United States v. Tercero
| Decision Date | 14 June 2021 |
| Docket Number | No. 20-10920,20-10920 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDWIN EDGARDO TERCERO, a.k.a. Edwin Edgardo Tercero-Martinez, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
D.C. Docket No. 3:19-cr-00041-RV-1
Appeal from the United States District Court for the Northern District of Florida
Before JORDAN, GRANT, and ANDERSON, Circuit Judges.
Edwin Tercero appeals his conviction and sentence for one count of illegally transporting aliens within the country for private financial gain. On appeal, Tercero raises two issues. First, he challenges the district court's admission of evidence, which was offered under Fed. R. Evid. 404(b), regarding three prior traffic stops that he was involved in: (1) a 2010 Florida stop, (2) a 2016 Alabama stop, and (3) a 2018 Mississippi stop. Specifically, he argues that the evidence was inadmissible both because it did not meet the test for admissibility under Rule 404(b) and because the stops were not supported by reasonable articulable suspicion. He also asserts that the statements he made after the Alabama and Mississippi stops were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Second, he contends that, at sentencing, the district court: (1) improperly departed above his guideline range without sufficient advance notice; and (2) relied on an improper factor—namely, that he had previously smuggled "hundreds of illegal aliens," some of them with criminal records, without being prosecuted for it—that was based on speculation rather than admissible evidence.
We address each issue in turn.
"We review for abuse of discretion a district court's ruling on the admissibility of evidence of uncharged conduct under Rule 404(b)." United States v. Perez, 443 F.3d 772, 774 (11th Cir. 2006). Evidentiary errors are subject toharmlessness review. United States v. Green, 873 F.3d 846, 866 (11th Cir. 2017). "A non-constitutional evidentiary error does not warrant reversal unless there is a reasonable likelihood that the error affected the defendant's substantial rights," and "[w]e look to whether the error had substantial influence and whether enough evidence supports the result apart from the error." Id. at 867.
"Rule 404(b) prohibits [admitting] evidence of another crime, wrong, or act to prove a person's character in order to show action in conformity therewith." United States v. Sanders, 668 F.3d 1298, 1314 (11th Cir. 2012); see Fed. R. Evid. 404(b)(1). Such evidence, however, "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid. 404(b)(2). "Rule 404(b) 'is one of inclusion which allows extrinsic evidence unless it tends to prove only criminal propensity." Sanders, 668 F.3d at 1314 (emphasis added). For such evidence to be admissible, (1) it must be relevant to an issue other than a defendant's character; (2) there must be sufficient proof of the prior act to allow a jury to determine that the defendant committed the prior act, and (3) the evidence's probative value must not be substantially outweighed by undue prejudice and otherwise meet the requirements of Rule 403. See id. As to the first prong of the Rule 404(b) admissibility test, we have held that a defendant's prior alien-smuggling conviction was relevant to establish his knowledge of the aliens' illegal status. Perez, 443 F.3d at 779-80.
A decision on the third prong, "lies within the sound discretion of the district judge," and it requires consideration of, among other things, "prosecutorial need, overall similarity between the extrinsic act and the charged offense, [and] temporal remoteness." United States v. Calderon, 127 F.3d 1314, 1332 (11th Cir. 1997). "A similarity between the other act and a charged offense will make the other offense highly probative with regard to a defendant's intent in the charged offense." United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005). On the other hand, though, the "more closely the extrinsic offense resembles the charged offense, the greater the prejudice to the defendant," since it increases "[t]he likelihood that the jury will convict the defendant because he is the kind of person who commits this particular type of crime or because he was not punished for the extrinsic offense." United States v. Beechum, 582 F.2d 898, 915 n.20 (5th Cir. 1978) (en banc). A limiting instruction after the close of evidence can lower the risk of undue prejudice to a defendant. See Ramirez, 426 F.3d at 1350, 1354. "A jury is presumed to follow the instructions given to it by the district judge." Id. at 1352 ().
