[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 05-10544 ELEVENTH CIRCUIT
MAY 30, 2006
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 03-20719-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELIX UGARTE,
DANIEL BATLLE,
Defendants-Appellants.
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Appeals from the United States District Court
for the Southern District of Florida
----------------------------------------------------------------
(May 30, 2006)
Before EDMONDSON, Chief Judge, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Felix Ugarte and Daniel Batlle appeal their convictions and 27 and 33-
month sentences, respectively, for conspiracy to possess and possession of stolen
goods--cellular phones taken from a tractor-trailer--in violation of
18 U.S.C.
§§ 371 and 659. No reversible error has been shown; we affirm.
Batlle argues that the government presented insufficient evidence to show
(1) that he intended to deal in stolen goods and (2) that he knew that the cellular
phones were stolen. We review challenges to sufficiency of the evidence de novo.
United States v. Klopf,
423 F.3d 1228, 1236 (11th Cir. 2005). We view the
evidence in the light most favorable to the government and draw all reasonable
inferences and credibility choices in favor of the jury’s verdict.
Id. (citation and
quotation marks omitted). Knowledge that goods are stolen is an “essential
element” of a § 659 conviction. United States v. Forrest,
620 F.2d 446, 450 (5th
Cir. 1980).
Batlle contends that the evidence showed only that, based on the phones’
low price and on Ugarte’s assertions, he thought the phones were defective, not
stolen. We disagree. The evidence demonstrated that, in October 1998, Batlle
acted as a middleman and bought the phones for $8 each. Two of Batlle’s co-
conspirators testified that they knew the phones were stolen and that they bought
the phones from Batlle for a much lower price than the wholesale price. Another
co-conspirator said that, after police followed him while he was delivering the
2
phones, Batlle assured him that the phones were “cold”: that law enforcement was
not looking for the phones because the theft was not widely known.
Undercover investigator Hugo Gomez testified that Batlle informed Gomez
when they first met in 1997 that he had been involved in other stolen goods
transactions. After investigation, Gomez determined that the thefts Batlle
described actually had occurred. Gomez testified that he and Batlle then arranged
for the sale of stolen jeans, a deal that fell through when Batlle discovered that
Gomez was an agent. And private citizen Juan Gispert, who assisted the FBI in
undercover work, testified that Batlle in 2000 had offered to sell him a large
amount of Levi’s Dockers pants, later seized by the FBI. The foregoing evidence
is enough to support a jury determination that Batlle knew the phones were stolen.
Next, Batlle argues that, under Fed.R.Evid. 404(b), the district court erred in
admitting (1) Gomez’s testimony about Batlle’s earlier involvement with stolen
goods, and (2) Gispert’s testimony about the Dockers pants stolen in 2000.
To admit evidence of a defendant’s earlier “bad acts” under Rule 404(b), we
determine (1) whether the evidence is relevant to an issue other than the
defendant’s character, (2) whether sufficient proof exists so that a jury could
determine that the defendant committed the extrinsic act, and (3) whether the
probative value of the evidence is not substantially outweighed by its undue
3
prejudice, and whether the evidence meets the other requirements of Fed.R.Evid.
403. See United States v. Jernigan,
341 F.3d 1273, 1280 (11th Cir. 2003).
The district court abused no discretion in admitting Gomez’s testimony.
See United States v. Thomas,
242 F.3d 1028, 1031 (11th Cir. 2001) (reviewing a
district court’s evidentiary rulings for an abuse of discretion).1 And the district
court committed no error--plain or otherwise--in admitting Gispert’s testimony, to
which Batlle failed to object. See Jernigan,
341 F.3d at 1280 (reviewing
unobjected-to evidentiary rulings for plain error).
Gomez’s and Gispert’s testimony about Batlle’s involvement with stolen
goods was relevant to the central issue of Batlle’s knowledge of whether the
phones were stolen. Batlle contends that Gomez’s testimony was inadmissible
because the government did not prove that the illegal acts in which Gomez
claimed Batlle was involved occurred. But Gomez testified that his research
revealed that thefts had occurred of the items Batlle claimed he had sold. The jury
was entitled to believe Gomez’s testimony, which was enough to provide a basis
for determining that Batlle actually had handled the stolen merchandise. See
1
The government urges us to review the admission of Gomez’s challenged testimony for plain
error because, the government contends, Batlle failed to raise a specific objection to the admission
of this evidence. We need not decide whether plain error review applies: the district court properly
admitted this evidence even under an abuse-of-discretion standard.
