FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 12, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-11899

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D.C. Docket No. 06-00050-CR-FTM-29-SPC

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JOSE LUIS ZALDIVAR, 

YOEL BERMUDEZ, 

YENIER BROCHE ORTIZ, 

Defendants-Appellants. 

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Appeals from the United States District Court

for the Middle District of Florida

_________________________

(September 12, 2008)

Before ANDERSON, BARKETT and HILL, Circuit Judges.

PER CURIAM:
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Jose Luis Zaldivar appeals his conviction for conspiring to bring aliens into

the United States in violation of 8 U.S.C. §§ 1324(a)(1)(A)(I) and 1324

(a)(1)(A)(v)(I). Yoel Bermudez and Yenier Broche Ortiz appeal their convictions

for conspiring to bring and for bringing the same aliens into the United States in

violation of 8 U.S.C. §§ 1324(a)(1)(A)(I), 1324(a)(1)(A)(v)(I), and

1324(a)(1)(A)(V)(II). Ortiz also appeals his thirty-three month sentence. 

The government alleged that Zaldivar was the owner of a thirty-six foot

Contender fishing boat that was used to transport thirty-nine Cuban nationals into

the United States without permission. Bermudez and Ortiz were identified by three

of the smuggled Cuban nationals as the operators of the boat that brought them to

the United States. All three appellants make several arguments and we briefly

address each in turn.

1. Jose Luis Zaldivar

Zaldivar first argues that the district court clearly erred in not suppressing

evidence, namely fingerprints, seized from his vessel because (1) the law

enforcement officer did not have probable cause to make the initial traffic stop of

Zaldivar as he was driving the truck that was towing his vessel; (2) the officer’s

roadside search of his vessel was unlawful because the officer obtained Zaldivar’s

consent through his deceptive and improper assertion of legal authority to conduct
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the search; (3) the scope of the search warrant used to search the vessel a second

time did not include fingerprints; and (4) the fingerprints did not fall into the “plain

view” exception to the warrant requirement because the incriminating nature of the

fingerprints was not immediately apparent. Zaldivar also argues that the evidence,

even with the inclusion of the fingerprint evidence, was insufficient to support a

conspiracy conviction. 

We find no reversible error. The district court did not err in finding that the

stop of Zaldivar’s truck was lawful because testimony established that his trailer

tag was not visible due to the improper functioning of his tag light in violation of 

Fla. Stat., § 316.221(2). 

We cannot consider Zaldivar’s second argument that his consent to Lt.

Johnson’s roadside search of his vessel was involuntary because Zaldivar never

raised this issue before the trial court and now makes this argument for the first

time on appeal. 

We reject Zaldivar’s alternative contention that because fingerprints were

not specifically listed on the search warrant they should have been suppressed. 

The evidence was lawfully obtained because it was in plain view and there was

probable cause to believe that the fingerprints were evidence of a crime. Agent

Mullin testified that at the time he seized the fingerprints (1) there were twenty-one
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life jackets on the boat while the boat was rated for a maximum capacity of six

persons; (2) food packets and water bottles were strewn on the boat; (3) many hand

and palm prints were visible on the boat; (4) the items on the boat were consistent

with items found on other boats used for alien smuggling; and (5) thirty-nine

Cuban nationals had been discovered by the Coast Guard on Loggerhead Key.

Finally, we reject Zaldivar’s argument that the evidence was insufficient to

sustain his conviction for conspiracy. The fingerprints of Orestes Casanova, one of

the smuggled Cuban nationals, were found on Zaldivar’s boat. It was not

unreasonable for the jury to have concluded that the only time they could have

been placed there was in the course of being smuggled from Cuba as Casanova

testified that he had never been to the United States before. In addition, he had

been living in a country that has no diplomatic relations with the United States and

it is not disputed that he was picked up on Loggerhead Key along with many other

smuggled Cuban nationals. The evidence further established that Zaldivar had

been driving in the area in the middle of the night, spending more than an hour

sitting in his truck behind a convenience store where he received numerous

telephone calls on his cellular phone. He also was observed pulling his boat out of

the water at a public boat ramp around dawn with the assistance of two other

individuals, although he claimed that he was staying at a resort with its own boat
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ramp. On this record, we find that the jury reasonably could have concluded that

Zaldivar was engaged in a conspiracy to smuggle the Cuban nationals into the

United States. 

