               Case: 14-14991      Date Filed: 10/04/2016      Page: 1 of 35




                                                                                [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 14-14991
                              ________________________

                        D.C. Docket No. 1:14-cr-20367-CMA-2



UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

versus

MARIO WILCHCOMBE, NATHANIEL ERSKINE ROLLE, ALTEME
HIBERDIEU BEAUPLANT,

              Defendants - Appellants.

                              ________________________

                     Appeals from the United States District Court
                         for the Southern District of Florida
                            ________________________

                                      (October 4, 2016)

Before MARCUS, JORDAN and WALKER, * Circuit Judges.

*
 Honorable John M. Walker, Jr., United States Circuit Judge for the Second Circuit, sitting by
designation.
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WALKER, Circuit Judge:

      Defendants Mario Wilchcombe, Nathaniel Erskine Rolle, and Alteme

Hiberdieu Beauplant appeal from a judgment entered in the United States District

Court for the Southern District of Florida (Altonaga, J.) following a jury trial

convicting (1) all defendants of conspiring to possess with intent to distribute and

possessing with intent to distribute five kilograms or more of cocaine and 100

kilograms or more of marijuana while on board a vessel subject to U.S.

jurisdiction, in violation of 46 U.S.C. §§ 70503(a) and (b) and 70506(a), 21 U.S.C.

§§ 960(b)(1)(B) and (2)(G) and 18 U.S.C. § 2; and (2) Rolle individually of failing

to obey a lawful order to heave to his vessel of which he was the master, operator,

and person in charge, in violation of 18 U.S.C. § 2237(a)(1). The district court

sentenced Beauplant and Wilchcombe principally to 120 months’ imprisonment

and Rolle to 135 months’ imprisonment.

      On appeal, the defendants argue that (A) the district court lacked subject

matter jurisdiction over the prosecution; (B) the evidence was insufficient to

support Wilchcombe’s conviction; (C) the district court erred in failing to declare a

mistrial based on improper prosecutorial comment on Rolle’s and Beauplant’s

post-custody, pre-Miranda silence; (D) the district court erred in denying

Beauplant’s motion to dismiss on the basis of the unavailability of favorable

evidence; and (E) the district court abused its discretion in admitting uncharged


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misconduct evidence against Beauplant.        Finding no merit in any of these

arguments, we AFFIRM.

                                         I.

                                        A.

      Keno Wade Russell, a Bahamian fisherman and cooperating witness, and

members of the Coast Guard testified to the following facts.

      In April 2014, Russell met in the Bahamas with a drug smuggler known as

Kool Aid, Rolle, and two other men. During the meeting, Rolle agreed to use his

small fishing boat, located in Haiti, to bring drugs from Haiti to the Bahamas.

Kool Aid gave Rolle money to fly to Haiti and arranged to travel with Russell to

Haiti via freighter. The men agreed that once Kool Aid and Russell arrived in

Haiti, they would meet with Rolle; Mario Wilchcombe, a longtime acquaintance of

Russell; and another drug smuggler named Enoch.

      After arriving in Haiti, Kool Aid and Russell met Enoch, Rolle,

Wilchcombe, and Beauplant on the Île de la Tortue, where they remained for a

week. Russell, Rolle, Beauplant, and others (not including Wilchcombe) loaded

cocaine and marijuana onto Rolle’s boat, stacking the bales on the deck and

placing drugs in the center console. When the boat was ready for departure, a 17-

year-old Haitian named either Pepe Anri or Pepe Henri (“Henri”), arrived at the

boat, and Enoch told Rolle to bring Henri to the Bahamas.


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      On May 3, 2014, at around seven or eight in the evening, Rolle’s boat left

Haiti with Rolle, Wilchcombe, Beauplant, Russell, and Henri on board. A few

hours later, the crew of the United States Coast Guard cutter Charles Sexton, which

was patrolling the ocean between Cuba and Haiti, received a tip that a boat

carrying drugs had recently departed from the Île de la Tortue. Shortly thereafter,

the Charles Sexton began tracking Rolle’s boat, which was powered by two

engines and was heading north at 10 to 15 knots per hour. Because of the boat’s

relatively high speed, Lieutenant Scott Nichols and four other crewmen left the

cutter to pursue the target in a small rubber chase boat.

      As the chase boat approached, Rolle’s boat increased its speed and

continued to travel with its lights off. The chase boat turned on its lights, spotlight,

flashing blue lights, and siren. After the chase boat fixed Rolle’s boat in its

spotlight, its crewmembers saw that Rolle’s boat was not flying a flag. At that

point, Petty Officer Michael Irigoyen ordered Rolle’s boat to stop. Instead, Rolle

further increased the speed of his boat and made a series of evasive turns while

repeatedly looking back at the chase boat. During the pursuit, two men in addition

to Rolle stood on the deck of Rolle’s boat and spent approximately 10 minutes

throwing large packages into the water. After they finished, Rolle slowed his boat.

      After the chase boat pulled alongside Rolle’s boat, Lieutenant Nichols saw

two men on board in addition to Rolle and the two men who had been jettisoning


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packages. One of the newly-spotted men was near the front and the other was near

the back by the engines. It appeared to Lieutenant Nichols that the man near the

engines, later identified as Wilchcombe, had been laying on the deck. Russell

explained at trial that Wilchcombe had been holding a loose wire in place so that

one of the engines, which had malfunctioned during the trip, could continue to

function.

