United States v. Smith

• Decision Date: 02 July 2019
• Docket Number: No. 17-13265; 17-13330,17-13265; 17-13330
• Citation: 928 F.3d 1215
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Renado SMITH, Richard Delancy, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

928 F.3d 1215

UNITED STATES of America, Plaintiff-Appellee,

v.Renado SMITH, Richard Delancy, Defendants-Appellants.

No. 17-13265; 17-13330

United States Court of Appeals, Eleventh Circuit.

July 2, 2019

Lisa A. Hirsch, Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, Miami, FL, Brandy Brentari Galler, U.S. Attorney's Office, West Palm Beach, FL, for Plaintiff-Appellee.

Albert Zachary Levin, Law Office of Albert Z. Levin, PA, Miami, FL, Anshu Budhrani, Federal Public Defender's Office, Miami, FL, for Defendant-Appellant RENADO SMITH.

Brenda Greenberg Bryn, Federal Public Defender's Office, Fort Lauderdale, FL, Anshu Budhrani, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, Miami, FL, for Defendant-Appellant RICHARD DELANCY.

Before ROSENBAUM, HULL and JULIE CARNES, Circuit Judges.

HULL, Circuit Judge:

After a jury trial, defendants Renado Smith and Richard Delancy appeal their convictions for conspiracy to commit alien smuggling, alien smuggling, and attempted illegal reentry. Both defendants argue that at trial the district court erred in admitting the videotaped deposition testimony of passenger Vanessa Armstrong Vixama, a smuggled alien in their boat. Smith also argues that the prosecutor’s improper comments to the jury during closing argument warrant a new trial. After careful review of the record and the parties’ briefs, and with the benefit of oral argument, we affirm Smith and Delancy’s convictions.

I. TRIAL EVIDENCE

We recount the overwhelming trial evidence of alien smuggling in this case.

For starters, on November 4, 2016, defendants Smith and Delancy, both Bahamian nationals, set out from Freeport, Bahamas on a 24-foot Grady White boat with 21 passengers. Smith was the operator of the vessel, and Delancy assisted him.

Of the 21 passengers on the boat, 20 were Haitian nationals, including Vixama, and one was a Bahamian national. Sometime after leaving Freeport, this small boat ran out of fuel and drifted at sea for approximately six days. There was little water and no food on the boat.

Fortunately for the passengers, on November 9, 2016, a U.S. Customs and Border Protection ("CBP") aircraft, conducting a routine border security patrol, spotted the boat drifting about 24 miles off the coast of Key Largo, Florida. The boat was also about 24 miles to the southwest of Bimini, Bahamas and was drifting in a northerly direction with the Gulf Stream current. The CBP aircraft personnel notified the U.S. Coast Guard of the boat’s position and continued to monitor the boat from the air until a Coast Guard vessel arrived.

A Coast Guard cutter was dispatched to the boat’s location and used a small boat to ferry passengers from the disabled boat to the cutter. The passengers, who were tired and dehydrated but otherwise in good health, were eager to leave the disabled boat. Smith and Delancy, however, asked Coast Guard personnel to supply the two of them with water and fuel to continue their trip. A Coast Guard officer advised them that the Coast Guard could not provide them with fuel, and Smith and Delancy agreed to board the cutter.

At the time, Smith and Delancy claimed that they were taking the passengers to Bimini, Bahamas. Coast Guard officers testified, however, that they were skeptical of the defendants’ claims because they "didn’t make sense." The officers explained that the boat was found south of Bimini, approximately halfway between Bimini and Key Largo. Because the current in that area generally travels north, it would not make sense for the boat to have drifted south past Bimini after becoming disabled. Both officers acknowledged, however, that because the boat had been adrift for six days, it would be difficult to determine what the boat’s original route had been.

The CBP aircraft pilot who located the boat testified that, in his experience, vessels traveling from the Bahamas to the United States do not always take a straight route and sometimes take evasive actions to "disguise exactly what they’re doing." Similarly, Homeland Security Investigations ("HSI") Agent Craig Nowicki, the case agent, testified that people involved in smuggling aliens "find various routes to avoid law enforcement detection."

The Coast Guard processed all 23 people who were taken off the boat (including Smith and Delancy). None of the 21 passengers had any identification documents with them, nor did they have permission to enter or reside in the United States. Smith and Delancy both were previously removed from the United States and did not have permission to reenter.

