United States v. Jose Pineda Castro ( 2019 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13438
________________________
D.C. Docket No. 1:16-cr-20700-FAM-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE PINEDA CASTRO,
ANIBAL MUSTELIER,
YAMILE DIAZ BERNAL,
Defendants - Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(November 7, 2019)
Before ROSENBAUM, GRANT, and HULL, Circuit Judges.
PER CURIAM:
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After a trial, a jury found appellants Jose Pineda Castro (“Pineda”), Anibal
Mustelier, and Yamile Diaz Bernal (“Diaz”) guilty of a variety of crimes related to
two jewelry-store robberies and one attempted jewelry-store robbery. Among other
evidence, the government presented recorded conversations between Pineda, Diaz,
and a confidential informant in which Pineda described his distinctive method of
breaking into jewelry stores. The jury also heard testimony that police found some
of the stolen jewelry, as well as burglars’ tools, in Mustelier’s house.
Defendants raise a variety of issues on appeal and adopt each others’ argu-
ments where applicable. We break down which defendants challenge which aspects
of the proceedings in the district court: Mustelier argues that the district court should
have granted his motion to suppress the evidence found in his home; he also chal-
lenges the sufficiency of the evidence of his guilt. For her part, Diaz contends that
the court should have ordered the Government to reveal the identity of a nontestify-
ing confidential informant. As for Pineda, he argues that the district court improp-
erly admitted evidence of his prior bad acts, that the Government violated his right
to due process when it lost a receipt he says would have been exculpatory, and that
the court should have granted his motion for a mistrial because he walked to the
witness stand while wearing ankle restraints. Besides these claims applicable to only
one defendant, Mustelier and Diaz assert that the district court’s jury-selection pro-
cedure was an abuse of discretion and that the court’s conduct during trial in the
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presence of the jury violated their right to a fair trial. Finally, all three defendants
argue that their sentences are unreasonable.
After careful review and with the benefit of oral argument, we affirm defend-
ants’ convictions. We also affirm defendants’ sentences, except that we vacate Mus-
telier’s sentence for being a felon in possession of a firearm, which is illegally high,
and remand his case to the district court for him to be resentenced on that count.1
I. Background
On December 6, 2016, the grand jury returned a superseding indictment
against defendants, charging them with a variety of robbery-related crimes. The
indictment alleged that Mustelier and Pineda robbed the Luany Jewelry Store on
May 30, 2015, and charged them with Hobbs Act robbery, in violation of 18 U.S.C.
§ 1951(a), and brandishing a firearm in furtherance of a crime of violence, in viola-
tion of 18 U.S.C. § 924(c)(1)(A)(iii). Next, it alleged that Mustelier and Pineda
robbed the Ariel Jewelry Store on September 3, 2015, and charged them with Hobbs
Act robbery and brandishing a firearm in furtherance of that crime. The indictment
further asserted that Mustelier, Pineda, and Diaz attempted to rob the Real Deal Jew-
elry Store on August 8, 2016, and charged them with attempting to commit a Hobbs
Act robbery. In addition, the indictment charged each defendant with conspiring to
1
Diaz argues that she was denied a fair trial under the cumulative-error doctrine. Since we
do not perceive any error as it relates to her, we necessarily also find that Diaz was not denied a
fair trial under that doctrine.
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commit Hobbs Act robberies, in violation of 18 U.S.C. § 1951(a). Finally, the in-
dictment charged Mustelier with being a felon in possession of a firearm and ammu-
nition, in violation of 18 U.S.C. § 922(g)(1).
A. Mustelier’s Suppression Motion
During the course of the investigation, law enforcement responded to Mus-
telier’s residence. While there, Sergeant Barbaro Hernandez of the Hialeah Police
Department observed burglars’ tools inside the house. Based on this information
and other evidence, law enforcement sought and obtained a search warrant. Mus-
telier moved to suppress evidence found in his house during the execution of a search
warrant.
A magistrate judge held a hearing on Mustelier’s motion. During the hearing,
Hernandez testified that he knocked on the front door of the house, and a woman
named Lima answered. Lima was Mustelier’s girlfriend and the owner of the home.
Eventually, Mustelier came to the door without a shirt on. Hernandez testified that
Mustelier requested that Lima get him a shirt, so Hernandez asked Lima, “for safety
reasons, can I go with you, please?” According to Hernandez, Lima then replied,
“Yes, no problem.” Hernandez followed Lima to Mustelier’s bedroom, and, he said,
from the doorway of the bedroom, Hernandez observed burglars’ tools inside Mus-
telier’s room.
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The Government also called Detective Michael Ramos, who was right behind
Hernandez when Hernandez knocked on the front door. Ramos testified that Mus-
telier, without a shirt on, opened the door and that Lima joined him moments later.
According to Ramos, Hernandez asked Lima whether he could get Mustelier a shirt,
and Lima “agreed” by saying, “come get the shirt.”
The defense called Lima to testify. Lima said that Mustelier answered the
door and that the officers asked him to talk to them outside. Mustelier was not wear-
ing a shirt, so Lima got him one from his room. When she returned, she said, she
discovered that officers were already inside Lima and Mustelier’s living room.
Then, she testified, Mustelier told her to contact an attorney and to not let the officers
in the house without a warrant. Lima attested that the officers left with Mustelier
but that, 15 minutes later, officers knocked on her door again and searched Mus-
telier’s room without her permission, claiming that “the warrant is on the way.” On
cross-examination, Lima said that Mustelier was the “best thing that ever happened”
to her and that he was her “everything.”
The defense also called Maria Garcia, Lima’s mother, to testify. Garcia said
that she saw officers talk to Lima and that she had been the person who suggested
that Lima get Mustelier a shirt. She conceded that she did not personally see officers
search the house.
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In addition, the defense called Yolanda Quintero, who lived in an apartment
attached to Lima’s home. She testified that Lima was not accompanied by an officer
when she retrieved a shirt for Mustelier and that later, when officers returned, Lima
had asked them “straight-away” whether they had a warrant, to which they replied
that a warrant was forthcoming.
The magistrate judge recommended that the district court deny Mustelier’s
motion. He found that “the police officer’s testimony was credible when he testified
that he asked if he could come in with her to retrieve the shirt.” The magistrate judge
reasoned that it “ma[de] sense that he wouldn’t want her to go into the home without
somebody watching her because of the danger that she could come out with a
weapon or with someone else that was dangerous.” In addition, he found that the
officers’ testimony was “credible and believable” and that “the consent was proper
consent under the law, that it was not coerced.” The magistrate judge did not credit
Lima’s testimony since she “ha[d] a substantial reason to help” Mustelier because
of their “long relationship” and because of how he faced a “considerable amount of
time in jail if . . . convicted in this matter.” For the same reasons, the magistrate
judge did not find Lima’s mother’s testimony credible.
Mustelier filed objections to the magistrate judge’s report and recommenda-
tion. He argued that the magistrate judge should not have credited the Government
witnesses’ testimony because, while the defense witnesses had a relationship with
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Mustelier, the Government witnesses had a parallel motive to fabricate their ac-
counts: covering up an unlawful entry into the home.
