USA v. Alberico Crespo

FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-10310
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERICO AHIAS CRESPO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20005-DPG-1
____________________
Before NEWSOM , L AGOA , and K IDD, Circuit Judges.
L AGOA , Circuit Judge:
Alberico Ahias Crespo was convicted of conspiracy to com-
mit witness tampering, three counts of witness tampering, and con-
spiracy to obstruct justice and was sentenced to 97 months’ impris-
onment. Crespo now appeals his convictions and sentence. He
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2 Opinion of the Court 24-10310
argues that the district court erred by denying his motion to sup-
press wiretap evidence, denying his motion for mistrial after the
jury heard false testimony and a prosecutor’s bad-faith question,
denying him recross-examination of a witness at trial, and admit-
ting into evidence past bad acts. He also argues that the cumulative
effect of these errors and other inadmissible evidence warrants re-
versal of his conviction. Moreover, Crespo argues that the jury
lacked sufficient evidence to convict him under Counts Five,
Seven, Eight and Ten of the superseding indictment and that the
district court erred by rejecting his proposed jury instruction on a
good-faith defense. Finally, he argues that his sentence was miscal-
culated.
After careful consideration and with the benefit of oral argu-
ment, we affirm Crespo’s convictions and sentence.
I. FACTUAL AND PROCEDURAL HISTORY
Crespo, a special agent with the United States Department
of Health and Human Services (“HHS”), was a member of the
Southern District of Florida’s Health Care Fraud Strike Force (the
“Strike Force”), an interagency task force focusing on health care
fraud and related narcotics trafficking in South Florida.
From November 2016 to July 2020, Crespo, Jorge Diaz
Gutierrez, Anais Lorenzo, Dr. Rodolfo Gonzalez-Garcia, and Yan-
dre Trujillo Hernandez, among others, participated in a scheme to
obtain oxycodone and distribute it for street-level profit (the “Ox-
ycodone Scheme”). Here’s how the scheme worked. Diaz acted
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24-10310 Opinion of the Court 3
as a “patient recruiter” who brought patient recruits, such as Lo-
renzo, to clinics to be prescribed unnecessary oxycodone. Dr. Gon-
zalez was a medical doctor at West Medical Office in Hialeah, Flor-
ida (“West Medical”), one of the clinics where patient recruits were
directed, who would prescribe the oxycodone. Diaz would then
buy oxycodone from those patient recruits and sell the pills to indi-
viduals, such as Trujillo, for street-level profit. Crespo, who was
Diaz’s roommate and knew of Diaz’s oxycodone trafficking, would
pass along information about the Strike Force’s ongoing investiga-
tions into the Oxycodone Scheme and disrupt the investigation
where he could.
On January 5, 2021, a federal grand jury returned a ten-count
indictment against Crespo, Diaz, Trujillo, and Lorenzo.1 Specifi-
cally, Crespo was indicted for conspiracy to distribute and possess
with intent to distribute oxycodone, in violation of 21 U.S.C.
§§ 841(a)(1) and 846 (Count One); conspiracy to commit witness
tampering, in violation of 18 U.S.C. §§ 1512(b)(3) and 1512(k)
(Count Five); three counts of witness tampering, in violation of 18
U.S.C. § 1512(b)(3) (Counts Seven through Nine); and conspiracy
to obstruct justice, in violation of 18 U.S.C. §§ 1512(c)(2) and
1512(k) (Count Ten).
1 Dr. Gonzalez was indicted separately, and Diaz, Trujillo, and Lorenzo
pleaded guilty before trial.
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A. Investigation and Offense Conduct
At trial, the government elicited the following evidence
through witness testimony and exhibits.
In April 2018, the Strike Force began investigating West
Medical and Dr. Gonzalez for illegal distribution of oxycodone.
The lead agents for the investigation were HHS Special Agent
Rolando Alvarez and FBI Special Agent Charles Lawless (each spe-
cial agent, an “SA”). The goal of this investigation, as with all other
Strike Force investigations, was to obtain a grand jury indictment
against the scheme’s participants.
Crespo was not involved in the investigation, but he shared
a cubicle space with SA Alvarez and participated in meetings where
the investigation was discussed. Crespo disclosed neither his rela-
tionship with Diaz nor his knowledge of Diaz’s role in the Oxyco-
done Scheme to his supervisors. In one instance, Crespo alerted
Diaz to the investigation into West Medical and told him to stop
bringing patients there. Diaz continued operations with other clin-
ics.
Even after Dr. Gonzalez was indicted on January 31, 2019,
the investigation into the Oxycodone Scheme continued. The in-
vestigation identified Diaz as a patient recruiter after he tried to
purchase oxycodone from a confidential source and after an anon-
ymous letter alleged that Diaz and Dr. Gonzalez were working to-
gether. Though the impetus for the investigation is not clear from
the record, the FBI public corruption squad, including SA Sean Slat-
tery, also began investigating Crespo for public corruption in April
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24-10310 Opinion of the Court 5
2019. As part of the Strike Force’s investigation into Diaz, agents
wiretapped Diaz’s phone and learned that he frequently communi-
cated with Crespo about the Strike Force’s ongoing investigation.
On July 8, 2020, Crespo and other HHS agents received an
email from SA Lawless requesting assistance with interviewing pa-
tient recruits involved in the Oxycodone Scheme. Upon receiving
the email, Crespo told his supervisor, HHS Special Agent Jesus Bar-
ranco, that those patient recruits were diagnosed with COVID.
