                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                 JUNE 24, 2008
                                 No. 07-10485
                                                               THOMAS K. KAHN
                           ________________________
                                                                   CLERK

                      D. C. Docket No. 05-20915-CR-DMM

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                      versus

ORLANDO ARIEL GONZALEZ PEREZ,

                                                          Defendant-Appellant.

                           ________________________

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

                                  (June 24, 2008)

Before BIRCH, PRYOR, and KRAVITCH, Circuit Judges.

PER CURIAM:

      Defendant-appellant Orlando Ariel Gonzalez Perez was convicted of

conspiracy to possess with intent to distribute cocaine and sentenced to 60 months’
imprisonment. On appeal, he challenges (1) the denial of his motion to suppress

intercepted phone calls, (2) evidentiary rulings, (3) the jury instructions, and (4) the

amount of drugs for which he was held responsible at sentencing.1 After oral

argument and a thorough review of the record, we affirm.

                                               I.

         Gonzalez Perez was charged along with Jairo Sanz de la Rosa (“Sanz”),

Wilfredo Robles, Rudy Rodriguez, Jorge Isaacs Diaz (“Isaacs”), and Humberto

Rua in a three-count indictment.2 Count 1 charged all defendants with conspiracy

to import five kilograms of more of cocaine, in violation of 21 U.S.C. §§ 952,

960(b), and 963. Count 2 alleged that all defendants engaged in conspiracy to

possess with intent to distribute five kilograms or more of cocaine, in violation of

21 U.S.C. § 846. Count 3 charged Sanz, Isaacs, and Rua with possession with

intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C.

§ 841.



         1
          Gonzalez Perez’s challenge to his sentence is without merit. The jury found Gonzalez
Perez to be responsible for less than 500 grams of cocaine. The evidence at trial established his
involvement in close to 2 kilograms of cocaine. Thus, the court did not err in determining the
amount of drugs to be between 400 and 500 grams. We affirm the sentence without further
discussion.
         2
         Rua was eventually dismissed from the indictment. Isaacs pleaded guilty to a single
count and testified for the government. Following a trial, Sanz was convicted on all three
counts. Robles and Rodriguez were convicted of conspiracy to possess with intent to distribute
cocaine. Gonzalez Perez fled and was tried separately.

                                                2
      A. Pre-trial Motions

             1. Motion to Suppress Wiretap Evidence

      United States DEA Agents began investigating the Del Toro drug ring in

2004. Wiretaps obtained by the U.S. government as part of that investigation

identified Del Toro, William de Jesus Arias, Jorge Neiro Cuadra, and Sanz as

sources of cocaine in the United States. The scheme involved an extensive

structure of importation and distribution “cells.” One such cell was under Sanz’s

leadership. The participants in the scheme used multiple phones to

compartmentalize the cells and limit liability. In December 2004, as a result of

intercepted calls, authorities were able to seize over twenty kilograms of cocaine

that Del Toro imported using cargo planes.

      In February 2005, DEA agents obtained information from a confidential

informant regarding importation of drugs through Miami International Airport

using airport employees. The informant confirmed that Sanz was involved in

narcotics importation using Isaacs, an airport employee and Sanz’s cousin, to

remove drugs from incoming planes. In June 2005, Colombian officials

intercepted a call, pursuant to a Colombian-issued wiretap, which led United States

DEA agents to believe that Sanz was planning to import narcotics with Del Toro.

In August 2005, Colombian authorities intercepted a call to Del Toro from Sanz at



                                          3
786-426-7009 (target phone 1). Del Toro later informed Arias that Sanz’s number

was 786-356-9973 (target phone 2). Throughout August, Colombian authorities

intercepted calls on these two phones concerning narcotics deliveries. Agents were

able to intercept calls from Gonzalez Perez and Isaacs to target phone 1.

Intercepted calls to target phone 2 identified Del Toro, Arias, and Isaacs as

participants.

