Case Information
*1 Before MARCUS and BLACK, Circuit Judges, and HODGES, District Judge. [*]
MARCUS, Circuit Judge:
*2 Willis Kendrick III appeals following his conviction for alien smuggling for commercial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii). Kendrick argues that the district court erred by: (1) denying his motion to dismiss the indictment based on vindictive prosecution; (2) failing to grant a judgment of acquittal based on insufficiency of the evidence; (3) granting the government’s motion in limine precluding Kendrick from discussing the events of his prior trial beyond an excerpt of his sworn testimony; and (4) denying Kendrick’s motion in limine seeking to introduce portions of the prosecutor’s closing argument from Kendrick’s prior trial as an admission of a party opponent under Fed. R. Evid. 801(d)(2). After thorough review we affirm.
I.
The relevant facts and procedural history are these. In December 2010, a federal grand jury sitting in the Southern District of Florida indicted Kendrick on one count of knowingly bringing or attempting to bring an alien into the United States for the purpose of commercial advantage and private financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii). Prior to this indictment, a federal grand jury had charged Kendrick in June 2010 with marijuana trafficking and firearm offenses, in violation of 46 U.S.C. § 70503(a)(2) and 18 U.S.C. § 924(c); he was acquitted by a jury on all counts. Both sets of charges arose in connection with an *3 incident from May 28-29, 2010, when U.S. Coast Guard personnel boarded a vessel that Kendrick was piloting late at night off the coast of Florida, and discovered a firearm, 900 pounds of marijuana, and a previously deported illegal alien named Robert Harding.
During the first trial on the drug and firearm charges, Kendrick denied knowing about the marijuana, which was found in several hidden compartments, but admitted that he had gone to the Bahamas to bring illegal aliens back into the United States for money. He first testified that he had called off the alien smuggling deal when he found out that the three people he was supposed to bring back on the boat did not have passports. On cross-examination, however, he conceded that he had agreed to commit the federal offense of alien smuggling in exchange for $25,000, and that he knew the people he planned to transport from the Bahamas to the United States were illegal aliens. He later retreated from his earlier admission, and implied that he thought he was being compensated for bringing back legal aliens. [1]
*4 Q: Why is that? Why did you say that?
A: Because I know that that’s wrong to do. If they didn’t have any passport that they was -- that was illegal.
. . . . Q: You are telling this jury under oath that you committed a federal crime of alien smuggling.
A: Yes, sir.
Q: That you knowingly in exchange for $25,000 agreed to smuggle illegal aliens into the United States.
A: Yes, sir.
Q: You understand that could get you in a lot of trouble, right?
A: Yes, sir.
Q: So if agents came and arrested you, you would be okay with that? A: I done wrong.
. . . . Q: It is your testimony that you had no idea you were going to be bringing back an illegal alien?
A: No. I knew.
. . . . Q: . . . So you told the jury a second ago you were very concerned about abiding by the law.
A: Yes, sir.
Q: And yet you did it anyway?
A: Yes, sir.
Q: And you knew you were going to be smuggling an alien back from the Bahamas prior to your departure, didn’t you.
*5 A: Yes, sir.
Q: Because they were paying you, what, between 25 and 30,000?
A: Twenty-five, yes, sir.
Q: And you knew these people were not going to be legal.
A: Yes, sir.
Q: So the testimony about the whole, “I wanted to make sure everybody is legal. I never would have brought back somebody without papers,” that you testified to a moment ago that wasn’t true.
A: That’s not true.
Q: So when you were testifying under oath a second ago you were lying to this jury?
A: When I got to Bimini if Mr. Harding had not had a passport I would not have brought him back.
. . . . Q: Wait a second. So you want this jury to believe you were being paid $25,000 to bring back legal people?
. . . . Q: . . . These people were willing to pay you $25,000 for a trip that costs a hundred bucks.
A: Yes, sir.
Q: And you’re telling this jury you had no idea that you were going to be committing a crime.