When pressed about how he knew, Crespo was evasive and re-
sponded that his source was a “street person” and an “old man,”
but did not give the actual identity of his source. As a result of
Crespo’s actions, the FBI agents proceeded with the interviews, but
the HHS agents did not.2
On July 17, 2020, Crespo and Diaz spoke on the phone sev-
eral times while Crespo and his co-worker, HHS Agent Henry
Luna (“Agent Luna”), were drinking heavily at a bar. During one
call, Crespo directed Diaz to call SA Lawless to schedule a meeting.
Crespo instructed Diaz to cut his pills into quarter portions to con-
vince SA Lawless that Diaz was taking oxycodone for health rea-
sons, tell SA Lawless that he did not sell pills to anyone and had
done nothing wrong, and insist that SA Lawless and Diaz meet in
public to prevent the Strike Force from learning that Diaz and Cre-
spo lived together.3
2 These facts were the basis for witness tampering Count Seven.
3 These facts were the basis for witness tampering Count Eight.
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On July 20, 2020, Crespo spoke with SA Lawless about Diaz.
When asked if he had any information as to whether Diaz was in-
volved with oxycodone distribution, Crespo denied any
knowledge and expressed that Diaz was a good person who had
never done anything wrong. Crespo continued by saying that if he
knew about Diaz’s drug trafficking, he would have arrested him.4
On July 21, 2020, Diaz and Crespo were arrested. On Janu-
ary 14, 2021, Crespo was arraigned.
B. Pre-Trial Proceedings
During pre-indictment discovery, the government pro-
duced, among other documents, Title III wire and electronic inter-
ception recordings from Diaz’s phone and related materials, includ-
ing the wiretap application.5 Partly because of the large volume of
discovery produced, trial was postponed numerous times during
the proceedings below. In the interim, the government continued
to produce relevant documents, including a 2018 FBI incident sum-
mary report that was produced to Crespo on July 5, 2022 (“FBI In-
cident Summary Report”).
On October 10, 2022, more than eighteen months after his
arraignment and approximately two months before trial was set to
begin, Crespo filed a motion to suppress the wiretap evidence. Cre-
spo argued that his communications were unlawfully intercepted
because the government did not establish that other investigatory
4 These facts were the basis for witness tampering Count Nine.
5 See generally 18 US.C. § 2518.
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24-10310 Opinion of the Court 7
procedures were inadequate and because the wiretap applications
failed to establish probable cause to support the wiretap orders.
Crespo neither provided a reason for his delayed filing nor
acknowledged that the motion was untimely under Southern Dis-
trict of Florida Local Rule 88.9(c), which requires that such motions
be filed within twenty-eight days after a defendant’s arraignment.
The district court denied Crespo’s motion to suppress as untimely.
On October 14, 2022, Crespo filed a motion to reconsider
and argued that good cause excused his delay in filing his motion
to suppress because, despite the multiple joint stipulations to con-
tinue trial, the attorneys neglected to extend the deadlines for pre-
trial motions. Crespo further argued that his delay should be ex-
cused because the government produced the FBI Incident Sum-
mary Report, which Crespo alleged was key to the government’s
wiretap application, over a year after his arraignment. The district
court denied Crespo’s motion for reconsideration in a paperless or-
der.
C. Trial Proceedings
After a thirteen-day trial, the jury acquitted Crespo of Count
One but convicted him of all other Counts. The trial proceedings
are summarized below.
1. Witness Testimony
Relevant to the instant appeal, four individuals were called
to the witness stand. The government called three SAs—FBI SAs
Lawless and Slattery and HHS SA Barranco—to testify about their
investigation into Crespo and the Oxycodone Scheme. Crespo’s
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defense counsel called Agent Luna to testify about his experience
working with Crespo.
SA Lawless testified about his conversation with Crespo on
July 20. The government and SA Lawless had the following ex-
change about a transcript of that call:
Q: If we go down, where you state, “We have some
information that [Diaz is] involved with Oxy distribu-
tion. Have you ever seen him do anything like that?”
When you use the term “seen him,” what are you re-
ferring to?
A: Well, we had prior information that Mr. Crespo
was with Diaz when he engaged [sic] the illegal distri-
bution of Oxy, such as buying and selling Oxycodone.
Crespo objected and moved for a mistrial, noting that the govern-
ment did not have evidence of Crespo being present when Diaz
sold drugs. The government had no objection to striking the an-
swer. The district court denied the mistrial motion but provided a
curative instruction:
With regard to the last statement made by the agent,
I am going to ask that you disregard that statement
which related to Mr. Crespo being present when Mr.
Diaz bought or sold Oxycodone. The parties stipulate
that there is no evidence that Defendant Crespo was
with Mr. Diaz when he bought or sold Oxycodone.
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24-10310 Opinion of the Court 9
SA Barranco testified about Crespo’s July 8th attempt to pre-
vent the Strike Force from interviewing Diaz’s patient recruits.
The following exchange took place between the government and
SA Barranco:
Q: At no time did he ever reveal the fact that it was
Jorge Diaz that was the source of this information?
A: No.
Crespo objected and moved for a mistrial because the question was
asked in bad faith and implied that Diaz, who had pleaded guilty
and was cooperating with the government, was the source of the
information about the patients having COVID. The district court
denied the mistrial motion but provided a curative instruction:
Ladies and gentlemen, please disregard [the govern-
ment’s] last question to this witness. I do want to
remind you, as I have already told you in my instruc-
tions, that what the attorneys say during the trial is
not evidence. Likewise, their questions are not evi-
dence and you should not consider it as such.