In addition to the location of the boat, there was other considerable evidence showing that the defendants were bringing the aliens to the United States, not Bimini. For example, this was not even the defendants’ first attempt to illegally enter the United States. Smith had a prior June 2013 conviction for alien smuggling for profit, and Delancy had a prior November 2013 conviction for illegal reentry after deportation. As discussed later, the first page of each judgment of conviction was admitted into evidence at trial. Among other things, those judgments reflected: (1) that both defendants’ prior convictions took place in the West Palm Beach Division of the Southern District of Florida; (2) the dates of each defendant’s prior offense and conviction; (3) the statute under which each defendant was convicted; and (4) the nature of the offense.

Two of the boat’s passengers also testified they believed the boat was headed to the United States. Specifically, two passengers gave videotaped depositions that were played for the jury and admitted into evidence at trial. As discussed in greater detail below, the defendants did not object to the admission of one passenger’s deposition (that of Davidson Francois), but did object to the other (that of Vanessa Armstrong Vixama). We review what Francois said first.

Passenger Davidson Francois testified that he is from Cap-Haitien, Haiti. In 2016, Francois left Haiti and traveled to Freeport, Bahamas. After arriving in Freeport, Francois’s father told him that a trip was being planned to bring Francois to the United States so that Francois could go to school. A few months later, in November 2016, Francois boarded the defendants’ boat and left Freeport with about 21 other passengers. Francois testified that it was night time when he boarded the boat and that Smith drove while Delancy "help[ed] out." After leaving Freeport, the boat got lost and spent six days at sea.

Francois expressly testified that other passengers on the boat said they were headed to the United States, and Francois likewise believed the boat was going to the United States. Francois admitted, however, that he did not personally know where the boat was heading when he left Freeport because the defendants "didn’t tell [the passengers] anything." Notably though, Delancy did discourage the passengers from waving at other boats or using their cell phones.

Specifically, during those six days, Francois saw several other boats pass by. One boat stopped and provided them with bread and water, but no other boats came to their aid. But when the passengers attempted to get the attention of the other boats that were passing, Delancy told them not to wave at the other boats or attract their attention "because we don’t know what kind of boats they are." Delancy also told the passengers to turn their cell phones off during the trip and that he did not want them using their phones for any reason. Some of the passengers did attempt to use their phones but were unable to get a signal at sea.

While Francois’s testimony was admitted without objection, the defendants objected to the government using the videotaped deposition of passenger Vanessa Armstrong Vixama, who also was from Haiti. Vixama’s testimony was strikingly similar to Francois’s. Vixama traveled to Freeport, Bahamas from Haiti in April 2016. Her plan was to travel then from the Bahamas to the United States illegally, as she previously had applied for and been denied student visas to the United States on three separate occasions. A friend of Vixama’s mother arranged the trip for Vixama, and Vixama’s family paid $5,000 for her passage.

Late one night in November 2016, Vixama got on a boat in Freeport with 20 to 22 other people to come to the United States. Vixama testified that she believed she was going directly from Freeport to Miami, and one of the defendants told her it would be about a three-hour trip. Smith drove the boat while Delancy held a GPS device and talked to Smith.

After leaving Freeport, the boat got lost and ran out of gas. When a fishing boat passed by, the passengers pooled their money to buy gas so they could continue their trip. There was no food on the boat, and they ran out of water after the first day at sea.

Vixama and other passengers had cell phones with them on the boat and attempted to use them while the boat was lost, but could not get any signal. When Delancy noticed the lights from their phones, he told the passengers to turn their phones off when other boats were going by. Vixama guessed that this was "so that the police wouldn’t see us." Initially, Delancy also told the passengers not to wave their life jackets in the air to attract the attention of other boats, but by their sixth day lost at sea, Delancy relented and the passengers used the life jackets to attract the attention of the Coast Guard cutter, which rescued them after their six days at sea with little food or water.

II. PROCEDURAL HISTORY

A. Indictment

A federal grand jury indicted both Smith and Delancy on (1) one count of conspiracy to encourage and induce an alien to come to, enter, and reside in the United States, knowing and in reckless disregard of the fact that such coming to, entry, and residence is and will be in violation of law, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) (Count 1); and (2) 21 counts of knowingly encouraging and inducing an alien to...