                                                                     [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS
                      FOR THE ELEVENTH CIRCUIT
                                                                             FILED
                         -------------------------------------------U.S. COURT OF APPEALS
                                      No. 05-10544                    ELEVENTH CIRCUIT
                                                                          MAY 30, 2006
                                Non-Argument Calendar
                        -------------------------------------------- THOMAS K. KAHN
                                                                            CLERK

                      D.C. Docket No. 03-20719-CR-MGC

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                          versus

FELIX UGARTE,
DANIEL BATLLE,

                                                         Defendants-Appellants.

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

                                    (May 30, 2006)

Before EDMONDSON, Chief Judge, BLACK and BARKETT, Circuit Judges.


PER CURIAM:

      Felix Ugarte and Daniel Batlle appeal their convictions and 27 and 33-

month sentences, respectively, for conspiracy to possess and possession of stolen
goods--cellular phones taken from a tractor-trailer--in violation of 18 U.S.C.

§§ 371 and 659. No reversible error has been shown; we affirm.

      Batlle argues that the government presented insufficient evidence to show

(1) that he intended to deal in stolen goods and (2) that he knew that the cellular

phones were stolen. We review challenges to sufficiency of the evidence de novo.

United States v. Klopf, 423 F.3d 1228, 1236 (11th Cir. 2005). We view the

evidence in the light most favorable to the government and draw all reasonable

inferences and credibility choices in favor of the jury’s verdict. Id. (citation and

quotation marks omitted). Knowledge that goods are stolen is an “essential

element” of a § 659 conviction. United States v. Forrest, 620 F.2d 446, 450 (5th

Cir. 1980).

      Batlle contends that the evidence showed only that, based on the phones’

low price and on Ugarte’s assertions, he thought the phones were defective, not

stolen. We disagree. The evidence demonstrated that, in October 1998, Batlle

acted as a middleman and bought the phones for $8 each. Two of Batlle’s co-

conspirators testified that they knew the phones were stolen and that they bought

the phones from Batlle for a much lower price than the wholesale price. Another

co-conspirator said that, after police followed him while he was delivering the




                                          2
phones, Batlle assured him that the phones were “cold”: that law enforcement was

not looking for the phones because the theft was not widely known.

      Undercover investigator Hugo Gomez testified that Batlle informed Gomez

when they first met in 1997 that he had been involved in other stolen goods

transactions. After investigation, Gomez determined that the thefts Batlle

described actually had occurred. Gomez testified that he and Batlle then arranged

for the sale of stolen jeans, a deal that fell through when Batlle discovered that

Gomez was an agent. And private citizen Juan Gispert, who assisted the FBI in

undercover work, testified that Batlle in 2000 had offered to sell him a large

amount of Levi’s Dockers pants, later seized by the FBI. The foregoing evidence

is enough to support a jury determination that Batlle knew the phones were stolen.

      Next, Batlle argues that, under Fed.R.Evid. 404(b), the district court erred in

admitting (1) Gomez’s testimony about Batlle’s earlier involvement with stolen

goods, and (2) Gispert’s testimony about the Dockers pants stolen in 2000.

      To admit evidence of a defendant’s earlier “bad acts” under Rule 404(b), we

determine (1) whether the evidence is relevant to an issue other than the

defendant’s character, (2) whether sufficient proof exists so that a jury could

determine that the defendant committed the extrinsic act, and (3) whether the

probative value of the evidence is not substantially outweighed by its undue

                                          3
prejudice, and whether the evidence meets the other requirements of Fed.R.Evid.

403. See United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003).

       The district court abused no discretion in admitting Gomez’s testimony.

See United States v. Thomas, 242 F.3d 1028, 1031 (11th Cir. 2001) (reviewing a

district court’s evidentiary rulings for an abuse of discretion).1 And the district

court committed no error--plain or otherwise--in admitting Gispert’s testimony, to

which Batlle failed to object. See Jernigan, 341 F.3d at 1280 (reviewing

unobjected-to evidentiary rulings for plain error).

