           Case: 11-12837   Date Filed: 08/07/2012   Page: 1 of 10

                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                       ________________________

                             No. 11-12837
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 2:10-cr-14078-KMM-3

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus



ALPHONSE PIERRE,

                                                          Defendant-Appellant.


                     __________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                            (August 7, 2012)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
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      Alphonse Pierre appeals his convictions for conspiring to and attempting to

import five kilograms or more of cocaine, 21 U.S.C. § 963, and conspiring to

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

id. §§ 846, 841(a)(1). Pierre challenges the denial of his motion for a judgment of

acquittal, the admission of testimony and other evidence, and evidentiary rulings.

We affirm.

      Three standards of review govern this appeal. We review de novo the

denial of a judgment of acquittal, and we construe the evidence in the light most

favorable to the government. United States v. Pena, 684 F.3d 1137, 1152 (11th

Cir. 2012). We review the admission of testimony and other evidentiary rulings

for an abuse of discretion. United States v. Woods, 684 F.3d 1045, 1062 & n.17

(11th Cir. 2012); United States v. Kennard, 472 F.3d 851, 854 (11th Cir. 2006).

Objections or arguments that are not raised in the district court are reviewed for

plain error. United States v. Hoffman-Vaile, 568 F.3d 1335, 1340 (11th Cir.

2009).

      The district court did not err by denying Pierre’s motion for a judgment of

acquittal. Sufficient evidence established that Pierre, a native and citizen of Haiti,

was involved in a conspiracy to import and distribute cocaine. Pierre and his

girlfriend were discovered in the master stateroom of a boat used to smuggle them

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and three other aliens from the Bahamas into the United States. Inside the master

stateroom, agents discovered four weighty pieces of luggage containing 78

kilograms of cocaine, which testing later revealed was 74 percent pure cocaine and

could be diluted to increase the quantity to distribute. Agents seized from Pierre a

set of keys that opened locks on the luggage, $2,600 in US currency, and a

Blackberry cellular telephone. Pierre’s telephone contained text messages that

Pierre had sent to his wife and a contact list programmed with speed dial numbers

for four coconspirators: Widline Vaughn; a person identified as Manno; Guy

Derilus; and Pierre’s cousin, Luckson Morin, who was a taxicab operator living in

Florida. Agents arrested Derilus and Morin after they met the boat at a dock on

the St. Lucie River in Stuart, Florida. Agents also arrested Pierre and recorded a

telephone call that he made from jail instructing his wife to contact Vaughn using

the telephone number programmed into Pierre’s cellular telephone. During trial,

Morin testified that Pierre had agreed to pay the cost of leasing Morin’s taxi for

one week in exchange for transportation from the dock; Pierre had arranged a

meeting at a McDonald’s restaurant between Morin and the captain of the boat,

William Roberts, to select a site to dock the boat; Pierre had given Vaughn’s

telephone number to Morin; and Vaughn had introduced Morin to Derilus, who

intended to collect the cocaine from the boat. Captain Roberts testified about

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meeting Morin at McDonald’s; sailing with the aliens from the Bahamas; and

cooperating with agents to make a controlled delivery of the cocaine. Morin and

Agents Jeffery Deslauriers and John Rees corroborated Roberts’s story about the

controlled delivery. And Daniel Malone, a forensic examiner for the Department

of Homeland Security, testified about toll records of telephone calls preceding the

arrival of the boat between Morin and Roberts, Morin and Derilus, Derilus and

Vaughn, Vaughn and Roberts, Vaughn and Manno, Vaughn and Pierre’s wife,

Vaughn and Pierre, and Manno and Pierre. A jury reasonably could find that

Pierre conspired to import cocaine into the United States for distribution. See

United States v. Quilca-Carpio, 118 F.3d 719, 721–22 (11th Cir. 1997).