SA Slattery testified about his investigation into Crespo for
public corruption. Two instances in SA Slattery’s testimony are
relevant for the present appeal.
First, SA Slattery testified about his discovery that Crespo
was buying and selling personal protective equipment (“PPE”) for
uses related to COVID and how the conduct was not pre-approved
by Crespo’s supervisors, as required by HHS policy. While on the
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10 Opinion of the Court 24-10310
witness stand, SA Slattery was presented with Crespo’s email com-
munications that corroborated the testimony. Crespo objected
that selling PPE was irrelevant to the oxycodone-related charges
and argued that the jury should be instructed that violation of a
work policy is not a criminal offense. The government stated that
this evidence showed Crespo’s state of mind in engaging in unap-
proved conduct, and it countered defense counsel’s depiction of
Crespo as an exemplary agent. Defense counsel drafted a curative
instruction, which the district court read to the jury:
Ladies and gentlemen, during the testimony you may
hear some evidence regarding alleged administrative
or internal policy violations, but I do want to remind
you that the defendant is on trial for the crimes or the
charges set forth in the indictment. I will give you
further instructions on that point later.
At the end of trial, the district court also instructed the jury on this
issue:
During this trial, you have heard testimony regarding
government or employment policies and procedures
regarding ethical standards and standards of action for
certain employees of government agencies. I caution
you that a violation of these policies and procedures,
standing alone, is not a crime. This is not a civil case.
The defendant is not on trial for violating policies and
procedures.
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24-10310 Opinion of the Court 11
Second, on cross-examination, defense counsel asked SA
Slattery about an office near West Medical that Crespo rented for
a side business, whose lease he did not renew after the Strike Force
began investigating the clinic. SA Slattery could not definitively say
that Crespo knew West Medical was nearby or that Crespo closed
the office because he knew of Dr. Gonzalez’s impending indict-
ment. On redirect, the government used admitted exhibits to show
the temporal proximity between the office closure and Crespo’s
knowledge of the investigation. Specifically, SA Slattery confirmed
that Crespo expressed his intent not to renew the lease after he
warned Diaz about the investigations into West Medical and after
the Strike Force received an anonymous letter connecting Diaz to
Dr. Gonzalez and the clinic. Defense counsel requested permission
to conduct a recross-examination and alleged that new issues and
exhibits were introduced. The government objected that the issues
he covered on redirect were raised on cross-examination. The dis-
trict court sustained the objection and did not permit recross-ex-
amination.
Agent Luna testified about his experience working with Cre-
spo at HHS and the day he and Crespo were drinking at the bar on
July 17. During cross-examination, the government asked whether
Crespo was quick to anger or prone to violence. Agent Luna de-
nied that Crespo was either, but noted that if Crespo didn’t like
something, he would voice his opinion and that Crespo was well
trained and capable of responding to any situation. Defense coun-
sel neither objected to the government’s questions nor Agent
Luna’s answers.
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2. Evidence Introduced at Trial
The government presented three pieces of evidence that are
disputed in the present appeal.
First, the prosecutor played a voicemail recording of Crespo
threatening Lorenzo because he believed Lorenzo would report
the Oxycodone Scheme to the police. The voicemail was played a
total of three times during trial: first, to SA Slattery, next, to Lo-
renzo, and last, to Diaz. Defense counsel only objected to the re-
cording being played before Lorenzo and argued that playing the
voicemail a second time for the jury was cumulative and prejudi-
cial. The district court overruled the objection.
Second, the government introduced the transcript of a July
17 call between Crespo and Diaz about the ongoing investigation
(the “July 17 Transcript”) as an exhibit. The transcript was used a
total of four times during trial: first, with SA Slattery, next, with SA
Lawless, then again with SA Slattery, and last, with Diaz. Defense
counsel only objected when the transcript was before Diaz, alleg-
ing that the translation was wrong because it said that Crespo
would “make up a story” when it should have said that that Crespo
would “tell him a story.” The district court overruled the objection
because the transcript was made available before trial and the time
to object to the translation had passed.
Third, the government presented SA Barranco with photo-
graphs of a knife found with Crespo when he was arrested. The
following exchange between the government and SA Barranco
took place:
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24-10310 Opinion of the Court 13
Q: Agent Barranco, I … ask if you recognize the con-
tents of those photographs?
A: It’s a knife.
Q: And was the defendant arrested in possession of a
knife by the FBI?
A: I wasn’t present at the arrest but I was informed–
Defense counsel objected on the grounds that Agent Barranco
lacked personal knowledge. The district court sustained the objec-
tion.
3. Motion for Judgment of Acquittal and Jury Instructions
At the conclusion of trial, Crespo moved for judgment of ac-
quittal and argued that there was insufficient evidence that he acted
with a corrupt purpose; engaged in misleading conduct or that he
did so knowingly; corruptly persuaded another person against
communicating with law enforcement; and knowingly or willfully
joined the conspiracy. The district court, viewing the evidence in
the light most favorable to the government, denied the motion and
concluded that there was sufficient evidence to proceed.