       Two members of the Coast Guard boarded Rolle’s boat and turned off the

engines. They returned to the chase boat and Lieutenant Nichols questioned the

men on Rolle’s boat to determine the identity of the captain, the boat’s country of

registration, and its destination. Rolle responded that he was from the Bahamas

and owned the boat, which was registered in the Bahamas. He said that two of the

other men on the boat were Bahamian and that the other two were Haitian. He said

that he was traveling between Bahamian islands. To Lieutenant Nichols, the men

on Rolle’s boat appeared calm and relaxed.       None asked to speak with him

privately.

      Lieutenant Nichols radioed the information provided by Rolle back to the

cutter, and the Coast Guard requested that the Bahamian Government provide a

statement of no objection (“SNO”), which would allow the Coast Guard to board

Rolle’s Bahamian-registered boat for law-enforcement reasons. The time between

the request and the response was approximately two hours. While the crew of the


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chase boat waited, Lieutenant Nichols saw Rolle speaking with the man later

identified as Russell and directed them to stop.

      After receiving word from the cutter that the Bahamian Government had

confirmed that the target vessel was registered in the Bahamas and had provided

the SNO, Lieutenant Nichols and Petty Officer Irigoyen boarded Rolle’s boat,

frisked the occupants, and found several pocketknives on the men and nearly

$2,000 in cash in Rolle’s waistband. In response to a question, Rolle said that he

and two friends were giving a ride to two other friends. The Coast Guard took the

passengers into custody and Lieutenant Nichols and Petty Officer Irigoyen

searched the boat.    During the search, Lieutenant Nichols and Petty Officer

Irigoyen took photos and seized personal effects. They also inspected Rolle’s boat

to determine whether it could be towed to port. After determining that this would

be neither feasible nor safe, the Coast Guard sank the boat.

      By the time that Lieutenant Nichols and Petty Officer Irigoyen completed

the search and returned to the cutter with the suspects, the cutter’s crew had

recovered 40 packages that had been thrown overboard, along with two duffel bags

and a GPS. The packages contained 35 kilograms of cocaine and 860 kilograms of

marijuana. The Coast Guard detained the men aboard the cutter for a few days

during which time they learned their identities.




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      Throughout their detention on the chase boat and the Charles Sexton, the

men were placed in leg irons. They were not read their Miranda rights. None

were interrogated nor did any ask to speak privately with any members of the

Coast Guard. However, at one point, when Petty Officer Irigoyen and Rolle were

alone together, Rolle expressed his belief that Petty Officer Irigoyen was the boss

and asked him to cut him some slack.         Similarly, Russell told Petty Officer

Irigoyen that he had fallen on hard times after his fishing boat broke down and he

was unable to provide for his family.

      After a few days, the men were transferred from the Charles Sexton to a

second Coast Guard cutter, the Paul Clark, and Henri was repatriated to Haiti.

After the transfer, Beauplant told an interpreter that he was Haitian, that he had

been stranded, and that the Bahamians had offered him a ride. He also said he had

been traveling with Henri, an orphan from his village, to whom he was not related.

      At trial, Rolle, the only defendant to testify, told a very different story. He

claimed that Russell had tricked him and then forced him and Wilchcombe at

gunpoint to bring the drugs from Haiti to the Bahamas. He also testified that

Beauplant and Henri had stowed away in his boat and that he did not know they

were there until after the journey was well underway.




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                                          B.

      On May 22, 2014, Rolle, Wilchcombe, Beauplant, and Russell were indicted

for conspiring to possess with intent to distribute and possessing with intent to

distribute five kilograms or more of cocaine and 100 kilograms or more of

marijuana while on a vessel subject to the jurisdiction of the United States, in

violation of the Maritime Drug Law Enforcement Act (“MDLEA”), 46 U.S.C. §§

70503(a) and (b) and 70506(a), 21 U.S.C. §§ 960(b)(1)(B) and (2)(G) and 18

U.S.C. § 2. Rolle was also charged with failing to obey a lawful order to heave to

his vessel, of which he was the master, operator, and person in charge, in violation

of 18 U.S.C. §2237(a)(1).

      Russell pleaded guilty to conspiracy to distribute cocaine and marijuana and

agreed to cooperate with the government by testifying at the trial of Rolle,

Wilchcombe, and Beauplant.

      On July 28, 2014, the trial of Rolle, Wilchcombe, and Beauplant began. The

district court empaneled two juries, one for Rolle and Wilchcombe and the other

for Beauplant, to avoid any potential prejudice that could result from evidence of

Beauplant’s prior criminal trafficking.        All three men were convicted on all

charges. The district court sentenced Beauplant and Wilchcombe principally to

120 months’ imprisonment and Rolle to 135 months’ imprisonment.




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                                         II.

                                         A.

      The defendants advance multiple arguments in urging us to conclude that the

district court lacked jurisdiction over this case. We review de novo “a district

court’s interpretation and application of statutory provisions that go to whether the

court has subject matter jurisdiction” and review factual findings related to

jurisdiction for clear error. United States v. Tinoco, 304 F.3d 1088, 1114 (11th Cir.

2002) (internal quotation marks omitted).

                                         1.

      Wilchcombe and Rolle first argue that the MDLEA violates the Due Process

Clause because it does not require proof of a nexus between the United States and

a defendant. Because we have previously rejected this argument, United States v.

Campbell, 743 F.3d 802, 810 (11th Cir. 2014), cert. denied, 135 S. Ct. 704 (2014),

they seek en banc review.

      We cannot reconsider this issue, nor do we support en banc review. The text

of the MDLEA does not require a nexus between the defendants and the United

States; it specifically provides that its prohibitions on drug trafficking are

applicable “even though the act is committed outside the territorial jurisdiction of

the United States.” 46 U.S.C. § 70503(b). The Constitution and principles of

international law support our interpretation of the MDLEA, Campbell, 743 F.3d at


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810, and Wilchcombe and Rolle make no convincing arguments to the contrary.

