FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 05, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-10528

Non-Argument Calendar

________________________

D. C. Docket No. 08-20287-CR-ASG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALEXEI JUBIEL,

DIEGO DIAZ DE LA CRUZ,

OMAR SILVA MEDINA,

Defendants-Appellants.

________________________

Appeals from the United States District Court

for the Southern District of Florida

_________________________

(May 5, 2010)

Before EDMONDSON, BIRCH and BLACK, Circuit Judges.

PER CURIAM:
Alexei Jubiel, Diego Diaz de la Cruz (Cruz), and Omar Silva Medina (Silva)

appeal their convictions and sentences for conspiracy to possess with intent to

distribute five kilograms or more of cocaine (Count I); attempt to possess with

intent to distribute five kilograms or more of cocaine (Count II); conspiracy to

affect interstate commerce by means of robbery (Count III); attempt to affect

interstate commerce by means of robbery (Count IV); conspiracy to use and

possess a firearm in furtherance of a crime of violence and a drug trafficking

offense (Count V); and carrying a firearm in furtherance of a crime of violence and

a drug trafficking offense (Count VI). Each Appellant asserts several issues on

appeal. We address each of the issues in turn and affirm their convictions and

sentences.

I.

All Appellants challenge the district court’s admission of video and audio

tapes taken by police, along with the English transcripts interpreting the

conversations thereon. Appellants assert that because the videos contained several

segments that were inaudible and a minor translation error, they were unreliable.

Appellants also claim the district court plainly erred when it did not require the

court reporter to type the transcripts or a description of the tapes into the record to

allow for appellate review.

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When, as here, defendants did not object to the admission of tapes or

transcripts at trial, we review their admission for plain error. See United States v.

Raad, 406 F.3d 1322, 1323 (11th Cir. 2005). “Plain error occurs where (1) there is

an error; (2) that is plain or obvious; (3) [that affects] the defendant’s substantial

rights in that it was prejudicial and not harmless; and (4) that seriously affects the

fairness, integrity, or public reputation of the judicial proceedings.” Id. (quotations

omitted). “Before an error is subject to correction under the plain error rule, it

must be plain under controlling precedent or in view of the unequivocally clear

words of a statute or rule.” United States v. Lett, 483 F.3d 782, 790 (11th Cir.

2007).

We have not adopted a “formulistic standard” regarding the admission of

videotapes and transcripts into evidence. United States v. Greenfield, 574 F.2d

305, 307 (5th Cir. 1978). “Tapes are not per se inadmissible because they are

1

partially inaudible; the issue is whether the unintelligible portions are so substantial

as to render the recording as a whole untrustworthy.” Id. (quotations omitted).

“This determination is left to the sound discretion of the trial judge.” Id.

(quotations omitted). Where a tape is in a language other than English, we have

In Bonner v. City of Prichard, this Court adopted as binding precedent all decisions of 1

the former Fifth Circuit handed down before October 1, 1981. 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc).

3
suggested a party challenging the submission of an English-language transcript

utilize the following procedures:

Initially, the district court and the parties should make an effort to

produce an “official” or “stipulated” transcript, one which satisfies all

sides. If such an “official” transcript cannot be produced, then each

side should produce its own version of a transcript or its own version

of the disputed portions. In addition, each side may put on evidence

supporting the accuracy of its version or challenging the accuracy of

the other side’s version.

United States v. Le, 256 F.3d 1229, 1238 (11th Cir. 2001) (quoting United States v.

Cruz, 765 F.2d 1020, 1023 (11th Cir. 1985)).

Appellants did not object to tapes or transcripts at trial and have failed to

demonstrate any plain error associated with their admission. The only

mistranslation they have cited was insubstantial and was corrected by stipulation at

the trial. Appellants did not attempt to offer their own translation of the tapes, nor

2

do they point to any problem with the ultimate translation provided. With respect

to Appellants’ argument the district court deprived them of a fair opportunity for

appellate review by not directing the court reporter to describe the video and audio

recordings in the trial transcript and by not including the transcripts in the record

on appeal, we note the tapes and transcripts were introduced into evidence at trial.

