                                                             [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                APRIL 18, 2008
                               No. 06-16603
                                                              THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                     D. C. Docket No. 06-60214-CR-WPD

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                     versus

LUIS MEJIA,

                                                     Defendant-Appellant.

                         ________________________

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

                                 (April 18, 2008)

Before BIRCH, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

     Luis Mejia appeals his conviction for (1) producing counterfeit, alien-
registration cards, in violation of 18 U.S.C. § 1546(a); and (2) committing

identification-document fraud, in violation of 18 U.S.C. § 1028(a)(1). We affirm.

                                I. BACKGROUND

      The facts of Mejia’s crimes were presented at his trial by Pedro Guillen, a

confidential informant for the government, who provided information in exchange

for being given a work permit. In April 2006, while working at Port Everglades,

Florida, Guillen testified that he overheard Mejia and another man discussing

producing false identification documents. Guillen told Mejia that Guillen had three

friends who needed fake residence and Social Security cards and asked Mejia if he

could obtain the identification cards. Mejia responded that he could provide the

documents for $225.

      The government provided Guillen with a photograph, name, and birth date

for Mejia to use on one set of the identification documents. When Guillen

delivered the photo, Mejia introduced him to an individual named Bernardo.

Guillen gave Mejia the photograph but not the payment and informed Mejia that

the individual for whom Guillen was having the documents made would pay him

later. Guillen was supposed to bring photographs of three different individuals but

brought only one, and Mejia told him that it was not worth it for him to provide

one set of identification documents.



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      Mejia told Guillen to avoid talking about the documents on the telephone,

because making false identification documents was a federal crime. Guillen later

met with Mejia to obtain the documents and some of the money. Mejia was upset,

because Guillen did not give him photographs of the other two individuals for

whom Mejia was to have identification documents made and the balance of the

money Guillen was to pay Mejia.

      Guillen again met with Mejia to give him another photograph and $225 for

Mejia to obtain a second set of identification documents; Mejia later provided

those documents to Guillen. On a subsequent occasion, Guillen brought Mejia

another photograph with the payment of $225 and $150 in extra money that Mejia

had requested, because Guillen needed the documents to be provided as soon as

possible. Of the money paid, $100 was to compensate Mejia, who later provided

the final identification documents. During Guillen’s trial testimony, the

government presented audio and video recordings and photographs of several of

Guillen’s meetings with Mejia.

      Matthew Leary, a special agent for the United States Immigration and

Custom Enforcement, testified that the government provided money to Guillen for

the identification documents and also provided photographs, false names, birth

dates, and Social Security numbers. The parties stipulated that the documents



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provided to Guillen by Mejia were counterfeit.

      Mejia testified that, before meeting Guillen, he had not been involved in

providing or obtaining false identification documents for anyone. Mejia further

testified that Guillen had approached him and that Guillen introduced the subject of

false identification documents. Guillen had told him that he had family members

who needed identification documents, and Guillen had asked Mejia if he could

help him obtain those documents. Mejia initially told Guillen that he could not

help him. After their first meeting, Guillen repeatedly mentioned the subject of

counterfeit identification documents, and Mejia continued to say that he could not

help Guillen. Mejia gave Guillen his telephone number so that they could discuss

legitimate work. Mejia finally agreed to help Guillen and spoke with Bernardo

Alvarado, who knew an individual, Suarli Salazar, who could assist with producing

the false identification documents. Mejia had not met Salazar prior to being

introduced to him by Bernardo. Mejia testified that he would not have provided

fake identification documents if Guillen had not presented the idea to him. Mejia

was paid $75 each time that he produced a set of false identification documents.

He further testified that the only false identification documents that he had

produced were those for Guillen. Mejia represented that he had provided the false

identification documents to help Guillen, whom he thought was his friend.



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      During his rebuttal closing argument, the prosecutor argued that the only

question was whether Mejia was entrapped. The prosecutor then read a significant

portion of the judge’s jury instructions:

             The defendant asserts entrapment concerning the offense
      charged in the indictment. The defendant is entrapped when law
      enforcement officers or cooperating individuals under their direction
      induce or persuade a defendant to commit a crime the defendant had
      no previous intent to commit, and the law as a matter of policy forbids
      a conviction in such case.
             However, there is no entrapment, . . . where a defendant is
      ready and 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 is not entrapment for a
      government agent to pretend to be someone else, and to offer either
      directly or through an informant or other decoy to engage in an
      unlawful transaction with the defendant.
             And it is not for you to evaluate the conduct of law enforcement
      officials or the conduct of persons acting for or at the request of law
      enforcement officials, including informers and cooperating witnesses,
      to determine if you approve or disapprove of that conduct, or to
      determine if you think that that conduct was moral or immoral.
             Except to the extent that such conduct may bear on the central
      issue of whether a defendant was ready and willing to break the law,
      and the government merely provided the defendant with what
      appeared to be a favorable opportunity.
             So a defendant would not be the victim of entrapment if you
      should find beyond a reasonable doubt that the defendant before
      contact with the government officers or cooperating individuals was
      ready, willing, and able to commit the crime charged in the indictment
      whenever opportunity was afforded, and that the government did no
      more than offer an opportunity.

