United States v. Julio Estrada
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Opinion
Case: 17-15405 Date Filed: 08/13/2020 Page: 1 of 57
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-15405 ________________________
D.C. Docket No. 1:16-cr-20091-KMW-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIO ESTRADA, BARTOLO HERNANDEZ,
Defendants-Appellants.
________________________
Appeals from the United States District Court for the Southern District of Florida ________________________
(August 13, 2020)
Before ROSENBAUM, JILL PRYOR and BRANCH, Circuit Judges.
JILL PRYOR, Circuit Judge: Case: 17-15405 Date Filed: 08/13/2020 Page: 2 of 57
Julio Estrada, a baseball trainer, and Bartolo Hernandez, a baseball manager,
partnered with business professionals, human traffickers, and members of a
Mexican criminal organization to smuggle baseball players out of Cuba and into
the United States so that the players could enter into lucrative “free agent”
contracts with Major League Baseball (“MLB”) teams.1 At the time of the events
underlying this appeal, MLB rules required Cuban citizens to obtain “unblocking”
licenses from the United States Treasury Department’s Office of Foreign Assets
Control (“OFAC”) before they could enter into free agent contracts. To obtain
unblocking licenses, the players were required to prove that they had moved to a
third country with no intention of returning to Cuba. The defendants’ operation
would smuggle players into Mexico, Haiti, or the Dominican Republic, where
Estrada, Hernandez, and other co-conspirators would procure fraudulent
documents to establish the players’ residencies in those countries. The players
used the false residency documents to obtain unblocking licenses permitting them
to contract with MLB teams. Sometimes they also relied on the false documents to
obtain visas, which allowed them to come to the United States to play baseball.
1 MLB defines “free agent” as a player who “is eligible to sign with any club for any terms to which the two parties can agree.” What Is Free Agency?, MLB (last visited July 1, 2020), http://m.mlb.com/glossary/transactions/free-agency.
2 Case: 17-15405 Date Filed: 08/13/2020 Page: 3 of 57
A federal grand jury charged Estrada and Hernandez with smuggling four
Cuban baseball players into the United States, in violation of 8 U.S.C.
§ 1324(a)(2), 2 and conspiring to commit crimes against the United States. At trial,
the government’s theory of prosecution was that Estrada and Hernandez, along
with others not parties to this appeal, aided and abetted in bringing noncitizens3
into the United States. After a 30-day trial, the jury convicted them of conspiring
to bring and bringing four noncitizen Cuban players into the United States. On
appeal, Estrada and Hernandez raise several challenges to their convictions,
including whether: (1) the district court erred in ruling that the Cuban Adjustment
Act (“CAA”) and the Wet-Foot/Dry-Foot policy did not provide the players with
“prior official authorization” to come to, enter, or reside in the United States under
§ 1324(a)(2); (2) there was sufficient evidence to support their convictions; and
(3) the district court committed evidentiary errors. After a thorough review of the
parties’ briefs and the record, and with the benefit of oral argument, we affirm their
convictions.
2 Section 1324(a)(2) of Title 8 provides: “Any person who, knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States, brings to or attempts to bring to the United States in any manner whatsoever, such alien, regardless of any official action which may later be taken with respect to such alien, shall” be punished according to the statute. 8 U.S.C. § 1324(a)(2). 3 We use the term “noncitizens” as an equivalent for the statutory term “aliens.” See Nasrallah v. Barr, 140 S. Ct. 1683, 1689 n.2 (2020).
3 Case: 17-15405 Date Filed: 08/13/2020 Page: 4 of 57
I. FACTUAL BACKGROUND
This case arises out of a scheme to smuggle Cuban baseball players into the
United States. Estrada and Hernandez facilitated the smuggling operation in four
ways: first, they helped the players move from Cuba to either Mexico, Haiti, or the
Dominican Republic; second, they procured fraudulent residency documents for
the players, which they used to obtain OFAC “unblocking” licenses; third, they
used the fraudulent residency documents to obtain visas for the players to enter the
United States; fourth, they facilitated the physical bringing of noncitizens to the
border. In exchange for their work, Estrada and Hernandez charged a percentage
of the players’ free agent contracts, which often were worth millions of dollars.
Below we recount the events that led to the defendants’ convictions. 4
A. Hernandez Works with a Retired Baseball Player and Human Trafficker to Form the Smuggling Operation
Hernandez, a sports agent who “specialized in Cuban baseball players,”
owned and operated Global Sports Management. Doc. 527 at 16. 5 As an agent,
Hernandez negotiated with MLB teams on the players’ behalf. As compensation,
the players paid him an agent’s fee. One of his business partners was Scott
4 The facts are taken from the evidence adduced at trial and are stated in the light most favorable to the government. See United States v. Robertson, 493 F.3d 1322, 1329 (11th Cir. 2007) (stating that, in reviewing a challenge to the sufficiency of the evidence, we “view the evidence in the light most favorable to the government and resolve all reasonable inferences and credibility evaluations in favor of the jury’s verdict” (internal quotation marks omitted)). 5 Citations in the form “Doc. #” refer to entries on the district court’s docket. 4 Case: 17-15405 Date Filed: 08/13/2020 Page: 5 of 57
Shapiro, an immigration attorney. Estrada became the company’s baseball
director.
The scheme began when Rider Reyes—a retired baseball player who lived in
Miami—started organizing an operation to smuggle Cuban players into the United
States so they could enter MLB contracts. To that end, he contacted Alberto
Ramos—a known human trafficker with boats for smuggling players. Reyes and
Ramos needed money to finance the operation, so they called Hernandez.
Hernandez and Reyes met at a mall to discuss the smuggling operation.
Reyes told Hernandez that he had a contact, Ramos, who could smuggle players to
the United States in go-fast boats. He also showed Hernandez a list of Cuban
baseball players. Hernandez picked players from the list that interested him, and
he and Reyes discussed bringing those players to the United States. Hernandez
then decided to call Estrada.
Three days later, Hernandez and Reyes met again. This time, Estrada and
Ramos joined them. The men discussed which players to target and how they
would go about smuggling the players out of Cuba. Estrada told the group that he
had a cousin from the Dominican Republic who could contact Cuban players about
their interest in being smuggled into the United States. Estrada’s cousin joined
them at later meetings. They determined that Reyes, Ramos, and Estrada would
physically move the players out of Cuba.
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Case: 17-15405 Date Filed: 08/13/2020 Page: 1 of 57
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-15405 ________________________
D.C. Docket No. 1:16-cr-20091-KMW-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIO ESTRADA, BARTOLO HERNANDEZ,
Defendants-Appellants.
________________________
Appeals from the United States District Court for the Southern District of Florida ________________________
(August 13, 2020)
Before ROSENBAUM, JILL PRYOR and BRANCH, Circuit Judges.
JILL PRYOR, Circuit Judge: Case: 17-15405 Date Filed: 08/13/2020 Page: 2 of 57
Julio Estrada, a baseball trainer, and Bartolo Hernandez, a baseball manager,
partnered with business professionals, human traffickers, and members of a
Mexican criminal organization to smuggle baseball players out of Cuba and into
the United States so that the players could enter into lucrative “free agent”
contracts with Major League Baseball (“MLB”) teams.1 At the time of the events
underlying this appeal, MLB rules required Cuban citizens to obtain “unblocking”
licenses from the United States Treasury Department’s Office of Foreign Assets
Control (“OFAC”) before they could enter into free agent contracts. To obtain
unblocking licenses, the players were required to prove that they had moved to a
third country with no intention of returning to Cuba. The defendants’ operation
would smuggle players into Mexico, Haiti, or the Dominican Republic, where
Estrada, Hernandez, and other co-conspirators would procure fraudulent
documents to establish the players’ residencies in those countries. The players
used the false residency documents to obtain unblocking licenses permitting them
to contract with MLB teams. Sometimes they also relied on the false documents to
obtain visas, which allowed them to come to the United States to play baseball.
1 MLB defines “free agent” as a player who “is eligible to sign with any club for any terms to which the two parties can agree.” What Is Free Agency?, MLB (last visited July 1, 2020), http://m.mlb.com/glossary/transactions/free-agency.
2 Case: 17-15405 Date Filed: 08/13/2020 Page: 3 of 57
A federal grand jury charged Estrada and Hernandez with smuggling four
Cuban baseball players into the United States, in violation of 8 U.S.C.
§ 1324(a)(2), 2 and conspiring to commit crimes against the United States. At trial,
the government’s theory of prosecution was that Estrada and Hernandez, along
with others not parties to this appeal, aided and abetted in bringing noncitizens3
into the United States. After a 30-day trial, the jury convicted them of conspiring
to bring and bringing four noncitizen Cuban players into the United States. On
appeal, Estrada and Hernandez raise several challenges to their convictions,
including whether: (1) the district court erred in ruling that the Cuban Adjustment
Act (“CAA”) and the Wet-Foot/Dry-Foot policy did not provide the players with
“prior official authorization” to come to, enter, or reside in the United States under
§ 1324(a)(2); (2) there was sufficient evidence to support their convictions; and
(3) the district court committed evidentiary errors. After a thorough review of the
parties’ briefs and the record, and with the benefit of oral argument, we affirm their
convictions.
2 Section 1324(a)(2) of Title 8 provides: “Any person who, knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States, brings to or attempts to bring to the United States in any manner whatsoever, such alien, regardless of any official action which may later be taken with respect to such alien, shall” be punished according to the statute. 8 U.S.C. § 1324(a)(2). 3 We use the term “noncitizens” as an equivalent for the statutory term “aliens.” See Nasrallah v. Barr, 140 S. Ct. 1683, 1689 n.2 (2020).
3 Case: 17-15405 Date Filed: 08/13/2020 Page: 4 of 57
I. FACTUAL BACKGROUND
This case arises out of a scheme to smuggle Cuban baseball players into the
United States. Estrada and Hernandez facilitated the smuggling operation in four
ways: first, they helped the players move from Cuba to either Mexico, Haiti, or the
Dominican Republic; second, they procured fraudulent residency documents for
the players, which they used to obtain OFAC “unblocking” licenses; third, they
used the fraudulent residency documents to obtain visas for the players to enter the
United States; fourth, they facilitated the physical bringing of noncitizens to the
border. In exchange for their work, Estrada and Hernandez charged a percentage
of the players’ free agent contracts, which often were worth millions of dollars.
