FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEB 6, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-16267

Non-Argument Calendar

________________________

D. C. Docket No. 05-20235-CR-FAM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

MARCOS GAMINO, 

DENNIS GREENIDGE, 

Defendants-Appellants. 

________________________

Appeals from the United States District Court

for the Southern District of Florida

_________________________

(February 6, 2007)

Before ANDERSON, DUBINA and CARNES. Circuit Judges.

PER CURIAM:

Marcos Gamino and Dennis Greenidge appeal their convictions for: (1)
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conspiring to possess with intent to distribute five or more kilograms of cocaine, in

violation of 21 U.S.C. §§ 841(a)(1) and 846; (2) attempted possession with intent

to distribute five or more kilograms of cocaine, in violation of 21 U.S.C.

§ 841(a)(1); (3) conspiring to obstruct, delay, and affect commerce by robbery, in

violation of 18 U.S.C. § 1951(a); (4) attempting to obstruct, delay, or affect

commerce by robbery, in violation of 18 U.S.C. § 1951(a); (5) conspiring to use,

carry, and possess a firearm during and in the furtherance of a crime of violence

and a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and (n); and

(6) carrying and possessing a firearm during and in the furtherance of a crime of

violence and a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).

First, Greenidge argues, for the first time on appeal, that the “reverse sting”

employed by state and federal law enforcement agents violated his Fifth

Amendment due process rights, as well as “basic constitutional guarantees of

justice and fair play.” He asks us to adopt a “corroboration rule” requiring

independent corroboration of the elements of knowledge and intent as to the

specific conspiracy and substantive offenses charged in cases such as his. Second,

Gamino argues that the district court deprived him of his right to due process of

law by first, with the prosecutor, improperly inducing an informant to assert his

Fifth Amendment right against self incrimination, and then refusing to grant
 Greenidge did not join in Gamino’s arguments on this issue before the district court. 1

Accordingly, with regard to Greenidge, we will review this issue only for plain error. United

States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). 

Nevertheless, as discussed infra, the standard of review is not dispositive, because even

Gamino’s preserved arguments on the issue are meritless. 

 On appeal, Greenidge does not assert, as he did before the district court, that the 2

government failed to prove that the cocaine moved in interstate commerce. Accordingly, that

argument is waived. United States v. Jernigan, 341 F.3d 1273, 1284 n. 8 (11th Cir. 2003). 

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immunity to that witness. With our permission, Greenidge has adopted this

argument on appeal. Finally, Greenidge argues, first, that the evidence at trial was 1

insufficient to support his convictions, because the only evidence of his knowledge

and intent to commit the object offenses was his presence in the informant’s

vehicle, the fact that he was wearing a bullet-proof vest, and a co-conspirator’s

uncorroborated testimony. Further, Greenidge argues that even if this is sufficient

evidence under existing law, we should fashion a new rule of law requiring

extrinsic, corroborative evidence of a defendant’s knowledge and intent in addition

to any cooperating codefendant’s testimony.2

I.

Because Greenidge did not raise his Fifth Amendment argument before the

district court, we review it only for plain error. Olano, 507 U.S. at 732, 113 S.Ct.

at 1776. Accordingly, Greenidge must show: (1) error, (2) that is plain, (3) that

affected his substantial rights, and (4) that seriously affected the fairness and

integrity of the proceedings. Id. “An error cannot meet the plain requirement of
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the plain error rule if it is not clear under current law.” United States v. Chau, 426

F.3d 1318, 1322 (11th Cir. 2005) (quotation marks omitted). 

We have rejected challenges to reverse stings on numerous occasions. 

United States v. Sanchez, 138 F.3d 1410, 1413 (11th Cir. 1998). “While the

Supreme Court and this Court have recognized the possibility that government

involvement in a criminal scheme might be so pervasive that it would be a

constitutional violation, that standard has not yet been met in any case either before

the Supreme Court or this Court.” Id.

Greenidge admits that he is asking us to depart from precedent and fashion a

new rule. Accordingly, even assuming that Greenidge could show error, he has not

shown that it is plain error, and we affirm his convictions under this indictment in

this respect. See Chau, 426 F.3d at 1322 (“[a]n error cannot meet the ‘plain’

requirement of the plain error rule if it is not ‘clear under current law’”).

II.

To the extent that they were preserved, we review questions of constitutional

law de novo. United States v. Brown, 364 F.3d 1266, 1268 (11th Cir. 2004). “We

review a district court’s ruling on a defendant’s invocation of his privilege against

self-incrimination de novo.” United States v. Hernandez, 141 F.3d 1042, 1049

(11th Cir. 1998). 
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“No person . . . shall be compelled in any [c]riminal [c]ase to be a witness

against himself.” U.S. Const. amend. V. “This provision . . . must be accorded

liberal construction in favor of the right it was intended to secure.” Hoffman v.

United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). While

this privilege covers testimony that would either directly “support a conviction

under a federal criminal statute” or merely “furnish a link in the chain of evidence

needed to prosecute the claimant for a federal crime,” it only protects the witness

where he or she “has reasonable cause to apprehend danger from a direct answer.” 

