United States v. Alexei Jubiel , 377 F. App'x 925 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-10528 MAY 05, 2010
Non-Argument Calendar JOHN LEY
CLERK
________________________
D. C. Docket No. 08-20287-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXEI JUBIEL,
DIEGO DIAZ DE LA CRUZ,
OMAR SILVA MEDINA,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(May 5, 2010)
Before EDMONDSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Alexei Jubiel, Diego Diaz de la Cruz (Cruz), and Omar Silva Medina (Silva)
appeal their convictions and sentences for conspiracy to possess with intent to
distribute five kilograms or more of cocaine (Count I); attempt to possess with
intent to distribute five kilograms or more of cocaine (Count II); conspiracy to
affect interstate commerce by means of robbery (Count III); attempt to affect
interstate commerce by means of robbery (Count IV); conspiracy to use and
possess a firearm in furtherance of a crime of violence and a drug trafficking
offense (Count V); and carrying a firearm in furtherance of a crime of violence and
a drug trafficking offense (Count VI). Each Appellant asserts several issues on
appeal. We address each of the issues in turn and affirm their convictions and
sentences.
I.
All Appellants challenge the district court’s admission of video and audio
tapes taken by police, along with the English transcripts interpreting the
conversations thereon. Appellants assert that because the videos contained several
segments that were inaudible and a minor translation error, they were unreliable.
Appellants also claim the district court plainly erred when it did not require the
court reporter to type the transcripts or a description of the tapes into the record to
allow for appellate review.
2
When, as here, defendants did not object to the admission of tapes or
transcripts at trial, we review their admission for plain error. See United States v.
Raad, 406 F.3d 1322, 1323 (11th Cir. 2005). “Plain error occurs where (1) there is
an error; (2) that is plain or obvious; (3) [that affects] the defendant’s substantial
rights in that it was prejudicial and not harmless; and (4) that seriously affects the
fairness, integrity, or public reputation of the judicial proceedings.” Id. (quotations
omitted). “Before an error is subject to correction under the plain error rule, it
must be plain under controlling precedent or in view of the unequivocally clear
words of a statute or rule.” United States v. Lett, 483 F.3d 782, 790 (11th Cir.
2007).
We have not adopted a “formulistic standard” regarding the admission of
videotapes and transcripts into evidence. United States v. Greenfield, 574 F.2d
305, 307 (5th Cir. 1978).1 “Tapes are not per se inadmissible because they are
partially inaudible; the issue is whether the unintelligible portions are so substantial
as to render the recording as a whole untrustworthy.” Id. (quotations omitted).
“This determination is left to the sound discretion of the trial judge.” Id.(quotations omitted). Where a tape is in a language other than English, we have
1
In Bonner v. City of Prichard, this Court adopted as binding precedent all decisions of
the former Fifth Circuit handed down before October 1, 1981. 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).
3
suggested a party challenging the submission of an English-language transcript
utilize the following procedures:
Initially, the district court and the parties should make an effort to
produce an “official” or “stipulated” transcript, one which satisfies all
sides. If such an “official” transcript cannot be produced, then each
side should produce its own version of a transcript or its own version
of the disputed portions. In addition, each side may put on evidence
supporting the accuracy of its version or challenging the accuracy of
the other side’s version.
United States v. Le, 256 F.3d 1229, 1238 (11th Cir. 2001) (quoting United States v.
Cruz, 765 F.2d 1020, 1023 (11th Cir. 1985)).
Appellants did not object to tapes or transcripts at trial and have failed to
demonstrate any plain error associated with their admission. The only
mistranslation they have cited was insubstantial and was corrected by stipulation at
the trial.2 Appellants did not attempt to offer their own translation of the tapes, nor
do they point to any problem with the ultimate translation provided. With respect
to Appellants’ argument the district court deprived them of a fair opportunity for
appellate review by not directing the court reporter to describe the video and audio
recordings in the trial transcript and by not including the transcripts in the record
on appeal, we note the tapes and transcripts were introduced into evidence at trial.