A: I kind of -- I felt as though as something was wrong about it.
Q: But because you were getting paid $25,000 you figure, “Well, I’ll take him back anyway.”
A: Yes, sir.
In closing argument, the government said that Kendrick’s claim that he thought he was getting $25,000 to transport legal aliens was not credible, and that drug trafficking must have also been involved. Following an acquittal, the government brought the present alien smuggling charge based, in part, on Kendrick’s own testimony in the first trial.
After pleading not guilty, Kendrick moved to dismiss, arguing that the prosecutor had vindictively brought new charges against him in order to retaliate for Kendrick’s acquittal in the earlier trial on drug and firearm charges arising out of the same conduct. The government responded that, at the time of the original indictment, there was insufficient evidence to indict Kendrick for the alien smuggling charge, and, indeed, it was not until his admissions during the first case that it had a sufficient evidentiary foundation to bring the new charge. The district court rejected the defendant’s motion.
The government also moved in limine to bar the defense from mentioning the previous acquittal or trial, or making any argument regarding vindictive prosecution. Kendrick objected, claiming that the jury needed to have a full understanding of the circumstances surrounding his testimony in the earlier case. (Transcript of Kendrick’s testimony at 18-19, 41-42, 44-46).
The court agreed with the government and granted the motion. Kendrick in turn filed a motion in limine seeking to introduce excerpts of the prosecutor’s closing argument from the first trial; the district court disagreed and denied the motion.
At the alien smuggling trial, Immigration and Customs Enforcement (“ICE”) Agent Rafael Albuernes read into evidence Kendrick’s portions of sworn testimony from the first trial. In that testimony, among others, Kendrick admitted to agreeing to smuggle three illegal aliens from Bimini, Bahamas into the United States for $25,000. Several Coast Guard officials also testified about their interception of Kendrick’s boat. At the conclusion of the government’s case, Kendrick moved for a judgment of acquittal, claiming that the government had not proven that Kendrick knew Harding was an illegal alien. The court rejected the motion.
In his defense, Kendrick testified that in April 2010, he met two individuals who asked him to go to Bimini and pick up three people for $25,000. Kendrick said that, when he arrived in Bimini, he did not take the three individuals onto the boat with him because they did not possess passports. The defendant added that he was then told that Harding (who was not part of the original plan) had a passport and just needed to get back to his family in the United States. Kendrick claimed that he did not expect to be paid for the last minute arrangement *8 concerning Harding. On cross-examination, Kendrick admitted that he had driven the boat to the Bahamas under the cover of darkness, and had checked Harding’s passport so that, if caught, Kendrick could claim he thought that Harding was legal. Harding testified, for his part, that he had never met Kendrick before the smuggling incident, that Kendrick never asked to see Harding’s passport or travel documents, and that Harding paid another man, not Kendrick, to be smuggled back into the United States.
Thereafter, the jury found Kendrick guilty of the alien smuggling charge.
This timely appeal followed.
II.
We review a district court’s decision whether to dismiss an indictment due
to prosecutorial misconduct for abuse of discretion, United States v. Jordan, 316
F.3d 1215, 1248-49 (11th Cir. 2003), and we have applied that standard in a
prosecutorial vindictiveness case, United States v. Barner,
We review de novo the denial of a motion for a judgment of acquittal based
on the insufficiency of the evidence. United States v. Gari,
Cir. 2007). Finally, we review a district court’s ruling on a motion in limine for
abuse of discretion. See United States v. Thompson,
III.
