[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUITU.S. COURT OF APPEALS

ELEVENTH CIRCUIT

February 15, 2006

N o . 04-16037

THOMAS K. KAHN

N o n - A r g u m e n t Calendar CLERK

D . C. Docket No. 04-20474-CR-MGC

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE BUILES MEDINA,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Southern District of Florida

(F eb ru a ry 15, 2006)

B efo re TJOFLAT, CARNES and PRYOR, Circuit Judges.

P E R CURIAM:

Jo se Builes Medina, a native and citizen of Colombia, appeals his conviction

fo r willfully and knowingly using an altered passport. See 18 U.S.C. § 1543.

Builes argues that (1) the district court abused its discretion when it excluded ev id en ce of Builes's intent to seek asylum, (2) the district court abused its d iscretio n when it admitted the prior testimony of an unavailable witness, (3) the d istrict court erred when it denied Builes's motion to suppress his statements to in s p e c to r s upon his arrival in the United States, (4) the prosecution committed m isco n d u ct during his trial, and (5) insufficient evidence supports his conviction.

Each argument fails. We affirm.

I. BACKGROUND O n June 26, 2004, Builes arrived at Miami International Airport and a tte m p te d to use a Venezuelan passport with the name "David Rodal Bernardez" an d Builes's picture to enter the United States. Upon his arrival, Builes went th ro u g h a "primary inspection area," where he presented his passport, a visa, and a cu sto m s declaration form. In addition to the Venezuelan passport, Builes also ca rr ied a Venezuelan identification card with the name "Rodal" and Builes's p ic tu r e , an airline ticket from San Jose, Costa Rica, and a tour package for Disney W o rld and Universal Studios in the name of Rodal. Builes was directed to a "s ec o n d a ry inspection area," where he waited one and a half hours before he met w ith Inspector Thomas Cason, who interviewed Builes. Builes told Cason that he w a s applying for admission as a tourist because he was "coming to go visit Disney W o r ld ." Cason was suspicious because Builes's passport had a "strong chemical o d o r" and called Inspector Angela Martinez, who spoke Spanish more fluently, to assist him. Builes told Martinez that he was David Rodal Bernardez from Caracas, V en ezu ela, but Martinez suspected that Builes was not from Venezuela because of h is accent. Martinez asked Builes to write his true name and place of birth on a p iece of paper and left the room. When she returned, Builes had written his true n a m e and place of birth. When Martinez asked Builes if he was willing to answer h er questions, Builes said yes.

Builes told Martinez that he left Colombia ten days before his arrival in the U n ited States and traveled to Panama and Costa Rica. He explained that he p u rch ased the false passport for $3500 from a street vendor and boarded a plane in S a n Jose, Costa Rica, because it was "easier to get into the United States from San J o s e." He also told her that even though he knew it was illegal to enter the United S tates without documentation, he had left his Colombian passport in Colombia and d id not have valid documents to enter the United States. Builes stated to Martinez th at no one had coerced him to answer her questions. A federal grand jury indicted Builes for willfully and knowingly using an a lte re d passport, and a jury trial was held in September 2004. At trial, Builes arg u ed that he presented the altered passport to gain entry into the United States, b u t intended to apply for asylum once he was in the country. Builes explained that h e had been persecuted by the Revolutionary Armed Forces of Colombia (FARC) an d intended to escape political persecution in the United States. The jury could n o t reach a verdict, and the court declared a mistrial.

B e fo r e the second trial, the government moved in limine to exclude evidence o f duress. The government argued that Builes could not establish that he was u n d er an immediate threat of death or serious bodily injury when he presented the altered passport. The government also moved to exclude reports on conditions in C o lo m b ia , police reports of threats by the FARC, and a letter from guerillas th reaten in g Builes's life.

Builes made two motions. First, Builes moved to present evidence of duress to negate intent. Builes sought to introduce evidence of his persecution in C o lo m b ia to establish that he did not have the intent to violate the law. Second, B u ile s moved to suppress statements made to the inspectors at Miami International A irp o rt on the basis of the Fifth Amendment. Builes also argued that his statem en ts to the inspectors should be suppressed because the interview with the in sp ecto rs was a custodial interrogation and he had not been given Miranda w a r n in g s .

T h e district court denied Builes's motion to present a defense of duress b e c au s e the evidence did not tend to negate specific intent. The court explained th at Builes's evidence failed to show Builes was under an immediate threat of d eath or serious bodily injury. The district court excluded (1) the country reports, (2 ) the testimony of an immigration lawyer about the FARC in Colombia, and (3) e v id e n c e that Builes came to the United States to seek asylum. The district court also denied Builes's motion to suppress his statements to the inspectors because it fo u n d that the interrogation was non-custodial.