2
At one point on the recording, Silva said, “Olvidate de eso, olvidate, olvidate,” which
had been translated as “forget it, don’t worry, forget it.” Detective Sanchez acknowledged Silva
had not use a word for “Don’t worry about it.” The government later agreed to change the
translation to “Forget it. Forget it. Forget it.”
4
Therefore, they should have been available at the district court for appellate
counsel to review. Moreover, the Appellants have not moved to supplement the
record on appeal with the tapes or transcripts. Appellants provide nothing other
than vague speculation to suggest they were unfairly prejudiced by the admission
of the tapes and transcripts at trial. The district court did not plainly err in
admitting the tapes and transcripts into evidence.
II.
All Appellants next contend the district court committed reversible error in
admitting testimony Appellants had previously committed other crimes. They
claim this violated Rules 404(b) and 403 of the Federal Rules of Evidence. We
review a district court’s evidentiary rulings, including a decision to admit evidence
regarding a defendant’s involvement in other crimes, for an abuse of discretion.
United States v. Edouard, 485 F.3d 1324, 1343 (11th Cir. 2007). Even if the
district court made an erroneous evidentiary ruling, we need not reverse the
defendant’s conviction if we conclude the error was harmless. United States v.
Hands, 184 F.3d 1322, 1329 (11th Cir. 1999). An evidentiary error is harmless if
it “had no substantial influence on the outcome and sufficient evidence uninfected
by error supports the verdict.” Id. (quotation omitted).
5
The district court did not abuse its discretion in any way that substantially
influenced the verdict. First evidence of Jubiel’s and Silva’s prior criminal activity
was admissible under Rule 404(b) of the Federal Rules of Evidence. Extrinsic
evidence “of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith.” Fed. R. Evid. 404(b).
Such evidence “may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Id. Jubiel and Silva claimed they did not know about the
plan to rob the cocaine stash house and also argued their association with the group
of co-defendants at the time of the conspiracy was unrelated to the crime. Thus,
they put their intent at issue. Testimony at trial that Jubiel and Silva had
committed previous robberies of marijuana grow-houses with a nearly identical
group of accomplices, using nearly identical vehicles, tools, and strategies was thus
appropriate to contradict their assertions.
There was no evidence Cruz participated in the previous marijuana grow-
house robberies. However, in response to the prosecutor’s question of why Flores,
a co-conspirator, trusted Cruz to join the conspiracy, Flores testified he heard Cruz
had allegedly “ripped off” some people. The district court judge cut Flores off.
Although the judge initially indicated he would strike the statement, his instruction
6
to the jury was somewhat ambiguous. Nevertheless, we find the admission of the
statement against Cruz does not constitute reversible error. It is unlikely that
Flores’s brief, interrupted statement had a substantial influence on the jury’s
verdict, and the Government introduced substantial independent evidence of Cruz’s
guilt. See infra, Section IV. Therefore, any error in not expressly striking Flores’s
reference to Cruz’s prior criminal activity was harmless.
Next we conclude the district court did not abuse its discretion in finding the
evidence of Jubiel’s and Silva’s prior criminal activity was intertwined with
evidence of the charged offenses. Evidence is not extrinsic, and therefore falls
outside the scope of Rule 404(b), if it is: “(1) an uncharged offense which arose out
of the same transaction or series of transactions as the charged offense,
(2) necessary to complete the story of the crime, or (3) inextricably intertwined
with the evidence regarding the charged offense.” Edouard, 485 F.3d at 1344(quotation omitted). Evidence is inextricably intertwined with the charged offense
when it “forms an integral and natural part of the witness’s accounts of the
circumstances surrounding the offenses for which the defendant was indicted.” Id.(quotation omitted).
Flores and Borrego, two members of the conspiracy, repeatedly emphasized
during their meetings with Detective Sanchez and the confidential informant that
7
they were professionals who had committed similar robberies in the past. Flores
tesified he had been involved in two prior robberies of marijuana grow houses with
Machin, Silva, and Jubiel. Detective Sanchez explained his task force only
targeted active robbery groups, and, therefore, determining whether the defendants
had committed similar robberies in the past was a key part of his investigation.