At one point on the recording, Silva said, “Olvidate de eso, olvidate, olvidate,” which 2

had been translated as “forget it, don’t worry, forget it.” Detective Sanchez acknowledged Silva

had not use a word for “Don’t worry about it.” The government later agreed to change the

translation to “Forget it. Forget it. Forget it.” 

4
Therefore, they should have been available at the district court for appellate

counsel to review. Moreover, the Appellants have not moved to supplement the

record on appeal with the tapes or transcripts. Appellants provide nothing other

than vague speculation to suggest they were unfairly prejudiced by the admission

of the tapes and transcripts at trial. The district court did not plainly err in

admitting the tapes and transcripts into evidence.

II.

All Appellants next contend the district court committed reversible error in

admitting testimony Appellants had previously committed other crimes. They

claim this violated Rules 404(b) and 403 of the Federal Rules of Evidence. We

review a district court’s evidentiary rulings, including a decision to admit evidence

regarding a defendant’s involvement in other crimes, for an abuse of discretion.

United States v. Edouard, 485 F.3d 1324, 1343 (11th Cir. 2007). Even if the

district court made an erroneous evidentiary ruling, we need not reverse the

defendant’s conviction if we conclude the error was harmless. United States v.

Hands, 184 F.3d 1322, 1329 (11th Cir. 1999). An evidentiary error is harmless if

it “had no substantial influence on the outcome and sufficient evidence uninfected

by error supports the verdict.” Id. (quotation omitted).

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The district court did not abuse its discretion in any way that substantially

influenced the verdict. First evidence of Jubiel’s and Silva’s prior criminal activity

was admissible under Rule 404(b) of the Federal Rules of Evidence. Extrinsic

evidence “of other crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity therewith.” Fed. R. Evid. 404(b).

Such evidence “may, however, be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” Id. Jubiel and Silva claimed they did not know about the

plan to rob the cocaine stash house and also argued their association with the group

of co-defendants at the time of the conspiracy was unrelated to the crime. Thus,

they put their intent at issue. Testimony at trial that Jubiel and Silva had

committed previous robberies of marijuana grow-houses with a nearly identical

group of accomplices, using nearly identical vehicles, tools, and strategies was thus

appropriate to contradict their assertions.

There was no evidence Cruz participated in the previous marijuana growhouse robberies. However, in response to the prosecutor’s question of why Flores,

a co-conspirator, trusted Cruz to join the conspiracy, Flores testified he heard Cruz

had allegedly “ripped off” some people. The district court judge cut Flores off.

Although the judge initially indicated he would strike the statement, his instruction

6
to the jury was somewhat ambiguous. Nevertheless, we find the admission of the

statement against Cruz does not constitute reversible error. It is unlikely that

Flores’s brief, interrupted statement had a substantial influence on the jury’s

verdict, and the Government introduced substantial independent evidence of Cruz’s

guilt. See infra, Section IV. Therefore, any error in not expressly striking Flores’s

reference to Cruz’s prior criminal activity was harmless.

Next we conclude the district court did not abuse its discretion in finding the

evidence of Jubiel’s and Silva’s prior criminal activity was intertwined with

evidence of the charged offenses. Evidence is not extrinsic, and therefore falls

outside the scope of Rule 404(b), if it is: “(1) an uncharged offense which arose out

of the same transaction or series of transactions as the charged offense,

(2) necessary to complete the story of the crime, or (3) inextricably intertwined

with the evidence regarding the charged offense.” Edouard, 485 F.3d at 1344

(quotation omitted). Evidence is inextricably intertwined with the charged offense

when it “forms an integral and natural part of the witness’s accounts of the

circumstances surrounding the offenses for which the defendant was indicted.” Id.

(quotation omitted).

