            Case: 17-15405   Date Filed: 08/13/2020   Page: 1 of 57



                                                                      [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-15405
                       ________________________

                  D.C. Docket No. 1:16-cr-20091-KMW-2



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,


                                   versus


JULIO ESTRADA,
BARTOLO HERNANDEZ,

                                                        Defendants-Appellants.

                       ________________________

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

                             (August 13, 2020)

Before ROSENBAUM, JILL PRYOR and BRANCH, Circuit Judges.

JILL PRYOR, Circuit Judge:
                Case: 17-15405       Date Filed: 08/13/2020       Page: 2 of 57



       Julio Estrada, a baseball trainer, and Bartolo Hernandez, a baseball manager,

partnered with business professionals, human traffickers, and members of a

Mexican criminal organization to smuggle baseball players out of Cuba and into

the United States so that the players could enter into lucrative “free agent”

contracts with Major League Baseball (“MLB”) teams.1 At the time of the events

underlying this appeal, MLB rules required Cuban citizens to obtain “unblocking”

licenses from the United States Treasury Department’s Office of Foreign Assets

Control (“OFAC”) before they could enter into free agent contracts. To obtain

unblocking licenses, the players were required to prove that they had moved to a

third country with no intention of returning to Cuba. The defendants’ operation

would smuggle players into Mexico, Haiti, or the Dominican Republic, where

Estrada, Hernandez, and other co-conspirators would procure fraudulent

documents to establish the players’ residencies in those countries. The players

used the false residency documents to obtain unblocking licenses permitting them

to contract with MLB teams. Sometimes they also relied on the false documents to

obtain visas, which allowed them to come to the United States to play baseball.




       1
         MLB defines “free agent” as a player who “is eligible to sign with any club for any
terms to which the two parties can agree.” What Is Free Agency?, MLB (last visited July 1,
2020), http://m.mlb.com/glossary/transactions/free-agency.


                                                2
                Case: 17-15405        Date Filed: 08/13/2020        Page: 3 of 57



       A federal grand jury charged Estrada and Hernandez with smuggling four

Cuban baseball players into the United States, in violation of 8 U.S.C.

§ 1324(a)(2), 2 and conspiring to commit crimes against the United States. At trial,

the government’s theory of prosecution was that Estrada and Hernandez, along

with others not parties to this appeal, aided and abetted in bringing noncitizens3

into the United States. After a 30-day trial, the jury convicted them of conspiring

to bring and bringing four noncitizen Cuban players into the United States. On

appeal, Estrada and Hernandez raise several challenges to their convictions,

including whether: (1) the district court erred in ruling that the Cuban Adjustment

Act (“CAA”) and the Wet-Foot/Dry-Foot policy did not provide the players with

“prior official authorization” to come to, enter, or reside in the United States under

§ 1324(a)(2); (2) there was sufficient evidence to support their convictions; and

(3) the district court committed evidentiary errors. After a thorough review of the

parties’ briefs and the record, and with the benefit of oral argument, we affirm their

convictions.



       2
          Section 1324(a)(2) of Title 8 provides: “Any person who, knowing or in reckless
disregard of the fact that an alien has not received prior official authorization to come to, enter,
or reside in the United States, brings to or attempts to bring to the United States in any manner
whatsoever, such alien, regardless of any official action which may later be taken with respect to
such alien, shall” be punished according to the statute. 8 U.S.C. § 1324(a)(2).
       3
        We use the term “noncitizens” as an equivalent for the statutory term “aliens.” See
Nasrallah v. Barr, 140 S. Ct. 1683, 1689 n.2 (2020).

                                                 3
                  Case: 17-15405        Date Filed: 08/13/2020         Page: 4 of 57



                             I.      FACTUAL BACKGROUND

       This case arises out of a scheme to smuggle Cuban baseball players into the

United States. Estrada and Hernandez facilitated the smuggling operation in four

ways: first, they helped the players move from Cuba to either Mexico, Haiti, or the

Dominican Republic; second, they procured fraudulent residency documents for

the players, which they used to obtain OFAC “unblocking” licenses; third, they

used the fraudulent residency documents to obtain visas for the players to enter the

United States; fourth, they facilitated the physical bringing of noncitizens to the

border. In exchange for their work, Estrada and Hernandez charged a percentage

of the players’ free agent contracts, which often were worth millions of dollars.

Below we recount the events that led to the defendants’ convictions. 4

A.     Hernandez Works with a Retired Baseball Player and Human
       Trafficker to Form the Smuggling Operation

       Hernandez, a sports agent who “specialized in Cuban baseball players,”

owned and operated Global Sports Management. Doc. 527 at 16. 5 As an agent,

Hernandez negotiated with MLB teams on the players’ behalf. As compensation,

the players paid him an agent’s fee. One of his business partners was Scott


       4
          The facts are taken from the evidence adduced at trial and are stated in the light most
favorable to the government. See United States v. Robertson, 493 F.3d 1322, 1329 (11th Cir.
2007) (stating that, in reviewing a challenge to the sufficiency of the evidence, we “view the
evidence in the light most favorable to the government and resolve all reasonable inferences and
credibility evaluations in favor of the jury’s verdict” (internal quotation marks omitted)).
       5
           Citations in the form “Doc. #” refer to entries on the district court’s docket.
                                                    4
              Case: 17-15405    Date Filed: 08/13/2020   Page: 5 of 57



Shapiro, an immigration attorney. Estrada became the company’s baseball

director.

      The scheme began when Rider Reyes—a retired baseball player who lived in

Miami—started organizing an operation to smuggle Cuban players into the United

States so they could enter MLB contracts. To that end, he contacted Alberto

Ramos—a known human trafficker with boats for smuggling players. Reyes and

Ramos needed money to finance the operation, so they called Hernandez.

      Hernandez and Reyes met at a mall to discuss the smuggling operation.

Reyes told Hernandez that he had a contact, Ramos, who could smuggle players to

the United States in go-fast boats. He also showed Hernandez a list of Cuban

baseball players. Hernandez picked players from the list that interested him, and

he and Reyes discussed bringing those players to the United States. Hernandez

then decided to call Estrada.

      Three days later, Hernandez and Reyes met again. This time, Estrada and

Ramos joined them. The men discussed which players to target and how they

would go about smuggling the players out of Cuba. Estrada told the group that he

had a cousin from the Dominican Republic who could contact Cuban players about

their interest in being smuggled into the United States. Estrada’s cousin joined

them at later meetings. They determined that Reyes, Ramos, and Estrada would

physically move the players out of Cuba. Estrada made “various phone calls to


                                         5
              Case: 17-15405     Date Filed: 08/13/2020    Page: 6 of 57



Cuba” and told the conspirators that they “could start.” Doc. 517 at 85–86. They

initially decided that the players would be taken to Cancun, Mexico.

      While the smuggling operation was underway, a man called Nacho

contacted Reyes. Nacho told Reyes that he had smuggled a player into Cancun,

and unless Reyes paid him $50,000, he would beat the player. Nacho, along with

his “right-hand man” Eliezer Lazo (“Lazo Sr.”), worked for a separate smuggling

operation in Cancun. Doc. 514 at 57. In response to Nacho’s threat, Hernandez,

Ramos, and Reyes traveled to Cancun, where they met Nacho at a restaurant.

There, Nacho told the group that he worked for a criminal organization and that he

had to pay a tax—or “piso”—of $2,000 to that organization to smuggle immigrants

into the United States. Doc. 517 at 104. Nacho and Hernandez left the group to

discuss the $50,000. When they returned, Nacho told the men that Hernandez was

“going to do business with [him].” Id. at 105.

      At the same restaurant meeting, the men—including Nacho—discussed the

baseball smuggling operation. Nacho agreed to help manage the baseball players

while they were in Cancun. Hernandez explained the concepts of free agency and

“unblocking” to Nacho. Id. at 106. He also defined the terms of the smuggling

operation’s agreement with the players. He explained that they would charge a

percentage (up to thirty or thirty-five percent) of the value of the players’ contracts

and divide that money among themselves. They each agreed on their share of the


                                           6
              Case: 17-15405       Date Filed: 08/13/2020   Page: 7 of 57



players’ contracts. Once the meeting was over, Hernandez, Reyes, and Ramos all

agreed that Nacho—who was always surrounded by armed bodyguards—“was a

very dangerous person.” Id. at 107. Back in Miami, the conspirators signed

contracts to formalize the deal.

      A few months later, Estrada traveled to Cancun to meet Nacho. They

discussed smuggling more players and dividing the proceeds from the players’

MLB contracts. Estrada also met Diana Tilbert, a business operator who was

involved in smuggling Cuban citizens into Mexico.

B.    The Smuggling Operation Begins Smuggling Cuban Players to Mexico

      The operation began smuggling Cuban players to Cancun by boat. One

player described the trip as “tough.” Doc. 515 at 64. Once they arrived in Cancun,

Hernandez would meet the players and explain the concept of free agency and the

necessity of unblocking licenses, which would allow them to enter MLB contracts.

To help the players establish residency, Nacho would pay a Mexican immigration

official to produce fraudulent residency documents. The players would list fake

jobs like “tinsmith” and “welder” on their documents, and they would joke about

their fake jobs in front of Estrada. Doc. 514 at 72; 515 at 73. The players

understood that the fake jobs would allow them to establish residency in Mexico.

      Hernandez was responsible for preparing the players’ unblocking

applications. He would include the players’ Mexican residency papers in the


                                            7
               Case: 17-15405    Date Filed: 08/13/2020   Page: 8 of 57



applications. OFAC granted the applications and issued the players unblocking

licenses, which allowed them to enter into contracts with MLB. Hernandez also

worked on securing visas for the players. Once the players received their visas,

they could enter the United States. While they were in Mexico, Estrada trained the

players.

C.      Nacho Disappears, and the Remaining Men Form Estrellas del Beisbol

        One day, Nacho drove two baseball players to a boatyard in Cancun. left his

car and was approached by two men wearing hoods. One of the players in the car

reported hearing gunshots. The players escaped and told Estrada, Lazo Sr., and

other players what happened. After Nacho’s disappearance, Lazo Sr. took over

Nacho’s previous role in smuggling the players out of Cuba, and the operation

moved from Cancun to Mexico City. Estrada accompanied the players to Mexico

City.