The district court overruled Mustelier’s objections and adopted the magistrate
judge’s recommendation. The case subsequently proceeded to trial.
B. The Court’s Jury Selection Procedure
At the outset of jury selection, the court informed the parties that the Govern-
ment had six peremptory challenges and the defense had ten. The court instructed
the parties to announce their decisions as to each individual juror in this order: first,
the Government, then counsel for Mustelier, then counsel for Pineda, and finally
counsel for Diaz. In the course of jury selection, the lawyers for defendants con-
sulted with each other on the defendants’ side of the courtroom. Counsel for Diaz
later asked the court to clarify how many peremptory challenges the defense had in
total. The court reiterated that the defense collectively had ten peremptory chal-
lenges, based on what “the rules sa[id].” The judge further suggested the defense
“be frugal” with their peremptory challenges. Counsel for Diaz asked that the de-
fense lawyers be permitted to consult with each other in private (apparently meaning
outside the courtroom or in the courtroom when no one else was present) and, after
the defense exhausted their peremptory challenges, requested additional peremptory
challenges. The court refused both requests. The Evidence at Trial
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i. The Jewelry-store Robberies
On the morning of August 8, 2016, the employees of Luany Jewelers heard a
“very loud sound” and then saw men come through the wall between the jewelry
store and an adjacent retail space. They were dressed in black and wore masks cov-
ering their faces. The men threw the employees to the ground before asking one of
the employees to lead them to the store’s safes and open them. One of the employees
saw that one of the men had a red tattoo that went from his lower back to his neck,
which she saw through openings in his clothing. Another one of the men was a
“somewhat older person,” which the employee knew because she could see wrinkles
around his eyes.
Police later found that the men had cut the deadbolt of the door to the adjacent
retail space and had made a hole in the shared wall between that space and jewelry
store. The men had taken the store’s security recordings and left their power tools
behind. The owner of Luany Jewelers estimated that he had lost between $250,000
and $500,000 worth of property in the robbery.
On the morning of September 3, 2015, the employees of Ariel’s Jewelry were
preparing for work when the wall between the store and the adjacent retail space
“[j]ust collapsed.” Men in construction boots came through the hole and pinned
them to the ground. Then, the men handcuffed the employees and asked the em-
ployees where the safes and surveillance equipment were. The men took the store’s
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inventory away in duffel bags. Law enforcement found that the store’s security re-
cordings were missing and that the men had left their power tools behind.
On the morning of August 8, 2016, the owner of Real Deal Jewelry was pre-
paring for work at his store when he heard something hit the wall from the direction
of an adjacent retail space. He looked at his security-camera video and saw three
men in the back alley of the shopping center holding bags. He called the police and
left the store. Three different employees of Real Deal Jewelry later each separately
identified Diaz as someone who had visited the store prior to that date.
ii. The Recorded Motel Meetings
Janet Hernandez, a confidential informant, told law enforcement that she was
aware of the August 8, 2016, attempted robbery and worked with the Hialeah Police
Department to set up meetings with Pineda. The meetings took place in a motel
room on August 12, 13, and 14, 2016, and law enforcement arranged for surveillance
equipment to record the conversations in the room. Janet2 attended the meetings
with her acquaintance “Eddie,” who was also a confidential informant. Pineda’s
wife, Diaz, was present for much of the time as well.
The jury heard the audio recordings of the motel meetings. During the August
12 meeting, Pineda told Janet that he could get her two SIG Sauer pistols and
2
To avoid confusion with Sergeant Barbaro Hernandez, whom we have previously dis-
cussed and discuss further later in this opinion, we refer to Janet Hernandez as “Janet.”
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bragged that the media had referred to him as a “magician” for being able to rob
stores that others could not rob. He told Janet that he targeted jewelry stores because
most of the employees were women and because they were never armed. He showed
off some of his equipment, including gun holsters, ski masks, and handcuffs, and
described to her how the August 8 burglary had gone wrong. Pineda told Janet that
his team included his wife, who was Diaz; a person he referred to as “the cousin”;
and a person he referred to as “old man.” Pineda said that the “old man” was his
mistress Karina’s father. And Pineda’s mother told the jury Pineda’s mistress was
Karina Mustelier, defendant Mustelier’s daughter.
During the August 13 meeting, Janet, Pineda, and Diaz discussed guns and
bullet-proof vests. Pineda said that the SIG Sauers that he had mentioned were avail-
able and that their serial numbers had been erased. While discussing bullet-proof
vests, Diaz researched types of vests on her phone. Pineda described Diaz’s role to
Janet. Diaz was “good with all of it” except the robbery itself, Pineda said, so she
would go to the stores in advance with the couple’s daughters to scope out the secu-
rity system and employees at the store. Diaz told Janet that she was “there for
[Pineda] whenever he need[ed]” her. Apparently to gain Janet’s trust, Diaz offered
to “bring” Janet her daughters, which Janet understood to mean that Janet would
thereby have leverage over Pineda and Diaz if they were to go back on any agree-
ment they might have.
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During the August 14 meeting, Pineda told Janet that he planned to “rob se-
curity officers” to acquire guns for her, and Janet told him not to do that. Instead,
Janet asked for the SIG Sauer pistols that Pineda had said were available. Pineda
told her he would have to go get them, decide on a price, and bring the “old man” so
that Janet could meet him.
During this meeting, Detective Yerani Mirabal of the Hialeah Police Depart-
ment was working surveillance. When Pineda left the motel, Mirabal followed him
to 256 East 21st Street. Pineda knocked on the front door of the house, and Mustelier
answered. They talked, went to a parked car, and removed a black bag from its
trunk. The two looked inside the bag and shook hands before Pineda left.
Officers arrested Pineda later that night. Post-arrest photos revealed that on
his back, he had a large, “predominantly orange” tattoo depicting a tiger. Officers
arrested Mustelier at his home.
iii. The Search of Mustelier’s House and Pineda’s Car
As we previously noted, officers executed a search warrant on the home where
Mustelier lived. In Mustelier’s room, they found two nine-millimeter SIG Sauer
semi-automatic handguns that had their serial numbers erased. They also found five
pairs of handcuffs; a diamond tester; a gold, silver, and platinum testing kit; a ma-
chine used to detect fake money; a “radio frequency bug detector”; a “stone magni-
fying glass”; and a “stone measuring tool.” In another bedroom of the house, they
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discovered “a lot of jewelry” inside various containers. In several sheds on the prop-
erty, they located construction equipment and a duffel bag with a handcuff key inside
of it. In total, law enforcement found over 400 pieces of jewelry inside the house.
Jewelry-store employees identified some of the jewelry pictured in Government Ex-
hibits 38A-H, 66, 67, and 68 as jewelry from Ariel’s Jewelry and Luany Jewelers.
Officers also searched Diaz’s car, which Pineda primarily used, and found
two-way radios, power tools, and holsters for handcuffs and guns.
C. Pineda’s Restraints During Trial
During trial, Pineda wore ankle restraints. Defendants and their lawyers sat
directly across from the jury at an L-shaped table with a skirt that shielded Pineda’s
ankle restraints from the jury’s view. After Pineda testified in his own defense,
counsel for Diaz moved for a mistrial because Pineda had walked to the stand while
still in ankle restraints. Counsel for Pineda joined the motion, adding that the jury
must have noticed the ankle restraints. Counsel for Pinea explained that she had not
raised the objection at the time because she did not “want to make a bigger ado about
it.”