First, we are unpersuaded by Kendrick’s claim that the district court abused
its discretion by denying his motion to dismiss the indictment based on vindictive
prosecution. Generally, if a prosecutor has probable cause to believe that the
defendant committed a crime, “the courts have no authority to interfere with a
prosecutor’s decision to prosecute.” Barner,
“[r]eindictment violates due process whenever a prosecutor adds new charges
merely to retaliate against the defendant for exercising statutory or constitutional
rights.” United States v. Spence,
*11
“A prosecutor’s decision to seek heightened charges after a defendant
successfully appeals his conviction for the same conduct is presumed to be
vindictive.” Barner,
burden rests on the defendant to demonstrate actual prosecutorial vindictiveness,
which essentially requires a showing that the prosecution’s justification is
pretextual. Jones,
We have also said that adding new charges based on independent acts,
“even where the separate acts that prompted the new charges occurred in the same
‘spree of activity,’” does not create a presumption of prosecutorial vindictiveness.
Id. at 1261 n.5 (quotation omitted). Under these circumstances, the defendant
must prove actual vindictiveness. Id.; see also Taylor,
Relying on the Third Circuit’s holding in Esposito, the Eighth Circuit -- in a case where the defendants had previously been acquitted of possession with intent to distribute controlled substances charges, and were later indicted for firearm and other new charges -- likewise concluded that “the defendants’ acquittals on the . . . charges in the first trial did not involve the exercise of a right by the defendants *13 which would raise a presumption of vindictiveness.” United States v. Rodgers, 18 F.3d 1425, 1430 (8th Cir. 1994). Similarly, the Tenth Circuit, also relying on Esposito, held in a case involving bank fraud that an “acquittal itself cannot form the basis for a charge of prosecutorial vindictiveness.” United States v. Wall, 37 F.3d 1443, 1449 (10th Cir. 1994). And, finally, in United States v. Johnson, 171 F.3d 139, 140-41 (2d Cir. 1999) (per curiam), which involved a second indictment for firearm charges after the defendant was acquitted on RICO charges, the Second Circuit joined the Third, Eighth, and Tenth Circuits in holding that “a new federal prosecution following an acquittal on separate federal charges does not, without more, give rise to a presumption of vindictiveness.”
Kendrick’s violation of 8 U.S.C. § 1324(a)(2)(B)(ii), relating to alien smuggling, carried a penalty of three to ten years’ imprisonment. 8 U.S.C. § 1324(a)(2)(B). His earlier charge, knowingly and intentionally possessing marijuana with intent to distribute while aboard a vessel, in violation of 46 U.S.C. § 70503(a)(2), subjected him to a greater penalty of five to forty years’ imprisonment. See 46 U.S.C. § 70506(a); 21 U.S.C. § 960(b)(2)(G). Similarly, when the government previously charged him with possession of a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c), he faced a minimum penalty of five years’ imprisonment. 18 U.S.C. § 924(c)(1)(A)(i).
In this case, there is no presumption of vindictiveness. For starters, the
second indictment did not follow a successful appeal by Kendrick nor did it seek
heightened charges. See Barner,
1324(a)(2)(B), with 18 U.S.C. § 924(c)(1)(A)(i), 21 U.S.C. § 960(b)(2)(G), and 46
U.S.C. § 70506(a). Moreover, the alien smuggling charge was based on acts
independent of the drug and weapons offenses adjudicated in the first trial, so even
though the alien smuggling arose out of the same “spree of activity,” we do not
presume vindictiveness. See Jones,
But even if a presumption of vindictiveness somehow arose as a matter of
law, the government rebutted the presumption by explaining that it did not bring
the alien smuggling charge to punish Kendrick because it did not have sufficient
*15
evidence at the time of the original indictment to charge Kendrick with knowingly
smuggling an alien for profit. See Jones,
Furthermore, Kendrick has not offered the slighted shred of evidence supporting a claim of actual prosecutorial vindictiveness. Rather, he asserts only at the highest order of abstraction that the government prosecuted him in the second trial with evidence that it had previously argued was false. The government had argued at the first trial that it did not make sense that Kendrick would be paid $25,000 to transport legal aliens. The prosecutor also claimed in closing argument that the $25,000 that Kendrick was to receive was for smuggling drugs into the country, not aliens. However, at no time did the prosecutor argue that Kendrick had not agreed to smuggle an illegal alien into the country, or that the defendant did not have some sort of financial motive for doing so.
