the jurisdiction of the United
States, in violation of 46 U.S.C. §§ 70503(a), 70506(a) and (b), and 21 U.S.C.
5
Coast Guard personnel searched the first twenty feet from the tank cover toward the
back of the tank, but deemed it unsafe to search any farther. From that search, the Coast Guard
recovered the three blue barrels and twenty-three bales of cocaine.
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§ 960(b)(1)(B)(ii) (“Count One”); and (2) possession with intent to distribute five
kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of
the United States, in violation of 46 U.S.C. §§ 70503(a), 70506(a), 18 U.S.C. § 2,
and 21 U.S.C. § 960(b)(1)(B)(ii) (“Count Two”). Before trial, Medrano and
Fontalvo pled guilty and agreed to testify for the government.
Trial commenced on February 23, 2015, and lasted for nine days. The
government presented testimony from, and documentary evidence gathered by,
Coast Guard officers, DEA agents, and other federal government agents. Medrano
and Fontalvo also provided lengthy testimony against their former fellow crew
members.
At the close of the government’s case-in-chief, all eleven remaining
codefendants moved for a judgment of acquittal. The district court granted a
directed verdict of acquittal to the captain, as the evidence had demonstrated that
he was ignorant of the smuggling operation onboard the Borocho, but denied the
motions as to all other defendants.
At the conclusion of trial, the jury rendered its verdicts. It acquitted three of
the indicted codefendants—Javier Enrique Cardenas-Socarras, Heber Augusto
Sanchez-Cortes, and Manuel Esteban Melendez—as to both counts. It found
defendants Carrasquilla and Tejada guilty on Count One (the conspiracy charge)
and not guilty as to Count Two (the possession charge). The jury found defendants
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Barona-Bravo, Ortiz, Otero-Pomares, Torres, and Patino-Villalobos guilty on both
Counts One and Two.
The seven convicted codefendants were sentenced together in one hearing.
The district court imposed total sentences of 235 months’ imprisonment as to all
seven codefendants.
The seven codefendants now appeal, alleging various errors in their trial and
sentencing. We will address the issues raised by the defendant-appellants in the
following order: (1) the Confrontation Clause issue raised by six of the defendant-
appellants; (2) the alleged evidentiary errors raised by defendant Tejada; (3) the
sufficiency-of-the-evidence arguments raised by defendants Carrasquilla and
Patino-Villalobos; (4) the district court’s denial of defendant Carrasquilla’s motion
for a new trial; and (5) the sentencing issues.
III. THE CONFRONTATION CLAUSE AND THE MDLEA
In January 2015, approximately six weeks before trial, the government filed
a State Department certification regarding the Borocho. The document consisted
primarily of a “Certification for the Maritime Drug Law Enforcement Act Case
Involving Motor Vessel Borocho (Without Nationality) Federal Drug Identification
Number (FDIN) – 2014008289” signed by Coast Guard Commander Gregory
Tozzi.
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In that Certification, Commander Tozzi declared that, on September 7, 2014,
the Coast Guard detected the Borocho “approximately 165 nautical miles northeast
of Colon, Panama,” in international waters. During the Coast Guard’s September 7
right-of-visit boarding of the Borocho, the “master” told Coast Guard members
that the vessel was registered in Sao Tome and Principe, and Coast Guard
members found a registration document on board supporting that claim. The Coast
Guard asked that country to confirm or deny the vessel’s registry, and the Sao
Tome government “refut[ed]” the Borocho’s claim of registry. On September 9,
2014, members of the Coast Guard boarded the Borocho and discovered the
cocaine.
“Accordingly, the Government of the United States determined the vessel
was without nationality in accordance with 46 U.S.C. § 70502(d)(1)(A), rending
the vessel subject to the jurisdiction of the United States Pursuant to 46 U.S.C.
§ 70502(c)(1)(A).” Commander Tozzi’s declaration was accompanied by a
document signed by a State Department Assistant Authentication Officer on behalf
of the Secretary of State averring that Tozzi was the Coast Guard liaison to the
State Department and giving full faith and credit to Tozzi’s statements.
At the conclusion of the government’s case-in-chief, the district court found
that the trial evidence supported the declaration and concluded that the Borocho
was subject to the jurisdiction of the United States. Defendant Carrasquilla’s
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counsel objected “for the record” to the declaration “on confrontation grounds.”
The district court’s pretrial order provided that any objection or motion made by
any defense counsel at trial would be deemed to be adopted and joined in by every
other defendant. Thus, this objection was preserved as to all defendants.
We review preserved Confrontation Clause claims de novo. United States v.
Wilson, 788 F.3d 1298, 1316 (11th Cir. 2015). The defendants here were
convicted under the Maritime Drug Law Enforcement Act (“MDLEA”), which
prohibits the knowing or intentional possession with intent to manufacture or
distribute of a controlled substance on board “a vessel subject to the jurisdiction of
the United States.” 46 U.S.C. § 70503(a)(1), (e)(1). Vessels subject to the
jurisdiction of the United States include “a vessel without nationality,” which is
defined to include “a vessel aboard which the master or individual in charge makes
a claim of registry and for which the claimed nation of registry does not
affirmatively and unequivocally assert that the vessel is of its nationality.” Id.
§ 70502(c)(1)(A), (d)(1)(C). The Department of State’s certification is conclusive
proof of the foreign nation’s response under the MDLEA. Id. § 70502(d)(2) (“The
response of a foreign nation to a claim of registry under paragraph (1)(A) or (C)
. . . is proved conclusively by certification of the Secretary of State or the
Secretary’s designee.”). Further, the MDLEA provides that “[j]urisdiction of the
United States with respect to a vessel subject to this chapter is not an element of an
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offense. Jurisdictional issues arising under this chapter are preliminary questions
of law to be determined solely by the trial judge.” Id. § 70504(a).
This Court has squarely held that the Confrontation Clause does not bar the
admission of a certification from the Secretary of State to establish jurisdiction
under the MDLEA because the “stateless nature” of the vessel is not an element of
the offense that must be proved at trial. United States v. Campbell, 743 F.3d 802,
807 (11th Cir. 2014). This Court pointed out that this pretrial determination of
jurisdiction did not implicate any guilt or innocence issue but instead bears only on
“the diplomatic relations between the United States and foreign governments.” Id.
at 807-08. Thus, this Court held that the admission of the certification did not
violate the defendant’s Confrontation Clause rights. Id. at 807.