To resolve the matter, the court took pictures of the courtroom from the per-
spective of the jury. After reviewing those photos and the courtroom, the district
judge made a factual finding that the path between counsel’s table and the stand was
covered except for a “little gap” between the witness stand and where an interpreter
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usually sat, but that the additional interpreter had been in the gap blocking the jury’s
view. So counsel for Pineda argued that the jury might also have heard the sounds
of Pineda’s ankle restraints.
At the conclusion of the Government’s case, counsel for Pineda renewed her
motion for a mistrial based on Pineda’s restraints. Addressing the argument that the
jury might have heard the sound of the ankle restraints, the court asked the court
reporter to play the audio from when Pineda walked from counsel’s table to the wit-
ness stand. After the court reporter played the audio, the court said, “I will tell you
that I did hear it at the beginning when it actually occurred slightly. I didn’t hear it
this time when I’m really trying to listen, for whatever it’s worth,” and denied coun-
sel’s motion for a mistrial. The audio recording is not a part of the record on review.
D. The Verdicts
The jury found Pineda and Mustelier guilty on all of the charges against them.
The jury found Diaz guilty of conspiring to commit Hobbs Act robberies and not
guilty of the substantive charge of attempting to rob Real Deal Jewelry.
E. Sentencing
As relevant to this appeal, the pre-sentence investigation report (“PSI”) for
Diaz concluded that her testimony had been false because the jury implicitly rejected
it. Accordingly, the PSI recommended an increase to the offense level based on
obstruction of justice. Her PSI also recommended a decrease based on her limited
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role in the offenses. Diaz objected to the obstruction-of-justice increase and argued
that the court should vary below the guidelines because Pineda had allegedly been
mentally abusive towards her, she had no prior criminal history, and she had two
children.
Mustelier’s PSI and Pineda’s PSI both calculated their base offense levels in
part based on the amount of property loss attributable to their crimes. The PSIs
suggested a two-level increase for the loss amount being between $95,000 and
$500,000. The PSIs also suggested a four-level increase for their roles as leaders or
organizers (or both) of the scheme. Both Mustelier and Pineda objected to those
aspects of their PSIs.
At a joint sentencing hearing, the court overruled Mustelier’s and Pineda’s
objections to the PSI’s conclusion that they had been leaders of the scheme. The
court invited argument about the loss-amount calculation. In response, the lawyers
for the defendants argued that the loss calculation was not adequately supported by
the evidence at trial because the evidence did not include an inventory of the lost
property or invoices showing the lost property’s value. The court overruled that
objection based on its recollection that the manager of one of the stores had testified
that he estimated that his store had lost about $250,000 worth of jewelry.
The court also overruled Diaz’s objections. It said that, in her testimony at
trial, she had “denied guilt,” which had not been truthful. The court declined to
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follow the PSI’s suggestion to find that Diaz had played a minor role in the crimes,
instead concluding that she played “a different role” by “casing” the jewelry stores.
The court further reasoned that the guidelines already took Diaz’s different role into
account in that the guidelines recommended an “obviously lower” sentence.
After hearing the parties’ arguments on sentencing, the court imposed its sen-
tences. It sentenced Diaz to 51 months in prison, Pineda to an aggregate term of 572
months in prison, and Mustelier to an aggregate term of 624 months in prison.3 In
pronouncing Mustelier’s sentence, the court did not specifically describe Mustelier’s
sentence for being a felon in possession of a firearm. However, Mustelier’s written
judgment reflected a concurrent term of 20 years in prison for that count.
3
Pineda’s term was composed of 188 months on each of the two counts for Hobbs Act
robbery (Counts 2 and 4), the one count for conspiracy to commit Hobbs Act robbery (Count 1),
and the one count for attempt to commit Hobbs Act robbery (Count 6), all to run concurrently with
one another; 84 months on the first conviction for brandishing a firearm in furtherance of a crime
of violence (Count 3), to run consecutively to the sentences on Counts 1, 2, 4, and 6; and 300
months on the second conviction for brandishing a firearm in furtherance of a crime of violence
(Count 5), to run consecutively to the sentences on Counts 1, 2, 4, 6, and 3. Mustelier’s term was
composed of 240 months on each of Counts 1, 2, 4, 6, and 7 (felon in possession of a firearm and
ammunition), all to run concurrently with one another; 84 months on Count 3, to run consecutively
to the sentences on Counts 1, 2, 4, 6, and 7; and 30 months on Count 5, to run consecutively to the
sentences on Counts 1, 2, 4, 6, 7, and 3.
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II. Discussion
A. The district court did not err in denying Mustelier’s suppression
motion
On appeal, Mustelier reiterates the factual arguments for suppression that he
made before the district court. But our review of the record reveals no clear error in
the district court’s determination that the officers had consent to enter the home.
The Fourth Amendment provides that “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and sei-
zures, shall not be violated.” U.S. Const. amend. IV. “It is a basic principle of
Fourth Amendment law that searches and seizures inside a home without a warrant
are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980).
However, “[a] search is reasonable and does not require a warrant if law enforcement
obtains voluntary consent.” United States v. Spivey, 861 F.3d 1207, 1213 (11th Cir.
2017). And a search pursuant to a party’s consent is lawful even if the party lacked
authority to give consent, as long as “the facts available to the officer at the moment”
would allow an officer “of reasonable caution” to believe that the consenting party
had authority over the premises. Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990);
United States v. Barber, 777 F.3d 1303, 1305 (11th Cir. 2015).
We review for clear error the factual determinations of the district court in
denying a suppression motion. United States v. Barron-Soto, 820 F.3d 409, 415
(11th Cir. 2016). Further, credibility determinations fall “within the province of the
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factfinder,” and we will disrupt them only if the court’s ultimate conclusion was “so
inconsistent or improbable on its face that no reasonable factfinder could accept it.”
United States v. Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004). Here, the court’s
decision to credit the officers’ testimony over the defense witnesses’ version of
events was not clear error.
Mustelier did not present his remaining arguments to the trial court, so they
are subject to plain-error review. United States v. Cavallo, 790 F.3d 1202, 1237
(11th Cir. 2015). He identifies some discrepancies between Hernandez’s testimony
and Ramos’s testimony, but the trial court’s decision to credit their account despite
those discrepancies was not plain error. Further, Mustelier suggests that the court’s
decision was erroneous because Lima lacked authority to consent. But the problem
for Mustelier here is that, at a minimum, Lima had the apparent authority to give
Hernandez consent to enter. See Rodriguez, 497 U.S. at 188-89. In short, we find
no error in the district court’s resolution of Mustelier’s motion to suppress.
B. The district court’s jury-selection procedure was not an abuse of
discretion
On appeal, Mustelier and Diaz argue that the jury-selection procedure inter-
fered with their lawyers’ ability to exercise peremptory challenges and that the
court’s refusal to grant the defense more peremptory challenges was an abuse of
discretion. We disagree.