        Once in Mexico City, Lazo Sr. formed the company Estrellas del Beisbol on

Estrada’s and Hernandez’s advice. Estrada partnered with Lazo Sr. to help him

form the corporation. Lazo Sr. agreed to pay Estrada a percentage of the players’

MLB contracts.

D.      Leonys Martin Is Smuggled into the United States

        Leonys Martin, a centerfielder from Cuba, was smuggled out of Cuba with

his family by boat and taken to Cancun pursuant to a plan organized by Lazo Sr.


                                          8
              Case: 17-15405    Date Filed: 08/13/2020   Page: 9 of 57



and Martinez. In Cancun, Martin offered to pay Lazo Sr. $40,000 for smuggling

Martin and his family out of Cuba and requested that he and his family be handed

over to a different smuggling organization whom Martin knew from Cuba. Lazo

Sr. refused the offer. He said that Martin now “belonged to” the smuggling

operation and owed it $2.5 million. Doc. 519 at 60. Martin spoke to Hernandez

and agreed to pay Estrellas del Beisbol thirty percent and Hernandez five percent

of his future MLB contract. Eventually, the Texas Rangers offered Martin a

contract for $15.5 million.

      While in Cancun awaiting a visa, Martin and his family were approached by

the different smuggling organization. Because it was “very hot” (dangerous) in

Cancun due to the presence of the other smuggling organization, Lazo Sr. and one

of his associates, Joel Martinez, took Martin to Monterrey, Mexico, to “put some

distance” between Martin and the other operation. Id. at 64.

      At one point, Hernandez explained to Martin that he needed a Cuban

passport to become a free agent. To that end, Hernandez took Martin to the Cuban

consulate in Guatemala. They decided to go to Guatemala because it would be

easier to obtain a passport there; unlike Mexico, Guatemala had no “migratory

agreement” with Cuba that would require the other country’s government to send

Martin back to Cuba if he were apprehended. Id. at 74. The Cuban consulate

declined Martin’s application for a passport.


                                         9
             Case: 17-15405    Date Filed: 08/13/2020   Page: 10 of 57



      Back in Mexico, Martin learned of the attempted kidnapping of one of his

handlers. Afraid of being kidnapped himself, Martin asked Lazo Sr. if the Rangers

would still honor his contract if he crossed the border without a visa. Martin and

Lazo Sr. met via video chat, and Hernandez joined on speakerphone. They asked

Hernandez to find out whether the Rangers would honor Martin’s contract if he

entered the United States without a visa. Later that day, Hernandez called back

and confirmed that the Rangers would honor the contract.

      Martinez took Martin to the United States-Mexico border. Martinez crossed

and waited on the United States side for Martin. Then, Martin crossed. He recited

to border officials what Martinez had told him to say: he was seeking political

asylum, and he had been in Mexico—where he practiced baseball—for seven

months. The border officials detained Martin for two days before paroling him

into the United States. Martinez took Martin to the airport and they flew together

to Miami, where they met Hernandez, Lazo Sr., and others.

      Shortly after Martin crossed the border, Hernandez had a phone call with a

representative from the Rangers. The contents of the call are unknown, but the

Rangers honored the contract and paid Martin, who then paid Lazo Sr. and

Martinez $1.35 million. Martin paid Hernandez $225,000. Believing that amount

was too low, Hernandez filed an arbitration case against Martin.




                                         10
             Case: 17-15405     Date Filed: 08/13/2020   Page: 11 of 57



E.    The Smuggling Operation Moves to the Dominican Republic and Haiti

      Because Mexico was “very violent,” the smuggling operation began

smuggling players to the Dominican Republic instead of Mexico. Doc. 522 at 20.

The organization also shifted in another way: Lazo Sr. was arrested for Medicare

fraud, so his son, Eliezer Lazo (“Lazo Jr.”), took over the business.

      Lazo Jr. was unable to bribe Dominican immigration officials for fraudulent

residency documents. He met with Hernandez to discuss the problem. Hernandez

told Lazo Jr. that Estrada knew a man in Haiti, Amin Latouff, who had government

contacts and could help the players establish residency in Haiti. The operation

moved again, to Haiti, and within a month, the players were Haitian residents. The

players signed MLB contracts, but there was a delay in obtaining their visas.

F.    Omar Luis Enters the United States

      Omar Luis, a Cuban baseball player who was in Haiti waiting for a visa, told

Estrada that he was eager to enter the United States. Estrada advised him to wait

for a visa. Despite this advice, Estrada called Tilbert, who put Luis into contact

with someone who could take him to Mexico and then to the United States—

without a visa. Estrada paid Tilbert’s contact $1,500. Luis flew to Panama, where

Estrada met him. Estrada paid for their tickets to fly together to the United States-

Mexican border at Reynosa, Mexico. There, Luis crossed the border without a visa




                                         11
             Case: 17-15405    Date Filed: 08/13/2020   Page: 12 of 57



and was detained by immigration officials in the United States. Estrada—who

crossed the border minutes after Luis—waited for him in Texas.

      Luis signed a $4.5 million contract with the Yankees. He paid Hernandez

four percent of the contract and Estrada around $200,000 to $300,000.

G.    Jose Abreu Enters the United States

      Jose Abreu, another Cuban baseball player, independently decided that he

wanted to leave Cuba to play in the MLB. Estrada paid for Abreu to travel by boat

from Cuba to Haiti. In Haiti, Abreu met Latouff, who helped him by obtaining

fraudulent residency papers, lodging, and supplies. Abreu understood that he had

to establish residency in Haiti so he could sign a free agent contract with MLB.

      After Abreu received his residency papers, he traveled to the Dominican

Republic to showcase for MLB scouts. Once there, he met with Hernandez,

Estrada, and others. Hernandez told him that the Chicago White Sox wanted to

sign him, and he had to be in Chicago by a signing deadline. Abreu wanted to

enter the United States without a visa, but he did not mention that to Hernandez or

Estrada because he knew they would disapprove. Instead, Abreu returned to Haiti

and reached out to Latouff. He paid Latouff $15,000 to help him get to Chicago by

the signing deadline. Latouff drove Abreu to the Port-Au-Prince airport, gave him

a Haitian passport containing a false name, and told him to follow a man named

“Roget,” who would guide him through the airport. At the airport, Roget helped


                                         12
             Case: 17-15405    Date Filed: 08/13/2020   Page: 13 of 57



Abreu get through the security checkpoints, and Abreu was able to board a flight to

Miami. After he boarded the flight, he followed Latouff’s instructions to destroy

his passport. He tore off the cover page of his passport and threw away the rest.

He ordered a beer and proceeded to eat the cover page of his passport.

      Abreu landed in Miami and told a Customs and Border Protection (“CBP”)

official that he was “claiming the Cuban Adjustment Act.” Doc. 525 at 51. Once

he was paroled into the United States, he called Estrada, who—along with

Hernandez—accompanied him to Chicago. In Chicago, Abreu signed a contract

with the White Sox for $68 million. Abreu paid Hernandez five percent and

Estrada twenty percent of each installment he received under the contract.

H.    Dalier Hinojosa Enters the United States

      Dalier Hinojosa, a Cuban pitcher, wanted to flee Cuba. Estrada worked with

Tilbert to arrange Hinojosa’s trip to Haiti, which Estrada funded. With Latouff’s

help, Hinojosa received a Haitian passport and succeeded in establishing residency

in Haiti. At one point, Hinojosa traveled from Haiti to the Dominican Republic to

showcase for MLB scouts. In the Dominican Republic, he met with Estrada and

Hernandez and signed contracts with them. He agreed to pay Estrada thirty

percent and Hernandez five percent of his future MLB contract.




                                         13
             Case: 17-15405        Date Filed: 08/13/2020   Page: 14 of 57



      When Estrada visited Hinojosa in Haiti, Hinojosa told Estrada that he did not

want to stay in Haiti any longer. Estrada told Hinojosa to wait until he obtained a

visa to go to the United States.

      Hinojosa did not heed this advice. Instead, he paid smugglers $10,000 to

send his wife and her friend to the United States; he later paid another $5,000 to

the same smugglers so he could enter the United States without a visa. He then

met a friend of Latouff’s at the Haitian airport. The man told Hinojosa to destroy

his Haitian passport on the plane. When Hinojosa landed in Miami, he told a CBP

official that people at his baseball training complex had paid the $5,000 smuggling

fee. In Miami, he stayed at the house of Estrada’s business partner, Yosvannes

Pareda, who was an investor in the smuggling operation.

      Hinojosa signed a $4.25 million contract with the Boston Red Sox and paid

Estrada and Hernandez their percentages from that contract.

                     II.   PROCEDURAL BACKGROUND

A.    Pre-Trial Proceedings

      A federal grand jury in the Southern District of Florida returned a

superseding indictment charging Estrada and Hernandez with: conspiring to

commit offenses against the United States by, among other things, bringing or

attempting to bring noncitizens to the United States for the purpose of commercial

advantage or private financial gain, in violation of 18 U.S.C. § 371 and 8 U.S.C.