Flores and Borrego, two members of the conspiracy, repeatedly emphasized

during their meetings with Detective Sanchez and the confidential informant that

7
they were professionals who had committed similar robberies in the past. Flores

tesified he had been involved in two prior robberies of marijuana grow houses with

Machin, Silva, and Jubiel. Detective Sanchez explained his task force only

targeted active robbery groups, and, therefore, determining whether the defendants

had committed similar robberies in the past was a key part of his investigation.

Because the evidence concerning the prior grow house robberies was inextricably

intertwined with the testimony regarding how the investigation in this case

unfolded, the district court did not abuse its discretion in ruling the evidence fell

outside the scope of Rule 404(b).

We further conclude the district court did not violate Rule 403 in admitting

evidence of prior robberies committed by Jubiel and Silva. Evidence of a

defendant’s prior criminal activity, regardless of whether it falls inside or outside

of the scope of Rule 404(b), must satisfy the requirements of Rule 403. Edouard,

485 F.3d at 1344. Rule 403 states relevant evidence “may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.” We have

explained “Rule 403 is an extraordinary remedy, which should be used only

sparingly, and the balance should be struck in favor of admissibility.” Edouard,

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485 F.3d at 1344 n.8 (quotation and alteration omitted). In determining whether

evidence should have been excluded under Rule 403, we view the evidence “in a

light most favorable to its admission, maximizing its probative value and

minimizing its undue prejudicial impact.” Id. (quotation omitted). Having

reviewed the grow-house-robbery evidence admitted in relation to the intent

arguments the evidence was intended to combat we conclude Jubiel and Silva have

failed to demonstrate the district court abused its discretion under Rule 403 in

admitting the evidence.

III.

Appellants next assert the district court provided the jury with an erroneous

definition of wilfulness. Generally, we review the legality of a jury instruction de

novo, but defer to the district court on the specific phrasing of an instruction,

absent an abuse of discretion. United States v. Prather, 205 F.3d 1265, 1270 (11th

Cir. 2000). Because Appellants did not object to the district court’s definition of

“willfully” at trial, however, we review this claim for plain error. See id. at 1271.

District courts “have broad discretion in formulating jury instructions provided that

the charge as a whole accurately reflects the law and the facts, and we will not

reverse a conviction on the basis of a jury charge unless the issues of law were

presented inaccurately, or the charge improperly guided the jury in such a

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substantial way as to violate due process.” Id. at 1270 (quotations omitted). The

district court is not required to use the Eleventh Circuit Pattern Jury Instructions,

and we have repeatedly approved jury instructions that do not exactly track the

language of the pattern instructions. United States v. Veltmann, 6 F.3d 1483, 1492

(11th Cir. 1993).

The district court twice instructed the jury that for a defendant to be guilty of

conspiracy, the evidence must show “the defendant, knowing the unlawful purpose

of the plan, joined in it willfully, that is, with the intent to further its unlawful

purpose.” This instruction conveyed the substance of the relevant pattern

instruction on “wilfully,” which defines the term in this context as “voluntarily and

purposely, with the specific intent to do something that the law forbids; that is with

bad purpose either to disobey or disregard the law.” Eleventh Circuit Pattern Jury

Instructions (Criminal Cases) 9.1 (2003). Because the district court’s definition of

“willfully” did not misstate the law or improperly guide the jury, Appellants have

not demonstrated plain error with respect to this issue.

IV.

Appellant Cruz raises several issues independently. Appellant Cruz first

claims the evidence was insufficient to support his convictions. We review de

3

To the extent Jubiel or Silva attempted to adopt this argument, we find Cruz’s arguments 3

regarding sufficiency of the evidence are “too individualized to be generally adopted.” See

10
novo the sufficiency of the evidence to support the jury’s verdict in a criminal case,

“viewing the evidence in the light most favorable to the government, and drawing

all reasonable factual inferences in favor of the jury’s verdict.” United States v.

Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). Evidence is sufficient to support a

defendant’s conviction “if a reasonable trier of fact could find that the evidence

established guilt beyond a reasonable doubt.” Id. at 1284-85 (quotation omitted).