Id. “To sustain the privilege, it need only be evident from the implications of the

question, in the setting in which it is asked, that a responsive answer to the

question or an explanation of why it cannot be answered might be dangerous

because injurious disclosure could result.” Id. at 487, 71 S.Ct. at 818. 

“[A] criminal defendant has a constitutional right to present his own

witnesses to establish a defense.” Unites States v. Terzado-Madruga, 897 F.2d

1099, 1108 (11th Cir. 1990) (quotation omitted). “Substantial interference with a

defense witness’ free and unhampered choice to testify violates due process rights

of the defendant.” Demps v. Wainwright, 805 F.2d 1426, 1433 (11th Cir. 1986). 

“When such a violation of due process rights occurs, a court must reverse the

conviction without regard to prejudice to the defendant.” Id. Notably, however, a
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witness’s right not to be compelled to incriminate himself trumps a defendant’s

right to subpoena witnesses in his defense. See United States v. Lacouture, 495

F.2d 1237, 1240 (5th Cir. 1974) (noting that even if the defendant had subpoenaed

a witness, that witness’s presence “[would] not override [her] privilege against

compulsory self-incrimination”).

The Supreme Court has reversed a defendant’s conviction where the “the

judge’s threatening remarks, directed only at the single witness for the defense,

effectively drove that witness off the stand.” Webb v. Texas, 409 U.S. 95, 98, 93

S.Ct. 351, 353, 34 L.Ed.2d 330 (1972). In that case, a state court judge sua sponte

used very strong language with a witness, assuring him, for example, that if he lied

under oath the judge would “personally see that [his] case [went] to the grand jury

and [that he would] be indicted for perjury.” Id. at 96, 93 S.Ct. at 352. The Court

held that “in light of the great disparity between the posture of the presiding judge

and that of a witness in these circumstances, the unnecessarily strong terms used by

the judge could well have exerted such duress on the witness’ mind as to preclude

him from making a free and voluntary choice whether or not to testify.” Id. at 98,

93 S.Ct. at 353 (emphasis added).

Unlike the court in Webb, other than assuring the informant that his decision

regarding whether or not to assert his Fifth Amendment rights did matter, the
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district court in this case did not make any remarks directed at him at all. Most of

the debate regarding the assertion of his rights occurred before the informant was

even present, and even after he was present the court neutrally informed him that it

believed he needed counsel to advise him on his Fifth Amendment rights. Neither

the court nor the government threatened the informant with the consequences of

committing perjury. Ultimately, nothing the court or the government did could be

said to have “exerted . . . duress” on the informant or come anywhere close to

preluding a “free and voluntary choice whether or not to testify.” Id. Further, an

undercover law enforcement agent introduced, through testimony, the essential

facts that Gamino intended to establish through the informant. On this basis, the

court gave an entrapment instruction, and Gamino’s counsel was able to assert an

entrapment defense in his closing argument. 

Before the district court, Gamino pointed to no support for his contention

that the informant waived his Fifth Amendment rights. Even if there were error,

which we doubt, it is not plain error. Gamino has not shown that his substantial

rights were affected or that the fairness of the proceedings was seriously affected.

Additionally, because the government did not move to grant the informant

use immunity, the court had no discretion to do so. 18 U.S.C. § 6003. Finally,

because the court appointed counsel in a neutral way, showing only concern for the
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informant’s rights and without suggesting that the attorney should persuade him

not to testify, and because there is no evidence that the attorney did anything other

than enhance the informant’s voluntary decision, Gamino’s argument in this regard

is meritless.

As to the propriety of the informant’s assertion of his right not to incriminate

himself, the extensive debate provided the court with a detailed understanding of

what the informant was expected to address in his testimony, including information

regarding an unrelated cocaine transaction. Because this could have reasonably

caused the informant to “apprehend danger from a direct answer,” the court

properly found that he was legitimately exercising his right not to testify. 

Hoffman, 341 U.S. at 486, 71 S.Ct. at 818. 

For all these reasons, the district court did not err by finding that the

informant in this case had legitimately exercised his Fifth Amendment right and

did not deprive Gamino of his right to due process of law in this regard. 

III.

Because Greenidge did not ask the district court to apply a newly fashioned

corroboration rule, we review that claim only for plain error. United States v.

Dudley, 463 F.3d 1221, 1227 (11th Cir. 2006). Under this standard, Greenidge
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must show: (1) error, (2) that is plain, (3) that affected his substantial rights, and

(4) that seriously affected the fairness and integrity of the proceedings. Olano,

507 U.S. at 732, 113 S.Ct. at 1776.

When reviewing the sufficiency of the evidence, we must view the facts, and

draw all reasonable inferences therefrom, in the light most favorable to the

government. United States v. Hansen, 262 F.3d 1217, 1236 (11th Cir. 2001). As

long as the jury “could find that the evidence establishe[d] guilt beyond a

reasonable doubt,” the evidence at trial did not need to “exclude every reasonable

hypothesis of innocence or be wholly inconsistent with every conclusion except

that of guilt.” United States v. Young, 906 F.2d 615, 618 (11th Cir. 1990). This is

so because “[a] jury is free to choose among reasonable constructions of the

evidence.” United States v. Vera, 701 F.2d 1349, 1357 (11th Cir. 1983). 