Crespo also requested that the district court issue a “good-
faith defense” jury instruction. Crespo’s theory for submitting the
instruction was that he did not act with intent to obstruct the in-
vestigation, but with intent to assist or help his friend, Diaz. In
support of the instruction, Crespo cited good-faith defenses used in
criminal tax and civil fraud contexts. The irrelevance of the cited
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14 Opinion of the Court 24-10310
authority notwithstanding, the district court denied the request be-
cause it concluded that there was no evidentiary basis to give the
instruction. Instead, the district court instructed the jury on the
state of mind required to convict Crespo for each of the charges,
including defining the words “knowing,” “willful,” “corrupt per-
suasion,” and “misleading conduct,” as used in the statutes crimi-
nalizing witness tampering and obstruction of justice. See 18 U.S.C.
§§ 1512(b)(3), (c)(2).
D. Sentencing
In preparation for sentencing, a Presentence Investigation
Report (“PSI”) calculated the drug quantity attributed to each par-
ticipant in the Oxycodone Scheme. Throughout the lifetime of the
scheme, Dr. Gonzalez illegally prescribed over 1.3 million oxyco-
done pills, 23,636 of which were distributed to Diaz. Of the portion
distributed to Diaz, the PSI determined that 4,563 kilograms of con-
verted drug weight were attributable to Crespo.
Because each of Crespo’s convictions was for a violation of
18 U.S.C. § 1512, the PSI determined that the relevant sentencing
guideline for his offense was U.S.S.G. § 2X3.1(a)(1), by way of a
cross-reference provision in U.S.S.G. § 2J1.2(c)(1). This guideline
provides that the base offense level is six levels lower than the base
offense level for the underlying offense. The PSI determined that
the relevant guideline for the underlying offense—Diaz’s conspir-
acy to distribute oxycodone—was U.S.S.G. § 2D1.1. Under that
guideline, Crespo’s 4,563 kilograms of converted drug weight
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24-10310 Opinion of the Court 15
placed the underlying offense’s base offense level at 32 and, there-
fore, Crespo’s base offense level at 26. After additional adjustments
accounting for Crespo’s position of public trust, his obstruction of
justice, and lack of criminal history, his guideline sentencing range
was 78–97 months’ incarceration followed by a term of 1–3 years’
supervised release.
At the sentencing hearing held in January 2024, the parties
objected to the drug quantity attributed to Crespo and his corre-
sponding base offense level. The government argued that the ox-
ycodone trafficked from the entire Oxycodone Scheme, and not
just those prescribed by Dr. Gonzalez, should be attributed to Cre-
spo. Crespo argued that he should not be responsible for any pills
that he did not sell or know about. The district court overruled
both objections and adopted the PSI’s calculation of Crespo’s base
offense level. Crespo was sentenced to 97 months’ imprisonment
followed by three years of supervised release.
Crespo now timely appeals his convictions and sentence.
II. STANDARDS OF REVIEW
We review the district court’s denial of a motion to suppress
as untimely, limits on cross examination, evidentiary rulings, de-
nial of a motion for a mistrial, and refusal to give a proposed jury
instruction for abuse of discretion. See United States v. Gyetvay, 149
F.4th 1213, 1231 (11th Cir. 2025) (motion to suppress); United States
v. Jeri, 869 F.3d 1247, 1262–63 (11th Cir. 2017) (recross-examina-
tion); S. Grande View Dev. Co., Inc. v. City of Alabaster, 1 F.4th 1299,
1305 (11th Cir. 2021) (evidentiary rulings); United States v. Wright,
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16 Opinion of the Court 24-10310
392 F.3d 1269, 1274 (11th Cir. 2004) (mistrial); United States v. Polar,
369 F.3d 1248, 1252 (11th Cir. 2004) (jury instructions). “A district
court abuses its discretion when it applies an incorrect legal stand-
ard, applies the law in an unreasonable or incorrect manner, fol-
lows improper procedures in making a determination, or makes
findings of fact that are clearly erroneous.” United States v. McLean,
802 F.3d 1228, 1233 (11th Cir. 2015) (citation modified).
If a district court did not abuse its discretion in denying a
motion to suppress as untimely, we review the underlying merits
of the motion for plain error. United States v. Andres, 960 F.3d 1310,
1315–16 (11th Cir. 2020). Under this standard, we will reverse a dis-
trict court’s decision only if “(1) an error occurred; (2) the error was
plain; (3) it affected [the appellant’s] substantial rights; and (4) it se-
riously affected the fairness of the judicial proceedings.” Id. at 1316.
We review the cumulative impact of trial errors and the dis-
trict court’s denial of a motion for judgment of acquittal de novo.
United States v. Pendergrass, 995 F.3d 858, 881 (11th Cir. 2021) (cu-
mulative error); United States v. Gamory, 635 F.3d 480, 497 (11th Cir.
2011) (motion for judgment of acquittal).
This Court reviews for clear error a district court’s factual
findings as to the drug quantity attributable to a defendant. United
States v. Dixon, 901 F.3d 1322, 1347 (11th Cir. 2018). But we review
de novo a district court’s interpretation and application of the Sen-
tencing Guidelines. United States v. James, 135 F.4th 1329, 1332
(11th Cir. 2025).
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24-10310 Opinion of the Court 17
III. ANALYSIS
On appeal, Crespo advances several arguments. He argues
that the district court erroneously denied his motion to suppress
wiretap evidence, denied his motion for mistrial after the jury
heard false testimony and a prosecutor asked a bad-faith question,
denied him recross-examination of a witness at trial, and admitted
character evidence of his past bad acts. He also argues that the cu-
mulative effect of these errors and other inadmissible evidence in-
troduced at trial prejudiced his right to a fair trial. Furthermore,
Crespo argues that the jury lacked sufficient evidence to convict
him under Counts Five, Seven, Eight and Ten of the superseding
indictment and that the district court erred by rejecting his pro-
posed jury instruction on a good-faith defense. Finally, he argues
that his sentence was miscalculated. We address each issue in turn.