Although the defendants recognize Campbell,6 they argue, without support,
that the MDLEA jurisdictional requirement is the “functional equivalent” of an
element of the offense. They argue that, while this element does not go to the jury,
“jurisdiction remains a material element to be proven by the Government as a
prerequisite to a conviction under the MDLEA.” Campbell binds us in this case,
so the defendants’ argument necessarily fails. See United States v. Cruickshank,
837 F.3d 1182, 1188, 1192 (11th Cir. 2016), cert. denied, __ S. Ct. __, 2017 WL
1199489 (2017) (citing Campbell and rejecting as “foreclosed by our prior
6
All of the defendants, except for Patino-Villalobos, raise this argument.
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precedent” the defendant’s argument that a Department of State certification for
MDLEA purposes violates the Confrontation Clause); see also United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (“[A] prior panel’s holding is
binding on all subsequent panels unless and until it is overruled or undermined to
the point of abrogation by the Supreme Court or by this court sitting en banc.”).
Moreover, the timing of the district court’s jurisdictional determination
(during trial rather than before trial) has no bearing on whether jurisdiction is an
“element.” The MDLEA clearly states that “[j]urisdiction of the United States
with respect to a vessel subject to this chapter is not an element of an offense.” 46
U.S.C. § 70504(a); see also United States v. Tinoco, 304 F.3d 1088, 1108 (11th
Cir. 2002) (“[T]he MDLEA jurisdictional requirement does not raise factual
questions that traditionally would have been treated as elements of an offense
under the common law.”). And to the extent the defendants argue that the
certification was vague, insufficient to prove jurisdiction, or inconsistent with the
trial testimony, the certification is, by law, conclusive proof of the foreign nation’s
response under the MDLEA. 46 U.S.C. § 70502(d)(2).
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IV. EVIDENTIARY ISSUES AS TO TEJADA
On appeal, defendant Tejada challenges the admission of two pieces of
evidence.7 First, Tejada argues that the district court erred in admitting into
evidence a statement he allegedly made to a DEA agent, in violation of Federal
Rule of Criminal Procedure 16 and the district court’s discovery order.
Specifically, during Tejada’s processing into the United States, Tejada disclosed
his relationship with Candelaria Isabel Manjarrez-Gutierrez (“Manjarrez”) to a
DEA agent, and this information was recorded on Form DEA-202, a “Personal
History Report.” Alternatively, Tejada argues that the district court should have
excluded this same evidence as hearsay. Second, Tejada argues that the district
court erred in admitting “alleged summaries of the call logs, contact lists, and text
messages” found on his cell phone and SIM cards. We address each issue in turn.
A. Evidence Concerning Tejada’s Relationship with Manjarrez
On September 2, 2014, Fontalvo texted Manjarrez’s name and bank account
information to Roger Barrios after one of the crewmen (Fontalvo could not
remember which one) had provided it in order to get paid for one of the loads.
Fontalvo testified that the money was never sent.
Later, via DEA Agent Carlos Galloza, the government attempted to establish
that Manjarrez was Tejada’s wife. Tejada objected, asking how Agent Galloza
7
To the extent the other defendant-appellants seek to adopt the issues addressed in Parts
IV, V, and VI of this opinion, we conclude that any such challenge is meritless.
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knew that Manjarrez was his wife. At a sidebar, the prosecutor explained that he
was relying, in part,8 on Form DEA-202, which contained information given by
Tejada to an unidentified DEA agent as Tejada was being processed into the
United States. The prosecutor explained that “[a]ll defendants when they are
processed, . . . they are interviewed for information that would complete a DEA-
202 form. Mr. Tejada, during that processing, gave – identified relatives to include
his wife.” The prosecutor represented that the DEA-202 was a “standard form”
that was “strictly processing” and merely listed information such as address, date
of birth, nationality, “biographical information” and “next of kin.”
Tejada’s attorney objected that the statements reflected in the DEA-202
were a product of custodial interrogation and that the government had not
disclosed its intention to use any statements from the DEA-202 at trial, as required
by Federal Rule of Criminal Procedure 16 and the district court’s standing
discovery order, and this failure deprived Tejada of the opportunity to move to
suppress the statement. The government argued that the statement on the DEA-
202 form was not the product of an interrogation but, rather, was the product of a
8
The government also sought to tie Tejada to Manjarrez through Western Union records
showing Tejada wiring money to Manjarrez. The Western Union records were not admitted into
evidence.
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“standard booking process” in which the DEA collected the biographical
information of arrested persons.9
The prosecutor also admitted that Agent Galloza was not the agent who took
the statement contained in the DEA-202, and Tejada’s attorney objected that Agent
Galloza’s testimony concerning Manjarrez’s identity should be excluded as
hearsay. The district court overruled the objections. Agent Galloza then testified
that Manjarrez “is the wife of Mr. Tejada.”
We review the district court’s overruling of defendant Tejada’s objections,
based on Rule 16 and hearsay grounds, for an abuse of discretion. See United
States v. Brown, 441 F.3d 1330, 1359 (11th Cir. 2006) (addressing hearsay
rulings); United States v. Perez, 960 F.2d 1569, 1572 (11th Cir. 1992) (addressing
Rule 16 rulings).
Rule 16 requires the government to disclose and make available to a
defendant “the portion of any written record containing the substance of any
relevant oral statement made before or after arrest if the defendant made the
statement in response to interrogation by a person the defendant knew was a
9
It appears that there were two versions of the same DEA-202 form: one typed and one
handwritten. Both versions listed Manjarrez as a relative. But the typed version listed Manjarrez
as Tejada’s daughter, and the handwritten version listed her as his wife.
At trial, the government attempted to rely on the information in the handwritten form,
which listed Manjarrez as Tejada’s wife (although the government also stated that the distinction
was “irrelevant”). The record does not reveal why there are two different forms, whether Tejada
or a DEA agent filled out the handwritten form, or why the information was different in the two
forms. Neither DEA-202 form was admitted into evidence. The only evidence admitted was
Agent Galloza’s testimony that Manjarrez was Tejada’s wife.
