United States v. Carlos Luna Ramirez, 11th Cir. (2015)

Case: 14-13389
Date Filed: 06/15/2015
Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13389
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cr-20866-RSR-1
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus
CARLOS LUNA RAMIREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 15, 2015)
Before JORDAN, JILL PRYOR, and EDMONDSON, Circuit Judges.
Case: 14-13389
Page: 2 of 7
PER CURIAM:
Carlos Luna Ramirez appeals his conviction for possession of child

pornography, in violation of 18 U.S.C. 2252(a)(4)(B) and (b)(2). On appeal,
Ramirez argues that the indictment was defective as a matter of law because -- he
says -- the crime charged was the knowing possession of the computer, rather than
the knowing possession of the pornographic material. He contends that the
indictment allowed him to be convicted without a finding that he knew his
computer contained prohibited material because the indictment failed to track the
statutory language or allege the crime with enough precision to give him notice of
the charge he must defend against.
We review de novo whether an indictment sufficiently alleges a statutorily
proscribed offense. United States v. Seher, 562 F.3d 1344, 1356 (11th Cir. 2009).
An indictments failure to charge a crime in violation of United States law
constitutes a jurisdictional defect; and, therefore, may be raised at any time. See
United States v. Izurieta, 710 F.3d 1176, 1179 (11th Cir. 2013). But not all defects
in the indictment deprive a district court of jurisdiction. United States v. Cotton,
535 U.S. 625, 630, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002).
Where a defendant fails to challenge the sufficiency of the indictment in the
district court, we will determine the indictment sufficient unless it is so defective
Case: 14-13389
Page: 3 of 7
that it does not, by any reasonable construction, charge an offense for which the
defendant is convicted. United States v. Lang, 732 F.3d 1246, 1247 (11th Cir.
2013). An indictment is jurisdictionally sufficient if it (1) presents the essential
elements of the charged offense, (2) notifies the accused of the charges to be
defended against, and (3) enables the accused to rely upon a judgment under the
indictment as a bar against double jeopardy for any subsequent prosecution for the
same offense. Id. We have said that an indictments failure to allege a necessary
element of mens rea is a non-jurisdictional defect that can be waived. United States
v. Brown, 752 F.3d 1344, 1351 (11th Cir. 2014). An indictment need not track the
statutory language: specific reference to the statute on which the charge was based
adequately informs the defendant of the charge against him. United States v. Fern,
155 F.3d 1318, 1325 (11th Cir. 1998). The appropriate test is not whether the
indictment could be more clear, but whether it conforms to minimal constitutional
standards. United States v. McGarity, 669 F.3d 1218, 1235-36 (11th Cir. 2012).
Section 2252(a)(4)(B) of Title 18 of the United States Code punishes
any person who . . . knowingly possesses, or knowingly accesses with
intent to view, 1 or more books, magazines, periodicals, films, video
tapes, or other matter which contain any visual depiction . . . if . . . the
producing of such visual depiction involves the use of a minor
engaging in sexually explicit conduct . . . and . . . such visual
depiction is of such conduct.
18 U.S.C. 2252(a)(4)(B).
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Case: 14-13389
Page: 4 of 7
Upon review of the record and consideration of the parties briefs, we see no
jurisdictional defect in the indictment.
Ramirez did not challenge the indictment in the district court; so, we may
only review the indictment for its jurisdictional sufficiency. Ramirezs indictment
was jurisdictionally sufficient because it presented the essential elements of
possession of child pornography, it notified Ramirez that he was charged with
possession of child pornography, and it enabled Ramirez to rely on the indictment
as a bar to double jeopardy. In addition, the indictment referenced the statute
under which he was charged, 18 U.S.C. 2252(a)(4)(B) and (b)(2). Thus, we
conclude no jurisdictional defect is present in the indictment.
Ramirez next argues that the district court committed error by admitting
expert testimony on the ages of the children in the pornographic videos where the
ages of the children had been stipulated, by allowing the government to ask
prejudicial questions of a witness (touching on whether defendants family had
attempted to influence witness testimony) with no good faith basis, and failing to
clarify in its jury instructions or in the governments closing argument that
Ramirez could only be convicted upon a finding that he knowingly possessed child
pornography on his computer. He contends that these errors collectively deprived
him of a fair trial.
Case: 14-13389
Page: 5 of 7
We review the evidentiary rulings of the district court for clear abuse of
discretion. United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003). The
cumulative error doctrine provides for a reversal where an aggregation of nonreversible errors yields a denial of the constitutional right to a fair trial. United
States v. Capers, 708 F.3d 1286, 1299 (11th Cir. 2013). The harmlessness of
cumulative error is determined by conducting the same inquiry as for individual
errorcourts look to see whether the defendants substantial rights were affected.
Id. The effect of the errors will depend on several things, including the nature and
number of the errors committed, their interrelationship and combined effect, how
the district court dealt with the errors as they arose, and the length of the trial.
United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005). Where no error
exists in the district courts rulings, reversal under the cumulative error doctrine is
inappropriate. See Capers, 708 F.3d at 1299.
While a party may generally not preclude his adversarys offer of proof by
stipulation, this proposition is qualified by Rule 403 of the Federal Rules of
Evidence. United States v. OShea, 724 F.2d 1514, 1516 (11th Cir. 1984). Rule
403 provides that a district court may exclude relevant evidence when its probative
value is substantially outweighed by a danger of unfair prejudice or needlessly
presenting cumulative evidence. Fed. R. Evid. 403. But exclusion of evidence
under Rule 403 is an extraordinary remedy which should be invoked sparingly, and
5
Case: 14-13389
Page: 6 of 7
the balance should be struck in favor of admissibility. United States v. AlfaroMoncada, 607 F.3d 720, 734 (11th Cir. 2010).
Lawyers may ask questions of a witness as long as there is a good-faith
factual basis. See United States v. Foley, 508 F.3d 627, 637 (11th Cir. 2007).
The doctrine of invited error applies where a defendant agrees to the courts
proposed jury instructions, and review of the issue is waived even if plain error
would result. United States v. Carter, 776 F.3d 1309, 1323 (11th Cir. 2015).
Upon review of the record and consideration of the parties briefs, we see no
reversible error.
Ramirez has not established that the district court committed cumulative
error because each of the alleged errors was an appropriate ruling. The district
court did not abuse its discretion in admitting the expert testimony on the ages of
the children in the videos. Despite that the evidence may have been cumulative, the
district court was within its discretion to determine that the government was
entitled to present the testimony. The district court also did not abuse its discretion
in allowing the government to question the pertinent witness (J.J.) because the
government had a good faith basis for doing so. Finally, Ramirez has waived his
ability to have his jury instruction argument heard on appeal because he agreed to
the district courts proposed jury instructions.
Case: 14-13389
Page: 7 of 7
We conclude that the indictment was jurisdictionally sufficient, and no error

deprived Ramirez of fair trial. Thus, we affirm Ramirezs conviction and sentence.
AFFIRMED.

United States v. Carlos Luna Ramirez, 11th Cir. (2015)

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Case: 14-13389

Date Filed: 06/15/2015

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

Before JORDAN, JILL PRYOR, and EDMONDSON, Circuit Judges.

Date Filed: 06/15/2015

Carlos Luna Ramirez appeals his conviction for possession of child

Date Filed: 06/15/2015

Date Filed: 06/15/2015

Date Filed: 06/15/2015

Date Filed: 06/15/2015

Date Filed: 06/15/2015

We conclude that the indictment was jurisdictionally sufficient, and no error

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