Below we recount the events that led to the defendants’ convictions. 4
A. Hernandez Works with a Retired Baseball Player and Human Trafficker to Form the Smuggling Operation
Hernandez, a sports agent who “specialized in Cuban baseball players,”
owned and operated Global Sports Management. Doc. 527 at 16. 5 As an agent,
Hernandez negotiated with MLB teams on the players’ behalf. As compensation,
the players paid him an agent’s fee. One of his business partners was Scott
4 The facts are taken from the evidence adduced at trial and are stated in the light most favorable to the government. See United States v. Robertson, 493 F.3d 1322, 1329 (11th Cir. 2007) (stating that, in reviewing a challenge to the sufficiency of the evidence, we “view the evidence in the light most favorable to the government and resolve all reasonable inferences and credibility evaluations in favor of the jury’s verdict” (internal quotation marks omitted)). 5 Citations in the form “Doc. #” refer to entries on the district court’s docket. 4 Case: 17-15405 Date Filed: 08/13/2020 Page: 5 of 57
Shapiro, an immigration attorney. Estrada became the company’s baseball
director.
The scheme began when Rider Reyes—a retired baseball player who lived in
Miami—started organizing an operation to smuggle Cuban players into the United
States so they could enter MLB contracts. To that end, he contacted Alberto
Ramos—a known human trafficker with boats for smuggling players. Reyes and
Ramos needed money to finance the operation, so they called Hernandez.
Hernandez and Reyes met at a mall to discuss the smuggling operation.
Reyes told Hernandez that he had a contact, Ramos, who could smuggle players to
the United States in go-fast boats. He also showed Hernandez a list of Cuban
baseball players. Hernandez picked players from the list that interested him, and
he and Reyes discussed bringing those players to the United States. Hernandez
then decided to call Estrada.
Three days later, Hernandez and Reyes met again. This time, Estrada and
Ramos joined them. The men discussed which players to target and how they
would go about smuggling the players out of Cuba. Estrada told the group that he
had a cousin from the Dominican Republic who could contact Cuban players about
their interest in being smuggled into the United States. Estrada’s cousin joined
them at later meetings. They determined that Reyes, Ramos, and Estrada would
physically move the players out of Cuba. Estrada made “various phone calls to
5 Case: 17-15405 Date Filed: 08/13/2020 Page: 6 of 57
Cuba” and told the conspirators that they “could start.” Doc. 517 at 85–86. They
initially decided that the players would be taken to Cancun, Mexico.
While the smuggling operation was underway, a man called Nacho
contacted Reyes. Nacho told Reyes that he had smuggled a player into Cancun,
and unless Reyes paid him $50,000, he would beat the player. Nacho, along with
his “right-hand man” Eliezer Lazo (“Lazo Sr.”), worked for a separate smuggling
operation in Cancun. Doc. 514 at 57. In response to Nacho’s threat, Hernandez,
Ramos, and Reyes traveled to Cancun, where they met Nacho at a restaurant.
There, Nacho told the group that he worked for a criminal organization and that he
had to pay a tax—or “piso”—of $2,000 to that organization to smuggle immigrants
into the United States. Doc. 517 at 104. Nacho and Hernandez left the group to
discuss the $50,000. When they returned, Nacho told the men that Hernandez was
“going to do business with [him].” Id. at 105.
At the same restaurant meeting, the men—including Nacho—discussed the
baseball smuggling operation. Nacho agreed to help manage the baseball players
while they were in Cancun. Hernandez explained the concepts of free agency and
“unblocking” to Nacho. Id. at 106. He also defined the terms of the smuggling
operation’s agreement with the players. He explained that they would charge a
percentage (up to thirty or thirty-five percent) of the value of the players’ contracts
and divide that money among themselves. They each agreed on their share of the
6 Case: 17-15405 Date Filed: 08/13/2020 Page: 7 of 57
players’ contracts. Once the meeting was over, Hernandez, Reyes, and Ramos all
agreed that Nacho—who was always surrounded by armed bodyguards—“was a
very dangerous person.” Id. at 107. Back in Miami, the conspirators signed
contracts to formalize the deal.
A few months later, Estrada traveled to Cancun to meet Nacho. They
discussed smuggling more players and dividing the proceeds from the players’
MLB contracts. Estrada also met Diana Tilbert, a business operator who was
involved in smuggling Cuban citizens into Mexico.
B. The Smuggling Operation Begins Smuggling Cuban Players to Mexico
The operation began smuggling Cuban players to Cancun by boat. One
player described the trip as “tough.” Doc. 515 at 64. Once they arrived in Cancun,
Hernandez would meet the players and explain the concept of free agency and the
necessity of unblocking licenses, which would allow them to enter MLB contracts.
To help the players establish residency, Nacho would pay a Mexican immigration
official to produce fraudulent residency documents. The players would list fake
jobs like “tinsmith” and “welder” on their documents, and they would joke about
their fake jobs in front of Estrada. Doc. 514 at 72; 515 at 73. The players
understood that the fake jobs would allow them to establish residency in Mexico.
Hernandez was responsible for preparing the players’ unblocking
applications. He would include the players’ Mexican residency papers in the
7 Case: 17-15405 Date Filed: 08/13/2020 Page: 8 of 57
applications. OFAC granted the applications and issued the players unblocking
licenses, which allowed them to enter into contracts with MLB. Hernandez also
worked on securing visas for the players. Once the players received their visas,
they could enter the United States. While they were in Mexico, Estrada trained the
players.
C. Nacho Disappears, and the Remaining Men Form Estrellas del Beisbol
One day, Nacho drove two baseball players to a boatyard in Cancun. left his
car and was approached by two men wearing hoods. One of the players in the car
reported hearing gunshots. The players escaped and told Estrada, Lazo Sr., and
other players what happened. After Nacho’s disappearance, Lazo Sr. took over
Nacho’s previous role in smuggling the players out of Cuba, and the operation
moved from Cancun to Mexico City. Estrada accompanied the players to Mexico
City.
Once in Mexico City, Lazo Sr. formed the company Estrellas del Beisbol on
Estrada’s and Hernandez’s advice. Estrada partnered with Lazo Sr. to help him
form the corporation. Lazo Sr. agreed to pay Estrada a percentage of the players’
MLB contracts.
D. Leonys Martin Is Smuggled into the United States
Leonys Martin, a centerfielder from Cuba, was smuggled out of Cuba with
his family by boat and taken to Cancun pursuant to a plan organized by Lazo Sr.
8 Case: 17-15405 Date Filed: 08/13/2020 Page: 9 of 57
and Martinez. In Cancun, Martin offered to pay Lazo Sr. $40,000 for smuggling
Martin and his family out of Cuba and requested that he and his family be handed
over to a different smuggling organization whom Martin knew from Cuba. Lazo
Sr. refused the offer. He said that Martin now “belonged to” the smuggling
operation and owed it $2.5 million. Doc. 519 at 60. Martin spoke to Hernandez
and agreed to pay Estrellas del Beisbol thirty percent and Hernandez five percent
of his future MLB contract. Eventually, the Texas Rangers offered Martin a
contract for $15.5 million.
While in Cancun awaiting a visa, Martin and his family were approached by
the different smuggling organization. Because it was “very hot” (dangerous) in
Cancun due to the presence of the other smuggling organization, Lazo Sr. and one
of his associates, Joel Martinez, took Martin to Monterrey, Mexico, to “put some
distance” between Martin and the other operation. Id. at 64.
At one point, Hernandez explained to Martin that he needed a Cuban
passport to become a free agent. To that end, Hernandez took Martin to the Cuban
consulate in Guatemala. They decided to go to Guatemala because it would be
easier to obtain a passport there; unlike Mexico, Guatemala had no “migratory
agreement” with Cuba that would require the other country’s government to send
Martin back to Cuba if he were apprehended. Id. at 74. The Cuban consulate
declined Martin’s application for a passport.
9 Case: 17-15405 Date Filed: 08/13/2020 Page: 10 of 57
Back in Mexico, Martin learned of the attempted kidnapping of one of his
handlers. Afraid of being kidnapped himself, Martin asked Lazo Sr. if the Rangers
would still honor his contract if he crossed the border without a visa. Martin and
Lazo Sr. met via video chat, and Hernandez joined on speakerphone. They asked
Hernandez to find out whether the Rangers would honor Martin’s contract if he
entered the United States without a visa. Later that day, Hernandez called back
and confirmed that the Rangers would honor the contract.
Martinez took Martin to the United States-Mexico border. Martinez crossed
and waited on the United States side for Martin. Then, Martin crossed. He recited
to border officials what Martinez had told him to say: he was seeking political
asylum, and he had been in Mexico—where he practiced baseball—for seven
months. The border officials detained Martin for two days before paroling him
into the United States. Martinez took Martin to the airport and they flew together
to Miami, where they met Hernandez, Lazo Sr., and others.
Shortly after Martin crossed the border, Hernandez had a phone call with a
representative from the Rangers. The contents of the call are unknown, but the
Rangers honored the contract and paid Martin, who then paid Lazo Sr. and
Martinez $1.35 million. Martin paid Hernandez $225,000. Believing that amount
was too low, Hernandez filed an arbitration case against Martin.
10 Case: 17-15405 Date Filed: 08/13/2020 Page: 11 of 57
E. The Smuggling Operation Moves to the Dominican Republic and Haiti
Because Mexico was “very violent,” the smuggling operation began
smuggling players to the Dominican Republic instead of Mexico. Doc. 522 at 20.
The organization also shifted in another way: Lazo Sr. was arrested for Medicare
fraud, so his son, Eliezer Lazo (“Lazo Jr.”), took over the business.
Lazo Jr. was unable to bribe Dominican immigration officials for fraudulent
residency documents. He met with Hernandez to discuss the problem. Hernandez
told Lazo Jr. that Estrada knew a man in Haiti, Amin Latouff, who had government
contacts and could help the players establish residency in Haiti. The operation
moved again, to Haiti, and within a month, the players were Haitian residents. The
players signed MLB contracts, but there was a delay in obtaining their visas.
F. Omar Luis Enters the United States
Omar Luis, a Cuban baseball player who was in Haiti waiting for a visa, told
Estrada that he was eager to enter the United States. Estrada advised him to wait
for a visa. Despite this advice, Estrada called Tilbert, who put Luis into contact
with someone who could take him to Mexico and then to the United States—
without a visa. Estrada paid Tilbert’s contact $1,500. Luis flew to Panama, where
Estrada met him. Estrada paid for their tickets to fly together to the United States-
Mexican border at Reynosa, Mexico. There, Luis crossed the border without a visa
11 Case: 17-15405 Date Filed: 08/13/2020 Page: 12 of 57
and was detained by immigration officials in the United States. Estrada—who
crossed the border minutes after Luis—waited for him in Texas.
Luis signed a $4.5 million contract with the Yankees. He paid Hernandez
four percent of the contract and Estrada around $200,000 to $300,000.