Builes also moved to exclude the testimony of Donna Eisenberg, a forensic d o cu m en t examiner who had testified at the first trial but was unavailable for the seco n d trial. Builes conceded that Eisenberg would be unavailable at trial, but arg u ed that his motive for cross-examination changed since the first trial because h e was precluded from presenting a defense of duress. The district court found that th e change of Builes's defense would not affect Eisenberg's testimony and denied B u iles's motion to exclude.

At the second trial, the government presented evidence from Cason and M artin ez and entered into evidence the previous testimony of Eisenberg. Cason a n d Martinez testified about their interrogation of Builes. Both testified that they d id not see Builes go through the primary inspection area, but "[t]here is no way a p erso n can be in secondary without being through primary inspection." Cason also testified that Builes told him Builes intended to go to Disney World. The g o v ern m en t read into evidence Eisenberg's testimony that the photograph page of th e passport Builes had used had been lifted to substitute the photograph and reattach ed . Eisenberg's testimony also stated that an indentation in the laminate s h o w e d the original photograph had been larger and there was a "paper fiber d istu rb an ce" around the perimeter of the substituted photograph.

After the government rested, Builes made motions for a judgment of a cq u itta l or a mistrial, both of which the district court denied. Builes then objected to (1) the preclusion of his defense to negate intent under the Fifth and Sixth A m en d m en ts and (2) the admissibility of Eisenberg's testimony under the C o n fro n tatio n Clause of the Sixth Amendment.

During closing arguments, Builes questioned the inspectors' testimonies that B u iles intended to visit Disney World and live and work in the United States. The g o v e r n m e n t argued that Builes had intended to violate the law when he used an a lte re d passport and questioned "what incentive in the world could these witnesses h av e had to lie." Builes objected to this remark, but the court overruled the o b jectio n . The jury found Builes guilty, and the district court sentenced him to tim e served.

II. STANDARD OF REVIEW B e ca u s e Builes's arguments that the district court improperly excluded ev id en ce of Builes's intent to seek asylum and admitted Eisenberg's prior testim o n y are challenges to evidentiary rulings, we review them for abuse of d iscr etio n . United States v. Todd, 108 F.3d 1329, 1331 (11th Cir. 1997). Builes's arg u m en t that the district court erroneously denied his motion to suppress the statem en ts to the inspectors is a mixed question of law and fact. United States v. Z a p a ta , 180 F.3d 1237, 1240 (11th Cir. 1999). When reviewing a denial of a m o tio n to suppress, we accept findings of fact by the district court unless clearly erro n eo u s and construe them in the light most favorable to the prevailing party.

United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000), but we review the ap p licatio n of the law to those facts de novo. Id. We review a determination of p ro secu to rial misconduct de novo because it is a mixed question of law and fact.

United States v. Noriega, 117 F.3d 1206, 1218 (11th Cir. 1997). Finally, we rev iew "challenges to the sufficiency of the evidence de novo, viewing the ev id en ce in the light most favorable to the government." United States v. Futrell, 2 0 9 F.3d 1286, 1288 (11th Cir. 2000). III. DISCUSSION B u iles contends that (1) the district court abused its discretion when it excluded Builes's evidence of intent to apply for asylum, (2) the district court ab u sed its discretion when it admitted Eisenberg's prior testimony because B u ile s's defense had changed from the previous trial, (3) the district court erred w h en it denied his motion to suppress his statement to the inspectors, (4) p ro secu to rial misconduct occurred, and (5) insufficient evidence supports his co n v ictio n . Although all his arguments fail, we discuss them in turn.