Further, of the other circuits to have considered this question, all but one share our

view. Compare United States v. Suerte, 291 F.3d 366, 369-72 (5th Cir. 2002)

(stating that the due process does not require a nexus for the MDLEA to apply

outside the territorial jurisdiction of the United States), and United States v.

Cardales, 168 F.3d 548, 553 (1st Cir. 1999) (same), and United States v. Martinez-

Hidalgo, 993 F.2d 1052, 1056 (3d Cir. 1993) (same), with United States v.

Klimavicius-Viloria, 144 F.3d 1249, 1257 (9th Cir. 1998) (stating that the MDLEA

requires a nexus). Accordingly, we reject Wilchcombe’s and Rolle’s arguments

that our interpretation of the MDLEA violates due process.

                                          2.

      Rolle, Wilchcombe, and Beauplant argue that the government failed to

establish jurisdiction over Rolle’s boat because the SNO obtained from the

Bahamian Government does not conform to the requirements of 46 U.S.C.

§ 70502(c)(1)(C).

      The MDLEA permits the United States to exercise jurisdiction over “a

vessel registered in a foreign nation if that nation has consented or waived

objection to the enforcement of United States law by the United States.” 46 U.S.C.

§ 70502(c)(1)(C). Under the MDLEA, a foreign nation can consent or waive

objection “by radio, telephone, or similar oral or electronic means[,] and [this


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consent or waiver] is proved conclusively by certification of the Secretary of State

or the Secretary’s designee,” id. at § 70502(c)(2), although courts must still

determine whether the MDLEA’s jurisdictional requirements have been met, see

United States v. McPhee, 336 F.3d 1269, 1272 (11th Cir. 2003).

      The defendants focus specifically on claimed defects in the language of the

SNO, but we have never required the language in SNOs to precisely mirror the

language contained in the MDLEA; to the contrary, we have approved of SNOs

that did not. For example, in United States v. Brant-Epigmelio, 429 F. App’x 860,

862 (11th Cir. 2011) (unpublished), we considered the effect of two SNOs, one of

which “waived objection to the enforcement of U.S. law by the United States,” and

the other of which “waived objection to the enforcement of U.S. law by the United

States over the Colombian crewmember of the . . . vessel.” We held that the

variation in language between the two was “immaterial,” as long as “both show

that the [foreign] government . . . waived objection to the enforcement of United

States law.” Id. at 863. In United States v. Persaud, 605 F. App’x 791, 795 (11th

Cir. 2015) (unpublished), we stated that the district court’s receipt of an “[SNO]

stating that Jamaica waived primary jurisdiction over” the defendant meant that the

district court did not err in concluding that it had jurisdiction under the MDLEA.

      Here, Coast Guard Commander Fazio, a designee of the Secretary of State,

certified to the district court that “the Government of the United States requested


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the [Bahamian Government] consent to the United States exercising jurisdiction

over the vessel” and the Bahamian Government “notified the Government of the

United States that it waived its right to exercise primary jurisdiction over the

vessel.” The language informing the United States that the Bahamian Government

“waived its right to exercise primary jurisdiction over the vessel” is similar to the

language in the SNO that we approved in Persaud, differing only in that it

mentions the vessel instead of the specific defendants. In fact, the SNO in this case

actually hews closer to the MDLEA than the Persaud SNO, because both this SNO

and the MDLEA speak of a waiver of jurisdiction over the vessel and not the

defendants.

          Although Persaud and Brant-Epigmelio do not bind us because they are

unpublished opinions, we are persuaded that their approach is correct.

Accordingly, we reiterate that, as long as the substance of the consent or waiver is

communicated, the language contained in SNOs need not exactly track the

language contained in § 70502(c)(1)(C) to satisfy the requirements of the MDLEA.

The SNO in this case was sufficient to inform the United States that the Bahamian

Government consented to the United States’ exercise of jurisdiction over Rolle’s

vessel.




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                                         3.

      Beauplant and Rolle argue here, as they did to the trial court, that the

evidence at trial demonstrated that the Coast Guard misled the Bahamian

Government about the documentation of the registration status of Rolle’s boat that

was available to the Coast Guard when it was seeking the SNO. If the Bahamian

Government had been accurately informed of the existing documentation, the

defendants argue, the Coast Guard would have had to await the arrival of a

Bahamian law enforcement officer before boarding the boat.

      We agree with Beauplant and Rolle that the evidence presented at trial

suggests that the Coast Guard may have incorrectly informed the Bahamian

Government about the registration documents provided by Rolle to the Coast

Guard. An affidavit from Commander Fazio, on which the district court relied

before trial to determine whether the U.S. had jurisdiction over Rolle’s boat, states

that when the Coast Guard initially contacted the Bahamian Government, the Coast

Guard stated that they had found the registration number painted on the hull of the

boat. The affidavit also states that no other registration information was provided

to the Coast Guard at this time. Lieutenant Nichols’ trial testimony supports this

version of events. He testified that he recovered the registration documents in one

of the bags thrown overboard, and therefore the documents would not have been




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available to Commander Fazio when he contacted the Bahamian Government for

the SNO.

      At trial, Russell provided contradictory testimony. He asserted that Rolle

showed his registration card to the Coast Guard before the officers boarded the

boat. This version of events is supported by the fact that the registration card was

listed in the inventory of objects found on Rolle when he was searched.