G. Jose Abreu Enters the United States
Jose Abreu, another Cuban baseball player, independently decided that he
wanted to leave Cuba to play in the MLB. Estrada paid for Abreu to travel by boat
from Cuba to Haiti. In Haiti, Abreu met Latouff, who helped him by obtaining
fraudulent residency papers, lodging, and supplies. Abreu understood that he had
to establish residency in Haiti so he could sign a free agent contract with MLB.
After Abreu received his residency papers, he traveled to the Dominican
Republic to showcase for MLB scouts. Once there, he met with Hernandez,
Estrada, and others. Hernandez told him that the Chicago White Sox wanted to
sign him, and he had to be in Chicago by a signing deadline. Abreu wanted to
enter the United States without a visa, but he did not mention that to Hernandez or
Estrada because he knew they would disapprove. Instead, Abreu returned to Haiti
and reached out to Latouff. He paid Latouff $15,000 to help him get to Chicago by
the signing deadline. Latouff drove Abreu to the Port-Au-Prince airport, gave him
a Haitian passport containing a false name, and told him to follow a man named
“Roget,” who would guide him through the airport. At the airport, Roget helped
12 Case: 17-15405 Date Filed: 08/13/2020 Page: 13 of 57
Abreu get through the security checkpoints, and Abreu was able to board a flight to
Miami. After he boarded the flight, he followed Latouff’s instructions to destroy
his passport. He tore off the cover page of his passport and threw away the rest.
He ordered a beer and proceeded to eat the cover page of his passport.
Abreu landed in Miami and told a Customs and Border Protection (“CBP”)
official that he was “claiming the Cuban Adjustment Act.” Doc. 525 at 51. Once
he was paroled into the United States, he called Estrada, who—along with
Hernandez—accompanied him to Chicago. In Chicago, Abreu signed a contract
with the White Sox for $68 million. Abreu paid Hernandez five percent and
Estrada twenty percent of each installment he received under the contract.
H. Dalier Hinojosa Enters the United States
Dalier Hinojosa, a Cuban pitcher, wanted to flee Cuba. Estrada worked with
Tilbert to arrange Hinojosa’s trip to Haiti, which Estrada funded. With Latouff’s
help, Hinojosa received a Haitian passport and succeeded in establishing residency
in Haiti. At one point, Hinojosa traveled from Haiti to the Dominican Republic to
showcase for MLB scouts. In the Dominican Republic, he met with Estrada and
Hernandez and signed contracts with them. He agreed to pay Estrada thirty
percent and Hernandez five percent of his future MLB contract.
13 Case: 17-15405 Date Filed: 08/13/2020 Page: 14 of 57
When Estrada visited Hinojosa in Haiti, Hinojosa told Estrada that he did not
want to stay in Haiti any longer. Estrada told Hinojosa to wait until he obtained a
visa to go to the United States.
Hinojosa did not heed this advice. Instead, he paid smugglers $10,000 to
send his wife and her friend to the United States; he later paid another $5,000 to
the same smugglers so he could enter the United States without a visa. He then
met a friend of Latouff’s at the Haitian airport. The man told Hinojosa to destroy
his Haitian passport on the plane. When Hinojosa landed in Miami, he told a CBP
official that people at his baseball training complex had paid the $5,000 smuggling
fee. In Miami, he stayed at the house of Estrada’s business partner, Yosvannes
Pareda, who was an investor in the smuggling operation.
Hinojosa signed a $4.25 million contract with the Boston Red Sox and paid
Estrada and Hernandez their percentages from that contract.
II. PROCEDURAL BACKGROUND
A. Pre-Trial Proceedings
A federal grand jury in the Southern District of Florida returned a
superseding indictment charging Estrada and Hernandez with: conspiring to
commit offenses against the United States by, among other things, bringing or
attempting to bring noncitizens to the United States for the purpose of commercial
advantage or private financial gain, in violation of 18 U.S.C. § 371 and 8 U.S.C.
14 Case: 17-15405 Date Filed: 08/13/2020 Page: 15 of 57
§ 1324(a)(2)(B)(ii) (Count 1); and knowingly bringing or attempting to bring
noncitizens to the United States for the purpose of commercial advantage or
private financial gain, knowing or in reckless disregard of the fact that the
noncitizens did not have prior official authorization to come to, enter, or reside in
the United States, in violation of § 1324(a)(2)(B)(ii) (Counts 2, 3, 5, and 6). As to
the substantive smuggling charges in Counts 2, 3, 5, and 6, Hernandez was charged
with the smuggling of Martin (Count 2), and Estrada was charged with the
smuggling of Luis (Count 3), Hinojosa (Count 5), and Abreu (Count 6).6
Estrada and Hernandez moved to dismiss the indictment. They argued that
the allegations in the indictment, even if proven, would not establish that they
“brought anyone to the United States who could not lawfully enter and reside
here,” Doc. 111 at 2, because the CAA and the Wet-Foot/Dry-Foot policy—which
together permitted Cuban citizens to apply for permanent residency once they
reached United States soil, were paroled into the United States, and were
physically present in the United States for at least two years—provided the Cuban
players with “prior official authorization” to come to, enter, or reside in the United
States. See 8 U.S.C. § 1324(a)(2). Alternatively, they argued that § 1324(a)(2)
6 The government also charged Hernandez with the smuggling of Hinojosa (Count 5) and Abreu (Count 6). Because the court later granted Hernandez’s motion for judgment of acquittal with respect to these counts, they are not at issue in this appeal, and we do not discuss them further. 15 Case: 17-15405 Date Filed: 08/13/2020 Page: 16 of 57
was unconstitutionally vague, in violation of the Fifth Amendment, because it did
not define “prior official authorization.” The court rejected those arguments and
denied the motion to dismiss the indictment based on our decision in United States
v. Dominguez, 661 F.3d 1051, 1070 (11th Cir. 2011), in which we held that the
CAA and the Wet-Foot/Dry-Foot policy did not provide “prior official
authorization” for Cuban citizens to come to, enter, or reside in the United States.
The government then filed a “Motion to Exclude Argument Related to Wet
Foot/Dry Foot Policy.” Doc. 238 at 1. Citing Dominguez, the government asserted
that the CAA and the Wet-Foot/Dry-Foot policy were irrelevant to whether the
Cuban citizens had prior authorization to enter the United States because the
players still were required to be “admitted or paroled” upon entering the United
States. Id. at 3. The court granted the government’s motion, reiterating what it
concluded in its denial of the motion to dismiss the indictment: that the CAA and
the Wet-Foot/Dry-Foot policy were irrelevant to whether a violation of
§ 1324(a)(2) occurred.
B. Trial and Sentencing
Estrada and Hernandez were tried together. The government called
numerous witnesses, including: the baseball players named in the indictment
(Martin, Luis, Hinojosa, and Abreu); Estrada’s and Hernandez’s co-conspirators,
including Reyes, Lazo Jr., and Tilbert; OFAC agent Tim Smith; and State
16 Case: 17-15405 Date Filed: 08/13/2020 Page: 17 of 57
Department agent Brian Baer. In their case, Estrada and Hernandez called Shapiro
as their main witness. At the close of the government’s case and after the defense
rested, Estrada and Hernandez filed motions for judgment of acquittal on all
counts. The court denied the motions.
Estrada and Hernandez asked the court to instruct the jury that to find them
guilty of alien smuggling, the government had to prove six elements, including that
“[t]he [players] did not have prior official authorization to come to, enter, or reside
in the United States,” and “[t]he defendant[s] knew or recklessly disregarded that
the [players] did not have prior official authorization.” Doc. 310 at 28–29. The
district court rejected those proposed instructions and instead instructed the jury
that the government had to prove beyond a reasonable doubt that:
(1) the [d]efendant knowingly brought or attempted to bring an alien to the United States; (2) the [d]efendant knew or was in reckless disregard of the fact that the alien had not received prior official authorization to come to, enter[,] or reside in the United States; and (3) the [d]efendant acted for the purpose of commercial advantage or private financial gain.
Doc. 331 at 24.
The jury found Estrada guilty on Counts 1, 3, 5, and 6, and Hernandez guilty
on Counts 1 and 2. Estrada and Hernandez renewed their motions for judgment of
acquittal, again arguing that the CAA and the Wet-Foot/Dry-Foot policy gave the
17 Case: 17-15405 Date Filed: 08/13/2020 Page: 18 of 57
Cuban players prior official authorization to enter the United States. They also
challenged the court’s jury instructions, arguing that the “prior official
authorization” instruction “misled the jury into believing that it was beyond debate
that Cubans cannot legally enter the United States and cannot legally reside here.”
Doc. 382 at 1–2. They also filed a motion for a new trial, in which they raised
numerous evidentiary arguments. The district court denied their motions.
The court sentenced Estrada and Hernandez to total terms of 63 months and
46 months in prison, respectively.7 This is their appeal.
III. ANALYSIS
The defendants raise three primary arguments on appeal.8 First, they
contend that the district court erred by rejecting their arguments related to the CAA
and the Wet-Foot/Dry-Foot policy. Second, they argue that the evidence was
insufficient to support their convictions. Third, they assert that the court
committed numerous evidentiary errors. We consider each argument in turn.
7 While this appeal was pending, Hernandez filed a motion for a reduction in sentence because he was the only potential caregiver for his 84-year-old mother during the current pandemic. The court granted Hernandez’s motion and reduced his sentence to time served and placed him on home confinement until April 2021. 8 Estrada and Hernandez have adopted each other’s appellate briefs. 18 Case: 17-15405 Date Filed: 08/13/2020 Page: 19 of 57
A. The CAA and the Wet-Foot/Dry-Foot Policy Did Not Provide Prior Official Authorization for the Cuban Players to Come to, Enter, or Reside in the United States.
Estrada and Hernandez contend that the district court erred by rejecting their
arguments related to the CAA and the Wet-Foot/Dry-Foot policy, which were
based on the idea that the CAA and the Wet-Foot/Dry-Foot policy provided the
Cuban players with “de facto authorization” to enter the United States. Estrada
Appellant’s Br. at 16–17. Noting that the district court had rejected this argument
as foreclosed by our decision in Dominguez, they contend that Dominguez is
distinguishable legally and factually. And they assert that the court’s purportedly
erroneous conclusion that Dominguez foreclosed their arguments led it to err by
failing to dismiss the superseding indictment, granting the government’s motion in
limine to exclude arguments relating to the CAA and the Wet-Foot/Dry-Foot
policy, and rejecting their proposed “prior official authorization” jury instruction.
In addition, they argue that their convictions should be vacated because
§ 1324(a)(2) is unconstitutionally vague.
We review for an abuse of discretion the district court’s denial of the
defendants’ motion to dismiss the superseding indictment and its failure to give
requested jury instructions. Davis v. United States, 708 F.3d 1216, 1221 (11th Cir.
