United States v. Roberto Alvarez , 284 F. App'x 747 ( 2008 )


Menu:
  •                                                             [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    JULY 07, 2008
    No. 07-12947               THOMAS K. KAHN
    Non-Argument Calendar               CLERK
    ________________________
    D. C. Docket No. 06-20464-CR-RWG-MGC
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    ROBERTO ALVAREZ,
    a.k.a. Roberto Saavedra,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (July 7, 2008)
    Before TJOFLAT, BLACK and CARNES, Circuit Judges.
    PER CURIAM:
    Roberto Saavedra Alvarez appeals his conviction as to count one of the
    indictment against him, conspiracy to possess with intent to distribute more than
    five kilograms of cocaine in violation of 21 U.S.C. § 846. Alvarez contends that
    the district court plainly erred by: (1) failing to sua sponte declare a mistrial on
    count one after Jose Gonzalez, a government witness and confidential informant,
    testified at trial that he knew Alvarez had a criminal record; (2) failing to sua
    sponte enter a post-verdict judgment of acquittal on count one on the ground that
    the jury’s guilty verdict rested on the harmfully prejudicial exchange between the
    government and Gonzalez regarding Alvarez’s criminal record; and (3) failing to
    sua sponte dismiss the indictment on the ground that the government was over-
    involved in the particular reverse sting operation used in this case and thus violated
    Alvarez’s Fifth Amendment due process rights.
    Because Alvarez did not raise any of these arguments during his trial, we
    review only for plain error. See United States v. Rodriguez, 
    398 F.3d 1291
    , 1298
    (11th Cir. 2005). Under plain error review, “[a]n appellate court may not correct
    an error the defendant failed to raise in the district court unless there is: (1) error,
    (2) that is plain, and (3) that affects substantial rights. If all three conditions are
    met, an appellate court may then exercise its discretion to notice a forfeited error,
    but only if (4) the error seriously affects the fairness, integrity, or public reputation
    of judicial proceedings.” 
    Id. (quotation marks
    and citations omitted). An error is
    2
    “plain” if “it is obvious and clear under current law.” United States v. Eckhardt,
    
    466 F.3d 938
    , 948 (11th Cir. 2006), cert. denied, 
    127 S. Ct. 1305
    (2007).
    Alvarez first contends that the district court plainly erred by failing to sua
    sponte order a mistrial after Gonzalez testified that he knew Alvarez had a criminal
    record. “[A] trial judge has discretion to grant a mistrial since [she] is in the best
    position to evaluate the prejudicial effect of a statement or evidence on the jury.”
    United States v. Newsome, 
    475 F.3d 1221
    , 1227 (11th Cir. 2007) (quotation marks
    and citation omitted).
    If the district court issues a curative instruction, “we will reverse only if the
    evidence is so highly prejudicial as to be incurable by the trial court’s admonition.”
    See United States v. Trujillo, 
    146 F.3d 838
    , 845 (11th Cir. 1998) (quotation marks
    and citation omitted) (holding that the district court’s curative instruction cured any
    potential prejudice caused by a witness’s testimony that the drug trafficking
    defendant previously had been involved in the drug trade and incarcerated in
    Cuba); see also United States v. Mejia, 
    82 F.3d 1032
    , 1038 n.7 (11th Cir. 1996)
    (holding that witness’s testimony that he knew defendant from “past dealings” was
    not grounds for a new trial where court quickly struck the response and instructed
    the jury to disregard it). In making that determination, we presume that the jury
    followed the district court’s curative instruction. United States v. Ramirez, 426
    
