United States v. Dominguez

Citation661 F.3d 1051,86 Fed. R. Evid. Serv. 1264,23 Fla. L. Weekly Fed. C 524
Decision Date31 October 2011
Docket NumberNo. 07–13405.,07–13405.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Gustavo DOMINGUEZ, a.k.a. Gus, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

OPINION TEXT STARTS HERE

Benedict P. Kuehne, Susan Dmitrovsky, Law Office of Benedict P. Kuehne, P.A., Miami, FL, for DefendantAppellant.

Jonathan D. Colan, Anne R. Schultz, Asst. U.S. Atty., Kathleen M. Salyer, Lisa T. Rubio, Miami, FL, for PlaintiffAppellee.

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

Before TJOFLAT, COX and BLACK, Circuit Judges.

COX, Circuit Judge:

Gustavo Dominguez, a professional sports agent, was convicted of smuggling five Cuban baseball players into the United States, transporting the players from Miami to Los Angeles, and harboring them there until they applied for asylum. See 8 U.S.C. § 1324(a)(2), (a)(1)(A)(ii), and (a)(1)(A)(iii) (criminalizing the bringing in, transporting, and harboring of unauthorized aliens). The theory of prosecution was that Dominguez, and several codefendants not parties to this appeal, conspired to bring, unsuccessfully attempted to bring, and then successfully brought five Cuban baseball players to the United States so that the players could pursue professional baseball careers. And, the prosecution's theory was that Dominguez had a role in transporting and harboring the players after their arrival in the United States. Dominguez anticipated that, after the players arrived, he would represent them as their agent, negotiate any potential baseball contract, and collect a percentage of their earnings as a fee. The indictment alleged, and the jury found, that Dominguez smuggled the players for the purpose of commercial advantage or private financial gain. Based on this finding, the district court imposed a five-year mandatory minimum sentence under 8 U.S.C. § 1324(a)(2)(B)(ii).

Dominguez now appeals, challenging his convictions and sentences on various grounds. He argues, among other things, that the evidence did not support any of his convictions.

We conclude that the evidence does not support Dominguez's convictions of transporting and harboring aliens (Counts 44 through 53). We reverse these convictions and vacate their sentences. We conclude the evidence supports Dominguez's convictions of conspiracy to smuggle, aiding and abetting an attempted smuggle, and aiding and abetting a smuggle (Counts 1, 5, 6, 10, 13, 19, 28, 29, 33, 35, 40). We affirm these convictions and sentences. We find Dominguez's other assertions of error to be without merit.

I. BACKGROUND & PROCEDURAL HISTORY
A. Facts

Gustavo Dominguez is a native of Cuba and a naturalized United States citizen. 1 He works as a sports agent, and through his company, Total Sports International (“TSI”), he has represented over 100 baseball players, many of whom played for Major League baseball teams. Some of these baseball players were Cuban nationals who came to the United States without official documents authorizing their presence in the United States. This criminal case involves Dominguez's role in helping five Cuban nationals come to the United States in order to pursue professional baseball careers.

The smuggling venture at issue in this case began with Dominguez's relationship with Ysbel Medina–Santos (“Medina”). Medina has lived a life of crime; he has numerous prior convictions for drug trafficking, smuggling, insurance fraud, and money laundering. When he faced a lengthy prison sentence for drug smuggling, he agreed, in exchange for a potentially reduced sentence, to testify against Dominguez about his role in the smuggling of these Cuban baseball players.

According to Medina, he and Dominguez agreed in November 2003 to smuggle two Cuban players, Yuniesky Betancourt and Saydel Beltran, to the United States.2 In exchange for Medina's assistance in smuggling the players into the United States, Dominguez promised that the players would pay Medina 5% of any Major League baseball contract that they might sign. Dominguez anticipated that he would represent the players as their agent, negotiate any potential baseball contract, and collect a percentage of their earnings as a fee. The smuggle was successful and, with the help of Dominguez's representation, Betancourt signed a Major League contract for $2.8 million with the Seattle Mariners. Medina then asked Dominguez for 5% of the contract ($140,000). After Betancourt failed to pay the $140,000, Medina held Dominguez responsible for the money.