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We review for abuse of discretion the district court’s procedure to regulate the
selection of jurors and the parties’ exercise of peremptory challenges. United States
v. Isom, 88 F.3d 920, 923 (11th Cir. 1996). Rule 24 of the Federal Rules of Criminal
Procedure provides that, in a non-capital felony case, “[t]he government has 6 per-
emptory challenges and the defendant or defendants jointly have 10 peremptory
challenges.” Fed. R. Crim. P. 24(b)(2). The rule also says that “[t]he court may
allow additional peremptory challenges to multiple defendants, and may allow the
defendants to exercise those challenges separately or jointly.” Fed. R. Crim. P.
24(b).
“The exercise of peremptory challenges is a statutory- or rule-based right, and
is ‘not of federal constitutional dimension.’” United States v. Lopez, 649 F.3d 1222,
1242 (11th Cir. 2011) (quoting United States v. Martinez-Salazar, 528 U.S. 304, 311
(2000)). And we have previously held that the district court “is not required to give
the defense side any extra peremptory challenges in multiple defendant trials.” Id.
(citing Stilson v. United States, 250 U.S. 583, 586-87 (1919)).
Diaz argues that the district court abused its discretion by not allowing the
defense lawyers to confer with each other privately and further abused its discretion
when it refused to give the defense additional peremptory challenges. But as it per-
tains specifically to “the use of the peremptory challenges in jury selection,” Diaz
has not alleged that there was “any actual conflict” among the defendants, and she
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has not shown that “the jury as finally selected was other than representative and
impartial.” United States v. Hooper, 575 F.2d 496, 498 (5th Cir. 1978). Diaz did
not argue in her opening brief that any of the defendants’ denied for-cause challenges
should have been granted, though she does raise the issue in reply. By failing to
raise the argument in her opening brief, Diaz robbed the Government of its usual
opportunity to respond to it. For that reason, we generally find that an appellant
abandoned such an argument and decline to reach it. Hornsby-Culpepper v. Ware,
906 F.3d 1302, 1306 n.1 (11th Cir. 2018). We therefore do not need to address
whether the district court’s procedure was an abuse of discretion since, assuming
arguendo that it was, Diaz has not shown that the error was prejudicial. Hooper,
575 F.2d at 498.
In this case, however, in a supplemental-authority filing and at oral argument,
the Government had an opportunity to respond to Diaz’s argument that two of her
for-cause challenges should not have been denied. In particular, Diaz asserted that
the district court should have allowed her to strike Jurors Vaughn and St. Felix.
Vaughn’s father, who died before trial, was previously a chief of police at a
different police department than any involved in this case. The court specifically
asked her whether that was “going to make [her] feel towards one side or another,”
and she responded, “No, Sir.” As for St. Felix, Diaz complained she should have
been stricken for cause because, as a dental hygienist with a full schedule and no
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coverage, she sought to be excused from jury duty. But like Vaughn, St. Felix ex-
pressly stated that she could “be fair to all sides,” regardless. On this record, there
is no basis for finding that the district court erred in declining to excuse Vaughn and
St. Felix for cause. Therefore, as an independent basis for affirming the district
court’s jury-selection procedure, we conclude that Diaz has not shown that she was
prejudiced by it because she has not demonstrated that her jury was other than rep-
resentative and impartial.4
Mustelier similarly argues that the district court’s jury-selection procedure vi-
olated his right to a trial by an impartial jury. However, like Diaz, he has failed to
show that any partial juror was seated over his objection. Indeed, he was able to
exercise the majority of the defendants’ 10 allotted peremptory challenges, and the
district court granted every one of his for-cause challenges.
C. The evidence of Mustelier’s guilt was legally sufficient
On appeal, Mustelier argues that the evidence of his guilt was legally insuffi-
cient because none of the store employees identified him as one of the robbers and
because the evidence found at his home was “perfectly consistent with legal activi-
ties.”
4
At oral argument, counsel for Diaz also suggested that the district court’s jury-selection
procedure was an abuse of discretion because it did not allow the defense lawyers further time to
question the particular jurors whom she identifies in her brief. But Diaz did not argue in her briefs
that the district court’s procedure was an abuse of discretion for this reason, so she has abandoned
her argument to that effect. Hornsby-Culpepper, 906 F.3d at 1306 n.1
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We review de novo the denial of a Rule 29 motion for a judgment of acquittal,
viewing the evidence in the light most favorable to the Government and making all
reasonable inferences and credibility choices in the Government’s favor. United
States v. Cooper, 926 F.3d 718, 734 (11th Cir. 2019). Viewing the evidence at trial
in the light most favorable to the jury’s verdict, we conclude the evidence of Mus-
telier’s guilt was legally sufficient. The jury heard the recordings of the motel meet-
ings in which Pineda told Janet that he pulled robberies with the “old man,” who was
his mistress’s father. Pineda’s mother told the jury that Pineda’s mistress was Karina
Mustelier, defendant Mustelier’s daughter. Putting two and two together, the jury
was entitled to conclude that Mustelier was the “old man” who pulled robberies with
Pineda.
The jury also heard testimony that, after Pineda told Janet that he would re-
trieve the SIG Sauer pistols and bring the “old man” for her to meet, Pineda went
directly to Mustelier’s home, which is where law enforcement later found two SIG
Sauer pistols. And powerful evidence also showed that inside Mustelier’s residence,
law enforcement found some of the jewelry taken from the robbed stores. Plus, one
of the jewelry-store employees testified that one of the robbers had wrinkles by his
eyes. Based on that evidence, a reasonable jury could conclude that Mustelier was
guilty of the charged crimes.
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D. The district court did not abuse its discretion when it declined to
compel disclosure of the identity of “Eddie”
At the end of the first day of trial, counsel for Diaz asked the court to order
the Government to reveal the identity of “Eddie,” the non-testifying confidential in-
formant who had attended the recorded motel meetings with Janet. Counsel asked
the court for an opportunity to explain his motion in camera because his reason for
asking for the informant’s identity involved the content of Diaz’s potential testi-
mony. The court did not allow counsel to explain the basis for the motion in camera
and denied the motion.
On appeal, Diaz argues that if she had received the opportunity to explain her
motion in camera, she would have revealed to the court that she planned to testify
that “Eddie” had told her to go along with whatever Pineda told Janet and that she
was not involved in the robberies. And, she said, Eddie’s testimony would have
corroborated her testimony. She contends that the trial court abused its discretion
by not allowing counsel to explain the basis for his motion in camera. We disagree.
We review for abuse of discretion the district court’s decision to not reveal
the identity of a confidential informant. United States v. Gutierrez, 931 F.2d 1482,
1490 (11th Cir. 1991). The Government enjoys a limited privilege to withhold from
disclosure the identity of its informants. Roviaro v. United States, 353 U.S. 53, 59-
61 (1957). But if disclosure is “relevant and helpful to the defense of an accused, or
is essential to a fair determination of a case, the privilege must give way.” Id. at 60-
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61. There is no “fixed rule with respect to disclosure,” but the decision “calls for
balancing the public interest in protecting the flow of information against the indi-
vidual’s right to prepare his defense . . . taking into consideration the crime charged,
the possible defenses, the possible significance of the informer’s testimony, and
other relevant factors.” Id. at 62. Applying that balancing test, we have focused on
three factors: (1) the extent of the informant’s participation in the criminal activity,
(2) the directness of the relationship between the defendant’s asserted defense and
the probable testimony of the informant, and (3) the government’s interest in non-
disclosure. United States v. Gutierrez, 931 F.2d 1482, 1490-91 (11th Cir. 1991);
United States v. Tenorio-Angel, 756 F.2d 1505, 1509 (11th Cir. 1985).