      Based on this information, the U.S. government requested wiretaps for target

phones 1 and 2 in September 2005. According to the affidavit, there was probable

cause to believe agents would intercept calls connected to drug trafficking by Del

Toro, Sanz, Arias, Isaacs, and others, via the two targeted phones. The

government also identified Gonzalez Perez as a participant in Del Toro’s

organization based on information that he had been indicted in the Western District

of Pennsylvania in 1992. The charges had been dismissed in 2000 after authorities

were unable to locate him. The only other mention of Gonzalez Perez in the

affidavit was evidence that he sent two wire transfers and that he had made two

calls to target phone 1.

      In its affidavit, the government stated that the intercepted calls would reveal

evidence of the participants in drug trafficking offenses, and that other normal

investigative techniques had failed. Specifically, the affidavit explained that



                                          4
traditional methods such as surveillance, pen registers, and confidential informants

had been of limited use due to the international scope of the scheme and Sanz’s

ability to conceal his location and identity. The affidavit also confirmed that the

confidential informant had been arrested and could no longer provide new

information. The affiant further explained why other techniques such as

subpoenas, interviews, and undercover operations would not be successful and

would draw attention to the investigation. According to the affidavit, the wiretaps

would enable agents to identify additional participants and their locations and

permit surveillance without alerting the participants to the investigation. Finally,

the affidavit confirmed that agents would take all necessary steps to minimize the

interceptions. The district court concluded that the affidavit established probable

cause and issued the wiretap authorization for thirty days.

      As a result of the initial wiretaps, agents intercepted numerous calls in which

the targets used what agents believed to be code words to discuss deliveries. They

also intercepted numerous calls involving Gonzalez Perez. In a September 30,

2005 call from Gonzalez Perez to Sanz on target phone 1, the two discussed what

agents believed to be an attempted delivery of drugs to Willie, which according to

a criminal database, was Robles’s alias.

      The government provided the court with updates during the initial wire tap



                                           5
period. In one of these updates, the government informed the court that Gonzalez

Perez was in possession of target phone 2.

      The government obtained a second wiretap in November 2005 for target

phone 1 and a new number 786-356-2676, which agents believed was another

phone assigned to Sanz. The government informed the court that target phone 1

was being used by Sanz and the former target phone 2 (the 9973 number) was

being used by Gonzalez Perez. Agents identified about 100 calls between target

phone 1 and former target phone 2, leading them to believe that Gonzalez Perez

was a participant in the narcotics scheme. Through the second authorizations,

agents expected to intercept calls from Sanz, Gonzalez Perez, Del Toro, Arias, and

Robles, among others. According to the affidavit, continued wiretaps could assist

in identifying additional participants and narcotics deliveries. The remainder of the

affidavit detailed the reasons the wiretap was necessary, the failure of other

investigative techniques, and the methods of minimization. The district court

granted authorization.

      Gonzalez Perez moved to suppress the wiretap evidence on the grounds that

the government had, inter alia (1) failed to show probable cause with respect to

Gonzalez Perez, (2) failed to show necessity, and (3) failed to comply with the

minimization requirements in 18 U.S.C. § § 2515 and 2518. He also requested a



                                           6
Franks3 hearing, alleging that the affidavits were contradictory and false.

Following a hearing, the district court denied the motion to suppress and for a

Franks hearing, concluding that there was probable cause to intercept Sanz’s

conversations and the statute did not require probable cause as to the likely or

possible interceptees, as interceptions necessarily involved other people. The court

further found that the government complied with the minimization requirements

because the statute did not require the government to cease interceptions after

Gonzalez Perez received the target phone from Sanz. Finally, the court concluded

that the affidavit accompanying the September 2005 wiretap application

sufficiently explained why traditional techniques would not work and was detailed

and specific, and there was no allegation of deliberate falsehood in the application

and no evidence that the affidavit contained false or deliberately misleading

statements.