A. Motion to Suppress
Crespo contends that the district court erred in denying his
motion to suppress as untimely and argues that good cause justified
his untimely filing for two reasons. First, Crespo argues that at the
time the parties stipulated to continue trial, they forgot to continue
the deadlines for pretrial motions. Second, he maintains that doc-
uments that negated statements in the wiretap application were
not produced until after the deadline to file his motion.
Federal Rule of Criminal Procedure 12 provides that mo-
tions for suppression must be filed before trial and that the district
court may set a deadline for such motions. Fed. R. Crim. P.
12(b)(3)(C), (c)(1). Rule 12 continues by stating that “[i]f a party
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18 Opinion of the Court 24-10310
does not meet the deadline for making a Rule 12(b)(3) motion, the
motion is untimely.” Id. at (c)(3). “But a court may consider the
[motion to suppress] if the party shows good cause.” Id.
As to Crespo’s first argument, we conclude that the parties’
failure to request an extension of the deadline for pretrial motions
does not constitute good cause. In Andres, we held that “[n]either
a strategic decision nor inadvertence constitutes good cause.” 960
F.3d at 1316. Because “the defendant had all the information nec-
essary to bring a Rule 12(b) motion before the date set for pretrial
motions, but failed to file it by that date,” we concluded that the
district court did not abuse its discretion when it denied a defend-
ant’s motion to suppress as untimely. Id. (citing United States v.
Curbelo, 726 F.3d 1260, 1267 (11th Cir. 2013)). Here, Crespo’s argu-
ment that attorney neglect to extend the pretrial motion deadline
caused the delay is the precise “inadvertence” that we have held
does not “constitute good cause.” See id.
As to Crespo’s second argument, we conclude that the gov-
ernment’s delay in producing the FBI Incident Summary Report
was not good cause for Crespo’s own delay. In Gyetvay, we held
that the government’s delay in document production was not good
cause for the defendant’s own delay in “fil[ing] his motion to sup-
press before trial.” 149 F.4th at 1232. There, we recognized that
the defendant did not receive a copy of the disputed evidence until
the deadline to file a motion to suppress. Id. at 1231. Yet in filing
his untimely motion, the defendant did not “acknowledge the mo-
tion’s untimeliness” or “show good cause to excuse his eleven-
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24-10310 Opinion of the Court 19
month delay” after receiving the evidence. Id. at 1231–32. We ob-
served that “[a] district court’s scheduling order is not a frivolous
piece of paper, idly entered, which can be cavalierly disregarded by
counsel without peril.” Id. at 1232. Because “the court simply en-
forced its own deadline,” it did not abuse its discretion in denying
the defendant’s motion to suppress as untimely. Id.
Here, the district court similarly did not abuse its discretion
when it enforced its own deadline for a motion to suppress. To be
sure, Crespo received the FBI Incident Summary Report over a
year after the pretrial motion deadline passed. But in his motion to
suppress, Crespo neither acknowledged his motion’s untimeliness
nor showed good cause as to why the motion was filed over ninety
days after he received the FBI Incident Summary Report and only
sixty days before the scheduled trial date, as required by Rule
12(c)(3). Indeed, in the interim, Crespo filed a motion to continue
trial and other motions but did not promptly notify the district
court of the new evidence he received. Furthermore, Crespo fails
to articulate what statements in the FBI Incident Summary Report
called into question the veracity of the wiretap application such
that he did not have “all the information necessary” to file his mo-
tion before the deadline set by the district court. Indeed, many of
the wiretap application statements that Crespo quotes in his brief-
ing do not reference the information from the FBI Incident Sum-
mary Report, which means he could have raised these issues when
he first received the application. Thus, the district court’s denial of
Crespo’s motion to suppress as untimely was not an abuse of dis-
cretion.
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Because the district court did not abuse its discretion in
denying Crespo’s motion to suppress as untimely, we review the
underlying merits of his motion for plain error. See id.; Andres, 960
F.3d at 1315–16. Crespo’s argument fails at the outset because we
find no error in admitting the wiretap evidence.
Crespo argues that the FBI Incident Summary Report ne-
gated the reasons justifying a wiretap of Diaz’s phone in the wire-
tap application. According to Crespo, the application stated that
Diaz told a confidential source that Crespo knew Diaz bought and
sold oxycodone pills and that Crespo would turn a blind eye to the
illegal trafficking. Crespo alleges that this contradicted the notes in
the FBI Incident Summary Report. According to that report, the
informant did not know whether Diaz was bragging about his
friendship with Crespo or telling the truth and stated that he did
not believe Crespo was corrupt.
Crespo’s arguments are unavailing for two reasons. First,
the wiretap application is not in the record; Crespo only proffers
what he alleges are direct quotations of the application in his appel-
late briefs, which only cite to his motion to suppress. Even in his
motion below, he did not provide the application from which he
allegedly quotes. We do not consider facts outside the record and
Crespo has “abandoned” the merits of his appeal by failing to give
“citations to the authorities and parts of the record on which [he]
relies.” Doe v. Moore, 410 F.3d 1337, 1349 n.10 (11th Cir. 2005).