                                            14
               Case: 17-15405      Date Filed: 08/13/2020      Page: 15 of 57



§ 1324(a)(2)(B)(ii) (Count 1); and knowingly bringing or attempting to bring

noncitizens to the United States for the purpose of commercial advantage or

private financial gain, knowing or in reckless disregard of the fact that the

noncitizens did not have prior official authorization to come to, enter, or reside in

the United States, in violation of § 1324(a)(2)(B)(ii) (Counts 2, 3, 5, and 6). As to

the substantive smuggling charges in Counts 2, 3, 5, and 6, Hernandez was charged

with the smuggling of Martin (Count 2), and Estrada was charged with the

smuggling of Luis (Count 3), Hinojosa (Count 5), and Abreu (Count 6).6

       Estrada and Hernandez moved to dismiss the indictment. They argued that

the allegations in the indictment, even if proven, would not establish that they

“brought anyone to the United States who could not lawfully enter and reside

here,” Doc. 111 at 2, because the CAA and the Wet-Foot/Dry-Foot policy—which

together permitted Cuban citizens to apply for permanent residency once they

reached United States soil, were paroled into the United States, and were

physically present in the United States for at least two years—provided the Cuban

players with “prior official authorization” to come to, enter, or reside in the United

States. See 8 U.S.C. § 1324(a)(2). Alternatively, they argued that § 1324(a)(2)




       6
         The government also charged Hernandez with the smuggling of Hinojosa (Count 5) and
Abreu (Count 6). Because the court later granted Hernandez’s motion for judgment of acquittal
with respect to these counts, they are not at issue in this appeal, and we do not discuss them
further.
                                              15
             Case: 17-15405     Date Filed: 08/13/2020   Page: 16 of 57



was unconstitutionally vague, in violation of the Fifth Amendment, because it did

not define “prior official authorization.” The court rejected those arguments and

denied the motion to dismiss the indictment based on our decision in United States

v. Dominguez, 661 F.3d 1051, 1070 (11th Cir. 2011), in which we held that the

CAA and the Wet-Foot/Dry-Foot policy did not provide “prior official

authorization” for Cuban citizens to come to, enter, or reside in the United States.

      The government then filed a “Motion to Exclude Argument Related to Wet

Foot/Dry Foot Policy.” Doc. 238 at 1. Citing Dominguez, the government asserted

that the CAA and the Wet-Foot/Dry-Foot policy were irrelevant to whether the

Cuban citizens had prior authorization to enter the United States because the

players still were required to be “admitted or paroled” upon entering the United

States. Id. at 3. The court granted the government’s motion, reiterating what it

concluded in its denial of the motion to dismiss the indictment: that the CAA and

the Wet-Foot/Dry-Foot policy were irrelevant to whether a violation of

§ 1324(a)(2) occurred.

B.    Trial and Sentencing

      Estrada and Hernandez were tried together. The government called

numerous witnesses, including: the baseball players named in the indictment

(Martin, Luis, Hinojosa, and Abreu); Estrada’s and Hernandez’s co-conspirators,

including Reyes, Lazo Jr., and Tilbert; OFAC agent Tim Smith; and State


                                         16
              Case: 17-15405     Date Filed: 08/13/2020    Page: 17 of 57



Department agent Brian Baer. In their case, Estrada and Hernandez called Shapiro

as their main witness. At the close of the government’s case and after the defense

rested, Estrada and Hernandez filed motions for judgment of acquittal on all

counts. The court denied the motions.

      Estrada and Hernandez asked the court to instruct the jury that to find them

guilty of alien smuggling, the government had to prove six elements, including that

“[t]he [players] did not have prior official authorization to come to, enter, or reside

in the United States,” and “[t]he defendant[s] knew or recklessly disregarded that

the [players] did not have prior official authorization.” Doc. 310 at 28–29. The

district court rejected those proposed instructions and instead instructed the jury

that the government had to prove beyond a reasonable doubt that:

      (1)    the [d]efendant knowingly brought or attempted to bring an alien
             to the United States;
      (2)    the [d]efendant knew or was in reckless disregard of the fact that
             the alien had not received prior official authorization to come to,
             enter[,] or reside in the United States; and
      (3)    the [d]efendant acted for the purpose of commercial advantage
             or private financial gain.

Doc. 331 at 24.

      The jury found Estrada guilty on Counts 1, 3, 5, and 6, and Hernandez guilty

on Counts 1 and 2. Estrada and Hernandez renewed their motions for judgment of

acquittal, again arguing that the CAA and the Wet-Foot/Dry-Foot policy gave the


                                          17
                 Case: 17-15405       Date Filed: 08/13/2020      Page: 18 of 57



Cuban players prior official authorization to enter the United States. They also

challenged the court’s jury instructions, arguing that the “prior official

authorization” instruction “misled the jury into believing that it was beyond debate

that Cubans cannot legally enter the United States and cannot legally reside here.”

Doc. 382 at 1–2. They also filed a motion for a new trial, in which they raised

numerous evidentiary arguments. The district court denied their motions.

       The court sentenced Estrada and Hernandez to total terms of 63 months and

46 months in prison, respectively.7 This is their appeal.

                                       III.   ANALYSIS

       The defendants raise three primary arguments on appeal.8 First, they

contend that the district court erred by rejecting their arguments related to the CAA

and the Wet-Foot/Dry-Foot policy. Second, they argue that the evidence was

insufficient to support their convictions. Third, they assert that the court

committed numerous evidentiary errors. We consider each argument in turn.




       7
         While this appeal was pending, Hernandez filed a motion for a reduction in sentence
because he was the only potential caregiver for his 84-year-old mother during the current
pandemic. The court granted Hernandez’s motion and reduced his sentence to time served and
placed him on home confinement until April 2021.
       8
           Estrada and Hernandez have adopted each other’s appellate briefs.
                                                18
             Case: 17-15405     Date Filed: 08/13/2020    Page: 19 of 57



A.    The CAA and the Wet-Foot/Dry-Foot Policy Did Not Provide Prior
      Official Authorization for the Cuban Players to Come to, Enter, or
      Reside in the United States.

      Estrada and Hernandez contend that the district court erred by rejecting their

arguments related to the CAA and the Wet-Foot/Dry-Foot policy, which were

based on the idea that the CAA and the Wet-Foot/Dry-Foot policy provided the

Cuban players with “de facto authorization” to enter the United States. Estrada

Appellant’s Br. at 16–17. Noting that the district court had rejected this argument

as foreclosed by our decision in Dominguez, they contend that Dominguez is

distinguishable legally and factually. And they assert that the court’s purportedly

erroneous conclusion that Dominguez foreclosed their arguments led it to err by

failing to dismiss the superseding indictment, granting the government’s motion in

limine to exclude arguments relating to the CAA and the Wet-Foot/Dry-Foot

policy, and rejecting their proposed “prior official authorization” jury instruction.

In addition, they argue that their convictions should be vacated because

§ 1324(a)(2) is unconstitutionally vague.

      We review for an abuse of discretion the district court’s denial of the

defendants’ motion to dismiss the superseding indictment and its failure to give

requested jury instructions. Davis v. United States, 708 F.3d 1216, 1221 (11th Cir.

2013) (motion to dismiss indictment); United States v. Dohan, 508 F.3d 989, 993

(11th Cir. 2007) (jury instructions). Likewise, we review the court’s grant of the


                                          19
              Case: 17-15405      Date Filed: 08/13/2020      Page: 20 of 57



government’s motion in limine for an abuse of discretion. United States v.

Harrison, 534 F.3d 1371, 1373 (11th Cir. 2008). “A district court abuses its

discretion if it applies an incorrect legal standard, applies the law in an

unreasonable or incorrect manner, follows improper procedures in making a

determination, or makes findings of fact that are clearly erroneous.” United States

v. Green, 873 F.3d 846, 854 (11th Cir. 2017) (internal quotation marks omitted).

       We review de novo the district court’s determination that § 1324(a)(2) is not

unconstitutionally vague. United States v. Fisher, 289 F.3d 1329, 1333 (11th Cir.

2002). The defendants’ vagueness challenge “must be evaluated in the light of the

facts of the case at hand.” Id. (describing the standard for evaluating vagueness

challenges that do not involve First Amendment rights).

       Before addressing the defendants’ individual arguments, we provide some

background on United States immigration policy governing Cuban immigrants at

the time of their convictions. In 1966, Congress enacted the CAA, which

permitted Cuban citizens to apply for permanent residency if they had been

admitted or paroled into the United States and physically present in the United

States for at least two years. Cuban Adjustment Act, Pub. L. No. 89-732, § 1, 80

Stat. 1161 (1966) (codified as amended at 8 U.S.C. § 1255 note)9; see Dominguez,


       9
       The CAA is codified as a historical note to 8 U.S.C. § 1255. The CAA has since been
amended by the Victims of Trafficking and Violence Protection Act, Pub. L. No. 106-386,


                                            20
               Case: 17-15405       Date Filed: 08/13/2020      Page: 21 of 57



661 F.3d at 1079 (Tjoflat, J., concurring in part and dissenting in part) (setting

forth history of the CAA). The CAA was beneficial to Cuban nationals because it

meant that they did not have to prove that they suffered persecution in Cuba to

authorize their presence in the United States. Dominguez, 661 F.3d at 1067

(majority opinion). The Wet-Foot/Dry-Foot policy limited the scope of the CAA.10

Under that policy, only Cuban nationals who had “dry feet”—meaning they had

reached United States soil—could take advantage of the CAA. If a Cuban national

was interdicted at sea (and therefore had “wet feet”), he would be repatriated to

Cuba. See Cuba-United States: Joint Statement on Normalization of Migration, 35

I.L.M. 327, 329 (1996) (stating that “Cuban migrants intercepted at sea by the

United States and attempting to enter the United States will be taken to Cuba”).

       Now, we consider the defendants’ individual arguments related to “prior

official authorization.”




§ 1509, 114 Stat. 1464, 1530–31 (2000), and the Violence Against Women and Department of
Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 823, 119 Stat. 2960, 3063. See Toro
v. Sec’y, U.S. Dep’t of Homeland Sec., 707 F.3d 1224, 1226–27 (11th Cir. 2013) (discussing
amendments to the CAA).
       10
          President Obama ended the Wet-Foot/Dry-Foot policy at the end of his second term.
See Office of the Press Secretary, Statement by the President on Cuban Immigration Policy (Jan.
12, 2017), available at https://obamawhitehouse.archives.gov/the-press-
office/2017/01/12/statement-president-cuban-immigration-policy.
                                              21
             Case: 17-15405      Date Filed: 08/13/2020   Page: 22 of 57



      1.     Dominguez Controls Our Decision.

      We first address the defendants’ argument that Dominguez is inapplicable to

their case. In Dominguez, we discussed the relationship between the CAA, the

Wet-Foot/Dry-Foot policy, and § 1324(a)(2)’s prohibition on smuggling

noncitizens into the United States without their having “prior official

authorization.” See Dominguez, 661 F.3d at 1067–70.

