           Case: 14-10252     Date Filed: 03/09/2017   Page: 1 of 14


                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 14-10252
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 9:12-cr-80234-DMM-2



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                      versus

TAMMY LYNN VALDES,
RAFAEL OSCAR VALDES,
a.k.a. Rafael O. Valdez,

                                                         Defendants-Appellants.

                            ____________________

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

                               (March 9, 2017)



Before HULL, WILSON and BLACK, Circuit Judges.

PER CURIAM:
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      Tammy and Rafael Valdes appeal their convictions for one count of dealing

in firearms without a license, in violation of 18 U.S.C. § 922(a)(1), and four counts

of filing false income tax returns, in violation of 26 U.S.C. § 7206(1). Rafael also

appeals his convictions for one count of making a false statement in connection

with the sale of firearms, in violation of 18 U.S.C. § 922(a)(6), and one count of

selling stolen property, in violation of 18 U.S.C. § 2314. They raise separate issues

on appeal, which we address in turn. After review, we affirm their convictions.

                                  I. DISCUSSION

A. Conflict of interest

      Tammy contends a conflict of interest arose at trial because her attorney had

formerly represented Rafael and she did not knowingly and voluntarily waive her

right to conflict-free representation. The Sixth Amendment guarantees a criminal

defendant the right to effective assistance of counsel. Wheat v. United States, 486

U.S. 153, 158-59 (1988). This right is violated when the defendant’s counsel “has

an actual conflict of interest that affects the defendant adversely.” United States v.

Rodriguez, 982 F.2d 474, 477 (11th Cir. 1993). However, a criminal defendant

may waive his right to conflict-free counsel. United States v. Garcia, 517 F.2d




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272, 276 (5th Cir. 1975),1 abrogated on other grounds by Flanagan v. United

States, 465 U.S. 259 (1984).

       When made aware of a potential conflict of interest, the court should

conduct an inquiry, akin to the plea colloquy under Federal Rule of Criminal

Procedure 11, to determine whether a defendant wishes to waive the conflict. Id. at

278. During the hearing, the court should address the defendant “personally and

forthrightly” about the potential consequences of the conflict and elicit a narrative

response from the defendant that she has been advised of her right to effective

counsel, understands the details of the potential conflict and its consequences, has

discussed the matter with her attorney or an independent counsel, and voluntarily

waives her right. Id. In order to be valid, a waiver must be not only voluntary, but

also must be a “knowing, intelligent act[] done with sufficient awareness of the

relevant circumstances and likely consequences.” Id. at 276 (quotation omitted).

In order for a defendant’s waiver to be knowing and intelligent, he must be

informed “(1) that a conflict of interest exists; (2) the consequences to his defense

from continuing with conflict-laden counsel; and (3) that he has a right to obtain

other counsel.” Duncan v. State of Ala., 881 F.2d 1013, 1017 (11th Cir. 1989).




       1
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.

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      Tammy’s Sixth Amendment right to conflict-free representation was not

violated. See Hamilton v. Ford, 969 F.2d 1006, 1010 (11th Cir. 1992) (reviewing

whether a defendant waived his right to conflict-free counsel de novo). Tammy’s

waiver was knowing and intelligent. First, the record shows Tammy knew of the

conflict because she acknowledged in both of her waivers of conflict that she had

discussed all potential areas of conflict with her counsel. Most importantly, in both

waivers of conflict, Tammy stated she had discussed the conflict issues raised by

the Government, and the Government addressed the very conflict that she is

arguing on appeal she did not know about—her lack of knowledge. The district

court also warned Tammy during the second Garcia hearing that conflicts of

interest could arise before, during, and after trial. Second, Tammy was aware of

the consequences because the Government explained in detail in its motion for a

Garcia hearing, its motion to disqualify her attorney, and at both Garcia hearings

that Tammy’s defenses might be limited by her continued representation by her

attorney. Third, Tammy acknowledged she knew she had a right to conflict-free

representation at the second Garcia hearing. Because Tammy knew of the

conflict, had been informed of the potential consequences, and understood she had

a right to conflict-free representation and still chose to waive her right, her waiver

was valid. See Duncan, 881 F.2d at 1017.




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B. Dealing firearms without a license

      Tammy next asserts there was insufficient evidence she knowingly engaged

in the business of dealing firearms without a license. Under 18 U.S.C.

