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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-12196 Non-Argument Calendar ________________________
D.C. Docket No. 1:15-cr-20540-KMM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SERGIO NEFTALI MEJIA-DUARTE, a.k.a. Neftali, a.k.a. Compa, a.k.a. El Doctor, a.k.a. Cunado,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(July 2, 2019)
Before TJOFLAT, MARTIN, and NEWSOM, Circuit Judges. Case: 18-12196 Date Filed: 07/02/2019 Page: 2 of 16
PER CURIAM:
Sergio Neftali Mejia-Duarte was convicted by a jury of a single count of
conspiring to distribute five or more kilograms of cocaine in violation of 21 U.S.C.
§ 959, the District Court imposed a sentence, and Mejia-Duarte now appeals both
his conviction and his sentence.
Mejia-Duarte was extradited to the United States from Honduras pursuant to
an extradition treaty (the “Treaty”) between the two countries. See Convention
Between the United States and Honduras for the Extradition of Fugitives from
Justice, Hond.-U.S., Jan. 15, 1909, 37 Stat. 1616 [hereinafter Honduras Treaty].
The Honduran extradition order allowed the United States to “impute” to Mejia-
Duarte only events that occurred after February 27, 2012.1 As described below,
the Treaty and the extradition order affect our analysis of both the conviction and
the sentence.
As to the conviction, Mejia-Duarte argues that (1) the District Court
admitted evidence whose probative value was substantially outweighed by the risk
of unfair prejudice, see Fed. R. Evid. 403, and (2) the evidence presented at trial
was insufficient to support his conviction for post−February 2012 conduct. As to
the sentence, he challenges the District Court’s (1) factual finding that he
1 The precise date is not relevant. So for the reader’s ease, we omit the date and simply refer to post− and pre−February 2012 conduct.
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obstructed justice, see U.S. Sentencing Guidelines Manual §3C1.1 (U.S.
Sentencing Comm’n 2006), 2 and (2) legal conclusion that his sentence could be
enhanced for a variety of conduct that occurred during or before February 2012.
We affirm on all grounds.
I.
The drug conspiracy with which Mejia-Duarte was charged lasted from 2004
until at least 2014. The Government presented six witnesses, five of whom were
co-conspirators and one of whom was a Colombian law-enforcement official. Of
the co-conspirators, some supplied the cocaine from Colombia, some received the
cocaine in Central America, and some ensured the cocaine reached the Mexican
cartels. The co-conspirators had never met each other. At trial, they explained
how the drug-trafficking operation worked and testified that Mejia-Duarte was one
of the conspirators. The Government elicited detailed facts of the conspiracy’s
operation. It did so primarily to establish that the criminal co-conspirators
corroborated each other’s testimony on nuance of the conspiracy that could be
known only if it was true.
We analyze Mejia-Duarte’s Rule 403 argument and then his sufficiency
challenge.
2 Though a district court does not automatically apply the version of the Guidelines in effect at sentencing, see Peugh v. United States, 569 U.S. 530, 539, 133 S. Ct. 2072, 2082 (2013), the parties do not contest the District Court’s application of the 2016 Guidelines.
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A.
Mejia-Duarte objects to the admission of certain testimony by three co-
conspirators. These co-conspirators testified about a drug war between Mejia-
Duarte and a rival drug lord. As part of the drug war, the rival supposedly
kidnapped and killed the wife or girlfriend of Mejia-Duarte’s partner (which she
was is unclear from the record). In response, Mejia-Duarte hired a bodyguard.
The rival later turned up dead. Mejia-Duarte contends, in brief, that the admission
of this evidence created a risk that the jury punished him not for the indicted
conspiracy but for Mejia-Duarte murdering the rival. As such, Mejia-Duarte says,
the evidence should have been excluded under Federal Rule of Evidence 403.
Rule 403 permits a district court to exclude otherwise relevant evidence
when the “probative value is substantially outweighed by a danger of . . . unfair
prejudice.” Fed. R. Evid. 403. We review a district court’s evidentiary rulings for
abuse of discretion. Shealy v. City of Albany, 89 F.3d 804, 806 (11th Cir. 1996)
(per curiam). As described below, the District Court did not abuse its discretion
because Mejia-Duarte makes a mountain out of a molehill as it relates to the risk of
unfair prejudice. To conduct a Rule 403 analysis, we assess the evidence’s
probative value, then assess the risk of unfair prejudice, before balancing them
against each other.
