U.S. v. Perez

• Decision Date: 21 March 2006
• Docket Number: No. 05-12404 Non-Argument Calendar.,05-12404 Non-Argument Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miguel PEREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

443 F.3d 772

UNITED STATES of America, Plaintiff-Appellee, v. Miguel PEREZ, Defendant-Appellant.

No. 05-12404 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

March 21, 2006.

Philip Robert Horowitz, Law Office of Philip R. Horowitz, Miami, FL, for Perez.

Anne R. Schultz, Jeffrey E. Tsai, Laura Thomas Rivero, Miami, FL, for U.S.

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

Before TJOFLAT, BIRCH and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

Miguel Perez appeals his conviction, entered after a two-day bench trial, for multiple counts of bringing aliens to the United States knowing, or in reckless disregard of the fact that the aliens had not received prior authorization to enter the country, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). The charges arose from law enforcement's discovery of six Cuban nationals on a boat from which Perez, along with a co-defendant, the owner of the boat, had disembarked at Matheson Hammock in southwestern Miami-Dade County. On appeal, Perez argues the district court erred by: (1) denying his motion to suppress evidence seized from the boat; (2) admitting evidence of his 2002 conviction for smuggling aliens, pursuant to Fed.R.Evid. 404(b); and (3) denying his motion for judgment of acquittal, pursuant to Fed. R.Crim.P. 29, in which he argued the government failed to show that he knowingly committed the offense or acted with reckless disregard of his passengers' status as illegal aliens. After thorough review, we affirm.

I.

"A district court's ruling on a motion to suppress presents a mixed question of law and fact." United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999). We accept the district court's factual findings as true unless the findings are shown to be clearly erroneous. Id. at 1240-41. All facts are construed in the light most favorable to the prevailing party below. United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir.2000). The district court's application of the law to the facts is reviewed de novo. Id. We review for abuse of discretion a district court's ruling on the admissibility of evidence of uncharged conduct under Rule 404(b). See United States v. Miller, 959 F.2d 1535, 1538 (11th Cir.1992) (en banc). We review de novo the district court's denial of a motion for judgment of acquittal, viewing the facts and drawing all inferences in the light most favorable to the government. See United States v. Descent, 292 F.3d 703, 706 (11th Cir.2002), cert. denied, 537 U.S. 1132, 123 S.Ct. 913, 154 L.Ed.2d 820 (2003). To affirm the denial of a motion for judgment of acquittal, filed pursuant to Fed.R.Crim.P. 29, we need determine only that a reasonable factfinder could conclude that the evidence established the defendant's guilt beyond a reasonable doubt. Id.

The relevant facts are straightforward. On August 6, 2004, Perez and his co-defendant, Juan Carlos Valdez, were indicted for one count of conspiring to bring aliens into the United States illegally, in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324(a)(2)(B)(iii) (Count 1), and six counts of bringing aliens into the United States illegally, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii) and 18 U.S.C. § 2 (Counts 2-7). Before trial, Perez filed a motion to suppress evidence discovered by the government at the time of his arrest. In his motion, Perez stated that, on July 25, 2004, law enforcement agents from the Miami-Dade County Police Department ("MDPD") and the U.S. Border Patrol boarded a boat at the Matheson Hammock Marina, without consent or a warrant, and discovered six illegal aliens whose entry into the United States formed the basis of the charges against him. Perez argued that: (1) the stop was not a valid border search since there was no evidence the boat had crossed an international boundary; and (2) the encounter was not a valid Terry¹ stop because the law enforcement officers did not have reasonable suspicion of illegal activity. Also before trial, the government filed notice of its intent to introduce evidence of Perez's prior conviction for alien smuggling, pursuant to Fed. R.Evid. 404(b).

At the suppression hearing, MDPD Lieutenant Arthur Gonzalez testified that on the evening of July 25, 2004, while performing an off-duty residential patrol in southwest Miami-Dade County, he entered Matheson Hammock Marina and observed a boat docking with four men on it. This observation took place at about 1:00 A.M. and Lt. Gonzalez testified that, given the "rough" weather, he found it unusual for a boat to be docking that late in the evening. Lt. Gonzalez turned off the engine of his unmarked police cruiser and watched as the 28-foot Roberts fishing boat entered its dock location. Lt. Gonzalez said that the men on the boat watched him as he drove by and that they appeared to be "confused" and "awkward" in their handling of the boat. He also observed no indication that the men had been fishing, but rather, that they looked "very clean" and "neat," which, to Lt. Gonzalez, was not consistent with fishing.

