U.S. v. Bernal-Benitez

• Decision Date: 25 January 2010
• Docket Number: No. 08-10308.,08-10308.
• Citation: 594 F.3d 1303
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fabian BERNAL-BENITEZ, Fredy Villafuerte, Jesus Cervantes-Guzman, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

594 F.3d 1303

UNITED STATES of America, Plaintiff-Appellee, v. Fabian BERNAL-BENITEZ, Fredy Villafuerte, Jesus Cervantes-Guzman, Defendants-Appellants.

No. 08-10308.

United States Court of Appeals, Eleventh Circuit.

January 25, 2010.

Jose Rafael Rodriguez (Court-Appointed), Miami, FL, for Bernal-Benitez.

Mauricio L. Aldazabal (Court-Appointed), Coral Gables, FL, for Villafuerte.

Thomas F. Almon (Court-Appointed), Miami, FL, for Cervantes-Guzman.

Jon M. Juenger, Anne R. Schultz, Miami, FL, for U.S.

Before TJOFLAT, BLACK and COX, Circuit Judges.

TJOFLAT, Circuit Judge:

On July 10, 2007, FBI agents arrested Fabian Bernal-Benitez ("Bernal"), Mario Miguel Santibanez-Antunez ("Santibanez"), Fredy Villafuerte, and Jesus Cervantes-Guzman ("Cervantes") for attempting to buy cocaine from an FBI informant in Miami. On August 30, 2007, a Southern District of Florida grand jury returned a five-count indictment against the four arrestees. Count 1 charged all four with violating 21 U.S.C. § 846 by conspiring to possess cocaine from July 9, 2007, to July 10, 2007, with the intent to distribute. Count 2 charged them with attempting to possess cocaine with the intent to distribute on July 10, 2007, in violation of 21 U.S.C. § 846.¹ Counts 3, 4, and 5 charged Bernal, Santibanez, and Cervantes, respectively, with an immigration violation.² Bernal, Santibanez, and Cervantes each pled guilty to his respective immigration violation, but all four men proceeded to trial before a jury on Counts 1 and 2. The jury found Bernal, Villafuerte, and Cervantes guilty on both counts. The jury was unable to reach a verdict in Santibanez's case, and the court, having reserved ruling on Santibanez's motion for judgment of acquittal, granted the motion.³

Bernal, Villafuerte, and Cervantes now appeal their convictions. Villafuerte and Cervantes also appeal their sentences. We begin our discussion of these appeals by setting out the facts a reasonable jury could have found from the evidence, and then address the arguments appellants have presented.

I.

Appellants and Santibanez were arrested as they were in the process of purchasing three kilograms of cocaine from a paid FBI informant, Carlos Mejia. Mejia had dealt large quantities of cocaine in the 1980s and 1990s, but began working for the FBI as an informant after other drug traffickers kidnaped him and took his money.

On June 26, 2007, Mejia spoke on the phone with a person in Mexico going by the nickname "el Primo." El Primo offered to give Mejia the phone number of a person in the United States who wanted to buy cocaine; the next day, he gave Mejia the phone number for a person going by the name "Jose." Mejia called Jose that day, and the two arranged to meet in Miami to discuss a cocaine deal. On June 29, Mejia met Jose in North Miami Beach at an Arby's restaurant. Jose said that he was interested in buying between twenty and twenty-five kilograms of cocaine, but that he needed to go to Fort Lauderdale to get the money. Jose called Mejia on July 4 and indicated that he was going to send someone to pick up the cocaine the next day, but no one ever appeared.

Jose called Mejia once more on July 9, indicating again that several people were interested in meeting with Mejia to buy cocaine. Jose told Mejia to expect a call from someone identifying himself as calling on behalf of "Camaleon." Fifteen minutes later, Bernal called Mejia, introduced himself as "Adrian, on behalf of Camaleon," and said he wanted to buy three kilograms of cocaine. The two arranged to meet the next day. Mejia and Bernal spoke several times on July 10 to identify each others' vehicles and for Mejia to give Bernal directions to the meeting place, which was a Taco Bell parking lot in North Miami Beach.

Mejia discussed the proposed drug deal with the FBI agent handling him and a sting operation was set up. FBI agents gave Mejia one kilogram of real cocaine and two kilograms of sham cocaine, placed an audio recording device on his keychain, and established a perimeter around the Taco Bell parking lot.

The appellants and Santibanez met Mejia in the Taco Bell parking lot in the evening of July 10. They arrived in a black Jeep Cherokee and parked next to Mejia's Nissan Pathfinder. Santibanez drove, Bernal sat in the front passenger seat, Cervantes sat in the rear driver-side seat, and Villafuerte sat in the rear passenger-side seat. When they arrived, Bernal and Mejia got out and met between the two vehicles. Seconds later, Santibanez got out and joined them.

