             Case: 15-14243   Date Filed: 02/03/2017   Page: 1 of 37




                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                          Nos. 15-14243; 15-14315
                         ________________________

         D.C. Docket Nos. 1:14-cr-20773-KMW-1; 1:14-cr-20773-KMW-2



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

versus

ANTONIO RICHARD,
IFEMMUTA C. ADIRIKA,

                                                Defendants - Appellants.


                         ________________________

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

                              (February 3, 2017)
               Case: 15-14243        Date Filed: 02/03/2017       Page: 2 of 37


Before HULL, and MARTIN, Circuit Judges, and RESTANI, * Judge.

HULL, Circuit Judge:

        Defendants Antonio Richard and Ifemmuta Adirika appeal their convictions

and sentences. A jury found both defendants guilty of possession and conspiracy to

distribute Oxycodone, a controlled substance. The district court sentenced Richard

and Adirika to 36 and 40 months’ imprisonment, respectively.

       On appeal, the defendants jointly raise three main issues. First, the

defendants argue entrapment. They claim that the government failed to present

sufficient evidence that they were predisposed to commit their offenses prior to the

involvement of a confidential government informant. Second, the defendants argue

that the district court violated their Sixth Amendment right of confrontation by

admitting the transcripts of Richard’s recorded conversations—translated from

Creole into English—without allowing for cross examination of the person who

first translated those conversations. Third, the defendants argue that the district

court abused its discretion and committed constitutional error in refusing to give

jury instructions concerning a missing witness and the confidential informant’s

invocation of his Fifth Amendment rights.




       *
         Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.
                                                2
               Case: 15-14243       Date Filed: 02/03/2017      Page: 3 of 37


       Separately, Richard raises an individual claim that the government failed to

present sufficient evidence of his Oxycodone possession and participation in the

conspiracy.

       After reviewing the briefs and the trial record on appeal, and with the benefit

of oral argument, we affirm the defendants’ convictions and sentences. 1

                             I. PROCEDURAL HISTORY

A.     Indictment

       On October 10, 2014, a federal grand jury in the Southern District of Florida

returned a six-count indictment against the defendants. Count 1 of the indictment

charged both defendants with conspiracy to possess oxycodone with intent to

distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count 2 charged Richard

with possession of oxycodone with intent to distribute, in violation of 18 U.S.C. §

2 and 21 U.S.C. § 841(a)(1). Counts 3 through 6 charged Adirika with possession

of oxycodone with intent to distribute, in violation of 18 U.S.C. § 2 and 21 U.S.C.

§ 841(a)(1). Both defendants pled not guilty on all charges and proceeded to a joint

jury trial.




       1
         Richard’s advisory guidelines imprisonment range was 51 to 63 months. Adirika’s
advisory guidelines imprisonment range was 63 to 78 months. The defendants have challenged
neither the advisory guidelines calculations nor the reasonableness of their below-guidelines
sentences.
                                               3
              Case: 15-14243       Date Filed: 02/03/2017   Page: 4 of 37


B.    Trial, Jury Verdicts, Defendants’ Requests for Relief

      On April 29, 2015, the jury was sworn, and the government opened its case-

in-chief. Following the close of the government’s case, the defendants rested and

moved for judgments of acquittal, pursuant to Federal Rule of Criminal Procedure

29. The district court denied the motions. The district court then instructed the jury

as to each element required to prove Richard’s and Adirika’s respective possession

and conspiracy charges. On May 5, 2015, the jury returned verdicts finding the

defendants guilty on all counts.

      After the verdicts, the defendants filed motions for new trial, pursuant to

Federal Rule of Criminal Procedure 33. On July 8, 2015, the district court denied

the defendants’ new-trial motions.

C.    Sentences

      On September 14, 2015, the district court sentenced the defendant Richard to

concurrent terms of 36 months’ imprisonment and three years’ supervised release.

The district court sentenced the defendant Adirika to concurrent terms of 40

months’ imprisonment and three years’ supervised release. The defendants timely

appealed their convictions and sentences. This Court consolidated the appeals.

      Because the defendants’ consolidated appeal includes challenges to the

sufficiency of the evidence presented against them, we recount in detail the trial

evidence.


                                            4
             Case: 15-14243     Date Filed: 02/03/2017   Page: 5 of 37


                                  II. BACKGROUND

A.    Offense Conduct

      On April 3, 2012, Drug Enforcement Administration (DEA) agents arrested

Louis Valmyr, alias “Lucky,” for the illegal distribution of 1,900 Oxycodone pills.

Valmyr hoped to obtain leniency for his arrest. On April 4, 2012, the DEA offered

Valmyr leniency if Valmyr would agree to work as a confidential informant for the

DEA. Valmyr agreed. From that point forward, Valmyr provided confidential tips

to the DEA in exchange for an expected sentencing benefit. During the relevant

periods of this case, the DEA compensated Valmyr for his work, paying him

between $1,400 and $1,900.

      Later in April 2012, Valmyr told the DEA that he knew someone named

Antonio that was involved with a woman who was a pharmacist. Valmyr told the

agents that he was going to “see if he could get [the woman] to sell him some

Oxycodone.” After Valmyr told this to the DEA, DEA Special Agents Michael

Burt and Joseph Bryson began an investigation into the suspected distribution of

Oxycodone pills by Richard and the as-yet unidentified woman.

      On May 23, 2012, Valmyr contacted the DEA. Valmyr told the DEA that,

the day before, Valmyr had obtained an 80-milligram Oxycodone pill from

Richard. The DEA was not aware of this apparent May 22, 2012 visit with

Richard. Valmyr had made the visit “unannounced,” and Valmyr had not made any


                                         5
             Case: 15-14243    Date Filed: 02/03/2017   Page: 6 of 37


audio or video recording of the encounter. The DEA was also unaware that

Adirika’s residence was the location of Valmyr’s apparent visit.

      On May 23, 2012, when the DEA learned of Valmyr’s May 22, 2012 visit

with Richard, the DEA instructed Valmyr to return to Richard and to attempt to

pay him $55 for the Oxycodone pill. The DEA equipped Valmyr with an audio-

video recording device and gave him $200 in official funds to pay Richard for the

pill. The audio-video recording device contained a “wire,” which would allow

DEA agents to listen to Valmyr’s conversations in real time.