      There are multiple reasons why this inconsistency does not lead us to fault

the district court’s decision to exercise jurisdiction over the defendants. First,

given the contradictory evidence in the record, we cannot say that the district court

committed “clear error,” Tinoco, 304 F.3d at 1114, in concluding that the facts here

supported the exercise of jurisdiction. Second, even if we accept the defendants’

claim that Commander Fazio had seen Rolle’s registration card but told the

Bahamian Government that he had not, this fact, in the context of this case, does

not render the exercise of jurisdiction improper. The Coast Guard cannot have

obtained an advantage from any such misrepresentation because Commander Fazio

informed the Bahamian Government that Rolle’s boat had the registration number

painted on its hull, thus permitting the Bahamian Government to check the boat’s

registration if it wished to do so. Finally, despite the defendants’ assertions to the

contrary, there is also no evidence in the record of bad faith or intentional

misrepresentations on the part of the Coast Guard, a fact which a district court may


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take into account when determining whether a foreign government has consented

to the United States’ exercise of jurisdiction pursuant to the MDLEA. See id.

(considering whether the Coast Guard had acted in bad faith in providing

inaccurate information to the Colombian government about a vessel’s registration

and concluding that it did not matter because the inaccurate information did not

affect the Colombian government’s response).

      We accordingly reject this challenge to the district court’s exercise of

jurisdiction.

                                          B.

      Wilchcombe argues that the government’s evidence only proved that he was

present at the scene of the drug trafficking conspiracy, not that he participated in it.

Put another way, he asserts that the government did not disprove his “mere

presence” defense to the charges of conspiring to possess with intent to distribute

and possessing with intent to distribute five kilograms or more of cocaine and 100

kilograms or more of marijuana.

      We review de novo challenges to the sufficiency of the evidence supporting

a criminal conviction. United States v. Dominguez, 661 F.3d 1051, 1061 (11th Cir.

2011). The evidence, viewed in the light most favorable to the government, must

be such that “a reasonable trier of fact could find that the evidence established guilt

beyond a reasonable doubt.” Id. (internal quotation marks omitted). “We assume

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that the jury made all credibility choices in support of the verdict and accept all

reasonable inferences that tend to support the government’s case.” Id. (internal

quotation marks omitted).

      In maritime drug-trafficking cases, “[a] jury may find knowledgeable,

voluntary participation from presence when the presence is such that it would be

unreasonable for anyone other than a knowledgeable participant to be present.”

United States v. Cruz-Valdez, 773 F.2d 1541, 1546 (11th Cir. 1985). In making

this determination, a jury may consider factors such as

      (1) [the] probable length of the voyage, (2) the size of the contraband
      shipment, (3) the . . . close relationship between captain and crew,
      (4) the obviousness of the contraband, and (5) other factors, such as
      suspicious behavior or diversionary maneuvers before apprehension,
      attempts to flee, inculpatory statements made after apprehension,
      witnessed participation of the crew, and the absence of supplies or
      equipment necessary to the vessel’s intended use.
Tinoco, 304 F.3d at 1123. The government bears a heavier burden where the

quantity of drugs is smaller; if the quantity of drugs is “large,” the government

need only prove any one of the additional factors listed above. Id.

      Here, the evidence is sufficient to sustain Wilchcombe’s convictions for

conspiring to possess with intent to distribute and possessing with intent to

distribute under the MDLEA. See id. at 1123-24 (stating that “the circumstances

that were sufficient to support the appellants’ conspiracy conviction also support

their conviction on the possession count” under the MDLEA). Plainly, given the

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relatively small size of the boat, 895 kilograms, or nearly one ton, of narcotics is a

“large quantity.” See id. But even if that were not the case, ample additional

evidence defeats the insufficiency argument. As Russell testified, some of the

drugs were stored on deck. A reasonable jury could have inferred on the basis of

this testimony that the drugs would have been obvious to Wilchcombe at the start

of the voyage. Testimony from both Russell and members of the Coast Guard

permitted the jury to find that Wilchcombe had aided the boat’s attempts to evade

capture by lying on the deck and holding a wire in place so that the second engine

could operate. Finally, Russell’s testimony provided evidence that Wilchcombe

had close relationships with Rolle, who captained the boat; with Beauplant; and

with Russell himself. Russell specifically testified that he had known Wilchcombe

for a long time and that Wilchcombe had spent time before the voyage getting to

know the other passengers. The relationships between Wilchcombe and the crew

members made it more likely that Wilchcombe knew of the presence of the drugs

on the boat.

      In sum, because a reasonable jury could have concluded from the

government’s evidence that Wilchcombe was not simply present on Rolle’s boat

but was a knowing participant in the conspiracy, we reject Wilchcombe’s argument

that the evidence was insufficient to support his convictions.



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                                        C.

      Beauplant and Rolle argue that the district court erred when it refused to

declare a mistrial based on the government’s comments at trial on their silence

after they were taken into custody.

      The defendants did not receive a Miranda warning at any point while they

were in the custody of the Coast Guard and government witnesses testified about

the defendants’ silence at several points after their boat had been intercepted. For

the purposes of this discussion, we assume that the defendants were in custody

from the time that the Coast Guard crew first boarded Rolle’s boat, turned off the

motor, and returned to their own boat. At this time the defendants were kneeling

on board their boat with their hands draped over the gunnel so that the Coast Guard

could watch them. Petty Officer Irigoyen testified that the Coast Guard “made it

clear that we had no intent on having a conversation” with them but did not

entirely stop them from talking to the Coast Guard or to each other.            The

government elicited testimony that the defendants remained quiet and did not

attempt to talk to the Coast Guard. Later, after the Coast Guard transferred the

defendants to the Charles Sexton and took their photographs, two crewmembers

testified that the detainees did not attempt to talk to them. In summation, the

government repeatedly referred to the defendant’s silence aboard their own boat

and aboard the Charles Sexton to make the argument that, if the defendants were


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on the ship under duress, as Rolle had testified, they would have sought help by

trying to speak with members of the Coast Guard.

