United States v. Jose Luis Zaldivar , 292 F. App'x 868 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 12, 2008
No. 07-11899 THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 06-00050-CR-FTM-29-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS ZALDIVAR,
YOEL BERMUDEZ,
YENIER BROCHE ORTIZ,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(September 12, 2008)
Before ANDERSON, BARKETT and HILL, Circuit Judges.
PER CURIAM:
Jose Luis Zaldivar appeals his conviction for conspiring to bring aliens into
the United States in violation of 8 U.S.C. §§ 1324(a)(1)(A)(I) and 1324
(a)(1)(A)(v)(I). Yoel Bermudez and Yenier Broche Ortiz appeal their convictions
for conspiring to bring and for bringing the same aliens into the United States in
violation of 8 U.S.C. §§ 1324(a)(1)(A)(I), 1324(a)(1)(A)(v)(I), and
1324(a)(1)(A)(V)(II). Ortiz also appeals his thirty-three month sentence.
The government alleged that Zaldivar was the owner of a thirty-six foot
Contender fishing boat that was used to transport thirty-nine Cuban nationals into
the United States without permission. Bermudez and Ortiz were identified by three
of the smuggled Cuban nationals as the operators of the boat that brought them to
the United States. All three appellants make several arguments and we briefly
address each in turn.
1. Jose Luis Zaldivar
Zaldivar first argues that the district court clearly erred in not suppressing
evidence, namely fingerprints, seized from his vessel because (1) the law
enforcement officer did not have probable cause to make the initial traffic stop of
Zaldivar as he was driving the truck that was towing his vessel; (2) the officer’s
roadside search of his vessel was unlawful because the officer obtained Zaldivar’s
consent through his deceptive and improper assertion of legal authority to conduct
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the search; (3) the scope of the search warrant used to search the vessel a second
time did not include fingerprints; and (4) the fingerprints did not fall into the “plain
view” exception to the warrant requirement because the incriminating nature of the
fingerprints was not immediately apparent. Zaldivar also argues that the evidence,
even with the inclusion of the fingerprint evidence, was insufficient to support a
conspiracy conviction.
We find no reversible error. The district court did not err in finding that the
stop of Zaldivar’s truck was lawful because testimony established that his trailer
tag was not visible due to the improper functioning of his tag light in violation of
Fla. Stat., § 316.221(2).
We cannot consider Zaldivar’s second argument that his consent to Lt.
Johnson’s roadside search of his vessel was involuntary because Zaldivar never
raised this issue before the trial court and now makes this argument for the first
time on appeal.
We reject Zaldivar’s alternative contention that because fingerprints were
not specifically listed on the search warrant they should have been suppressed.
The evidence was lawfully obtained because it was in plain view and there was
probable cause to believe that the fingerprints were evidence of a crime. Agent
Mullin testified that at the time he seized the fingerprints (1) there were twenty-one
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life jackets on the boat while the boat was rated for a maximum capacity of six
persons; (2) food packets and water bottles were strewn on the boat; (3) many hand
and palm prints were visible on the boat; (4) the items on the boat were consistent
with items found on other boats used for alien smuggling; and (5) thirty-nine
Cuban nationals had been discovered by the Coast Guard on Loggerhead Key.
Finally, we reject Zaldivar’s argument that the evidence was insufficient to
sustain his conviction for conspiracy. The fingerprints of Orestes Casanova, one of
the smuggled Cuban nationals, were found on Zaldivar’s boat. It was not
unreasonable for the jury to have concluded that the only time they could have
been placed there was in the course of being smuggled from Cuba as Casanova
testified that he had never been to the United States before. In addition, he had
been living in a country that has no diplomatic relations with the United States and
it is not disputed that he was picked up on Loggerhead Key along with many other
smuggled Cuban nationals. The evidence further established that Zaldivar had
been driving in the area in the middle of the night, spending more than an hour
sitting in his truck behind a convenience store where he received numerous
telephone calls on his cellular phone. He also was observed pulling his boat out of
the water at a public boat ramp around dawn with the assistance of two other
individuals, although he claimed that he was staying at a resort with its own boat
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ramp. On this record, we find that the jury reasonably could have concluded that
Zaldivar was engaged in a conspiracy to smuggle the Cuban nationals into the
United States.