      B. Trial

      At trial, the government proffered evidence connecting Gonzalez Perez to

Sanz’s drug organization. Imer Diaz testified that he accompanied Robles on three

occasions in which they met Gonzalez Perez. The first meeting was at a car

dealership, where Gonzalez Perez and Robles sat in a truck listening to music and



      3
          Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

                                               7
Gonzalez Perez offered to obtain some CDs for Robles. The following two

meetings occurred at Gonzalez Perez’s trailer, where Diaz and Robles met with

Gonzalez Perez to discuss moving a boat. At the first of these two meetings,

Robles, Diaz and Gonzalez Perez were present. At the second trip to the trailer,

about a week later, Sanz was also present. Robles and Diaz measured the boat and

discussed the need for a flatbed truck. Before leaving, Diaz and Robles entered the

trailer, where Gonzalez Perez handed Robles a package wrapped in electrical tape

and told Robles to sell it for him. Diaz could not say what was in the package.

Robles did not take the package and later told Diaz that Gonzalez Perez was crazy

and wanted to get him in trouble.

       As a result of these meetings, Diaz was able to recognize Gonzalez Perez’s

voice. At the government’s request, Diaz listened to recorded calls and identified

Gonzalez Perez’s voice. Defense counsel objected for lack of foundation.4

Counsel did not object to the admission of the tapes or the transcripts, but

challenged the voice identification. Defense counsel also objected to the

government’s use of Diaz as a credible witness because, according to counsel, the

government had questioned Diaz’s credibility in the prior trial during closing




       4
        The government proffered testimony from the transcription services regarding the
manner of translating and transcribing calls.

                                              8
argument.5 Counsel sought to strike the testimony, admit the closing statement, or,

alternatively, to read portions of it into the record under Fed. R. Evid. 801(d) as an

admission of a party. The government responded that it was not taking

inconsistent positions, as the testimony in the two trials was consistent and that the

prosecutor, at most, misspoke during closing argument. The government further

asserted that admitting the closing argument would be prejudicial. The court

denied the motion to strike, finding the testimony consistent, and denied the

request to admit closing argument because it would be prejudicial and confusing

for the jury. The court instructed the jury, however, that it was up to them to

determine the identity of the speakers.

       At the close of the evidence, defense counsel requested the jury be instructed

per the pattern jury instructions, which included the term “willfully.” The

government requested that the court use the same instruction as in the prior trial,

which mirrored the statutory language and excluded the term “willfully.” The

court granted the government’s motion over defense counsel’s objection. The jury



       5
           During Robles’s trial, the government proffered evidence that DEA agents surveilling
the trailer on September 30 observed Robles, Diaz, and Gonzalez Perez waiting for Sanz to
arrive because they were locked out of the trailer. Diaz, however, testified that he entered in the
trailer and saw the black package. In closing, the government questioned Diaz’s credibility
because the surveillance contradicted his testimony that he had been in the trailer. The
government explained that there had been confusion as to the sequence of events, but that Diaz’s
testimony in the instant trial clarified that he had been at the trailer twice but only inside once
and there was no doubt that he had not entered the trailer on September 30.

                                                 9
convicted Gonzalez Perez of conspiracy to possess with intent to distribute

cocaine, finding that the amount of cocaine involved was less than 500 grams.

Gonzalez Perez was acquitted of conspiracy to import cocaine.

      The court, in keeping with the jury’s verdict, held Gonzalez Perez

responsible for between 400 and 500 grams of drugs. The resulting advisory

guidelines range was 51 to 63 months’ imprisonment. The court sentenced

Gonzalez Perez to a term of 60 months’ imprisonment. Gonzalez Perez now

appeals.

                                         III.