      A district court’s decision not to grant a mistrial on the basis of comments

regarding a defendant’s choice to remain silent is reviewable for abuse of

discretion. United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999). A

defendant in custody after receiving Miranda warnings indisputably has the right

under the Fifth Amendment to remain silent. See Oregon v. Elstad, 470 U.S. 298,

304 (1985). The Supreme Court has stated, however, that it is constitutionally

permissible to use a defendant’s post-arrest, pre-Miranda silence to impeach a

defendant. Brecht v. Abrahamson, 507 U.S. 619, 628 (1993). The Eleventh

Circuit goes a step further. We permit the prosecution to use a defendant’s post-

arrest, pre-Miranda silence as direct evidence that may tend to prove the guilt of

the defendant. United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991)

(“[T]he government may comment on a defendant's silence when it occurs after

arrest, but before Miranda warnings are given.”).      See also United States v.

Valencia, 169 F. App’x 565, 574-75 (11th Cir. 2006) (unpublished) (citing Rivera

for the proposition that the government could comment on the silence of

defendants who were in custody but who had not received Miranda warnings). But

see United States v. Campbell, 223 F.3d 1286, 1290 (11th Cir. 2000)




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(acknowledging a challenge to Rivera’s statement regarding the “broad use of pre-

Miranda silence” but declining to “sort out this confusion”).

      The defendants correctly point out that the circuit courts do not agree as to

when the government may comment on a defendant’s silence. The First, Second,

Sixth, and Seventh Circuits prohibit the use of even pre-arrest silence as

substantive evidence of guilt. United States v. Okatan, 728 F.3d 111, 120 (2d Cir.

2013); Ouska v. Cahill-Masching, 246 F.3d 1036, 1049 (7th Cir. 2001); Seymour v.

Walker, 224 F.3d 542, 560 (6th Cir. 2000); Coppola v. Powell, 878 F.2d 1562,

1568 (1st Cir. 1989). But see United States v. Zarauskas, 814 F.3d 509, 515-16

(1st Cir. 2016) (We assume “without deciding, that prosecutorial comment on the

defendant’s pre-custodial silence violates the Fifth Amendment.”). The Ninth,

Tenth, and D.C. Circuits prohibit the use of post-arrest, pre-Miranda silence as

substantive evidence of guilt. United States v. Hernandez, 476 F.3d 791, 796 (9th

Cir. 2007); United States v. Moore, 104 F.3d 377, 389 (D.C. Cir. 1997); United

States v. Burson, 952 F.2d 1196, 1200-01 (10th Cir. 1991). In addition to the

Eleventh Circuit, the Fourth and Eighth Circuits permit the government to

comment on a defendant’s silence at any time prior to the issuance of Miranda

warnings. United States v. Cornwell, 418 F. App’x 224, 227 (4th Cir. 2011)

(unpublished); United States v. Osuna-Zepeda, 416 F.3d 838, 844 (8th Cir. 2005).




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See also United States v. Pando Franco, 503 F.3d 389, 395 n.1 (5th Cir. 2007)

(describing circuit split on this issue).

       Although the Supreme Court once granted certiorari to resolve this question,

the Court ultimately decided the case on other grounds, leaving the circuit split in

place. Salinas v. Texas, 133 S. Ct. 2174, 2179 (2013). In Salinas, the Court held

that a defendant’s silence in response to a question in a non-custodial interview by

a law-enforcement officer was admissible as substantive evidence of his guilt

because the defendant did not “expressly invoke the privilege against self-

incrimination in response to the officer’s question.” Id. at 2178. The fact that the

Salinas defendant was not in custody at the time of his silence was central to the

Court’s determination that his silence could be used as substantive evidence of

guilt. Id. at 2178, 2180. Where, as here, a suspect is in custody, he “cannot be said

to have voluntarily forgone the privilege [against self-incrimination] unless he fails

to claim it after being suitably warned.” Id. at 2180 (alterations and internal

quotation marks omitted). Salinas therefore does not provide support for the

prosecution’s comments in this case.

       Given our precedent on this issue, however, we cannot conclude that the

district judge abused her discretion in declining to declare a mistrial on the basis of

the challenged conduct. Whatever the state of the law in other circuits, in our

circuit it was permissible for the government to comment on Beauplant’s silence.


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      In any event, any error caused by the government’s comment on Beauplant’s

and Rolle’s pre-Miranda silence that might have occurred would not warrant

reversal. As to Beauplant, any such error would have been harmless in light of the

ample evidence of his guilt that was presented at trial. See United States v. Davila,

749 F.3d 982, 992 (11th Cir. 2014). As for Rolle, who did testify at trial, Brecht,

507 U.S. at 628, permitted the government to use his pre-Miranda silence to

impeach his trial testimony to the effect that Russell had coerced him into carrying

the drugs and that he was frightened of Russell.

      Therefore, the district court did not abuse its discretion in declining to grant

a mistrial as to Beauplant and Rolle.

                                         D.

      Beauplant argues that the government violated his due process rights both by

destroying the boat without photographing the central console and by repatriating

Henri, whose version of what happened could have aided his defense. Because

Rolle testified that Beauplant and Henri had stowed away in the boat’s center

console, Beauplant believes that an examination of the boat and Henri’s testimony

would have supported Rolle’s testimony.

      We will not pause to address the government’s assertion that Beauplant has

waived this argument based on his failure to raise it before trial because we agree

with the government on the merits. See United States v. Mathis, 767 F.3d 1264,

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1277 n.6 (11th Cir. 2014), cert. denied, 135 S. Ct. 1448 (2015). Whether there was

a due process violation as a result of the government’s destruction of evidence or

failure to preserve evidence is a mixed question of law and fact. United States v.