§ 922(a)(1)(A), it is unlawful for a person to engage in the business of dealing in

firearms without a license. A person is “engaged in the business of selling firearms

at wholesale or retail” if she “devotes time, attention, and labor to dealing in

firearms as a regular course of trade or business with the principal objective of

livelihood and profit through the repetitive purchase and resale of firearms.” 18

U.S.C. § 921(a)(11)(A), (a)(21)(C). In contrast, a person does not engage in the

business of selling firearms if she “makes occasional sales, exchanges, or

purchases of firearms for the enhancement of a personal collection or for a hobby,

or . . . sells all or part of [her] personal collection of firearms.” 18 U.S.C.

§ 921(a)(21)(C). The government must prove the defendant’s activity rose above

“the occasional sale of a hobbyist,” but does not need to show “the defendant’s

primary business was dealing in firearms or that [she] necessarily made a profit

from dealing.” United States v. Wilmoth, 636 F.2d 123, 125 (5th Cir. Unit A Feb.

1981). “It is enough to prove that the accused has guns on hand or is ready and

able to procure them for the purpose of selling them from time to time” for

customers. Id. A conviction requires proof the defendant knew her conduct was

unlawful. Bryan v. United States, 524 U.S. 184, 196 (1998).


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      The district court did not err in denying Tammy’s motion for a judgment of

acquittal because there is sufficient evidence to conclude Tammy knew her

conduct was illegal. See United States v. Hunt, 526 F.3d 739, 744 (11th Cir. 2008)

(reviewing de novo a district court’s denial of a Federal Rule of Criminal

Procedure 29 motion for a judgment of acquittal, viewing the evidence in the light

most favorable to the government and drawing all reasonable inferences in favor of

the jury’s verdict). Tammy admitted to knowing a business that sells firearms was

required to have a federal firearms license (FFL). She also admitted to having

filled out a Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) form,

which stated it was unlawful to engage in the business of dealing in guns without

an FFL. While she denied knowing she was conducting a business, when viewing

the evidence in the light most favorable to the Government, it is reasonable to infer

Tammy was aware she was engaging as a business based on the fact that (1) at the

gun shows where she sold firearms with Rafael, Tammy referred to her buyers as

customers, (2) she called her activity a “hustle,” (3) she and Rafael sold a high

volume of firearms—600 in 7 years, (4) she offered to search out specific firearms

for customers, (5) she discussed which firearms were her best sellers, and (6) she

handed out business cards. Therefore, a rational fact-finder could conclude that

not only did Tammy know businesses engaging in the sale of firearms were

required to have an FFL, but also that Tammy knew her actions qualified as a


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business, and therefore, her conduct was illegal because she did not have an FFL.

Additionally, the jury was entitled to take Tammy’s testimony denying knowledge

that she was breaking the law as substantive evidence of her guilt. See United

States v. Williams, 390 F.3d 1319, 1325 (11th Cir. 2004) (stating a defendant who

chooses to testify runs the risk of the jury disbelieving her, concluding the opposite

of her testimony is true, and considering her statements as substantive evidence of

her guilt).

C. Filing false income tax returns

       Tammy contends there was insufficient evidence she willfully filed false

income tax returns and she was entitled to invoke the “innocent spouse” provision

of 26 U.S.C. § 6013(e) because she did not prepare the tax documents.

       A person has filed false income tax returns, in violation of 26 U.S.C.

§ 7206(1), if the government can show “(1) [the defendant] willfully made and

signed a tax return; (2) the return contained a written declaration that it was made

under penalties of perjury; (3) the return was false as to a material matter; and

(4) [the defendant] did not subjectively believe that the return was true as to that

material matter.” United States v. Hough, 803 F.3d 1181, 1188 (11th Cir. 2015);

see 26 U.S.C. § 7206(1).

       26 U.S.C. § 6013(e) was repealed in 1998. See 26 U.S.C. § 6013(e).

Section 6015 of Title 26 currently provides for the possibility of relief from joint


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and several liability on a joint tax return. Under this section, a person may elect to

seek relief from liability if:

       (A) a joint return has been made for a taxable year; (B) on such return
       there is an understatement of tax attributable to erroneous items of one
       individual filing the joint return; (C) [she] establishes that in signing
       the return . . . she did not know, and had no reason to know, that there
       was such understatement; (D) taking into account all the facts and
       circumstances, it is inequitable to hold [her] liable for the deficiency
       in tax for such taxable year attributable to such understatement; and
       (E) [she] elects . . . the benefits of this subsection not later than the
       date which is 2 years after the date the Secretary has begun collection
       activities [for her].