Importantly, the burden to show that the identity of the confidential informant
should be revealed falls on the defendant seeking the release of that information.
Gutierrez, 931 F.2d at 1491; Tenorio-Angel, 756 F.2d at 1511. Here, though the
district court denied Diaz’s motion to disclose the confidential informant’s identity,
it left the door open to reconsider the request if counsel renewed it after Diaz testi-
fied, as counsel announced she would. Notably, though, counsel did not renew his
request to disclose Eddie’s identity after Diaz testified to her version of events. And
Eddie’s identity was made known to Diaz during trial. On cross-examination,
Pineda stated that Eddie was his drug dealer, that Eddie’s true name was Jose Edu-
ardo, and that Eddie met with him regularly.
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But even if we overlook counsel’s decision not to renew the motion to disclose
the informant’s identity, “[m]ere conjecture about the possible significance of [the
confidential informant’s] testimony is insufficient to compel disclosure.” Gutierrez,
931 F.2d at 1491 (citing United States v. Kerris, 748 F.2d 610, 614 (11th Cir. 1984)).
Yet here, that’s all the record contains.
Diaz does not point to any evidence that Eddie would have corroborated her
planned testimony that he had instructed her to pretend to go along with the meetings
despite her having had no involvement in the robberies. She offers only “pure con-
jecture” about what “Eddie” might have described at trial. Gutierrez, 931 F.2d at
1491.
Her situation is entirely unlike the facts of United States v. Rutherford, 175
F.3d 899 (11th Cir. 1999), upon which she relies. In Rutherford, the defendant was
accused of doing a drug deal with two confidential informants. 175 F.3d at 901-902.
At trial, the defendant’s civil lawyer testified at the defendant’s criminal trial that he
had been with the defendant at the time of the supposed transaction. Id. The trial
court denied the defendant’s motion to compel production of the informants’ identi-
ties. Id. We reversed the district court’s decision, since the civil lawyer’s testimony
“established [a] direct relationship between [the defendant’s] defense and the testi-
mony sought.” Id. at 902. Here, by contrast, Diaz does no more than speculate that
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the informant’s testimony would be helpful to her defense, without pointing to any
indication in the record that supports her theory.
Plus, Diaz’s post-Miranda statement contradicted her suggestion in her trial
testimony that Pineda talked and bragged about the robberies at the meeting only
because he was going to be paid to do so, not that he had actually participated in the
robberies. In her post-Miranda statement, for example, she gave complete details
on how she understood Pineda and the “old man” executed the robberies—details
she said she had overheard Pineda discuss in telephone conversations with others
before Pineda was ever arrested. This further indicates that Diaz’s argument that the
informant’s testimony would have been helpful was no more than speculation.
Ultimately, even if Diaz had had an opportunity to explain the basis for her
motion to compel the identity of the confidential informant, the district court would
have not have abused its discretion in denying the motion.
E. The district court did not abuse its discretion by admitting evidence
of Pineda’s prior bad acts
During trial, the district court admitted Pineda’s recorded statements in which
he discussed the charged robberies as well as other, unspecified prior crimes. The
district court denied a motion for a mistrial based on the admission of the evidence
about other crimes. On appeal, Pineda argues that the recordings of him discussing
other crimes should not have been admitted into evidence. We disagree.
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In general, relevant evidence is admissible. Fed. R. Evid. 402. Evidence is
relevant if “it has any tendency to make a fact more or less probable that it would be
without the evidence” and if “the fact is of consequence in determining the action.”
Fed. R. Evid. 401. Under Rule 404, “[e]vidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” Fed. R. Evid.
404(b)(1). But, the rule provides that evidence of a prior bad act “may be admissible
for another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid.
404(b)(2). Even where evidence is relevant, a court may exclude it “if its probative
value is substantially outweighed by the risk of,” among other things, “unfair preju-
dice.” Fed. R. Evid. 403.
We review a district court’s decision to admit evidence for an abuse of discre-
tion. Barron-Soto, 820 F.3d at 415. In balancing evidence’s probative value against
its unfair prejudice, we “look at the evidence in a light most favorable to its admis-
sion, maximizing its probative value and minimizing its undue prejudicial impact.”
United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006).
When we apply those standards, we conclude the district court did not abuse
its discretion when it admitted the evidence that Pineda says should have been ex-
cluded. To the extent that the recording of Pineda boasting about his ability to rob
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jewelry stores referred to his efforts in the charged robberies, those statements were
relevant and admissible to prove his guilt of the charged crimes. And to the extent
that his boasting referred to uncharged robberies, we have previously stated that “ev-
idence of uncharged conduct that is part of the same scheme or series of transactions
and uses the same modus operandi as the charged offenses is admissible as intrinsic
evidence outside the scope of Rule 404(b).” United States v. Ford, 784 F.3d 1386,
1394 (11th Cir. 2015). Pineda’s robbery spree, a string of idiosyncratic heists, is
exactly that sort of scheme.
Pineda’s statements about selling the confidential informant guns were also
admissible. A key issue at trial was Mustelier’s identity as one of the robbers. After
Pineda told the confidential informant that he would retrieve the SIG Sauer pistols
to sell her and also bring the “old man” for her to meet, Pineda proceeded to Mus-
telier’s address. And two SIG Sauers were subsequently found in Mustelier’s room.
That evidence was all admissible to prove that Mustelier was the “old man” who had
participated in the robberies.
Evidence of Mustelier’s possession of false identification was admissible as
well. As we have previously stated, an accused’s “assumption of a false name, and
related conduct, are admissible as evidence of consciousness of guilt, and thus of
guilt itself.” United States v. Borders, 693 F.3d 1318, 1324 (11th Cir. 1982).
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Pineda also argues that the evidence we have discussed above in this section
should have been excluded under Rule 403. Viewing that evidence in the light most
favorable to its admission, however, we conclude there is no question that the iden-
tified evidence was admissible. Smith, 459 F.3d at 1295.
F. The Government’s loss of a Home Depot receipt did not violate due
process
During Detective Gene Delima’s testimony, counsel for Diaz asked him to
produce a Home Depot receipt found during law enforcement’s search of Diaz’s car
and pictured in a photograph. Delima responded that the receipt should be in evi-
dence. Outside of the presence of the jury, the court ordered the Government to
produce the receipt. Delima later testified that he had looked for the receipt but that
he could not find it. Counsel for Diaz moved to dismiss the case on the basis that
the photographs of the receipt did not show the receipt’s date and that the date of the
receipt would have been exculpatory. The district court denied the motion.