Revolorio-Ramo, 468 F.3d 771, 774 (11th Cir. 2006). We review the district

court’s factual determinations for clear error and its legal conclusions de novo. Id.

      To establish that the destruction of evidence constitutes a violation of due

process, “[a] defendant must show that the evidence was likely to significantly

contribute to his defense.” Id. (internal quotation marks omitted). This means that

the “evidence must both possess an exculpatory value that was apparent before the

evidence was destroyed, and be of such a nature that the defendant would be

unable to obtain comparable evidence by other reasonably available means.” Id.

(internal quotation marks omitted). The defendant must also demonstrate that the

government acted in bad faith.       Id.    To prove a violation of a defendant’s

constitutional rights resulting from the government’s deportation of a witness, a

defendant must “show that there was a reasonable basis to believe that the

testimony would be material and favorable to him, and that the government had

acted in bad faith in repatriating the alien[].” United States v. De La Cruz Suarez,

601 F.3d 1202, 1212-13 (11th Cir. 2010).

      Beauplant cannot satisfy the bad faith requirement here. Nothing in the

record suggests that the Coast Guard, in destroying the boat without photographing

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it or in repatriating Henri, acted in bad faith. In support of his claim regarding the

boat’s destruction, Beauplant asserts nothing beyond the fact that the Coast Guard

misallocated its resources in choosing to collect the drug bales rather than

measuring and photographing the center console where Russell testified that

Beauplant hid. Such a typical and reasonable law enforcement decision about how

to allocate limited resources and manpower does not permit an inference of bad

faith. As for the decision to repatriate Henri, Beauplant has not made any showing

that, in deciding to allow Henri to return to Haiti, the Coast Guard believed that he

would provide exculpatory testimony. Speculation to that effect cannot support his

claim that the Coast Guard acted in bad faith.

      Accordingly, we conclude that the district court properly denied Beauplant’s

motion to dismiss on this basis.

                                         E.

      Beauplant argues that the district court erred by permitting a DEA agent to

testify that in 2010, the Bahamian authorities arrested Beauplant because he was

the captain of a Haitian freighter that had arrived in the Bahamas carrying 165

kilograms of cocaine and some marijuana. Beauplant asserts that, in violation of

Federal Rule of Evidence 404(b), this evidence was used to establish propensity

and bad character, rather than knowledge or motive.



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      We review for “clear abuse of discretion” a district court’s choice to admit

evidence under Rule 404(b). United States v. Sterling, 738 F.3d 228, 234 (11th

Cir. 2013), cert. denied, 134 S. Ct. 2682 (2014) (internal quotation marks omitted).

      Evidence of prior crimes is admissible under 404(b) as long as (1) it is

“relevant to an issue other than defendant’s character,” (2) the government has

introduced “sufficient proof to enable a jury to find by a preponderance of the

evidence that the defendant committed the act(s) in question,” and (3) the probative

value of the evidence is not “substantially outweighed by undue prejudice.”

United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007).

      In concluding that the evidence satisfied these three requirements, the court

did not clearly abuse its discretion. First, Beauplant’s defense, as presented in

Rolle’s testimony, was that he was merely a stowaway and lacked the knowledge

that there were drugs on the boat and thus the intent to smuggle them. The agent’s

testimony was relevant as tending to prove Beauplant’s knowledge that drugs were

present and that he intended to smuggle them. The fact that he was previously

arrested for captaining a boat used to smuggle drugs makes his defense less

plausible, because it makes it more likely that Beauplant could recognize when a

boat is smuggling drugs. Second, the DEA agent’s testimony was sufficient to

prove Beauplant’s prior involvement in smuggling by a preponderance of the

evidence. Captains are in a “special position to know of the vessel’s contents,”


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United States v. Garate-Vergara, 942 F.2d 1543, 1548 (11th Cir. 1991), amended

sub nom. United States v. Lastra, 991 F.2d 662 (11th Cir. 1993) (per curiam), and

the jury could infer that because Beauplant was the captain of the earlier boat he

knew that the boat was carrying drugs. And, third, the probative value of the

evidence to show Beauplant’s knowledge and intent was not substantially

outweighed by its prejudice.    Moreover, the district court’s standard limiting

instruction mitigated whatever prejudice may have resulted from the admission of

evidence. Edouard, 485 F.3d at 1346.

      Accordingly, the defendants’ CONVICTIONS are AFFIRMED.




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JORDAN, Circuit Judge, concurring, in which WALKER, Circuit Judge, joins:

      As the court explains, United States v. Rivera, 944 F.2d 1563, 1568 (11th

Cir. 1991), allows the government, in its case-in-chief at trial, to use the post-

arrest/pre-Miranda1 silence of a defendant as substantive evidence of guilt. We are

bound by Rivera, but its reading of the Fifth Amendment is misguided and should

be reconsidered en banc in an appropriate case.

                                       *********

      Just before midnight on May 3, 2014, about 25 nautical miles from Haiti,

Coast Guard officers approached Nathaniel Rolle’s boat with their firearms drawn.

The officers ordered the boat’s occupants, including Mario Wilchcombe and

Alteme Beauplant, to get on their knees with their hands behind their heads (and

later with their hands on the gunnel of the boat). The officers also told the men on

the boat that they were not free to move around and made it clear to them that they

“had no intent on having a conversation at that point.” D.E. 175 at 333.

      Several hours later, after the Coast Guard had received authorization to

board, and after the boat was searched, the officers put the occupants in leg irons

and transferred them to a Coast Guard vessel. The occupants were told to write

down their names, dates of birth, and nationalities on cards and were then

photographed holding those cards. After about two to three days, the occupants,


      1
          Miranda v. Arizona, 384 U.S. 436 (1966).
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still shackled, were taken to a second Coast Guard vessel. They arrived in Miami

after five days at sea.