Moreover, the prosecutor never claimed that Kendrick’s entire testimony was false, but rather, only that the defendant’s version of the events relating to the transportation of legal aliens for a large amount of cash strained credulity. We add that in the indictment for alien smuggling following Kendrick’s acquittal for the drug and firearm offenses, the government did not charge that Kendrick was paid $25,000 in order to bring an illegal alien into the United States. The indictment only alleged that Kendrick knowingly brought or attempted to bring an illegal alien into the United States for profit. In short, the record is barren of support for the claim that the government attempted to prosecute Kendrick with evidence that it knew to be false, or that it had otherwise evinced actual vindictiveness. The district court did not abuse its discretion in rejecting the prosecutorial vindictiveness claim.
IV.
We also can discern no merit in Kendrick’s argument that the district court
erred in failing to grant a judgment of acquittal based on insufficiency of the
evidence. In reviewing a sufficiency claim, the ultimate question is whether a
reasonable trier of fact could have found guilt beyond a reasonable doubt. Gari,
to violate the law is not required,” and the defendant need not know that the act is
illegal or wrong. Dominguez,
Viewed in the light most favorable to the government, the evidence was
sufficient to allow the jury to reasonably find beyond a reasonable doubt that
Kendrick knowingly smuggled an alien into the United States for profit. As the
record shows, there was sufficient evidence for the jury to conclude that Kendrick
knew or was in reckless disregard of the fact that Harding did not have
authorization to enter the United States. See id. at 1063-64. First, the jury was
entitled to rely on Kendrick’s admission from his prior sworn testimony that he
knew that he was “going to be bringing back an illegal alien.” Although Kendrick
testified that he did not know that Harding was an illegal alien and that Kendrick’s
prior testimony referred to three other individuals whom he decided not to
smuggle into the United States, the jury could have found that Kendrick’s prior
sworn testimony was credible, and that his testimony during the second trial was
not; we are obliged to view credibility choices in favor of the jury’s verdict. See
*19
Taylor,
In the second place, a Coast Guard officer testified at the second trial that at night Kendrick fled from her vessel and ignored her repeated hails. Indeed, it was not until another Coast Guard crew aboard a faster vessel approached with their weapons drawn that Kendrick brought his vessel to a stop. The jury could have drawn the reasonable inference that Kendrick would not have fled from the Coast Guard if he did not believe that he was doing something illegal. Although Kendrick denied that he fled from the Coast Guard vessel, the officer testified that her vessel’s navigator lights could be seen from six miles away, the flashing blue light could be seen from at least one mile away, the vessel’s siren was very loud, and her vessel was, at times, alongside Kendrick’s vessel only about 800 yards away.
Third, since Harding was not a United States citizen and was being
transported from a foreign country to the United States on a boat in the middle of
the night, the jury could well have concluded that, even if Kendrick did not know
for sure that Harding was an illegal alien, he consciously ignored facts that clearly
indicated that Harding was not legal. See Perez,
There was also sufficient evidence for the jury to conclude that Kendrick
smuggled Harding into the United States for profit. In Kendrick’s prior testimony,
he admitted that he had agreed to be paid to smuggle an alien into the United
States. Harding also testified that he agreed to pay smugglers $5,000 to be
transported to the United States, even though he did not pay Kendrick directly.
While Kendrick claimed that he had a change of heart about the first three aliens,
and agreed to take Harding to the United States without any expectation of
payment, the jury was free not to believe that Kendrick intended to bring Harding
into the United States in the dead of night out of the simple goodness of his heart,
especially considering the obvious risks associated with the venture. And, even if
the jury believed that Harding was not part of the original deal, as Kendrick
contends, evidence of an actual agreement to be paid was not necessary.
Dominguez,
V.
