U.S. v. Gari

• Decision Date: 30 June 2009
• Docket Number: No. 08-10014.,08-10014.
• Citation: 572 F.3d 1352
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Geormani Hernandez GARI, Diuvel Rodriguez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

572 F.3d 1352

UNITED STATES of America, Plaintiff-Appellee, v. Geormani Hernandez GARI, Diuvel Rodriguez, Defendants-Appellants.

No. 08-10014.

United States Court of Appeals, Eleventh Circuit.

June 30, 2009.

Ana M. Davide, Martin Juan Beguiristain, Miami, FL, for Defendants-Appellants.

Robert B. Cornell, Fort Lauderdale, FL, Anne. R. Schultz, Asst. U.S. Atty., Lisa T. Rubio, Miami, FL, for U.S.

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

Before TJOFLAT, BLACK and COX, Circuit Judges.

COX, Circuit Judge:

Thirty-four Cuban aliens were brought in a go-fast boat to shallow waters near North Key Largo under the cover of darkness. The aliens waded ashore and were apprehended. The two men who crewed the boat—Geormani Hernandez Gari and Diuvel Rodriguez—were also apprehended. This appeal follows the prosecution and conviction of Gari and Rodriguez on thirty-four counts of alien smuggling.

We consider whether the evidence at trial was sufficient to sustain the convictions. We also consider Defendants' arguments that their Sixth Amendment confrontation rights were violated by the district court's erroneous admission of I-213 forms (Record of Deportable/Inadmissible Alien) completed by Customs and Border Patrol agents. And, we consider arguments that the district court abused its discretion in admitting testimony of prior bad acts by Defendant Gari and in denying Defendant Rodriguez's motion for a separate trial.

We conclude that the evidence does not support Defendants' convictions on Count 4 and, for that reason, vacate their sentences and remand to the district court for resentencing. We affirm Defendants' convictions on all other counts.

I. BACKGROUND

Defendants Gari and Rodriguez were indicted on thirty-four counts of alien smuggling in violation of 8 U.S.C. § 1324(a)(2)(B)(iii).¹ This statute makes it illegal to bring or attempt to bring an alien to the United States, knowingly or in reckless disregard of the fact that the alien has not received prior official authorization to enter the United States, and without immediate presentation of the alien to an immigration official.

The Defendants were tried together. At trial, two Customs and Border Protection agents testified that they were flying a Black Hawk helicopter around 12:30 a.m. on June 25, 2007, when they saw a three-engine open fisherman boat, with no running lights on, overloaded with more than 30 people, near the shore of North Key Largo. When the agents directed a spotlight on the boat, between thirty and thirty-five people jumped into waist-deep water and headed to shore. The boat departed. The agents followed the boat in their helicopter, maintaining visual contact with the boat and keeping the spotlight on it as it fled and, eventually, docked. The same agents watched as the only two people on the boat—Gari and Rodriguez— were arrested by other law enforcement officials. Then, the helicopter returned to the location where the passengers had disembarked and located a group of approximately thirty-five people on shore nearby in a residential neighborhood. The agents in the helicopter watched the group until law enforcement officers arrived on the ground and began interacting with members of the group.

Customs and Border Protection Agent Alejandro Rodriguez testified that he met the group on the ground. He also testified, without objection, that members of the group were "walking down the street soaking wet" and that these people said they were from Cuba. (R.4 at 128.)

Customs and Border Patrol Agent Darrel Walraven testified that he too met the group of thirty-four aliens in a residential neighborhood in North Key Largo. Agent Walraven testified, without objection, that all the members of the group said they were from Cuba.² Agent Walraven arranged to have the aliens taken by bus to a Customs and Border Patrol station, where he assigned each of them an "A number," a unique number used to identify an alien entering the United States. As part of the process, Agent Walraven interviewed the aliens and completed thirty-four I-213 forms, one for each alien.