A.

We first address Cruz’s conspiracy convictions. Cruz was convicted of

conspiracy to possess with intent to distribute five kilograms or more of cocaine

(Count I); to affect interstate commerce by means of robbery (Count III); and to

use and possess a firearm in furtherance of a crime of violence and a drug

trafficking offense (Count V).

To convict a defendant of conspiracy, the Government must prove: “(1) an

agreement between the defendant and one or more persons, (2) the object of which

is to do either an unlawful act or a lawful act by unlawful means.” United States v.

Toler, 144 F.3d 1423, 1426 (11th Cir. 1998). The Government may prove the

existence of conspiracy through circumstantial evidence, such as the conduct of

persons allegedly involved in the scheme. United States v. Seher, 562 F.3d 1344,

United States v. Cooper, 203 F.3d 1279, 1285 n.4 (11th Cir. 2000). We, therefore, address this

claim only as relates to Cruz.

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1364 (11th Cir. 2009). The Government need not establish a defendant knew

every detail of a conspiracy, but must establish he “knew the essential nature of the

conspiracy.” United States v. Payne, 750 F.2d 844, 859 (11th Cir. 1985).

Cruz asserts his convictions must be overturned because the Government

failed to show he knew the essential nature of the conspiracy: that the group would

be stealing cocaine and committing a robbery affecting interstate commerce. Cruz

is correct that the Government was required to prove his knowledge of those facts.

See United States v. Martinez, 83 F.3d 371, 374 (11th Cir. 1996) (reversing a

conviction for conspiracy to possess with intent to distribute cocaine because the

defendant’s statement that he had “men and guns ready” to facilitate a robbery was

insufficient to prove he knew the plan was to steal cocaine). Id.; see also United

States v. Charles, 313 F.3d 1278, 1284–87 (11th Cir. 2002) (holding evidence was

insufficient to support a defendant’s conspiracy conviction because all references

to drugs were made in a language the defendant did not understand).

The evidence was sufficient to show Cruz understood the plot involved

stealing cocaine in a manner affecting interstate commerce. The interstate

commerce element of the Hobbs Act is satisfied in cases involving law

enforcement sting operations where the narcotics the defendants intend to steal do

not actually exist. See 18 U.S.C. § 1951(a); United States v. Taylor, 480 F.3d 1025,

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1026-27 (11th Cir. 2007). The Government presented testimony at trial showing

Cruz attended meetings at which the plot to rob the cocaine stash house was

discussed in detail. Evidence also demonstrated Cruz acquired firearms the group

had agreed were needed for the robbery. When he was arrested, Cruz was in the

car of the leader of the group of robbers who had just explained to a Confidential

Informant that he was on his was to the airport to see the cocaine the group

intended to steal. When police stopped the car and arrested the occupants,

including Cruz, the police found firearms in the trunk of the vehicle as well as

gloves and restraints, which witnesses testified the group had obtained for the

purpose of accomplishing their plot. This was sufficient to allow a jury to infer

Cruz knew he was joining a conspiracy to rob a cocaine stash house.

Moreover, when a criminal defendant testifies, the jury is entitled to reject

the defendant’s testimony and to consider it as substantive evidence of his guilt.

United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). “At least where some

corroborative evidence of guilt exists for the charged offense . . . and the defendant

takes the stand in his own defense, the defendant's testimony, denying guilt, may

establish, by itself, elements of the offense.” Id. at 314-15. “This rule applies

with special force where the elements to be proved for a conviction include highly

subjective elements” such as intent or knowledge. Id. at 315. Because Cruz

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testified in his own defense and denied any knowledge regarding a robbery, the

jury was entitled to reject his testimony and to use it as substantive evidence

against him. The evidence presented at trial was sufficient to allow the jury to

infer Cruz understood and was part of a plan to rob the cocaine stash house.

B.