26 U.S.C. § 6015(a)(1), (b)(1)(A)-(E). The wording of the former Section 6013(e)

of Title 26 is substantially the same as the wording of Section 6015 of Title 26.

See 26 U.S.C. § 6013(e) (repealed in 1998); see also 26 U.S.C. § 6015.

       The district court did not plainly err by not applying the innocent spouse

exception because the exception applies to tax liability, not criminal liability, and

there is no binding precedent that extends it to criminal prosecutions for tax fraud.

See United States v. Bonilla, 579 F.3d 1233, 1238 (11th Cir. 2009) (stating we

review issues raised for the first time in a direct appeal for plain error only).

Therefore, Tammy cannot show there was an error that was obvious and clear

under current law because neither this Court nor the Supreme Court have applied

§ 6013(e) in a criminal context. See United States v. Humphrey, 164 F.3d 585, 588

(11th Cir. 1999) (“A plain error is an error that is ‘obvious’ and is ‘clear under

current law.’”).
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        The district court did not err by denying Tammy’s motion for a judgment of

acquittal because there was sufficient evidence to conclude she did not believe the

tax return was true. 2 See Hunt, 526 F.3d at 744 (reviewing sufficiency argument

de novo). Tammy’s actions support the conclusion she knew about the additional

income. She was heavily involved in the gun show sales, and as discussed above,

there was sufficient evidence that Tammy knew she and Rafael were conducting a

business. Tammy also knew about Rafael’s GunBroker.com activity and had even

helped with a purchase, and deposited the rent checks. Furthermore, the money

from Rafael’s GunBroker.com sales went into a bank account with her name on it.

Therefore, even if Tammy did not know the exact numbers, it was not

unreasonable for a fact-finder to conclude Tammy had knowledge she and Rafael

were earning more than just their salaries. Furthermore, the jury was entitled to

disbelieve Tammy’s complete denials of knowledge and take them as substantive

evidence of her guilt. See Williams, 390 F.3d at 1325.

D. Selling stolen property

        Rafael contends there was insufficient evidence he sold stolen property or

that the property had a value of at least $5,000. A defendant violates 18 U.S.C.

§ 2314 if (1) he transports goods in interstate commerce, (2) those goods had a

value of $5,000 or more, and (3) he knew the goods were “stolen, converted or

        2
            Tammy only disputes the last element, which is whether she believed the return was
truthful.
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taken by fraud.” Value is defined as “the face, par, or market value, whichever is

the greatest, and the aggregate value of all goods . . . referred to in a single

indictment shall constitute the value thereof.” 18 U.S.C. § 2311.

      The district court did not err in denying Rafael’s motion for a judgment of

acquittal because there was sufficient evidence to conclude he knowingly

transported more than $5,000 in stolen goods. First, there was sufficient evidence

to conclude the gun parts Rafael sold online were stolen. Through his employment

with the Hialeah Police Department (HPD), Rafael had access to all the firearms

on the destruction logs, and Agent Barborini testified that the types of firearms that

were listed in the destruction logs, including some rare types of firearms, were

consistent with the type of firearms parts that Rafael sold online. Furthermore, the

Government was able to show that two of Rafael’s online gun parts sales

definitively matched to firearms on the destruction log. Additionally, it was

unusual to sell parts kits without a frame unless the parts were obtained for free,

and therefore, Rafael’s ability to sell so many part kits aligns with the undisputed

fact he had access to parts from the HPD destruction logs. Second, there was

sufficient evidence to conclude the stolen goods had a total value that exceeded

$5,000, because an ATF forensic auditor was able to match the online

advertisements to money order payments that Rafael had received. He was able to

total the money orders and concluded Rafael sold more than $6,000 in gun parts.


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The $6,000 represents the value of the firearm parts because that is the price a

buyer was willing to pay. See United States v. Robinson, 687 F.2d 359, 360 (11th

Cir. 1982) (stating if the goods have no face or par value, the market value is “the

price a willing buyer would pay . . . either at the time and the place that the

property was stolen or at any time during the receipt or concealment of the

property”). Because the $6,000 figure was the total gun parts sales from August

2008 to March 2009, it is possible to infer the sales of stolen parts from September

2008 to March 2009, the time period charged in the indictment, exceeded $5,000.

