United States v. Enkeleon Manati

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 14, 2017
• Docket: 14-15294
• Status: Unpublished

Opinion

Case: 14-15294 Date Filed: 06/14/2017 Page: 1 of 14

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 14-15294 ________________________

D.C. Docket No. 1:13-cr-00338-CAP-RGV-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ENKELEON MANATI, a.k.a. Keli,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(June 14, 2017)

Before JORDAN and JULIE CARNES, Circuit Judges, and VINSON, * District Judge.

* The Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida, sitting by designation. Case: 14-15294 Date Filed: 06/14/2017 Page: 2 of 14

PER CURIAM:

Enkeleon Manati appeals his convictions on one count of conspiracy to

engage in alien smuggling for the purpose of financial gain, in violation of

8 U.S.C. § 1324(a)(1)(A)(v)(I), and alien smuggling for the purpose of financial

gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2. Mr. Manati

argues that the district court improperly admitted several pieces of evidence and

improperly limited defense counsel’s cross-examination of a key witness. He also

asserts that his trial counsel rendered ineffective assistance by failing to object to

the government’s motion in limine with respect to an immigration judge’s

credibility finding. Following oral argument and a review of the record, we affirm

Mr. Manati’s convictions and sentence.

I

Because we write for the parties, we assume their familiarity with the

underlying record and recite only what is necessary to resolve this appeal.

Lush Gjura contacted Mr. Manati for assistance in bringing his nephew,

Daniel Gjura, to the United States from Albania. Lush testified that he received

Mr. Manati’s information from his cousin, Artu Gjura. Mr. Manati agreed to bring

Daniel to the United States for $24,000. Mr. Manati instructed Lush to tell Daniel

to move to Greece, where he did not need to obtain a visa before entering the

United States. Daniel traveled to Greece, where he stayed for approximately 2 Case: 14-15294 Date Filed: 06/14/2017 Page: 3 of 14

two-and-a-half months. Mr. Manati put Daniel in touch with Matrona Koulga, who

Mr. Manati had met through an individual named Vassily. Ms. Koulga assisted

Daniel with fraudulently obtaining a Greek identification card and passport.

Majlinde Marku testified that Ms. Koulga and two other individuals in

Greece helped her come to the United States. She further testified that she was to

pay Ms. Koulga approximately $24,000 upon arriving in the United States, and that

Ms. Koulga had arranged for all of her travel. Ms. Marku testified that she never

spoke to or met with Mr. Manati.

On April 25, 2013, Daniel, Ms. Marku, and Ms. Koulga traveled together

from Greece, arriving at the Atlanta airport five days later. Both Daniel and

Ms. Marku presented false Greek passports upon arrival and initially lied about

their nationality to Customs and Border Patrol officers. Daniel and Ms. Marku

were detained, and eventually admitted the truth during a second interview with

CBP officers. Daniel and Ms. Marku both applied for asylum, but were denied.

After a three-day trial, the jury convicted Mr. Manati on one count of

conspiracy to engage in alien smuggling (Count One) and one count of alien

smuggling of Daniel (Count Two). The jury acquitted Mr. Manati on the third

count, which charged him with alien smuggling involving Ms. Marku. The district

court sentenced Mr. Manati to 24 months’ imprisonment as to Count One, and

36 months’ imprisonment as to Count Two, to run concurrently.

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II

We review the district court’s evidentiary rulings for an abuse of discretion.

See United States v. Bradley, 644 F.3d 1213, 1270 (11th Cir. 2011). But where “a

defendant fails to preserve an evidentiary ruling by contemporaneously objecting,

our review is only for plain error.” United States v. Turner, 474 F.3d 1265, 1275

(11th Cir. 2007). To demonstrate plain error, a defendant must show that there was

“(1) an error (2) that is plain and (3) that has affected the defendant’s substantial

rights; and if the first three prongs are satisfied, [we] may exercise [our] discretion

to correct the error if (4) the error seriously affects the fairness, integrity[,] or

public reputation of judicial proceedings.” United States v. Madden, 733 F.3d

1314, 1320 (11th Cir. 2013) (internal alterations and citation omitted).