On appeal, Diaz argues that the Government’s loss of the Home Depot receipt
violated Brady v. Maryland, 373 U.S. 83 (1963), because the receipt was exculpatory
and that the Government violated Arizona v. Youngblood, 488 U.S. 51 (1988), be-
cause it failed to preserve potentially useful defense evidence.
The district court’s conclusion that the loss of evidence did not violate the Due
Process Clause presents a mixed question of law and fact, and we review the court’s
factual conclusions for clear error and legal conclusions de novo. United States v.
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Brown, 9 F.3d 907, 910 (11th Cir. 1993). The district court did not err when it denied
Diaz’s motions.
To establish a violation of due process under Brady, a defendant must “prove
that the prosecution withheld favorable evidence and that he was prejudiced as a
result.” United States v. Hano, 922 F.3d 1272, 1292 (11th Cir. 2019) (quotation
marks omitted). A Brady claim is subject to a “materiality requirement,” meaning
that Pineda must also “raise a reasonable probability . . . that had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” Id.
A “reasonable probability” is “a probability sufficient to undermine confidence in
the outcome.” Id.
To establish a violation of due process under Youngblood, a defendant must
show that the lost evidence “was likely to significantly contribute to his defense.”
California v. Trombetta, 467 U.S. 479, 488 (1984). To prevail under Youngblood,
Pineda must also show that the evidence had both “an exculpatory value that was
apparent before the evidence was destroyed” and that it was “of such a nature that
the defendant would be unable to obtain comparable evidence by other reasonably
available means.” United States v. Brown, 9 F.3d 907, 910 (11th Cir. 1993). Further,
“failure to preserve this ‘potentially useful evidence’ does not violate the due process
clause ‘unless a criminal defendant can show bad faith on the part of the police.’”
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Illinois v. Fisher, 540 U.S. 544, 547-48 (2004) (quoting Youngblood, 488 U.S. at
58).
Pineda has not shown, as Brady requires, a reasonable probability that the
outcome of his trial would have been different had he had the Home Depot receipt.
Neither has he demonstrated that the receipt was likely to significantly contribute to
his defense, as is required to show a Youngblood violation. Pineda argues that the
receipt would have post-dated the charged robberies and that it would have shown
that power tools found in the car were not evidence of the robberies. But the jury
heard the recordings of Pineda himself describing his role in the robberies in detail,
so a receipt post-dating the robberies would have been unlikely to persuade the jury
that he was not involved. And perhaps more importantly, the jury heard testimony
that the robbers had left their power tools behind at each jewelry store after the rob-
bery, which would have logically necessitated the purchase of new power tools after
each robbery. So even if the receipt post-dated the charged robberies, the jury would
have been just as likely to surmise that it was inculpatory as exculpatory.5
G. Pineda’s ankle restraints did not deny him a fair trial
Pineda argues that the district court should have granted his motion for a new
trial because he had ankle restraints on when he walked to the witness stand to
5
Even if Pineda could demonstrate that the receipt would have significantly contributed to
his defense, his Youngblood claim would still fail because he cannot show that the Government
acted in bad faith. In fact, Pineda’s brief does not even allege bad faith on the Government’s part.
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testify. The Government concedes that it was error for the district court to allow
Pineda to testify while wearing the restraints but argues that the error was harmless
beyond a reasonable doubt because the district court did not clearly err when it found
that the jury was not aware of the restraints. Reviewing the district court’s findings
of fact for clear error, and its determination that the error was harmless de novo, see
Mason v. Allen, 605 F.3d 1114, 1123 (11th Cir. 2010), we affirm the district court’s
finding that the error was harmless beyond a reasonable doubt.
In Deck v. Missouri, the Supreme Court held,
[T]he Fifth and Fourteenth Amendments prohibit the use
of physical restraints visible to the jury absent a trial de-
termination, in the exercise of its discretion, that they are
justified by a state interest specific to a particular trial.
Such a determination may of course take into account the
factors that courts have traditionally relied on in gauging
potential security problems and the risk of escape at trial.
544 U.S. 622, 629 (2005). In the absence of justification for the use of restraints,
their use is presumptively prejudicial. Id. at 633. However, the prosecution can
rebut that presumption by proving, beyond a reasonable doubt, that the error did not
contribute to the verdict. Id.; Jones v. Sec’y, Fla. Dep’t of Corrs., 834 F.3d 1299,
1320 (11th Cir. 2016).
In deciding Pineda’s motion, the district court took photographs of the court-
room from the jury’s perspective and listened to the audio recording of Pineda’s
walk from counsel’s table to the witness stand. It made a factual finding that the
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jury could not have seen Pineda’s restraints because, though there was a “little gap”
where the jury might have been able to see Pineda’s restraints, an interpreter had
been in that gap and would have occluded the jury’s view. And when the court
listened to the court reporter’s audio recording from the bench, which was closer to
the court reporter and witness box than the jury box was, the district judge said that
it heard something “slightly” at “the beginning” but then, when it was “really trying
to listen” for the restraints, that it did not hear them.
We will find clear error only where we are left with a definite and firm con-
viction that a mistake has been committed. United States v. Tejas, 868 F.3d 1242,
1244 (11th Cir. 2017). Here, nothing in the record leaves us with that conviction.
We affirm the district court’s decision to deny Pineda’s motion for a mistrial because
we cannot say its findings of fact were clearly erroneous.6
H. The court’s conduct during trial was not reversible error
i. The Court’s Statement About the Jewelry Found in Mus-
telier’s Home
Mustelier argues that the district court improperly vouched for the Govern-
ment’s evidence when it referred to the jewelry found in Mustelier’s home as being
6
Since we conclude that the district court did not clearly err when it found that the jury
was not aware of Pineda’s restraints, we need not reach the argument that the Government raised
for the first time during oral argument that the error was also harmless because of the strength of
the evidence against Pineda.
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the jewelry that was taken from the robbed stores. He argues that the court should
have granted his motion for a mistrial on that basis. We are not persuaded.
During trial, counsel for Mustelier objected to testimony about jewelry found
in Mustelier’s home but not in Mustelier’s own bedroom. In response to the objec-
tion, the prosecutor explained that the Government would “have testimony” that it
was “the jewelry that was found—” and, completing the prosecutor’s sentence, the
court said, “[t]he jewelry that comes from the jewelry stores?” The prosecutor con-
firmed that the Government’s theory was that some of the jewelry found in the house
was the same jewelry taken from the robbed stores. The court concluded that the
evidence was therefore relevant and overruled the objection.
In the full context of the court’s statement, the district court did not vouch for
the Government’s evidence. Rather, the court merely acknowledged it understood
the Government’s theory of the evidence’s relevance. In describing the basis on
which it was overruling Mustelier’s objection, the court did not stray from neutrality
as Mustelier contends. United States v. Harriston, 329 F.3d 779, 789-90 (11th Cir.
2003).
ii. The Court’s Conduct Towards Counsel for Diaz
Diaz argues that the court’s conduct towards her trial lawyer in general con-
stituted advocacy in the Government’s favor. After a careful review of the record,
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we conclude that the district court did not abuse its discretion in managing the trial
proceedings.
