595 F.3d 1214 (11th Cir. 2010), 09-10428, United States v. Caraballo

Docket Nº:09-10428.
Citation:595 F.3d 1214
Opinion Judge:MARCUS, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Abimel CARABALLO, Defendant-Appellant.
Attorney:Martin Juan Beguiristain, Miami, FL, for Caraballo. Lisette M. Reid, Anne R. Schultz, Asst. U.S. Atty., Dawn Bowen, Miami, FL, for U.S.
Judge Panel:Before MARCUS and WILSON, Circuit Judges, and RESTANI,[*] Judge.
Case Date:January 27, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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595 F.3d 1214 (11th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

Abimel CARABALLO, Defendant-Appellant.

No. 09-10428.

United States Court of Appeals, Eleventh Circuit.

January 27, 2010

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Martin Juan Beguiristain, Miami, FL, for Caraballo.

Lisette M. Reid, Anne R. Schultz, Asst. U.S. Atty., Dawn Bowen, Miami, FL, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before MARCUS and WILSON, Circuit Judges, and RESTANI,[*] Judge.

MARCUS, Circuit Judge:

Abimel Caraballo appeals his convictions for alien smuggling and his ensuing sentence. He claims that the district court erred in admitting evidence recovered from an unlawful search, and in admitting a standard INS form taken from the immigration files of the aliens he smuggled, in violation of the Federal Rules of Evidence and the Confrontation Clause of the Sixth Amendment. Caraballo also challenges his sentence of forty-six months' imprisonment, arguing that the district court made multiple errors in calculating the applicable

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sentencing range under the United States Sentencing Guidelines. After thorough review, we affirm Caraballo's convictions and his sentence.

I.

The basic facts are these: On August 7, 2007, at approximately 11:30 a.m., City of North Miami Marine Patrol Officer Dagoberto Andollo noticed a twenty-five-foot fishing boat entering Haulover Inlet in Miami, Florida. Using binoculars, he saw several fishing poles of disparate varieties (a heavy trolling rod, a heavy spinning rod, and a light spinning rod) on the boat and two individuals who were looking around nervously and appeared to be scanning the shoreline for law enforcement officers. Officer Andollo saw that once the vessel reached the shore, a black truck with a boat trailer hurriedly backed up to load the boat, and one of the passengers on the boat jumped into the water, waist-deep, to expedite the loading of the vessel onto the trailer. Andollo also saw the driver of the truck, the defendant Abimel Caraballo, exit his vehicle, enter the boat momentarily, and then return to the truck.

Because it was the first day of lobster season, the marine patrol officer was monitoring the Haulover Inlet area to ensure that fishermen were complying with state regulations concerning the number and size of lobsters they were permitted to catch. In particular, he was looking for lobster poachers, who often displayed fishing rods on their boats instead of a dive flag and dive gear in order to avoid notice and inspection. Suspecting that Caraballo's boat was engaged in lobster poaching, Andollo approached the boat and its occupants. He walked up to an individual still on the boat, Anderson Lopez, and asked him if they had caught any fish. Lopez first replied " yes" and then said " no." Asked to clarify his response, Lopez stated that they had not caught any fish because it was a slow day. Andollo then asked Lopez and the other individual on the boat, Edel Miranda, whether they had fishing licenses; they said no. The defendant, Caraballo, who was the driver of the truck, said that he had a license and that there were no fish on board the boat; he did not, however, produce a fishing license.

Andollo asked Lopez to provide identification; Lopez replied that his identification was on the boat. However, the officer could see the outline of Lopez's wallet in his pocket. Andollo asked Lopez to remove the object in his pocket. It was a wallet. Lopez opened it and handed Andollo his identification with shaking, nervous hands.

After receiving inconsistent answers to his questions from Lopez, Miranda, and Caraballo, and noting how nervous Lopez appeared to be, Officer Andollo decided to conduct a fisheries check on board the vessel, and called for assistance from other officers before boarding. After climbing onto the boat, Andollo opened the hatch of the cabin to ensure that no one else was on board who could jeopardize his safety. He observed eleven overheated and frightened passengers tightly packed inside of a small, enclosed cabin. Only one of the passengers could speak English. Ten were Chinese nationals and one was a Guyanese national. None had any immigration papers, and they appeared to the officer to be " extremely scared."