      Gustavo Dominguez was charged with smuggling Cuban baseball players

into the United States, in violation of § 1324(a)(2). Id. at 1059. Before trial, the

government filed a motion in limine to preclude Dominguez from submitting

evidence of the CAA and the Wet-Foot/Dry-Foot policy, arguing that such

evidence was irrelevant to his smuggling conviction. Id. Dominguez responded

that he should be permitted to submit the evidence to the jury, as it was relevant to

his intent to violate § 1324(a)(2). Id. at 1060. He explained that he reasonably had

believed that the CAA and the Wet-Foot/Dry-Foot policy made the Cuban players

eligible to enter the United States. Id. at 1059–60. The court rejected that

argument and granted the government’s motion in limine. Id. at 1060. The court

also denied Dominguez’s motion for a judgment of acquittal based on the CAA

and the Wet-Foot/Dry-Foot policy, again rejecting Dominguez’s argument that the

law and the policy were relevant to his intent. Id. At trial, the court instructed the

jury that to convict Dominguez for smuggling the Cuban players, the government


                                          22
              Case: 17-15405     Date Filed: 08/13/2020   Page: 23 of 57



had to prove that, among other things, he “knew or was in reckless disregard of the

fact that the alien had not received prior official authorization to come to or enter

the United States.” Id. at 1072. The jury found Dominguez guilty. Id. at 1060.

       On appeal, Dominguez challenged the district court’s rejection of his

arguments related to the CAA and the Wet-Foot/Dry-Foot policy. Id. at 1067. We

affirmed Dominguez’s smuggling convictions, concluding that the “CAA and Wet-

Foot/Dry-Foot policy do not provide ‘prior official authorization’ for an

undocumented Cuban to come to the United States.” Id. at 1070. We explained

that the CAA and the Wet-Foot/Dry-Foot policy did not provide “prior official

authorization” because “an undocumented Cuban must still be paroled.” Id. Thus,

we concluded that the CAA and the Wet-Foot/Dry-Foot policy “pertain to ‘official

action which may later be taken with respect to’” the players—not “prior official

authorization” to enter the United States. Id. (emphasis added) (quoting 8 U.S.C.

§ 1324(a)(2)).

      The defendants’ argument that the CAA and the Wet-Foot/Dry-Foot policy

gave the players “prior official authorization” to enter the United States is

foreclosed by Dominguez. We reject their attempts to distinguish Dominguez on

legal and factual grounds. First, Hernandez and Estrada assert that Dominguez is

distinguishable because the primary legal question in that case was whether a

§ 1324(a)(2) violation required specific intent, but the question here is whether the


                                          23
             Case: 17-15405     Date Filed: 08/13/2020   Page: 24 of 57



CAA and the Wet-Foot/Dry-Foot policy provided the Cuban players with “de

facto” prior official authorization. Estrada Appellant’s Br. at 17. We disagree that

Dominguez is distinguishable on that basis. In Dominguez, integral to the

defendant’s specific intent argument was that he could not have violated

§ 1324(a)(2) because he believed that the CAA and the Wet-Foot/Dry-Foot policy

provided prior official authorization; in rejecting that argument, we held that those

provisions did not supply prior authorization. That Estrada and Hernandez have

framed their argument differently than Dominguez by focusing on “de facto”

authorization as opposed to intent to violate § 1324(a)(2) does not make

Dominguez’s prior official authorization holding inapplicable to their case.

      The defendants also argue that Dominguez is factually distinguishable

because the Cuban players in that case entered the United States at a location other

than an official port-of-entry and waited until three months after entry to seek

asylum—unlike the players here, who entered at designated ports-of-entry and

immediately presented themselves for inspection. But Dominguez’s holding was

not limited to cases where noncitizens failed to enter designated ports-of-entry and

immediately present themselves for inspection. Its reasoning applies with equal

force here because when a Cuban citizen enters at designated port-of-entry he still

must be paroled, which is a “process that ‘reclassifies an alien from one who is

illegally remaining in the United States to one who is legally remaining in the


                                         24
              Case: 17-15405     Date Filed: 08/13/2020    Page: 25 of 57



United States regardless of how entry into the United States was effected.’”

Dominguez, 661 F.3d at 1070 (alteration adopted) (quoting United States v.

Medina-Garcia, 918 F.2d 4, 8 (1st Cir. 1990)). Put differently, regardless of

whether a Cuban citizen enters at a designated port-of-entry and presents himself

for inspection, the CAA and the Wet-Foot/Dry-Foot policy provide no “prior

official authorization” because they offer no guarantee that the Cuban citizen will

be paroled into the United States. Thus, we are bound by Dominguez’s conclusion

that the CAA and the Wet-Foot/Dry-Foot policy do not supply “prior official

authorization” for Cuban citizens to enter, come to, or reside in the United States.

See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (stating that,

under the prior panel precedent rule, “a prior panel’s holding is binding on all

subsequent panels unless and until it is overruled or undermined to the point of

abrogation by the Supreme Court or by this court sitting en banc”).

      Having concluded that Dominguez controls this case, we now turn to the

defendants’ challenges to the district court’s specific rulings.

      2.     The Court Did Not Err in Denying the Motion to Dismiss the
             Indictment, Granting the Government’s Motion in Limine, or
             Denying the Proposed Jury Instructions.

      Because we conclude that Dominguez is authoritative on this issue, we may

easily dispose of Estrada’s and Hernandez’s specific challenges to the district

court’s rulings. First, the court did not abuse its discretion or otherwise err in


                                           25
               Case: 17-15405    Date Filed: 08/13/2020   Page: 26 of 57



denying the defendants’ motion to dismiss the superseding indictment because

their argument that the CAA and the Wet-Foot/Dry-Foot policy supplied “prior

official authorization” was foreclosed by Dominguez. See Davis, 708 F.3d at 1221.

Second, the court did not err in granting the government’s motion in limine to

exclude evidence of the CAA and Wet-Foot/Dry-Foot policy because Dominguez

makes this evidence irrelevant to determining their guilt under § 1324(a)(2). See

United States v. Thompson, 25 F.3d 1558, 1563 (11th Cir. 1994) (when a district

court rules on a motion in limine based on a conclusion of law, we review the

court’s legal conclusion de novo).

        Lastly, the court did not abuse its discretion by denying the defendants’

requested “prior official authorization” jury instructions. In determining whether

the court abused its discretion in rejecting the defendants’ proposed instructions,

we consider: (1) whether the requested instructions were substantially correct

statements of the law; (2) whether the jury charge given addressed the requested

instructions; and (3) whether the failure to give the requested instructions seriously

impaired their ability to present an effective defense. Dominguez, 661 F.3d at

1071.

        Even assuming that the defendants’ proposed jury instructions were correct

statements of the law, the court did not abuse its discretion by rejecting them

because the court’s jury charge adequately addressed the requested instructions.


                                          26
              Case: 17-15405     Date Filed: 08/13/2020     Page: 27 of 57



See Dominguez, 661 F.3d at 1072 (rejecting challenge to district court’s denial of

proposed jury instructions where the given instructions “adequately covered” the

defense theory); see also United States v. Takhalov, 827 F.3d 1307, 1316 (11th Cir.

2016) (stating that a district court does not err when it declines to give a defense

instruction that is “substantially covered by a charge actually given” (internal

quotation marks omitted)). As noted above, the court instructed the jury that it

could convict Estrada and Hernandez only if the government proved that they

“knew or [were] in reckless disregard of the fact that the alien had not received

prior official authorization to come to, enter[,] or reside in the United States.”

Doc. 331 at 24. The given jury instruction thus required that, to find a violation of

§ 1324(a)(2), the jury must find that the players had no prior authorization. And

notably, the “prior official authorization” instruction the court gave was nearly

verbatim that given by the district court in Dominguez, which we affirmed on

appeal. Dominguez, 661 F.3d at 1072. The defendants have shown no abuse of

discretion in rejecting their requested jury instruction.

      3.     “Prior Official Authorization” Is Not Unconstitutionally Vague.

      Estrada and Hernandez contend that § 1324(a)(2) is unconstitutionally vague

because it does not define “prior official authorization.” They further argue that,

even if the term “prior official authorization” is “well understood,” the “standards

for determining the existence of this authorization” are unclear. Estrada


                                           27
              Case: 17-15405     Date Filed: 08/13/2020    Page: 28 of 57



Appellant’s Br. at 35 (internal quotation marks omitted). Because the statute is

vague, they argue, we should reverse their convictions.

      The plain meaning of a statute controls our interpretation of that statute

unless the language is ambiguous or would lead to an absurd result. United States

v. Ortega-Torres, 174 F.3d 1199, 1200 (11th Cir. 1999). “A criminal statute is

unconstitutionally vague if it fails to give a person of ordinary intelligence fair

notice that his contemplated conduct is forbidden.” Id. (internal quotation marks

omitted). A statute must “define the criminal offense with sufficient definiteness

that ordinary people can understand what conduct is prohibited and in a manner

that does not encourage arbitrary and discriminatory enforcement.” Kolender v.

Lawson, 461 U.S. 352, 357 (1983). Although the void-for-vagueness doctrine

“focuses both on actual notice to citizens and arbitrary enforcement,” the Supreme

Court has explained that “the more important aspect of vagueness doctrine is not

actual notice, but . . . the requirement that a legislature establish minimal

guidelines to govern law enforcement.” Id. at 357–58 (internal quotation marks

omitted). Where Congress fails to provide “minimal guidelines, a criminal statute

may permit a standardless sweep that allows policemen, prosecutors, and juries to

pursue their personal predilections.” Id. at 358 (alteration adopted) (internal

quotation marks omitted). If there is an interpretation of the statute that makes the

statute constitutional, we accept that interpretation. Skilling v. United States,


                                           28
                Case: 17-15405       Date Filed: 08/13/2020        Page: 29 of 57



561 U.S. 358, 405–06 (2010) (requiring that, “before striking a federal statute as

impermissibly vague, [federal courts] consider whether the prescription is

amenable to a limiting construction”).