      Later in the day on May 23, 2012, Valmyr went (with the money, recording

device, and wire) to a residence where Richard was located and attempted to pay

him for the pill. Valmyr and Richard had a conversation outside the residence,

which Valmyr secretly recorded through the recording device provided to him by

the DEA.

      In this conversation, Valmyr told Richard that he had “like[d] the sample”

that Richard had given him. Valmyr told Richard that he had sold the pill for $55

and advised Richard that he had a contact who was interested in meeting with him

to buy Oxycodone. Valmyr then left the meeting.

      Immediately after meeting with Richard, Valmyr met with Burt and Bryson.

Valmyr told Burt and Bryson that he had just paid Richard $55 for the pill. The

audio recording of Valmyr’s conversation with Richard did not firmly establish an


                                         6
              Case: 15-14243     Date Filed: 02/03/2017    Page: 7 of 37


exchange of money, but when the agents searched Valmyr, they found that Valmyr

only had $145 of the $200 that the DEA agents had given him, a difference of $55.

Valmyr turned over the $145, the recording device, and the wire to Burt and

Bryson.

      On June 6, 2012, the DEA arranged to have an undercover agent, DEA

Special Agent Adrian Betancourt, meet with Richard at the Miller Ale House in

North Miami Beach, Florida. Agent Betancourt’s goals at the meeting were to

ascertain Richard’s capacity for furnishing large pill quantities and to identify

Richard’s supplier of Oxycodone pills. Betancourt attended the meeting with

Valmyr and posed as “[a]n individual interested in buying large amounts of

prescription pills,” specifically, 30-milligram and 80-milligram Oxycodone pills

for distribution. Betancourt wore a recording device to the meeting.

      During the meeting, Richard told Betancourt that his source of supply for the

pills was “a female who he had a romantic relationship with[,] from African

descent[,] who lived in New Jersey at one point[,] and who now lives in South

Florida.” Richard mentioned that she was the “boss” of the supply operation and

worked as “a pharmacist.”

      Betancourt attempted to negotiate with Richard for Oxycodone pills by

offering Richard prescription pads and “ID’s” or “identifications.” Betancourt

later testified that he did this because the law required a patient to present both a


                                           7
              Case: 15-14243     Date Filed: 02/03/2017     Page: 8 of 37


prescription and identification in order to have a prescription for Oxycodone filled.

Richard rejected Betancourt’s offer. Richard stated that “she,” the supplier, did not

need the items.

      Betancourt then offered to purchase large quantities of 30-milligram

Oxycodone pills from Richard on a regular basis if Richard could secure a price

below $15 per pill. Richard replied that his source was not interested in attracting

new customers. Richard commented that, “if it was up to him,” he would lower the

price to $12 or $13 a pill. However, Richard said that he did not control the pricing

decision. Richard disclosed the financial arrangement between him and his source

of supply: For each 30-milligram Oxycodone pill sold for $15, Richard received

$1, and his source of supply received $14. Richard explained that his source of

supply “kn[ew] the streets” and had a steady stream of customers willing to pay

$15 for an Oxycodone pill.

      Richard then alternatively proposed that Betancourt purchase 80-milligram

Oxycodone pills from him. The proposition surprised Betancourt because, as

Betancourt later testified at trial, offering such higher strength pills was

“something—especially when you meet someone for the first time . . . something

you don’t do.”

      Betancourt did not move forward with the 80-milligram offer, but he asked

Richard to introduce him to his source. Richard refused and told Betancourt that


                                           8
             Case: 15-14243     Date Filed: 02/03/2017   Page: 9 of 37


“she don’t want me to bring nobody.” The meeting ended without any express

agreement to meet with Betancourt or Valmyr in the future. Neither Richard,

Betancourt, or Valmyr exchanged pills or money at the meeting.

      On June 15, 2012, the DEA attempted to use Valmyr in a controlled buy of

Oxycodone from Richard. Valmyr was to try and purchase ten 80-milligram

Oxycodone pills for $600. The DEA provided Valmyr with the money for the sale,

as well with an audio-video recording device (including a wire), which Valmyr

wore. Valmyr tried calling Richard beforehand to set up a meeting, but Valmyr

was unable to reach Richard. Therefore, Bryson drove Valmyr to a residence

where Valmyr “had been . . . before” to “look[] for Richard.”

      Once at the residence, Bryson observed Valmyr approach the front door. A

woman answered the door and greeted Valmyr. Recorded video of the scene

showed that the woman was Adirika. Bryson later testified that this was, in fact,

Adirika’s residence. Valmyr entered the residence.

      Once inside the residence, Valmyr found Richard. Valmyr and Richard then

discussed an Oxycodone purchase. Valmyr paid Richard for ten 80-milligram

Oxycodone pills and received them from Richard. During the transaction, Richard

told Valmyr that “we have 2,000 in the 30s, 200 in the 80s,” a reference to

quantities of 30-milligram and 80-milligram Oxycodone pills. Richard also

suggested that other buyers were involved, saying that “[p]eople came here for


                                         9
              Case: 15-14243    Date Filed: 02/03/2017    Page: 10 of 37


300, 200. She can’t give them the stuff that she already ordered for - - for the

guys.”

         After the meeting, Valmyr met with Bryson and gave him the ten 80-

milligram Oxycodone pills he had just purchased from Richard, along with the

recording device (and wire). The pills were wrapped in aluminum foil.

      On July 30, 2012, Valmyr, equipped with a DEA recording device (and

wire) and acting under DEA direction, met with Adirika. Valmyr made a

controlled purchase of twenty 80-milligram Oxycodone pills for $60 apiece or a

total of $1,200. The DEA provided the money for the purchase. Following the

meeting, Valmyr turned over the twenty 80-milligram pills and the recording

device to Bryson. The pills were packaged in foil.

      On September 7, 2012, Valmyr, equipped with a DEA recording device (and

wire) and acting under DEA direction, met with Richard and Adirika. Valmyr

made a controlled purchase of 375 30-milligram Oxycodone pills at $16 a pill for a

total price of $6,000. The DEA supplied Valmyr with the money for the purchase.