“A district court has wide discretion in managing the proceedings” and “may
comment on the evidence, question witnesses, elicit facts not yet adduced or clarify
those previously presented, and maintain the pace of trial by interrupting or cutting
off counsel as a matter of discretion.” United States v. House, 684 F.3d 1173, 1209
(11th Cir. 2012). We find that a court abused its discretion in its exercise of those
powers only when “the judge’s conduct strays from neutrality, and even then only
when his remarks demonstrate pervasive bias and unfairness that actually prejudice
a party.” United States v. Hill, 643 F.3d 807, 846 (11th Cir. 2011).
A recurring theme at trial was counsel for Diaz’s improper questions during
cross-examination. The court routinely warned counsel against asking argumenta-
tive questions and commenting on the witness’s testimony during cross-examina-
tion. But counsel persisted in flouting the court’s clear instruction, and after several
warnings in the course of counsel’s cross-examination of Detective Martin Alvarez,
the court ended counsel’s cross-examination.7 The pattern repeated itself with
7
After warning counsel multiple times to refrain from arguing with the witness and com-
menting on the evidence, the following exchange resulted in the district court’s announcement that
counsel’s cross-examination of Alvarez was over:
Q: So this informant, snitch, that work[s] for you, if I want to bring him here, I can’t,
can I?
A: I don’t know, Sir.
Q: You lost touch with him?
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counsel’s cross-examination of Janet Hernandez, the Government’s confidential in-
formant. Counsel repeatedly asked improperly argumentative questions and made
extraneous comments during cross-examination, and the court again repeatedly
warned him against that conduct. Upon the final instance of counsel’s intransigence
and after counsel had questioned the witness for a total of roughly an hour and 40
minutes, the court ended counsel’s opportunity to cross-examine the witness. The
court later observed that it had been forced to interfere during the trial more than it
ever had and that it had “never found more need to do so.”
The court also observed that it had treated the lawyers for the defense and the
lawyers for the government in “more or less the same” way, and we agree with the
court’s assessment. The court regularly interrupted the Government’s direct exam-
inations when it said that the Government was asking leading questions and not con-
tinuing at a fast-enough pace, saying “[w]rap it up,” “[n]ext question,” “[l]et’s go.
Let’s go. Any other questions?” And just as the court directed defense counsel to
“ask [his] best questions first,” the court also told the Government to ask its “best
questions first” and prompted the Government to finish its questioning quickly. Any
difference between the court’s conduct towards the prosecutors and towards counsel
A: I no longer work in that unit. I’m a supervisory of the robbery unit now. So I no
longer work with confidential informants.
Q: Thank God.
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for Diaz is due solely to the fact that the prosecutors heeded the court’s instructions
and counsel for Diaz ignored them.
We likewise conclude that United States v. Nazarro, 472 F.2d 302 (2d Cir.
1973), does not support a different conclusion. Of course, Nazarro is not binding
on us. But even if it were, it is distinguishable. There, the district judge frequently
and “unmistakably rehabilitated a prosecution witness whose credibility had been
undermined by defense counsel.” Id. at 307. Similarly, in Nazarro, the district court
asked questions that appeared to be “designed to inject doubt or uncertainty as to the
credibility of a defense witness.” Id. Here, by contrast, the district judge did not
engage in conduct aimed at undermining or vouching for any particular witness. Ra-
ther, the district judge’s conduct was aimed instead at managing the trial.
Ultimately, we find that the district court’s conduct towards counsel for Diaz
did not fall outside its discretion to manage the proceedings and that, especially in
light of the court’s analogous conduct towards the Government, the court did not
stray from neutrality or demonstrate a “pervasive bias and unfairness that actually
prejudice[s] a party.” Hill, 643 F.3d at 846.
Nor, as Diaz asserts, did the district court’s termination of her counsel’s cross-
examination violate her Sixth Amendment rights on this record. Even assuming
without deciding that the district court erred in cutting cross-examination, any error
is subject to harmless-error review. United States v. Ndiaye, 434 F.3d 1270, 1286
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(11th Cir. 2006). Here, Diaz failed to clearly articulate on appeal how she was prej-
udiced or harmed by her inability to engage in further cross-examination of either
witness, other than to conclusively assert that they were “key witnesses.” And our
examination of the record does not reveal any prejudice or harm, either.
I. Defendants’ sentences are reasonable, with one exception
All three defendants appeal aspects of their sentences. After careful review,
we affirm their sentences—except for Mustelier’s sentence for being a felon in pos-
session of a firearm, which is illegally high. We vacate Mustelier’s sentence for that
crime and remand his case to the district court for him to be resentenced on Count
3.
Most of the arguments on appeal concern the district court’s findings of fact.
The district court was entitled to base its factual findings on “evidence heard during
trial, undisputed statements in the PSI, or evidence presented during the sentencing
hearing.” United States v. Hamaker, 455 F.3d 1316, 1338 (11th Cir. 2006). We
review those factual findings for clear error. Tejas, 868 F.3d at 1244. Where the
parties dispute a fact underlying the court’s sentence, the Government bears the bur-
den to prove the fact by a preponderance of the evidence “by presenting reliable and
specific evidence.” United States v. Rodriguez, 732 F.3d 1299, 1305 (11th Cir.
2013). We review the district court’s factual findings at sentencing for clear error,
its legal conclusions de novo, and its application of the Sentencing Guidelines with
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due deference, which is tantamount to clear-error review. Tejas, 868 F.3d at 1244.
We otherwise review the procedural reasonableness of a sentence for an abuse of
discretion. Gall v. United States, 552 U.S. 38, 41 (2007).
First, Diaz argues that her sentence is procedurally unreasonable because the
court concluded that she obstructed justice and that her role in the crimes was not
minor. We affirm her sentence.
Under United States Sentencing Guidelines Manual (“USSG”) § 3C1.1, if the
district court finds that the defendant obstructed justice or perjured herself at trial,
the district court applies a two-level increase to the offense level. United States v.
Williams, 340 F.3d 1231, 1240 (11th Cir. 2003). An increase in sentence based on
obstruction of justice is not intended to punish the exercise of a constitutionally pro-
tected right, such as denying guilt while not under oath, but the denial of guilt under
penalty of perjury warrants application of the adjustment. See USSG § 3C1.1, cmt.
(n.2). Perjury is “false testimony concerning a material matter with the willful intent
to provide false testimony, rather than as a result of confusion, mistake, or faulty
memory.” United States v. Singh, 219 F.3d 756, 763 (11th Cir. 2002). When apply-
ing § 3C1.1, the district court should make specific findings as to each alleged in-
stance of obstruction of justice, but it may make a general finding if the record
demonstrates that the defendant gave sworn testimony that was willfully and mate-
rially false. Id. at 763, 763 n.4.
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Here, the district court found that Diaz’s testimony at trial had been perjury.
At trial, the jury heard the recorded audio of the motel meetings, in which Diaz said
that she supported Pineda’s jewelry-store-robbery schemes by gathering information
about the stores in advance of the robberies. When Diaz testified in her own defense,
she told the jury that she made the statements in the recording only because she had
been told to go along with whatever Pineda said and that she had not in fact been
involved in the robberies.