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government agent.” Fed. R. Crim. P. 16(a)(1)(B)(ii). By its terms, Rule 16 applies
only to statements made during an “interrogation.” See id. As defendant Tejada
correctly notes, Rule 16 does not define the term “interrogation,” but at least one
court of appeal has “imported” the definition from the Supreme Court’s decision in
Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682 (1980). See Smith v. United
States, 285 F. App’x 209, 214 (6th Cir. 2008) (unpublished). In Innis, a case
involving a defendant’s Miranda rights, the Supreme Court wrote that “[a] practice
that the police should know is reasonably likely to evoke an incriminating response
from a suspect thus amounts to an interrogation.” 446 U.S. at 301, 100 S. Ct. at
1690. But, the Supreme Court cautioned, “the definition of interrogation can
extend only to words or actions on the part of police officers that they should have
known were reasonably likely to elicit an incriminating response.” Id. at 302, 100
S. Ct. at 1690.
Defendant Tejada cites no support for his claim that a DEA-202 form that
asks for names of relatives or next of kin is “interrogation” under Rule 16. We
find no case supporting that claim and conclude there was no Rule 16 violation.
Alternatively, even if the DEA-202 is somehow an “interrogation” within
the meaning of Rule 16, “[v]iolations of Rule 16 will result in a reversal of
conviction only if such a violation prejudices a defendant’s substantial rights.”
United States v. Chastain, 198 F.3d 1338, 1348 (11th Cir. 1999) (quoting United
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States v. Perez-Garcia, 904 F.2d 1534, 1546 (11th Cir. 1990)); see also United
States v. Camargo–Vergara, 57 F.3d 993, 998 (11th Cir. 1995) (providing that a
discovery violation under Rule 16 or a standing discovery order “is reversible error
only when it violates a defendant’s substantial rights”). A defendant’s substantial
rights are affected when the defendant is unduly surprised and lacks an adequate
opportunity to prepare a defense, or if the mistake substantially influences the jury.
Camargo–Vergara, 57 F.3d at 998-99. To be entitled to a new trial, “actual
prejudice must be shown.” Chastain, 198 F.3d at 1348.
Defendant Tejada has not demonstrated actual prejudice from the alleged
violation of Rule 16 and the district court’s standing discovery order. The
evidence presented at trial, through Medrano’s and Fontalvo’s testimony,
demonstrated that Tejada’s role in the conspiracy was to distract the captain while
large shipments of narcotics were being loaded and unloaded from the Borocho.
What’s more, Medrano and Fontalvo testified that Tejada knew of and was tasked
with distracting the captain specifically during the loading of the first 200-kg load
of cocaine onto the Borocho, the same load for which Fontalvo attempted to send
Manjarrez an advance payment.
The evidence demonstrated that defendant Tejada was also in charge of
disbursing payments (of $2,000 in U.S. currency and 350,000 Colombian pesos) to
the crew for the final 200-kg load. In addition, Medrano testified that Tejada had
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knowledge of the 100-kg load that was loaded onto the Borocho when it was
moored off the Colombian coast. At his arrest, Tejada had $1,000 in U.S. dollars
and $2,950,000 Colombian pesos (worth approximately $1,500) in his possession.
Thus, contrary to defendant Tejada’s assertion that “the most prejudicial”
evidence offered at trial was his connection to Manjarrez, the evidence regarding
his relationship with Manjarrez was only a minor part, and far from the most
damaging part, of the evidence against Tejada. Even if the government had
disclosed Tejada’s statement on the DEA-202 earlier, and even if Tejada had
successfully suppressed this evidence, the jury still would have been presented
with all of the evidence detailed above regarding his involvement with the drug-
smuggling conspiracy onboard the Borocho. Accordingly, Tejada has failed to
demonstrate how his substantial rights were affected. See Chastain, 198 F.3d at
1348.
Similarly, even if the district court should have excluded Agent Galloza’s
testimony on hearsay grounds, Tejada is not entitled to relief because the error, if
any, was harmless for the reasons explained above. See United States v. Khanani,
502 F.3d 1281, 1292 (11th Cir. 2007) (applying harmless-error review to
admission of evidence challenged as hearsay and stating that this Court will not
reverse a conviction if “sufficient evidence uninfected by any error supports the
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verdict, and the error did not have a substantial influence on the outcome of the
case”).
We are also unpersuaded by Tejada’s argument that, but for this alleged
discovery violation, he “would have sought to obtain expert testimony” regarding
how frequently maritime cocaine traffickers pay smuggling participants through
payments to the participants’ family members. Tejada has not suggested who this
“expert” might be or what sort of testimony they would have given. Further, there
was ample evidence at trial that such a payment system was in place onboard the
Borocho, and none of the defendants’ lawyers purported to call such an expert.
Nor has Tejada explained how such expert’s testimony would have led to an
acquittal, given the other evidence against him.
B. Evidence Extracted from Tejada’s Cell Phones and SIM Cards
The Coast Guard found two cell phones in defendant Tejada’s stateroom
aboard the Borocho. Tejada consented to a search of the cell phones and the SIM
cards within the phones. At trial, Coast Guard Lieutenant Matt Peterson testified
that he extracted data from the cell phones and SIM cards using a program called
Cellebrite. Tejada objected that Peterson did not design the Cellebrite program
and, consequently, there was “no foundation . . . that the information contained on
the phone [was] a fair and accurate representation of what was actually in the
phone.” The district court declined to admit Government Exhibit 23A (a
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photograph of the two cell phones) and Government Exhibits 23C, 23D, and 23E
(disks containing the extraction reports of the data from the SIM cards and
phones).
The prosecutor, however, had printed out copies of the extraction reports.
The prosecutor also stated that Agent Galloza had reviewed the extraction reports.
Tejada objected to the printouts as lacking authentication. The district court
overruled this objection and admitted the printouts as Government Exhibits 23C-1,
23D-1, and 23E-1.
DEA Agent Galloza later testified that he had reviewed the extraction
reports prepared by the Coast Guard and had prepared his own summary of
relevant phone numbers found on the reports. Relying on his summary, Agent
Galloza testified that defendant Tejada’s cell phone contact lists included phone
numbers for three former Borocho crewmen involved in smuggling drugs. 10
On appeal, defendant Tejada argues that the district court erred in admitting
Government Exhibits 23C-1, 23D-1, and 23E-1 because “there was no competent
evidence in the record to support Agent Galloza’s testimony that those exhibits
were fair and accurate summaries of the information contained on any cell phone
or SIM card that belonged” to him.