After the meeting, Valmyr turned over the 375 30-milligram pills and the recording

device to Burt. The pills were packaged in an amber bottle.

      On October 25, 2012, Valmyr, equipped with a DEA recording device (and

wire) and acting under DEA direction, met with Adirika. Valmyr made a

controlled purchase of 375 30-milligram Oxycodone pills for $6,000 or $16 a pill.


                                          10
             Case: 15-14243    Date Filed: 02/03/2017   Page: 11 of 37


The DEA supplied Valmyr with the money for the purchase. After the meeting,

Valmyr met with the DEA agents and turned over the recording device and the 375

30-milligram Oxycodone pills. The pills were packaged in foil.

      On March 7, 2013, Valmyr, equipped with a DEA recording device (and

wire) and acting under DEA direction, attempted to make a final controlled

purchase of Oxycodone from Richard and Adirika. Valmyr telephoned Richard and

informed him that he had located “someone who needs some stuff.” Richard

responded by directing Valmyr to the pharmacy where Adirika worked. Valmyr

and Richard did not discuss how many pills would be purchased, but Valmyr

assured Richard that he would compensate him for his role in the drug sale.

      Before Valmyr went to the pharmacy, the DEA gave Valmyr $6,000 in

official funds to use for the attempted purchase. Valmyr also wore a DEA

recording device (and wire) to the meeting. When Valmyr arrived at the pharmacy,

he discussed the purchase of 200 30-milligram Oxycdone pills with Adirika.

Adirika chided Valmyr that he was supposed to be accompanied by his “cousin”

Richard when he visited her. Adirika and Valmyr then left the pharmacy and went

to Adirika’s residence to complete the sale. After completing the sale, Valmyr left

Adirika’s residence, met with DEA agents, and turned over the recording device

(with the wire) and the 200 30-milligram Oxycodone pills that he had just

purchased. The pills were packaged in aluminum foil.


                                         11
             Case: 15-14243     Date Filed: 02/03/2017    Page: 12 of 37


      After Valmyr’s final Oxycodone purchase on March 7, 2013, the agents did

not dispatch Valmyr to make further purchases of Oxycodone pills from Richard or

Adirika. The DEA remained in contact with Valmyr by holding debriefings with

him “[e]very 90 days at a minimum.” On November 6, 2014, agents arrested

Richard and Adirika.

B.    Tape Recordings and Transcripts

      Following the defendants’ arrest, the DEA collected the recordings of the

defendants’ conversations with Valmyr. Throughout these recordings, Valmyr

sometimes spoke to Richard in Creole, a language that Burt, Bryson, Betancourt,

and Adirika did not speak. The government sent the audio of the recordings “away

to be translated” at the Utah National Guard Joint Language Training Center (the

“translation center”). The translation center translated the audio recordings from

Creole into English and produced written transcripts of the translations. The

government then retained a Creole translator, Philippe Chany, who performed an

independent review of the transcripts. Chany read the transcripts, listened to all of

the audio recordings, compared the transcripts to the audio recordings, and made

three “very minor” changes to the transcripts. Chany used a headset to assist with

hearing the audio recordings and “would rewind and play [an audio recording]

again” if any phrase was “not [] clear on the first pass.” After making the minor

changes to the transcripts, Chany testified that he had reviewed “all of the


                                          12
              Case: 15-14243     Date Filed: 02/03/2017   Page: 13 of 37


documents” for the purpose of “making sure what I was hearing corresponded to

what was being written down.” Chany testified that the he had completed his

review for each exhibited transcript, and Chany answered in the affirmative when

asked whether the exhibited transcripts “accurately reflect[ed] the three changes

[he] made.”

C.    Valmyr’s Arrest and Subsequent Unavailability

      On November 12, 2014, the district court held an arraignment for the

defendants. Following arraignment, the district court set a joint trial date for the

defendants of April 13, 2015.

      On April 8, 2015, just days before trial, the DEA arrested Valmyr for

trafficking in three kilograms of cocaine without authorization. Agents found that

Valmyr had been carrying $90,000 in cash in an attempt to make an unauthorized

purchase of cocaine.

      On April 8, 2015, the prosecutor notified the district court and defense

counsel of Valmyr’s arrest. On April 9, 2015, the defendants filed a joint motion to

continue the trial.

      On April 10, 2015, the district court held a hearing regarding the motion to

continue the trial. At the hearing, the government informed the district court that

they would not be calling Valmyr as a witness in their case-in-chief. The defense

still wished to reserve the right to call Valmyr as a witness for the defense’s case.


                                          13
             Case: 15-14243      Date Filed: 02/03/2017    Page: 14 of 37


      The district court did not rule as to whether Valmyr would testify. However,

in light of Valmyr’s arrest, the district court ordered the government to turn over to

the defense all details regarding the government’s investigation of Valmyr and

Valmyr’s deactivation as a confidential informant. The district court then granted

the motion to continue the trial. The district court postponed the start of trial until

April 27, 2015.

      On April 28, 2015, amidst voir dire of the jury, the defense filed a Joint

Petition for Writ of Habeas Corpus Ad Testificandum for Valmyr, seeking to

compel his testimony. The district court granted the petition and issued the writ to

have Valmyr produced in the courtroom for trial.

      On April 29, 2015, the government opened its case-in-chief. The

government’s first three witnesses testified. The district court then excused the jury

and held a conference with the parties to discuss Valmyr’s potential testimony.

      At the conference, Valmyr’s personal attorney advised the district court that,

due to his recent arrest, his client would be asserting his Fifth Amendment right to

remain silent. Valmyr’s counsel noted that the government had decided not to offer

Valmyr immunity from prosecution. The district court directed the defense to

question Valmyr outside the presence of the jury to determine if he, in fact, would

invoke his Fifth Amendment rights. The defense counsel did so, and Valmyr

invoked his right to remain silent. Based on Valmyr’s invocation, the district court


                                           14
             Case: 15-14243     Date Filed: 02/03/2017    Page: 15 of 37


determined that Valmyr was “unavailable” to testify. The district court notified the

defense that it would get “all the appropriate impeachment that [it could] get” of

Valmyr through “cross examination.”