Because the evidence concerning the prior grow house robberies was inextricably
intertwined with the testimony regarding how the investigation in this case
unfolded, the district court did not abuse its discretion in ruling the evidence fell
outside the scope of Rule 404(b).
We further conclude the district court did not violate Rule 403 in admitting
evidence of prior robberies committed by Jubiel and Silva. Evidence of a
defendant’s prior criminal activity, regardless of whether it falls inside or outside
of the scope of Rule 404(b), must satisfy the requirements of Rule 403. Edouard,
485 F.3d at 1344. Rule 403 states relevant evidence “may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” We have
explained “Rule 403 is an extraordinary remedy, which should be used only
sparingly, and the balance should be struck in favor of admissibility.” Edouard,
8
485 F.3d at 1344 n.8 (quotation and alteration omitted). In determining whether
evidence should have been excluded under Rule 403, we view the evidence “in a
light most favorable to its admission, maximizing its probative value and
minimizing its undue prejudicial impact.” Id. (quotation omitted). Having
reviewed the grow-house-robbery evidence admitted in relation to the intent
arguments the evidence was intended to combat we conclude Jubiel and Silva have
failed to demonstrate the district court abused its discretion under Rule 403 in
admitting the evidence.
III.
Appellants next assert the district court provided the jury with an erroneous
definition of wilfulness. Generally, we review the legality of a jury instruction de
novo, but defer to the district court on the specific phrasing of an instruction,
absent an abuse of discretion. United States v. Prather, 205 F.3d 1265, 1270 (11th
Cir. 2000). Because Appellants did not object to the district court’s definition of
“willfully” at trial, however, we review this claim for plain error. See id. at 1271.
District courts “have broad discretion in formulating jury instructions provided that
the charge as a whole accurately reflects the law and the facts, and we will not
reverse a conviction on the basis of a jury charge unless the issues of law were
presented inaccurately, or the charge improperly guided the jury in such a
9
substantial way as to violate due process.” Id. at 1270 (quotations omitted). The
district court is not required to use the Eleventh Circuit Pattern Jury Instructions,
and we have repeatedly approved jury instructions that do not exactly track the
language of the pattern instructions. United States v. Veltmann, 6 F.3d 1483, 1492
(11th Cir. 1993).
The district court twice instructed the jury that for a defendant to be guilty of
conspiracy, the evidence must show “the defendant, knowing the unlawful purpose
of the plan, joined in it willfully, that is, with the intent to further its unlawful
purpose.” This instruction conveyed the substance of the relevant pattern
instruction on “wilfully,” which defines the term in this context as “voluntarily and
purposely, with the specific intent to do something that the law forbids; that is with
bad purpose either to disobey or disregard the law.” Eleventh Circuit Pattern Jury
Instructions (Criminal Cases) 9.1 (2003). Because the district court’s definition of
“willfully” did not misstate the law or improperly guide the jury, Appellants have
not demonstrated plain error with respect to this issue.
IV.
Appellant Cruz raises several issues independently. Appellant Cruz first
claims the evidence was insufficient to support his convictions.3 We review de
3
To the extent Jubiel or Silva attempted to adopt this argument, we find Cruz’s arguments
regarding sufficiency of the evidence are “too individualized to be generally adopted.” See
10
novo the sufficiency of the evidence to support the jury’s verdict in a criminal case,
“viewing the evidence in the light most favorable to the government, and drawing
all reasonable factual inferences in favor of the jury’s verdict.” United States v.
Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). Evidence is sufficient to support a
defendant’s conviction “if a reasonable trier of fact could find that the evidence
established guilt beyond a reasonable doubt.” Id. at 1284-85 (quotation omitted).
A.