2013) (motion to dismiss indictment); United States v. Dohan, 508 F.3d 989, 993
(11th Cir. 2007) (jury instructions). Likewise, we review the court’s grant of the
19 Case: 17-15405 Date Filed: 08/13/2020 Page: 20 of 57
government’s motion in limine for an abuse of discretion. United States v.
Harrison, 534 F.3d 1371, 1373 (11th Cir. 2008). “A district court abuses its
discretion if it applies an incorrect legal standard, applies the law in an
unreasonable or incorrect manner, follows improper procedures in making a
determination, or makes findings of fact that are clearly erroneous.” United States
v. Green, 873 F.3d 846, 854 (11th Cir. 2017) (internal quotation marks omitted).
We review de novo the district court’s determination that § 1324(a)(2) is not
unconstitutionally vague. United States v. Fisher, 289 F.3d 1329, 1333 (11th Cir.
2002). The defendants’ vagueness challenge “must be evaluated in the light of the
facts of the case at hand.” Id. (describing the standard for evaluating vagueness
challenges that do not involve First Amendment rights).
Before addressing the defendants’ individual arguments, we provide some
background on United States immigration policy governing Cuban immigrants at
the time of their convictions. In 1966, Congress enacted the CAA, which
permitted Cuban citizens to apply for permanent residency if they had been
admitted or paroled into the United States and physically present in the United
States for at least two years. Cuban Adjustment Act, Pub. L. No. 89-732, § 1, 80
Stat. 1161 (1966) (codified as amended at 8 U.S.C. § 1255 note)9; see Dominguez,
9 The CAA is codified as a historical note to 8 U.S.C. § 1255. The CAA has since been amended by the Victims of Trafficking and Violence Protection Act, Pub. L. No. 106-386,
20 Case: 17-15405 Date Filed: 08/13/2020 Page: 21 of 57
661 F.3d at 1079 (Tjoflat, J., concurring in part and dissenting in part) (setting
forth history of the CAA). The CAA was beneficial to Cuban nationals because it
meant that they did not have to prove that they suffered persecution in Cuba to
authorize their presence in the United States. Dominguez, 661 F.3d at 1067
(majority opinion). The Wet-Foot/Dry-Foot policy limited the scope of the CAA.10
Under that policy, only Cuban nationals who had “dry feet”—meaning they had
reached United States soil—could take advantage of the CAA. If a Cuban national
was interdicted at sea (and therefore had “wet feet”), he would be repatriated to
Cuba. See Cuba-United States: Joint Statement on Normalization of Migration, 35
I.L.M. 327, 329 (1996) (stating that “Cuban migrants intercepted at sea by the
United States and attempting to enter the United States will be taken to Cuba”).
Now, we consider the defendants’ individual arguments related to “prior
official authorization.”
§ 1509, 114 Stat. 1464, 1530–31 (2000), and the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 823, 119 Stat. 2960, 3063. See Toro v. Sec’y, U.S. Dep’t of Homeland Sec., 707 F.3d 1224, 1226–27 (11th Cir. 2013) (discussing amendments to the CAA). 10 President Obama ended the Wet-Foot/Dry-Foot policy at the end of his second term. See Office of the Press Secretary, Statement by the President on Cuban Immigration Policy (Jan. 12, 2017), available at https://obamawhitehouse.archives.gov/the-press- office/2017/01/12/statement-president-cuban-immigration-policy. 21 Case: 17-15405 Date Filed: 08/13/2020 Page: 22 of 57
1. Dominguez Controls Our Decision.
We first address the defendants’ argument that Dominguez is inapplicable to
their case. In Dominguez, we discussed the relationship between the CAA, the
Wet-Foot/Dry-Foot policy, and § 1324(a)(2)’s prohibition on smuggling
noncitizens into the United States without their having “prior official
authorization.” See Dominguez, 661 F.3d at 1067–70.
Gustavo Dominguez was charged with smuggling Cuban baseball players
into the United States, in violation of § 1324(a)(2). Id. at 1059. Before trial, the
government filed a motion in limine to preclude Dominguez from submitting
evidence of the CAA and the Wet-Foot/Dry-Foot policy, arguing that such
evidence was irrelevant to his smuggling conviction. Id. Dominguez responded
that he should be permitted to submit the evidence to the jury, as it was relevant to
his intent to violate § 1324(a)(2). Id. at 1060. He explained that he reasonably had
believed that the CAA and the Wet-Foot/Dry-Foot policy made the Cuban players
eligible to enter the United States. Id. at 1059–60. The court rejected that
argument and granted the government’s motion in limine. Id. at 1060. The court
also denied Dominguez’s motion for a judgment of acquittal based on the CAA
and the Wet-Foot/Dry-Foot policy, again rejecting Dominguez’s argument that the
law and the policy were relevant to his intent. Id. At trial, the court instructed the
jury that to convict Dominguez for smuggling the Cuban players, the government
22 Case: 17-15405 Date Filed: 08/13/2020 Page: 23 of 57
had to prove that, among other things, he “knew or was in reckless disregard of the
fact that the alien had not received prior official authorization to come to or enter
the United States.” Id. at 1072. The jury found Dominguez guilty. Id. at 1060.
On appeal, Dominguez challenged the district court’s rejection of his
arguments related to the CAA and the Wet-Foot/Dry-Foot policy. Id. at 1067. We
affirmed Dominguez’s smuggling convictions, concluding that the “CAA and Wet-
Foot/Dry-Foot policy do not provide ‘prior official authorization’ for an
undocumented Cuban to come to the United States.” Id. at 1070. We explained
that the CAA and the Wet-Foot/Dry-Foot policy did not provide “prior official
authorization” because “an undocumented Cuban must still be paroled.” Id. Thus,
we concluded that the CAA and the Wet-Foot/Dry-Foot policy “pertain to ‘official
action which may later be taken with respect to’” the players—not “prior official
authorization” to enter the United States. Id. (emphasis added) (quoting 8 U.S.C.
§ 1324(a)(2)).
The defendants’ argument that the CAA and the Wet-Foot/Dry-Foot policy
gave the players “prior official authorization” to enter the United States is
foreclosed by Dominguez. We reject their attempts to distinguish Dominguez on
legal and factual grounds. First, Hernandez and Estrada assert that Dominguez is
distinguishable because the primary legal question in that case was whether a
§ 1324(a)(2) violation required specific intent, but the question here is whether the
23 Case: 17-15405 Date Filed: 08/13/2020 Page: 24 of 57
CAA and the Wet-Foot/Dry-Foot policy provided the Cuban players with “de
facto” prior official authorization. Estrada Appellant’s Br. at 17. We disagree that
Dominguez is distinguishable on that basis. In Dominguez, integral to the
defendant’s specific intent argument was that he could not have violated
§ 1324(a)(2) because he believed that the CAA and the Wet-Foot/Dry-Foot policy
provided prior official authorization; in rejecting that argument, we held that those
provisions did not supply prior authorization. That Estrada and Hernandez have
framed their argument differently than Dominguez by focusing on “de facto”
authorization as opposed to intent to violate § 1324(a)(2) does not make
Dominguez’s prior official authorization holding inapplicable to their case.
The defendants also argue that Dominguez is factually distinguishable
because the Cuban players in that case entered the United States at a location other
than an official port-of-entry and waited until three months after entry to seek
asylum—unlike the players here, who entered at designated ports-of-entry and
immediately presented themselves for inspection. But Dominguez’s holding was
not limited to cases where noncitizens failed to enter designated ports-of-entry and
immediately present themselves for inspection. Its reasoning applies with equal
force here because when a Cuban citizen enters at designated port-of-entry he still
must be paroled, which is a “process that ‘reclassifies an alien from one who is
illegally remaining in the United States to one who is legally remaining in the
24 Case: 17-15405 Date Filed: 08/13/2020 Page: 25 of 57
United States regardless of how entry into the United States was effected.’”
Dominguez, 661 F.3d at 1070 (alteration adopted) (quoting United States v.
Medina-Garcia, 918 F.2d 4, 8 (1st Cir. 1990)). Put differently, regardless of
whether a Cuban citizen enters at a designated port-of-entry and presents himself
for inspection, the CAA and the Wet-Foot/Dry-Foot policy provide no “prior
official authorization” because they offer no guarantee that the Cuban citizen will
be paroled into the United States. Thus, we are bound by Dominguez’s conclusion
that the CAA and the Wet-Foot/Dry-Foot policy do not supply “prior official
authorization” for Cuban citizens to enter, come to, or reside in the United States.
See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (stating that,
under the prior panel precedent rule, “a prior panel’s holding is binding on all
subsequent panels unless and until it is overruled or undermined to the point of
abrogation by the Supreme Court or by this court sitting en banc”).
Having concluded that Dominguez controls this case, we now turn to the
defendants’ challenges to the district court’s specific rulings.
2. The Court Did Not Err in Denying the Motion to Dismiss the Indictment, Granting the Government’s Motion in Limine, or Denying the Proposed Jury Instructions.
Because we conclude that Dominguez is authoritative on this issue, we may
easily dispose of Estrada’s and Hernandez’s specific challenges to the district
court’s rulings. First, the court did not abuse its discretion or otherwise err in
25 Case: 17-15405 Date Filed: 08/13/2020 Page: 26 of 57
denying the defendants’ motion to dismiss the superseding indictment because
their argument that the CAA and the Wet-Foot/Dry-Foot policy supplied “prior
official authorization” was foreclosed by Dominguez. See Davis, 708 F.3d at 1221.
Second, the court did not err in granting the government’s motion in limine to
exclude evidence of the CAA and Wet-Foot/Dry-Foot policy because Dominguez
makes this evidence irrelevant to determining their guilt under § 1324(a)(2). See
United States v. Thompson, 25 F.3d 1558, 1563 (11th Cir. 1994) (when a district
court rules on a motion in limine based on a conclusion of law, we review the
court’s legal conclusion de novo).
Lastly, the court did not abuse its discretion by denying the defendants’
requested “prior official authorization” jury instructions. In determining whether
the court abused its discretion in rejecting the defendants’ proposed instructions,
we consider: (1) whether the requested instructions were substantially correct
statements of the law; (2) whether the jury charge given addressed the requested
instructions; and (3) whether the failure to give the requested instructions seriously
impaired their ability to present an effective defense. Dominguez, 661 F.3d at
1071.
Even assuming that the defendants’ proposed jury instructions were correct
statements of the law, the court did not abuse its discretion by rejecting them
because the court’s jury charge adequately addressed the requested instructions.
26 Case: 17-15405 Date Filed: 08/13/2020 Page: 27 of 57
See Dominguez, 661 F.3d at 1072 (rejecting challenge to district court’s denial of
proposed jury instructions where the given instructions “adequately covered” the
defense theory); see also United States v. Takhalov, 827 F.3d 1307, 1316 (11th Cir.