      At trial, the defense attempted to impeach Valmyr through cross

examination of Burt and Bryson. For example, the defense cross examined Burt,

who testified that Valmyr “was caught with three kilos of cocaine,” was found with

“$90,000 in cash” for a purchase that “[h]e was not authorized . . . to make,” and

was “deactivated” as a confidential informant. The defense also cross examined

Bryson, who testified that “[o]n April 8, 2015, . . . Valmyr was arrested” because

“[h]e had $90,000 in currency and . . . wanted to buy 3 kilos of cocaine.”

D.    The Tapes and Transcripts of Valmyr’s Interactions with the
      Defendants

      As part of its case in chief, the government sought to introduce into evidence

the tapes and transcripts of Valmyr’s recorded interactions with the defendants.

The government called Chany as a witness, who testified and faced cross

examination as to his certification of the transcripts’ accuracy.

      The defendants challenged the admission of the tapes and transcripts as a

violation of their Sixth Amendment right to confront witnesses against them. The

government defended the admissibility of the tapes and transcripts on the grounds

that the testimony of Chany, who had listened to the recordings and performed an

independent review of the transcripts, sufficed.
                                          15
             Case: 15-14243     Date Filed: 02/03/2017   Page: 16 of 37


      The district court admitted the tapes and transcripts. The district court also

gave the jury a special instruction concerning the nature of the transcription

process:

             I admit these transcripts for the limited and secondary purpose
             of helping you follow the content of the conversation as you
             listen to the tape recordings, particularly those portions spoken
             in Creole, and also to help you identify the speakers.

             You are specifically instructed that whether the
             transcript correctly reflects the content of the conversation
             or the identity of the speakers is entirely up to you to decide
             based on your evaluation of the testimony, what you have heard
             about the preparation of the transcripts, as well as your own
             examination of the transcript in relation to hearing the tape
             recording itself as the primary evidence of its own contents.
             If you determine that the transcript in any respect is
             incorrect or unreliable you should disregard it to that extent.
             ...

             Do not let the fact that it was in another language other than
             English influence you in any way.

             Now, if any of you understand Creole you must disregard
             completely what the witness has said in his or her language,
             your own interpretation, and consider as evidence only what is
             provided by the interpretation into English. If one of you who
             speaks Creole believes the interpreter has made a mistake you
             may bring it to the attention of the Court, but you should make
             your deliberations on the basis of the official interpretation.

E.    The Defendants’ Requested Jury Instructions

      At trial, the defense argued that the government entrapped the defendants,

convincing them to commit offenses they would not have otherwise committed. As



                                          16
             Case: 15-14243     Date Filed: 02/03/2017    Page: 17 of 37


part of the defense strategy, the defense attempted to cast doubt on the DEA’s

control of Valmyr during its investigation of the defendants.

      At the close of the evidence, the defense requested that the district court give

the jury a “missing witness instruction” based on Valmyr’s refusal to testify.

Defense counsel said that such an instruction would tell the jury that the

government failed to “call a witness that was peculiarly within their power to

immunize.” The defense also submitted an additional jury instruction which would

have stated that Valmyr had invoked his Fifth Amendment privilege, had been

subpoenaed by the defendants to testify, and had refused to answer questions about

his role as an informant.

      The district court declined to give both the “missing witness” instruction and

the defense’s requested instruction concerning Valmyr’s Fifth Amendment

invocation. The district court explained its decision on the grounds that “[n]either

side in a criminal litigation has the right to benefit from any inference a jury may

draw from a witness’ assertion of the Fifth Amendment privilege,” citing United

States v. Johnson, 488 F.2d 1206 (1st Cir. 1973). The district court stated:

      I will not give an instruction either to the missing witness nor will I
      give an instruction advising the jury that Mr. Valmyr has asserted his
      Fifth Amendment right. Neither party can discuss Mr. Valmyr’s
      situation other than he is under arrest for doing the very thing he had
      promised DEA he would not do.




                                          17
               Case: 15-14243    Date Filed: 02/03/2017    Page: 18 of 37


       Following denial of these two requested jury instructions, the defense

then asked the district court to provide an entrapment jury instruction to the

jury. The district court responded by offering the standard pattern jury

instruction on entrapment to the defense. The defense sought to modify the

standard pattern jury instruction because it wanted each of the two

defendants to be specifically named in the instruction. The district court

agreed to do so. At the close of the trial, the district court provided the

following entrapment jury instruction, with the defense’s requested changes,

to the jury:

       Defendant Antonio Richard and Defendant Ifemmuta Adirika have
       both claimed to be victims of entrapment regarding the charged
       offenses. The law forbids convicting an entrapped defendant.

       But there is no entrapment when a defendant is willing
       to break the law and the Government merely provides what
       appears to be a favorable opportunity for the defendant to
       commit a crime.

       For example, it's not entrapment for a Government
       agent to pretend to be someone else and offer - directly or
       through another person - to engage in an unlawful
       transaction.

       So a defendant isn't a victim of entrapment if you
       find beyond a reasonable doubt that the Government only offered
       the defendant an opportunity to commit a crime the defendant
       was already willing to commit.

       But if there is a reasonable doubt about whether a
       defendant was willing to commit the crime without the
       persuasion of a Government officer or a person under the
                                           18
             Case: 15-14243      Date Filed: 02/03/2017    Page: 19 of 37


      Government's direction, then you must find the defendant not
      guilty.

      Following the district court’s charges to the jury and the jury’s

deliberations, the jury convicted the defendants on all counts. We now turn

to the defendants’ claims on appeal.

                               III.    ENTRAPMENT

      On appeal, the defendants argue that the government failed to provide

sufficient evidence for a reasonable jury to conclude that the defendants were

predisposed to commit their offenses prior to the government’s alleged entrapment.

A.    Standard of Review

      “[E]ntrapment as a matter of law is a sufficiency of the evidence inquiry”

which we review de novo, “view[ing] all facts and mak[ing] all inferences in favor

of the government.” United States v. King, 73 F.3d 1564, 1568 (11th Cir. 1996)

(quoting United States v. Brown, 43 F.3d 618, 622 (11th Cir. 1995)). We limit our

review to “whether the evidence was sufficient to enable a reasonably-minded jury

to reach the conclusion [beyond a reasonable doubt] that the defendant was

predisposed to take part in the illicit transaction.” United States v. Aibejeris, 28

F.3d 97, 99 (11th Cir. 1994) (quoting United States v. Ventura, 936 F.2d 1228,

1230 (11th Cir. 1991)).