We first address Cruz’s conspiracy convictions. Cruz was convicted of
conspiracy to possess with intent to distribute five kilograms or more of cocaine
(Count I); to affect interstate commerce by means of robbery (Count III); and to
use and possess a firearm in furtherance of a crime of violence and a drug
trafficking offense (Count V).
To convict a defendant of conspiracy, the Government must prove: “(1) an
agreement between the defendant and one or more persons, (2) the object of which
is to do either an unlawful act or a lawful act by unlawful means.” United States v.
Toler, 144 F.3d 1423, 1426 (11th Cir. 1998). The Government may prove the
existence of conspiracy through circumstantial evidence, such as the conduct of
persons allegedly involved in the scheme. United States v. Seher, 562 F.3d 1344,
United States v. Cooper, 203 F.3d 1279, 1285 n.4 (11th Cir. 2000). We, therefore, address this
claim only as relates to Cruz.
11
1364 (11th Cir. 2009). The Government need not establish a defendant knew
every detail of a conspiracy, but must establish he “knew the essential nature of the
conspiracy.” United States v. Payne, 750 F.2d 844, 859 (11th Cir. 1985).
Cruz asserts his convictions must be overturned because the Government
failed to show he knew the essential nature of the conspiracy: that the group would
be stealing cocaine and committing a robbery affecting interstate commerce. Cruz
is correct that the Government was required to prove his knowledge of those facts.
See United States v. Martinez, 83 F.3d 371, 374 (11th Cir. 1996) (reversing a
conviction for conspiracy to possess with intent to distribute cocaine because the
defendant’s statement that he had “men and guns ready” to facilitate a robbery was
insufficient to prove he knew the plan was to steal cocaine). Id.; see also United
States v. Charles, 313 F.3d 1278, 1284–87 (11th Cir. 2002) (holding evidence was
insufficient to support a defendant’s conspiracy conviction because all references
to drugs were made in a language the defendant did not understand).
The evidence was sufficient to show Cruz understood the plot involved
stealing cocaine in a manner affecting interstate commerce. The interstate
commerce element of the Hobbs Act is satisfied in cases involving law
enforcement sting operations where the narcotics the defendants intend to steal do
not actually exist. See 18 U.S.C. § 1951(a); United States v. Taylor, 480 F.3d 1025,
12
1026-27 (11th Cir. 2007). The Government presented testimony at trial showing
Cruz attended meetings at which the plot to rob the cocaine stash house was
discussed in detail. Evidence also demonstrated Cruz acquired firearms the group
had agreed were needed for the robbery. When he was arrested, Cruz was in the
car of the leader of the group of robbers who had just explained to a Confidential
Informant that he was on his was to the airport to see the cocaine the group
intended to steal. When police stopped the car and arrested the occupants,
including Cruz, the police found firearms in the trunk of the vehicle as well as
gloves and restraints, which witnesses testified the group had obtained for the
purpose of accomplishing their plot. This was sufficient to allow a jury to infer
Cruz knew he was joining a conspiracy to rob a cocaine stash house.
Moreover, when a criminal defendant testifies, the jury is entitled to reject
the defendant’s testimony and to consider it as substantive evidence of his guilt.
United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). “At least where some
corroborative evidence of guilt exists for the charged offense . . . and the defendant
takes the stand in his own defense, the defendant's testimony, denying guilt, may
establish, by itself, elements of the offense.” Id. at 314-15. “This rule applies
with special force where the elements to be proved for a conviction include highly
subjective elements” such as intent or knowledge. Id. at 315. Because Cruz
13
testified in his own defense and denied any knowledge regarding a robbery, the
jury was entitled to reject his testimony and to use it as substantive evidence
against him. The evidence presented at trial was sufficient to allow the jury to
infer Cruz understood and was part of a plan to rob the cocaine stash house.
B.