      The Coast Guard officers never told Mr. Wilchcombe and Mr. Beauplant

that it was permissible for them to speak, and did not give them Miranda warnings.

Mr. Wilchcombe and Mr. Beauplant were not questioned by the officers, and aside

from asking if they could have food and water, they did not speak (or ask to speak)

to the Coast Guard officers while at sea. While on the second Coast Guard vessel,

Mr. Beauplant told a Creole interpreter that he was from Haiti, that he had been

stranded on one of the islands, and that the Bahamians on the boat had offered him

a ride home.

      Mr. Wilchcombe and Mr. Beauplant did not testify at trial. The government,

in its case-in-chief and over defense objection, elicited from several of the Coast

Guard officers that Mr. Wilchcombe and Mr. Beauplant did not say anything to

them while in custody aboard the Coast Guard vessels and that they did not ask to

speak to any of the officers in private. The district court denied defense motions

for mistrial based on the testimony pertaining to their post-arrest/pre-Miranda

silence.

      In its initial closing argument, the government argued to the jury that, had

the two men not been involved in the drug-smuggling venture, they would have

said something to the Coast Guard officers after they were arrested and while they


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were at sea.     The government also returned to the post-arrest silence of Mr.

Wilchcombe and Mr. Beauplant in its rebuttal closing argument, telling the jury

that, although the Coast Guard officers did not ask the men any questions, they

were able to make statements if they wished, as shown by Mr. Beauplant’s

conversation with the Creole interpreter.

                                   *********

      About 50 years ago, the Supreme Court held that comments by the

prosecution and instructions by the trial court on inferences which can be drawn

from a defendant’s failure to testify at trial violate the Fifth Amendment, even if

the jury is also instructed that a defendant has a constitutional right to not take the

stand in his own defense:

          It is in substance a rule of evidence that allows the State a
          privilege of tendering to the jury for its consideration the failure
          of the accused to testify. No formal offer of proof is made as in
          other situations; but the prosecutor’s comment and the court’s
          acquiescence are the equivalent of an offer of evidence and its
          acceptance.

Griffin v. California, 380 U.S. 609, 613 (1965).           The Court explained that

“[c]omment on the refusal to testify is a remnant of the ‘inquisitorial system of

criminal justice,’ which the Fifth Amendment outlaws.”            Id. at 614 (citation

omitted). The Fifth Amendment, the Supreme Court concluded, “forbids either

comment by the prosecution on the accused’s silence or instructions by the court

that such silence is evidence of guilt.” Id. at 615.
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       A decade later, the Supreme Court explained that “Griffin prohibits the

judge and prosecutor from suggesting to the jury that it may treat the defendant’s

silence as substantive evidence of guilt.” Baxter v. Palmigiano, 425 U.S. 308, 319

(1976). So, “[w]here the prosecutor, on his own initiative asks the jury to draw an

adverse influence from a defendant’s silence, Griffin holds that the privilege

against self-incrimination is violated.” United States v. Robinson, 485 U.S. 25, 32

(1988).2

       As I see it, the government here did what the Fifth Amendment, as

interpreted in Griffin, forbids. It elicited testimony about the post-arrest silence of

Mr. Wilchcombe and Mr. Beauplant in its case-in-chief, and then suggested to the

jury in closing argument that their silence should be considered as substantive

evidence of guilt.

       Rivera, citing only to Fletcher v. Weir, 455 U.S. 603, 607 (1980), held that

“the government may comment on a defendant’s silence when it occurs after arrest,

but before Miranda warnings are given,” Rivera, 944 F.2d at 1568. Fletcher,

however, cannot bear the weight Rivera placed on it.


       2
         I recognize that Griffin has its critics. See, e.g., Mitchell v. United States, 526 U.S. 314,
331 (1999) (Scalia, J., dissenting); Albert Alschuler, “A Peculiar Privilege in Historical
Perspective,” in T HE PRIVILEGE AGAINST SELF-INCRIMINATION: ITS ORIGINS AND
DEVELOPMENTS 199-202 (1997). But it also has its supporters. See, e.g., AKHIL REED AMAR,
THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 52, 73-74 (1997);
Stephen J. Shulhofer, Some Kind Words for the Privilege Against Self-Incrimination, 26 U. VA.
L. REV. 311, 330-35 (1991). More importantly for us, however, Griffin has not been overruled,
and remains binding precedent.
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      First, Fletcher was decided under the “fundamental fairness” standard of the

Due Process Clause of the Fourteenth Amendment, and not under the Self-

Incrimination Clause of the Fifth Amendment. See Fletcher, 455 U.S. at 602, 607.

Due process (whether of the Fifth or Fourteenth Amendment varieties) and the

privilege against self-incrimination (located in the Fifth Amendment) “are not co-

extensive, nor do they have the same underlying rationales. There is, therefore, no

principled reason . . . [for the] application of a due process analysis to an inquiry

about the privilege against self-incrimination.” Maria Noelle Berger, Defining the

Scope of the Privilege Against Self-Incrimination: Should Prearrest Silence be

Admissible as Substantive Evidence of Guilt?, 1999 U. ILL. L. REV. 1015, 1025.