                                           19
             Case: 15-14243      Date Filed: 02/03/2017    Page: 20 of 37


B.    General Principles

      “Predisposition . . . refers to the likelihood that the defendant would have

committed the crime without the government’s invention, or actively wanted to but

hadn’t yet found the means.” United States v. Mayfield, 771 F.3d 417, 441 (7th

Cir. 2014). Predisposition “is measured prior to the government’s attempts to

persuade the defendant to commit the crime.” Id. at 436. The element focuses on

whether the defendants were “unwary innocent[s]” or, instead, “unwary

criminal[s]” who “readily availed [themselves] of the opportunity to perpetrate the

crime.” Mathews v. United States, 485 U.S. 58, 63, 108 S. Ct. 883, 886 (1988)

      “This Court has rejected the notion that the predisposition analysis is one

that occurs against a backdrop of fixed, enumerated factors; instead, it has held that

it is a necessarily fact-intensive, subjective inquiry into a defendant’s state of

mind.” United States v. Isnadin, 742 F.3d 1278, 1298 (11th Cir. 2014). In prior

entrapment cases, this Court has considered “evidence that the defendant was

given opportunities to back out of illegal transactions but failed to do so,” Brown,

43 F.3d at 625, “prior related offenses,” id., and “post-crime statements.” United

States v. Andrews, 765 F.2d 1491, 1499 (11th Cir. 1985).

C.    Richard’s Predisposition

      In this case, sufficient evidence supports the conclusion that the defendants

were predisposed to commit their Oxycodone offenses. On May 23, 2012, Valmyr


                                           20
             Case: 15-14243    Date Filed: 02/03/2017    Page: 21 of 37


first informed the DEA that he had received an Oxycodone pill from Richard. At

that point, Valmyr was nothing more than a “tipster” for the DEA, and the DEA

was unaware that Valmyr had even gone to visit Richard. The fact that Valmyr

obtained an Oxycodone pill from Richard without any DEA knowledge of the visit

supports a reasonable inference that Richard furnished the pill free of any

concerted government design.

      Notwithstanding this, ample additional evidence suggests that Richard was

already involved in an Oxycodone distribution scheme prior to any targeted

government action. For example, on June 6, 2012, just a few days after Valmyr had

first obtained an Oxycodone pill from Richard, Betancourt met with Richard.

Betancourt offered Richard identifications and prescription pads—items that would

be highly useful for a new, would-be drug dealer who wanted to obtain

Oxycodone. However, Richard rejected the offer and suggested that he already had

a consistent supplier who “kn[ew] the streets.” Moreover, although Richard had

ample opportunity to pull out of the drug conspiracy during the course of the

DEA’s investigation, he continued to participate in multiple separate controlled

buys from the DEA between June 2012 and March 2013. The evidence as to

Richard’s actions and attitude throughout the course of the DEA investigation thus

corroborate his predisposition to commit the offenses prior to DEA involvement.




                                         21
             Case: 15-14243    Date Filed: 02/03/2017   Page: 22 of 37


D.    Adirika’s Predisposition

      Similarly, the evidence suggests that Adirika was predisposed to facilitating

a large-scale Oxycodone distribution scheme. Before the DEA ever directly

observed Adirika, Richard informed the DEA that his supplier was a female

pharmacist, of African descent, who once lived in New Jersey—a description that

matches Adirika. On May 22, 2012, prior to DEA observation of Adirika, Valmyr

told DEA agents that he had procured an Oxycodone pill at a residence later

recognized as Adirika’s home. On June 6, 2012, prior to DEA observation of

Adirika, Richard told Valmyr and an undercover DEA agent (Betancourt) that

Adirika already had the necessary prescription pads and identifications for the sale

of Oxycodone.

      The DEA first observed Adirika at a controlled buy with Richard on June

15, 2012. When Valmyr showed up unannounced at Adirika’s home for the

controlled buy, Adirika allowed Richard to sell Valmyr $600 in Oxycodone in the

home. At the controlled buy, Richard talked about the large inventory of

Oxycodone pills at Adirika’s home that “we” already have: 2,000 30-milligram

pills and 200 80-milligram pills. Adirika does not deny this.

      Moreover, Adirika also participated in numerous controlled buys of

Oxycodone without protest, despite multiple opportunities to back out or to stop

the sales. Indeed, at the September 7, 2012 meeting between Adirika and Valmyr,


                                         22
             Case: 15-14243     Date Filed: 02/03/2017   Page: 23 of 37


Adirika initiated the discussion about a drug transaction by first asking Valmyr

whether he had brought identifications. When Adirika found out that Valmyr had

not brought them, Adirika reprimanded Valmyr and told him that she might have

to pay a higher price for the identifications from a “crackhead on the street.”

      Richard’s references to Adirika’s involvement, prior even to the DEA’s

identification of her, combined with Adirika’s repeated participation in subsequent

buys, provide sufficient evidence that she was predisposed to commit her offenses.

Valmyr did not need to use repeated and persistent requests to purchase

Oxycodone from Adirika. Instead, Adirika demonstrated openness to Oxycodone

sales on the first available occasion (June 15, 2012), and she continued to support

and even initiate sales in subsequent transactions.

                      IV.     CONFRONTATION CLAUSE

      We now turn to the defendants’ claim that the introduction of certain

transcripts, which were translated from Creole into English, violated the

defendants’ Sixth Amendment right to confront the witness against them.

A.    Standard of Review

      This Court reviews de novo a preserved Confrontation Clause claim. United

States v. Curbelo, 726 F.3d 1260, 1271-72 (11th Cir. 2013). We review de novo

“whether hearsay statements are testimonial for purposes of the Confrontation

Clause.” United States v. Carballo, 595 F.3d 1214, 1226 (11th Cir. 2010). A


                                          23
             Case: 15-14243     Date Filed: 02/03/2017    Page: 24 of 37


Confrontation Clause error requires reversal unless the government can prove that

the error was harmless beyond a reasonable doubt. Chapman v. California, 386

U.S. 18, 24, 87 S. Ct. 824, 828 (1967).