A . Whether Exclusion of Builes's Intent to Seek Asylum Was an Abuse of D is c r e tio n ? B u ile s argues that the district court abused its discretion when it excluded ev id en ce that he intended to apply for asylum in the United States because of the p ersecu tio n he suffered at the hands of the FARC. Builes contends that this e v id e n c e negates his intent to present an altered passport. Although "[a] district co u rt generally has broad discretion in ruling upon the admissibility of evidence," U n ited States v. Brazel, 102 F.3d 1120, 1145 (11th Cir. 1997), "[a] defendant must g e n e r a lly be permitted to introduce evidence directly pertaining to any of the actual elem en ts of the charged offense or an affirmative defense." United States v. Hurn, 3 6 8 F.3d 1359, 1363 (11th Cir. 2004). T h e evidence that the district court excluded neither establishes a defense of d u ress nor negates Builes's intent to commit the crime. To establish a defense of d u ress, "[a] defendant must show that he acted under an immediate threat of death o r serious bodily injury, that he had a well-grounded fear that the threat would be c ar rie d out, and that he had no reasonable opportunity to escape or inform [the] p o lice." United States v. Wattleton, 296 F.3d 1184, 1196 n.20 (11th Cir. 2002) ( q u o tin g United States v. Alzate, 47 F.3d 1103, 1104 (11th Cir. 1995)). Builes f aile d to show that the persecution he allegedly suffered in Colombia was an "im m ed iate threat of death or serious bodily injury" because he traveled to Panama a n d Costa Rica for ten days before he presented his altered passport in the United S tates. Builes's fear of future persecution also does not support a defense of d u ress. See Wattleton, 296 F.3d at 1196 n.20 ("The requirement of immediacy of th e threat is a rigorous one in which fear of future bodily harm . . . will not su ffice.") (quoting United States v. Sixty Acres in Etowah County, 930 F.2d 857, 8 6 1 (11th Cir. 1991))).

Builes's motivation to apply for asylum in the United States does not negate h is intent to present a false passport to immigration officials. Whether asylum was B u ile s's goal is immaterial to his mental state when he purchased a false passport an d used it to gain entry into the United States. The district court did not abuse its d iscretio n when it refused to admit evidence of Builes's intent to apply for asylum.

B . Whether the District Court Abused Its Discretion by Admitting Eisenberg's P r io r Testimony? B u iles next erroneously argues that the district court abused its discretion w h en it admitted the prior testimony of forensic document expert Eisenberg.

Builes's argument is twofold: (1) the government failed to meet its burden to show th at Eisenberg would be unavailable for trial; and (2) the preclusion of Builes's d u ress defense changed how he would have cross-examined Eisenberg. Both arg u m en ts fail.

Under the Federal Rules of Evidence, "if the party against whom the testim o n y is now offered . . . had an opportunity and similar motive to develop the testim o n y by direct, cross, or redirect examination," then the prior testimony is a d m is sib le . Fed. R. Evid. 804(a). The Sixth Amendment states, "In all criminal p ro secu tio n s, the accused shall enjoy the right . . . to be confronted with the w itn esses against him." U.S. Const. Amend. VI, The testimony of a witness at a p rio r trial is admissible if (1) the witness is unavailable and (2) the defendant had a p rio r opportunity to cross examine the witness. Crawford v. Washington, 541 U.S.

3 6 , 68, 124 S. Ct. 1354, 1374 (2004). We do not consider Builes's argument that th e government did not establish that Eisenberg was unavailable because Builes w aiv ed this argument when he conceded that Eisenberg was unavailable in the d istrict court. See United States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 1 7 7 7 (1993).

Because Builes had a "similar motive" to cross examine Eisenberg at his f ir st trial, Eisenberg's prior testimony is admissible. The defendant must have a "sim ilar motive" to cross examine the witness in the previous trial. Fed. R. Evid.

8 0 4 (b )(1 ). A "similar motive does not mean identical motive." United States v. M ile s, 290 F.3d 1341, 1353 (11th Cir. 2002). Although Builes's defense theory c h a n g e d , the charges against him were identical, and the government presented E isen b erg 's testimony to prove the same element as at the first trial--that the p assp o rt Builes used was altered. See id. at 1353 (finding that the motive to crossex am in e was not dissimilar where the charges were the same and the government o ffered the prior testimony to prove the same element). Because the underlying issu es were legally and factually similar, Builes's motivation to cross-examine E isen b erg did not change. See id. The district court did not abuse its discretion w h en it admitted Eisenberg's testimony into evidence.

C. Whether the District Court Erred When It Denied Builes's Motion to Suppress? B u iles also contends that the district court erred when it denied Builes's m o tio n to suppress his statements to inspectors because he was not given Miranda w arn in g s before a custodial interrogation. "[A]liens at the border are entitled to M iran d a warnings before custodial interrogation." United States v. Moya, 74 F.3d 1 1 1 7 , 1119 (11th Cir. 1996). A suspect is in "custodial interrogation" if, "under th e totality of the circumstances, a reasonable man in the suspect's position would f ee l a restraint on his freedom of movement to such extent that he would not feel free to leave." Id. (quoting United States v. Phillips, 812 F.2d 1355, 1360 (11th C ir. 1987)). Because "some degree of questioning and of delay is necessary and is to be expected at entry points into the United States, . . . questioning at the border m u st rise to a distinctly accusatory level before it can be said that a reasonable p erso n would feel restraints on his ability to roam." Id. at 1120.