10
Specifically, defendant Tejada had the phone numbers of Julio Flores and Roberto
Acosta (aka “Calvo”), who both organized drug trafficking activity for previous voyages on the
Borocho, and Clemente Salas, who Agent Galloza described as a person who had previously
smuggled drugs on the Borocho. Tejada also had the phone number of his codefendant Ortiz.
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We need not decide if the district court erred in admitting these printouts
because the error, if any, did not substantially prejudice Tejada for the reasons
previously explained. See Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d
1228, 1232 (11th Cir. 2004) (explaining that this Court reviews the district court’s
evidentiary rulings for abuse of discretion and will reverse only if an erroneous
ruling resulted in substantial prejudice). Even if the district court had excluded the
evidence demonstrating that Tejada had the phone numbers of Flores, Calvo, and
Salas, the jury would still have heard testimony from Medrano and Fontalvo
regarding Tejada’s role in the smuggling conspiracy.
Moreover, Agent Galloza testified that two of Tejada’s codefendants—
Cardenas-Socarras and Sanchez-Cortes—also had the phone numbers of Flores and
Calvo in their phones’ contact lists. And yet the jury acquitted Cardenas-Socarras
and Sanchez-Cortes of all charges. Thus, Tejada concedes in his brief on appeal
that the admission of this evidence was “[a]rguably” harmless because the jury’s
acquittal of Cardenas-Socarras and Sanchez-Cortes indicates that it gave little or no
weight to the defendants’ cell phone contacts.
V. SUFFICIENCY OF THE EVIDENCE AS TO
CARRASQUILLA AND PATINO-VILLALOBOS
Defendants Carrasquilla and Patino-Villalobos challenge the sufficiency of
the evidence supporting their convictions. By way of review, Patino-Villalobos
was convicted of both counts while Carrasquilla was convicted of only the
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conspiracy charge. Both defendants timely moved for judgments of acquittal,
which the district court denied.
We review de novo the sufficiency of the evidence against them, “viewing
the evidence in the light most favorable to the government and resolv[ing] all
reasonable inferences and credibility evaluations in favor of the jury’s verdict.”
Tinoco, 304 F.3d at 1122. We will not disturb a jury’s verdict “unless no trier of
fact could have found guilt beyond a reasonable doubt.” Id. (quoting United States
v. Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997)).
To prove the existence of a conspiracy, the government must establish “that
an agreement existed between two or more persons and that the defendant
knowingly and voluntarily participated in it.” Id. (quoting United States v. Garate-
Vergara, 942 F.2d 1543, 1547 (11th Cir. 1991), modified, 991 F.2d 662 (11th Cir.
1993)). The government can make its showing through circumstantial evidence.
Id.
Possession of a controlled substance with intent to distribute may also be
proven through circumstantial evidence. Id. at 1123. “Possession may be either
actual or constructive; if the accused exercised some measure of dominion or
control over the contraband, either exclusively or in association with others, he
constructively possessed it.” Id. (quoting United States v. Battle, 892 F.2d 992,
999 (11th Cir. 1990) (per curiam)).
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In addition, in cases like the one now before us, this Court has held that the
following factors should be considered in determining whether a jury could
reasonably conclude that a defendant found on a drug-laden vessel was guilty of
drug conspiracy and possession charges:
(1) probable length of the voyage, (2) the size of the contraband
shipment, (3) the necessarily close relationship between captain and
crew, (4) the obviousness of the contraband, and (5) other factors,
such as suspicious behavior or diversionary maneuvers before
apprehension, attempts to flee, inculpatory statements made after
apprehension, witnessed participation of the crew, and the absence of
supplies or equipment necessary to the vessel’s intended use.
Garate-Vergara, 942 F.2d at 1547. The size of the vessel is also relevant in
determining the relative quantity of the contraband and its obviousness to the crew.
Id. at 1547-48. “[O]nce a large quantity of contraband is shown to have been
present on a vessel, the government’s remaining burden of showing that the crew
knowingly participated in the drug smuggling operation is ‘relatively light.’”
Tinoco, 304 F.3d at 1123 (quoting United States v. Cruz-Valdez, 773 F.2d 1541,
1547 (11th Cir. 1985)).
A. Carrasquilla
The evidence produced at trial demonstrated that defendant Carrasquilla was
a 74-year-old mechanic on the Borocho. While purportedly the ship’s engineer,
when Coast Guard officers asked Carrasquilla to turn the lights on in the cargo
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hold or work the pumps to transfer liquid in the ballast tanks, Carrasquilla claimed
not to know how to perform these functions.
Carrasquilla was hired for the unsuccessful September voyage, arriving
before some of the prior crew had left the vessel. He arrived on the morning of
September 4, 2014.
Fontalvo testified that Carrasquilla came aboard unaware of the drugs that
were already on the boat. Fontalvo further testified: “But the day after the drugs
were loaded onto the boat, early in the day, Mr. Carrasquilla told me, ‘Diomeres,
yesterday I saw some strange movement onboard the boat that I didn’t like.
What’s happening here?’” Fontalvo replied, “last night we did load up a little
something, but don’t worry about it. You’ll get your chocolate too.” After making
this statement, Fontalvo simply walked away, not allowing Carrasquilla a chance
to respond. The next day, Fontalvo approached Carrasquilla and asked him for an
account number to send the money to. Fontalvo had to explain why he needed the
account number. Fontalvo testified that Carrasquilla “didn’t like it, but he says,
‘well, there’s nothing I can do about it now. It’s already up on the boat. There’s
nothing I can do about it now.’ And he accepted.”
Fontalvo kept a document called “night orders” where he wrote down who
was paid what for the first 200-kg load. Next to “Juancho” (aka Carrasquilla), he
had written down the name Miguel Ballestas and an account number. Fontalvo
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said he understood Ballestas to be “a friend or family member” of Carrasquilla’s.
Further, on September 4, 2014, Fontalvo sent another drug smuggler, Naranja,11 a
text message with the name of Carrasquilla’s wife, Edythe Ballestas Carrasquilla,
and an account number.