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Start with the evidence’s probative value. The heart of Mejia-Duarte’s
defense to the jury was that the Government presented its case through unreliable
witnesses, each of whom was a criminal and each of whom had an incentive to
perjure himself favorably toward the Government in hopes of receiving a sentence
reduction for himself. See Fed. R. Crim. P. 35(b) (authorizing sentence reductions
for defendants that provide the Government with “substantial assistance”).
The Government responded to this defense by arguing that the witnesses
must have testified truthfully because each witness’s testimony was corroborated
by the other witnesses’ testimony. As the prosecutor argued in closing, “The
reason we presented that other evidence is so you can evaluate how truthful people
are being. Are they telling the truth?” He went on: “You . . . know that they were
telling the truth by the little things that matched up.” And just to be sure the jury
got it, he went on again: “They couldn’t have gotten together and decided, hey,
let’s create some little detail, make it interesting, that matches up.” Indeed, the
prosecutor’s entire closing argument revolved around a physical chart that he
displayed for the jury. The chart summarized corroboration among the six
witnesses on ten different aspects of testimony. And two of those aspects were the
bodyguard and the drug war with the rival.3
3 The others were knowledge of (1) Mejia-Duarte’s nicknames, (2) the trafficking routes, (3) the involvement of Mejia-Duarte’s brother-in-law, (4) the use of helicopters for trafficking, (5) the Colombian suppliers, (6) the Mexican cartels, and (7) two other co-conspirators.
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In summary, the Government used the evidence about the bodyguard and the
drug war with the rival to show that the witnesses corroborated each other’s
testimony. That corroboration was crucial to convincing the jury that it could trust
the criminal witnesses.
Let’s discuss prejudice. For exclusion of this corroborating evidence to be
proper, its “probative value” must be “substantially outweighed” by the risk of
“unfair prejudice.” See Fed. R. Evid. 403.
Mejia-Duarte cannot show that any such risk was present—something he
implicitly admits and something that our review of the record confirms—let alone
that it substantially outweighed the evidence’s probative value. Mejia-Duarte’s
theory is that admission of this testimony created risk that the jury would convict
him for a bad act not alleged in the indictment—namely, the rival’s murder. But
this theory is belied by Mejia-Duarte’s own brief.4 Even if the jury could infer
from this testimony that the rival was murdered, it could not reasonably infer that
Mejia-Duarte had anything to do with that murder. Only one of the three witnesses
4 See Def.’s Br. at 34 (“[T]he summary of [the first co-conspirator’s] testimony is that [the rival] kidnaps and kills [the partner’s] wife and that starts a war and [the partner] calls [a third party] to send [the bodyguard] to be available for the war. Nothing here about [Mejia- Duarte] killing [the rival] in El Salvador.”); id. at 35 (“To summarize [the second co- conspirator’s] testimony, [the rival] kills [the partner’s] girlfriend, a war starts, [the rival] dies or is killed in El Salvador, date unknown and [Mejia-Duarte] is at ease because the girlfriend’s murderer is dead.”); id. at 36 (“A summary of [the third co-conspirator’s] testimony boils down to: rumors in Honduras about [the rival] and [Mejia-Duarte] fighting, nothing about killings in Honduras, El Salvador or elsewhere.”).
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refers to a “killing,” and nothing about the evidence connects Mejia-Duarte to the
death. So there was no real risk that the jury convicted Mejia-Duarte on this basis,
instead of for the crime for which he was indicted and tried.
Where does all that leave us? The evidence was relevant to a necessary part
of the Government’s case: witness credibility. And the risk of unfair prejudice was
almost non-existent. As such, the District Court did not abuse its discretion in
admitting the evidence.
We turn to our second task in assessing Mejia-Duarte’s conviction: whether
the evidence supports it.
B.
