US v. De La Cruz Suarez

• Decision Date: 31 March 2010
• Docket Number: 08-13808.,No. 08-13675,08-13675
• Citation: 601 F.3d 1202
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alexis DE LA CRUZ SUAREZ, a.k.a. Alexis de la Cruz, Ramon Barrabi-Puentes, a.k.a. Ramon Barrabi, Defendants-Appellants. United States of America, Plaintiff-Appellee, v. Jose Vazquez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

601 F.3d 1202

UNITED STATES of America, Plaintiff-Appellee, v. Alexis DE LA CRUZ SUAREZ, a.k.a. Alexis de la Cruz, Ramon Barrabi-Puentes, a.k.a. Ramon Barrabi, Defendants-Appellants.

United States of America, Plaintiff-Appellee, v. Jose Vazquez, Defendant-Appellant.

Nos. 08-13675, 08-13808.

United States Court of Appeals, Eleventh Circuit.

March 31, 2010.

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Curt Obront (Court-Appointed), McKenna & Abront, Miami, FL, Todd Gerald Scher (Court-Appointed), Sp. Asst. CCRC-South, Miami Beach, FL, for De La Cruz Suarez and Barrabi-Puentes.

Carol E. Herman, Anne R. Schultz, Asst. U.S. Atty., Miami, FL, for U.S. in both cases.

Kathleen M. Salyer, Miami, FL, for U.S. in 08-13675.

Jose Rafael Rodriguez (Court-Appointed), Rodriguez & Fernandez, PA, Miami, FL, for Vazquez.

Suzan H. Ponzoli, Miami, FL, for U.S. in 08-13808.

Before CARNES and HULL, Circuit Judges, and GOLDBERG,^* Judge.

GOLDBERG, Judge:

In December 2007, a federal grand jury returned a superseding indictment against Appellants Alexis De La Cruz Suarez ("De La Cruz"), Ramon Barrabi Puentes ("Barrabi"), and Jose Vazquez ("Vazquez"), and three other co-defendants. The indictment charged the Appellants with conspiracy in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) to commit alien smuggling in violation of 8 U.S.C. § 1324(a)(1)(A)(iv), and to bring aliens into the United States at a place other than a designated port of entry in violation of 8 U.S.C. § 1324(a)(1)(A)(I) ("Count 1"); and attempting to bring aliens into the United States for the purpose of commercial advantage and private financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2 ("Counts 2-35"). Vazquez was charged with 35 additional counts of attempting to bring aliens into the United States for the purpose of commercial advantage and private financial gain ("Counts 36-70"). Barrabi was charged with 66 additional counts of attempting to bring aliens into the United States for the purpose of commercial advantage and private financial gain ("Counts 36-101"). After a joint trial, a jury found the Appellants guilty as to Count 1. As to the remaining counts, the Appellants were either acquitted, or the charges were dismissed.¹

On appeal, the Appellants, either separately or jointly, challenge several rulings made by the District Court during trial regarding: (1) a Motion to Dismiss the Indictment; (2) a Motion to Suppress Electronic Surveillance; (3) the admission of a prior inconsistent statement; (4) a Motion for Judgment of Acquittal; and (5) a Motion for Mistrial. They also raise various issues with regard to their sentences: (1) De La Cruz and Vazquez challenge an enhancement to their sentencing guidelines calculation under U.S.S.G. § 3C1.2, for utilizing a special skill to facilitate the offense; (2) De La Cruz also challenges enhancements to his sentence pursuant to U.S.S.G. §§ 3C1.2 and 2L1.1(b)(6), arguing that they amounted to impermissible double counting; (3) Vazquez argues that the District Court improperly calculated his guideline range by including certain inappropriate enhancements; (4) Vazquez also challenges the district court's refusal to apply a reduction for acceptance of responsibility; (5) Barrabi and Vazquez jointly argue that the District Court erred in determining that the statutory maximum penalty for the conspiracy offense was 10 years' imprisonment; and (6) Barrabi maintains that his sentence is procedurally and substantively unreasonable. As explained further below, we AFFIRM the rulings of the District Court and the sentences imposed upon the Appellants.

BACKGROUND

A joint task force consisting of the FBI and the U.S. Coast Guard, with the assistance of confidential informants, uncovered an operation that smuggled individuals from Cuba to the Florida Keys. According to the evidence at trial, from approximately June 2005 to March 30, 2007, Barrabi ran the operation and offered undocumented Cuban nationals boat transportation to the United States for the price of $10,000 per person. With information gathered from the investigation and from a month-long authorized wiretap on Barrabi's two cellular phones, three smuggling trips were intercepted. Each smuggling trip involved a similar course of conduct. Barrabi would arrange for two vessels to leave the Florida Keys—a primary vessel to pick up the aliens from Cuba, and a secondary vessel to provide supplies and fuel to the primary vessel. Through the use of satellite telephones, Barrabi remained in close contact with the crew aboard the transport vessel during the trip. The primary vessel would travel to Cuba, and return with migrants dropping them near shore in the Florida Keys.