2. Convictions of Yoel Bermudez and Yenier Broche Ortiz

We likewise find no reversible error as to Ortiz and Bermudez. First, they

both argue that the district court abused its discretion in failing to sever their trials

from Zaldivar, asserting that Zaldivar’s defense became antagonistic toward their

defenses. However, they have failed to show the necessary prejudice required

under the two-part test of Zafiro v. United States, 506 U.S. 534 (1993). Initially,

we note that the district court sustained almost every one of Bermudez’s objections

to the defense testimony he claims was antagonistic. Additionally, Bermudez and

Ortiz acknowledge that mutually antagonistic defenses are not per se prejudicial

and even where prejudice is shown, Rule 14 of the Federal Rules of Civil

Procedure does not mandate that a severance be ordered, but rather permits the

court to fashion an appropriate remedy. Id. at 538–39. We find the court’s

instructions to the jury were sufficient to insure that any prejudice that may have

resulted from the testimony at issue did not “prevent the jury from making a

reliable judgment about the guilt or innocence” of Bermudez or Ortiz. 

Bermudez next argues that the district court abused its discretion in
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permitting Agent Mullin to testify that two of the smuggled Cuban nationals,

Orestes Casanova and Mayren Valdez, had positively identified Bermudez from a

photographic line-up as being one of the operators of the boat that brought them

from Cuba. He argues that because the witnesses testified at trial that they made

these identifications under duress and did not identify Bermudez at trial, Agent

Mullin’s testimony about their out-of-court identifications should not have been

admitted because it was hearsay. 

Rule 801(d)(1)(C) provides that a statement is not hearsay where it involves

the identification of a person made after the declarant observed the person and the

declarant testifies and is subject to cross-examination. We have previously held

that it is not an abuse of discretion for a district court to permit an officer to testify

regarding a witness’s identification, which occurred after the crime, when the

witness could not make a positive in-court identification. United States v.

Blackman, 66 F.3d 1572, 1578 n.6 (11th Cir. 1995). Here, there was no question

that the witnesses had made the out-of-court identification. Both witnesses

testified that they had each made the identification from a photographic line-up,

and admitted signing statements that identified Bermudez. They did not deny that

they had identified Bermudez. Rather, they claimed that the identification was

coerced by the threat of deportation and was untrue. We find that the testimony of
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Casanova and Valdez regarding the circumstances under which they provided an

out-of-court identification of Bermudez goes to the weight of Agent Mullin’s

testimony and not to whether it is admissible under Rule 801(d)(1)(C), and thus,

the district court did not abuse its discretion in admitting the testimony of Agent

Mullin.

Finally, Bermudez and Ortiz assert that the evidence that was presented was

insufficient to sustain their convictions. We must affirm the conviction, unless

under no reasonable construction of the evidence, could the jury have found the

defendant guilty beyond a reasonable doubt. United States v. Garcia, 405 F.3d

1260, 1269 (11th Cir. 2005). Moreover, we must view the evidence in the light

most favorable to the government. United States v. Edouard, 485 F.3d 1324, 1349

(11th Cir. 2007). We find the evidence, while not overwhelming, sufficient to

support the convictions in this case. While it is true that the only type of evidence

presented was witness identifications, the government presented three separate

witness statements identifying Ortiz as the operator of the boat and two statements

identifying Bermudez. Even though the witnesses recanted these identifications at

trial, the jury was entitled to assess their credibility and determine which of their

statements was true. When the evidence is viewed in the light most favorable to

the government, the jury reasonably could have concluded that Bermudez and
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Ortiz knowingly operated the boat that brought the Cubans to the United States and

that they conspired to do so together. 

3. Sentence of Yenier Broche Ortiz

Finally, Ortiz challenges the district court’s application of a sentencing

enhancement for recklessly creating a substantial risk of bodily injury or death by

operating a boat with many persons over capacity and without sufficient life

jackets for the passengers. The sentencing guidelines provide that if intentional or

reckless behavior that created a risk of serious bodily injury or death to another

person occurred during the course of committing the offense of transporting

unlawful aliens, the defendant’s sentence is to be increased by two levels, or to

level 18, whichever is higher. U.S.S.G. § 2L1.1(b)(6). This increase is intended to

apply to a “wide variety of conduct (e.g., transporting persons in the trunk or

engine compartment of a motor vehicle, carrying substantially more passengers

than the rated capacity of a motor vehicle or vessel, or harboring persons in a

crowded, dangerous, or inhumane condition).” U.S.S.G. § 2L1.1, comment. (n.5). 

The district court did not clearly err in finding that Ortiz was reckless when

transporting the Cuban aliens to the United States. Ortiz was identified as the

driver of the overloaded boat that transported the Cubans across the open seas from

Cuba to Loggerhead Key. The evidence established that there were about forty
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people on this boat that was designed to hold only nine to twelve individuals. The

boat was found with only twenty-one life jackets on board. See United States v.

Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004). The enhancement here

was not erroneous.

For the reasons discussed above, the convictions and sentences are

AFFIRMED.