Third, because the evidence supported the conclusion Rafael personally stole the

firearm parts, there was sufficient evidence to conclude Rafael knew the goods

were stolen. Moreover, the jury was entitled to consider Rafael’s testimony as

substantive evidence of his guilt. Williams, 390 F.3d at 1325. Accordingly,

because a rational factfinder could have reasonably concluded Rafael is guilty, we

affirm. Brown, 665 F.3d at 1248.

E. Expert testimony

      Rafael also asserts the district court erred by allowing Agent Barborini to

testify that firearm parts sold by Rafael were of the same type as firearms listed on

the HPD property destruction logs because the district court did not evaluate

Barborini’s methodology or reliability and the testimony was highly prejudicial.

      Rule 702 of the Federal Rules of Evidence states:


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       A witness who is qualified as an expert by knowledge, skill,
       experience, training, or education may testify in the form of an
       opinion or otherwise if:
       (a) the expert's scientific, technical, or other specialized knowledge
       will help the trier of fact to understand the evidence or to determine a
       fact in issue;
       (b) the testimony is based on sufficient facts or data;
       (c) the testimony is the product of reliable principles and methods;
       and
       (d) the expert has reliably applied the principles and methods to the
       facts of the case.

The district court performs a gatekeeping function by requiring that scientific and

technical expert testimony meets the standards of Rule 702. United States v.

Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004).

       In determining the admissibility of expert testimony, trial courts must

consider whether:

       (1) the expert is qualified to testify competently regarding the matters
       he intends to address; (2) the methodology by which the expert
       reaches his conclusions is sufficiently reliable as determined by the
       sort of inquiry mandated in Daubert;[3] and (3) the testimony assists
       the trier of fact, through the application of scientific, technical, or
       specialized expertise, to understand the evidence or to determine a
       fact in issue.

Id. The proponent of the expert testimony bears the burden of showing his expert

meets those three factors. Id.




       3
          Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993) (holding the
Federal Rules of Evidence required the trial judge to ensure that “an expert’s testimony both
rests on a reliable foundation and is relevant to the task at hand).
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      To assess the reliability of an expert opinion, the court considers a number

of factors, including those listed by the Supreme Court in Daubert: “(1) whether

the expert’s theory can be and has been tested; (2) whether the theory has been

subjected to peer review and publication; (3) the known or potential rate of error of

the particular scientific technique; and (4) whether the technique is generally

accepted in the scientific community.” Id. at 1262. The Daubert factors are only

illustrative and may not all apply in every case. Id.

      The district court did not abuse its discretion by admitting Barborini as an

expert witness and allowing him to testify. See id. at 1258 (stating we review a

district court’s decisions pertaining to the admissibility and reliability of expert

testimony and opinion for an abuse of discretion). First, Barborini’s years of

experience working with firearms and familiarizing himself with the manufacturers

and their products made him qualified as a firearms identification expert. Second,

Barborini’s methodology was sufficiently reliable. The factors outlined in Daubert

are inapplicable here, as the methodology in this case involves mere identification

and comparison, but since those factors are merely illustrative, that does not mean

that Barborini’s testimony was inadmissible. Id. at 1262. As already established,

Barborini’s experience made him qualified to identify firearms, and it follows that

someone who is qualified as an expert in firearm identification would be able to

determine the make and models of the firearms listed in the HPD destruction logs


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or Rafael’s advertisements. Furthermore, Rafael’s firearms identification expert

did not testify an expert would not be able to look at a firearm part and identify the

make and model of the firearm. He only said that, without serial numbers, it would

be impossible to tell whether two guns of the same make and model were the same

particular firearm, but Barborini admitted as much in his own testimony. The fact

Barborini could not definitively testify the parts matched the firearms in the HPD

destruction logs or that Rafael had stolen the parts he sold goes to the weight of the

testimony, not the reliability of his methods or the admissibility of his testimony.

      Furthermore, even if the district court abused its discretion, the error was

harmless. Without Barborini’s testimony, there was still evidence Rafael had

unique access to a source of gun parts, the sale of gun part sets was unusual and

not ordinarily profitable, on two occasions Rafael sold gun parts with serial

numbers that matched firearms from the HPD destruction logs, and Rafael received

over $6,000 from selling gun parts online. A reasonable factfinder could conclude

from that evidence that Rafael was guilty. Additionally, the jury was entitled to

disbelieve Rafael’s denials and take his testimony as substantive evidence of guilt.

Williams, 390 F.3d at 1325.

                                 II. CONCLUSION

      Accordingly, we affirm the Valdeses’ convictions.

      AFFIRMED.


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