2016) (stating that a district court does not err when it declines to give a defense
instruction that is “substantially covered by a charge actually given” (internal
quotation marks omitted)). As noted above, the court instructed the jury that it
could convict Estrada and Hernandez only if the government proved that they
“knew or [were] in reckless disregard of the fact that the alien had not received
prior official authorization to come to, enter[,] or reside in the United States.”
Doc. 331 at 24. The given jury instruction thus required that, to find a violation of
§ 1324(a)(2), the jury must find that the players had no prior authorization. And
notably, the “prior official authorization” instruction the court gave was nearly
verbatim that given by the district court in Dominguez, which we affirmed on
appeal. Dominguez, 661 F.3d at 1072. The defendants have shown no abuse of
discretion in rejecting their requested jury instruction.
3. “Prior Official Authorization” Is Not Unconstitutionally Vague.
Estrada and Hernandez contend that § 1324(a)(2) is unconstitutionally vague
because it does not define “prior official authorization.” They further argue that,
even if the term “prior official authorization” is “well understood,” the “standards
for determining the existence of this authorization” are unclear. Estrada
27 Case: 17-15405 Date Filed: 08/13/2020 Page: 28 of 57
Appellant’s Br. at 35 (internal quotation marks omitted). Because the statute is
vague, they argue, we should reverse their convictions.
The plain meaning of a statute controls our interpretation of that statute
unless the language is ambiguous or would lead to an absurd result. United States
v. Ortega-Torres, 174 F.3d 1199, 1200 (11th Cir. 1999). “A criminal statute is
unconstitutionally vague if it fails to give a person of ordinary intelligence fair
notice that his contemplated conduct is forbidden.” Id. (internal quotation marks
omitted). A statute must “define the criminal offense with sufficient definiteness
that ordinary people can understand what conduct is prohibited and in a manner
that does not encourage arbitrary and discriminatory enforcement.” Kolender v.
Lawson, 461 U.S. 352, 357 (1983). Although the void-for-vagueness doctrine
“focuses both on actual notice to citizens and arbitrary enforcement,” the Supreme
Court has explained that “the more important aspect of vagueness doctrine is not
actual notice, but . . . the requirement that a legislature establish minimal
guidelines to govern law enforcement.” Id. at 357–58 (internal quotation marks
omitted). Where Congress fails to provide “minimal guidelines, a criminal statute
may permit a standardless sweep that allows policemen, prosecutors, and juries to
pursue their personal predilections.” Id. at 358 (alteration adopted) (internal
quotation marks omitted). If there is an interpretation of the statute that makes the
statute constitutional, we accept that interpretation. Skilling v. United States,
28 Case: 17-15405 Date Filed: 08/13/2020 Page: 29 of 57
561 U.S. 358, 405–06 (2010) (requiring that, “before striking a federal statute as
impermissibly vague, [federal courts] consider whether the prescription is
amenable to a limiting construction”).
We conclude that § 1324(a)(2) is not unconstitutionally vague. 11 “Prior
official authorization” means permission to come to, enter, or reside in the United
States that an immigrant acquired before actually coming to, entering, or residing
in the United States. See 8 U.S.C. § 1324(a)(2) (criminalizing bringing a
noncitizen to the United States where the noncitizen does not have “prior”
authorization to come to, enter, or reside in the United States, notwithstanding any
“later” official action that authorizes the noncitizen’s presence in the United
States). An ordinary person would understand that “authorization” refers to an
official action taken by the United States government pursuant to federal
immigration law and policy that gives an immigrant permission to be present in the
United States. See Ortega-Torres, 174 F.3d at 1200. For instance, a lawfully-
acquired immigrant visa would provide authorization, for the purposes of
§ 1324(a)(2), to come to, enter, or reside in the United States if the visa was
acquired before the immigrant came to, entered, or resided in the United States.
But even if we could imagine scenarios where it would be difficult to determine
11 The defendants have cited no cases addressing whether § 1324(a)(2) is unconstitutionally vague because it fails to define “prior official authorization,” and we have not decided the issue. 29 Case: 17-15405 Date Filed: 08/13/2020 Page: 30 of 57
whether a noncitizen has “prior official authorization,” that alone would not render
the statute impermissibly vague. See United States v. Williams, 553 U.S. 285, 306
(2008) (explaining that a statute is not rendered vague merely because of “the
possibility that it will sometimes be difficult to determine whether the
incriminating fact it establishes has been proved”). In short, we find § 1324(a)(2)
to be sufficiently clear to provide notice to ordinary persons about the conduct that
is prohibited and to guide law enforcement.
B. The Evidence Was Sufficient to Support the Convictions.
Estrada and Hernandez next argue that the evidence was insufficient to
support their convictions on the substantive smuggling counts and the conspiracy
count. We see no error.
We review challenges to the sufficiency of the evidence in criminal cases de
novo, viewing the evidence in the light most favorable to the government. United
States v. Robertson, 493 F.3d 1322, 1329 (11th Cir. 2007). “[E]vidence is
sufficient to support a conviction if a reasonable trier of fact could find that the
evidence established guilt beyond a reasonable doubt.” United States v. Williams,
527 F.3d 1235, 1244 (11th Cir. 2008) (internal quotation marks omitted). “We
assume that the jury made all credibility choices in support of the verdict” and
“accept all reasonable inferences that tend to support the government’s case.” Id.
“[P]ut[ting] forth a reasonable hypothesis of innocence” is not enough to show that
30 Case: 17-15405 Date Filed: 08/13/2020 Page: 31 of 57
the evidence was insufficient “because the issue is not whether a jury reasonably
could have acquitted but whether it reasonably could have found guilt beyond a
reasonable doubt.” United States v. Campo, 840 F.3d 1249, 1258 (11th Cir. 2016)
(internal quotation marks omitted).
1. The Government Presented Sufficient Evidence to Establish that Estrada and Hernandez Aided and Abetted the Smuggling of Cuban Players into the United States.
Estrada and Hernandez first argue that judgments of acquittal should have
been entered on the substantive smuggling counts because the government failed to
prove that they “brought,” or aided and abetted in bringing, Cuban players to the
United States.
To prove a violation of § 1324(a)(2), the government was required to
demonstrate, in part, that Estrada and Hernandez brought or attempted to bring the
Cuban players to the United States. See Dominguez, 661 F.3d at 1063–64; see also
8 U.S.C. § 1324(a)(2) (punishing “[a]ny person who, knowing or in reckless
disregard of the fact that an alien has not received prior official authorization to
come to, enter, or reside in the United States, brings to or attempts to bring to the
United States . . . such alien” (emphasis added)). A conviction under § 1324(a) can
be sustained on an aiding-and-abetting theory. See Dominguez, 661 F.3d at 1065;
see also 18 U.S.C. § 2(a) (“Whoever commits an offense against the United States
or aids, abets, counsels, commands, induces[,] or procures its commission, is
31 Case: 17-15405 Date Filed: 08/13/2020 Page: 32 of 57
punishable as a principal.”). To prove a substantive smuggling offense under the
theory of aiding and abetting, under 18 U.S.C. § 2 “the evidence must establish
that (1) the substantive offense was committed by someone; (2) the defendant
committed an act which contributed to and furthered the offense; and (3) the
defendant intended to aid in its commission.” Dominguez, 661 F.3d at 1065
The evidence presented at trial was sufficient to prove that Estrada and
Hernandez aided and abetted in bringing Cuban players to the United States. See
id. As to Estrada, a reasonable jury could have found that the evidence established
beyond a reasonable doubt that he aided and abetted in bringing Luis, Abreu, and
Hinojosa to the United States. The government presented evidence that showed
that Estrada played a significant role in facilitating the players’ entries into the
United States. See Williams, 527 F.3d at 1244. First, the evidence showed that
Estrada made “every effort” to ensure that Luis made it to the United States-
Mexico border. Doc. 523 at 116. Specifically, Estrada worked with Tilbert to
secure Luis’s passage and paid Tilbert’s immigration contact; paid for Luis’s plane
ticket from Panama to Reynosa, Mexico and accompanied him on the flight; and
crossed the border shortly after Luis and waited for him on the Texas side of the
border. By organizing Luis’s passage to the United States and funding his journey,
Estrada “contributed to and furthered” Luis’s border crossing. See Dominguez,
32 Case: 17-15405 Date Filed: 08/13/2020 Page: 33 of 57
661 F.3d at 1065 (evidence that Dominguez financed the smuggling operation
showed that he “contributed to and furthered” that operation, which amounted to
aiding and abetting in the smuggling); 18 U.S.C. § 2; see also United States v.
Lopez, 484 F.3d 1186, 1199 (9th Cir. 2007) (en banc) (concluding that “[a]
financier who organizes and funds a smuggling operation, . . . whether located in
or outside of the United States, may be said to have associated himself with the
venture, participated in it as in something he wished to bring about, and sought by
his action to make it succeed” (alterations adopted) (internal quotation marks
omitted)).
Similarly, Estrada aided and abetted in bringing Hinojosa and Abreu to the
United States because he “contributed to and furthered” their moves from Cuba to
Haiti and, eventually, the United States. See 8 U.S.C. § 2; Dominguez, 661 F.3d at
1065. As with Luis, the evidence shows that Estrada financed these players’
journeys from Cuba to Haiti. Dominguez, 661 F.3d at 1065. Then, in Haiti,
Hinojosa and Abreu were put in touch with Estrada’s contact, Latouff. Latouff
brought Hinojosa and Abreu to the airport to meet his associate, who then guided
them through the airport checkpoints so that they could board a plane to the United
States. Both men successfully boarded the plane and made it to the United
33 Case: 17-15405 Date Filed: 08/13/2020 Page: 34 of 57
States.12 See United States v. Hill, 939 F.2d 934, 937 (11th Cir. 1991) (noting that
an international airport is an example of a place that is the “functional equivalent”
of a border).
We conclude that this evidence sufficed to establish beyond a reasonable
doubt that Estrada aided and abetted in bringing Luis, Hinojosa, and Abreu to the
United States. See Campo, 840 F.3d at 1258.