       We conclude that § 1324(a)(2) is not unconstitutionally vague. 11 “Prior

official authorization” means permission to come to, enter, or reside in the United

States that an immigrant acquired before actually coming to, entering, or residing

in the United States. See 8 U.S.C. § 1324(a)(2) (criminalizing bringing a

noncitizen to the United States where the noncitizen does not have “prior”

authorization to come to, enter, or reside in the United States, notwithstanding any

“later” official action that authorizes the noncitizen’s presence in the United

States). An ordinary person would understand that “authorization” refers to an

official action taken by the United States government pursuant to federal

immigration law and policy that gives an immigrant permission to be present in the

United States. See Ortega-Torres, 174 F.3d at 1200. For instance, a lawfully-

acquired immigrant visa would provide authorization, for the purposes of

§ 1324(a)(2), to come to, enter, or reside in the United States if the visa was

acquired before the immigrant came to, entered, or resided in the United States.

But even if we could imagine scenarios where it would be difficult to determine


       11
          The defendants have cited no cases addressing whether § 1324(a)(2) is
unconstitutionally vague because it fails to define “prior official authorization,” and we have not
decided the issue.
                                                29
              Case: 17-15405     Date Filed: 08/13/2020    Page: 30 of 57



whether a noncitizen has “prior official authorization,” that alone would not render

the statute impermissibly vague. See United States v. Williams, 553 U.S. 285, 306

(2008) (explaining that a statute is not rendered vague merely because of “the

possibility that it will sometimes be difficult to determine whether the

incriminating fact it establishes has been proved”). In short, we find § 1324(a)(2)

to be sufficiently clear to provide notice to ordinary persons about the conduct that

is prohibited and to guide law enforcement.

B.    The Evidence Was Sufficient to Support the Convictions.

      Estrada and Hernandez next argue that the evidence was insufficient to

support their convictions on the substantive smuggling counts and the conspiracy

count. We see no error.

      We review challenges to the sufficiency of the evidence in criminal cases de

novo, viewing the evidence in the light most favorable to the government. United

States v. Robertson, 493 F.3d 1322, 1329 (11th Cir. 2007). “[E]vidence is

sufficient to support a conviction if a reasonable trier of fact could find that the

evidence established guilt beyond a reasonable doubt.” United States v. Williams,

527 F.3d 1235, 1244 (11th Cir. 2008) (internal quotation marks omitted). “We

assume 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.

“[P]ut[ting] forth a reasonable hypothesis of innocence” is not enough to show that


                                           30
              Case: 17-15405     Date Filed: 08/13/2020    Page: 31 of 57



the evidence was insufficient “because the issue is not whether a jury reasonably

could have acquitted but whether it reasonably could have found guilt beyond a

reasonable doubt.” United States v. Campo, 840 F.3d 1249, 1258 (11th Cir. 2016)

(internal quotation marks omitted).

      1.     The Government Presented Sufficient Evidence to Establish that
             Estrada and Hernandez Aided and Abetted the Smuggling of
             Cuban Players into the United States.

      Estrada and Hernandez first argue that judgments of acquittal should have

been entered on the substantive smuggling counts because the government failed to

prove that they “brought,” or aided and abetted in bringing, Cuban players to the

United States.

      To prove a violation of § 1324(a)(2), the government was required to

demonstrate, in part, that Estrada and Hernandez brought or attempted to bring the

Cuban players to the United States. See Dominguez, 661 F.3d at 1063–64; see also

8 U.S.C. § 1324(a)(2) (punishing “[a]ny person who, knowing or in reckless

disregard of the fact that an alien has not received prior official authorization to

come to, enter, or reside in the United States, brings to or attempts to bring to the

United States . . . such alien” (emphasis added)). A conviction under § 1324(a) can

be sustained on an aiding-and-abetting theory. See Dominguez, 661 F.3d at 1065;

see also 18 U.S.C. § 2(a) (“Whoever commits an offense against the United States

or aids, abets, counsels, commands, induces[,] or procures its commission, is


                                           31
              Case: 17-15405     Date Filed: 08/13/2020     Page: 32 of 57



punishable as a principal.”). To prove a substantive smuggling offense under the

theory of aiding and abetting, under 18 U.S.C. § 2 “the evidence must establish

that (1) the substantive offense was committed by someone; (2) the defendant

committed an act which contributed to and furthered the offense; and (3) the

defendant intended to aid in its commission.” Dominguez, 661 F.3d at 1065

(internal quotation marks omitted).

      The evidence presented at trial was sufficient to prove that Estrada and

Hernandez aided and abetted in bringing Cuban players to the United States. See

id. As to Estrada, a reasonable jury could have found that the evidence established

beyond a reasonable doubt that he aided and abetted in bringing Luis, Abreu, and

Hinojosa to the United States. The government presented evidence that showed

that Estrada played a significant role in facilitating the players’ entries into the

United States. See Williams, 527 F.3d at 1244. First, the evidence showed that

Estrada made “every effort” to ensure that Luis made it to the United States-

Mexico border. Doc. 523 at 116. Specifically, Estrada worked with Tilbert to

secure Luis’s passage and paid Tilbert’s immigration contact; paid for Luis’s plane

ticket from Panama to Reynosa, Mexico and accompanied him on the flight; and

crossed the border shortly after Luis and waited for him on the Texas side of the

border. By organizing Luis’s passage to the United States and funding his journey,

Estrada “contributed to and furthered” Luis’s border crossing. See Dominguez,


                                           32
             Case: 17-15405    Date Filed: 08/13/2020   Page: 33 of 57



661 F.3d at 1065 (evidence that Dominguez financed the smuggling operation

showed that he “contributed to and furthered” that operation, which amounted to

aiding and abetting in the smuggling); 18 U.S.C. § 2; see also United States v.

Lopez, 484 F.3d 1186, 1199 (9th Cir. 2007) (en banc) (concluding that “[a]

financier who organizes and funds a smuggling operation, . . . whether located in

or outside of the United States, may be said to have associated himself with the

venture, participated in it as in something he wished to bring about, and sought by

his action to make it succeed” (alterations adopted) (internal quotation marks

omitted)).

      Similarly, Estrada aided and abetted in bringing Hinojosa and Abreu to the

United States because he “contributed to and furthered” their moves from Cuba to

Haiti and, eventually, the United States. See 8 U.S.C. § 2; Dominguez, 661 F.3d at

1065. As with Luis, the evidence shows that Estrada financed these players’

journeys from Cuba to Haiti. Dominguez, 661 F.3d at 1065. Then, in Haiti,

Hinojosa and Abreu were put in touch with Estrada’s contact, Latouff. Latouff

brought Hinojosa and Abreu to the airport to meet his associate, who then guided

them through the airport checkpoints so that they could board a plane to the United

States. Both men successfully boarded the plane and made it to the United




                                         33
                Case: 17-15405      Date Filed: 08/13/2020       Page: 34 of 57



States.12 See United States v. Hill, 939 F.2d 934, 937 (11th Cir. 1991) (noting that

an international airport is an example of a place that is the “functional equivalent”

of a border).

       We conclude that this evidence sufficed to establish beyond a reasonable

doubt that Estrada aided and abetted in bringing Luis, Hinojosa, and Abreu to the

United States. See Campo, 840 F.3d at 1258.

       We also conclude that the evidence supported Hernandez’s conviction for

aiding and abetting the smuggling of Martin into the United States. Robertson,

493 F.3d at 1329. As Estrada did with Luis, Abreu, and Hinojosa, Hernandez

played a critical role with Martin. The record shows that Hernandez traveled to

Guatemala to secure a passport for Martin, which Martin needed to apply for a

visa. Hernandez also contacted MLB to determine whether it would honor

Martin’s contract if he crossed into the United States without a visa. Then,

Martinez took Martin to the border, and they crossed separately. At trial, Martin

testified that he crossed the border based on Hernandez’s assurance that MLB

would honor his contract. Hernandez contests this fact on appeal, pointing to

phone records suggesting that Martin crossed the border before Hernandez assured

him that MLB would honor his contract and contradictory testimony by Martin that



       12
          Notably, Estrada does not challenge the government’s assertion that the Port-au-Prince
airport was the functional equivalent of a border.
                                               34
             Case: 17-15405     Date Filed: 08/13/2020   Page: 35 of 57



he never talked to Hernandez “about talking to someone at [MLB].” Doc. 519 at

111. But at this stage, we must make all reasonable inferences in favor of the

jury’s verdict. Williams, 527 F.3d at 1244. We must assume that the jury found

credible Martin’s testimony that he decided to cross into the United States upon

Hernandez’s assurances. A reasonable jury could find beyond a reasonable doubt

that Hernandez aided and abetted in smuggling Martin into the United States. The

evidence therefore was sufficient.

      The defendants argue that the government failed to establish the “brings to”

element of § 1324(a)(2) because there was no evidence that they, or another co-

conspirator, physically accompanied the players across the border. They point to

cases from other circuits to support this argument. They cite United States v.

Garcia-Paulin, 627 F.3d 127 (5th Cir. 2010), in which the Fifth Circuit reversed

the defendant’s conviction for bringing a noncitizen to the United States where the

evidence showed only that the defendant had procured a fraudulent passport stamp

for a noncitizen and explained to the noncitizen that the passport would allow him

to work in the United States. Id. at 130, 133. The Fifth Circuit concluded that the

evidence was insufficient to establish a “brings to” offense because it did not show

that the defendant played an active role in smuggling the noncitizen into the United

States by either accompanying the noncitizen or directing someone “to help the

noncitizen cross” the border. Id. at 133.


                                            35
             Case: 17-15405        Date Filed: 08/13/2020   Page: 36 of 57



      The defendants also rely on United States v. Assadi, 223 F. Supp. 2d 208

(D.D.C. 2002), in which the United States District Court for the District of

Columbia entered a judgment of acquittal on the defendant’s § 1324(a)(2)

conviction for bringing noncitizens to the United States because the evidence

showed only that the defendant “encourage[ed]” the noncitizens to enter the United

States illegally. Id. at 209–10. In that case, the defendant procured fraudulent

passports for noncitizens, bought them airline tickets, took them to the airport, and

instructed them to lie to immigration officials, but he did not accompany them on

their flights or arrange to have someone meet them in the United States. Id. at 211.