4
United States v. Bowe,
221 F.3d 1183, 1192 (11th Cir. 2000) (government can
introduce evidence of defendant’s otherwise admissible acts if the jury could find
by a preponderance of the evidence that acts did in fact occur); United States v.
Sharif,
893 F.2d 1212, 1214 (11th Cir. 1990) (stating that “it is the jury’s
prerogative” to believe or to disbelieve a witness’ testimony). The jury could rely,
likewise, on Gispert’s testimony. And, although prejudicial, Gomez’s and
Gispert’s testimony (1) was probative on the central issue of Batlle’s knowledge
and (2) showed transactions similar to the charged offense. Further, the district
court instructed the jury that Gomez’s testimony was admitted only to show
Batlle’s knowledge that he was dealing with stolen goods. The prejudicial effect
of this evidence did not substantially outweigh its probative value.
Ugarte also claims Rule 404(b) error occurred when the district court
admitted evidence of his prior conviction for possession of VCRs stolen in late
1999. This evidence was relevant to Ugarte’s knowledge whether the phones were
stolen and his intent to deal in stolen goods. Ugarte’s prior offense involved a
conviction, to which he admitted during his testimony. See Jernigan,
341 F.3d
at 1282 (where extrinsic evidence involves a conviction, second element of Rule
404(b) inquiry is met). And the probative value of Ugarte’s conviction is not
substantially outweighed by its prejudicial effect. The circumstances surrounding
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the prior offense and charged offense are similar, the district court gave the jury a
limiting instruction, and the prior act took place only about one year before the
charged offense conduct. See Jernigan,
341 F.3d at 1282 (prior convictions
occurring two to three years before charged offense not too temporally remote for
consideration). The district court abused no discretion in admitting evidence of
Ugarte’s prior conviction.
Ugarte also argues that the district court abused its discretion in denying his
motions for mistrial and for severance.2 Ugarte contends that the cross-
examination by Batlle’s lawyer of a government witness about Batlle’s admissions
in his post-arrest statement (1) violated the court’s order that any references in the
statement to Ugarte be redacted from the statement, and (2) violated Bruton v.
United States,
88 S.Ct. 1620 (1968), because Batlle did not testify.3
The agent’s cross-examination testimony prejudiced Ugarte: it implicated
Ugarte as part of the stolen phone conspiracy. But other evidence at trial showed
(1) that Ugarte had participated in wiretapped phone conversations about the cell
2
We review a district court’s denial of these motions for an abuse of discretion. United States v.
Ramirez,
426 F.3d 1344, 1352-53 (11th Cir. 2005).
3
The government’s direct examination of the agent produced no statements directly referring to
Ugarte. But during cross-examination, Batlle’s lawyer asked questions and received answers
indicating that Batlle in his post-arrest statement said that both Ugarte and Batlle had received a
commission from the sale of the phones and that Batlle had learned of the phones from Ugarte.
6
phone transaction, (2) that officers observed Ugarte drive to a warehouse where he
unloaded boxes into a truck, in which another co-conspirator admitted to
transporting the boxes of stolen cell phones, (3) that a co-conspirator testified that
Ugarte and Batlle explained that no one knew that the phones were stolen, and
(4) that Ugarte admitted to a previous conviction for possession of stolen goods
with conduct similar to that involved in this case. In the light of all the properly
admitted testimony of Ugarte’s involvement in the conspiracy, the prejudicial
effect of the agent’s testimony about Batlle’s admission “is so insignificant . . .
that it is clear beyond a reasonable doubt that the improper use of the admission
was harmless error.” United States v. Veltmann,
6 F.3d 1483, 1500 (11th Cir.
1993) (quotation omitted).4 The district court did not abuse its discretion in
denying Ugarte’s motions for mistrial and for severance.
