              Case: 14-11116     Date Filed: 10/08/2014   Page: 1 of 8


                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 14-11116
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 4:13-cr-00129-BAE-GRS-2

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                        versus

EDUARDO CRUZ-CAMACHO,

                                                              Defendant-Appellant.

                           ________________________

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

                                 (October 8, 2014)

Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:

      Eduardo Cruz-Camacho appeals his convictions and 63-month total sentence

for conspiracy to deal in firearms without a license, in violation of 18 U.S.C. §§

371, 922(a)(1)(A), dealing in firearms without a license, in violation of 18 U.S.C. §
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922(a)(1)(A), and being an illegal alien in possession of a firearm, in violation of

18 U.S.C. § 922(g)(5)(A). On appeal, Cruz-Camacho argues that: (1) the district

court erred under Federal Rule of Evidence 404(b) by allowing the government to

cross-examine Cruz-Camacho about an extrinsic drug arrest without providing

proper pre-trial notice; (2) the district court erred under Federal Rule of Criminal

Procedure 16(a)(1)(E) by allowing the government to cross-examine Cruz-

Camacho about the extrinsic drug arrest, even though the government did not

disclose the police report of the incident in its discovery responses; and (3) the

district court erred by imposing an obstruction of justice sentencing enhancement

because Cruz-Camacho made no false material statements at trial. After careful

review, we affirm.

      We review a district court’s evidentiary rulings for clear abuse of discretion.

United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003). We review discovery

rulings for abuse of discretion. United States v. Campa, 529 F.3d 980, 992 (11th

Cir. 2008). When reviewing for abuse of discretion, we must affirm unless we find

that the district court has made a clear error of judgment or has applied the wrong

legal standard. United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en

banc). We review for clear error the district court’s factual findings necessary for

an obstruction of justice enhancement based on perjury, and accord great deference

to the district court’s credibility determinations. United States v. Ram Kumar


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Singh, 291 F.3d 756, 763 (11th Cir. 2002). In so doing, we give due deference to

the district court’s application of the guidelines to the facts and review the district

court’s application of law to those facts de novo. Id. We may affirm on any

ground that finds support in the record. United States v. Al-Arian, 514 F.3d 1184,

1189 (11th Cir. 2008).

      First, we are unpersuaded by Cruz-Camacho’s claim that the district court

erred under Federal Rule of Evidence 404(b) concerning the government’s cross-

examination of Cruz-Camacho. “Evidence of a crime, wrong, or other act is not

admissible 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). “On request by a defendant in a criminal case, the prosecutor must: (A)

provide reasonable notice of the general nature of any [evidence of a crime, wrong,

or other act] that the prosecutor intends to offer at trial; and (B) do so before trial --

or during trial if the court, for good cause, excuses lack of pretrial notice.”

Fed.R.Evid. 404(b)(2). Rule 404(b)’s notice requirement applies even where the

government seeks to admit extrinsic evidence for impeachment purposes. United

States v. Bradley, 644 F.3d 1213, 1273 (11th Cir. 2011).

      Rule 404(b), however, “deal[s] with the admission of evidence,” not

references to incidents used solely to impeach the defendant. United States v.

Smalley, 754 F.2d 944, 951 (11th Cir. 1985) (emphasis omitted). Where the


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district court does not actually receive into evidence anything proffered by the

government, and the government simply refers to a prior bad act during cross-

examination to impeach an assertion made by the defendant during his direct

examination, Rule 404(b) does not apply and the government’s cross-examination

is proper. Id. Indeed, matters affecting the credibility of the witness are always

relevant on cross-examination. Id. The credibility of a witness may be attacked by

reference to specific instances of his conduct. Id.

      Here, the district court did not abuse its discretion by allowing the

government to question Cruz-Camacho about his prior drug arrest, because the

government’s questions were relevant and did not implicate Rule 404(b). On

direct examination, Cruz-Camacho testified that he was afraid of marijuana users,

and was coerced into selling firearms by the ATF’s marijuana-smoking

confidential informant. By questioning Cruz-Camacho about his prior possession

of a marijuana-like drug, the government sought to impeach the credibility of his

testimony regarding his fear of marijuana users, which was a relevant inquiry. Id.