      In reviewing the denial of a motion to suppress, we review factual findings

for clear error and the application of the law to those facts de novo. United States

v. Newsome, 475 F.3d 1221, 1223 (11th Cir. 2007). All facts are construed in the

light most favorable to the prevailing party, in this case the government. Id. at

1223-1224. A district court’s finding with respect to whether an affidavit in

support of a wiretap adequately demonstrated that law enforcement had exhausted

normal investigative techniques, as required by 18 U.S.C. § 2518(1)(c), is subject

to clear error review. United States v. Weber, 808 F.2d 1422, 1424 (11th Cir.

1987). A district court’s determination that law enforcement agents’ minimization

procedures were reasonable under the circumstances is a factual determination



                                          10
subject to the clearly erroneous standard of review. United States v. Moody, 977

F.2d 1425, 1433 (11th Cir. 1992). Evidentiary issues are reviewed for abuse of

discretion. United States v. Jimenez, 224 F.3d 1243, 1249 (11th Cir. 2000). We

review a trial court’s rejection of a proposed jury instruction for an abuse of

discretion. United States v. Garcia, 405 F.3d 1260, 1273 (11th Cir. 2005). We

review a challenge to the substance of a jury instruction de novo. United States v.

Stone, 9 F.3d 934, 937 (11th Cir. 1993).

                                             IV.

       A. Motion to Suppress

       Under 18 U.S.C. § 2518, an application for a wire tap must include, inter

alia: “a full and complete statement of the facts and circumstances relied upon by

the applicant . . . including details as to the particular offense . . . , a particular

description of . . . the type of communications sought to be intercepted, the identity

of the person . . . whose communications are to be intercepted”, and “a full and

complete statement as to whether or not other investigative procedures have been

tried and failed or why they reasonably appear to be unlikely to succeed if tried or

to be too dangerous.” 18 U.S.C. § 2518(1)(b), (c).

       The court may then issue an order “if the judge determines on the basis of

the facts submitted by the applicant that– (a) there is probable cause for belief that



                                             11
an individual is committing, has committed, or is about to commit a particular

offense . . . ; (b) there is probable cause for belief that particular communications

concerning that offense will be obtained through such interception; (c) normal

investigative procedures have been tried and have failed or reasonably appear to be

unlikely to succeed if tried or to be too dangerous [and] (d). . . there is probable

cause for belief that . . . the facilities from which, or the place where, the . . .

communications are to be intercepted are being used, . . . are leased to, listed in the

name of, or commonly used by such person.” 18 U.S.C. § 2518(3).

       Gonzalez Perez argues that there was no probable cause to support the initial

interception of his calls, the government failed to show necessity of any wire taps,

and the government improperly intercepted all of his calls. He explains that he

requested a Franks hearing because the government’s false and misleading

statements concerning an indictment in Pennsylvania served to justify probable

cause, and that the government did not produce all the alleged evidence supporting

its theory. He notes that the majority of the affidavit submitted in support of the

wire tap application referred to Sanz’s activities, and he was not even named as a

co-conspirator until after the others were arrested and cooperated with the

government. He further asserts that the government should not have continued to

intercept all the calls on Sanz’s second phone after it learned that Sanz had given



                                             12
the phone to Gonzalez Perez.

      The government responds that the affidavits submitted established probable

cause against Sanz and indicated that Gonzalez Perez was a potential target for

intercepted calls on that phone. It contends that it was not obligated, under the

minimization requirement, to cease intercepting calls when it learned that Gonzalez

Perez was using the phone because the taps were intended to identify others

involved in the conspiracy. The government disputes that it proffered any false or

misleading information, and contends that no Franks hearing was required.

             1. Probable Cause

      An application for a wiretap authorization must be supported by the same

probable cause necessary for a search warrant. United States v. Nixon, 918 F.2d

895, 900 (11th Cir. 1990). The issuing magistrate is to make a “practical,

common-sense decision” about whether the “totality of the circumstances” indicate

that there is probable cause that the sought-for evidence will be obtained. Id. This

court’s standard for review is “simply to ensure that the magistrate had a

‘substantial basis for ... conclud[ing]’ that probable cause existed.” Id. (citation

omitted). Moreover, the practical nature of the magistrate’s decision justifies

“great deference” upon review and calls for upholding the magistrate’s findings

even in marginal or doubtful cases. Id.