The court concluded that a “brings to” conviction requires evidence that the

defendant “not only help[ed], but also accompan[ied] aliens, or le[d] them, or me[t]

them at the border.” Id. at 210.

      We reject the defendants’ contention that this case is like Garcia-Paulin and

Assadi, where the evidence was insufficient to establish a “brings to” offense

because it did not show that the defendants or someone they directed physically

accompanied the players across the border. Evidence of physical accompaniment

across the border was not necessary to sustain the defendants’ aiding-and-abetting

convictions. See Lopez, 484 F.3d at 1199 (“It is clear that under certain

circumstances a defendant who does not physically transport aliens across the

border may be held criminally liable for aiding and abetting a ‘brings to’


                                            36
             Case: 17-15405     Date Filed: 08/13/2020    Page: 37 of 57



offense.”). Rather, it was enough that the defendants and other members of the

smuggling operation made all the arrangements for the players’ border crossings:

either Estrada or another co-conspirator physically accompanied the players “to”

the border, and shortly after the players crossed into the United States, someone

involved in the smuggling operation met and directed them how to proceed.

8 U.S.C. § 1324(a)(2).

      Relatedly, the defendants point to Lopez, in which the Ninth Circuit, sitting

en banc, concluded that the evidence—which showed that the defendant only

spoke to the smuggler about where to pick up noncitizens on the United States side

of the border—was insufficient to prove that the defendant aided and abetted a

“brings to” offense because it did not show that the defendant “knowingly and

intentionally commanded, counseled, or encouraged the [smuggler] to commit the

‘brings to’ offense.” 484 F.3d at 1201. But here, in contrast to Lopez, the evidence

showed that Estrada and Hernandez played an active role in the smuggling

operation by involving themselves in nearly every aspect of the scheme—from the

initial meetings, to finances, to logistics. They directed the players what to do and

say in the border crossings. Estrada and Hernandez were intimately involved in

arranging not only the events leading up to the border crossings, but also the

aftermath of each crossing. The defendants cannot avoid conviction because their

smuggling operation was more sophisticated and meticulously planned and


                                         37
               Case: 17-15405        Date Filed: 08/13/2020        Page: 38 of 57



executed than some. We therefore conclude that the evidence was sufficient to

prove the defendants’ substantive smuggling convictions. 13

       2.      The Government Presented Sufficient Evidence to Establish that
               Estrada and Hernandez Conspired to Smuggle Cuban Players
               into the United States.

       The defendants next argue that the evidence was insufficient to establish that

they conspired to commit an offense against the United States, in violation of

§ 371. We are unconvinced.

       To establish a conspiracy under § 371, “the Government must prove (1) that

an agreement existed between two or more persons to commit a crime; (2) that the

defendant knowingly and voluntarily joined or participated in the conspiracy; and

(3) that a conspirator performed an overt act in furtherance of the agreement.”

United States v. Ndiaye, 434 F.3d 1270, 1294 (11th Cir. 2006). The crime of



       13
          The defendants briefly argue that, even if the evidence showed that they aided and
abetted in bringing the players to the United States, the government failed to prove that they did
so for a commercial advantage or a private financial gain. See 8 U.S.C. § 1324(a)(2)(B)(ii)
(criminalizing bringing noncitizens in the United States “for the purpose of commercial
advantage or private financial gain”). We disagree; the record is replete with evidence that the
entire smuggling operation was planned and conducted for the co-conspirators’ financial gain.
Indeed, Estrada and Hernandez did not just finance and arrange for any Cuban citizen to be
brought to the United States. Rather, under the scheme, the defendants identified and recruited
talented Cuban players, then helped the players set up residency and obtain false documents in
other countries so that the players could acquire OFAC licenses and visas, which would allow
them to enter lucrative free agent contracts with MLB. Estrada and Hernandez then took
significant cuts of those contracts. The evidence easily supports the jury’s verdict that Estrada
and Hernandez smuggled noncitizens into the United States for a commercial advantage or
financial gain.



                                                38
             Case: 17-15405     Date Filed: 08/13/2020    Page: 39 of 57



conspiracy is complete upon the commission of an overt act. See United States v.

Arias, 431 F.3d 1327, 1340 n.18 (11th Cir. 2005). The existence of a

conspiratorial agreement may be proved by “inferences from the conduct of the

alleged participants or from circumstantial evidence of a scheme.” United States v.

Mateos, 623 F.3d 1350, 1362 (11th Cir. 2010) (internal quotation marks omitted).

Further, “[a] conspiracy conviction will be upheld if the circumstances surrounding

a person’s presence at the scene of conspiratorial activity are so obvious that

knowledge of its character can fairly be attributed to him.” United States v. Azmat,

805 F.3d 1018, 1035 (11th Cir. 2015) (internal quotation marks omitted).

      We conclude that the government presented sufficient evidence to prove that

Estrada and Hernandez conspired, in violation of § 371, to bring Cuban baseball

players into the United States in violation of § 1324(a)(2). See Robertson,

493 F.3d at 1329. As we have discussed, the evidence showed that: Estrada and

Hernandez identified talented Cuban baseball players and partnered with a criminal

smuggling organization to smuggle those players into the United States; Estrada

either paid for the players’ travel expenses or connected them with a contact who

would plan and finance their trips from Cuba to the United States border; the

smuggling operation paid immigration officials to procure fraudulent residency

documents, which Hernandez used to obtain unblocking licenses and visas;

Estrada, Hernandez, and other co-conspirators met with the players once they


                                          39
               Case: 17-15405       Date Filed: 08/13/2020       Page: 40 of 57



crossed the border and assisted them with MLB negotiations; and Estrada and

Hernandez signed contracts with the players obligating them to pay a percentage of

their baseball earnings. The totality of the circumstantial evidence thus supported

the jury’s conclusion that Estrada and Hernandez knowingly and voluntarily

participated in a conspiracy to smuggle Cuban players into the United States. See

Ndiaye, 434 F.3d at 1294; see also Dominguez, F.3d 661 at 1064 (evidence

showing that Dominguez partnered with an associate to form the smuggling

operation, funded the operation, and entered contracts obligating players—who

were brought to the United States by boat—to pay a percentage of their baseball

earnings was sufficient circumstantial evidence to prove a conspiracy to violate

§ 1324(a)(2)). 14

C.     The District Court Committed No Abuse of Discretion in the
       Challenged Evidentiary Rulings.

       Lastly, Estrada and Hernandez raise numerous evidentiary challenges,

including that the court erred by: (1) admitting lay opinion testimony of Smith and

Baer; (2) restricting the admission of evidence that would show that Hernandez


       14
          The indictment also charged that the defendants conspired to (1) knowingly and
willfully make a false and material statement; (2) knowingly make use of a false writing; and
(3) knowingly possess, use, or obtain a visa that was procured by fraud. Because the evidence
was sufficient to establish the smuggling conspiracy object, we need not consider whether the
evidence proved the other conspiracy objects charged in the indictment. See United States v.
Medina, 485 F.3d 1291, 1302 (11th Cir. 2007) (explaining that we will uphold a conviction for a
multi-object conspiracy when there is sufficient evidence to support a conviction for one of the
objects).

                                               40
              Case: 17-15405     Date Filed: 08/13/2020   Page: 41 of 57



acted in good faith in preparing OFAC and visa applications; (3) admitting

evidence of uncharged violence and extortion; (4) admitting impermissible hearsay

testimony by Lazo Jr.; and (5) excluding evidence proving that Reyes committed

perjury. They argue that the cumulative effect of the evidentiary errors compels

the reversal of their convictions.

      We review the district court’s evidentiary rulings for an abuse of discretion.

United States v. Barsoum, 763 F.3d 1321, 1338 (11th Cir. 2014). We review de

novo the district court’s interpretation of the Federal Rules of Evidence. See

United States v. Paul, 175 F.3d 906, 909 (11th Cir. 1999). We address each

evidentiary argument below.

      1.     The District Court Did Not Abuse Its Discretion by Admitting
             Lay Opinion Testimony.

      Estrada and Hernandez first argue that the court abused its discretion by

permitting Smith and Baer to testify about government policy related to unblocking

licenses and visa applications, respectively. They argue that neither Smith nor

Baer had personal knowledge of the players’ unblocking and visa applications.

Because Smith and Baer were not qualified as experts, Estrada and Hernandez

assert, their testimony was inadmissible lay opinion testimony.

      Under Federal Rule of Evidence 701, a lay witness may offer opinion

testimony if the testimony is “(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a
                                          41
              Case: 17-15405     Date Filed: 08/13/2020    Page: 42 of 57



fact in issue; and (c) not based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.” Fed. R. Evid. 701. “Notably, Rule 701

does not prohibit lay witnesses from testifying based on particularized knowledge

gained from their own personal experiences.” United States v. Jeri, 869 F.3d 1247,

1265 (11th Cir. 2017) (internal quotation marks omitted).

      Here, the district court did not abuse its discretion in admitting Smith’s and

Baer’s testimony. See Barsoum, 763 F.3d at 1338. Before trial, Estrada and

Hernandez moved to exclude their testimony because the two witnesses were not

qualified as experts. The district court denied the motions, concluding that Smith

and Baer could present lay opinion testimony about the unblocking and visa

applications as long as their testimony was limited to “the policies and practices of

their employers.” Doc. 246 at 2. At trial, Smith—a senior enforcement officer at

OFAC—testified that he had worked at OFAC for 19 years and explained OFAC’s

licensing process. He further explained that OFAC took misrepresentations in

unblocking applications “very seriously.” Doc. 511 at 170. Baer testified that he

had worked as a special agent at the State Department since 2004 and, in that role,

investigated visa and passport fraud. He explained that Cuban nationals were

required to have authorizing documents, like a visa, to enter the United States. He

further explained the role of residency and employment in the visa review process,

the type of conduct that could render someone ineligible for a visa, and the effect


                                           42
              Case: 17-15405     Date Filed: 08/13/2020    Page: 43 of 57



of false information on a visa application. Neither Smith nor Baer reviewed the

players’ unblocking and visa applications at the time they were submitted; rather,

they reviewed them as part of the government’s investigation into this case.