B.    General Principles

      The Confrontation Clause to the Sixth Amendment provides, “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him.” U.S. Const. amend. VI. In Crawford v. Washington,

541 U.S. 36, 59, 124 S.Ct. 1354, 1368 (2004), the Supreme Court held that the

Confrontation Clause allows the admission of “[t]estimonial statements of

witnesses absent from trial . . . only where the declarant is unavailable, and only

where the defendant has had a prior opportunity to cross-examine [the declarant].”

Id., 124 S. Ct. at 1369.

      Testimonial statements are the “functional equivalent” of in-court testimony

and are statements “that were made under circumstances which would lead an

objective witness reasonably to believe that the statement would be available for

use at a later trial.” Id. at 51-52, 124 S. Ct. at 1364. The Supreme Court has held

that forensic reports and laboratory certifications may be “testimonial” for

purposes of the Confrontation Clause. See Bullcoming v. New Mexico, 564 U.S.

647, 665, 131 S. Ct. 2705, 2717 (2011) (holding a certification of the blood alcohol

content of a sample to be testimonial); Melendez-Diaz v. Massachusetts, 557 U.S.


                                          24
             Case: 15-14243     Date Filed: 02/03/2017   Page: 25 of 37


305, 310-11, 129 S. Ct. 2527, 2532 (2009) (holding that a certification that

material seized by the police included cocaine was testimonial). This Court has

further held that autopsy reports produced by licensed medical practitioners may

include testimonial statements. See United States v. Ignasiak, 667 F.3d 1217, 1232

(11th Cir. 2012).

      In cases involving the use of a translator, the question of who “makes” a

statement—whether the original speaker or the translator—is relevant to the

Confrontation Clause analysis. In United States v. Curbelo, this Court held that a

translator who was “not the original translator” can—in certain circumstances—

serve as the “‘witness[] against’ [the defendant] under the Sixth Amendment.” 726

F.3d 1260, 1276 (11th Cir. 2013).

C.    Curbelo

      In Curbelo, the government introduced as evidence English-language

transcripts of the defendant’s recorded cell-phone conversations. Id. at 1265. The

majority of the original conversations occurred in Spanish. Id. The person who

prepared the English-language transcripts did not testify, so the defendant raised a

Confrontation Clause challenge as to the admission of the transcripts. Id.

      At trial, the government established the accuracy of the English-language

transcripts through the testimony of a third party, Jose Diaz. Id. at 1264-65. Diaz

did not prepare the English-language transcripts; however, Diaz spoke both


                                         25
             Case: 15-14243     Date Filed: 02/03/2017    Page: 26 of 37


English and Spanish and was a party to the original conversations made by the

defendant (in Spanish). Id. at 1265, 1276. To certify the transcripts, Diaz

performed an “independent review of the recordings and transcripts”; Diaz testified

that “he had listened to the recordings, reviewed the transcripts, and believed the

transcripts to be accurate reflections of the recordings.” Id. at 1274-75.

      The Curbelo Court held that Diaz’s independent review and testimony

resolved the Confrontation Clause issue. The Court recognized that “the transcripts

were the translator’s work product, not Diaz’s,” and that “Diaz did not start from

scratch in translating the conversations.” Id. However, the Court explained that the

government “did not introduce the transcripts on the weight of the translator’s

certification, but on Diaz’s testimony.” Id. at 1274. Put another way, the

government only used “Diaz’s live testimony . . . to support the transcript’s

accuracy” and did not rely on any statement by the original translator. Id. at 1274-

75. Furthermore, Diaz’s “testimony was based on firsthand comparison of the

recordings and the transcripts.” Id. at 1275.

      Because Diaz had “listened to the recordings, reviewed the transcripts,” and

“independently confirmed the transcripts’ accuracy,” Diaz had therefore become,

for Confrontation Clause purposes, the “witness” against the defendant as to the

accuracy of the transcripts. Id. at 1275-76. “Diaz did not need to sit down with

pencil and paper and start the translation process anew.” Id. at 1275. Rather, Diaz,


                                          26
             Case: 15-14243      Date Filed: 02/03/2017    Page: 27 of 37


as the last to review the transcripts, “had the ultimate say over the content of the

transcripts, making him the final translator . . . [and] thus the witness.” Id. (quoting

United States v. Sardinas, 386 F. App’x 927, 942 (11th Cir. 2010)). And because

Diaz testified, allowing the defense to cross examine him on “his language

expertise, his biases, and the translation’s accuracy,” the Court held that the

defendants had received their constitutional right to confront the “witness” against

him. Id. at 1276. The Court emphasized that the “Confrontation Clause makes no

distinction between accurate and inaccurate testimony; it only insists that

testimony be subject to cross-examination.” Id. at 1275. “[B]ecause Diaz . . . was

the witness . . . under the Sixth Amendment,” and because Diaz was cross

examined, “the admission of the transcripts through Diaz’s testimony did not

violate the Confrontation Clause.” Id. at 1276.

D.    Discussion

      This case presents facts similar to those in Curbelo. The government seeks to

introduce English-language transcripts of audio recordings that have been

translated from another language—in this case, Creole—into English. Similarly,

the government relies exclusively on the certification of a third party to confirm the

accuracy of the English-language transcripts. Unlike Diaz in Curbelo, the third

party in this case, Chany, was not a party to the original recorded conversations.

However, Curbelo did not hold this fact to control the issue. Rather, Curbelo held


                                           27
                 Case: 15-14243   Date Filed: 02/03/2017   Page: 28 of 37


that a third party’s independent, firsthand review of the recordings and transcripts

for accuracy, combined with the third party’s availability to the defendant for

cross-examination, suffices for purposes of the Confrontation Clause. See id. at

1276.

        Here, Chany testified that he listened to the original audio recordings,

compared those recordings to the transcripts generated by the Utah translation

center, and confirmed the transcripts’ accuracy. The government only offered the

transcripts that were subjected to Chany’s independent review. Chany testified to

the accuracy of the transcripts’ entire contents and even offered a few minor edits,

which were included in the transcripts proffered to the district court.