                                           13
       At issue is whether probable cause to intercept Sanz’s calls extends to

Gonzalez Perez’s conversations, especially once the government was aware that

Gonzalez Perez has possession of the phone, or if the government was required to

show probable cause to intercepting Gonzalez Perez’s calls. Gonzalez Perez

concedes that there was probable cause to intercept Sanz’s calls.

       Upon review, we conclude that there was sufficient probable cause to obtain

wire taps in September 2005.6 Conversations, by there very nature, require two

people. The government had information linking Gonzalez Perez to the drug

organization. The court’s order authorizing the wire tap stated that its purpose

was, in part, to locate “the identity of the participants and conspirators of the

organization.” And the affidavit specifically identified Gonzalez Perez as a

possible interceptee. Moreover, Gonzalez Perez does not dispute that there was

probable cause to intercept Sanz’s calls and many of those properly intercepted

calls involved Gonzalez Perez.

       The government’s likely mistake concerning a prior indictment does not

alter our analysis. The officers seeking the warrant acted in good faith based on


       6
          Because we conclude the initial wiretaps were properly obtained, there is no merit to
Gonzalez Perez’s argument that the November wiretap was tainted by an illegal interception.
Even if there was no probable cause to intercept Gonzalez Perez’s phone, authorities were
permitted to intercept Sanz’s calls, many of which involved coded conversations with Gonzalez
Perez. Once authorities intercepted these calls, they were able to establish probable cause for the
November application.

                                                14
information from authorities in Pennsylvania that there was a prior indictment. In

any event, even without the information concerning the indictment, there was

sufficient probable cause arising from the earlier investigation and communications

intercepted by Colombian authorities.7

       Finally, even if we were to conclude that probable cause was lacking,

suppression is not the proper remedy. See United States v. Donovan, 429 U.S.

413, 438, 97 S.Ct. 658, 673, 50 L.Ed.2d 652 (1977) (holding that a violation of the

requirement that the application identify all those likely to be overheard, 18 U.S.C.

§ 2518(1)(b)(iv), did not mandate suppression because the requirement did not

play a central role in the decision to authorize surveillance); see also United States

v. Van Horn, 789 F.2d 1492, 1500 (11th Cir. 1986).

               2. Necessity

       An application for an order authorizing a wiretap must include “a full and

complete statement as to whether or not other investigative procedures have been

tried and failed or why they reasonably appear to be unlikely to succeed if tried or

to be too dangerous.” 18 U.S.C. § 2518(1)(c). The affidavit supporting an

application need not show a “comprehensive exhaustion of all possible


       7
         Gonzalez Perez cites United States v. Santana, 342 F.3d 60, 64 (1st Cir. 2003), to
support his claim that probable cause as to the interceptee is required. We do not agree. As
discussed, conversations necessarily involve two persons. And the statute requires the
government to minimize its interception of unrelated calls; it does not require exclusion.

                                               15
techniques,” but need explain only the failure of those techniques “that reasonably

suggest themselves.” United State v. Van Horn, 789 F.2d 1492, 1496 (11th Cir.

1986).

         Here, the affiant provided extensive explanation as to the techniques already

employed and the reasons why the wire tap was necessary.

               3. Minimization

         Under the statute, “[e]very order and extension thereof shall . . . be

conducted in such a way as to minimize the interception of communications not

otherwise subject to interception under this chapter . . . .” 18 U.S.C. § 2518(5).