    3 F.3d 1344
    , 1352 (11th Cir. 2005).
    At trial, the government played for the jury without objection statements
    made by Alvarez admitting his prior involvement in drug smuggling, which
    lessened the likelihood of undue prejudice from Gonzalez’s statement that Alvarez
    had a criminal record. In addition, following Gonzalez’s statement, the district
    court sustained Alvarez’s objection and instructed the jury that it was to “disregard
    both the question and the answer, any reference to criminal records that were
    before the jury.” We presume that the jury followed this instruction, see 
    Ramirez, 426 F.3d at 1352
    , and we conclude that it cured any potential prejudice caused by
    the mention of Alvarez’s criminal record, see 
    Trujillo, 146 F.3d at 845
    ; 
    Mejia, 82 F.3d at 1038
    n.7. Accordingly, the district court did not err, much less plainly err,
    by failing to sua sponte declare a mistrial. See also United States v. Perez, 
    30 F.3d 1407
    , 1411 (11th Cir. 1994) (“When a court gives a direct and explicit curative
    instruction regarding improper testimony, it supports the court’s decision not to
    grant a mistrial by decreasing the possibility of undue prejudice.”).
    Alvarez next contends that the district court plainly erred by failing to sua
    sponte enter a post-verdict judgment of acquittal on the count one conspiracy
    charge. According to Alvarez, when the district court learned that the jury had
    acquitted him on counts two, three, and four of the indictment, the court should
    4
    have concluded that the guilty verdict on count one rested on Gonzalez’s statement
    that Alvarez had a criminal record. To support a conspiracy conviction, the
    government must establish beyond a reasonable doubt: (1) the existence of an
    agreement between the defendant and one or more persons; (2) the object of which
    is to commit an unlawful act. United States v. Garcia, 
    405 F.3d 1260
    , 1269 (11th
    Cir. 2005). It is unlawful to possess with intent to distribute a controlled
    substance. 21 U.S.C. § 841(a)(1).
    Alvarez’s contention is without merit. Alvarez’s counsel conceded at trial
    that the evidence was sufficient to support a conviction on the conspiracy charge in
    count one, stating that “the defendant would agree, there is sufficient evidence
    taken in the light most favorable to the Government to establish that an agreement
    was entered into and that that agreement was for the elicit purposes, which are
    stated in the indictment.” He continued, “I don’t think there is any legal question.”
    Moreover, the record does not support his argument that the jury’s acquittal on the
    other three counts must have meant that the jury found him guilty on the
    conspiracy charge simply because of Gonzalez’s brief statement that Alvarez had a
    criminal record, especially in light of the court’s curative instruction. See 
    Ramirez, 426 F.3d at 1352
    (“A jury is presumed to follow the instructions given to it by the
    district judge.”). The district court did not err by failing to sua sponte grant
    5
    Alvarez a judgment of acquittal on count one.
    Finally, Alvarez contends that the district court plainly erred by failing to
    sua sponte dismiss the indictment on the ground that the government’s sting
    operation violated his right to due process. Alvarez argues that the government
    was overinvolved in the sting operation that led to his arrest and conviction
    because government agents: (1) created the entire scenario for a fictitious robbery
    of drugs, (2) from “bad people” rather than innocent civilians, (3) that was initiated
    by an informant who is a friend of the lead defendant, and (4) provided crucial
    assistance to commit the crime, such as using the informant to transport the
    suspects to meetings and providing a vehicle to the suspects. According to
    Alvarez, once the district court heard all the evidence, the court should have
    realized that the sting operation violated Alvarez’s due process rights and sua
    sponte dismissed the indictment. The district court’s failure to do so, he argues,
    was plain error.
    “We have recognized that government infiltration of criminal activity is a
    legitimate and permissible means of investigation and frequently necessitates the
    government agent’s supplying something of value to the criminal.” United States
    v. Puett, 
    735 F.2d 1331
    , 1335 (11th Cir. 1984). “Government involvement in
    criminal activity constitutes a due process violation only where it violates
    6
    ‘fundamental fairness, shocking to the universal cause of justice.’” United States
    v. Gianni, 
    678 F.2d 956
    , 960 (11th Cir. 1982) (citations omitted). We have
    repeatedly rejected “challenges to the ‘reverse sting’ method of police
    investigation.” United States v. Sanchez, 
    138 F.3d 1410
    , 1413 (11th Cir. 1998).
    The Supreme Court, however, has recognized the possibility that “the conduct of
    law enforcement agents [may be] so outrageous that due process principles would
    absolutely bar the government from invoking judicial processes to obtain a
    conviction.” United States v. Russell, 
    411 U.S. 423
    , 431–32, 
    93 S. Ct. 1637
    , 1643
    (1973). “One example of such outrageous conduct is when the government
    instigates the criminal activity, provides the entire means for its execution, and
    runs the entire operation with only meager assistance from the defendant.” 
    Puett, 735 F.2d at 1335
    .
    This Court has found the conduct of the government did not “approach that
    demonstrable level of outrageousness the case law suggests would be necessary for
    reversal of the[] defendants’ convictions” where: (1) federal agents contacted
    individuals suspected of being involved in home invasions; (2) the defendant were
    then informed by these individuals that large amounts of drugs could be stolen in a
    home invasion; (3) the defendants voluntarily agreed to participate; (4) the
    defendants were involved without any investigation from the government; (5) they
    7
    had contact with the government only after they had already agreed to participate;
    and (5) the availability of the defendants, their weapons, and vehicles was not the
    result of any governmental activity. See 
    Sanchez, 138 F.3d at 1413
    –14.
    The district court did not err by failing to sua sponte dismiss the indictment.
    First, Alvarez was not initially contacted by a government agent to participate in
    the conspiracy. Instead, Gonzalez testified that, while he was acting as a
    confidential informant, he contacted codefendant Lamar to allegedly buy cocaine.
    After Gonzalez proposed a cocaine robbery to Lamar, Lamar told Gonzalez that he
    would contact other individuals who had experience in that area. Lamar then
    contacted Alvarez. Second, Alvarez voluntarily chose to participate in the plan.
    Gonzalez testified that Lamar told Alvarez about the planned robbery, and Lamar
    immediately informed Gonzalez that Alvarez had agreed to participate. Third,
    Alvarez had no contact with the government until he had already informed Lamar
    that he wished to participate. Fourth, Alvarez recruited another individual into the
    scheme. Finally, the government did not induce Alvarez into participating in the
    scheme, but only offered a vehicle after Alvarez had already agreed to participate.
    Accordingly, the evidence shows that the government did not instigate the
    criminal activity as it related to Alvarez, provide the entire means for the
    completion of the crime—particularly in light of the fact that Alvarez himself acted
    8
    as a recruiter—or run the operation with only “meager assistance” from Alvarez.
    See 
    Puett, 735 F.2d at 1335
    . Thus, these facts do not rise to the level of outrageous
    conduct required to warrant a reversal of Alvarez’s conviction. See 
    Sanchez, 138 F.3d at 1413
    –14.
    AFFIRMED.
    9