Under Terry v. Ohio, 392 U.S. 1, 30 (1968), police can "stop and briefly detain a person for investigative purposes" if they have "a reasonable suspicionsupported by articulable facts that criminal activity 'may be afoot,'" even if they lack probable cause. United States v. Sokolow, 490 U.S. 1, 7 (1989). "An officer may conduct a brief investigative stop of a vehicle, analogous to a Terry-stop, if the seizure is justified by specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct." United States v. Strickland, 902 F.2d 937, 940 (11th Cir. 1990). On the other hand, "[i]nvestigatory stops are invalid if they are solely based on 'unparticularized suspicion' or 'inarticulate hunches.'" Id. Nevertheless, "reasonable suspicion may exist even if each fact 'alone is susceptible of innocent explanation,'" and the proper approach to evaluating reasonable suspicion "examines the 'totality of the circumstances.'" United States v. Bautista-Silva, 567 F.3d 1266, 1273 (11th Cir. 2009).
When an officer reasonably suspects that a particular vehicle may contain aliens who are illegally in the country, "he may stop the car briefly and investigate the circumstances that provoke suspicion." Id. at 1271-72. This must be based on "more than an inchoate and unparticularized suspicion or hunch," but incudes "specific articulable facts, together with rational inferences from those facts." Id. at 1272. Factors an officer may consider include, but are not limited to: (1) characteristics of the area where the car is encountered; (2) prior experience with alien traffic; (3) driver behavior; (4) vehicle aspects; and (5), while aloneinsufficient to justify stopping a car, "the apparent Mexican ancestry of the occupants." See id. at 1273.
"The right to Miranda warnings attaches when custodial interrogation begins." United States v. Acosta, 363 F.3d 1141, 1148 (11th Cir. 2004). Although a person would not feel free to ignore the directive to pull over or leave a traffic stop, ordinary traffic stops are more like Terry stops, which are not subject to Miranda, than formal arrests. Berkemer v. McCarty, 468 U.S. 420, 436-40 (1984).
Admission of evidence obtained in violation of a defendant's Fourth Amendment rights is barred by "[t]he 'exclusionary rule.'" United States v. Taylor, 935 F.3d 1279, 1288 (11th Cir. 2019), cert. denied, 140 S. Ct. 1548 (2020). In this Circuit, Rule 404(b) evidence is subject to the exclusionary rule. See United States v. Renteria, 625 F.2d 1279, 1281-82 (5th Cir. 1980); also United States v. Hill, 60 F.3d 672, 680 & n.4 (10th Cir. 1995) ().
A person violates federal law when he knows, or is in reckless disregard of the fact, that an alien came to, entered, or remained in the United States illegally, and transports the alien within the United States in furtherance of such violation of law. 8 U.S.C. § 1324(a)(1)(A)(ii). If a defendant commits the offense "for thepurpose of commercial advantage or private financial gain," he is subject to imprisonment for up to 10 years. Id. § 1324(a)(1)(B)(i).
Here, both the Florida and Alabama traffic stops were supported by reasonable articulable suspicion, and the statements Tercero made after the Alabama stop were not obtained in violation of Miranda. Further, the evidence about these stops was admissible under Rule 404(b). We need not decide whether the Mississippi stop was supported by reasonable suspicion, because, even if its admission was error, it was harmless as explained below.
First, the 2010 Florida stop was supported by ample reasonable articulable suspicion. Among other reasons, the officer testified that he was prompted to stop Tercero because: (1) he was traveling on I-75, which had human smuggling taking place on it; (2) Tercero drove a minivan, a high-capacity type of car valuable to smugglers to increase profit margins, which "appeared to have a heavy weight in it"; (3) Tercero was Hispanic; (4) the car had Texas plates, which was "highly exploited by people involved in alien smuggling"; and (5) the car itself turned out to be registered to a Houston address that matched an address for an alien smuggling investigation. Thus, this stop was supported by specific articulable facts that alien smuggling was occurring. See Bautista-Silva, 567 F.3d at 1270-73.
Second, as to the 2016 Alabama stop, the officer testified that he stopped thecar because the license plate came back registered to a different colored van, it was a high-capacity car, and it was an anomaly for a car registered in Houston to travel east on U.S. 90 instead of I-10. This was sufficient reasonable articulable suspicion to stop the vehicle. See Bautista-Silva, 567 F.3d at 1270-73. Further, the questioning did not violate Miranda. See Berkemer, 468 U.S. at 436-40.
Finally, we can assume arguendo that the district court erred in admitting evidence about the Mississippi stop, but that error was harmless given the strength of the evidence against Tercero at trial. The intrinsic evidence in the case showed he was pulled over in a car that fit the...
To continue reading
Request your trial