Mejia-Duarte was convicted of a single count of conspiring to distribute five
or more kilograms of cocaine. The Government must prove “that a conspiracy
existed, that the defendant knew of it, and that, with knowledge, the defendant
voluntarily became a part of the conspiracy.” United States v. Alvarez, 755 F.2d
830, 853 (11th Cir. 1985). Due to the extradition order, moreover, the Government
was required to prove that Mejia-Duarte knowingly and voluntarily participated in
a conspiracy after February 2012. The Government must prove each of these
elements beyond a reasonable doubt. United States v. Louis, 861 F.3d 1330, 1333
(11th Cir. 2017).
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We review de novo the sufficiency of evidence to support a criminal
conviction. United States v. Williams, 865 F.3d 1328, 1337 (11th Cir. 2017), cert.
denied, 138 S. Ct. 1282 (2018). We view the evidence in the “light most favorable
to the jury’s verdict.” Id. To reverse, we must conclude that “no reasonable trier
of fact could have found guilt beyond a reasonable doubt.” Id. (quoting United
States v. Walker, 490 F.3d 1282, 1296 (11th Cir. 2007)).
The evidence here supports Mejia-Duarte’s conviction.
As described above, five co-conspirators testified as to the existence of a
conspiracy to distribute cocaine. And at least two co-conspirators testified as to
multiple quantities shipped in excess of five kilograms. The only real question is
whether Mejia-Duarte knowingly and voluntarily partook in that conspiracy at
some point after February 2012. We refuse to disturb the jury’s finding that he did.
The Government presented sufficient evidence of Mejia-Duarte’s
involvement. To be sure, it presented no smoking gun. Nor did it need to. See
United States v. Vernon, 723 F.3d 1234, 1273 (11th Cir. 2013) (“Because the crime
of conspiracy is predominantly mental in composition, it is frequently necessary to
resort to circumstantial evidence to prove its elements.” (quoting United States v.
Toler, 144 F.3d 1423, 1426 (11th Cir. 1998))). Multiple witnesses testified that
Mejia-Duarte and his partner were in fact co-conspirators. Two witnesses
described trafficking with Mejia-Duarte through the partner. Cf. United States v.
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Sosa, 777 F.3d 1279, 1290 (11th Cir. 2015) (holding that the knowledge element is
satisfied with sufficient proof that the defendant knew the “essential nature of the
conspiracy” (quoting United States v. Miranda, 425 F.3d 953, 959 (11th Cir.
2005))). Two witnesses described being present at meetings in which Mejia-
Duarte proposed or planned trafficking. Cf. id. (holding that the voluntariness
element is satisfied with sufficient proof that the defendant acted to “further[] the
purpose of the conspiracy” (quoting Vernon, 723 F.3d at 1274)). And all this
evidence was taken from events that occurred after February 2012. Mejia-Duarte
offers us no reason to view this testimony as “unbelievable on its face.” See
Calderon, 127 F.3d at 1325 (quoting United States v. Rivera, 775 F.2d 1559, 1561
(11th Cir. 1985)).
In short, Mejia-Duarte’s presence at the meetings, combined with testimony
that he was in fact a conspirator, allowed the jury to find Mejia-Duarte’s knowing
and voluntary participation in the conspiracy after February 2012.
We now turn to his sentence.
II.
Mejia-Duarte offers two grounds for vacating his sentence: (1) the District
Court erroneously credited unreliable testimony when it imposed an enhancement
for obstruction of justice, and (2) it violated the rule of specialty when it punished
him for conduct that occurred during or before February 2012.
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The District Court imposed a two-level enhancement for two episodes of
obstruction, both of which Mejia-Duarte contests. Because we affirm the
enhancement on the first episode, we do not reach—or even describe—the second
episode.
A co-conspirator testified during trial about an interaction he had with
Mejia-Duarte in prison while the latter was awaiting trial. After the co-conspirator
advised Mejia-Duarte to take the Government’s plea offer, Mejia-Duarte
responded, “I am going to trial because I am not guilty. Anyhow, you are the only
one that knows me here, that knows we are in drug trafficking.” Mejia-Duarte
went on: “[A]nyhow, I know your family because it was introduced to me in
Honduras.” The co-conspirator testified that he interpreted Mejia-Duarte’s
remarks, in the context of the “drug trafficking world,” as a threat to “kill family
members.”