We next address Cruz’s attempt convictions. Cruz was convicted of attempt

to possess with intent to distribute five kilograms or more of cocaine (Count II)

and attempt to affect interstate commerce by means of robbery (Count IV). In

order to convict a defendant of attempt, the Government has to prove “(1) the

defendant was acting with the kind of culpability otherwise required for the

commission of the crime for which he is charged with attempting; and (2) the

defendant was engaged in conduct that constitutes a substantial step toward the

commission of the crime.” United States v. Carothers, 121 F.3d 659, 661 (11th

Cir. 1997). “[T]he defendant's objective acts, without reliance on the

accompanying mens rea, must mark the defendant’s conduct as criminal.” Id. “‘In

other words, the defendant's acts, taken as a whole, must strongly corroborate the

required culpability; they must not be equivocal.’” Id. (quoting United States v.

McDowell, 705 F.2d 426, 428 (11th Cir. 1983)). Cruz challenges the sufficiency

14
of the Government’s evidence of his mens rea and the group’s substantial step

toward committing the crime.

The Government presented sufficient evidence to defeat Cruz’s claim. Cruz

and his co-Appellants attended meetings planning the robbery of the cocaine stash

house and had armed themselves with the weapons and tools needed for the job.

Although Machin, the leader of the robbery group, and the other group members

may have had some lingering suspicions as to whether the confidential informant

and Detective Sanchez, the undercover officer, were involved with law

enforcement, it appears they fully intended to proceed with the robbery despite

those suspicions. When Appellants and their co-conspirators were arrested, they

were driving toward the location of the target cocaine. The evidence was,

therefore, sufficient to allow the jury to infer Appellants planned to rob the cocaine

stash house and had taken substantial steps toward the commission of that crime.

C.

Lastly, we address the sufficiency of the evidence to support Cruz’s

conviction under 18 U.S.C. § 924(c). To prove a 924(c) violation, the Government

was required to show Cruz carried firearms during and in relation to a drug

trafficking offense. See 18 U.S.C. § 924(c)(1)(A). Cruz was arrested driving to

site of the cocaine he and his accomplices intended to steal, in a car carrying four

15
firearms. Testimony showed Cruz had personally acquired two of the firearms for

the job. We thus conclude Cruz’s conviction under § 924(c) was based on

sufficient evidence.

V.

Cruz next contends the district court abused its discretion in excluding

testimony of a witness who claimed to see two Government witnesses conferring

during a trial recess, in violation of a sequestration order. “The district court has

broad discretion in ruling upon the relevancy and admissibility of evidence.”

United States v. Williams, 954 F.2d 668, 671 (11th Cir. 1992). “This discretion,

however, does not extend to the exclusion of crucial relevant evidence necessary to

establish a valid defense.” Id. The district court may exclude testimony under

Federal Rule of Evidence 403 if it determines the probative value of that evidence

is “substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.”

The district court took the testimony of a proposed defense witness, Duran,

in an ex parte hearing before determining whether to allow Appellants to call him

as a witness. Duran indicated he had witnessed a conversation between Flores and

Borrego during an overnight recess in Borrego’s testimony. However, Duran

16
explained he had been unable to overhear what was said during that conversation

and noted Cruz was in a better position to hear the discussion. The district court

allowed Cruz to testify he had witnessed the conversation, and that Borrego had

been telling Flores about his testimony and about the questions that were being

asked in court. As Duran could not hear the conversation, his testimony would

have been of limited probative value. It would also have been cumulative to the

testimony of Cruz. Further, Duran’s attorney noted that because Duran was a

defendant in an unrelated trial, the attorney would advise him not to testify if called

as a witness for Cruz. Under the circumstances, the district court did not abuse its

discretion in excluding Duran’s testimony.

VI.

Cruz contends his constitutional rights were violated when the district court

gave instructions that his consultation with counsel should be limited during an

overnight recess. Generally, we review claims of constitutional error de novo.

United States v. Brown, 586 F.3d 1342, 1347 (11th Cir. 2009). In the absence of

an objection at trial, however, we review the district court’s ruling for plain error.

