         Case: 17-13037    Date Filed: 01/25/2018   Page: 1 of 10


                                                        [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-13037
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:08-cr-00223-WSD-CMS-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,



                                 versus



BLAS ALEMAN,

                                                        Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                           (January 25, 2018)
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Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Raising several arguments, Blas Aleman, Jr. appeals his conviction for

conspiring to possess at least 5 kilograms of cocaine and at least 500 grams of

methamphetamine. First, Aleman argues that the district court erred in denying his

motion to dismiss the indictment because the government’s eight-year delay in

prosecution violated his Sixth Amendment right to a speedy trial and hindered his

ability to defend against the charged conduct. Second, Aleman argues that the

district court abused its discretion by not allowing him to schedule a second

foreign deposition of his alleged treating physician, whose testimony would have

presumably established an alibi. Third, Aleman asserts that the district court

abused its discretion in admitting evidence of his 2005 arrest, warrant, and

subsequent flight from Florida as irrelevant and as improper character evidence.

Fourth, Aleman argues that the district court committed plain error by permitting

prosecutorial misconduct in allowing the government to offer testimony of Ramon

Salazar, which contradicted his earlier statements. And finally, Aleman argues that

the district court erred in denying his post-verdict motion for a judgment of

acquittal because his conviction was based on insufficient evidence. After a

careful review of the record and the parties’ briefs and arguments, we affirm and

briefly address each argument in turn.


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                                           I.

      The Sixth Amendment guarantees criminal defendants the right to a speedy

and public trial. U.S. Const. amend. VI. “Whether the government deprived a

defendant of his constitutional right to a speedy trial presents a mixed question of

law and fact.” United States v. Villarreal, 613 F.3d 1344, 1349 (11th Cir. 2010).

“We review the district court’s legal conclusions de novo and . . . its factual

findings for clear error.” Id. “[W]e allot substantial deference to the factfinder . . .

in reaching credibility determinations [regarding] witness testimony.” Id. (internal

quotation marks omitted).

      In reviewing a motion to dismiss under the Sixth Amendment, we employ a

four-part test, weighing: “(1) the length of the delay, (2) the reasons for the delay,

(3) the defendant’s assertion of his right to a speedy trial, and (4) the actual

prejudice borne by the defendant.” Id. at 1350 (citing Barker v. Wingo, 407 U.S.

514, 530, 92 S. Ct. 2182, 2192 (1972)). If the first three factors do not uniformly

weigh heavily against the government, the defendant must demonstrate actual

prejudice “in one of three ways: (1) oppressive pretrial incarceration, (2) anxiety

and concern of the accused, and (3) possibility that the accused's defense will be

impaired.” United States v. Dunn, 345 F.3d 1285, 1296 (11th Cir. 2003) (internal

quotation marks omitted).




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      The district court did not err in denying Aleman’s motion to dismiss the

indictment. While the delay was substantial, Aleman’s own evasive conduct

following his 2005 arrest—fleeing to Mexico—caused it and was the reason he

failed to invoke his right to a speedy trial sooner. See Villarreal, 613 F.3d at

1352–54. And because the first three factors do not weigh heavily against the

government, and instead weigh heavily against him, Aleman must show actual

prejudice—a feat he cannot accomplish. See Dunn, 345 F.3d at 1296. Thus,

Aleman’s Sixth Amendment right to a speedy trial was not violated.

                                          II.

      “A party may move that a prospective witness be deposed in order to

preserve testimony for trial.” Fed. R. Crim. P. 15(a)(1). In moving to admit

deposition testimony as evidence at trial under Rule 15, the movant must submit

evidence that exceptional circumstances—such as the witness’s unavailability and

materiality—justify using a deposition at trial. United States v. Kahn, 794 F.3d

1288, 1306 (11th Cir. 2015); Fed. R. Crim. P. 15(a)(1). We consider foreign

depositions to be suspect and they are generally disfavored as evidence in criminal

cases because of the lack of a penalty for perjury and the absence of the

opportunity for cross-examination. United States v. Alvarez, 837 F.2d 1024, 1029

(11th Cir. 1988). We review a district court’s denial of a pre-trial motion to




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conduct discovery for abuse of discretion. United States v. Drogoul, 1 F.3d 1546,

1552 (11th Cir. 1993).