2. Convictions of Yoel Bermudez and Yenier Broche Ortiz
We likewise find no reversible error as to Ortiz and Bermudez. First, they
both argue that the district court abused its discretion in failing to sever their trials
from Zaldivar, asserting that Zaldivar’s defense became antagonistic toward their
defenses. However, they have failed to show the necessary prejudice required
under the two-part test of Zafiro v. United States, 506 U.S. 534 (1993). Initially,
we note that the district court sustained almost every one of Bermudez’s objections
to the defense testimony he claims was antagonistic. Additionally, Bermudez and
Ortiz acknowledge that mutually antagonistic defenses are not per se prejudicial
and even where prejudice is shown, Rule 14 of the Federal Rules of Civil
Procedure does not mandate that a severance be ordered, but rather permits the
court to fashion an appropriate remedy. Id. at 538–39. We find the court’s
instructions to the jury were sufficient to insure that any prejudice that may have
resulted from the testimony at issue did not “prevent the jury from making a
reliable judgment about the guilt or innocence” of Bermudez or Ortiz.
Bermudez next argues that the district court abused its discretion in
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permitting Agent Mullin to testify that two of the smuggled Cuban nationals,
Orestes Casanova and Mayren Valdez, had positively identified Bermudez from a
photographic line-up as being one of the operators of the boat that brought them
from Cuba. He argues that because the witnesses testified at trial that they made
these identifications under duress and did not identify Bermudez at trial, Agent
Mullin’s testimony about their out-of-court identifications should not have been
admitted because it was hearsay.
Rule 801(d)(1)(C) provides that a statement is not hearsay where it involves
the identification of a person made after the declarant observed the person and the
declarant testifies and is subject to cross-examination. We have previously held
that it is not an abuse of discretion for a district court to permit an officer to testify
regarding a witness’s identification, which occurred after the crime, when the
witness could not make a positive in-court identification. United States v.
Blackman, 66 F.3d 1572, 1578 n.6 (11th Cir. 1995). Here, there was no question
that the witnesses had made the out-of-court identification. Both witnesses
testified that they had each made the identification from a photographic line-up,
and admitted signing statements that identified Bermudez. They did not deny that
they had identified Bermudez. Rather, they claimed that the identification was
coerced by the threat of deportation and was untrue. We find that the testimony of
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Casanova and Valdez regarding the circumstances under which they provided an
out-of-court identification of Bermudez goes to the weight of Agent Mullin’s
testimony and not to whether it is admissible under Rule 801(d)(1)(C), and thus,
the district court did not abuse its discretion in admitting the testimony of Agent
Mullin.
Finally, Bermudez and Ortiz assert that the evidence that was presented was
insufficient to sustain their convictions. We must affirm the conviction, unless
under no reasonable construction of the evidence, could the jury have found the
defendant guilty beyond a reasonable doubt. United States v. Garcia, 405 F.3d
1260, 1269 (11th Cir. 2005). Moreover, we must view the evidence in the light
most favorable to the government. United States v. Edouard, 485 F.3d 1324, 1349
(11th Cir. 2007). We find the evidence, while not overwhelming, sufficient to
support the convictions in this case. While it is true that the only type of evidence
presented was witness identifications, the government presented three separate
witness statements identifying Ortiz as the operator of the boat and two statements
identifying Bermudez. Even though the witnesses recanted these identifications at
trial, the jury was entitled to assess their credibility and determine which of their
statements was true. When the evidence is viewed in the light most favorable to
the government, the jury reasonably could have concluded that Bermudez and
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Ortiz knowingly operated the boat that brought the Cubans to the United States and
that they conspired to do so together.
3. Sentence of Yenier Broche Ortiz
Finally, Ortiz challenges the district court’s application of a sentencing
enhancement for recklessly creating a substantial risk of bodily injury or death by
operating a boat with many persons over capacity and without sufficient life
jackets for the passengers. The sentencing guidelines provide that if intentional or
reckless behavior that created a risk of serious bodily injury or death to another
person occurred during the course of committing the offense of transporting
unlawful aliens, the defendant’s sentence is to be increased by two levels, or to
level 18, whichever is higher. U.S.S.G. § 2L1.1(b)(6). This increase is intended to
apply to a “wide variety of conduct (e.g., transporting persons in the trunk or
engine compartment of a motor vehicle, carrying substantially more passengers
than the rated capacity of a motor vehicle or vessel, or harboring persons in a
crowded, dangerous, or inhumane condition).” U.S.S.G. § 2L1.1, comment. (n.5).
The district court did not clearly err in finding that Ortiz was reckless when
transporting the Cuban aliens to the United States. Ortiz was identified as the
driver of the overloaded boat that transported the Cubans across the open seas from
Cuba to Loggerhead Key. The evidence established that there were about forty
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people on this boat that was designed to hold only nine to twelve individuals. The
boat was found with only twenty-one life jackets on board. See United States v.
Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004). The enhancement here
was not erroneous.
For the reasons discussed above, the convictions and sentences are
AFFIRMED.
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