The Supreme Court in Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56

L.Ed.2d 168 (1978), set forth the standards for reviewing challenges to the

government’s minimization efforts: courts must make an objective assessment of

the monitoring agents’ actions in light of the facts and circumstances confronting

them at the time. Id. at 136. The Court counseled that “[t]he statute does not

forbid the interception of all nonrelevant conversations, but rather instructs the

agents to conduct the surveillance in such a manner as to ‘minimize’ the

interception of such conversations.” Id. at 140. The standard to be applied to the

government’s actions is one of reasonableness. See United States v. Van Horn,

789 F.2d 1492, 1501 (11th Cir. 1986).



                                             16
      Notably, neither side offers any case law supporting its claims regarding

whether the government could continue to intercept calls once it learned that

Gonzalez Perez was the user of the phone. Here, the affidavit in support of the

wiretap confirmed that the government would act to minimize interceptions by

ceasing to intercept calls once it was clear that the call did not involve a participant

in the scheme or involved an innocent conversation. Thus, the government was

permitted to intercept calls to determine participants and properly ceased

interceptions when the calls did not involve the drug organization.

             4. Franks Hearing

      In order to be entitled to relief, Gonzalez Perez must show (1) that the

alleged misrepresentations or omissions were knowingly or recklessly made by the

agent, and (2) that the result of excluding the alleged misrepresentations and

including the alleged omissions would have been a lack of probable cause for

issuance of the warrants. United States v. Jenkins, 901 F.2d 1075, 1080 (11th Cir.

1990). Upon review of the motion to suppress and the wiretap application, we

conclude that Gonzalez Perez has not met this burden. The information concerning

the 1992 indictment came from authorities in Pennsylvania. The agents did not act

recklessly. Gonzalez Perez has offered nothing more than conclusory statements to

establish his burden. We find such statements insufficient.



                                           17
       B. Evidentiary Issues

               1. Voice Identification

       Gonzalez Perez argues that the district court should not have admitted

transcripts of recorded conversations without evidence that he had made the

incriminating statements in the recordings. He explains that none of the speakers

on the tapes identified themselves and that Diaz’s testimony was insufficient to

meet the government’s burden to establish the identity of the speakers. The

government responds that the court did not abuse its discretion because Diaz’s

testimony, along with other circumstantial evidence, was sufficient to establish

identity.

       This court has previously held that, to admit into evidence a recorded

conversation, the government must establish, inter alia, the identification of the

speakers.8 United States v. Harrell, 788 F.2d 1524, 1527 (11th Cir. 1986) (citing



       8
           The proponent who seeks to introduce written transcripts of audio tapes must introduce
“some evidence that the transcripts are accurate, that the words are accurately reproduced, and
the voices accurately identified.” United States v. Rochan, 563 F.2d 1246, 1251 (5th Cir. 1977).
Moreover, when the transcript contains a translation into English of conversations spoken in a
foreign language, the proponent must introduce the testimony of a qualified witness to
authenticate and verify the translation. See United States v. Llinas, 603 F.2d 506, 509 n.3, 510
(5th Cir. 1979). However, this court later explained “[w]here there is sufficient independent
evidence of the accuracy of the tape recordings to insure their reliability, we will not disturb the
trial court’s decision to admit them even though at the time that judgment was made the
government had not carried its particularized burden.” United States v. Hughes, 658 F.2d 317,
323 (5th Cir.1981). Here, however, Gonzalez Perez does not raise these issues and his argument
is limited to whether the government laid a proper foundation for identification of the speakers.

                                                 18
United States v. Biggins, 551 F.2d 64, 66 (5th Cir. 1977) 9 (footnote added).

       A speaker’s voice may be identified by opinion testimony “based upon

hearing the voice at any time under circumstances connecting it with the alleged

speaker.” Fed.R.Evid. 901(b)(5). “Once a witness establishes familiarity with an

identified voice, it is up to the jury to determine the weight to place on the

witness’s voice identification.” Brown v. City of Hialeah, 30 F.3d 1433, 1437

(11th Cir. 1994).