Similarly, Medrano testified that Carrasquilla was not there when the 100
kilograms arrived, but he was present for the arrival of the first 200-kg load. While
Otero-Pomares and Medrano did the heavy lifting, Carrasquilla did “nothing” but
was going to get paid the same because he was in the know as to that shipment.
Medrano testified that “on Mr. Fontalvo’s [the first 200 kilograms], he told me that
we had to send something to Carrasquilla’s family because he had realized.”
Fontalvo testified that it was his decision to cut Carrasquilla in because he was the
engineer “even if he doesn’t do anything with the kilos.”
Medrano testified that defendant Carrasquilla was also present for the 86-kg
load that came aboard in the three blue barrels and the second 200-kg load. In all
this, he “was paid to watch.” Medrano also testified that the entire crew, which
would include Carrasquilla, met without the captain and agreed to take the second
200-kg load and share the profits. Further, when the loads were made, the vessel
was moored off the Colombian coast and was not yet underway on the seas.
11
Naranja was a former crew member on the Borocho who served as a watchdog for Julio
Flores and had participated in previous drug-smuggling runs.
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When he was arrested, defendant Carrasquilla had $2,140 of U.S. currency
(in $100 and $20 bills) on his person. And when DEA Agent Galloza searched
Carrasquilla’s cell phone, he discovered that Carrasquilla had saved the phone
numbers of multiple drug smugglers involved in this or earlier voyages: Flores,
Naranja, Salas, and Calvo, among others. On cross-examination, Carrasquilla’s
attorney established that only three calls had been made from this phone, none to
people involved in the drug trade.
On appeal, Carrasquilla primarily argues that, even if there was a conspiracy
onboard the Borocho, he did not knowingly or willfully join it. Rather, by the time
he got on board and learned of it, it was too late and too dangerous to do anything
about it. To prove knowing and voluntary participation in a conspiracy, the
government must show that the defendant had a specific intent to join the
conspiracy. Calderon, 127 F.3d at 1326. However, once the government
establishes the existence of an underlying conspiracy, it need only come forward
with “slight evidence to connect a particular defendant to the conspiracy.” Id.
(quoting United States v. Jenkins, 779 F.2d 606, 609 (11th Cir. 1986)). This is not
to say that the government is held to a lesser showing—“each element of a
conspiracy must also be proven as to each defendant beyond a reasonable doubt;
the law simply recognizes that all co-conspirators need not play identical roles in
perpetuating the unlawful agreement.” United States v. Toler, 144 F.3d 1423,
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1428 (11th Cir. 1998) (explaining that a defendant can be convicted if his
involvement in the conspiracy is “slight” in comparison to the actions of the other
co-conspirators).
This “minimal threshold” showing may be made through direct or
circumstantial evidence, and a common purpose or plan may be inferred from a
variety of circumstances. Calderon, 127 F.3d at 1326. One such circumstance is
“repeated presence at the scene of the drug trafficking.” Id.; see also Tinoco, 304
F.3d at 1122-23 (“[A] defendant’s presence, although not determinative, is a
material factor when weighing evidence of conspiracy. A defendant’s presence
becomes more significant when the value of the contraband is high.”) (internal
quotation marks and citation omitted).
Here, a reasonable jury could find that the evidence established
Carrasquilla’s guilt on the conspiracy charge beyond a reasonable doubt. See
Tinoco, 304 F.3d at 1122. Medrano testified that Carrasquilla was physically
present while three loads of cocaine, totaling approximately 486 kilograms, were
loaded on board the Borocho. See id. at 1122-23 (noting that a defendant’s
presence is a “material factor” that “becomes more significant” when the
conspiracy involved high-value contraband).
Importantly, Fontalvo testified that Carrasquilla was paid for his complicity
and silence and, indeed, the evidence demonstrates that Carrasquilla was arrested
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with more than $2,100 in U.S. currency on his person, which is consistent with
Barona-Bravo’s $2,000 payment to Medrano (in $100 U.S. bills) for the last 200-
kg load. It is also far more than the average mariner would make working aboard
the Borocho; Medrano testified that his salary was 700,000 Colombian pesos, or
approximately $350 per month. In addition, there was evidence that Fontalvo
attempted to or was going to send additional money to people tapped by
Carrasquilla: his wife, Edythe Ballestas Carrasquilla, and Miguel Ballestas.
Contrary to Carrasquilla’s suggestion, his case is not “materially
indistinguishable” from our prior decision in Garate-Vergara, where this Court
affirmed the acquittal of several crew members who were arrested on a drug-
carrying vessel. 942 F.2d at 1549. In that case, the evidence established that
cocaine was stored in a freshly painted compartment beneath legitimate cargo and,
upon the ship’s apprehension, several crew members began throwing bags of
cocaine overboard. Id. at 1546-47. This Court upheld the district court’s order of
acquittal for those crew members arrested without paint on their hands and against
whom the government had offered no evidence that they were aware of the secret
compartment or its illicit contents. Id. at 1549. This Court also reversed one crew
member’s conviction where the only evidence tying him to the conspiracy was a
used plane ticket that showed previous travel with three other defendants six weeks
before the voyage. Id. Here, the government offered much more, including
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Carrasquilla’s presence while several large loads of cocaine were being loaded
onto the Borocho, his acceptance of payment, and the presence of significant cash
on his person.
Examining all of the proven circumstances in this case, including but not
limited to Carrasquilla’s presence during the loading of the narcotics, a reasonable
jury could find beyond a reasonable doubt that Carrasquilla had knowingly and
voluntarily participated in the conspiracy. See Tinoco, 304 F.3d at 1122;
Calderon, 127 F.3d at 1326-27. While we recognize Carrasquilla’s argument that
the evidence could support an inference that he merely played along to maintain
his safety, the evidence supports the opposite inference too—that he was aware of
the smuggling conspiracy and willingly accepted payment in exchange for his
silence. “A jury is free to choose among the constructions of the evidence,” and
we will not overturn the jury’s verdict as to Carrasquilla. Calderon, 127 F.3d at
1324 (quoting United States v. Hardy, 895 F.2d 1331, 1334 (11th Cir. 1990)); see
also id. at 1326 (explaining that a defendant may be properly convicted on a
conspiracy charge “even though his role is minor in the overall scheme”).