In July 2004, about eight months after the Betancourt–Beltran smuggle, Dominguez contacted Medina about smuggling more Cuban players into the United States. Dominguez and Medina agreed to bring five Cuban players to the United States: Francisely Bueno–Trueba, Osbek Castillo–Perez, Allen Guevara–Perez, Osmany Masso–Arredondo, and Yoankis Turino–Montalno. Medina told Dominguez, however, that he would not attempt to bring these players to the United States until he was paid at least $100,000 of the $140,000 that he was still owed for the Betancourt–Beltran smuggle. Dominguez then made two $50,000 transfers from an account he managed for another athlete client and wired the money to Medina, without the client's knowledge.

After Medina received the $100,000, he agreed to smuggle these five Cuban players. One of Medina's contacts called the players in Cuba, asked if they wanted to leave, and told them when and where they should meet the “fast boat.” Medina hired Geoffrey Rodrigues to drive the fast boat from Cuba to the United States.3

This July 2004 smuggling attempt failed. The United States Coast Guard intercepted the fast boat about ten miles south of Key West, Florida. When Rodrigues attempted to flee, the Coast Guard shot the engine of the boat to get it to stop. The five players were detained and returned to Cuba.

After the first attempt failed, Dominguez asked Medina about a follow-up smuggle. Medina agreed to the follow-up. Because Rodrigues had been caught, Medina hired Roberto Yosvany Hernandez to bring the players to the United States in exchange for $100,000.4 The smuggle was successful. The five players, along with over a dozen other Cubans, were dropped off in the water off Deer Key, Florida on August 22, 2004, around 5:00 a.m. All five players testified that they had no papers authorizing their entry into the United States when they arrived.

In exchange for smuggling the five players into the United States, Medina wanted $150,000. Dominguez had no problem sending the money, but he warned Medina not to continue using his same bank account and instead to have the money directed into a friend's account. After the players arrived on August 22, 2004, and continuing into September 2004, Dominguez transferred $125,000 into the accounts of two of Medina's friends, his father, and his sister. These individuals then paid Medina. Dominguez still owed Medina $25,000.

After the players arrived in the Florida Keys, Medina brought them to the Miami home of Andy Morales, who is a former Major League player and former Dominguez client. The players were given clothes, food, and shelter. Medina informed Dominguez that the players had arrived, and Dominguez asked Medina to drive the players to Los Angles with Ramon Batista.5 Medina, Batista, and the players left Miami on August 23 and arrived in Los Angeles on August 26.

When the players arrived in Los Angeles, Dominguez met them at a restaurant. He told them about his past successful representation of Cuban baseball players and that he could represent the players in similar fashion. All five players signed agency contracts with TSI. In addition to the contracts that the players signed with TSI, Dominguez had the players sign contracts obligating them to pay Medina a percentage of their baseball earnings. Dominguez and Medina intended for this arrangement to pay off the $25,000 balance that Dominguez owed Medina for the smuggle.

Shortly after the players arrived in Los Angeles, Dominguez arranged for Humberto Gray, an experienced immigration attorney who has done immigration work for TSI since the late 1990s, to process the players through immigration. By October, Gray had interviewed the players and was doing whatever was necessary to process them, including having them undergo examinations by physicians approved by United States Citizenship and Immigration Services (USCIS). Gray told Dominguez that he had set up an “initial appointment” for the players at the USCIS Los Angeles office sometime toward the end of October. Gray had the appointment changed to November because Dominguez had a conflict and would be unable to accompany the players to the USCIS office in October.

Meanwhile, TSI had the five players housed in an apartment complex. Every weekday, and on some Saturdays, they trained and played games at the Pierce College baseball facility in Woodland Hills. They were free to come and go as they pleased. They went out with friends, to restaurants, and to watch professional baseball games. The players were also featured in a documentary film that sought to portray the progression of Cuban baseball players in the United States. On November 12, TSI had the players tryout in front of scouts from almost all of the Major League clubs. The tryout was successful, as three of the five players signed Minor League contracts.

On November 19, Gray and Dominguez accompanied the five Cubans to the USCIS to apply for asylum and parole. They were paroled. Gray thereafter represented them before the USCIS. Turino and Guevara stayed in the United States. Bueno, Castillo, and Masso went to the Dominican Republic; Dominguez had arranged for them to play baseball in the Dominican Republic where they could be showcased before Major League scouts.

Dominguez testified at trial. “Dominguez's defense was based on testimony he was unaware the players were smuggled from Cuba and only found out they were in Miami...

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