      The district court did not abuse its discretion in denying Aleman’s motion to

conduct a second foreign deposition because he failed to show that exceptional

circumstances warranted it. See Kahn, 794 F.3d at 1306. Aleman sought to

depose Dr. Carbajal—who failed to appear at the first deposition and could not

confirm his ability or willingness to appear going forward—again, this time in

Guerrero, Mexico. Id. Not only would the deposition have been cumulative, and

thus immaterial, as Dr. Carbajal’s testimony would have only established yet

another alleged alibi, but it also would have been prohibitively dangerous to the

parties due to violence in the Guerrero area. See United States v. Ramos, 45 F.3d

1519, 1522–23 (11th Cir. 1995) (laying out factors to guide in deciding whether

exceptional circumstances exist).

                                        III.

      Evidence is relevant if it “has any tendency to make a fact more or less

probable than it would be without the evidence” and “is of consequence in

determining the action.” Fed. R. Evid. 401. But relevant evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice or needless presentation of cumulative evidence. Fed. R. Evid. 403.

Generally, evidence of other crimes, wrongs, or acts is not admissible to prove a


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person’s character in order to show action in conformity therewith, but it may be

admissible for other purposes, such as proving intent, absence of mistake, or lack

of accident. Fed. R. Evid. 404(b)(1), (2). Further, evidence of such criminal

conduct “falls outside the scope of Rule 404(b) and thus is independently

admissible if it is[:] (1) an uncharged offense which arose out of the same

transaction or series of transactions as the charged offenses, (2) necessary to

complete the story of the crime, or (3) inextricably intertwined with the evidence

regarding the charged offenses.” United States v. Ford, 784 F.3d 1386, 1393 (11th

Cir. 2015) (internal quotation marks omitted) (alterations adopted).

      We review a district court’s admission of evidence for abuse of discretion.

United States v. Phaknikone, 605 F.3d 1099, 1107 (11th Cir. 2010). We will only

reverse an erroneous evidentiary ruling if the resulting error was not harmless.

United States v. Langford, 647 F.3d 1309, 1323 (11th Cir. 2011). “It is the

province of the trial judge to weigh any materiality against any prejudice and,

unless the judge’s reading is ‘off the scale,’ his discretion is not abused.” United

States v. Shelley, 405 F.3d 1195, 1201 (11th Cir. 2005). Finally, limiting

instructions may mitigate any prejudicial effect caused by introducing prior act

evidence. See United States v. Jernigan, 341 F.3d 1273, 1282 (11th Cir. 2003).

      The district court did not abuse its discretion in allowing evidence of

Aleman’s 2005 arrest because it was relevant and not substantially more


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prejudicial than probative because the evidence was intrinsic to the charged

conduct and the actual underlying conduct supporting his 2005 arrest was omitted

at trial. See Fed. R. Evid. 401, 403. And, the evidence was not used to show

propensity, but was instead used to explain his secretive and evasive conduct in

Atlanta following his Florida arrest. Fed. R. Evid. 404(b)(1), (2); see also Ford,

784 F.3d at 1393. Moreover, the district court gave a limiting instruction that

diminished the prejudicial nature of this evidence. See Jernigan, 341 F.3d at 1282.

                                           IV.

      “To establish prosecutorial misconduct for the use of false testimony, a

defendant must show the prosecutor knowingly used perjured testimony, or failed

to correct what he subsequently learned was false testimony, and that the falsehood

was material.” United States v. McNair, 605 F.3d 1152, 1208 (11th Cir. 2010).

“[A] prior statement that is merely inconsistent with a government witness’s

testimony is insufficient to establish prosecutorial misconduct.” Id.