      The court did not abuse its discretion by allowing Smith and Baer to testify

about their work because their testimony was rationally based on their perceptions

as longtime OFAC and State Department employees. See Jeri, 869 F.3d at 1265;

see also Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d

1213, 1223 (11th Cir. 2003) (holding that the district court did not abuse its

discretion in admitting lay testimony of repair company employees based on their

“particularized knowledge garnered from years of experience within the field”). It

does not matter that Smith and Baer were not involved in the players’ unblocking

and visa applications at issue here; they reviewed the documents in preparation for

trial and were permitted to give their impressions of those documents based on

their experience in their fields. See United States v. Jayyousi, 657 F.3d 1085, 1102

(11th Cir. 2011) (“We have allowed a lay witness to base his opinion testimony on

his examination of documents even when the witness was not involved in the

activity . . . .”). And their testimony was helpful to the finder of fact because it

explained the process for reviewing and granting unblocking licenses and visas and

emphasized the importance of the residency requirements. See Fed. R. Evid.

701(b).


                                           43
             Case: 17-15405     Date Filed: 08/13/2020   Page: 44 of 57



      Lastly, their testimony was not based on technical or specialized knowledge

within the scope of Rule 702. See id. 701(c). The court limited Smith and Baer to

testifying about “the policies and practices of their employers.” Doc. 246 at 2.

The Advisory Committee notes for Rule 701 explain that such testimony is

admissible lay opinion testimony because it is “admitted not because of

experience, training[,] or specialized knowledge within the realm of an expert, but

because of the particularized knowledge that the witness has by virtue of his or her

position in the business.” Fed. R. Evid. 701, advisory committee’s note to 2000

amendment (discussing as an example the testimony of business owners or

officers); see Jayyousi, 657 F.3d at 1104 (concluding that testimony by an FBI

agent was lay opinion testimony under Rule 701(c) because his testimony was

based on his personal work experience and limited to what he learned by

investigating the defendants). We thus conclude that the district court did not

abuse its discretion in admitting Smith’s and Baer’s lay opinion testimony.

      2.     The District Court Did Not Abuse Its Discretion by Excluding
             Evidence Offered to Rebut Lay Opinion Testimony and Establish
             a Good Faith Defense.

      Estrada and Hernandez next contend that the court abused its discretion by

limiting their ability to rebut Smith’s and Baer’s lay opinion testimony and

establish that they acted in good faith to comply with OFAC regulations. In

particular, they argue that the court improperly prevented (1) Shapiro from


                                         44
             Case: 17-15405     Date Filed: 08/13/2020    Page: 45 of 57



testifying about changes to OFAC regulations and Hernandez’s “good faith

effort[]” to comply with those regulations, and (2) the defense from submitting

evidence of other baseball players who waited for their OFAC licenses and visas

before entering the United States—evidence that the defendants contend would

have shown their good-faith compliance with the regulations.

      At trial, the defendants sought to introduce evidence that Shapiro had

studied OFAC regulations and that “OFAC filings” were “within his experience as

an attorney.” Doc. 529 at 48. They also sought to introduce evidence that some

baseball players (none of whom were identified in Estrada’s and Hernandez’s

indictments) waited for their visas and unblocking licenses before crossing into the

United States. The district court determined that this evidence was inadmissible.

The court prevented Shapiro from testifying about advice that he gave to his clients

regarding OFAC regulations or his understanding of those regulations. The court

explained that such testimony would be improper because “Mr. Shapiro is a

lawyer[,] [h]e is not an agent[,] [and] [h]e does not work for OFAC or the

Government.” Id. at 51. And the court determined that the evidence that related to

other baseball players had little probative value, as they obtained their licenses and

visas and entered the United States after the defendants learned of the federal

investigation into the smuggling scheme.




                                          45
             Case: 17-15405     Date Filed: 08/13/2020    Page: 46 of 57



      Following the jury’s verdict, the court denied the defendants’ post-trial

challenges to its evidentiary rulings. The court explained that Shapiro’s proposed

testimony would have confused the jury “by giving the impression that Hernandez

acted on the advice of Shapiro’s legal counsel—a defense that Hernandez in

numerous pretrial hearings unequivocally stated that he was not pursuing.” Doc.

452 at 25. It further explained that it excluded the evidence related to the other

baseball players because it was irrelevant to the criminal prosecution.

      Here, the court did not abuse its discretion in limiting Shapiro’s testimony

and preventing the defendants from presenting evidence about baseball players

who waited to cross into the United States until they obtained their licenses and

visas. See Barsoum, 763 F.3d at 1338. First, Shapiro was not qualified as an

expert, and the defendants did not show that he had practical knowledge or

experience—similar to Smith’s and Baer’s—that would permit him to give lay

opinion testimony about OFAC policy. See Fed. R. Evid. 701. Even if, as the

defendants argue, evidence that Shapiro attempted to comply with OFAC

regulations might have been minimally relevant to negate their willfulness to

violate the law, the court was permitted to exclude the evidence on the ground that

its potential for confusing the jury substantially outweighed any probative value.

See Fed. R. Evid. 403 (allowing the exclusion of relevant evidence where its

probative value is substantially outweighed by the risk of “confusing the issues”).


                                          46
                Case: 17-15405        Date Filed: 08/13/2020       Page: 47 of 57



And it appears that Shapiro’s evidence would have been particularly confusing

given that the defendants—throughout the trial—never pursued the theory that they

acted on Shapiro’s advice in submitting documents with false information to

OFAC and the State Department. Thus, the court’s conclusion that such evidence

was inadmissible was well within its discretion.15

       The court also did not abuse its discretion in excluding evidence about the

other baseball players. Those players—who were not identified in the

indictment—entered the United States only after the federal government initiated

its investigation into the smuggling operation. Under our precedent, this evidence

could not negate the defendants’ criminal intent to violate the law. See United

States v. Russell, 703 F.2d 1243, 1249 (11th Cir. 1983) (determining that

noncriminal conduct introduced to “negate the inference of criminal conduct is

generally irrelevant” (internal quotation marks omitted)).


       15
           For the same reasons, the court did not abuse its discretion by rejecting the defendants’
proposed good-faith jury instruction, as the defendants now argue. Dohan, 508 F.3d at 993. In
the district court, the defendants argued that they relied on Shapiro’s representations in
submitting the unblocking and visa applications and requested that the court instruct the jury that
“[w]illfulness [to violate the law] may be negated by a good-faith misunderstanding of law, or a
good-faith belief that one is not violating the law.” Doc. 310 at 34. The court rejected that
instruction, concluding that it would unnecessarily confuse the jury because the defendants had
not presented that defense theory at trial. Instead, the court instructed the jury that “[t]he word
‘willfully’ means the act was committed voluntarily and purposely, with the intent to do
something that the law forbids; that is, with the bad purpose to disobey or disregard the law.”
Doc. 331 at 26. This was not an abuse of discretion. The proposed good-faith instruction would
have made little sense in the context of the trial as a whole. Moreover, the given instruction
explained that the defendants’ violation of the law must have been willful; implicit in that
instruction is that the defendants could not be found guilty if they misunderstood or believed
they were not violating the law.
                                                 47
              Case: 17-15405     Date Filed: 08/13/2020    Page: 48 of 57



      3.     The District Court Did Not Abuse Its Discretion by Admitting
             Evidence of Uncharged Violence and Extortion.

      Next the defendants argue that the court abused its discretion by admitting

prejudicial evidence of uncharged violence or extortion inflicted on nonplayers or

their families by third parties. We reject this argument as well.

      Rule 404(b) provides that evidence of other crimes, wrongs, or acts is

inadmissible “to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” Fed. R. Evid.

404(b)(1). However, such evidence “may be admissible for another purpose, such

as proving motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). Evidence

extrinsic to the charged crimes is admissible only if it is relevant to an issue other

than the defendant’s character and its probative value is not substantially

outweighed by a risk of undue prejudice. United States v. Foster, 889 F.2d 1049,

1054 (11th Cir. 1989).

      By contrast, evidence of criminal activity is intrinsic and falls outside the

prohibitions of Rule 404(b) when it is “(1) an uncharged offense which arose out

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

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

with the evidence regarding the charged offense.” United States v. Edouard,

485 F.3d 1324, 1344 (11th Cir. 2007) (internal quotation marks omitted).
                                          48
             Case: 17-15405     Date Filed: 08/13/2020    Page: 49 of 57



Evidence is inextricably intertwined with the evidence regarding the charged

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

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

Foster, 889 F.2d at 1053 (internal quotation marks omitted). Such evidence must

still satisfy the requirements of Rule 403—that is, the probative value of the

evidence must not be substantially outweighed by a danger of unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence. Edouard, 485 F.3d at 1344; Fed. R. Evid. 403.

      Here, the superseding indictment did not expressly mention any use of

violence or extortion in furtherance of the conspiracy. In its “Notice of Intent to

Introduce Evidence,” however, the government indicated that it would present

evidence showing that Estrada and Hernandez placed players and their family

members in direct harm of violence and financed a violent smuggling organization.

Such evidence, the government argued, was admissible because it pertained to acts

that were part of the conspiracy.

      Before trial, Estrada and Hernandez filed two motions in limine to exclude

evidence of violence, threats of violence, and non-baseball player smuggling.

They argued that evidence of violence and extortion third parties committed

toward non-players or their families was inadmissible under Rule 404(b).

Additionally, they argued that the evidence was not part of the conspiracy charged


                                          49
               Case: 17-15405        Date Filed: 08/13/2020       Page: 50 of 57



in the indictment, nor was it inextricably intertwined with the charged conspiracy.

Finally, they argued that the danger of unfair prejudice outweighed any probative

value that the evidence might have.

       At a preliminary hearing, the court addressed the motions in limine. The

court instructed that the government should present evidence “in terms of what was

observed and what is germane to this case.” Doc. 498 at 23. The court denied the

motions in limine but required that the government inform the court before

presenting evidence of non-baseball player violence or extortion at trial.