        “[I]t is not the case, that anyone whose testimony may be relevant in

establishing the chain of custody . . . of the sample . . . must appear in person as

part of the prosecution’s case.” Melendez-Diaz, 557 U.S. at 311 n.1, 129 S. Ct. at

2532 n.1. Because Chany served as the “witness” as to the transcripts’ accuracy,

and because Chany testified, the defendants’ Sixth Amendment rights were not

violated.

            V.      DISTRICT COURT TREATMENT OF VALMYR’S
                              UNAVAILABILITY

        On appeal, the defendants challenge the district court’s decision not to give a

missing witness instruction, as well as an instruction concerning Valmyr’s

invocation of his Fifth Amendment rights. The defendants argue that the district
                                           28
              Case: 15-14243     Date Filed: 02/03/2017    Page: 29 of 37


court abused its decision in declining to give these instructions. The defendants

additionally argue that the district court’s refusal to give these instructions

impaired their ability to present a complete defense, in violation of their

constitutional rights.

A.    Standard of Review

      We review “a district court’s refusal to give a jury instruction requested by

the defense for abuse of discretion.” United States v. Dulcio, 441 F.3d 1269, 1275

(11th Cir. 2006). We will not reverse the district court unless the requested jury

instruction: “(1) was a correct statement of the law; (2) was not adequately covered

in the instructions given to the jury; (3) concerned an issue so substantive that its

omission impaired the accused’s ability to present a defense; and (4) dealt with an

issue properly before the jury.” Id. (quoting United States v. Brazel, 102 F.3d

1120, 1139 (11th Cir. 1997)).

      Constitutional errors are reviewed de novo, United States v. Holt, 777 F.3d

1234, 1261 (11th Cir. 2015), and require reversal unless the government can show

that the error was harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24,

87 S. Ct. at 828.

B.    General Principles

       “When a witness is peculiarly within the control of one party, and the

witness’ testimony would elucidate facts in issue, an instruction is appropriate


                                           29
               Case: 15-14243       Date Filed: 02/03/2017       Page: 30 of 37


regarding the permissible inference which the jury may draw from the party’s

failure to call the witness.” United States v. Nahoom, 791 F.2d 841, 846 (11th Cir.

1986). However, “[t]he long-standing rule in this circuit is that any inference from

a party’s failure to call a certain witness equally available to both parties is

impermissible.”2 United States v. Chapman, 435 F.2d 1245, 1247 (5th Cir. 1970)

(emphasis added) (finding that no inference was permitted from the absence of

witnesses who were available neither to the prosecution nor to the defense).

“Ordinarily no inferences are permitted as a result of the failure to call to the

witness stand one whose testimony would be privileged.” McClanahan v. United

States, 230 F.2d 919, 926 (5th Cir. 1956).

       “This court has not yet addressed the issue of whether the government’s

refusal to grant immunity to a witness may serve as a basis for a missing witness

instruction.” United States v. Raphael, 487 F. App’x 490, 500 (11th Cir. 2012).

However, “every circuit to have considered this question has held that the

government’s mere ability to grant immunity, without more, ‘does not make a

witness who invokes the Fifth Amendment right not to testify peculiarly available

to the government.’” Id. (quoting United States v. Rios, 636 F.3d 168, 171 (5th Cir.

2011)); see, e.g., United States v. Myerson, 18 F.3d 153, 158-60 (2d Cir. 1994);



       2
       This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
                                               30
             Case: 15-14243     Date Filed: 02/03/2017    Page: 31 of 37


United States v. St. Michael’s Credit Union, 880 F.2d 579, 597-98 (1st Cir. 1989);

United States v. Brutzman, 731 F.2d 1449, 1453-54 (9th Cir. 1984).

C.    Missing Witness Instruction

      The district court did not abuse its discretion in declining to give a missing

witness instruction because Valmyr’s Fifth Amendment invocation rendered him

equally unavailable to both the government and the defense. See Chapman, 435

F.2d at 1247.

      Additionally, the trial evidence here provided ample opportunity for the jury

to draw its own conclusions as to why Valmyr was “missing.” On several

occasions, Burt and Bryson both testified that Valmyr was recently arrested for

dealing in cocaine. Burt’s testimony also showed that Valmyr had been deactivated

as a confidential informant. In light of this, the lack of a missing witness

instruction did not “concern[] an issue so substantive that its omission impaired the

accused’s ability to present a defense.” See Dulcio, 441 F.3d at 1275.

D.    Instruction Regarding Valmyr’s Fifth Amendment Invocation

      Neither did the district court abuse its discretion in declining to give a jury

instruction concerning Valmyr’s invocation of his Fifth Amendment rights. Again,

because we do not permit parties to draw inferences from a witness’ invocation

where such an invocation renders the witness equally unavailable to both parties,




                                          31
             Case: 15-14243     Date Filed: 02/03/2017    Page: 32 of 37


see Chapman, 435 F.2d at 1247, the district court was well within its discretion not

to give such an instruction here.

E.    The Lack of Requested Instructions Did not Create Constitutional
      Error

      Moreover, the district court did not deprive the defendants of their

constitutional rights by declining to give the requested jury instructions.

      “Whether rooted directly in the Due Process Clause of the Fourteenth

Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth

Amendment, the Constitution guarantees criminal defendants ‘a meaningful

opportunity to present a complete defense.’” Holmes v. South Carolina, 547 U.S.

319, 324, 126 S. Ct. 1727, 1731 (2006) (quoting Crane v. Kentucky, 476 U.S. 683,

690, 106 S. Ct. 2142, 2146 (1986)). The defense received ample opportunity to do

so here. At all relevant times, the defense could call witnesses and cross-examine

each of the government’s witnesses. Although the defense may have wished to

specifically call Valmyr, the government did not gain a trial advantage on account

of Valmyr’s unavailability because Valmyr was equally unavailable to the parties.

And even if impeachment of Valmyr was an important element of the defense’s

case, the defense had the opportunity to cross examine multiple government

witnesses about Valmyr’s arrest and unreliability as a confidential informant.

Indeed, the defense did so in its cross examination of both Burt and Bryson. Given



                                          32
             Case: 15-14243     Date Filed: 02/03/2017    Page: 33 of 37


these facts, we cannot say that Valmyr’s unavailability deprived the defendants of

their constitutional rights by impairing their ability to present a complete defense.