III

Mr. Manati asserts four evidentiary arguments on appeal: (1) the district

court plainly erred by admitting prior statements made by Daniel and Ms. Koulga

to federal officers in a detention cell at the Atlanta airport; (2) the district court

abused its discretion by admitting Ms. Koulga’s testimony regarding jail telephone

conversations with Vassily and Mr. Manati’s wife; (3) the district court abused its

discretion by admitting Lush’s testimony regarding statements made by his cousin,

Artu; and (4) the district court abused its discretion by limiting Daniel’s

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cross-examination regarding the immigration court’s finding that Daniel was not

credible. We address each claim in turn.

A

Mr. Manati first argues that the district court improperly admitted prior

statements made by Daniel and Ms. Koulga to federal officers after being detained

at the airport.

During a second interview with CBP officers, Daniel admitted his real name,

that he was Albanian, that his Greek passport was fraudulent, that he had been

assisted in Greece by Ms. Koulga and two others, and that he had been assisted by

Mr. Manati, who was to be paid approximately $24,000 by his uncle. The second

interview was recorded, and a portion of that interview—approximately five to ten

minutes—was played for the jury and a transcript from that portion was entered

into evidence. The district court also read a cautionary instruction regarding the

transcript at the time the recording was played. Mr. Manati did not object to the

admission of the recording or the transcript.

The prior statement of Ms. Koulga at issue here was not recorded, but was

introduced via Special Agent Martin Kautz. He testified that during her second

interview, Ms. Koulga provided him with the phone number of the person she was

meeting at the airport, known to her as “Keli.” Mr. Manati did not object to this

testimony either.

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Because Mr. Manati failed to object to the introduction of this evidence, we

review for plain error. Under Rule 801(d)(1)(B), “a prior consistent statement by a

witness is not hearsay if (1) the declarant testifies at the trial or hearing and is

subject to cross-examination concerning the statement, and (2) the statement is

consistent with the declarant’s testimony and is offered to rebut an express or

implied charge against the declarant of recent fabrication or improper influence or

motive.” United States v. Prieto, 232 F.3d 816, 819 (11th Cir. 2000). Prior

consistent statements, however, “must have been made before the alleged influence

or motive to fabricate arose.” Id.

Mr. Manati argues only that the statements of Daniel and Ms. Koulga were

not admissible as prior consistent statements because there was a motivation for

Daniel and Ms. Koulga to fabricate their stories. Specifically, when these

statements were made, Daniel and Ms. Koulga had spent the night in custody and

understood that they could be prosecuted for their actions.

Statements made after an arrest, however, “are not automatically and

necessarily contaminated by a motive to fabricate in order to curry favor with the

government”—to hold otherwise “would effectively swallow the rule with respect

to prior consistent statements made to government officers[.]” Id. at 821 (internal

alteration and citation omitted). Indeed, we have identified other, less

self-interested, motivations for disclosing past criminal acts, such as one’s

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conscience, religious beliefs, or remorse. See id. Because we have declined to draw

a bright line rule regarding statements made to government officials following

arrest, and given that the question of “whether a witness had a motive to fabricate

when prior consistent statements were made is plainly a question of fact to be

resolved by the trial court based precisely on the particular circumstances of an

individual case,” id., we cannot say that the admission of Daniel’s and

Ms. Koulga’s prior statements constituted plain error.

B

Mr. Manati next argues that the district court abused its discretion by

admitting Ms. Koulga’s testimony regarding a series of jail phone calls with

Vassily and Mr. Manati’s wife. During her testimony, Ms. Koulga explained that

she promised Vassily that she would not testify against Mr. Manati in exchange for

a $5,000 payment, and that Vassily and Mr. Manati’s wife agreed to those terms

and paid her the money. She further testified that Mr. Manati was afraid “[b]ecause

the lawyer of Mr. Manati [was] screaming don’t pay,” and “if they find he was

involved also, [he] has a problem like me.” D.E. 93-3 at 69. Following objection

by Mr. Manati’s counsel, the government argued that the statements were made by

members of the conspiracy, as a continuation of and in furtherance of the

conspiracy. The district court made no specific findings, but overruled the

objection.

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Here, even assuming the district court erred by admitting Ms. Koulga’s

testimony, such error was harmless. See Fed. R. Crim. P. 52(a) (“Any error . . . that

does not affect substantial rights must be disregarded.”); United States v. Bradley,

644 F.3d 1213, 1270 (11th Cir. 2011) (“Even if a ruling constitutes an abuse of

discretion, it will result in reversal only if the error was not harmless[,] [meaning]

there is a reasonable likelihood that it affected the defendant’s substantial rights.”)