We next address Cruz’s attempt convictions. Cruz was convicted of attempt
to possess with intent to distribute five kilograms or more of cocaine (Count II)
and attempt to affect interstate commerce by means of robbery (Count IV). In
order to convict a defendant of attempt, the Government has to prove “(1) the
defendant was acting with the kind of culpability otherwise required for the
commission of the crime for which he is charged with attempting; and (2) the
defendant was engaged in conduct that constitutes a substantial step toward the
commission of the crime.” United States v. Carothers, 121 F.3d 659, 661 (11th
Cir. 1997). “[T]he defendant's objective acts, without reliance on the
accompanying mens rea, must mark the defendant’s conduct as criminal.” Id. “‘In
other words, the defendant's acts, taken as a whole, must strongly corroborate the
required culpability; they must not be equivocal.’” Id. (quoting United States v.
McDowell, 705 F.2d 426, 428 (11th Cir. 1983)). Cruz challenges the sufficiency
14
of the Government’s evidence of his mens rea and the group’s substantial step
toward committing the crime.
The Government presented sufficient evidence to defeat Cruz’s claim. Cruz
and his co-Appellants attended meetings planning the robbery of the cocaine stash
house and had armed themselves with the weapons and tools needed for the job.
Although Machin, the leader of the robbery group, and the other group members
may have had some lingering suspicions as to whether the confidential informant
and Detective Sanchez, the undercover officer, were involved with law
enforcement, it appears they fully intended to proceed with the robbery despite
those suspicions. When Appellants and their co-conspirators were arrested, they
were driving toward the location of the target cocaine. The evidence was,
therefore, sufficient to allow the jury to infer Appellants planned to rob the cocaine
stash house and had taken substantial steps toward the commission of that crime.
C.
Lastly, we address the sufficiency of the evidence to support Cruz’s
conviction under 18 U.S.C. § 924(c). To prove a 924(c) violation, the Government
was required to show Cruz carried firearms during and in relation to a drug
trafficking offense. See 18 U.S.C. § 924(c)(1)(A). Cruz was arrested driving to
site of the cocaine he and his accomplices intended to steal, in a car carrying four
15
firearms. Testimony showed Cruz had personally acquired two of the firearms for
the job. We thus conclude Cruz’s conviction under § 924(c) was based on
sufficient evidence.
V.
Cruz next contends the district court abused its discretion in excluding
testimony of a witness who claimed to see two Government witnesses conferring
during a trial recess, in violation of a sequestration order. “The district court has
broad discretion in ruling upon the relevancy and admissibility of evidence.”
United States v. Williams, 954 F.2d 668, 671 (11th Cir. 1992). “This discretion,
however, does not extend to the exclusion of crucial relevant evidence necessary to
establish a valid defense.” Id. The district court may exclude testimony under
Federal Rule of Evidence 403 if it determines the probative value of that evidence
is “substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”
The district court took the testimony of a proposed defense witness, Duran,
in an ex parte hearing before determining whether to allow Appellants to call him
as a witness. Duran indicated he had witnessed a conversation between Flores and
Borrego during an overnight recess in Borrego’s testimony. However, Duran
16
explained he had been unable to overhear what was said during that conversation
and noted Cruz was in a better position to hear the discussion. The district court
allowed Cruz to testify he had witnessed the conversation, and that Borrego had
been telling Flores about his testimony and about the questions that were being
asked in court. As Duran could not hear the conversation, his testimony would
have been of limited probative value. It would also have been cumulative to the
testimony of Cruz. Further, Duran’s attorney noted that because Duran was a
defendant in an unrelated trial, the attorney would advise him not to testify if called
as a witness for Cruz. Under the circumstances, the district court did not abuse its
discretion in excluding Duran’s testimony.
VI.
Cruz contends his constitutional rights were violated when the district court
gave instructions that his consultation with counsel should be limited during an
overnight recess. Generally, we review claims of constitutional error de novo.
United States v. Brown, 586 F.3d 1342, 1347 (11th Cir. 2009). In the absence of
an objection at trial,4 however, we review the district court’s ruling for plain error.
