           Case: 18-12196   Date Filed: 07/02/2019   Page: 1 of 16


                                                          [DO NOT PUBLISH]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.
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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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                                           A.

      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.

                                         B.

      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)

(same).

      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.




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