According to Agent Walraven, an I-213 Record of Deportable/Inadmissible Alien is

a form routinely completed by the Border Patrol for every alien who illegally enters or is present in the United States and is apprehended by the Border Patrol. The top portion of each I-213 form created by Agent Walraven on the morning of June 25, 2007, contains both information directly observed by Agent Walraven and information provided by the alien in response to Agent Walraven's questions. The information on the top portion of each form is unique to each alien and, therefore, to each I-213 form. Below that information, on the bottom portion of each I-213 form, there is a narrative section written by Agent Walraven. The narrative section is the same on each of these thirty-four forms. The narrative section contains Agent Walraven's summary of the thirty-four Cuban aliens' accounts of their travel to and arrival in the United States and observations of the law enforcement agents involved in their apprehension. The bottom section of each I-213 form also records the fact that Agent Walraven's search of immigration records for documents pertaining to each individual alien yielded no such records.

In response to Defendants' motions in limine requesting exclusion of the I-213 forms as testimonial hearsay that could not be cross-examined (in violation of their Sixth Amendment confrontation rights), the Government argued that the forms did not contain testimonial statements and were admissible pursuant to Federal Rule of Evidence 803(8), the public records exception to the hearsay rule. Defendants' motions were denied.

At trial, one of the I-213 forms was admitted, without objection, during the Government's direct examination of Agent Walraven. (Ex. 12; R.4 at 151.) However, when the Government moved to admit the thirty-three other I-213 forms (Exs. 11 and 13-44), Defendants objected on the bases previously stated in their motions in limine. The district court overruled the objections. In all, thirty-four I-213 forms were admitted in evidence.

Agent Walraven testified that, on June 25, 2007, he performed a search of immigration records and found no prior authorization for entry into the United States for any of the thirty-four aliens he processed that morning. The defense did not object to this testimony. On cross-examination, the defense showed Agent Walraven a copy of an Authorization for Parole of an Alien for one of the thirty-four aliens, Maria Dominguez-Alvarez, the subject of Count 4 of the indictment. The document was not admitted in evidence, but Agent Walraven testified that it appeared to be prior authorization for Alvarez to enter the United States through a designated port of entry.

The Government also presented Pablo Milian, a Special Agent with U.S. Immigration and Customs Enforcement stationed in Key Largo, who testified that, about three months prior to the June 25, 2007 incident, Defendant Gari had been found on a boat in the waters near Marathon, Florida, with twenty undocumented Cubans. Special Agent Milian testified that Gari was warned at that time "that it's illegal to have undocumented Cuban Nationals on your vessel in an attempt to bring them into the United States." (R.4 at 192.)

Gari had filed a motion in limine to exclude Special Agent Milian's testimony and other Federal Rule of Evidence 404(b) evidence. The court denied the motion and allowed the testimony over Gari's renewed objection at trial. The court also denied Defendant Rodriguez's day-of-trial request, made before the jury was selected, to sever the trials on the basis of his argument that evidence of Gari's prior bad acts would prejudice Rodriguez's defense and make it impossible for him to receive a fair trial. After Special Agent Milian testified, the court instructed the jury that his testimony was not evidence of guilt in the crime for which Defendants were being tried and should be considered by the jury only as evidence of Defendant Gari's state of mind.

Defendant Rodriguez presented no witnesses. Defendant Gari presented witness Rafael Florez, a Cuban alien who claimed to have arrived in the United States on the night of June 24, 2007, on a wooden boat with engines. Florez testified that he had not met Defendants before the week of trial. He also testified that he came to the United States with a large group of Cubans who traveled for two days. When they landed in the Florida Keys, a helicopter shined a light on them as they were walking down the street and police officers met the group and took them to a station for questioning. Florez confirmed that he is the man referred to in one of the I-213 forms admitted in evidence (Ex. 28) and that he did not have prior authorization to enter the United States. He also testified that his brother and a man named Yohan Ojito (a man named in Ex. 22, another of the I-213 forms) were on the boat from Cuba with him.

At the close of all the evidence, each Defendant made a motion for judgment of acquittal on each count pursuant to Rule 29 of the Federal Rules of Criminal Procedure. Defendants argued: (1) the Government had not proved that it was in fact Defendants who had attempted to bring the aliens into the United States; (2) the Government had not proved that each of the thirty-four aliens processed by the Border Patrol lacked prior authorization to enter the United States; and (3) the Government had not proved that Defendants brought each of the specific aliens identified by name in the indictment into the United States. The court denied the motions.

The jury found Defendants guilty on all thirty-four counts. The court sentenced each Defendant to ninety-six months' (eight years') imprisonment on each count, to be served concurrently, and twenty-four months' (two years') supervised release on each count, also to be served...