Second, even if Crespo’s quotations of the application are
accurate, we do not find any falsehoods or omissions that eliminate
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24-10310 Opinion of the Court 21
probable cause or warrant a Franks hearing. See Franks v. Delaware,
438 U.S. 154, 155–56 (1978). “An application for a wiretap authori-
zation must be supported by the same probable cause necessary for
a search warrant.” United States v. Nixon, 918 F.2d 895, 900 (11th
Cir. 1990). And “[t]o obtain a Franks hearing, a defendant must not
only show that the affiant made false statements or omissions ‘in-
tentionally or with reckless disregard for the truth,’ but also that
the false statements or omissions were ‘necessary to the finding of
probable cause.’” United States v. Goldstein, 989 F.3d 1178, 1197
(11th Cir. 2021) (quoting United States v. Kapordelis, 569 F.3d 1291,
1309 (11th Cir. 2009)).
Here, we find no false statements or omissions in the wire-
tap application, let alone any that were necessary to finding proba-
ble cause. For example, an informant could both be told by Diaz
that Crespo would alert him if he was being investigated and not
know whether Diaz was bragging or telling the truth. In addition,
an informant could both be told by Diaz that Crespo would turn a
blind eye to Diaz’s illegal drug trafficking and think that Crespo was
not corrupt. Diaz’s statements to the informant sufficed to estab-
lish probable cause with respect to the target of the wiretap: Diaz.6
6 Perhaps recognizing this, Crespo argues that he was the true target of the
wiretap. But his self-serving version of the facts ignores that agents can con-
tinue collecting wiretap evidence even after the investigated crime is com-
pleted. See Goldstein, 989 F.3d at 1193 (“Depending on the circumstances,”
such as evidence of an “ongoing conspiracy,” “a valid wiretap may issue after
a crime is complete so long as there is probable cause that evidence of the
completed crime will be found.”).
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22 Opinion of the Court 24-10310
See United States v. Domme, 753 F.2d 950, 954 n.2 (11th Cir. 1985) (“A
wiretap application need not provide probable cause of criminal ac-
tivity for each person named in an application.”). As to any omis-
sions, without the full application in the record before us, Crespo
“fails to raise the issue sufficiently for discussion.” See Moore, 410
F.3d at 1349 n.10.
We thus conclude that the district court did not abuse its
discretion in denying Crespo’s motion to suppress as untimely, nor
did it err in admitting the wiretap evidence. We turn next to Cre-
spo’s argument regarding the motion for mistrial.
B. Motion for Mistrial
Crespo also appeals the denial of his two motions for a mis-
trial. First, Crespo argues that SA Lawless’s false testimony at trial,
that Crespo was present when Diaz bought and sold oxycodone,
had a substantial influence on the jury’s verdict. Second, Crespo
argues that the prosecutor’s question about Crespo receiving infor-
mation from Diaz about the interviewees having COVID had a
similar influence. We are unpersuaded by both arguments.
The district court has discretion to grant a mistrial since it
“is in the best position to evaluate the prejudicial effect of a state-
ment or evidence on the jury.” United States v. Delgado, 321 F.3d
1338, 1346–47 (11th Cir. 2003). And “[w]hen the district court gives
a curative instruction” to remedy the potentially prejudicial effect
of a statement, “we presume that the jury followed it.” United
States v. Gallardo, 977 F.3d 1126, 1138 (11th Cir. 2020). We will re-
verse the district court’s denial of a mistrial “only if the evidence is
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24-10310 Opinion of the Court 23
so highly prejudicial as to be incurable by the trial court’s admoni-
tion.” Delgado, 321 F.3d at 1347 (citation modified).
Here, the district court gave the jury curative instructions
for both instances that allegedly warrant mistrial. As to Crespo’s
presence when Diaz bought and sold oxycodone, the district court
instructed that SA Lawless’s statement was to be disregarded and
that there was no evidence supporting his statement. As to the
prosecutor’s suggestion that Diaz was the source of the false infor-
mation used to deter HHS’s interview of the patient recruits, the
district court instructed the jury that they should disregard the
prosecutor’s question and reminded the jury that what attorneys
say and the questions they ask are not evidence. Having provided
curative instructions, “we presume that the jury followed it.” Gal-
lardo, 977 F.3d at 1138.
Crespo nevertheless argues that the testimony incorrectly
painted Crespo as a corrupt federal agent who looked the other
way while Diaz bought and sold oxycodone. But Crespo fails to
show that the colloquies were “so prejudicial that no instruction
could cure it.” See Gallardo, 977 F.3d at 1139. To start, the jury
acquitted Crespo of the conspiracy-to-distribute count, suggesting
that the alleged error in SA Lawless’s testimony was curable. And
regardless of whether the false information relating to the patient
recruits came from Diaz, the jury was at liberty to conclude, in as-
sessing the credibility of SA Barranco’s testimony about his conver-
sation with Crespo and other trial evidence, that Crespo lied to SA
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24 Opinion of the Court 24-10310
Barranco and impeded the Strike Force’s investigation by dissuad-
ing HHS agents from interviewing those patients. Any contrary
interpretations were for Crespo’s trial counsel to establish.
We thus conclude that the district court did not abuse its
discretion in denying Crespo’s motion for a mistrial.