Similarly, “we resolve all reasonable inferences and credibility evaluations in favor

of the jury’s verdict.” United States v. Gupta, 463 F.3d 1182, 1194 (11th Cir.

2006).

“To support a conviction of conspiracy, the government must prove [1] that

an agreement existed between two or more persons to commit a crime and [2] that

the defendants knowingly and voluntarily joined or participated in the conspiracy.” 

United States v. Silvestri, 409 F.3d 1311, 1328 (11th Cir.), cert. denied, 126 S.Ct.
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772 (2005). The government is not required to demonstrate the existence of a

“formal agreement,” but may instead demonstrate by circumstantial evidence a

meeting of the minds to commit an unlawful act. United States v. Arias-Izquierdo,

449 F.3d 1168, 1182 (11th Cir.), petition for cert. filed (U.S. Nov. 13, 2006) (No.

06-7829). Proof that the accused committed an act which furthered the purpose of

the conspiracy is relevant to the existence of agreement, id., as is evidence that the

defendant “knew the essential object of the conspiracy,” Silvestri, 409 F.3d at

1328. “Although mere presence at the scene of a crime is insufficient to support a

conspiracy conviction, presence nonetheless is a probative factor which the jury

may consider in determining whether a defendant was a knowing and intentional

participant in a criminal scheme.” United States v. Hernandez, 433 F.3d 1328,

1333 (11th Cir. 2005), cert. denied, 126 S.Ct. 1635 (2006). 

“To sustain a conviction for attempted possession with intent to distribute

cocaine, the government must prove beyond a reasonable doubt that the defendants

(1) acted with the kind of culpability required to possess cocaine knowingly and

wilfully and with the intent to distribute it; and (2) engaged in conduct which

constitutes a substantial step toward the commission of the crime under

circumstances strongly corroborative of their criminal intent.” United States v.

McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001). To prove attempted Hobbs Act
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robbery, the government had to prove that the robbery would have affected

commerce had it been completed. United States v. Kaplan, 171 F.3d 1351, 1354

(11th Cir. 1999). 

“To sustain a conviction under § 924(c), the government must show that,

during and in relation to their conspiracy to rob cocaine, defendants used, carried,

or possessed a firearm in furtherance of that conspiracy.” United States v. Gunn,

369 F.3d 1229, 1234 (11th Cir.), cert. denied, 543 U.S. 937 (2004). “Possession

may be actual or constructive, joint or sole. . . . [a]nd . . . a defendant may be liable

for a co-conspirator’s possession if possession was reasonably foreseeable.” Id. 

As to the conspiracy counts, first, a co-conspirator testified expressly that

Gamino and Greenidge had come to an agreement, and his description of Gamino’s

discussion recruiting Greenidge and their agreement to split the stolen cocaine

showed that Gamino and Greenidge also had an agreement. Next, circumstantial

evidence of Greenidge’s knowledge and intent included: (1) the co-conspirator

telling him they were going to rob cocaine; (2) Gamino speaking to him privately,

possibly to discuss the planned crime; and (3) Greenidge’s conduct in

accompanying the others while carrying a weapon and wearing a bullet-proof vest. 

Accordingly, the jury could reasonably have concluded beyond a reasonable doubt

that Greenidge had committed the conspiracy charges.
 Although the photographer could not testify that the revolver was found in Greenidge’s 3

pocket, the jury could reasonably conclude, from the rest of his testimony and the photographs

that he took at the scene, that it was found there.

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For these same reasons, the jury could have concluded beyond a reasonable

doubt that Greenidge had acted with the culpability necessary to possess the

cocaine, and that he had the intent to distribute it. Further, the jury could have

concluded beyond a reasonable doubt that he took a substantial step toward

completing the offense when he armed himself and rode in the vehicle to the

warehouse. Finally, the jury could have concluded beyond a reasonable doubt that

the robbery, if completed, would have effected commerce, as the undercover law

enforcement agent testified that he told Gamino the cocaine had come from

Colombia. Accordingly, the evidence was sufficient to support the attempt

charges. 

As to the substantive firearms charge, given the testimony by the

co-conspirator and the law enforcement photographer, as well as the physical

evidence admitted through the photographer, the jury could have concluded

beyond a reasonable doubt that Greenidge had carried a firearm in relation to the

conspiracy to rob the cocaine. Further, the co-conspirator admitted that he had 3

carried a firearm, which also could have served to support the charge against

Greenidge, as this was reasonably foreseeable. 
 Appellants’ request for oral argument is denied. 4

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For all these reasons, the evidence was sufficient to support Greenidge’s

conviction on all counts and none of his convictions were a manifest miscarriage of

justice. We also reject Greenidge’s argument that the district court should have

applied a corroboration rule. We need not address the legal issue because we

conclude that there was ample corroboration. Moreover, any error by the court

was not plain and did not affect his substantial rights or the fairness of the

proceeding. Chau, 426 F.3d at 1322. Accordingly, this argument also fails. 

AFFIRMED4