We are, likewise, unpersuaded by Kendrick’s claim that the district court
abused its discretion in granting the government’s motion in limine precluding the
defendant from discussing the events of his prior trial, even though a few excerpts
of Kendrick’s testimony from the prior trial (the substance of which we’ve set out
in footnote one) were presented to the jury. Under Fed. R. Evid. 403, relevant
evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence. “It is the province of
the trial judge to weigh any materiality against any prejudice and, unless the
judge’s reading is ‘off the scale,’ his discretion is not abused.” United States v.
Shelley,
Moreover, judgments of acquittal are hearsay, and do not fall within any
exception to the rule against the admission of hearsay evidence. United States v.
Irvin,
Here, the district court did not abuse its discretion. To begin, the evidence
of Kendrick’s prior acquittal was inadmissible hearsay. See id. at 1516.
Additionally, any discussion of the marijuana and firearm offenses on which
Kendrick was acquitted may well have only confused the jury, and this risk
arguably outweighed any probative value that the information may have had. See
id. at 1517; see also United States v. Lyons,
Finally, we are unpersuaded by Kendrick’s claim that the district court
abused its discretion in denying his motion in limine because the prosecutor’s
closing argument in the first trial was an admission of a party opponent under Fed.
R. Evid. 801(d)(2). At the outset, we observe that “statements and arguments of
counsel are not evidence.” United States v. Lopez,
Pursuant to Fed. R. Evid. 801(d)(2)(A)-(B), a statement by a party opponent
is not considered hearsay if it “was made by the party in an individual or
representative capacity,” or is a statement that “the party manifested that it adopted
or believed to be true.” In United States v. DeLoach,
Second Circuit an attorney’s arguments may be admissible, but admissibility is tightly circumscribed.” Id. at 1005. Thus, the Second Circuit required that, for statements like these to be admissible, they must be: (1) “assertions of fact that are *25 the equivalent of a testimonial statement by the [client]”; and (2) “inconsistent with similar assertions in a subsequent trial.” Id. (quotation omitted). We noted in DeLoach, however, that the prosecutor’s statements there related to advocacy concerning the credibility of the witnesses and invitations for the jury to draw inferences, which would not be admissible even under the Second Circuit’s test. Id. at 1005-06. We also determined that the prosecutor’s comments in the first trial were not “clearly inconsistent” with the evidence presented in the second case, and, significantly, were not statements of fact equivalent to a testimonial statement by a client. Id. at 1006. Thus, we concluded that the district court did not abuse its discretion by excluding the prosecutor’s comments, because the statements “would be inadmissible as admissions of a party opponent even under the cases relied upon by [the defendant].” Id.
In this case, the district court correctly determined that closing argument
comments by counsel are not evidence, see Lopez,
(11th Cir. 1985) (quoting ABA Stds. for Crim. Justice 3-5.8(b) (2d ed. 1980)).
Finally, even if the statements somehow were considered to be evidence, the court would have properly excluded them under Rule 403, because their admission likely would have opened the door widely to an entirely new set of evidence and hypotheses to be drawn from the marijuana and firearm charges, and likely would have confused the jury in the process. Cf. United States v. Delgado, 903 F.2d 1495, 1499 (11th Cir. 1990).
AFFIRMED.
Notes
[*] Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of Florida, sitting by designation.
[1] The relevant portions of Kendrick’s testimony during his first trial went this way: Q: What happened when you arrived [in the Bahamas]? . . . . A: . . . I [told my contact there], “Well, if they don’t have any kind of passport I’m not taking those guys back.”
[2] In Bonner v. City of Prichard,
[3] Although Kendrick argues that reliance on Esposito and Johnson is misplaced, because
they involved RICO offenses that are very different from the case at hand, the holdings in those
cases were not dependent on the type of offenses involved, see Johnson,
[4] In relevant part, the statute provides for criminal penalties against an individual who, “for the purpose of commercial advantage or private financial gain,” “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.” 8 U.S.C. § 1324(a)(2)(B)(ii).