See United States v. Peters, 403 F.3d 1263, 1270 (11th Cir. 2005) (noting a
4
It appears Cruz failed to make a proper objection to the district court’s order instructing
him not to confer with his attorney about his testimony during the overnight recess. Although
counsel initially asserted he could answer Cruz’s questions, he did not lodge a formal objection,
and he ultimately acquiesced to the court’s ruling by stating, “Okay, judge, if you say so.”
17
constitutional challenge raised for the first time on appeal is reviewed for plain
error).
The Sixth Amendment guarantees criminal defendants the right to assistance
of counsel. U.S. Const. amend. VI. A district court’s order prohibiting a defendant
entirely from consulting with his attorney during an overnight recess violates the
defendant’s right to assistance of counsel. Geders v. United States, 96 S.Ct. 1330,
1332-33, 1335-37 (1976). We have indicated an order instructing a defendant not
to discuss his cross-examination testimony with defense counsel during an
overnight recess may violate the rule announced in Geders, where the record
shows they desired to do so. Crutchfield v. Wainwright, 803 F.2d 1103, 1110 (11th
Cir. 1986) (en banc) (Hatchett, J., plurality opinion); but see id. at 1114 (Tjoflat, J.,
specially concurring).
To preserve a deprivation of assistance of counsel claim, however, “a
defendant or the defendant’s counsel must indicate, on the record, a desire to
confer.” Id. at 1109. The defendant must also show “the prohibition actually
prevented the opportunity to confer with counsel.” Id. at 1110. In Crutchfield, we
determined there was no deprivation of the right to counsel because the record
“d[id] not reflect a desire to consult or an objection to the trial court’s admonition.”
Id. at 1111.
18
Although the district court ordered Cruz not to discuss his cross-examination
testimony with his defense counsel, neither Cruz nor his attorney indicated they
wished to confer regarding Cruz’s trial testimony. While counsel stated he believed
he could answer Cruz’s questions, he did not indicate those questions would relate
to Cruz’s testimony nor was any official mention made of a desire or an attempt to
confer as to the cross-examination testimony. Further, the record indicates defense
counsel was unavailable to confer with his client for a large portion of the evening
due to a medical problem. The district court afforded Cruz an opportunity to speak
with his defense counsel the following morning. The court indicated Cruz could
retake the witness stand if there were additional matters that needed to be covered
after the meeting. Following discussions with his attorney, Cruz ultimately elected
not to retake the stand. Therefore, even if the district court erred in ordering Cruz
not to discuss his testimony with his attorney, Cruz failed to show his order
contradicted any recorded desire to discuss that testimony. Cruz has, therefore,
failed to meet his burden of demonstrating plain error in regard to this issue.
VII.
Cruz also asserts his right to the assistance of counsel was violated because
his attorney was absent when the court responded to the jury’s request during
deliberation that they be provided with a video admitted into evidence at trial. Cruz
19
did not object at the time of the alleged violation, so we review for plain error. See
Peters, 403 F.3d at 1270.
A criminal defendant is entitled to the assistance of counsel during all critical
stages of the criminal justice process. Iowa v. Tovar, 124 S. Ct. 1379, 1383 (2004).
The Supreme Court has explained a “critical stage” is “a step of a criminal
proceeding, such as arraignment, that [holds] significant consequences for the
accused.” Bell v. Cone, 122 S.Ct. 1843, 1851 (2002). We have not previously
addressed the question of whether the consideration of a jury note is a critical stage
of a trial per se, and we need not resolve the issue here.
Counsel for Jubiel had agreed to fill in for Cruz’s counsel who was sick on
the day of the jury’s deliberation. Jubiel’s counsel informed the court that Cruz did
not have any problem with the substitute in representation. Cruz does not claim
Jubiel’s counsel made a false representation in so doing. In its note to the court, the
jury asked to view Government’s Exhibit 12D. Exhibits 12B and 12D were police
surveillance videos taken the day of the intended robbery while Cruz, Jubiel,
Machin, and Flores were sitting in Machin’s vehicle in the parking lot of a Home
Depot store waiting for a phone call from Detective Sanchez informing them of the
address of the purported cocaine stash house. Both videos had been admitted into
evidence. Exhibit 12B had been played for the jury during the trial; Exhibit 12D
20
had not been published. When the court advised the parties of the note, Jubiel’s
counsel suggested the jury likely meant to request the video shown at trial, 12B.