R4 at 63-64. The prosecutor asserted that Guillen had offered Mejia an

opportunity and that Mejia had taken it. The prosecutor stated that “[a] defendant

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is predisposed and not entrapped when he admits that he’s committing a federal

crime but continues to act. A defendant is predisposed and not entrapped when he

participates not once, not twice, but three times.” Id. at 67. Mejia’s counsel

objected and contended that the government had misstated the law. The district

judge then clarified for the jury that “[w]hat the lawyers say isn’t the law. I’ll tell

you what the law is in a few moments, but I allow a wide latitude during closing

argument.” Id. The prosecutor continued:

             Three times [acting] in criminal conduct. A defendant is not
      entrapped, he is predisposed when he makes all the arrangements,
      quotes a price, sets up meeting locations, drop off locations, and
      handles all aspects of a criminal activity over a period of four months.
              A defendant is predisposed and not entrapped when he takes a
      cut of the purchase price proceeds.

Id. Mejia’s counsel again objected to the government’s characterization of the law,

and the judge informed the jury, “[the prosecutor is] not telling you that that’s the

law, he’s telling you that that’s what his interpretation of the facts is.” Id. at 68.

The prosecutor added:

      A defendant is predisposed and not entrapped when he increases the
      price when it’s required to complete a rush job.
            A defendant is predisposed and not entrapped when he never
      attempts to withdraw from the criminal conduct. Never says no, not
      even once. And continues to make deals for counterfeit documents,
      despite knowing his actions constitute fraud. All he had to do in this
      case was throw out the picture.
            . . . A defendant is predisposed and not entrapped when he
      makes fake documents for another person before beginning

                                            6
       negotiations with our informant.

Id. at 68-69. The prosecutor later stated that the jury “must follow the law as

instructed by the Judge.” Id. at 71. The jury found Mejia guilty on both counts,

and the trial judge sentenced him to one year and one day of imprisonment and

three years of supervised release.1

                                     II. DISCUSSION

       On appeal, Mejia argues that he is entitled to a new trial because the

prosecutor repeatedly misstated the scope and elements of the entrapment defense

by saying that a defendant is not entrapped when he (1) admits that he is

committing a federal crime but continues to act, (2) participates three times in a

criminal activity, (3) makes all arrangements for a criminal activity over a period

of four months, (4) takes a portion of the proceeds of the crime, (5) increases the

price of his illegal work for a “rush job,” and (6) never attempts to withdraw from

the criminal conduct. Mejia also contends that the district judge did not provide a

curative instruction.

       We review de novo claims of prosecutorial misconduct, a mixed question of

law and fact. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006), cert.

denied, __ U.S. __, 127 S.Ct. 1305 (2007). To establish prosecutorial misconduct,


       1
        Mejia was released from custody in August 2007 and currently is serving his term of
supervised release.

                                              7
Mejia must show that the prosecutor’s remarks (1) were improper and

(2) prejudicially affected his substantial rights. Id. “A defendant’s substantial

rights are prejudicially affected when a reasonable probability arises that, but for

the remarks, the outcome of the trial would have been different. When the record

contains sufficient independent evidence of guilt, any error is harmless.” Id.

(citations omitted). “There are two elements to an entrapment claim:

(1) government inducement of the crime and (2) the defendant’s lack of

predisposition to commit the crime before the inducement.” United States v.

Orisnord, 483 F.3d 1169, 1178 (11th Cir.), cert. denied, __ U.S. __, 128 S.Ct. 673

(2007).

      The prosecutor’s remarks in his closing argument were not improper,

because they elaborated on the government’s interpretation of the facts. See

Eckhardt, 466 F.3d at 947. The prosecutor stated facts that were inconsistent with

Mejia’s claim that he was not predisposed to commit the crime. The prosecutor

also read the standard for entrapment from the jury instructions and, at one point,

told the jury that it was to rely on the law that the judge would provide. Moreover,

the judge made it clear that the prosecutor was not stating the law when he made

the contested remarks; instead, he was giving his interpretation of the facts.

Consequently, there is little chance that the jury was misled by the prosecutor’s



                                           8
remarks.

      Finally, even if the government’s statements were improper, any error by the

district judge in allowing those statements did not affect Mejia’s substantial rights.

Eckhardt, 466 F.3d at 947. Guillen’s testimony and the surveillance evidence

provided sufficient independent evidence from which the jurors could have

concluded that Mejia was predisposed to assist in obtaining fraudulent documents

based on his procurement of three separate sets of counterfeit identification

documents for Guillen.

                                III. CONCLUSION

      Mejia has appealed his conviction for producing counterfeit, alien-

registration cards and committing identification-document fraud, based on the

prosecutor’s remarks during his closing argument. Because the prosecutor’s

remarks were not improper and did not affect Mejia’s substantial rights, Mejia’s

conviction is AFFIRMED.




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