4

See United States v. Peters, 403 F.3d 1263, 1270 (11th Cir. 2005) (noting a

It appears Cruz failed to make a proper objection to the district court’s order instructing 4

him not to confer with his attorney about his testimony during the overnight recess. Although

counsel initially asserted he could answer Cruz’s questions, he did not lodge a formal objection,

and he ultimately acquiesced to the court’s ruling by stating, “Okay, judge, if you say so.” 

17
constitutional challenge raised for the first time on appeal is reviewed for plain

error).

The Sixth Amendment guarantees criminal defendants the right to assistance

of counsel. U.S. Const. amend. VI. A district court’s order prohibiting a defendant

entirely from consulting with his attorney during an overnight recess violates the

defendant’s right to assistance of counsel. Geders v. United States, 96 S.Ct. 1330,

1332-33, 1335-37 (1976). We have indicated an order instructing a defendant not

to discuss his cross-examination testimony with defense counsel during an

overnight recess may violate the rule announced in Geders, where the record

shows they desired to do so. Crutchfield v. Wainwright, 803 F.2d 1103, 1110 (11th

Cir. 1986) (en banc) (Hatchett, J., plurality opinion); but see id. at 1114 (Tjoflat, J.,

specially concurring).

To preserve a deprivation of assistance of counsel claim, however, “a

defendant or the defendant’s counsel must indicate, on the record, a desire to

confer.” Id. at 1109. The defendant must also show “the prohibition actually

prevented the opportunity to confer with counsel.” Id. at 1110. In Crutchfield, we

determined there was no deprivation of the right to counsel because the record

“d[id] not reflect a desire to consult or an objection to the trial court’s admonition.”

Id. at 1111.

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Although the district court ordered Cruz not to discuss his cross-examination

testimony with his defense counsel, neither Cruz nor his attorney indicated they

wished to confer regarding Cruz’s trial testimony. While counsel stated he believed

he could answer Cruz’s questions, he did not indicate those questions would relate

to Cruz’s testimony nor was any official mention made of a desire or an attempt to

confer as to the cross-examination testimony. Further, the record indicates defense

counsel was unavailable to confer with his client for a large portion of the evening

due to a medical problem. The district court afforded Cruz an opportunity to speak

with his defense counsel the following morning. The court indicated Cruz could

retake the witness stand if there were additional matters that needed to be covered

after the meeting. Following discussions with his attorney, Cruz ultimately elected

not to retake the stand. Therefore, even if the district court erred in ordering Cruz

not to discuss his testimony with his attorney, Cruz failed to show his order

contradicted any recorded desire to discuss that testimony. Cruz has, therefore,

failed to meet his burden of demonstrating plain error in regard to this issue.

VII.

Cruz also asserts his right to the assistance of counsel was violated because

his attorney was absent when the court responded to the jury’s request during

deliberation that they be provided with a video admitted into evidence at trial. Cruz

19
did not object at the time of the alleged violation, so we review for plain error. See

Peters, 403 F.3d at 1270.

A criminal defendant is entitled to the assistance of counsel during all critical

stages of the criminal justice process. Iowa v. Tovar, 124 S. Ct. 1379, 1383 (2004).

The Supreme Court has explained a “critical stage” is “a step of a criminal

proceeding, such as arraignment, that [holds] significant consequences for the

accused.” Bell v. Cone, 122 S.Ct. 1843, 1851 (2002). We have not previously

addressed the question of whether the consideration of a jury note is a critical stage

of a trial per se, and we need not resolve the issue here.

Counsel for Jubiel had agreed to fill in for Cruz’s counsel who was sick on

the day of the jury’s deliberation. Jubiel’s counsel informed the court that Cruz did

not have any problem with the substitute in representation. Cruz does not claim

Jubiel’s counsel made a false representation in so doing. In its note to the court, the

jury asked to view Government’s Exhibit 12D. Exhibits 12B and 12D were police

surveillance videos taken the day of the intended robbery while Cruz, Jubiel,

Machin, and Flores were sitting in Machin’s vehicle in the parking lot of a Home

Depot store waiting for a phone call from Detective Sanchez informing them of the

address of the purported cocaine stash house. Both videos had been admitted into

evidence. Exhibit 12B had been played for the jury during the trial; Exhibit 12D

20
had not been published. When the court advised the parties of the note, Jubiel’s

counsel suggested the jury likely meant to request the video shown at trial, 12B.