On February 21, 2007, Vazquez piloted a 32-foot Scarab boat and was stopped by the Coast Guard en route from Miami to the Florida Keys. Vazquez called Barrabi about the stop, and explained that everything was fine. Vazquez then continued the trip to rendezvous with a second vessel, on which Barrabi was onboard. The second vessel provided fuel and equipment to Vazquez's vessel. Vazquez drove the now-equipped primary vessel to the Upper Florida Keys, where he delivered it to De La Cruz and another crew member, Janny Grijalva Gonzalez.² Vazquez then departed; and De La Cruz piloted the boat to Cuba. Intercepted calls revealed that the vessel picked up individuals from Cuba around 4:00 a.m.

On his return from Cuba, De La Cruz was approached by the U.S. Coast Guard. He ignored the Coast Guard's instructions to stop the vessel, and a two-hour chase ensued. During the chase, De La Cruz instructed Grijalva Gonzalez to throw the onboard satellite phone and GPS overboard. Once the Coast Guard was able to stop the vessel, 34 Cuban migrants were observed onboard. The boat was designed to carry approximately 10 to 12 passengers, and there were no life jackets available. The migrants were interviewed by the Coast Guard for potential political asylum purposes, and 33 of the 34 individuals were repatriated.³

In planning the second intercepted trip, Barrabi and Vazquez were overheard discussing the retention of a vessel for the trip. A boat was eventually obtained from Edelsis Lozano.⁴ Similar to the first trip, Barrabi and Vazquez met on two separate vessels, and exchanged supplies. The primary vessel was piloted to Cuba and returned to the Florida Keys with 35 Cuban migrants. The vessel was pursued by the Coast Guard both going to and returning from Cuba.

During the third intercepted trip, 31 Cuban migrants were discovered onboard the vessel by law enforcement.

Prior to their arrest, Barrabi had begun planning future smuggling trips, and had contacted Vazquez to obtain more vessels.

DISCUSSION

The Appellants challenge several rulings made by the court on evidentiary issues, various motions brought throughout trial, and sentencing calculations. Some issues have been argued by an individual Appellant, while others were raised by multiple Appellants or adopted post-briefing.⁵

I. Motion to Dismiss the Indictment

De La Cruz contends that the District Court erred in denying his motion to dismiss the indictment for loss of testimonial evidence that may have been favorable to him. A district court's denial of a motion to dismiss an indictment is reviewed for an abuse of discretion. United States v. Waldon, 363 F.3d 1103, 1108 (11th Cir. 2004).

In a statement to the government given approximately six weeks after his arrest, De La Cruz claimed that the trip he made on February 21, 2007 to Cuba was to assist Grijalva Gonzalez in bringing back his wife and two children. According to De La Cruz, upon his arrival to Cuba, a large group was waiting and insisted upon boarding the boat. He stated that he could not get the people off the boat, that he was threatened with a "sharp metal object," and that he was forced to leave Cuba with all of them aboard. De La Cruz argues that after stopping the boat, the Coast Guard should have questioned the 34 Cuban migrants before repatriating them, not just as to any legitimate asylum claims, but also to ascertain what they knew about the offenses committed. He claims that his due process rights under the Fifth Amendment and his compulsory process rights under the Sixth Amendment were violated because of his inability to question those individuals before their repatriation, and that the district court should have dismissed the indictment for loss of testimonial evidence.

At the two evidentiary hearings held on this motion,⁶ FBI Special Agent Jennifer Himes testified. She explained that the repatriation was executed according to standard U.S. Coast Guard operating procedure, and that she had not been involved in the decision to repatriate the migrants. She also testified that she did not believe that the migrants were questioned about facts relating to the boat trip nor about De La Cruz and Grijalva Gonzalez. At the second evidentiary hearing, Agent Himes stated that De La Cruz had been interviewed on February 23, 2007, two days after the interdiction. Agent Himes clarified that at this interview, De La Cruz made no mention that he had been threatened by the Cuban migrants awaiting his boat, nor that they had forced their way onto the boat. These claims were not mentioned until several weeks later on April 4, 2007, when Agent Himes interviewed De La Cruz.

To show a violation of his due process rights or compulsory process rights, De La Cruz is required to show that there was a reasonable basis to believe that the testimony would be material and favorable to him, and that the government had acted in bad faith in repatriating the aliens. United States v. Valenzuela-Bernal, 458 U.S. 858, 872-73, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982); United States v. Schaefer, 709 F.2d 1383, 1386 (11th Cir. 1983); see also United States v. Gastelum-Almeida...