      The district court did not abuse its discretion when it admitted testimony

from Agent Deslauriers about Pierre’s girlfriend or when it permitted the

prosecutor to use leading questions. Deslauriers testified about Pierre’s girlfriend

to establish the identity of the aliens on board the boat and to establish that Pierre

also had a wife, which was relevant to a recorded telephone call to her in which

Pierre instructed her to contact Vaughn for assistance in hiring an attorney. See

Fed. R. Evid. 401. Pierre argues that “Morin’s testimony was totally lead [sic] by

the prosecutor,” but the district court sustained Pierre’s objections to the

prosecutor’s leading questions. See United States v. Ramirez, 426 F.3d 1344,

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1353 (11th Cir. 2005). Pierre also argues that Agent Eddie Melton “played off of

leading questions,” but Melton was a defense witness who could be asked leading

questions during cross-examination. See Fed. R. Evid. 611(c)(1).

      The district court did not plainly err by admitting other testimony from

Agent Deslauriers, Agent Melton, or Roberts or by permitting the prosecutor to

comment on Morin’s testimony. Pierre argues that the testimony and comments

“[b]olstered and [v]ouch[ed] for the [c]redibility of [w]itnesses,” but no reversible

error occurred. To constitute plain error, the admission of the statements must

have affected Pierre’s substantial rights and “‘seriously affect[ed] the fairness,

integrity or public reputation’” of his trial. United States v. Turner, 474 F.3d

1265, 1276 (11th Cir. 2007). Deslauriers’s brief statement that he perceived

Roberts as being truthful when he admitted smuggling aliens into the United

States and denied any knowledge about the cocaine concealed in the luggage did

not affect Pierre’s substantial rights. And Roberts was entitled to testify that he

had been a “fair guy, straight shooter” with persons in the “Haitian community” to

explain why he had been “dumbfounded,” “angry,” and believed he had been “set

up” and “betrayed” when he learned about the cocaine. Fed. R. Evid. 701. After

Pierre called Melton as a witness and questioned him about his credentials, the

prosecutor was entitled to ask Melton about his experience, see Fed. R. Evid.

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611(b), which was relevant to his credibility, see Fed. R. Evid. 402. And the

prosecutor was entitled in summation “to point[] out features of [Morin’s]

testimony that supported [his] credibility,” United States v. Johns, 734 F.2d 657,

663 (11th Cir. 1984), which included Morin’s unease in having to confess his

crimes in the presence of his family and to testify against Pierre.

      The district court also did not plainly err when it admitted eight statements

made by Agent Deslauriers, Agent Rees, Agent Malone, and Roberts that Pierre

now contends was inadmissible hearsay. Pierre’s substantial rights were not

affected by the admission of three hearsay statements by Deslauriers that Rees had

said that he found contraband in the luggage; Officer Benjamin Caudill had said

that he found the keys to access the luggage in Pierre’s pocket; or Roberts had said

that each alien had boarded carrying a piece of luggage. See Turner, 474 F.3d at

1276. These statements were cumulative in the light of Deslauriers’s testimony

that he had tested the white powder to verify the presence of cocaine and that

Pierre had admitted possessing the keys; Caudill’s testimony that he had found the

keys in Pierre’s pocket; and Roberts’s testimony that the aliens had brought

luggage on board the boat. Deslauriers’s fourth statement that Rees had told him

that Morin had arrived at the dock was admissible under the exception to the

hearsay rule for present sense impressions. Fed. R. Evid. 803(1). And Pierre fails

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to identify any hearsay in Deslauriers’s fifth statement about signing evidence

forms; Rees’s statement that he did not know the “acquiring agent” who had

labeled the cocaine; Agent Malone’s testimony; or Roberts’s “wandering narrative

of his contacts and conversations with” another smuggler.