(internal alterations and citation omitted). The evidence presented against

Mr. Manati was substantial if not overwhelming. See United States v. Guzman, 167

F.3d 1350, 1353 (11th Cir. 1999) (“Overwhelming evidence of guilt is one factor

that may be considered in finding harmless error.”).

Specifically, the government introduced significant evidence to convict

Mr. Manati of conspiracy to engage in alien smuggling and the alien smuggling of

Daniel, including testimony from Lush Gjura, Amarilda Gjura, Amorido Gjura,

and Daniel Gjura that Lush and Mr. Manati had agreed Mr. Manati would bring

Daniel to the United States for $24,000; car rental records and airport surveillance

footage showing that Mr. Manati met the Gjuras and the Markus at the Atlanta

airport (and Mr. Manati stipulated that he was at the airport on the date Daniel

arrived); phone records establishing that Lush and Mr. Manati spoke frequently

between November of 2012 (when Lush first contacted Mr. Manati) until the date

Daniel arrived at the airport with Ms. Koulga and Ms. Marku; phone records

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corroborating Daniel’s story that he called Mr. Manati from Greece to ask why the

process was taking so long; Daniel’s testimony that he went to Greece on

Mr. Manati’s instruction and contacted Ms. Koulga through the phone number

provided by Mr. Manati; Ms. Koulga’s testimony regarding her role in obtaining

fraudulent Greek documents and traveling with individuals as needed, and that she

was paid by Mr. Manati to do so; and travel records corroborating testimony from

Daniel and Ms. Koulga regarding their trip from Greece to Atlanta, as well as

Ms. Koulga’s testimony regarding other individuals she and Mr. Manati had

previously smuggled.

Mr. Manati argues that the evidence against him was not overwhelming

because he denied the allegations, he offered five character witnesses, a search of

his home yielded no evidence of international alien smuggling, and Ms. Marku and

her family testified that they did not know him and he was acquitted of smuggling

Ms. Marku. Given the evidence presented, however, we disagree with

Mr. Manati’s view of the record. We cannot conclude, from the record as a whole,

that the admission of Ms. Koulga’s statements—even those potentially implicating

Mr. Manati in an attempt to bribe a witness—“had a ‘substantial influence’ on the

outcome of the proceeding.” Bradley, 644 F.3d at 1270.

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C

Mr. Manati also argues that the district court abused its discretion by

permitting Lush to testify that his cousin Artu gave him Mr. Manati’s phone

number and told him that Mr. Manati “has helped me before and I think he will

help you, too.” We agree with the district court’s conclusion that this statement

was not hearsay because it was not offered to prove the truth of the matter asserted,

but rather to explain Lush’s subsequent course of conduct in contacting

Mr. Manati, seeking his help in bringing Daniel to the United States, and agreeing

to pay him $24,000 to do so. See United States v. Tokars, 95 F.3d 1520, 1535 (11th

Cir. 1996) (statements offered to explain course of conduct were not offered to

prove the truth of the matter asserted and therefore were not hearsay). Moreover,

Mr. Manati’s counsel did not request a curative instruction after the district court

ruled on his objection. We therefore see no abuse of discretion in the district

court’s admission of this statement.

D

Mr. Manati finally argues that the district court abused its discretion by

limiting his trial counsel’s cross-examination of Daniel regarding the immigration

judge’s finding that he was not credible in denying his asylum application. Before

trial, the government filed a motion in limine seeking to exclude Mr. Manati from

referencing the immigration judge’s credibility finding, and Mr. Manati’s trial

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counsel agreed that it was inadmissible. The district court granted the

government’s motion. During trial, however, Mr. Manati’s trial counsel argued that

the door had been opened to question Daniel about the credibility finding based

upon CBP Officer Corey Lee Chaney’s testimony about Daniel’s “credible fear” of

returning to Albania, and Daniel’s testimony that his life was in danger in Albania.

Mr. Manati argues on appeal that the immigration judge’s credibility finding was

admissible under Rule 106 and Rule 608(b). 1

We have not located any binding precedent on this issue, and there appears

to be a split among those circuits that have addressed it. See, e.g., United States v.