B. Patino-Villalobos
Patino-Villalobos also only participated in the unsuccessful September
voyage of the Borocho. Medrano testified that the 86-kg load (in three blue
barrels) was delivered to the Borocho at night aboard a small speedboat. Barona-
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Bravo, Patino-Villalobos, and two other men were on that speedboat. The
crewmen on the Borocho threw down ropes, the men in the speedboat tied on the
drugs, and the crew hauled it onboard. 12 The barrels were then placed in the ship’s
ballast tank.
Later, Medrano confided in Patino-Villalobos that he was worried the barrels
were not well hidden in the ballast tank. Patino-Villalobos asked Barona-Bravo
about moving the cocaine and putting it in sacks, but Barona-Bravo did not want
to.
Medrano also testified that the entire crew, which would include Patino-
Villalobos, met without the captain and agreed to take the second 200-kg load and
share the profits. While housed with other crewmen in a Florida jail, Patino-
Villalobos hatched and communicated a plan for the crewmen to claim that the
cocaine was already on the ship and belonged to Calvo. 13 Additionally, Agent
Galloza searched Patino-Villalobos’s phone and SIM card and found that he had
contact numbers for Julio Flores and Naranja.
12
Patino-Villalobos points out that Medrano did not name him as one of the men who
helped physically move the barrels from the speedboat to the Borocho.
13
There is some ambiguity about how much money Patino-Villalobos had on his person
when he was arrested. According to the Coast Guard’s inventory sheet, which was filled out
upon arrest, Patino-Villalobos only had 30,000 Colombian pesos in his possession. But when the
FBI went to photograph and examine the items seized from the crewmen, there was now
approximately 850,000 Colombian pesos and $2,000 in U.S. currency among the items
purportedly belonging to Patino-Villalobos. The FBI agent in charge of this evidence admitted
that the items did not match up and said he did not know how the additional money got into the
evidence bag. Due to its confusing nature, we do not rely on this evidence in examining the
sufficiency of the government’s case against Patino-Villalobos.
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Here, a reasonable jury could find that the evidence established Patino-
Villalobos’s guilt on the conspiracy charge beyond a reasonable doubt. Calderon,
127 F.3d at 1326; Tinoco, 304 F.3d at 1122-23. According to Medrano’s
testimony, Patino-Villalobos was aware of at least the 86-kg and the second 200-kg
loads. While Patino-Villalobos argues that he was not physically present at the
loading of the second 200-kg delivery, he does not dispute that he was aware of
this load and wished to partake in the proceeds.
As to possession with intent to distribute, the evidence established that
Patino-Villalobos was on the speedboat that delivered the 86-kg load of cocaine.
He also knew where the barrels of cocaine were hidden and expressed a desire to
move or better conceal the cocaine. Given these facts, a reasonable jury could
conclude that Patino-Villalobos, at the very least, “exercised some measure of
dominion or control over the contraband.” Tinoco, 304 F.3d at 1123. Thus, taking
the evidence in the light most favorable to the government, Patino-Villalobos had
actual or constructive possession of more than five kilograms of cocaine and a
reasonable jury could find him guilty of the possession charge. See Tinoco, 304
F.3d at 1123 (“A defendant’s intent to distribute . . . may be inferred from the large
quantity of narcotics that were seized.”).
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VI. CARRASQUILLA’S MOTION FOR A NEW TRIAL
At the end of the trial, the district court, reading from the verdict form,
announced that the jury had found Carrasquilla guilty of conspiracy, as charged in
Count One, and had further found that the offense involved less than 500 grams.
The district court polled the jury, and Juror No. 2, the foreperson, told the court,
“There are two of them where you said 500 milligrams or less, and to the best of
my knowledge, they all had five kilograms or more.” The district court returned
Carrasquilla’s verdict form to the jury and instructed the jurors to go back “and see
if there’s a mistake on what you already unanimously decided.”
When the jury returned, Juror No. 2 confirmed that there had been a mistake
in Carrasquilla’s verdict form. Juror No. 2 explained that the jury had found
Carrasquilla guilty of Count One but that the offense involved five kilograms or
more of cocaine. 14 The district court reviewed the verdict form and observed that
the jury had “crossed through the line that said, ‘less than 500 grams,’ and you
have checked the line that says ‘five kilograms or more.’” The foreperson
confirmed that that was correct.
The district court then asked Carrasquilla to stand and announced the
corrected verdict: “[T]he verdict as to Count 1 of the indictment, the offense of
conspiracy to possess with the intent to distribute cocaine while aboard a vessel
14
The jury confirmed that the original verdict form against defendant Torres contained the
same mistake.
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subject to the jurisdiction of the United States, we the Jury find the Defendant,
Juan Carrasquilla-Lombada, guilty. And the amount is five kilograms or more.”
The district court again polled the jury, confirming that the corrected verdict was in
fact its verdict.
After the trial, Carrasquilla renewed his motion for a judgment of acquittal
and, in the alternative, moved for a new trial. He argued that the confusion over
the jury’s verdict rendered the corrected verdict unreliable and warranted a new
trial. The district court denied the motion, concluding that sufficient evidence
supported Carrasquilla’s conviction and, in light of how it handled the confusion
over the verdict, no new trial was needed.
Carrasquilla now argues that the district court abused its discretion in
denying his motion for a new trial because the jury’s corrected verdict was
unreliable and inconsistent both with the evidence at trial and his acquittal as to
Count Two. He argues that, given his acquittal on Count Two, “it is entirely
possible that the jury originally intended to acquit [him] on both counts, but
erroneously checked the guilty and ‘500 grams or less’ box on the conspiracy
count.”
Federal Rule of Criminal Procedure 31 authorizes a district court to
individually poll jurors after a verdict is returned. Fed. R. Crim. P. 31(d). “If the
poll reveals a lack of unanimity, the court may direct the jury to deliberate further
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or may declare a mistrial.” Id.; see also United States v. Warren, 594 F.2d 1046,
1050 (5th Cir. 1979) (stating that it is within a district court’s discretion to direct
further deliberations upon the discovery that a verdict may not be unanimous).15
Here, the district court immediately discontinued the poll upon learning of
the possible mistake, directed the jury to continue deliberating, and then polled the
jury after the corrected verdict was read to ensure it was, in fact, their verdict. On
both occasions, the jury rendered a guilty verdict against Carrasquilla on Count
One, and the only mistake was as to drug amount. There is no indication from the
record that the jury twice failed to indicate its true verdict. The district court did
not abuse its discretion in denying Carrasquilla’s motion for a new trial. See
Christiansen v. Wright Med. Tech., Inc., No. 16-12162, slip op. at 7, 26 (11th Cir.