After opening the hatch further and offering the passengers water, Andollo contacted Immigration and Customs Enforcement (" ICE" ) agents, who took custody of the aliens. They were taken to the Pembroke Pines Border Patrol Station in Pembroke Pines, Florida, where they were interviewed by Customs and Border Patrol Officer Stephen Lloyd Rose. After gathering routine biographical information

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from each of the aliens based on a set of the same objective questions posed to all aliens upon entry into the United States, Rose completed an I-213 form, entitled Record of Deportable/Inadmissible Alien, for each one.

Customs and Border Patrol Agent Mark Samples arrested and took custody of Caraballo, Lopez, and Miranda. During his post-arrest interview, Miranda told Agent Samples that he and Lopez had told Caraballo only that they were taking the boat for a test run because they were considering purchasing it and that, therefore, Caraballo did not know that they were smuggling aliens. Lopez gave the same answer. The defendant Caraballo also told Agent Samples that he had lent the boat to Lopez and Miranda for a test run and that he had met Lopez several days earlier. Based on that information, Caraballo was released and Lopez and Miranda were arrested.

Samples continued his investigation and obtained records from Lopez's, Miranda's, and Caraballo's mobile telephones as well as from a satellite telephone found on the boat. These records showed that sixteen calls were made between Caraballo and Lopez, and fifteen calls were placed between Caraballo and Miranda on the morning of the alien smuggling venture. In addition, between July 25 and August 3, Caraballo and Lopez called each other fifty-eight times. There were also eight telephone calls that Caraballo made on the morning of the smuggling to the satellite phone on the vessel. The satellite telephone records also revealed that the satellite telephone was in the area of Freeport, Bahamas, on the morning of the smuggling venture.

On May 6, 2008, a federal grand jury, sitting in the United States District Court for the Southern District of Florida, returned a twenty-three count indictment charging Caraballo with (1) conspiring to encourage and induce aliens to come to, enter, and reside in the United States illegally, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) (Count I); (2) knowingly encouraging or inducing an alien to come to, enter, and reside in the United States, in violation 8 U.S.C. § 1324(a)(1)(A)(iv) (Counts II-XII); and (3) bringing aliens to a place other than a designated port of entry, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii) and 18 U.S.C. § 2 (Counts XIII-XXIII).

Soon thereafter, Caraballo moved in limine to exclude the immigration files of the aliens that he smuggled (the " A-Files" ), which included the I-213 form completed by Rose, claiming both that they contained inadmissible hearsay and were testimonial in nature, rendering their admission a violation of the Sixth Amendment's Confrontation Clause. The district court granted the motion in part and denied it in part, observing that " [t]o the extent the ‘ A-Files' include testimonial statements, such statements are inadmissible," but also finding that, generally, the standard pedigree information contained in the A-Files would not violate the Confrontation Clause because it was not testimonial in nature.

Caraballo also claimed that Officer Andollo's search of his boat exceeded his lawful authority under Florida law, and, therefore, the fruits of the search should be suppressed. After conducting an evidentiary hearing, the district court denied the suppression motion, concluding that Andollo had authority under Fla. Stat. § 370.01(6) to enforce Fish and Wildlife Commission laws, and that his authority included the power to search and inspect vessels without a warrant when officers " have reason to believe that fish or saltwater products are taken ... in violation of laws or rules ...." (7/14/2008 Order on Motion to Suppress, Case No. 08-20266-

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CR, at 6-7). The district court also determined that Andollo had reasonable suspicion to conduct an investigatory stop based on the behavior of Lopez and Miranda, the nature and arrangement of their fishing equipment, and the fact that it was the first day of lobster season. The court also found that the failure of Lopez and Miranda to provide fishing licenses, their conflicting stories, and the manner in which they quickly attempted to trailer the boat to Caraballo's truck, provided Andollo with probable cause to search the vessel. Finally, the district court concluded that the search of the cabin was a constitutionally permissible limited protective sweep.

At trial, co-conspirator Lopez, testified on behalf of the United States that he was first introduced to the alien smuggling venture when Gardino Martinez invited him to meet with the defendant Caraballo. At that time, Caraballo asked Lopez to travel to the Bahamas in order to pick up eleven aliens and transport them to Miami. Lopez said that he, Martinez, Caraballo, and another individual named Ariel met in Caraballo's living room on August 4th to discuss the plan. On August 6th, Lopez had another planning meeting with Caraballo, Miranda, and Ariel, and Lopez and Miranda decided to leave for the Bahamas that evening. Caraballo instructed Lopez how to get to Freeport, how to...

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