Ugarte next contends that the government improperly shifted the burden of
proof to him, thus violating his Fifth Amendment right against self-incrimination.
He points to his testimony that he arranged for the purchase of defective cell
phones from a person named Jose Luis Lopez and that he received an invoice from
Lopez. On cross-examination, the government asked him where the invoice was.
4
We note that Ugarte did not make a contemporaneous objection when the agent testified about
Ugarte receiving a commission; Ugarte moved for a mistrial at the conclusion of the agent’s
testimony.
7
The government is not to suggest that a defendant is obligated to produce
evidence of innocence. See United States v. Simon,
964 F.2d 1082, 1086 (11th
Cir. 1992). But here, the government only referred to the invoice briefly: the
government’s question was not “so pronounced and persistent that it permeate[d]
the entire atmosphere of the trial.”
Id. (citation omitted). And the district court
instructed the jury, after closing arguments, that the government alone bore the
burden of proving Ugarte’s guilt. See
id. at 1087 (court’s curative instructions on
burden of proof may render harmless government’s prejudicial remark). We need
not decide whether the government’s question was improper: any error arising
from this question was harmless.
Batlle argues that the district court erred by including the uncharged Rule
404(b) act evidence--specifically, the Dockers pants stolen in 2000, valued at
$308,000--as relevant conduct in its sentencing loss calculation. Batlle did not
object below to the court’s relevant conduct determination: we review this issue
for plain error. See United States v. Burge,
407 F.3d 1183, 1186 (11th Cir.), cert.
denied,
126 S.Ct. 551 (2005). Under the applicable relevant conduct provision,
U.S.S.G. § 1B1.3(a)(2) (1998), the charged offense and the Dockers theft are
“relevant conduct”: they are “part of the same course of conduct or common
scheme or plan.” The offenses involved (1) at least one common co-conspirator,
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Ugarte, (2) goods stolen from tractor-trailers in Florida, and (3) Batlle acting as a
middleman. See U.S.S.G. § 1B1.3(a)(2), comment. (n.9(A)) (“common scheme or
plan” means offenses “substantially connected to each other by at least one
common factor, such as common victims, common accomplices, common purpose,
or similar modus operandi”). The district court did not plainly err by including the
Dockers theft as relevant conduct.
We also reject Batlle’s and Ugarte’s assertions that their sentences are
unreasonable under United States v. Booker,
125 S.Ct. 738 (2005). Batlle
contends that the district court relied too much on the extrinsic evidence of
uncharged offenses in calculating his guideline sentencing range and that the court
did not properly account for Batlle’s history and characteristics. And Ugarte
argues that, by denying his request for a minor role reduction and for a downward
departure based on his medical condition, the district court did not properly
consider the
18 U.S.C. § 3553(a) factors.5
In fashioning Batlle’s sentence, the district court stated that it believed that
the guideline range addressed the appropriate sentencing factors, it indicated that
5
Ugarte does not argue the merits of the denial either of the minor role reduction or of the
downward departure. Instead, his argument is about the district court’s failure to take into account
these allegations in its evaluation of the § 3553(a) factors.
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it had considered the statements of the parties, and it acknowledged Batlle’s
medical condition. In sentencing Ugarte, the district court stated that it had
considered the presentence investigation report and Ugarte’s sentencing
arguments; the court also indicated that a sentence within the applicable guideline
range was reasonable and addressed the appropriate sentencing factors. For
purposes of satisfying Booker, the district court’s statements were enough to show
that the court adequately considered the § 3553(a) factors. See United States v.
Talley,
431 F.3d 784, 786 (11th Cir. 2005) (acknowledgment by district court that
it has considered defendant’s arguments and factors in
18 U.S.C. § 3553(a)
satisfies Booker). The court then imposed sentences for both defendants at the
bottom of the applicable guideline ranges. And nothing evidences that the court’s
consideration of Batlle’s relevant conduct clouded its application of the sentencing
factors. See
id. at 788 (expectation is that sentence within guidelines range would
be reasonable; party challenging sentence bears burden of showing sentence is
unreasonable in the light of the record and § 3553(a) factors). On this record, we
cannot say that Defendants’ sentences are unreasonable.
AFFIRMED.
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