Woodward, 699 F.3d 1188 (10th Cir. 2012) (permitting introduction of credibility

finding under Rule 608(b)); United States v. Cedeno, 644 F.3d 79 (2d Cir. 2011)

(same); United States v. Dawson, 434 F.3d 956 (7th Cir. 2006) (same); United

States v. Whitmore, 359 F.3d 609 (D.C. Cir. 2004) (same). Contra United States v.

Davis, 183 F.3d 231 (3d Cir. 1999) (concluding that credibility finding is

inadmissible extrinsic evidence under Rule 608(b)).

The government relies on our opinions in United States v. Jones, 29 F.3d

1549 (11th Cir. 1994), and United States Steel, LLC v. Tieco, Inc., 261 F.3d 1275

1 Rule 106 provides that “[i]f a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction . . . of any other part . . . that in fairness ought to be considered at the same time.” Fed. R. Evid. 106. Rule 608(b) provides that “the court may, on cross-examination, allow [extrinsic evidence to prove specific instances of a witness’ conduct to attack or support the witness’ character for truthfulness] to be inquired into if they are probative of the character for truthfulness or untruthfulness of . . . the witness[.]” Fed. R. Evid. 608(b). 11 Case: 14-15294 Date Filed: 06/14/2017 Page: 12 of 14

(11th Cir. 2001), for the proposition that another court’s credibility finding is not

admissible at trial. These civil cases, however, are not necessarily dispositive

because they do not squarely address the impeachment issue before us. See Jones,

29 F.3d at 1554 (determining that another court’s judgment containing findings of

fact and references to testimony could not be judicially noticed and is not

admissible under the Rule 803(8) public records exception); Tieco, 261 F.3d at

1286–88 (relying upon Jones to conclude that another court’s opinion containing

judicial findings was inadmissible as hearsay, and that it was unreliable and

misleading, causing a danger of prejudice under Rule 403).

But even assuming that the district court abused its discretion by limiting the

cross-examination, any error was harmless. See Bradley, 644 F.3d at 1270. First, it

is important to note that the immigration judge expressly stated that his credibility

finding was based on the fact that Daniel had used fraudulent travel documents and

provided false testimony to the government when he arrived. The jury heard that

same evidence. Moreover, the district court ruled that Mr. Manati’s counsel could

ask Daniel about his fears and the fact that he had applied for asylum, but was

denied. His counsel even responded, “Okay. That is fine. That is close enough.”

See D.E. 93-2 at 116. Because the jury heard that Daniel’s asylum claim was

denied, we cannot conclude that there is a reasonable likelihood that the inability

of Mr. Manati’s counsel to question Daniel regarding the credibility finding of the

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immigration judge—a finding based upon the same evidence heard by the jury—

affected Mr. Manati’s substantial rights. 2

IV

As for Mr. Manati’s related claim that his trial counsel rendered ineffective

assistance by failing to object to the government’s motion in limine seeking to

exclude the immigration judge’s credibility finding, he has failed to meet his heavy

burden of establishing that his counsel’s representation fell below an objective

standard of reasonableness. See Strickland v. Washington, 466 U.S. 668, 687–88,

691–92 (1984) (when “a convicted defendant complains of the ineffectiveness of

counsel’s assistance, the defendant must show that counsel’s representation fell

below an objective standard of reasonableness” and that this deficiency was

prejudicial to the defense.). Specifically, because there is no clear law in this

Circuit regarding whether another court’s credibility finding is admissible at trial,

we cannot say that “no competent counsel” would have declined to object to the

government’s motion. See Chandler v. United States, 218 F.3d 1305, 1315 (11th

2 For the same reason, we do not find that Mr. Manati’s Sixth Amendment rights were violated because his counsel had the opportunity to question Daniel about his bias and motivations for testifying for the government. See United States v. Van Dorn, 925 F.2d 1331, 1335 (11th Cir. 1991) (a defendant’s Sixth Amendment rights are not infringed where “the jury, through the cross-examination that is permitted, [is] exposed to facts sufficient for it to draw inferences relating to the reliability of that witness [and] the cross-examination conducted by defense counsel [enables] him to make a record from which he could argue why the witness might have been biased”).

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Cir. 2000) (en banc) (“[F]or a petitioner to show that [his counsel’s] conduct was

unreasonable, [he] must establish that no competent counsel would have taken the

action that his counsel did take.”).

V

For the reasons set forth above, Mr. Manati’s convictions and sentence are

affirmed.