C. Recross Examination of SA Slattery
Next, Crespo argues that the district court erred in denying
recross-examination of SA Slattery because he was entitled to ask
questions about issues that went beyond the scope of redirect. Spe-
cifically, Crespo argues that the government raised new matters in
redirect when it asked SA Slattery about the anonymous letter that
accused Diaz and Dr. Gonzalez of drug trafficking and the time
when Crespo warned Diaz about the Strike Force’s investigation
into West Medical. The government responds that it did not raise
a new matter because the evidence was already in the trial record
and its questions about the evidence directly responded to defense
counsel’s questions on cross examination. The government is cor-
rect.
“[A]s opposed to cross-examination, a defendant has no con-
stitutional right to recross-examination.” Jeri, 869 F.3d at 1262–63
(citing United States v. Ross, 33 F.3d 1507, 1517–18 (11th Cir. 1994)).
“Rather, he has only a limited right to recross-examination where
a new matter is brought out on redirect examination.” Id. (citation
modified).
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Here, Crespo fails to show that the government introduced
new matters during its redirect examination of SA Slattery. De-
fense counsel’s questions on cross-examination suggested that Cre-
spo’s decision to terminate his lease for his office near West Medi-
cal was independent of the Strike Force’s investigation into Dr.
Gonzalez and the clinic. Defense counsel successfully established
that SA Slattery could neither definitively say that Crespo knew
West Medical was nearby nor that Crespo closed the office because
he knew of Dr. Gonzalez’s impending indictment. The govern-
ment’s questions on redirect indicated that the evidentiary purpose
of the anonymous letter and Crespo’s conversation with Diaz
about the investigation into West Medical, both of which were al-
ready in the trial record, was directly responsive to the theory on
cross examination—why Crespo decided not to renew his lease.
During redirect, the government revealed the temporal proximity
between Crespo’s decision and the Strike Force’s progress in their
investigation into Dr. Gonzalez and West Medical, which is not an-
ything new that Crespo should have been given an opportunity to
address.
We thus conclude that the district court did not abuse its
discretion in denying defense counsel’s request for recross-exami-
nation.
D. Rule 404(b)
Crespo also argues that the district court erred in admitting
his past-acts of buying and selling PPE into evidence because the
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26 Opinion of the Court 24-10310
implied propensity to commit crimes was prejudicial to the jury’s
verdict.
Rule 404(b) states that “[e]vidence of any other crime,
wrong, or act is not admissible to prove a person’s character in or-
der to show that on a particular occasion the person acted in ac-
cordance with the character.” Fed. R. Evid. 404(b). “[R]egardless
of whether the activity might give rise to criminal liability,” the test
for admissibility under this rule is a three-part inquiry. United States
v. Dickerson, 248 F.3d 1036, 1046 (11th Cir. 2001). First, “[t]he evi-
dence must be relevant to an issue other than the defendant’s char-
acter.” United States v. Elysee, 993 F.3d 1309, 1347 (11th Cir. 2021).
Second, “sufficient evidence must be presented to allow a jury to
find that the defendant committed the extrinsic act.” Id. And third,
“the probative value of the evidence must not be substantially out-
weighed by its undue prejudice.” Id. In this inquiry, we recognize
that the district court “is afforded broad discretion in deciding the
admissibility of extrinsic act evidence, and as stated earlier, its deci-
sion will not be reversed absent an abuse of discretion.” United
States v. Dorsey, 819 F.2d 1055, 1060 (11th Cir. 1987).
As to the first prong, Crespo argues that the PPE evidence
was admitted to suggest Crespo’s bad character. But after Crespo’s
objection at trial, the government stated that the evidence was in-
troduced to show Crespo’s state of mind. The government’s theory
was that the PPE evidence showed Crespo was engaging in con-
duct not approved by HHS, indicating Crespo’s lack of respect for
HHS and its policies. With this evidence, a jury could reasonably
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24-10310 Opinion of the Court 27
conclude that Crespo’s witness tampering and conspiracy to ob-
struct justice were similarly intentional. We have held that this is
a permissible use of extrinsic acts. Dorsey, 819 F.2d at 1060 (“Where
the extrinsic offense is offered to prove intent, its relevance is de-
termined by comparing the defendant’s state of mind in perpetrat-
ing both the extrinsic and charged offenses.”).
As to the second prong, Crespo argues that the PPE-related
emails did not sufficiently show that he was buying and selling PPE
without HHS’s approval. To be sure, the text of the emails alone
may not have indicated that this was the case. But SA Slattery elab-
orated on the emails and testified that HHS supervisors did not ap-
prove Crespo’s conduct. In this respect, the emails confirmed that
Crespo did buy and sell PPE outside of his work at HHS.
As to the third prong, Crespo argues that the evidence was
prejudicial because it suggested that Crespo was a bad person who
did bad things. Though the jury could have concluded that this
was the case, the “evidence [was not] so highly prejudicial as to be
incurable.” Delgado, 321 F.3d at 1347 (citation modified). Indeed,
Crespo’s defense counsel himself penned the curative instruction
for the jury, and the district court provided its own instruction at
the end of trial. The jury was thus instructed both times that Cre-
spo was on trial for the crimes charged in the indictment and any
testimony about a violation of government or employment poli-
cies and procedures, standing alone, was not a crime.7
7 Crespo also argues that the curative instruction provided at the end of trial
was wrong when it stated that “a violation of these policies and procedures,
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28 Opinion of the Court 24-10310
We thus conclude that the district court did not abuse its
discretion by admitting the PPE evidence at trial.