       Gomez’s and Gispert’s testimony about Batlle’s involvement with stolen

goods was relevant to the central issue of Batlle’s knowledge of whether the

phones were stolen. Batlle contends that Gomez’s testimony was inadmissible

because the government did not prove that the illegal acts in which Gomez

claimed Batlle was involved occurred. But Gomez testified that his research

revealed that thefts had occurred of the items Batlle claimed he had sold. The jury

was entitled to believe Gomez’s testimony, which was enough to provide a basis

for determining that Batlle actually had handled the stolen merchandise. See



   1
     The government urges us to review the admission of Gomez’s challenged testimony for plain
error because, the government contends, Batlle failed to raise a specific objection to the admission
of this evidence. We need not decide whether plain error review applies: the district court properly
admitted this evidence even under an abuse-of-discretion standard.

                                                 4
United States v. Bowe, 221 F.3d 1183, 1192 (11th Cir. 2000) (government can

introduce evidence of defendant’s otherwise admissible acts if the jury could find

by a preponderance of the evidence that acts did in fact occur); United States v.

Sharif, 893 F.2d 1212, 1214 (11th Cir. 1990) (stating that “it is the jury’s

prerogative” to believe or to disbelieve a witness’ testimony). The jury could rely,

likewise, on Gispert’s testimony. And, although prejudicial, Gomez’s and

Gispert’s testimony (1) was probative on the central issue of Batlle’s knowledge

and (2) showed transactions similar to the charged offense. Further, the district

court instructed the jury that Gomez’s testimony was admitted only to show

Batlle’s knowledge that he was dealing with stolen goods. The prejudicial effect

of this evidence did not substantially outweigh its probative value.

      Ugarte also claims Rule 404(b) error occurred when the district court

admitted evidence of his prior conviction for possession of VCRs stolen in late

1999. This evidence was relevant to Ugarte’s knowledge whether the phones were

stolen and his intent to deal in stolen goods. Ugarte’s prior offense involved a

conviction, to which he admitted during his testimony. See Jernigan, 341 F.3d

at 1282 (where extrinsic evidence involves a conviction, second element of Rule

404(b) inquiry is met). And the probative value of Ugarte’s conviction is not

substantially outweighed by its prejudicial effect. The circumstances surrounding

                                          5
the prior offense and charged offense are similar, the district court gave the jury a

limiting instruction, and the prior act took place only about one year before the

charged offense conduct. See Jernigan, 341 F.3d at 1282 (prior convictions

occurring two to three years before charged offense not too temporally remote for

consideration). The district court abused no discretion in admitting evidence of

Ugarte’s prior conviction.

       Ugarte also argues that the district court abused its discretion in denying his

motions for mistrial and for severance.2 Ugarte contends that the cross-

examination by Batlle’s lawyer of a government witness about Batlle’s admissions

in his post-arrest statement (1) violated the court’s order that any references in the

statement to Ugarte be redacted from the statement, and (2) violated Bruton v.

United States, 88 S.Ct. 1620 (1968), because Batlle did not testify.3

       The agent’s cross-examination testimony prejudiced Ugarte: it implicated

Ugarte as part of the stolen phone conspiracy. But other evidence at trial showed

(1) that Ugarte had participated in wiretapped phone conversations about the cell



  2
  We review a district court’s denial of these motions for an abuse of discretion. United States v.
Ramirez, 426 F.3d 1344, 1352-53 (11th Cir. 2005).
  3
    The government’s direct examination of the agent produced no statements directly referring to
Ugarte. But during cross-examination, Batlle’s lawyer asked questions and received answers
indicating that Batlle in his post-arrest statement said that both Ugarte and Batlle had received a
commission from the sale of the phones and that Batlle had learned of the phones from Ugarte.

                                                6
phone transaction, (2) that officers observed Ugarte drive to a warehouse where he

unloaded boxes into a truck, in which another co-conspirator admitted to

transporting the boxes of stolen cell phones, (3) that a co-conspirator testified that

Ugarte and Batlle explained that no one knew that the phones were stolen, and

(4) that Ugarte admitted to a previous conviction for possession of stolen goods

with conduct similar to that involved in this case. In the light of all the properly

admitted testimony of Ugarte’s involvement in the conspiracy, the prejudicial

effect of the agent’s testimony about Batlle’s admission “is so insignificant . . .

that it is clear beyond a reasonable doubt that the improper use of the admission

was harmless error.” United States v. Veltmann, 6 F.3d 1483, 1500 (11th Cir.

1993) (quotation omitted).4 The district court did not abuse its discretion in

denying Ugarte’s motions for mistrial and for severance.