Bernal told Mejia that he had brought $35,000 for two kilograms of cocaine. When Mejia said he thought the deal was for three kilograms, Bernal responded that they would take two kilograms then and come back for two more later. The three men then went to the front passenger side of the Cherokee where Mejia was shown a bag full of money in the front seat and spoke a prearranged phrase to tell the listening FBI agents that the defendants had brought the money. As Mejia and Bernal walked back to Mejia's Pathfinder, Cervantes and Villafuerte got out of the back seat of the Cherokee. Mejia showed Bernal the cocaine in the Pathfinder, and the FBI agents closed in and arrested all four men.

The agents found two bags of money in the Jeep Cherokee: a red bag on the front seat contained $35,000, and a yellow bag in the rear passenger-side footwell near where Villafuerte had sat held $19,600. The agents also found several prepaid cell phones in the vehicle. Because they were prepaid phones, the agents could not determine who owned which phone, but the phones' call logs indicated that they had been used to call each other and that Bernal had used one of the phones to call Mejia to set up the deal.

II.

Appellants challenge their convictions on a variety of grounds. Bernal argues that the evidence was insufficient to convict him on Count 2 and seeks a judgment of acquittal on that count. All appellants seek a new trial on two grounds: (1) two individuals were struck from the venire, and therefore were not seated on the jury, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and (2) some of the prosecutor's comments to the jury in closing argument were improper and denied the appellants a fair trial. Villafuerte seeks a new trial on the additional ground that the district court erred in denying his pretrial motion to suppress his post-arrest confession to the FBI agents and in admitting the confession into evidence at trial. We consider these challenges in order.

A.

At the close of the Government's case in chief, Bernal moved the district court pursuant to Federal Rule of Criminal Procedure 29 for a judgment of acquittal on Counts 1 and 2. The court denied his motion. He renewed his Rule 29 motion at the close of all the evidence; it too was denied. Bernal now contends that the court erred in denying the motion as to Count 2.

To sustain a conviction for attempted possession with intent to distribute cocaine, the government must prove beyond a reasonable doubt that the defendant[] (1) acted with the kind of culpability required to possess cocaine knowingly and wilfully and with the intent to distribute it; and (2) engaged in conduct which constitutes a substantial step toward the commission of the crime under circumstances strongly corroborative of their criminal intent.

United States v. McDowell, 250 F.3d 1354, 1365 (11th Cir.2001). Bernal argues that the court should have granted his motion for acquittal on Count 2 because the Government failed to establish via expert testimony that the cocaine he was attempting to possess was actually cocaine. We are not persuaded.

The Government did not have to prove that what Bernal was attempting to possess was in fact cocaine; rather, it only had to prove that Bernal intended to obtain cocaine. See, e.g., United States v. Root, 296 F.3d 1222, 1229 (11th Cir.2002) (noting that "this Court has affirmed attempt convictions when the defendant could not have achieved the final required act because it would have been impossible to commit the actual crime" and citing cases in which the defendant was convicted for attempt even though sham drugs were used).

In detailing in part I, supra, the facts underlying appellants' convictions, we adhered to the standard for determining whether the evidence presented to the jury was sufficient to withstand Bernal's Rule 29 motion. That is, we viewed the evidence, and the inferences reasonably drawn therefrom, in the light most favorable to the Government, giving the Government the benefit of all credibility choices. United States v. Merrill, 513 F.3d 1293, 1299 (11th Cir.2008). The facts the evidence yielded well established each of the elements of the Count 2 offense. Bernal's sufficiency-of-the-evidence argument therefore fails.

B.

1.

A magistrate judge empaneled the jury with the consent of the parties. He began the jury selection process by questioning each member of the venire about potential biases, then let counsel for both sides address and question the pool.⁴ The judge next entertained challenges for cause. After disposing of the challenges, he went down the list of remaining venire persons one-by-one in numerical order—so the parties could exercise their peremptory challenges—until twelve jurors and two alternates were selected. The defense was initially given collectively ten peremptory challenges and the Government six. At the defendants' request, however, the judge increased those totals to fifteen for the defense and nine for the Government.

The defendants presented two Batson objections during the selection process, both now before us. The first objection challenged the Government's peremptory strike of venire person number 9. The defense noted that she "is a black female," and stated that "[s]he gave no comments at all that would rationalize the Government striking her, short of being a black female." The judge held that the defense failed to...