After the men had loaded the boat onto a trailer, Lt. Gonzalez approached them as they were standing next to the truck. He was alone and in uniform, did not draw his gun, and did not block the truck's exit from the area with his patrol car. After he briefly flashed his blue lights, he left his patrol car's high-beams on in order to illuminate the scene. He approached the men and asked: "You guys okay? What are you doing here so late?" to which Valdez responded that they had been fishing. When Lt. Gonzalez asked the men if they had identification, each produced a Florida driver's license. Lt. Gonzalez then asked who owned the truck and boat, and Valdez responded that they were his and produced registration for the truck. Valdez said that the boat registration was on the boat and asked if Lt. Gonzalez wanted to see it. At that point, Perez volunteered to retrieve the registration from the boat and asked if Lt. Gonzalez wanted to come with him.

After boarding the boat, Perez began looking for the registration documents. Unable to find them, he asked for Valdez's help, who, in turn informed Perez that the papers were in the cabin. Perez then began speaking in a loud voice as he approached the boat's cabin and appeared "nervous" and "jittery" when he opened the cabin door. Lt. Gonzalez found four people inside who, he later learned, were Cuban nationals illegally entering the country from Cuba. The two other men, who Lt. Gonzalez had observed helping Perez and Valdez load the boat, were also illegal aliens from Cuba. At the time he discovered the Cuban nationals, Lt. Gonzalez estimated that about five or six minutes had passed since the time he initially approached the men. At no point had Perez or any other person asked to leave and Lt. Gonzalez never told the men that they were not free to leave.

The district court denied Perez's motion to suppress, finding that Lt. Gonzalez's initial encounter with Perez and the others was consensual, despite the fact that he flashed his blue lights and was in uniform. The court reasoned that Lt. Gonzalez did not tell the men that they were being detained and did not remove his weapon or "perform any acts that would indicate the Defendants were detained." Thus, the court found that the encounter was consensual and there was no Fourth Amendment violation.

After denial of his suppression motion, Perez filed a pre-trial motion to "strike" the government's introduction at trial of his 2002 conviction for alien smuggling as Fed.R.Evid. 404(b) evidence. Perez argued that there was no similarity between the extrinsic act and the current offense and therefore, the evidence did not tend to show it was more probable that he engaged in alien smuggling in the instant case. He also urged that the evidence was not offered for a legitimate evidentiary purpose, but rather to show simply that he had a propensity to commit this sort of crime. Finally, he claimed that any probative value attributable to the fact of the prior conviction was undercut by the "long temporal gap between the extrinsic and charged offenses" and was outweighed by the danger of unfair prejudice. The district court did not rule on the motion before the start of trial.

At the subsequent bench trial, Lt. Gonzalez testified consistently with his testimony at the suppression hearing. The government also presented the testimony of Yamisleidy Estevez-Galindo, one of the Cuban nationals discovered on Perez's boat, hidden inside the cabin. In July 2004, she and her uncle, who was also a Cuban national, flew from Cuba to the Bahamas, where they stayed for two days before learning that a boat was coming in from, and returning to, the United States. Estevez-Galindo discovered that she and her uncle might be able to gain passage on the boat to the United States if they went and stood on a certain beach, waited for the boat, and obtained permission from the captain when the boat arrived. Estevez-Galindo went to the designated beach on the day the boat was supposed to arrive. After the boat failed to come on that day, Estevez-Galindo and her uncle spent the night on the beach and continued to wait. The boat appeared the next day and Estevez-Galindo secured two places on it for her and her uncle. She had with her her mother's Florida driver's license, which she had obtained in Cuba.

About three hours after leaving the Bahamas, the boat began to experience engine problems and Estevez-Galindo and the other passengers signaled to passing boats until the boat piloted by Perez and Valdez stopped. The Cuban nationals told Perez and Valdez that they were from Miami and that they had been fishing. Estevez-Galindo testified that the captain of the boat from the Bahamas had instructed her that if questioned, she should say that she had been fishing. When Perez or Valdez asked the aliens where they wanted to go, the aliens responded that they wanted to get...