Mejia-Duarte contests only the District Court’s factual finding, not that the
facts, if true, satisfy the Guidelines criteria. We review for clear error a district
court’s factual findings made pursuant to sentencing. United States v. White, 335
F.3d 1314, 1317 (11th Cir. 2003). Mejia-Duarte claims clear error because (1)
given that the record is devoid of evidence that the co-conspirator’s family was
ever in Honduras, Mejia-Duarte’s statement was nonsensical, and (2) the co-
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conspirator’s statement was untrustworthy given that he was hoping for a sentence
reduction in exchange for his testimony.
The Guidelines impose a two-level enhancement when (1) a defendant
“willfully . . . attempt[s] to obstruct or impede[] the administration of justice with
respect to the investigation, prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to . . . the defendant’s offense of
conviction and any relevant conduct.” USSG §3C1.1. A district court must find
by a preponderance of the evidence that factual grounds for an enhancement exist.
United States v. Kinard, 472 F.3d 1294, 1298 (11th Cir. 2006) (per curiam).
We cannot find clear error in the District Court’s factual finding. The co-
conspirator testified how he—as a drug trafficker—interpreted Mejia-Duarte’s
comment. Moreover, Mejia-Duarte’s statement need not be entirely sensical for it
to have the desired effect: instilling fear in the co-conspirator to prevent him from
testifying. Having observed Mejia-Duarte’s counsel cross-examine the co-
conspirator during trial, the District Court was aware of the co-conspirator’s
possible motivations to lie. But deference to the factfinder reaches its zenith on
questions of witness credibility. See Calderon, 127 F.3d at 1325 (stating that to
disregard testimony as a matter of law, we must find the testimony “unbelievable
on its face” (quoting Rivera, 775 F.2d at 1561)).
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In short, the District Court did not commit clear error in finding grounds for
the obstruction-of-justice enhancement by a preponderance of the evidence.
The District Court also enhanced Mejia-Duarte’s sentence for conduct that
was beyond the scope of the extradition order.
The parties agree that the extradition order permitted Mejia-Duarte be tried
only for events that occurred after February 2012. The sole question before us is
whether the Treaty precludes the United States from determining his sentence
based on events that occurred during or before that month. The meaning of a
treaty is subject to “plenary review.” United States v. Puentes, 50 F.3d 1567, 1575
(11th Cir. 1995).
The Treaty provides that “[n]o person shall be tried for any crime or offense
other than that for which he was surrendered.” Honduras Treaty, supra, at art. IV.
This provision embodies what is known as the rule of specialty, which provides
that “the requesting state, which secures the surrender of a person, can prosecute
that person only for the offense for which he or she was surrendered by the
requested state or else must allow that person an opportunity to leave.” United
States v. Isaac Marquez, 594 F.3d 855, 858 n.1 (11th Cir. 2010) (quoting United
States v. Herbage, 850 F.2d 1463, 1465 (11th Cir. 1988)).
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United States v. Garcia, 208 F.3d 1258 (11th Cir. 2000), cert. granted,
judgment vacated on other grounds, 531 U.S. 1062, 121 S. Ct. 750 (2001),
forecloses Mejia-Duarte’s argument that he could not be sentenced for events that
occurred during or before February 2012. The Garcia defendant was indicted for
and extradited to the United States for conspiracy to distribute drugs, for
possession of those drugs, and for use of a firearm in connection with the
conspiracy and possession. Id. at 1260. In imposing the defendant’s sentence, the
district court accounted for conduct not charged in the indictment—namely, other
drug offenses and a homicide. Id. We upheld the sentence in the face of the
defendant’s rule-of-specialty challenge. Id. at 1261. We explained that the rule of
specialty bars “proof of other crimes in order to exact punishment for those other
crimes” but not “proof of other crimes as a matter germane to the determination of
punishment for the extradited crime.” Id. We further explained that “the
consideration of other conduct in the sentencing process is legally and conceptually
a part of the punishment for the inducted crimes and within the limits set for those
crimes.” Id. It’s that simple.
Mejia-Duarte argues that Garcia does not control his fate. The sole basis for
his argument is that Garcia fails to discuss the text of the treaty or the timeline of
events. The first point is flatly wrong, and the second point, if true, is irrelevant.
First, Garcia quotes the treaty, whose language is materially like the language
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here. Compare id. at 1260 (“[A] person extradited shall not be detained, tried or
punished for an offense other than that for which extradition has been granted.”