Moreover, the relevance and notice requirements of Rule 404(b) do not apply here

because the government did not seek to actually admit evidence of Cruz-

Camacho’s prior bad act -- such as a police report, recording, charge, or record of

conviction -- but simply sought permission to ask him about the matter.




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      Nor do we agree with Cruz-Camacho’s argument that the district court erred

under Federal Rule of Criminal Procedure 16(a)(1)(E) by allowing the government

to cross-examine Cruz-Camacho about the extrinsic drug arrest without disclosing

in discovery the police report of the incident.         Under the Rule, “[u]pon a

defendant’s request, the government must permit the defendant to inspect and to

copy or photograph books, papers, documents, data, photographs, tangible objects,

buildings or places, or copies or portions of any of these items, if the item is within

the government’s possession, custody, or control and: (i) the item is material to

preparing the defense; (ii) the government intends to use the item in its case-in-

chief at trial; or (iii) the item was obtained from or belongs to the defendant.”

Fed.R.Crim.P. 16(a)(1)(E). Notably, an item in the first category -- preparation for

the defense -- need not be disclosed unless the defendant demonstrates that the

item is material to such preparation. United States v. Jordan, 316 F.3d 1215, 1250

(11th Cir. 2003). A general description of the item will not suffice; neither will a

conclusory argument that the requested item is material to the defense. Id. Rather,

the defendant must make a specific request for the item together with an

explanation of how it will be helpful to the defense. Id.

      In this case, the district court did not abuse its discretion under Rule 16

because Cruz-Camacho did not make a sufficiently specific request for the police

report. In his discovery motion, Cruz-Camacho simply recited the language of


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Rule 16 and never requested materials relating to his disdain for drugs. Nor, at the

time of his discovery motion, did Cruz-Camacho demonstrate that a police report

for an extrinsic drug arrest would be material to the preparation of his defense

against unlicensed firearm dealing charges.        Id.   Thus, Cruz-Camacho’s bare

recitation of Rule 16’s statutory language did not constitute a sufficiently specific

request for the police report, nor did it explain why the police report would be

material to his defense. Id. Accordingly, the government did not violate Rule 16

by failing to disclose the police report in its discovery responses.

       Finally, we reject Cruz-Camacho’s claim that the sentencing court erred by

imposing an obstruction-of-justice enhancement.          A two-level enhancement is

proper if “the defendant willfully obstructed or impeded, or attempted to obstruct

or impede, the administration of justice with respect to the investigation,

prosecution, or sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1.

The enhancement applies to a range of obstructive conduct, including perjury. Id.,

comment. (n.4(B)). A defendant commits perjury by providing false testimony

concerning a material matter with the willful intent to provide false testimony,

rather than as a result of confusion, mistake, or faulty memory. Singh, 291 F.3d at

763.    For purposes of the guideline, “material” evidence is evidence, fact,

statement, or information that, if believed, would tend to influence or affect the

issue under determination. U.S.S.G. § 3C1.1, comment. (n.6).


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      The district court should make specific findings as to each alleged instance

of obstruction by identifying the materially false statements individually. Singh,

291 F.3d at 763. However, a general finding that an enhancement is warranted

suffices if it encompasses all of the factual predicates necessary for a perjury

finding. Id.

      In this case, the district court committed no clear error in finding that Cruz-

Camacho perjured himself at trial, thus warranting an obstruction of justice

enhancement under U.S.S.G. § 3C1.1. As the record shows, Cruz-Camacho made

several false statements throughout the trial material to his entrapment defense --

testifying that he feared marijuana users, but later admitting that he previously

carried a marijuana-like drug for a friend; testifying that he changed his phone

number to avoid the fearsome confidential informant, but later testifying that he

changed his phone number because he damaged his previous phone; and testifying

that he was coerced into selling firearms, yet demonstrating a repeated and

willingness to sell firearms to the ATF agents with unsolicited visits, pronounced

negotiation skills, and business savvy. All of these instances serve as factual

predicates necessary for a perjury finding.      Thus, based on Cruz-Camacho’s

numerous false material statements, and affording great deference to the district

court’s credibility determinations, the district court did not err in applying the

obstruction-of-justice enhancement to Cruz-Camacho’s sentence.


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AFFIRMED.




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