We also conclude that the evidence supported Hernandez’s conviction for
aiding and abetting the smuggling of Martin into the United States. Robertson,
493 F.3d at 1329. As Estrada did with Luis, Abreu, and Hinojosa, Hernandez
played a critical role with Martin. The record shows that Hernandez traveled to
Guatemala to secure a passport for Martin, which Martin needed to apply for a
visa. Hernandez also contacted MLB to determine whether it would honor
Martin’s contract if he crossed into the United States without a visa. Then,
Martinez took Martin to the border, and they crossed separately. At trial, Martin
testified that he crossed the border based on Hernandez’s assurance that MLB
would honor his contract. Hernandez contests this fact on appeal, pointing to
phone records suggesting that Martin crossed the border before Hernandez assured
him that MLB would honor his contract and contradictory testimony by Martin that
12 Notably, Estrada does not challenge the government’s assertion that the Port-au-Prince airport was the functional equivalent of a border. 34 Case: 17-15405 Date Filed: 08/13/2020 Page: 35 of 57
he never talked to Hernandez “about talking to someone at [MLB].” Doc. 519 at
111. But at this stage, we must make all reasonable inferences in favor of the
jury’s verdict. Williams, 527 F.3d at 1244. We must assume that the jury found
credible Martin’s testimony that he decided to cross into the United States upon
Hernandez’s assurances. A reasonable jury could find beyond a reasonable doubt
that Hernandez aided and abetted in smuggling Martin into the United States. The
evidence therefore was sufficient.
The defendants argue that the government failed to establish the “brings to”
element of § 1324(a)(2) because there was no evidence that they, or another co-
conspirator, physically accompanied the players across the border. They point to
cases from other circuits to support this argument. They cite United States v.
Garcia-Paulin, 627 F.3d 127 (5th Cir. 2010), in which the Fifth Circuit reversed
the defendant’s conviction for bringing a noncitizen to the United States where the
evidence showed only that the defendant had procured a fraudulent passport stamp
for a noncitizen and explained to the noncitizen that the passport would allow him
to work in the United States. Id. at 130, 133. The Fifth Circuit concluded that the
evidence was insufficient to establish a “brings to” offense because it did not show
that the defendant played an active role in smuggling the noncitizen into the United
States by either accompanying the noncitizen or directing someone “to help the
noncitizen cross” the border. Id. at 133.
35 Case: 17-15405 Date Filed: 08/13/2020 Page: 36 of 57
The defendants also rely on United States v. Assadi, 223 F. Supp. 2d 208
(D.D.C. 2002), in which the United States District Court for the District of
Columbia entered a judgment of acquittal on the defendant’s § 1324(a)(2)
conviction for bringing noncitizens to the United States because the evidence
showed only that the defendant “encourage[ed]” the noncitizens to enter the United
States illegally. Id. at 209–10. In that case, the defendant procured fraudulent
passports for noncitizens, bought them airline tickets, took them to the airport, and
instructed them to lie to immigration officials, but he did not accompany them on
their flights or arrange to have someone meet them in the United States. Id. at 211.
The court concluded that a “brings to” conviction requires evidence that the
defendant “not only help[ed], but also accompan[ied] aliens, or le[d] them, or me[t]
them at the border.” Id. at 210.
We reject the defendants’ contention that this case is like Garcia-Paulin and
Assadi, where the evidence was insufficient to establish a “brings to” offense
because it did not show that the defendants or someone they directed physically
accompanied the players across the border. Evidence of physical accompaniment
across the border was not necessary to sustain the defendants’ aiding-and-abetting
convictions. See Lopez, 484 F.3d at 1199 (“It is clear that under certain
circumstances a defendant who does not physically transport aliens across the
border may be held criminally liable for aiding and abetting a ‘brings to’
36 Case: 17-15405 Date Filed: 08/13/2020 Page: 37 of 57
offense.”). Rather, it was enough that the defendants and other members of the
smuggling operation made all the arrangements for the players’ border crossings:
either Estrada or another co-conspirator physically accompanied the players “to”
the border, and shortly after the players crossed into the United States, someone
involved in the smuggling operation met and directed them how to proceed.
8 U.S.C. § 1324(a)(2).
Relatedly, the defendants point to Lopez, in which the Ninth Circuit, sitting
en banc, concluded that the evidence—which showed that the defendant only
spoke to the smuggler about where to pick up noncitizens on the United States side
of the border—was insufficient to prove that the defendant aided and abetted a
“brings to” offense because it did not show that the defendant “knowingly and
intentionally commanded, counseled, or encouraged the [smuggler] to commit the
‘brings to’ offense.” 484 F.3d at 1201. But here, in contrast to Lopez, the evidence
showed that Estrada and Hernandez played an active role in the smuggling
operation by involving themselves in nearly every aspect of the scheme—from the
initial meetings, to finances, to logistics. They directed the players what to do and
say in the border crossings. Estrada and Hernandez were intimately involved in
arranging not only the events leading up to the border crossings, but also the
aftermath of each crossing. The defendants cannot avoid conviction because their
smuggling operation was more sophisticated and meticulously planned and
37 Case: 17-15405 Date Filed: 08/13/2020 Page: 38 of 57
executed than some. We therefore conclude that the evidence was sufficient to
prove the defendants’ substantive smuggling convictions. 13
2. The Government Presented Sufficient Evidence to Establish that Estrada and Hernandez Conspired to Smuggle Cuban Players into the United States.
The defendants next argue that the evidence was insufficient to establish that
they conspired to commit an offense against the United States, in violation of
§ 371. We are unconvinced.
To establish a conspiracy under § 371, “the Government must prove (1) that
an agreement existed between two or more persons to commit a crime; (2) that the
defendant knowingly and voluntarily joined or participated in the conspiracy; and
(3) that a conspirator performed an overt act in furtherance of the agreement.”
United States v. Ndiaye, 434 F.3d 1270, 1294 (11th Cir. 2006). The crime of
13 The defendants briefly argue that, even if the evidence showed that they aided and abetted in bringing the players to the United States, the government failed to prove that they did so for a commercial advantage or a private financial gain. See 8 U.S.C. § 1324(a)(2)(B)(ii) (criminalizing bringing noncitizens in the United States “for the purpose of commercial advantage or private financial gain”). We disagree; the record is replete with evidence that the entire smuggling operation was planned and conducted for the co-conspirators’ financial gain. Indeed, Estrada and Hernandez did not just finance and arrange for any Cuban citizen to be brought to the United States. Rather, under the scheme, the defendants identified and recruited talented Cuban players, then helped the players set up residency and obtain false documents in other countries so that the players could acquire OFAC licenses and visas, which would allow them to enter lucrative free agent contracts with MLB. Estrada and Hernandez then took significant cuts of those contracts. The evidence easily supports the jury’s verdict that Estrada and Hernandez smuggled noncitizens into the United States for a commercial advantage or financial gain.
38 Case: 17-15405 Date Filed: 08/13/2020 Page: 39 of 57
conspiracy is complete upon the commission of an overt act. See United States v.
Arias, 431 F.3d 1327, 1340 n.18 (11th Cir. 2005). The existence of a
conspiratorial agreement may be proved by “inferences from the conduct of the
alleged participants or from circumstantial evidence of a scheme.” United States v.
Mateos, 623 F.3d 1350, 1362 (11th Cir. 2010) (internal quotation marks omitted).
Further, “[a] conspiracy conviction will be upheld if the circumstances surrounding
a person’s presence at the scene of conspiratorial activity are so obvious that
knowledge of its character can fairly be attributed to him.” United States v. Azmat,
805 F.3d 1018, 1035 (11th Cir. 2015) (internal quotation marks omitted).
We conclude that the government presented sufficient evidence to prove that
Estrada and Hernandez conspired, in violation of § 371, to bring Cuban baseball
players into the United States in violation of § 1324(a)(2). See Robertson,
493 F.3d at 1329. As we have discussed, the evidence showed that: Estrada and
Hernandez identified talented Cuban baseball players and partnered with a criminal
smuggling organization to smuggle those players into the United States; Estrada
either paid for the players’ travel expenses or connected them with a contact who
would plan and finance their trips from Cuba to the United States border; the
smuggling operation paid immigration officials to procure fraudulent residency
documents, which Hernandez used to obtain unblocking licenses and visas;
Estrada, Hernandez, and other co-conspirators met with the players once they
39 Case: 17-15405 Date Filed: 08/13/2020 Page: 40 of 57
crossed the border and assisted them with MLB negotiations; and Estrada and
Hernandez signed contracts with the players obligating them to pay a percentage of
their baseball earnings. The totality of the circumstantial evidence thus supported
the jury’s conclusion that Estrada and Hernandez knowingly and voluntarily
participated in a conspiracy to smuggle Cuban players into the United States. See
Ndiaye, 434 F.3d at 1294; see also Dominguez, F.3d 661 at 1064 (evidence
showing that Dominguez partnered with an associate to form the smuggling
operation, funded the operation, and entered contracts obligating players—who
were brought to the United States by boat—to pay a percentage of their baseball
earnings was sufficient circumstantial evidence to prove a conspiracy to violate
§ 1324(a)(2)). 14
C. The District Court Committed No Abuse of Discretion in the Challenged Evidentiary Rulings.
Lastly, Estrada and Hernandez raise numerous evidentiary challenges,
including that the court erred by: (1) admitting lay opinion testimony of Smith and
Baer; (2) restricting the admission of evidence that would show that Hernandez
14 The indictment also charged that the defendants conspired to (1) knowingly and willfully make a false and material statement; (2) knowingly make use of a false writing; and (3) knowingly possess, use, or obtain a visa that was procured by fraud. Because the evidence was sufficient to establish the smuggling conspiracy object, we need not consider whether the evidence proved the other conspiracy objects charged in the indictment. See United States v. Medina, 485 F.3d 1291, 1302 (11th Cir. 2007) (explaining that we will uphold a conviction for a multi-object conspiracy when there is sufficient evidence to support a conviction for one of the objects).
40 Case: 17-15405 Date Filed: 08/13/2020 Page: 41 of 57
acted in good faith in preparing OFAC and visa applications; (3) admitting
evidence of uncharged violence and extortion; (4) admitting impermissible hearsay
testimony by Lazo Jr.; and (5) excluding evidence proving that Reyes committed
perjury. They argue that the cumulative effect of the evidentiary errors compels
the reversal of their convictions.
We review the district court’s evidentiary rulings for an abuse of discretion.
United States v. Barsoum, 763 F.3d 1321, 1338 (11th Cir. 2014). We review de
novo the district court’s interpretation of the Federal Rules of Evidence. See
United States v. Paul, 175 F.3d 906, 909 (11th Cir. 1999). We address each
evidentiary argument below.
1. The District Court Did Not Abuse Its Discretion by Admitting Lay Opinion Testimony.
Estrada and Hernandez first argue that the court abused its discretion by
permitting Smith and Baer to testify about government policy related to unblocking
licenses and visa applications, respectively. They argue that neither Smith nor
Baer had personal knowledge of the players’ unblocking and visa applications.
Because Smith and Baer were not qualified as experts, Estrada and Hernandez
assert, their testimony was inadmissible lay opinion testimony.