      Second, Fletcher addressed the use of silence to impeach a defendant during

cross-examination, and not the use of silence in the government’s case-in-chief. It

held that the due process clause—as interpreted in Doyle v. Ohio, 426 U.S. 610

(1976)—permitted the use of post-arrest/pre-Miranda silence on cross-examination

of a defendant who took the stand at trial: “In the absence of the sort of affirmative

assurance embodied in the Miranda warnings, we do not believe it violates due

process of law for a State to permit cross-examination as to post[-]arrest silence

when a defendant chooses to take the stand.” Fletcher, 455 U.S. at 607. Later

cases have explained that Fletcher was decided on due process grounds using a

“fundamental fairness” standard. See, e.g., Wainright v. Winfield, 474 U.S. 284,


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290 (1988) (“Since Fletcher . . . we have continued to reiterate our view that Doyle

rests on ‘the fundamental unfairness of implicitly assuring a subject that his silence

will not be used against him and then using that silence to impeach an explanation

offered at trial.’”) (citation omitted). Here, of course, we are not dealing with the

use of silence for impeachment during a defendant’s cross-examination.

                                  *********

      Although the Supreme Court has held that a voluntary custodial statement

taken in violation of Miranda may be used on cross-examination to impeach a

testifying defendant, the rationale for this rule is that a defendant who testifies at

trial, and who places his credibility on the line, cannot use the Fifth Amendment as

“a shield against contradictions of his untruths.” Harris v. New York, 401 U.S.

222, 224 (1971) (citation and internal quotation marks omitted). See also id. at 226

(“The shield of Miranda cannot be perverted into a license to use perjury by way

of a defense, free from the risk of confrontation with prior inconsistent

utterances.”).   Significantly, when evidence is offered in this manner, it is

probative not of the defendant’s guilt but of his credibility. The two factual

premises underlying the Harris rationale—(1) a defendant who makes a statement

to the police, and (2) then testifies in a way that contradicts that statement—are

missing here. Mr. Wilchcombe and Mr. Beauplant made no statements to the




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Coast Guard officers in the five days they were in custody, and did not testify at

trial.

         I agree with what Judge Sentelle wrote for the D.C. Circuit in holding that

the Fifth Amendment prohibits the government from using post-arrest/pre-Miranda

silence as substantive evidence of guilt in its case-in-chief:

            [N]either Miranda nor any other case suggests that a
            defendant’s protected right to remain silent attaches only upon
            the commencement of questioning as opposed to custody.
            While a defendant who chooses to volunteer an unsolicited
            admission or statement to the police before questioning may be
            held to have waived the protection of that right, the defendant
            who stands silent must be treated as having asserted it.

United States v. Moore, 104 F.3d 377, 385 (D.C. Cir. 1997).

         If there is going to be a trigger for the constitutional protection of silence,

that trigger should be custody and not the recitation of Miranda warnings. The

right to remain silent comes from the Fifth Amendment, not Miranda, and exists

independently of Miranda warnings. See United States v. Patane, 542 U.S. 630,

641 (2004) (plurality opinion) (explaining that Miranda warnings “protect[ ]” the

fundamental right secured by the Self-Incrimination Clause of the Fifth

Amendment).        Accordingly, “[i]t simply cannot be the case that a citizen's

protection against self-incrimination only attaches when officers recite a certain

litany of his rights.” Moore, 104 F.3d at 385.




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         But if we want to talk about Miranda, that decision contains broad language

which supports the view that it is custody that matters when the issue is the use of a

defendant’s silence as substantive evidence: “[I]t is impermissible to penalize an

individual for exercising his Fifth Amendment privilege when he is under police

custodial interrogation. The prosecution may not, therefore, use at trial the fact

that he stood mute or claimed his privilege in the face of an accusation.” Miranda,

384 U.S. at 468 n.37.

         The Court in Miranda also made clear that the warning was just that: a

warning that informs the suspect of the privilege against self-incrimination that he

already possesses while in police custody and of the consequences of forgoing it.

See id. at 469 (“The warning of the right to remain silent must be accompanied by

the explanation that anything said can and will be used against the individual in

court.    This warning is needed in order to make him aware not only of the

privilege, but also of the consequences of forgoing it. It is only through an

awareness of these consequences that there can be any assurance of real

understanding and intelligent exercise of the privilege. Moreover, this warning

may serve to make the individual more acutely aware that he is faced with a phase

of the adversary system—that he is not in the presence of persons acting solely in

his interest.”). Nothing in Miranda suggests that the warning is the source of the

right to remain silent. It thus makes no sense to conclude, as Rivera did, that


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whether a defendant possesses the privilege against self-incrimination is derived

from issuance of the warning and not whether he is in custody. Even Justice

Scalia, a critic of Griffin, viewed Miranda as a broad prohibition against the use of

post-arrest silence by the government in its case-in-chief. See Mitchell, 526 U.S. at

338 n.2 (“[W]e did say in Miranda . . . that a defendant’s post-arrest silence could

not be introduced as substantive evidence against him at trial.”).

                                    *********

       In this case the Coast Guard officers chose not to give Miranda warnings to

Mr. Wilchcombe and Mr. Beauplant while they were kept in shackles for five days

at sea, and after they were told that the officers were not interested in having a

conversation.     In my view, the Fifth Amendment’s privilege against self-

incrimination did not permit the government to use the post-arrest silence of Mr.

Wilchcombe and Mr. Beauplant—neither of                   whom testified at trial—as

substantive evidence of their guilt in its case-in-chief. Cf. United States v. Hale,

422 U.S. 171, 176 (1975) (federal case decided on evidentiary grounds: “In most

circumstances silence is so ambiguous that it is of little probative force.”).

       I join Judge Walker’s opinion for the court with the hope that, one day, we

will revisit Rivera. 3



       3
         Given the other evidence presented against Mr. Wilchcombe and Mr. Beauplant, I do
not think this case is a good vehicle for en banc reconsideration of Rivera.
                                           35