       Here, Gonzalez Perez challenges only whether the government properly

identified the speakers. The government used testimony by Isaacs and Diaz to

establish that it was Gonzalez Perez’s voice on the tape. Diaz stated that he had

spoken with Gonzalez Perez three times and recognized his voice. Isaacs testified

that he was with Sanz when Sanz called Gonzalez Perez and he heard the

conversation. The case agents further testified that the voices on the tapes

belonged to Gonzalez Perez. The other evidence submitted included that Gonzalez

Perez had obtained Sanz’s phone, the phone was subject to the wire tap, and

Gonzalez Perez admitted using the phone that was the subject of the recordings.

The jury was instructed that the issue of identity was within their discretion, and a



       9
          In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this
court held that all decisions handed down by the former Fifth Circuit before the close of business
on September 30, 1981, are binding precedent in the Eleventh Circuit.

                                                19
jury’s credibility determinations will not be disturbed by this court. United States

v. Parrado, 911 F.2d 1567, 1571 (11th Cir. 1990). Accordingly, we find no error.

               2. Diaz’s testimony

       Gonzalez Perez argues that the court abused its discretion by refusing to

strike Diaz’s testimony because the prosecutor in Robles’s trial had attacked Diaz’s

testimony and credibility in closing argument. He contends that his conviction

cannot stand in light of the false or perjured testimony and the government’s

inconsistent positions in the two cases. Alternatively, Gonzalez Perez asserts that

the court erred by denying his request that the court permit him to admit the

government’s closing statement from Robles’ trial into evidence under Fed. R.

Evid. 801(d)(2)(B) and (d)(2)(D).10

       The government responds that the testimony was consistent with the earlier

testimony,11 but that even if the closing statement was admissible under Rule

       10
          Gonzalez Perez also contends the closing statement was admissible under Rule
801(d)(2)(B)(2) as an adoptive admission. He did not raise this issue at trial. But nevertheless,
his argument fails because the statement’s admissibility is still subject to Rule 403's balancing
test.
       11
           There is no merit to Gonzalez Perez’s argument that the government proffered
inconsistent arguments in the two trials requiring this court strike the testimony under the
doctrine of judicial estoppel. “Judicial estoppel is an equitable doctrine invoked at a court’s
discretion, designed to protect the integrity of the judicial process.” Stephens v. Tolbert, 471
F.3d 1173, 1177 (11th Cir. 2006) (citations omitted). A district court may invoke the doctrine
“to prevent a party from asserting a claim in a legal proceeding that is inconsistent with a claim
taken by that party in a previous proceeding.” Id. “[T]he circumstances under which judicial
estoppel should be invoked are not reducible to a general formulation of principle,” but courts
have traditionally looked at three factors: (1) whether a later position asserted by a party was

                                                20
801(d), it was subject to the balancing test of Rule 403, and as such was properly

excluded as potentially confusing to the jury.

       In United States v. DeLoach, 34 F.3d 1001 (11th Cir. 1994), the defendant

sought to have the court admit the government’s closing statement from the trial of

a codefendant on the grounds that the statement was inconsistent with the

government’s position in the current trial. This court explained that such

statements are admissible where they are: “(1) ‘assertions of fact’ that are the

‘equivalent of a testimonial statement by the [client];’ and 2) ‘inconsistent with

similar assertions in a subsequent trial.’” Id. at 1005 (quoting United States v.

McKeon, 738 F.2d 26, 33 (2d Cir. 1984).

       Here, the court did not abuse its discretion by denying the motion to strike

Diaz’s testimony. Diaz’s statements were consistent with his testimony in

Robles’s trial. Upon review of the records, we agree that the sequence of events

was confusing and, as the government explained, it simply misunderstood Diaz’s




clearly inconsistent with an earlier position; (2) whether a party succeeded in persuading a court
to accept an earlier position, “so that judicial acceptance of an inconsistent position in a later
proceeding would create the perception that either the first or the second court was misled”; and
(3) whether the party with an inconsistent position would derive an unfair advantage or impose
an unfair detriment on the opposing party if not estopped. Id. Here, there is no reason for us to
apply this doctrine. The government’s statements were consistent and nothing about the
statements would mislead the court or result in an unfair advantage.