Under Federal Rule of Evidence 701, a lay witness may offer opinion
testimony if the testimony is “(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a 41 Case: 17-15405 Date Filed: 08/13/2020 Page: 42 of 57
fact in issue; and (c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.” Fed. R. Evid. 701. “Notably, Rule 701
does not prohibit lay witnesses from testifying based on particularized knowledge
gained from their own personal experiences.” United States v. Jeri, 869 F.3d 1247,
1265 (11th Cir. 2017) (internal quotation marks omitted).
Here, the district court did not abuse its discretion in admitting Smith’s and
Baer’s testimony. See Barsoum, 763 F.3d at 1338. Before trial, Estrada and
Hernandez moved to exclude their testimony because the two witnesses were not
qualified as experts. The district court denied the motions, concluding that Smith
and Baer could present lay opinion testimony about the unblocking and visa
applications as long as their testimony was limited to “the policies and practices of
their employers.” Doc. 246 at 2. At trial, Smith—a senior enforcement officer at
OFAC—testified that he had worked at OFAC for 19 years and explained OFAC’s
licensing process. He further explained that OFAC took misrepresentations in
unblocking applications “very seriously.” Doc. 511 at 170. Baer testified that he
had worked as a special agent at the State Department since 2004 and, in that role,
investigated visa and passport fraud. He explained that Cuban nationals were
required to have authorizing documents, like a visa, to enter the United States. He
further explained the role of residency and employment in the visa review process,
the type of conduct that could render someone ineligible for a visa, and the effect
42 Case: 17-15405 Date Filed: 08/13/2020 Page: 43 of 57
of false information on a visa application. Neither Smith nor Baer reviewed the
players’ unblocking and visa applications at the time they were submitted; rather,
they reviewed them as part of the government’s investigation into this case.
The court did not abuse its discretion by allowing Smith and Baer to testify
about their work because their testimony was rationally based on their perceptions
as longtime OFAC and State Department employees. See Jeri, 869 F.3d at 1265;
see also Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d
1213, 1223 (11th Cir. 2003) (holding that the district court did not abuse its
discretion in admitting lay testimony of repair company employees based on their
“particularized knowledge garnered from years of experience within the field”). It
does not matter that Smith and Baer were not involved in the players’ unblocking
and visa applications at issue here; they reviewed the documents in preparation for
trial and were permitted to give their impressions of those documents based on
their experience in their fields. See United States v. Jayyousi, 657 F.3d 1085, 1102
(11th Cir. 2011) (“We have allowed a lay witness to base his opinion testimony on
his examination of documents even when the witness was not involved in the
activity . . . .”). And their testimony was helpful to the finder of fact because it
explained the process for reviewing and granting unblocking licenses and visas and
emphasized the importance of the residency requirements. See Fed. R. Evid.
701(b).
43 Case: 17-15405 Date Filed: 08/13/2020 Page: 44 of 57
Lastly, their testimony was not based on technical or specialized knowledge
within the scope of Rule 702. See id. 701(c). The court limited Smith and Baer to
testifying about “the policies and practices of their employers.” Doc. 246 at 2.
The Advisory Committee notes for Rule 701 explain that such testimony is
admissible lay opinion testimony because it is “admitted not because of
experience, training[,] or specialized knowledge within the realm of an expert, but
because of the particularized knowledge that the witness has by virtue of his or her
position in the business.” Fed. R. Evid. 701, advisory committee’s note to 2000
amendment (discussing as an example the testimony of business owners or
officers); see Jayyousi, 657 F.3d at 1104 (concluding that testimony by an FBI
agent was lay opinion testimony under Rule 701(c) because his testimony was
based on his personal work experience and limited to what he learned by
investigating the defendants). We thus conclude that the district court did not
abuse its discretion in admitting Smith’s and Baer’s lay opinion testimony.
2. The District Court Did Not Abuse Its Discretion by Excluding Evidence Offered to Rebut Lay Opinion Testimony and Establish a Good Faith Defense.
Estrada and Hernandez next contend that the court abused its discretion by
limiting their ability to rebut Smith’s and Baer’s lay opinion testimony and
establish that they acted in good faith to comply with OFAC regulations. In
particular, they argue that the court improperly prevented (1) Shapiro from
44 Case: 17-15405 Date Filed: 08/13/2020 Page: 45 of 57
testifying about changes to OFAC regulations and Hernandez’s “good faith
effort[]” to comply with those regulations, and (2) the defense from submitting
evidence of other baseball players who waited for their OFAC licenses and visas
before entering the United States—evidence that the defendants contend would
have shown their good-faith compliance with the regulations.
At trial, the defendants sought to introduce evidence that Shapiro had
studied OFAC regulations and that “OFAC filings” were “within his experience as
an attorney.” Doc. 529 at 48. They also sought to introduce evidence that some
baseball players (none of whom were identified in Estrada’s and Hernandez’s
indictments) waited for their visas and unblocking licenses before crossing into the
United States. The district court determined that this evidence was inadmissible.
The court prevented Shapiro from testifying about advice that he gave to his clients
regarding OFAC regulations or his understanding of those regulations. The court
explained that such testimony would be improper because “Mr. Shapiro is a
lawyer[,] [h]e is not an agent[,] [and] [h]e does not work for OFAC or the
Government.” Id. at 51. And the court determined that the evidence that related to
other baseball players had little probative value, as they obtained their licenses and
visas and entered the United States after the defendants learned of the federal
investigation into the smuggling scheme.
45 Case: 17-15405 Date Filed: 08/13/2020 Page: 46 of 57
Following the jury’s verdict, the court denied the defendants’ post-trial
challenges to its evidentiary rulings. The court explained that Shapiro’s proposed
testimony would have confused the jury “by giving the impression that Hernandez
acted on the advice of Shapiro’s legal counsel—a defense that Hernandez in
numerous pretrial hearings unequivocally stated that he was not pursuing.” Doc.
452 at 25. It further explained that it excluded the evidence related to the other
baseball players because it was irrelevant to the criminal prosecution.
Here, the court did not abuse its discretion in limiting Shapiro’s testimony
and preventing the defendants from presenting evidence about baseball players
who waited to cross into the United States until they obtained their licenses and
visas. See Barsoum, 763 F.3d at 1338. First, Shapiro was not qualified as an
expert, and the defendants did not show that he had practical knowledge or
experience—similar to Smith’s and Baer’s—that would permit him to give lay
opinion testimony about OFAC policy. See Fed. R. Evid. 701. Even if, as the
defendants argue, evidence that Shapiro attempted to comply with OFAC
regulations might have been minimally relevant to negate their willfulness to
violate the law, the court was permitted to exclude the evidence on the ground that
its potential for confusing the jury substantially outweighed any probative value.
See Fed. R. Evid. 403 (allowing the exclusion of relevant evidence where its
probative value is substantially outweighed by the risk of “confusing the issues”).
46 Case: 17-15405 Date Filed: 08/13/2020 Page: 47 of 57
And it appears that Shapiro’s evidence would have been particularly confusing
given that the defendants—throughout the trial—never pursued the theory that they
acted on Shapiro’s advice in submitting documents with false information to
OFAC and the State Department. Thus, the court’s conclusion that such evidence
was inadmissible was well within its discretion.15
The court also did not abuse its discretion in excluding evidence about the
other baseball players. Those players—who were not identified in the
indictment—entered the United States only after the federal government initiated
its investigation into the smuggling operation. Under our precedent, this evidence
could not negate the defendants’ criminal intent to violate the law. See United
States v. Russell, 703 F.2d 1243, 1249 (11th Cir. 1983) (determining that
noncriminal conduct introduced to “negate the inference of criminal conduct is
generally irrelevant” (internal quotation marks omitted)).
15 For the same reasons, the court did not abuse its discretion by rejecting the defendants’ proposed good-faith jury instruction, as the defendants now argue. Dohan, 508 F.3d at 993. In the district court, the defendants argued that they relied on Shapiro’s representations in submitting the unblocking and visa applications and requested that the court instruct the jury that “[w]illfulness [to violate the law] may be negated by a good-faith misunderstanding of law, or a good-faith belief that one is not violating the law.” Doc. 310 at 34. The court rejected that instruction, concluding that it would unnecessarily confuse the jury because the defendants had not presented that defense theory at trial. Instead, the court instructed the jury that “[t]he word ‘willfully’ means the act was committed voluntarily and purposely, with the intent to do something that the law forbids; that is, with the bad purpose to disobey or disregard the law.” Doc. 331 at 26. This was not an abuse of discretion. The proposed good-faith instruction would have made little sense in the context of the trial as a whole. Moreover, the given instruction explained that the defendants’ violation of the law must have been willful; implicit in that instruction is that the defendants could not be found guilty if they misunderstood or believed they were not violating the law. 47 Case: 17-15405 Date Filed: 08/13/2020 Page: 48 of 57
3. The District Court Did Not Abuse Its Discretion by Admitting Evidence of Uncharged Violence and Extortion.
Next the defendants argue that the court abused its discretion by admitting
prejudicial evidence of uncharged violence or extortion inflicted on nonplayers or
their families by third parties. We reject this argument as well.
Rule 404(b) provides that evidence of other crimes, wrongs, or acts is
inadmissible “to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” Fed. R. Evid.
404(b)(1). However, such evidence “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). Evidence
extrinsic to the charged crimes is admissible only if it is relevant to an issue other
than the defendant’s character and its probative value is not substantially
outweighed by a risk of undue prejudice. United States v. Foster, 889 F.2d 1049,
1054 (11th Cir. 1989).
By contrast, evidence of criminal activity is intrinsic and falls outside the
prohibitions of Rule 404(b) when it is “(1) an uncharged offense which arose out
of the same transaction or series of transactions as the charged offense,
(2) necessary to complete the story of the crime, or (3) inextricably intertwined
with the evidence regarding the charged offense.” United States v. Edouard,
485 F.3d 1324, 1344 (11th Cir. 2007) (internal quotation marks omitted). 48 Case: 17-15405 Date Filed: 08/13/2020 Page: 49 of 57
Evidence is inextricably intertwined with the evidence regarding the charged
offense if it forms an “integral and natural part of the witness’s accounts of the
circumstances surrounding the offenses for which the defendant was indicted.”
Foster, 889 F.2d at 1053 (internal quotation marks omitted). Such evidence must
still satisfy the requirements of Rule 403—that is, the probative value of the
evidence must not be substantially outweighed by a danger of unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence. Edouard, 485 F.3d at 1344; Fed. R. Evid. 403.
Here, the superseding indictment did not expressly mention any use of
violence or extortion in furtherance of the conspiracy. In its “Notice of Intent to
Introduce Evidence,” however, the government indicated that it would present
evidence showing that Estrada and Hernandez placed players and their family
members in direct harm of violence and financed a violent smuggling organization.
Such evidence, the government argued, was admissible because it pertained to acts
that were part of the conspiracy.