       At the trial, government witnesses highlighted numerous instances of

violence and extortion. 16 At the end of the trial, the court instructed the jury that

“merely associating with certain people, even unsavory characters, and discussing

common goals and interests does not establish proof of a conspiracy.” Doc. 331 at

18.




       16
           The government presented the following evidence of violence and extortion: The wife
of one player testified that her husband’s handler threatened to “chop[] [her husband] in pieces,”
Doc. 516 at 87; Jorge Padron, a baseball player from Cuba who was smuggled into the United
States, testified that Nacho was assaulted and kidnapped; Padron testified that the smuggling
organization smuggled non-player Cuban migrants to Mexico and had to pay another criminal
organization a piso for each migrant; a non-player who paid the smuggling organization to
smuggle her out of Cuba testified that she was not allowed to leave Mexico until her relative paid
$10,000 to the other criminal organization; Tilbert testified that non-players who failed to pay
the $10,000 fee were beaten; Reyes testified that Nacho had threatened to beat up a Cuban player
unless he made a $50,000 ransom payment; and Martin testified that his handler once said that
“bad things could happen” if he got upset, Doc. 519 at 62.

                                               50
             Case: 17-15405     Date Filed: 08/13/2020   Page: 51 of 57



      The court did not abuse its discretion by admitting the evidence. See

Barsoum, 763 F.3d at 1338. The evidence was not impermissible bad acts

evidence under Rule 404(b); rather, it was intrinsic evidence necessary to complete

the story of the crimes and integral to the charged conspiracy. See Edouard,

485 F.3d at 1344; Foster, 889 F.2d at 1053. Specifically, the evidence related to

Nacho, his criminal organization, and the piso the smugglers were required to pay

to move Cuban players and their families first to Mexico and then to the United

States. As the defendants’ smuggling operation relied on Nacho’s organization to

move players into third countries, the evidence of violence and extortion helped

explain the operation’s methods. And although some of the evidence—such as

testimony by a player’s wife that a handler threatened to chop her husband into

pieces—had the potential to elicit an emotional response from the jury, the district

court reasonably concluded that the probative value of the evidence outweighed its

potential prejudicial effect. See Fed. R. Evid. 403, advisory committee’s note to

1972 proposed rule (explaining that “unfair prejudice” is “an undue tendency to

suggest decision on an improper basis, commonly, though not necessarily, an

emotional one”). The evidence was essential to illustrate how the smuggling

operation partnered with a criminal organization in Mexico to smuggle Cuban

players into the United States. In any event, any prejudicial effect was addressed

by the court’s curative instruction to the jury, which explained that the defendants’


                                         51
             Case: 17-15405     Date Filed: 08/13/2020   Page: 52 of 57



association with unsavory characters was not enough to prove their guilt. See

United States v. Simon, 964 F.2d 1082, 1087 (11th Cir. 1992) (“[A] prejudicial

remark may be rendered harmless by curative instructions to the jury.” (internal

quotation marks omitted)). And so we conclude that the district court did not

abuse its discretion in admitting the evidence of violence and extortion.

      4.     The District Court Did Not Abuse Its Discretion by Admitting
             Lazo Jr.’s Testimony About Statements Made by Lazo Sr.

      Estrada and Hernandez next argue that the district court abused its discretion

by admitting statements purportedly made by Lazo Sr. through the testimony of

Lazo Jr. under the co-conspirator exception to the rule against hearsay. This

argument, too, must fail.

      Although hearsay generally is not admissible, out-of-court statements made

by co-conspirators may be offered for the truth of the matter asserted. Fed. R.

Evid. 801(d)(2)(E). Before a co-conspirator’s hearsay statement may be admitted,

the government must prove by a preponderance of the evidence that: a conspiracy

existed, the conspiracy included the declarant and the defendant against whom the

statement is offered, and the declarant made the statement during the course of and

in furtherance of the conspiracy. United States v. Christopher, 923 F.2d 1545,

1549–50 (11th Cir. 1991). We apply a “liberal standard in determining whether a

statement is made in furtherance of a conspiracy.” United States v. Santiago,

837 F.2d 1545, 1549 (11th Cir. 1988).

                                         52
             Case: 17-15405    Date Filed: 08/13/2020   Page: 53 of 57



      At trial, the government called Lazo Jr. Before he took the stand, the

defense expressed concern that he would testify about a phone conversation

between Lazo Sr., Hernandez, and Martin, as well as conversations he had with

Lazo Sr. about the smuggling operation. Such evidence, the defense argued, was

impermissible hearsay. The court permitted Lazo Jr. to testify about the phone call

as long as his testimony was limited to “who was on the phone [and] the subject

[of the phone call].” Doc. 521 at 67. The court also determined that Lazo Jr. could

testify about his conversations with Lazo Sr. because there was no “question Lazo

[Sr.] was a member of the conspiracy.” Id. at 85.

      Lazo Jr. testified that he remembered his father having a phone conversation

with Hernandez and Martin about Martin’s desire to enter the United States

without waiting for his visa. Lazo Jr. heard Hernandez promise to contact MLB

and, later, he observed Hernandez call the men back to say that it would not be a

problem if Martin crossed the border without a visa.

      Lazo Jr. further testified that Lazo Sr. would discuss the business with him

so he could “learn” and “later on become involved in the business.” Doc. 521 at

87. He had conversations with his father about compensation, the ball players, and

the members of the conspiracy and their jobs. After Lazo Sr. was arrested, Lazo Jr.

took a much more active role in Estrellas del Beisbol; for example, he and




                                        53
               Case: 17-15405       Date Filed: 08/13/2020       Page: 54 of 57



Hernandez worked together to pay off immigration officials and secure fake jobs

for the players to aid in the smuggling operation.

       Here, the district court did not abuse its discretion by admitting Lazo Jr.’s

testimony about the conversation between Lazo Sr., Hernandez, and Martin and his

conversations with Lazo Sr. about the organization. See Barsoum, 763 F.3d at

1338. The testimony was not impermissible hearsay because the declarant, Lazo

Sr., was a member of the smuggling conspiracy, and his statements explaining the

operation to Lazo Jr. and discussing Martin’s MLB contract were made in

furtherance of the conspiracy. See Fed. R. Evid. 801(d)(2)(E).17

       5.     The District Court Did Not Abuse Its Discretion by Excluding
              Impeachment Evidence of Reyes’s Perjury.

       Lastly, Estrada and Hernandez contend that the district court improperly

denied their motion to strike Reyes’s testimony and prevented them from

presenting evidence that Reyes committed perjury and was coached by the

prosecution. Once again, we are unpersuaded.

       At trial, the government called Reyes, who initially testified that Estrada

accompanied him to Cancun in April 2009. When Reyes was recalled to the


       17
          The defendants also argue that Lazo Jr.’s testimony was inadmissible because he was
unable to recall some dates and names. But his inability to remember facts and details is the
proper subject of cross examination and goes to his credibility, not the admissibility of his
testimony. Such credibility determinations are the province of the jury, not the court. See
United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997) (stating that “credibility
determinations are the exclusive province of the jury” (alteration adopted) (internal quotation
marks omitted)).
                                               54
               Case: 17-15405       Date Filed: 08/13/2020      Page: 55 of 57



witness stand the next day, he asked to “go back on [the] topic” of the Cancun trip.

Doc. 518 at 4. He then testified that he had “spent the entire night going over

everything that happened to [him]” and, upon reflection, he realized that Estrada

was not present during the April trip to Cancun. Id. at 5. Reyes testified that he

had not discussed his testimony with anyone after he left the courtroom the

previous day.

       Estrada and Hernandez moved for a mistrial based on Reyes’s inconsistent

testimony. The court asked the government if it had contacted Reyes about his

testimony the previous evening, and the government responded that it had not. The

court denied the motion for a mistrial, explaining that the issue of Reyes’s

inconsistency would be “left to th[e] jury.” Id. at 26. Outside of the presence of

the jury, Reyes told the court that he had not spoken to anyone about his testimony.

       After the government rested, the defendants subpoenaed Reyes’s cell phone

records. They discovered that Reyes in fact had spoken with his attorney the

evening after his first day of testimony. 18 They argued that this evidence showed

that Reyes had committed perjury. They moved to strike Reyes’s testimony.

       The court denied the request and instead allowed the defense to “introduce

the records showing [Reyes] contacted his lawyer when he said on the stand that he


       18
           In addition, the phone records showed that Reyes had a quick phone call with a case
agent, but the defendants did not focus on this phone call, which they acknowledged was related
to the fact that Reyes was running late for court.
                                              55
               Case: 17-15405        Date Filed: 08/13/2020       Page: 56 of 57



had not contacted anyone.” Doc. 529 at 204–05. After the defense rested, both

sides agreed to stipulate as to the contents of the phone records. The defense

requested that the court permit it to inform the jury that Reyes, outside of the

presence of the jury, told the court that it had not spoken to anyone the evening

after his first day of testimony. The court denied that request, concluding that the

stipulation of the phone records was sufficient. The defense then submitted the

phone records into evidence and told the jury that, although Reyes had testified

that he had not talked to anyone after his first day of testimony, the records

reflected that he had spoken to his attorney.

       Here, the court did not abuse its discretion in failing to strike Reyes’s

testimony. See Barsoum, 763 F.3d at 1338. The court permitted the defense to

submit the phone records and inform the jury that Reyes had lied on the stand.

Thus, the jury was well aware of Reyes’s perjury; any additional evidence that

Reyes had lied to the court would have been cumulative. Upon learning about the

perjury, the jury—not the court—had to decide whether Reyes was credible. See

Calderon, 127 F.3d at 1325. We affirm on this ground. 19




       19
           Because Estrada and Hernandez are entitled to no relief on their individual evidentiary
claims, we reject their cumulative-error claim. See United States v. Gamory, 635 F.3d 480, 497
(11th Cir. 2011) (holding, in a criminal appeal, that “[w]here there is no error or only a single
error, there can be no cumulative error”).
                                                56
      Case: 17-15405    Date Filed: 08/13/2020   Page: 57 of 57




                        IV.    CONCLUSION

For the reasons discussed above, we affirm the defendants’ convictions.

AFFIRMED.




                                 57
