United States v. Valois, et al., No. 17-13535 (February 12, 2019)
Two groups of individuals were intercepted by the Coast Guard and prosecuted separately for drug trafficking on the high seas. The Court affirmed the second group’s convictions, holding that a mistrial was not warranted based on the prosecutor’s references to a conspiracy between the groups during closing arguments, that the defendants were not prejudiced by defense counsel that was also defending the other group of defendants, and that the safety valve reduction under the guidelines does not apply to defendants convicted under the MDLEA.
Mistrial – Mistrial was not warranted when prosecutor argued in closing that the defendants were part of a broader conspiracy with another group of defendants in a separate case since the defendants had already introduced extrinsic evidence regarding the other group of defendants.
Ineffective Assistance of Counsel – Defendants did not suffer from conflicted counsel that represented them and a second group of defendants arising from the same transaction since the groups were prosecuted separately and independently from each other.
Sentencing Guidelines – Defendants convicted of violating the MDLEA are ineligible for a two-level reduction under § 2D1.1(b)(17), the guidelines’ “safety valve” provision.
Two groups of three foreign nationals were prosecuted separately for trafficking cocaine in international waters in violation of the Maritime Drug Law Enforcement Act.
The two groups were intercepted together by the U.S. Coast Guard but were seized and arrested a day apart. While the Coast Guard did not find drugs on either vessel, the Government argued that each boat had dumped 16 bales of cocaine into the ocean which were later recovered by the Coast Guard. The second group of defendants, who were seized and arrested after the first group, argued at trial that all of the cocaine in the ocean came from the first boat.
A jury convicted the second group of defendants. On appeal, they argued that mistrial had been warranted, they received ineffective assistance of counsel, and the district court erred in calculating their sentencing guidelines ranges.
The defendants argued that a mistrial had been warranted because the prosecutor’s closing arguments referenced the prior seizure of the first group’s boat and asserted that the second group and first group acted as part of a broader conspiracy. They argued that this was an improper attempt by the Government to introduce extrinsic evidence under Rule 404(b).
The Court rejected these arguments, holding that “statements and arguments of counsel are not evidence” and noting that the defendants had introduced the prior seizure as part of their defense that the drugs belonged to the first group. The Court also held that the remarks by the prosecutor were not improper since, once the prior seizure was introduced into evidence, the jury could infer that both boats had been engaged in drug trafficking. For good measure, the Court added that the defendants weren’t prejudiced since the trial court had issued a curative instruction warning the jury not to consider actions by other defendants in other cases.
The defendants also argued that they received ineffective assistance of counsel since their attorneys were inherently conflicted—three attorneys had been appointed to represent one of the defendants in each of the two groups. Since the main defense at trial was blaming the cocaine on the first group, the defendants contended that their counsel was forced to choose “between courses of action that were helpful to one client but harmful to the other.” The defendants also argued that they never received a Garcia hearing to determine whether they knowingly waived the conflict of interest.
The Court again rejected their argument, holding that the lack of a Garcia hearing was not reversible error since there was no “actual” conflict of interest since the cases were prosecuted independently from each other, and each depended on the individual actions of the defendants. In fact, defense counsel had tried to shift blame to the first group at trial as part of their defense.
The defendants also argued that they should have been eligible for a two-level reduction under the guidelines’ equivalent of the safety valve. U.S.S.G. §§ 5C1.2(a)(5) provides for a two-level reduction in the defendant’s offense level if the defendant cooperates with the Government and provides full information and evidence about their offense.
The Court held that, like the statutory safety valve, the guidelines’ version does not apply to MDLEA defendants. The Court also declined to consider whether the safety valve is unlawful under the Fifth Amendment’s prohibition on compelling self-incrimination, noting that the Guidelines provisions for acceptance of responsibility have been upheld against similar challenges.
Appeal from Southern District of Florida
Opinion by Hull, joined by Grant and Jordan
United States v. Enrique Montano-Garcia, No. 17-11773 (February 5, 2019), UNPUBLISHED
The Court held that the sentencing court erred in attributing to the defendant the entire drug quantity found at his co-conspirator’s apartment because the court failed to make a finding that the defendant, a drug courier, agreed to participate in the co-conspirator’s broader criminal activity. The Court also held that the sentencing court erred by considering only one factor in applying a minor-role reduction.
Sentencing Guidelines/Drug Quantity – The sentencing court erred by holding the defendant accountable for drugs found at his co-conspirator’s apartment without first finding that the defendant agreed to participate in the joint criminal activity involving those drugs.
Sentencing Guidelines/Minor Role – The sentencing court erred by only considering one factor in determining how much to reduce a defendant’s offense level under § 3B1.2.
Enrique Montano-Garcia was sentenced to 70 months for acting as a courier in a drug transaction. Montano-Garcia had couriered $47,000 to a co-conspirator’s apartment, where Montano-Garcia remained for several days until law enforcement raided the apartment. The sentencing court calculated a total drug quantity of 11 kilos of heroin towards Montano-Garcia’s offense level based on the total amount of heroin the officers found at the apartment.
Montano-Garcia appealed the total drug quantity and the district court’s denial of a three-point role reduction under U.S.S.G. § 3B1.2. He argued that only 2 kilograms were in plain view at the apartment and that his conduct was limited to acting as a courier.
On appeal, the Court agreed that the district court had erroneously attributed the 11 kilograms to Montano-Garcia. The Court held that, while the amount of heroin might have been foreseeable, the district court failed to make an individualized finding on the scope of Montano-Garcia’s joint participation in the conspiracy— “to hold Montano-Garcia accountable for the entire 11 kilograms, the district court had to find that all 11 kilograms were part of the criminal activity Montano-Garcia agreed to undertake.” This was especially important since the district court had recognized that Montano-Garcia was just “a drug courier, pure and simple.”
Regarding the minor role reduction, Montano-Garcia argued that the district court erred in reducing his offense level by only two points for playing a minor role rather than the three points for playing “between a minimal and minor role” as he had requested. The district court found that Montano-Garcia’s role was less than that of his co-conspirator but that he was not entitled to the three-point reduction because he was aware of the overall drug trafficking enterprise.
The Court held that the sentencing court erred because it only considered one factor in in its analysis, and a sentencing court is required to evaluate “the totality of the circumstances” and the multiple factors listed under § 3B1.2.
Appeal from the Northern District of Georgia
Per Curiam Opinion by Martin, J. Pryor, and Anderson