Eleventh Circuit Court of Appeals - Published Opinions

Friday, March 30, 2018

Angulo: Court Affirms Title 46 Convictions Over Numerous Trial Objections

In United States v. Angulo Mosquera, et al., No. 16-10261 (Mar. 30, 2018) (Marcus, Martin, Newsom), the Court affirmed the defendants title 46 convictions after a jury trial.

First, the Court rejected the several of the defendants' argument that the court abused its discretion by refusing to sever their trial from that of defendant Angulo's because Angulo intended to introduce polygraph testimony that would prejudice them.  The Court found that they failed to show that there was any likelihood of, or actual, impermissible prejudice from the polygraph evidence. 

Second, the Court rejected the same defendants' argument that the court erred by failing to timely notify them of the pretrial evidentiary about the admissibility of Angulo's polygraph evidence.  The Court did not decide whether they had a right to be present at all evidentiary hearings concerning all of the defendants; instead, it held only that the court did not commit plain error by failing notify the defendants of a pretrial hearing that pertained solely to one of the other defendants, that did not pertain to their guilt or innocence, and that did not result in a binding ruling at that time. 

Third, the Court rejected the defendants' argument that the government committed a discovery violation by failing to turn over a report about Angulo's earlier detention in connection with a different cocaine-smuggling boat, and then asking him about the report on cross examination.  The Court reasoned that, although the government did not dispute that there was a discovery violation, the court properly limited the questioning to information that had been disclosed to the defendants by other means, Angulo did not seek any further relief at trial, and no prejudice had been shown.

Fourth, the Court rejected the defendants' argument that there was error from the prosecutor asking Angulo whether he was a "load guard," because the prosecutor had sufficient reason to ask that question based on the evidence, and any error would have been harmless.

Fifth, the Court rejected the defendants' argument that the prosecutor, on re-direct of a testifying co-conspirator, impermissibly used an agent's report of an interview with that witness.  The Court declined to address whether use of the report was permissible under the rule of completeness because there was no prejudice and nothing contributing to cumulative error.  The Court also found no abuse of discretion in permitting the prosecutor to have a few sentences of the English report read to the witness in Spanish in order to refresh his memory.

Sixth, the Court found no error in refusing to give a "blind mule" instruction to the jury.  That requested instruction was unnecessarily repetitive given the court's substantial instructions on "knowing" and "willful."

As to sentencing, the Court concluded that two of the defendants' 235-month sentences were not substantively unreasonable.  One of the defendants received a downward variance, and the other defendant received a sentence at the low-end of the guideline range.

Judge Martin concurred in the judgment, opining that the case was closer than the majority portrayed it.  First, she expressed concern about the spillover effect of the polygraph evidence.  Second, although the majority did not decide the issue, she rejected, as inconsistent with the record, the government's rule of completeness argument to support use of the agent's report; she said that the government should not have made the argument.  Finally, she disagreed with the majority that Angulo was not prejudiced by the prosecution's use of the undisclosed report about the earlier drug-trafficking incident, and its unsupported characterization of him as a "load guard."