The district court ultimately elected to play Exhibit 12B, rather than the video the

jury had requested, 12D, and instructed the jurors to submit another note if they

wished to view a different video. The jury did not request an additional video.

We conclude the court’s decision to play Exhibit 12B did not result in any

prejudice to Cruz, because the jury had already seen the video provided during

deliberation during the Government’s case-in-chief. Cruz has not shown his

substantial rights were affected by the court’s decision to provide the video to the

jury. Thus, he has failed to establish plain error with respect to this issue.

VIII.

Appellants, together, contend even if they failed to show any single

reversible error, the aggregation of smaller errors deprived them of a fair trial. “The

cumulative error doctrine provides that an aggregation of non-reversible errors (i.e.,

plain errors failing to necessitate reversal and harmless errors) can yield a denial of

the constitutional right to a fair trial, which calls for reversal.” United States v.

Baker, 432 F.3d 1189, 1223 (11th Cir. 2005) (quotation omitted). We reject this

contention. Appellants have not established the district court committed any errors

that, together, deprived them of a fair trial.

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IX.

Finally, Appellants Jubiel and Cruz assert the district court erred in imposing

consecutive 60-month sentences for their convictions under18 U.S.C. § 924(c),

because the plain language of § 924(c) prohibits the imposition of consecutive

sentences when the defendant is subject to a greater mandatory-minimum sentence

for another offense. Jubiel and Cruz were subject to ten-year mandatory minimum

sentences for their drug conspiracy convictions.

We normally review questions of statutory interpretation de novo. United

States v. Segarra, 582 F.3d 1269, 1271 (11th Cir. 2009). Because Jubiel and Cruz

failed to raise this issue before the district court, however, we review their claim for

plain error. See Raad, 406 F.3d at 1323. In relevant part, 18 U.S.C. § 924(c)(1)(A)

provides:

Except to the extent that a greater minimum sentence is otherwise

provided by this subsection or by any other provision of law, any

person who, during and in relation to any crime of violence or drug

trafficking crime (including a crime of violence or drug trafficking

crime that provides for an enhanced punishment if committed by the

use of a deadly or dangerous weapon or device) . . . uses or carries a

firearm, or who, in furtherance of any such crime, possesses a firearm,

shall, in addition to the punishment provided for such crime of

violence or drug trafficking crime-- (i) be sentenced to a term of

imprisonment of not less than 5 years.

In Segarra, we held the “except” clause of § 924(c) does not “limit

consecutive sentences imposed for § 924(c) offenses and the underlying drug

22
crimes.” 582 F.3d at 1272. “Rather,” we explained, “the clause is intended to

prevent consecutive mandatory minimum sentences for more than one firearm

offense.” Id. We held the plain language of the statute “dictates consecutive

sentences” when the defendant is subject to mandatory minimum sentences for both

a § 924(c) offense and the underlying drug offense. Id. at 1273.

Our decision in Segarra forecloses Jubiel’s and Cruz’s argument. Although

Jubiel and Cruz argue Segarra is inconsistent with the plain language of § 924(c),

the prior panel precedent rule precludes us from re-examining our earlier holding.

See Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001). Therefore, we

conclude the district court did not plainly err by imposing consecutive sentences

under § 924(c).

5

Accordingly, after a thorough review of the record and briefs, we affirm

Appellants’ convictions and sentences.

AFFIRMED.

We note that Supreme Court recently granted petitions for certiorari in two cases

5

presenting this issue, Abbott v. United States (No. 09-479) (U.S. Jan. 25, 2010), and Gould v.

United States (No. 09-7073) (U.S. Jan. 25, 2010). 

23