       Ugarte next contends that the government improperly shifted the burden of

proof to him, thus violating his Fifth Amendment right against self-incrimination.

He points to his testimony that he arranged for the purchase of defective cell

phones from a person named Jose Luis Lopez and that he received an invoice from

Lopez. On cross-examination, the government asked him where the invoice was.


  4
     We note that Ugarte did not make a contemporaneous objection when the agent testified about
Ugarte receiving a commission; Ugarte moved for a mistrial at the conclusion of the agent’s
testimony.

                                               7
      The government is not to suggest that a defendant is obligated to produce

evidence of innocence. See United States v. Simon, 964 F.2d 1082, 1086 (11th

Cir. 1992). But here, the government only referred to the invoice briefly: the

government’s question was not “so pronounced and persistent that it permeate[d]

the entire atmosphere of the trial.” Id. (citation omitted). And the district court

instructed the jury, after closing arguments, that the government alone bore the

burden of proving Ugarte’s guilt. See id. at 1087 (court’s curative instructions on

burden of proof may render harmless government’s prejudicial remark). We need

not decide whether the government’s question was improper: any error arising

from this question was harmless.

      Batlle argues that the district court erred by including the uncharged Rule

404(b) act evidence--specifically, the Dockers pants stolen in 2000, valued at

$308,000--as relevant conduct in its sentencing loss calculation. Batlle did not

object below to the court’s relevant conduct determination: we review this issue

for plain error. See United States v. Burge, 407 F.3d 1183, 1186 (11th Cir.), cert.

denied, 126 S.Ct. 551 (2005). Under the applicable relevant conduct provision,

U.S.S.G. § 1B1.3(a)(2) (1998), the charged offense and the Dockers theft are

“relevant conduct”: they are “part of the same course of conduct or common

scheme or plan.” The offenses involved (1) at least one common co-conspirator,

                                          8
Ugarte, (2) goods stolen from tractor-trailers in Florida, and (3) Batlle acting as a

middleman. See U.S.S.G. § 1B1.3(a)(2), comment. (n.9(A)) (“common scheme or

plan” means offenses “substantially connected to each other by at least one

common factor, such as common victims, common accomplices, common purpose,

or similar modus operandi”). The district court did not plainly err by including the

Dockers theft as relevant conduct.

        We also reject Batlle’s and Ugarte’s assertions that their sentences are

unreasonable under United States v. Booker, 125 S.Ct. 738 (2005). Batlle

contends that the district court relied too much on the extrinsic evidence of

uncharged offenses in calculating his guideline sentencing range and that the court

did not properly account for Batlle’s history and characteristics. And Ugarte

argues that, by denying his request for a minor role reduction and for a downward

departure based on his medical condition, the district court did not properly

consider the 18 U.S.C. § 3553(a) factors.5

        In fashioning Batlle’s sentence, the district court stated that it believed that

the guideline range addressed the appropriate sentencing factors, it indicated that



    5
     Ugarte does not argue the merits of the denial either of the minor role reduction or of the
downward departure. Instead, his argument is about the district court’s failure to take into account
these allegations in its evaluation of the § 3553(a) factors.


                                                 9
it had considered the statements of the parties, and it acknowledged Batlle’s

medical condition. In sentencing Ugarte, the district court stated that it had

considered the presentence investigation report and Ugarte’s sentencing

arguments; the court also indicated that a sentence within the applicable guideline

range was reasonable and addressed the appropriate sentencing factors. For

purposes of satisfying Booker, the district court’s statements were enough to show

that the court adequately considered the § 3553(a) factors. See United States v.

Talley, 431 F.3d 784, 786 (11th Cir. 2005) (acknowledgment by district court that

it has considered defendant’s arguments and factors in 18 U.S.C. § 3553(a)

satisfies Booker). The court then imposed sentences for both defendants at the

bottom of the applicable guideline ranges. And nothing evidences that the court’s

consideration of Batlle’s relevant conduct clouded its application of the sentencing

factors. See id. at 788 (expectation is that sentence within guidelines range would

be reasonable; party challenging sentence bears burden of showing sentence is

unreasonable in the light of the record and § 3553(a) factors). On this record, we

cannot say that Defendants’ sentences are unreasonable.

      AFFIRMED.




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