Builes was not in custody when Cason and Martinez interviewed him.

Cason and Martinez did not restrain him, he was not told that he was under arrest, a n d he never asked to leave. See Moya, 74 F.3d at 1119. Builes said that he was u n d e r no compulsion when Martinez asked if he was coerced to answer her q u estio n s. Although Builes waited one and a half hours for his interview, this d e la y does not rise to the "accusatory level" of a custodial interrogation. Id.; see U n ited States v. McDowell, 250 F.3d 1354, 1363 (11th Cir. 2001). "[T]here is no fix ed limit to the length of questioning." McDowell, 250 F.3d at 1363. The d istrict court did not err when it denied Builes's motion to suppress his statements at the secondary inspection area.

D. Whether the Prosecution Committed Misconduct that Requires a New Trial? B u ile s also argues that the prosecution committed misconduct when it stated at trial that Builes traveled to the United States as a tourist, had no pending petition seek in g immigration benefits, and knew that it was illegal to live and work in the U n ited States without filing a petition. Builes further contends that the prosecution co m m itted misconduct when it stated "what incentive in the world could these w itn e s se s have had to lie" in its closing argument. "To find prosecutorial m isco n d u ct, . . . (1) the remarks must be improper, and (2) the remarks must p reju d icially affect the substantial rights of the defendant." United States v. E yster, 948 F.2d 1196, 1206 (11th Cir. 1991). It is improper for the prosecution to b o lster a witness by vouching for his credibility if (1) the "jury could reasonably b eliev e that the prosecutor indicated a personal belief in the witness's credibility" o r (2) the government alludes to evidence not in the record to support the witness's testim o n y. Id.

The statements about Builes's status as a tourist without valid d o c u m e n ta tio n and his knowledge that the lack of valid documentation was illegal w e re not improper. Cason testified that Builes had a tour package for Disney W o rld , and Martinez testified that Builes told her he had no pending petitions or o th er valid documentation. Martinez also testified that Builes told her he knew it w as illegal to live and work in the United States without filing a petition. Because th e prosecution referred to evidence in the record, the remarks were not improper.

The prosecution's statement, "what incentive in the world could these w itn e s s have had to lie," is also not improper. The prosecution rhetorically asked w h at Cason and Martinez would gain by lying. The argument did not "place[] the p r e stig e of the government behind the witness, by making explicit personal as su ra n ce s of the witness' veracity" or express a "personal belief in the witness's cred ib ility." Eyster, 948 F.2d at 1206.

E. Whether Sufficient Evidence Supports Builes's Conviction? B u iles argues that the evidence is insufficient to support a conviction b ecau se the government failed to present evidence that he ever "exhibited or d isp layed " the altered passport to immigration officials. It is illegal to "willfully a n d knowingly use[] . . . [a] false, forged, counterfeited, mutilated, or altered p assp o rt." 18 U.S.C. § 1543. "We must determine on review whether a reasonable ju ry could have found that the evidence established the appellants' guilt beyond a reaso n ab le doubt." United States v. Starrett, 55 F.3d 1525, 1541 (11th Cir. 1995) (q u o tin g United States v. Russo, 796 F.2d 1443, 1455 (11th Cir.1986)). If the g o v ern m en t relies upon circumstantial evidence, "reasonable inferences, and not m e re speculation, must support the jury's verdict." United States v. Perez-Tosta, 3 6 F.3d 1552, 1557 (11th Cir. 1994).

A lth o u g h Cason and Martinez did not see Builes go through the primary in sp ectio n area, where travelers are asked to present their passports, both in sp ecto rs testified that travelers cannot enter the secondary inspection area unless th ey first pass through the primary inspection area. Martinez also testified the B u ile s did not have his passport because inspectors in the primary inspection area h ad taken it away from him. Based on this testimony and viewing the evidence in th e light most favorable to the government, the jury could reasonably infer that B u iles passed through and presented his passport at the primary inspection area.

See United States v. Al Jibori, 90 F.3d 22, 26 (2d Cir. 1996) (holding that a jury co u ld reasonably infer that a defendant had passed through the primary inspection area when he was directed to the secondary inspection area and inspectors had his altered passport.).

IV. CONCLUSION B u iles's conviction is AFFIRMED.