                                                21
testimony in the earlier trial when it made the statements during closing.12

       Even if this evidence was admissible under Rule 801(d), the court must

balance admissibility with potential prejudice. Here, the closing argument from

Robles’s trial would have confused or misled the jury. Thus, under Rule 403's

balancing test, the court did not abuse its discretion by excluding the evidence.

       C. Jury Instructions

       Gonzalez Perez argues that, as a matter of law, the government had to show

under § 846 that he acted “willfully” in addition to knowingly, and thus the court

erred by removing the element of willfulness from the instructions. The

government responds that the instruction was proper because it mirrored the

statutory language. It notes that the pattern jury instruction does not trump the

plain language of the statute, and that other circuits have changed the pattern

instructions to reflect this.

        “The district court has broad discretion in formulating jury instructions as

long as those instructions are a correct statement of the law.” Garcia, 405 F.3d at

1273. This court will find reversible error only if “(1) the requested instruction

       12
           Gonzalez Perez’s reliance on United States v. Kattar, 840 F.2d 118 (1st Cir. 1988),
does not persuade us otherwise. In that case, the First Circuit was “troubled” by inconsistent
positions taken by the prosecutor in different trials. Nevertheless, the court concluded that there
was no constitutional error where there was no showing that the false testimony influenced the
verdict and the evidence of guilt was overwhelming. In the instant case, there is no evidence that
Diaz’s testimony was false, but rather was the likely result of a confusion, and no evidence that
the government knowingly elicited false testimony.

                                                22
correctly stated the law; (2) the actual charge to the jury did not substantially cover

the proposed instruction; and (3) the failure to give the instruction substantially

impaired the defendant’s ability to present an effective defense.” United States v.

Fulford, 267 F.3d 1241, 1245 (11th Cir. 2001) (citing United States v. Martinez, 83

F.3d 371, 376 (11th Cir. 1996)).

      Violations of § 846 are specific intent crimes. See United States v. Ettinger,

344 F.3d 1149, 1154 (11th Cir. 2003) (citing United States v. Cameron, 907 F.2d

1051, 1063 (11th Cir. 1990)); see also United States v. Stone,

139 F.3d 822, 833 (11th Cir. 1998) (“[t]he words ‘[i]t shall be unlawful for any

person knowingly or intentionally to possess a controlled substance’ identify the

mental state and the conduct Congress intended to prohibit.”). To support a

conviction for conspiracy to distribute cocaine in violation of § 846, the

government must prove, inter alia, that the defendant knowingly and voluntarily

participated in the conspiracy. United States v. Andrews, 953 F.2d 1312, 1318

(11th Cir. 1992) (emphasis added). To prove knowing and voluntary participation,

“the Government must prove beyond a reasonable doubt that [he] had a deliberate,

knowing, and specific intent to join the conspiracy.” United States v. Jenkins, 779

F.2d 606, 609 (11th Cir. 1986) (emphasis added); see also United States v. Davis,

583 F.2d 190, 193 (5th Cir. 1978) (discussing general conspiracy statute and



                                           23
explaining that “the requirement of willfulness connotes a voluntary, intentional

violation of a known legal duty”).

      District courts are not required to use the Pattern Jury Instructions, and this

court has routinely approved jury instructions which did not exactly track pattern

instructions. See United States v. Veltmann, 6 F.3d 1483, 1492 (11th Cir. 1993)

(listing cases). Moreover, pattern jury instructions cannot trump the statute’s plain

language. United States v. Polar, 369 F.3d 1248, 1252 (11th Cir. 2004) (rejecting

wilfulness instruction where statute indicated the element of the offense was

knowingly). Thus, we conclude that the district court properly instructed the jury.

                                          V.

      In conclusion, we AFFIRM Gonzalez Perez’s conviction and sentence.




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