USA v. Oliveira-Guaresqui

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 18, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-13069
Non-Argument Calendar
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D.C. Docket No. 6:09-cr-00019-MSS-DAB-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
LUIS ANDRE OLIVEIRA-GUARESQUI,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 18, 2011)
Before BARKETT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Luis Andre Oliveira-Guaresqui appeals his conviction for aggravated
identity theft. 18 U.S.C. § 1028A(a)(1). Oliveira-Guaresqui challenges the denial

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of his motion to suppress; the overruling of his objection to racial discrimination
in jury selection, Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986);
mistakes by court interpreters; the admission of the victim’s birth certificate; an
admonition given to defense counsel; and the closing argument of the United
States. Oliveira-Guaresqui also challenges the denial of his motion for a new trial.
We affirm.
The district court did not clearly err when it denied Oliveira-Guaresqui’s
motion to suppress statements he made to the police. Oliveira-Guaresqui argues
that he was not proficient in English so as to understand or waive his rights to
silence and counsel, see Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966),
but the record supports the finding that Oliveira-Guaresqui could “interact
intelligently with the police,” United States v. Zapata, 180 F.3d 1237, 1242 (11th
Cir. 1999). Two officers of the Orange County Sheriff’s Office and a federal
agent testified that Oliveira-Guaresqui twice declined the assistance of an
interpreter, conversed comfortably in fluent English, responded promptly and
intelligently to questions asked in English, and even interrupted a conversation
between officers regarding his numerous fake passports. Oliveira-Guaresqui also
testified at the hearing on his motion, which gave the district court the opportunity
to observe Oliveira-Guaresqui’s ability to interact with the officers.
The district court did not err by overruling Oliveira-Guaresqui’s objection
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to the prosecutor’s peremptory challenge of an Hispanic member of the jury
venire. The district court determined that the United States had an articulable non-
race basis to exclude the juror. See United States v. Campa, 529 F.3d 980, 998
(11th Cir. 2008). The record establishes that the prosecutor provided three
legitimate race-neutral reasons to support the peremptory challenge: the
prospective juror did not speak or understand English, see United States v.
Edouard, 485 F.3d 1324, 1342–43 (11th Cir. 2007); the prospective juror “[didn’t]
like to . . . judge anybody,” see United States v. Blackman, 66 F.3d 1572, 1575
(11th Cir. 1995); and the prospective juror was “a contractor” and had “no one to
help [him] with his work.” Oliveira-Guaresqui fails to provide any reason to
“disturb . . . [the] trial judge’s finding of no discrimination in the peremptory
strike.” United States v. Bernal-Benitez, 594 F.3d 1303, 1312 (11th Cir. 2010).
The district court also did not abuse its discretion by admitting the birth
certificate for Jose Angel Soto Talavera that Oliveira-Guaresqui used as a false
identity. The birth certificate was admissible as a public record under Federal
Rule of Evidence 803(8)(A), (B). Juan Machado, the custodian of records for the
Demographic Registry for Puerto Rico, testified that the birth certificate was
authentic because it bore the green stamp and yellow seal placed on certificates
issued by the Registry. Oliveira-Guaresqui argues that admission of the certificate
violated his right of confrontation under the Sixth Amendment, but the birth
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certificate is not a testimonial statement, Melendez-Diaz v. Massachusetts, 557
U.S. ____,129 S. Ct. 2527, 2539–40 (2009). The certificate was created as a
record of live birth for a citizen of Puerto Rico, “not for the purpose of
establishing or proving some fact at trial.” Id.
Oliveira-Guaresqui argues, for the first time on appeal, that mistakes by
interpreters denied him a fair trial as those mistakes violated the Court Interpreters
Act, interfered with his right to counsel under the Sixth Amendment, and violated
his right to due process under the Fifth Amendment, but Oliveira-Guaresqui fails
to establish that his trial was “fundamentally unfair,” Valladares v. United States,
871 F.2d 1564, 1566 (11th Cir. 1989). When Oliveira-Guaresqui twice objected
about errors in translation, he did not complain that the errors violated his
constitutional rights nor did he request a mistrial. On both occasions, the district
court promptly replaced the interpreter. We are “unlikely to find that a defendant
received a fundamentally unfair trial due to an inadequate translation in the
absence of contemporaneous objections to the quality of the interpretation,”
United States v. Joshi, 896 F.2d 1303, 1310 (11th Cir. 1990), and Oliveira-
Guaresqui fails to explain how the alleged errors interfered with his right to
counsel or otherwise prejudiced his case.
Oliveira-Guaresqui also complains, for the first time, about a comment that
the district court made to defense counsel during trial and about part of the closing
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argument of the prosecutor, but no error, plain or otherwise, occurred in either
instance. The district court was entitled to “‘maintain the pace of the trial,’”
United States v. Thayer, 204 F.3d 1352, 1355 (11th Cir. 2000) (quoting Hanson v.
Waller, 888 F.2d 806, 813 (11th Cir. 1989)), by instructing counsel to “push
forward” and refrain from repeating a question that Oliveira-Guaresqui had asked
and answered. The United States likewise did not misstate during its closing
argument the elements required to prove aggravated identity theft. Because the
United States was required to prove beyond a reasonable doubt that Oliveira-
Guaresqui “knew that the means of identification at issue belonged to another
person,” Flores-Figueroa v. United States, 556 U.S. ____, 129 S. Ct. 1886, 1894
(2009), the United States correctly told the jury that “the issue that you have
before you is whether or not, when [Oliveira-Guaresqui] assumed the identity of
Jose Angel Soto Talavera, that he did so knowing that [Talavera] was a real
person.”
Oliveira-Guaresqui challenges the denial of his motion for a new trial on
two grounds, but both grounds lack merit. First, Oliveira-Guaresqui argues that
the United States failed to prove that he knew Jose Talavera was a real person, but
the United States presented testimony from a federal agent that Oliveira-Guaresqui
admitted paying Talavera $4,000 for his birth certificate and social security card.
Although Oliveira-Guaresqui testified that he had produced fraudulent documents
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and had purchased what he believed were counterfeit identification documents, the
jury was entitled to discredit that testimony when Oliveira-Guaresqui successfully
used Talavera’s birth certificate and social security card to obtain a driver’s
license, open a bank account, and secure a loan. See United States v.
Gomez-Castro, 605 F.3d 1245, 1248–49 (11th Cir. 2010); United States v.
Holmes, 595 F.3d 1255, 1258 (11th Cir. 2010). Second, Oliveira-Guaresqui
argues for relief based on cumulative errors, but without any individual error, “no
cumulative errors can exist,” United States v. Waldon, 363 F.3d 1103, 1110 (11th
Cir. 2004). The district court did not abuse its discretion when it denied Oliveira-
Guaresqui’s motion for a new trial.
We AFFIRM Oliveira-Guaresqui’s conviction.
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