Mar. 20, 2017) (concluding, in context of a civil case, that the district court did not
abuse its discretion in ordering the jury to continue deliberations upon its discovery
that the verdict was inconsistent because “the district court acted in a neutral and
non-biased manner in acknowledging and addressing the inconsistent verdict” and
its action did not prejudice parties).
15
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as precedent the decisions of the former Fifth Circuit rendered prior to
October 1, 1981.
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VII. SENTENCING ISSUES
According to their individual presentence investigation reports (“PSRs”), all
of the seven convicted codefendants had a total offense level of 38 and a criminal
history category of I, resulting in an advisory guidelines range of 235 to 293
months’ imprisonment. Count One (the conspiracy charge) and Count Two (the
possession charge) each carried statutory minimum sentences of ten years’ and
statutory maximum sentences of life imprisonment. See 46 U.S.C. § 70506(a), (b)
(providing that persons who violate the substantive MDLEA prohibitions on drug
possession and distribution and persons who conspire to violate those prohibitions
are both subject to the penalties set forth in 21 U.S.C. § 960); 21 U.S.C.
§ 960(b)(1)(B)(ii) (setting forth a ten-year minimum and lifetime maximum term
of imprisonment for violations involving five kilograms or more of cocaine).
The district court sentenced Torres, Ortiz, Otero-Pomares, Patino-Villalobos,
and Barona-Bravo to 235 months’ imprisonment on Counts One and Two, to run
concurrently, and it sentenced Carrasquilla and Tejada to 235 months’
imprisonment on Count One alone.
Through mutual adoption of their co-appellants’ briefs, the defendant-
appellants have raised various challenges to their identical sentences on appeal.
We first address whether the district court erred in attributing the entire 640.9
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kilograms of cocaine found onboard the Borocho to each and every defendant as
relevant conduct under U.S.S.G. § 1B1.3.
At sentencing, the parties agreed that the accurate total weight of cocaine
found aboard the Borocho was 640.9 kilograms. And the district court attributed
that full amount to all defendants, despite the fact that, on the penultimate day of
trial, the district court had observed that the defendants had hidden certain drugs
from each other:
[T]his is a most unusual case . . . . [T]hese drugs were will hidden. It
wasn’t like they were in view for everyone to see. I mean, they took
special precautions to hide the drugs, and they hid the drugs from each
other. This wasn’t a boat case where there was a – the boat itself was
taking drugs for a particular person in Colombia and transporting it to
Panama . . . . [T]hese were all side deals for individual people on the
boat.
And at the sentencing hearing, the district court judge again observed that this was
an “odd” conspiracy and that certain defendants “may not have known there were
640.9 kilograms of drugs on the vessel, but I do think it was foreseeable.”
Further, at the July 7, 2015 sentencing, the district court did not have the
benefit of the clarifying amendment to the relevant conduct sentencing guideline,
U.S.S.G. § 1B1.3, which went into effect on November 1, 2015, and is to be given
retroactive effect. See U.S.S.G. Suppl. to App. C, Amend. 790.16
16
As a clarifying amendment, Amendment 790 is given retroactive effect and may be
considered on appeal regardless of the sentencing date. See U.S.S.G. Suppl. to App. C, Amend.
790, Reason for Amendment (stating that the amendment made “clarifying revisions” to
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Section 1B1.3 provides that a defendant’s “relevant conduct” for sentencing
purposes includes “all acts and omissions committed, aided, abetted . . . or
willfully caused by the defendant.” U.S.S.G. § 1B1.3(a)(1)(A). In the case of a
“jointly undertaken criminal activity,” relevant conduct also includes certain acts
and omissions of others. Id. § 1B1.3(a)(1)(B). The 2014 version of U.S.S.G.
§ 1B1.3(a)(1)(B), which the district court applied here,17 specifically provided that
“in the case of a jointly undertaken criminal activity” defendants are also
accountable for “all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B)
(2014).
However, Amendment 790 struck that definition, and § 1B1.3(a)(1)(B) now
defines “relevant conduct” in the case of jointly undertaken criminal activity to
include:
all acts and omissions of others that were—
(i) within the scope of the jointly undertaken criminal activity,
(ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that criminal activity;
§ 1B1.3); see also United States v. Jerchower, 631 F.3d 1181, 1184 (11th Cir. 2011) (explaining
that subsequent amendments that clarify the guidelines—rather than serve as substantive
amendments—are given retroactive effect and should be considered on appeal regardless of the
sentencing date).
17
The defendants were sentenced on July 7, 2015, so the district court applied the 2014
Sentencing Guidelines.
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that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid detection
or responsibility for that offense.
U.S.S.G. § 1B1.3(a)(1)(B) (2015). In its commentary to Amendment 790, the
Sentencing Commission explained that, where the prior version of
§ 1B1.3(a)(1)(B) focused on a seemingly two-part test in the text (“all reasonably
foreseeable acts and omissions of others in furtherance of the jointly undertaken
criminal activity”), Amendment 790 “restructure[d] the guideline and its
commentary to set out more clearly the three-step analysis the court applies in
determining whether a defendant is accountable for the conduct of others in a
jointly undertaken criminal activity under § 1B1.3(a)(1)(B).” U.S.S.G. Suppl. to
App. C, Amend. 790, Reason for Amendment. While the “scope” element was
previously articulated in the commentary to § 1B1.3, Amendment 790 now placed
the “scope” element in the text of the guideline itself and provided several
examples in the Application Notes of how the three-part test functions. Id.
Furthermore, the post-amendment guidelines commentary now directs that
“[i]n order to determine the defendant’s accountability for the conduct of others
under subsection (a)(1)(B), the [district] court must first determine the scope of the
criminal activity the particular defendant agreed to jointly undertake.” U.S.S.G.
§ 1B1.3, cmt. n.3(B) (2015) (emphasis added). Findings about the scope of the
conspiracy as a whole are not sufficient under § 1B1.3(a) because, while a co-
conspirator is often criminally liable for all of the acts done in furtherance of a
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conspiracy, the limits of sentencing accountability are not coextensive with the
scope of criminal liability. See id. (explaining that the scope of the jointly
undertaken criminal activity “is not necessarily the same as the scope of the entire
conspiracy, and hence relevant conduct is not necessarily the same for every
participant”).