The district court ultimately elected to play Exhibit 12B, rather than the video the
jury had requested, 12D, and instructed the jurors to submit another note if they
wished to view a different video. The jury did not request an additional video.
We conclude the court’s decision to play Exhibit 12B did not result in any
prejudice to Cruz, because the jury had already seen the video provided during
deliberation during the Government’s case-in-chief. Cruz has not shown his
substantial rights were affected by the court’s decision to provide the video to the
jury. Thus, he has failed to establish plain error with respect to this issue.
VIII.
Appellants, together, contend even if they failed to show any single
reversible error, the aggregation of smaller errors deprived them of a fair trial. “The
cumulative error doctrine provides that an aggregation of non-reversible errors (i.e.,
plain errors failing to necessitate reversal and harmless errors) can yield a denial of
the constitutional right to a fair trial, which calls for reversal.” United States v.
Baker, 432 F.3d 1189, 1223 (11th Cir. 2005) (quotation omitted). We reject this
contention. Appellants have not established the district court committed any errors
that, together, deprived them of a fair trial.
21
IX.
Finally, Appellants Jubiel and Cruz assert the district court erred in imposing
consecutive 60-month sentences for their convictions under18 U.S.C. § 924(c),
because the plain language of § 924(c) prohibits the imposition of consecutive
sentences when the defendant is subject to a greater mandatory-minimum sentence
for another offense. Jubiel and Cruz were subject to ten-year mandatory minimum
sentences for their drug conspiracy convictions.
We normally review questions of statutory interpretation de novo. United
States v. Segarra, 582 F.3d 1269, 1271 (11th Cir. 2009). Because Jubiel and Cruz
failed to raise this issue before the district court, however, we review their claim for
plain error. See Raad, 406 F.3d at 1323. In relevant part, 18 U.S.C. § 924(c)(1)(A)
provides:
Except to the extent that a greater minimum sentence is otherwise
provided by this subsection or by any other provision of law, any
person who, during and in relation to any crime of violence or drug
trafficking crime (including a crime of violence or drug trafficking
crime that provides for an enhanced punishment if committed by the
use of a deadly or dangerous weapon or device) . . . uses or carries a
firearm, or who, in furtherance of any such crime, possesses a firearm,
shall, in addition to the punishment provided for such crime of
violence or drug trafficking crime-- (i) be sentenced to a term of
imprisonment of not less than 5 years.
In Segarra, we held the “except” clause of § 924(c) does not “limit
consecutive sentences imposed for § 924(c) offenses and the underlying drug
22
crimes.” 582 F.3d at 1272. “Rather,” we explained, “the clause is intended to
prevent consecutive mandatory minimum sentences for more than one firearm
offense.” Id. We held the plain language of the statute “dictates consecutive
sentences” when the defendant is subject to mandatory minimum sentences for both
a § 924(c) offense and the underlying drug offense. Id. at 1273.
Our decision in Segarra forecloses Jubiel’s and Cruz’s argument. Although
Jubiel and Cruz argue Segarra is inconsistent with the plain language of § 924(c),
the prior panel precedent rule precludes us from re-examining our earlier holding.
See Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001). Therefore, we
conclude the district court did not plainly err by imposing consecutive sentences
under § 924(c).5
Accordingly, after a thorough review of the record and briefs, we affirm
Appellants’ convictions and sentences.
AFFIRMED.
5
We note that Supreme Court recently granted petitions for certiorari in two cases
presenting this issue, Abbott v. United States (No. 09-479) (U.S. Jan. 25, 2010), and Gould v.
United States (No. 09-7073) (U.S. Jan. 25, 2010).
23