Before trial, Estrada and Hernandez filed two motions in limine to exclude
evidence of violence, threats of violence, and non-baseball player smuggling.
They argued that evidence of violence and extortion third parties committed
toward non-players or their families was inadmissible under Rule 404(b).
Additionally, they argued that the evidence was not part of the conspiracy charged
49 Case: 17-15405 Date Filed: 08/13/2020 Page: 50 of 57
in the indictment, nor was it inextricably intertwined with the charged conspiracy.
Finally, they argued that the danger of unfair prejudice outweighed any probative
value that the evidence might have.
At a preliminary hearing, the court addressed the motions in limine. The
court instructed that the government should present evidence “in terms of what was
observed and what is germane to this case.” Doc. 498 at 23. The court denied the
motions in limine but required that the government inform the court before
presenting evidence of non-baseball player violence or extortion at trial.
At the trial, government witnesses highlighted numerous instances of
violence and extortion. 16 At the end of the trial, the court instructed the jury that
“merely associating with certain people, even unsavory characters, and discussing
common goals and interests does not establish proof of a conspiracy.” Doc. 331 at
18.
16 The government presented the following evidence of violence and extortion: The wife of one player testified that her husband’s handler threatened to “chop[] [her husband] in pieces,” Doc. 516 at 87; Jorge Padron, a baseball player from Cuba who was smuggled into the United States, testified that Nacho was assaulted and kidnapped; Padron testified that the smuggling organization smuggled non-player Cuban migrants to Mexico and had to pay another criminal organization a piso for each migrant; a non-player who paid the smuggling organization to smuggle her out of Cuba testified that she was not allowed to leave Mexico until her relative paid $10,000 to the other criminal organization; Tilbert testified that non-players who failed to pay the $10,000 fee were beaten; Reyes testified that Nacho had threatened to beat up a Cuban player unless he made a $50,000 ransom payment; and Martin testified that his handler once said that “bad things could happen” if he got upset, Doc. 519 at 62.
50 Case: 17-15405 Date Filed: 08/13/2020 Page: 51 of 57
The court did not abuse its discretion by admitting the evidence. See
Barsoum, 763 F.3d at 1338. The evidence was not impermissible bad acts
evidence under Rule 404(b); rather, it was intrinsic evidence necessary to complete
the story of the crimes and integral to the charged conspiracy. See Edouard,
485 F.3d at 1344; Foster, 889 F.2d at 1053. Specifically, the evidence related to
Nacho, his criminal organization, and the piso the smugglers were required to pay
to move Cuban players and their families first to Mexico and then to the United
States. As the defendants’ smuggling operation relied on Nacho’s organization to
move players into third countries, the evidence of violence and extortion helped
explain the operation’s methods. And although some of the evidence—such as
testimony by a player’s wife that a handler threatened to chop her husband into
pieces—had the potential to elicit an emotional response from the jury, the district
court reasonably concluded that the probative value of the evidence outweighed its
potential prejudicial effect. See Fed. R. Evid. 403, advisory committee’s note to
1972 proposed rule (explaining that “unfair prejudice” is “an undue tendency to
suggest decision on an improper basis, commonly, though not necessarily, an
emotional one”). The evidence was essential to illustrate how the smuggling
operation partnered with a criminal organization in Mexico to smuggle Cuban
players into the United States. In any event, any prejudicial effect was addressed
by the court’s curative instruction to the jury, which explained that the defendants’
51 Case: 17-15405 Date Filed: 08/13/2020 Page: 52 of 57
association with unsavory characters was not enough to prove their guilt. See
United States v. Simon, 964 F.2d 1082, 1087 (11th Cir. 1992) (“[A] prejudicial
remark may be rendered harmless by curative instructions to the jury.” (internal
quotation marks omitted)). And so we conclude that the district court did not
abuse its discretion in admitting the evidence of violence and extortion.
4. The District Court Did Not Abuse Its Discretion by Admitting Lazo Jr.’s Testimony About Statements Made by Lazo Sr.
Estrada and Hernandez next argue that the district court abused its discretion
by admitting statements purportedly made by Lazo Sr. through the testimony of
Lazo Jr. under the co-conspirator exception to the rule against hearsay. This
argument, too, must fail.
Although hearsay generally is not admissible, out-of-court statements made
by co-conspirators may be offered for the truth of the matter asserted. Fed. R.
Evid. 801(d)(2)(E). Before a co-conspirator’s hearsay statement may be admitted,
the government must prove by a preponderance of the evidence that: a conspiracy
existed, the conspiracy included the declarant and the defendant against whom the
statement is offered, and the declarant made the statement during the course of and
in furtherance of the conspiracy. United States v. Christopher, 923 F.2d 1545,
1549–50 (11th Cir. 1991). We apply a “liberal standard in determining whether a
statement is made in furtherance of a conspiracy.” United States v. Santiago,
837 F.2d 1545, 1549 (11th Cir. 1988).
52 Case: 17-15405 Date Filed: 08/13/2020 Page: 53 of 57
At trial, the government called Lazo Jr. Before he took the stand, the
defense expressed concern that he would testify about a phone conversation
between Lazo Sr., Hernandez, and Martin, as well as conversations he had with
Lazo Sr. about the smuggling operation. Such evidence, the defense argued, was
impermissible hearsay. The court permitted Lazo Jr. to testify about the phone call
as long as his testimony was limited to “who was on the phone [and] the subject
[of the phone call].” Doc. 521 at 67. The court also determined that Lazo Jr. could
testify about his conversations with Lazo Sr. because there was no “question Lazo
[Sr.] was a member of the conspiracy.” Id. at 85.
Lazo Jr. testified that he remembered his father having a phone conversation
with Hernandez and Martin about Martin’s desire to enter the United States
without waiting for his visa. Lazo Jr. heard Hernandez promise to contact MLB
and, later, he observed Hernandez call the men back to say that it would not be a
problem if Martin crossed the border without a visa.
Lazo Jr. further testified that Lazo Sr. would discuss the business with him
so he could “learn” and “later on become involved in the business.” Doc. 521 at
87. He had conversations with his father about compensation, the ball players, and
the members of the conspiracy and their jobs. After Lazo Sr. was arrested, Lazo Jr.
took a much more active role in Estrellas del Beisbol; for example, he and
53 Case: 17-15405 Date Filed: 08/13/2020 Page: 54 of 57
Hernandez worked together to pay off immigration officials and secure fake jobs
for the players to aid in the smuggling operation.
Here, the district court did not abuse its discretion by admitting Lazo Jr.’s
testimony about the conversation between Lazo Sr., Hernandez, and Martin and his
conversations with Lazo Sr. about the organization. See Barsoum, 763 F.3d at
1338. The testimony was not impermissible hearsay because the declarant, Lazo
Sr., was a member of the smuggling conspiracy, and his statements explaining the
operation to Lazo Jr. and discussing Martin’s MLB contract were made in
furtherance of the conspiracy. See Fed. R. Evid. 801(d)(2)(E).17
5. The District Court Did Not Abuse Its Discretion by Excluding Impeachment Evidence of Reyes’s Perjury.
Lastly, Estrada and Hernandez contend that the district court improperly
denied their motion to strike Reyes’s testimony and prevented them from
presenting evidence that Reyes committed perjury and was coached by the
prosecution. Once again, we are unpersuaded.
At trial, the government called Reyes, who initially testified that Estrada
accompanied him to Cancun in April 2009. When Reyes was recalled to the
17 The defendants also argue that Lazo Jr.’s testimony was inadmissible because he was unable to recall some dates and names. But his inability to remember facts and details is the proper subject of cross examination and goes to his credibility, not the admissibility of his testimony. Such credibility determinations are the province of the jury, not the court. See United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997) (stating that “credibility determinations are the exclusive province of the jury” (alteration adopted) (internal quotation marks omitted)). 54 Case: 17-15405 Date Filed: 08/13/2020 Page: 55 of 57
witness stand the next day, he asked to “go back on [the] topic” of the Cancun trip.
Doc. 518 at 4. He then testified that he had “spent the entire night going over
everything that happened to [him]” and, upon reflection, he realized that Estrada
was not present during the April trip to Cancun. Id. at 5. Reyes testified that he
had not discussed his testimony with anyone after he left the courtroom the
previous day.
Estrada and Hernandez moved for a mistrial based on Reyes’s inconsistent
testimony. The court asked the government if it had contacted Reyes about his
testimony the previous evening, and the government responded that it had not. The
court denied the motion for a mistrial, explaining that the issue of Reyes’s
inconsistency would be “left to th[e] jury.” Id. at 26. Outside of the presence of
the jury, Reyes told the court that he had not spoken to anyone about his testimony.
After the government rested, the defendants subpoenaed Reyes’s cell phone
records. They discovered that Reyes in fact had spoken with his attorney the
evening after his first day of testimony. 18 They argued that this evidence showed
that Reyes had committed perjury. They moved to strike Reyes’s testimony.
The court denied the request and instead allowed the defense to “introduce
the records showing [Reyes] contacted his lawyer when he said on the stand that he
18 In addition, the phone records showed that Reyes had a quick phone call with a case agent, but the defendants did not focus on this phone call, which they acknowledged was related to the fact that Reyes was running late for court. 55 Case: 17-15405 Date Filed: 08/13/2020 Page: 56 of 57
had not contacted anyone.” Doc. 529 at 204–05. After the defense rested, both
sides agreed to stipulate as to the contents of the phone records. The defense
requested that the court permit it to inform the jury that Reyes, outside of the
presence of the jury, told the court that it had not spoken to anyone the evening
after his first day of testimony. The court denied that request, concluding that the
stipulation of the phone records was sufficient. The defense then submitted the
phone records into evidence and told the jury that, although Reyes had testified
that he had not talked to anyone after his first day of testimony, the records
reflected that he had spoken to his attorney.
Here, the court did not abuse its discretion in failing to strike Reyes’s
testimony. See Barsoum, 763 F.3d at 1338. The court permitted the defense to
submit the phone records and inform the jury that Reyes had lied on the stand.
Thus, the jury was well aware of Reyes’s perjury; any additional evidence that
Reyes had lied to the court would have been cumulative. Upon learning about the
perjury, the jury—not the court—had to decide whether Reyes was credible. See
Calderon, 127 F.3d at 1325. We affirm on this ground. 19
19 Because Estrada and Hernandez are entitled to no relief on their individual evidentiary claims, we reject their cumulative-error claim. See United States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011) (holding, in a criminal appeal, that “[w]here there is no error or only a single error, there can be no cumulative error”). 56 Case: 17-15405 Date Filed: 08/13/2020 Page: 57 of 57
IV. CONCLUSION
For the reasons discussed above, we affirm the defendants’ convictions.
AFFIRMED.
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969 F.3d 1245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-julio-estrada-ca11-2020.