More clearly now for sentencing purposes, the scope of each defendant’s
jointly undertaken criminal activity depends on “the scope of the specific conduct
and objectives embraced by the defendant’s agreement.” Id. (emphasis added). In
making this determination, the district court may consider any explicit or implicit
agreement fairly inferred from the conduct of the defendant and others. Id.
Therefore, “[a]cts of others that were not within the scope of the defendant’s
agreement, even if those acts were known or reasonably foreseeable to the
defendant, are not relevant conduct” under this subsection. Id. (emphasis added).
Further, a defendant’s relevant conduct does not include conduct of members of a
conspiracy prior to the defendant’s joining of the conspiracy, even if the defendant
knows of that conduct. Id.
Here, the record reflects that the district court confined its relevant-conduct
analysis to the question of reasonable foreseeability and conflated the scope of the
conspiracy for criminal liability purposes with the scope of the criminal activity
agreed to or embraced by a particular defendant for sentencing accountability
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purposes. Without the benefit of Amendment 790, the district court did not make
individualized findings on the record concerning the scope of criminal activity each
particular defendant agreed to jointly undertake, as it is now required to do under
§ 1B1.3(a)(1)(B). See id. Instead, the district court made an implicit determination
that the scope of the criminal activity that these particular defendants agreed to
undertake was identical to the overarching conspiracy of smuggling 640.9
kilograms of cocaine from Colombia to Panama. This determination necessarily
means that, for some defendants, the scope of their individual agreements included
deliveries of cocaine made before they even got on the ship. And yet, the
commentary to U.S.S.G. § 1B1.3, which is binding on us, directs that “relevant
conduct” cannot include the conduct of members of a conspiracy prior to the
defendant’s joining the conspiracy, even if the defendant knows of that conduct.
See U.S.S.G. § 1B1.3, cmt. n.3(B) (2015); Stinson v. United States, 508 U.S. 36,
37-38, 113 S. Ct. 1913, 1915 (1993) (holding that commentary to the sentencing
guidelines is authoritative); see also United States v. Word, 129 F.3d 1209, 1213
(11th Cir. 1997) (holding that, where defendant did not join the conspiracy until
“several months after its inception,” such defendant’s relevant conduct for
sentencing purposes did not include losses caused by the conspiracy before he
joined it). The district court did not address this discrepancy on the record or make
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any other factual findings from which we may undertake a review of its relevant-
conduct determinations.
Further, the district court itself stated that certain defendants “may not have
known there were 640.9 kilograms of drugs on the vessel” and that the defendants
hid some of the drugs from each other. These findings also militate against a
determination that the scope of a defendant’s agreement included drugs that the
defendant knew nothing about or that were not reasonably foreseeable.
In short, given Amendment 790 and the particular factual circumstances of
this case, the fact findings of the district court are insufficient for this Court to
conduct meaningful appellate review of the defendants’ sentences. Therefore, we
vacate the sentences of all seven defendant-appellants and remand for resentencing
in accordance with Amendment 790 to U.S.S.G. § 1B1.3 and this opinion.18
18
Our vacatur of the sentences here does not suggest or mean that there is any error in the
defendants’ convictions for the single overarching conspiracy charged in the indictment. Here,
the district court instructed the jury on a single-conspiracy theory. The defendants never
requested a multiple-conspiracy jury charge. By rendering their verdicts, the jury implicitly
found that only a single conspiracy existed for criminal liability purposes. On appeal, to the
extent the defendants argue the district court was required to find multiple conspiracies at
sentencing, the defendants have shown no error in that regard. See Calderon, 127 F.3d at 1329
(determining that the evidence demonstrated “a single overarching conspiracy to import and
distribute cocaine from the Bahamas,” even though some defendants participated in one load but
not others, and observing that participation for the duration of only one or two loads “does not
change the fact that what they joined was a single conspiracy with a common objective”); see
also United States v. Brown, 587 F.3d 1082, 1089 (11th Cir. 2009) (“Separate transactions are
not necessarily separate conspiracies, so long as the conspirators act in concert to further a
common goal. If a defendant’s actions facilitated the endeavors of other co-conspirators, or
facilitated the venture as a whole, a single conspiracy is established. It is irrelevant that
particular conspirators may not have known other conspirators or participated in every stage of
the conspiracy.”) (internal citations and quotation marks omitted).
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We next briefly turn to the defendants’ complaints regarding the district
court’s refusal to apply minor-role adjustments to their sentencing calculations or to
give adequate consideration to the individualized sentencing factors described in 18
U.S.C. § 3553(a). Because we vacate the sentences of those defendants before us,
we decline to consider those questions in the first instance. Once the trial court
reassesses the relevant conduct determinations, it can then make individual
determinations for each defendant regarding his respective role in the conspiracy
and his respective personal circumstances, with attendant findings of fact. We note,
however, that, as with its relevant conduct determinations, the district court did not
have the benefit of recent amendments to the Sentencing Guidelines that “further
clarify the factors to consider for a minor-role adjustment.” Cruickshank, 837 F.3d
at 1193. Nor did the court have the benefit of our discussion of those amendments
in Cruickshank. See id. at 1193-95. Several of the factors discussed in those
recent, but retroactive, amendments appear directly relevant to the circumstances of
this unusual conspiracy.
To be clear though, nothing in this opinion reaches or decides the other
sentencing issues about minor-role reductions and substantive reasonableness.
After the district court makes the requisite findings about the relevant conduct of
Nevertheless, as explained above, the scope of criminal liability for a proper, single
conspiracy conviction is not always coextensive with sentencing accountability for relevant
conduct under amended guideline § 1B1.3. Given the odd nature of this single conspiracy, what
is needed now are individual fact findings for sentencing accountability.
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each defendant individually, the district court in the first instance should then make
explicit fact findings on the defendants’ minor role, if any, and any other sentencing
arguments made by the government or the defendants.
VIII. CONCLUSION
For the foregoing reasons, we affirm all of the defendants’ convictions but
vacate all of the defendants’ sentences and remand for resentencing.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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