      The district court did not abuse its discretion by overruling Pierre’s hearsay

objections to questions posed to Roberts and Agent Rees. Roberts’s testimony

about why the owner of the boat insisted on giving Roberts a bill of sale was not

hearsay. See Fed. R. Evid. 801(c)(1). No error occurred during Rees’s testimony

because Pierre objected before Rees could repeat a statement by the boarding crew

that they had found keys to the luggage in Pierre’s pocket.

      The district court did not plainly err when it admitted testimony from Agent

Deslauriers that Pierre “wasn’t cooperating,” “he wasn’t going to be truthful,” and

it was “pointless to continue questioning him.” There is no merit to Pierre’s

conclusory argument that Deslauriers’s statements violated the due process and

self-incrimination clauses of the Fifth Amendment under United States v. Miller,

255 F.3d 1282 (11th Cir. 2001), and Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240

(1976), which prohibit the government from eliciting testimony that a defendant

invoked his right to remain silent after being advised of his right to counsel.

Deslauriers testified that Pierre waived his right to counsel and then told agents

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that he did not see anyone bring luggage aboard the boat and had no idea how the

keys got in his pocket. Deslauriers was entitled to testify that he perceived Pierre

as being uncooperative.

      The district court also did not plainly err when it allowed Agent Randy

Matschner to testify as an expert witness or when it asked Matschner to “explain

to the jury what the percentage of [quality] is of street level [cocaine] or use

quantity typically.” When the prosecutor offered Matschner as an expert witness,

Pierre stated that he “did not have any objections,” and waived his challenge to

Matschner’s qualifications. See Lindsey v. Navistar Int’l Transp. Corp., 150 F.3d

1307, 1315 n.2 (11th Cir. 1998). The district court acted within its “wide

discretion in managing the proceedings,” United States v. Day, 405 F.3d 1293,

1297 (11th Cir. 2005), when it asked Matschner to explain the value of the

cocaine.

      The district court did not plainly err when it admitted into evidence the

cocaine, keys, luggage, and Deslauriers’s “paperwork.” Pierre argues that an

insufficient chain of custody existed to support admission of these items, but his

“[c]hallenge to the chain of custody goes to the weight rather than the

admissibility of the evidence.” United States v. Lopez, 758 F.2d 1517, 1521 (11th

Cir. 1985). Deslauriers’s paperwork was offered into evidence by Pierre, and

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“‘where the injection of allegedly inadmissible evidence is attributable to the

action of the defense, its introduction does not constitute reversible error.’”

United States v. Jernigan, 341 F.3d 1273, 1289 (11th Cir. 2003) (quoting United

States v. Martinez, 604 F.2d 361, 366 (5th Cir. 1979)).

      Pierre argues about cumulative error based on the admission of testimony

and evidence, but his argument fails. Because Pierre fails to identify any

reversible error, there can be no cumulative error. United States v. Waldon, 363

F.3d 1103, 1110 (11th Cir. 2004).

      Pierre also argues, for the first time, about the admission of testimony that

connected him to smuggling aliens into the United States and an alleged

constitutional violation, but these arguments fail too. Evidence about the

conspiracy to smuggle aliens was inextricably intertwined with the conspiracy to

import and distribute cocaine. Testimony about the aliens was integral to establish

how Pierre concealed and transported the cocaine to the United States. See United

States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998). Pierre argues that the

“[s]eizure, [b]oarding, and [s]earch of the boat . . .and the [s]earch of [his]

person[]” violated the Fourth Amendment to the U.S. Constitution, but Pierre

waived any alleged constitutional violation by failing timely to move to suppress

the evidence before trial or to request a waiver from the timeliness requirement.

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Fed. R. Crim. P. 12(e); see United States v. Slocum, 708 F.2d 587, 600–01 (11th

Cir. 1983). And Pierre provides no good cause to excuse his failure to comply

with Rule 12(b)(3)(C). See United States v. Barrington, 648 F.3d 1178, 1190

(11th Cir. 2011). The district court did not plainly err by admitting the evidence.

                               IV. CONCLUSION

      We AFFIRM Pierre’s convictions.




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