      VII. SUFFICIENCY OF THE EVIDENCE AS TO RICHARD’S
                        CONVICTION

      Richard raises an additional claim not adopted by Adirika in her appellate

brief. Richard argues that, irrespective of entrapment, the government failed to

produce sufficient evidence to support Richard’s Oxycodone conspiracy and

possession convictions. Richard argues that the district court should have granted

his Rule 29 motion and that it should now vacate his convictions.

A.    Standard of Review

      This Court reviews de novo a challenge to the sufficiency of the evidence.

United States v. Charles, 313 F.3d 1278, 1284 (11th Cir. 2002). 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. United States v.

Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009).

B.    General Principles

      To sustain a conspiracy conviction, the government must prove an

agreement among two or more persons to distribute drugs, the defendant’s

knowledge of the conspiracy’s goal, and the defendant’s knowing and voluntary

participation in the venture. United States v. Reeves, 742 F.3d 487, 497 (11th Cir.

2014); United States v. Brown, 587 F.3d 1082, 1089 (11th Cir. 2009). The
                                          33
             Case: 15-14243     Date Filed: 02/03/2017    Page: 34 of 37


government must provide “substantial evidence that each alleged conspirator knew

of, intended to join and participated in the conspiracy.” United States v. Avila-

Dominguez, 610 F.2d 1266, 1271 (5th Cir. Feb. 1980). The government informant

cannot serve as the sole co-conspirator. See United States v. Lively, 803 F.2d

1124, 1126 (11th Cir. 1986). “Conspiracy may be proven by circumstantial

evidence and the extent of participation in the conspiracy or extent of knowledge

of details in the conspiracy does not matter if the proof shows the defendant[s]

knew the essential objective of the conspiracy.” United States v. Gupta, 463 F.3d

1182, 1194 (11th Cir. 2006) (internal quotation marks omitted).

      To sustain a conviction for possession with intent to distribute drugs, “the

government must show that the defendant had (1) knowing (2) possession of the

drugs and (3) an intent to distribute them.” United States v. Capers, 708 F.3d 1286,

1297 (11th Cir. 2013).

C.    The Government Presented Substantial Evidence to Support Richard’s
      Conspiracy Conviction

      Richard argues that there is no evidence of an agreement between Richard

and Adirika sufficient to support a conspiracy. Richard suggests that, at the first

controlled buy in which Richard and Adirika were present together (on June 15,

2012), Adirika was not aware that Valmyr was going to show up at the residence.

Richard thus suggests that Adirika could not have been aware of an apparent

Oxycodone conspiracy with Richard. As to the later controlled Oxycodone buys on
                                          34
             Case: 15-14243     Date Filed: 02/03/2017    Page: 35 of 37


July 30, 2012, September 7, 2012, October 25, 2012, and March 7, 2013, Richard

argues that he was either not present at the controlled buys or did not actively

participate in them.

      However, the government presented substantial evidence that Richard

participated with Adirika in an Oxycodone-distribution conspiracy from June 2012

through March 2013. As early as June 6, 2012, Richard mentioned to the DEA that

he had a relationship with a female Oxycodone supplier whose description

matched that of Adirika. At Valmyr’s June 15, 2012 meeting with Richard and

Adirika, Richard told Valmyr that “we have 2,000 [pills] in the 30s, 200 [pills] in

the 80s.” Richard also said—with Adirika present—that “[s]he can’t give them the

stuff that she already ordered for - - for the guys.” Perhaps most tellingly, on

March 7, 2013, when Valmyr asked Richard about a possible Oxycodone purchase,

Richard directed Valmyr to Adirika’s pharmacy and sought compensation from

Valmyr as part of facilitating an Oxycodone sale through Adirika.

      Adirika’s apparent silence at some of these meetings does not negate a

reasonable inference that she had knowledge sufficient to serve as a co-conspirator

in Richard’s Oxycodone conspiracy. We have previously affirmed a conspiracy

conviction “when 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. Vernon, 723 F.3d 1234, 1273-74 (11th Cir.


                                          35
              Case: 15-14243   Date Filed: 02/03/2017    Page: 36 of 37


2013) (quoting United States v. Molina, 443 F.3d 824, 828 (11th Cir. 2006)).

Richard and Adirika were present together for controlled buys of Oxycodone on

multiple occasions, and the government presented additional evidence of

coordination between the two in establishing buys when the other co-defendant

was not present. Substantial evidence thus supports Richard’s conspiracy

conviction.

D.    The Evidence Supports Richard’s Drug Conviction

      So, too, does the evidence support Richard’s conviction for possession of

Oxycodone with intent to distribute. Richard challenges the government’s evidence

on the basis that there is no express video recording showing an exchange of pills.

Richard argues that the audio recordings of Richard’s transactions, on their own,

could not support an inference that Richard actually possessed the pills.

      Richard’s argument is without merit. On June 15, 2012 Valmyr met with

Richard and discussed a purchase of ten 80-milligram Oxycodone pills. Prior to

this meeting, Bryson searched Valmyr and made sure that he was not carrying any

pills. Just after Valmyr met with Richard, Bryson again searched Valmyr. Bryson’s

subsequent searched revealed that Valmyr had acquired ten 80-milligram

Oxycodone pills. Drawing all reasonable inferences in favor of the government, as




                                         36
                Case: 15-14243      Date Filed: 02/03/2017       Page: 37 of 37


we are required to do here, sufficient evidence thus supports the finding that

Richard knowingly possessed Oxycodone pills with the intent to distribute them. 3

                                  VIII. CONCLUSION

           For all of these reasons, we affirm the defendants’ convictions and

sentences.

           AFFIRMED.




       3
         The defendants also argue that the cumulative effect of two or more of the above errors
merits a new trial. See United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005). The
cumulative error doctrine recognizes that the “cumulative prejudicial effect of many errors may
be greater than the sum of the prejudice caused by each individual error.” Id. “In addressing a
claim of cumulative error, [the Court] must examine the trial as a whole to determine whether the
appellant[s] [were] afforded a fundamentally fair trial.” United States v. Lopez, 590 F.3d 1238,
1258 (11th Cir. 2009). If there are no errors or only a single error, there cannot be any
cumulative error. United States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011). Because we
conclude that there is no error in this case, there is no cumulative error.
                                               37