      We typically review a claim of prosecutorial misconduct de novo. United

States v. Duran, 596 F.3d 1283, 1299 (11th Cir. 2010). But when such a claim is

raised for the first time on appeal, we review only for plain error. United States v.

Rivera, 780 F.3d 1084, 1090 (11th Cir. 2015). Under the plain error standard, we

look for: (1) an error, (2) that is plain, and (3) affects the defendant’s substantial

rights. United States v. Eckhardt, 466 F.3d 938, 948 (11th Cir. 2006). An error is


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plain when it is contrary to the explicit language of a statute or rule, our on-point

precedent, or the Supreme Court’s. United States v. Chau, 426 F.3d 1318, 1322

(11th Cir. 2005) (per curiam); see United States v. Lett, 483 F.3d 782, 790 (11th

Cir. 2007) (holding that no plain error occurs where no controlling precedent

supports the proposition that there was error).

      The district court did not commit plain error by allowing the government to

introduce witness testimony at trial that merely conflicted with the witness’s pre-

trial identification of Aleman. McNair, 605 F.3d at 1208. Because no evidence of

coercion was shown and no authority suggests that conflicting witness

identifications before and at trial, without more, constitute misconduct on behalf of

the government there was no plain error. See id.; Lett, 483 F.3d at 790.

                                          V.

      Lastly, we review a sufficiency-of-the-evidence challenge de novo,

reviewing all of the evidence in the light most favorable to the jury’s verdict, and

drawing all inferences in its favor. United States v. Brown, 665 F.3d 1239, 1248

(11th Cir. 2011) (per curiam). “A conviction must be upheld unless a rational

fact-finder could not have found the defendant guilty under any reasonable

construction of the evidence.” Id. It is not required that the evidence exclude

every reasonable hypothesis of innocence in order for a reasonable jury to find

guilt beyond a reasonable doubt. United States v. Cruz-Valdez, 773 F.2d 1541,


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1545 (11th Cir. 1985) (en banc). Thus, the jury is free to choose among

alternative, reasonable interpretations of the evidence. Id.

      Additionally, credibility questions are within the province of the jury.

United States v. Garcia, 405 F.3d 1260, 1270 (11th Cir. 2005) (per curiam). This

holds true where the defendant testifies in his own defense. The jury is free to

disbelieve the defendant and use his testimony as substantive evidence of his guilt.

See United States v. Williamson, 339 F.3d 1295, 1301 n.14 (11th Cir. 2003).

      To sustain a conviction for conspiracy to distribute drugs in violation of 21

U.S.C. § 846, the government must prove that: (1) an agreement existed between

two or more people to distribute the drugs; (2) the defendant at issue knew of the

conspiratorial goal; and (3) he knowingly joined or participated in the illegal

venture. United States v. Reeves, 742 F.3d 487, 497 (11th Cir. 2014). In assessing

whether the record is sufficient to demonstrate the existence of a single conspiracy,

we consider whether a common goal existed, the nature of the underlying scheme,

and the overlap of participants. Id. We have stated that it is axiomatic that

participation in a criminal conspiracy need not be proved by direct evidence; but

rather, “a common purpose or plan may be inferred from a development and

collocation of circumstances.” Id.

      The district court did not err in denying Aleman’s post-verdict motion for a

judgment of acquittal because there was substantial evidence from which a


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reasonable jury could have concluded that Aleman was complicit in the conspiracy

to transport drugs from Mexico to the U.S. See Brown, 665 F.3d at 1248. There

was ample testimony from witnesses stating that they met and spoke with Aleman

regarding transporting drugs. And there was also evidence of Aleman’s presence

in the United States during the conspiracy. The jury found this testimony to be

credible and we are bound by that decision. See United States v. Broughton, 689

F.3d 1260, 1277 (11th Cir. 2012) (stating that “[w]e are bound by the jury’s

credibility choices, and by its rejection of the inferences raised by the defendant.”

(internal quotation marks omitted)).

      AFFIRMED.




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