Diaz argued that the district court should not have concluded that her testi-
mony was perjury because her testimony only added context to her recorded state-
ments without denying that she had made those statements. She renews that argu-
ment on appeal. But Diaz’s testimony materially contradicted her recorded state-
ment. In the recording, she purported to support Pineda’s scheme. In her testimony,
she denied playing any role. Yet significantly, in convicting her of the conspiracy
count, the jury clearly rejected Diaz’s testimony. We therefore cannot say that the
district court, which also had the opportunity to assess Diaz’s “demeanor, apparent
sincerity, intonation, expression, gesticulations, and a wide range of other consider-
ations that are pertinent in determining” whether she perjured herself, clearly erred
when it found that her recorded statement had been the truth and her testimony false.
Williams, 340 F.3d at 1240.
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Diaz also argues that the district court should have found that she played a
minor role in the crimes. But again, we find no reversible error.
When determining whether to apply a minor-role reduction under USSG §
3B1.2(b), courts should consider (1) the defendant’s role in the relevant conduct for
which she is being sentenced and (2) her role as compared to the other participants
in the criminal conduct. United States v. Cruickshank, 837 F.3d 1182, 1192 (11th
Cir. 2016). Courts should also consider the defendant’s understanding of the scope
of the crime, participation in the planning or organization of the crime, degree of the
defendant’s decision-making authority, and how much the defendant stood to benefit
from the crime. See USSG § 3B1.2, cmt. (n.3(C)). The sentencing court need not
make specific factual findings; “a simple statement of the district court’s conclusion”
is sufficient as long as it resolves the disputed factual issues. United States v. De
Varon, 175 F.3d 930, 939 (11th Cir. 1999) (en banc). Here, the district court deter-
mined that Diaz did not play a minor role because she played a “different” role in
the crime, helping to plan the robberies and supporting her husband’s role. It was
not clear error for the district court to find that Diaz’s role was not minor.8
8
Diaz also appears to argue that the district court erred because it did not refer to the factors
described in 18 U.S.C. § 3553(c). To the extent that Diaz presents that argument to us, we reject
it, since the record reflects that the district court did, in fact, expressly consider those factors.
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Next, we turn to Pineda’s and Mustelier’s sentences. We affirm those sen-
tences for the substantive Hobbs Act robbery convictions and for the conspiracy
conviction.
Pineda and Mustelier argue that the district court clearly erred when it found
that their crimes caused at least $95,000 worth of property loss. Under USSG §
2B3.1, a district court determines the offense level for robbery by taking account of,
among other things, the resulting property loss. That guideline considers the “value
of the property taken, damaged, or destroyed.” USSG § 2B3.1, cmt. (n.3). Loss
calculations need not be made with precision and need be only a reasonable estimate,
given the available information. USSG § 2B1.1, cmt. (n.4(C)). Nevertheless, the
amount of loss must be proven by a preponderance of the evidence and with “reliable
and specific evidence.” United States v. Medina, 485 F.3d 1291, 1304 (11th Cir.
2007).
Here, the district court pointed to trial testimony from the manager and owner
of Luany’s Jewelry, who said that the store had lost $17,000 in cash and between
$250,000 and $500,000 in jewelry. At oral argument, counsel for Mustelier empha-
sized that the owner testified that he did not personally maintain the store’s inven-
tory, that an employee would inventory and photograph the jewelry in the store every
few months, and that the inventory he provided to law enforcement therefore did not
accurately reflect the precise inventory of the store on that date.
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For the purposes of determining whether the property loss attributable to de-
fendants’ crimes was at least $95,000, the store owner’s approximation was reliable
and specific enough to support the district court’s conclusion. The district court was
entitled to presume that the jewelry-store owner was generally familiar with the
store’s books and the approximate value of the store’s inventory.
This case is unlike United States v. Sheffield, ___ F.3d ___, 2019 WL 4784937
(11th Cir. Oct. 1, 2019), on which Mustelier relies. In Sheffield, we held that when
losses are “definite and easy to calculate,” precision is required in determining the
amount of restitution the defendant must pay. Id. at *3. Assuming without deciding
that this rule applies equally to determining loss amount for purposes of establishing
the correct loss enhancement to apply to the base offense level, here, the jewelry-
store owner attested that he could not precisely calculate the loss because inventory
varied on a daily basis. In addition, jewelry that was recovered from Mustelier’s
home was not all of the stolen jewelry, as it was not located until more than a year
after the robbery. Here, even the low end of the approximation the jewelry-store
owner provided during trial—between $250,000 and $500,000—far exceeded the
$95,000 threshold in the Sentencing Guidelines.
Jewelry-store employee Martinez’s statements also do not undermine the re-
liability of the store owner’s testimony. Mustelier notes that Martinez identified as
stolen from her jewelry store only eleven of 364 pieces of jewelry seized from
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Mustelier’s residence. But significantly, the jewelry was not seized from Mustelier’s
residence until roughly 15 months after the robbery of the store occurred, leaving
Mustelier substantial time to dispose of items. And the question the district court
had to answer was the value of the property taken from the jewelry stores, not the
value of the property recovered more than a year later from Mustelier’s residence.
The district court likewise did not err when it increased the offense levels for
Pineda’s and Mustelier’s sentences for being “an organizer or leader of a criminal
activity that involved five or more participants or was otherwise extensive.” USSG
§ 3B1.1(a). Notably, the defendant need not be the sole leader of a conspiracy to be
an organizer or leader within the meaning of the Sentencing Guidelines. United
States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005).
Here, unobjected-to facts in Pineda’s and Mustelier’s PSIs support the district
court’s decision to increase their offense levels based on their leadership roles. The
PSIs described how the robberies involved at least five people, including Mustelier,
Pineda, Diaz, Pineda’s cousin, and another “big and tall” man. They described how
much of the equipment was stored at Mustelier’s house, which indicated that he ex-
ercised some degree of control over the robberies’ execution. And while Pineda
characterized Mustelier as the “brain of the organization,” Pineda also recruited his
own crew, acquired his own equipment, and directed others to gather information
about the targeted stores. In light of those facts, the district court did not clearly err
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when it determined that both Pineda and Mustelier 9 were organizers or leaders of the
criminal organization.
Finally, we agree with Mustelier that we must vacate his sentence for his con-
viction for being a felon in possession of a firearm. By statute, a conviction for
violating 18 U.S.C. § 922(g)(1) carries a maximum sentence of 10 years in prison.
18 U.S.C. § 924(a)(2). As the Government concedes, Mustelier’s 20-year sentence
for that crime is illegally high. We therefore vacate it and remand his case so that
he can be resentenced on that count.
III. Conclusion
We affirm the defendants’ convictions. And with the exception of Mus-
telier’s sentence for possessing firearms on Count 7, we affirm the defendants’ sen-
tences. We vacate Mustelier’s sentence for possessing firearms and remand his
case for resentencing on that count.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
9
In his briefs, Mustelier had also argued that the district court did not adequately explain
its variance relating to Mustelier’s criminal history. At oral argument, however, Mustelier with-
drew that argument, based on a review of the district court’s statement of reasons supporting the
sentence it imposed. We therefore do not address that argument.
44