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