(alterations omitted) (quoting Treaty on Extradition Between the United States and
Canada, Can.-U.S., art. XII, ¶ 1, June 28, July 9, 1974, 27 U.S.T. 983)), with
Honduras Treaty, supra, at art. IV (“No person shall be tried for any crime or
offense other than that for which he was surrendered.”). Second, Mejia-Duarte
misses Garcia’s entire holding. Because a sentence may account for conduct for
which extradition was not authorized, why that conduct is outside the scope of the
extradition order is irrelevant.
We add one important note before concluding. Under our precedent, a
vacated opinion like Garcia is “void” and thus has “no legal effect whatever.”
United States v. Sigma Int’l, Inc., 300 F.3d 1278, 1280 (11th Cir. 2002) (en banc)
(per curiam). Mejia-Duarte argues only that Garcia is not factually analogous, not
that it does not bind us because the judgment was vacated. Despite not raising the
correct argument, however, Mejia-Duarte has raised the rule-of-specialty issue, and
we have a “duty to find and apply the correct law.” United States v. Irey, 612 F.3d
1160, 1215 n.33 (11th Cir. 2010) (en banc). For the reasons described below, we
adopt the rule set forth in Garcia.
First, despite not being precedential, Garcia is still persuasive. Cf. Friends
of Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1218 (11th Cir. 2009)
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(“We are free to give statements in a vacated opinion persuasive value if we think
they deserve it.”). Garcia was vacated by the Supreme Court pursuant to a writ of
certiorari on a wholly separate issue. See Garcia v. United States, 531 U.S. 1062,
121 S. Ct. 750 (2001) (mem.) (remanding to this Court for reconsideration in light
of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), which addresses
when judicial factfinding ancillary to sentencing violates the Sixth Amendment).
In an unpublished opinion, we summarily reaffirmed the district court’s order on
remand. United States v. Garcia, 251 F.3d 160 (11th Cir. 2001) (unpublished table
decision). Because the opinion was vacated on grounds apart from legal question
before us today—the rule of specialty—we see no reason not to apply Garcia. See,
e.g., Jackson v. Ga. Dep’t of Transp., 16 F.3d 1573, 1578 n.7 (11th Cir. 1994)
(affording persuasive value to an opinion that was “vacated on unrelated
grounds”); Proffitt v. Wainwright, 685 F.2d 1227, 1266−67 (11th Cir. 1982)
(same).
Second, we find nothing but support for the Garcia rule from decisions of
our sister circuits. See United States v. Fontana, 869 F.3d 464, 471 (6th Cir.), cert.
denied, 138 S. Ct. 490 (2017) (“[I]t is clear that the district court’s consideration of
[the defendant’s] uncharged but related conduct did not constitute ‘punishment’
within the meaning of the . . . treaty, but only an appropriate consideration in
determining the sentence for the crimes for which [the defendant] was properly
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extradited.” (alteration omitted)); United States v. Lomeli, 596 F.3d 496, 502 (8th
Cir. 2010) (“[T]he doctrine of specialty does not operate to bar consideration of all
pre-extradition conduct when determining a defendant’s punishment for the
extradited offense.”); United States v. Lazarevich, 147 F.3d 1061, 1064 (9th Cir.
1998) (“Given the long history of consideration of relevant evidence—including
other criminal behavior, the Sentencing Guidelines’ clear mandate of such
consideration, and Supreme Court precedent, we conclude that the [t]reaty and the
extradition agreement contemplated consideration of relevant offenses.”); United
States v. Davis, 954 F.2d 182, 187 n.2 (4th Cir. 1992) (“Clearly, judicial
consideration, during sentencing, of a prior offense is an analytically distinct
concept from punishing on the basis of that offense.”); see also United States v.
Meza-Rojas, 480 F. App’x 784, 788 (5th Cir. 2012) (collecting cases for the same
proposition); United States v. Adeyinka, 410 F. App’x 986, 990 (7th Cir. 2011)
In short, the District Court committed no legal error when it accounted for
conduct beyond the scope of the extradition order in imposing Mejia-Duarte’s
sentence.
III.
For these reasons, Mejia-Duarte’s conviction and sentence are AFFIRMED.