E. Cumulative Errors
Crespo argues that the district court committed four errors
in addition to those discussed above that together warrant a new
trial: (1) allowing the government to replay the voicemail Crespo
left for Lorenzo three times before the jury; (2) admitting into evi-
dence the July 17 Transcript despite an allegedly incorrect transla-
tion; (3) sustaining his objection to testimony about his knife but
doing nothing further; and (4) taking no curative steps after the
government asked Agent Luna about Crespo’s temperament.
“The cumulative error doctrine provides that an aggrega-
tion of non-reversible errors (i.e., plain errors failing to necessitate
reversal and harmless errors) can yield a denial of the constitutional
right to a fair trial, which calls for reversal.” Morris v. Sec’y, Dep’t of
Corr., 677 F.3d 1117, 1132 (11th Cir. 2012). “We address claims of
cumulative error by first considering the validity of each claim in-
dividually, and then examining any errors that we find in the ag-
gregate and in light of the trial as a whole to determine whether
the appellant was afforded a fundamentally fair trial.” Id. With
standing alone, is not a crime” because the term “standing alone” was vague.
But he cites no case law in support of his position and does not explain why
the term is vague. Indeed, “[s]o long as the instructions accurately reflect the
law, the trial judge is given wide discretion as to the style and wording em-
ployed in the instructions.” See United States v. Starke, 62 F.3d 1374, 1380 (11th
Cir. 1995).
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24-10310 Opinion of the Court 29
these principles in mind, we address Crespo’s arguments regarding
cumulative errors and begin with the voicemail evidence.
1. Voicemail Evidence
Crespo argues that playing the recorded voicemail he left for
Lorenzo during SA Slattery’s, Lorenzo’s, and Diaz’s testimony was
unduly prejudicial because it implied that Crespo was an angry and
violent person, which had nothing to do with the charges against
him. See Fed. R. Evid. 403.8
Rule 403 states that a “court may exclude relevant evidence
if its probative value is substantially outweighed by a danger of . . .
needlessly presenting cumulative evidence.” Fed. R. Evid. 403. It
“is an extraordinary remedy which the district court should invoke
sparingly, and the balance should be struck in favor of admissibil-
ity.” United States v. Lopez, 649 F.3d 1222, 1247 (11th Cir. 2011)
(quoting United States v. Alfaro-Moncada, 607 F.3d 720, 734 (11th Cir.
2010)). The rule requires us to “look at the evidence in a light most
favorable to its admission, maximizing its probative value and min-
imizing its undue prejudicial impact.” Id.
Here, the probative value of the voicemail was not out-
weighed by the danger of replaying it. To start, the voicemail was
properly played during Lorenzo’s testimony because it allowed her
to explain Crespo’s threats and their relation to her intent to speak
8 Recall that Crespo objected only during Lorenzo’s testimony but did not ob-
ject during SA Slattery’s or Diaz’s testimony.
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30 Opinion of the Court 24-10310
to law enforcement about the Oxycodone Scheme. Next, the evi-
dentiary purpose of playing the voicemail during Diaz’s testimony
was to corroborate that Crespo used Diaz’s phone to leave the
voicemail for Lorenzo. We thus conclude that the district court
did not err by allowing the voicemail recording to be played mul-
tiple times because any prejudicial effect did not substantially out-
weigh the probative value of replaying the voicemail before Lo-
renzo and Diaz. We turn next to Crespo’s argument regarding the
July 17 Transcript.
2. July 17 Transcript
Crespo argues that the alleged mistranslation of one line
from the July 17 Transcript swayed the outcome of trial. But the
translation was available before trial for Crespo’s inspection and he
did not object to the translation then or any other time it was used
at trial. Indeed, when the same transcript was presented to other
trial witnesses, Crespo neither asked any witness about a possible
alternate translation nor requested a curative instruction. Even if
the translation was incorrect, there was overwhelming evidence in
the remainder of the July 17 Transcript and Crespo’s subsequent
statements to SA Lawless from which the jury could infer that Cre-
spo was obstructing the investigation. See United States v. Phakni-
kone, 605 F.3d 1099, 1109 (11th Cir. 2010). For example, Crespo
specifically told Diaz what to say to SA Lawless and when Crespo
spoke to SA Lawless a few days later, Crespo lied about his
knowledge of Diaz’s drug trafficking.
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24-10310 Opinion of the Court 31
3. Knife Evidence
Third, Crespo argues that the government’s suggestion that
he was arrested in possession of a knife was an improper attack on
his character. Crespo’s failure to raise this specific objection at trial
or “move to strike any of the problematic testimony” means that
the admission of the evidence is reviewed for plain error. See United
States v. Spila, 136 F.4th 1296, 1308–09 (11th Cir. 2025) (citation
modified).
We conclude that the district court did not err, let alone
plainly err, by admitting SA Barranco’s statements. Prior testi-
mony already revealed that knives were found in Crespo’s vehicle
at the time of his arrest, and Crespo’s objection that SA Barranco
lacked personal knowledge about the knife was sustained. After
successfully objecting, Crespo did not move to strike SA Barranco’s
statements or request a curative instruction. Indeed, it is unclear
what more could have been done in response to Crespo’s objec-
tion, especially because Crespo did not object on improper-charac-
ter-evidence grounds. We thus conclude that the district court did
not err in sustaining Crespo’s objection and taking no further cura-
tive action. See United States v. Daniels, 91 F.4th 1083, 1099 (11th
Cir. 2024) (holding that the district court did not err or plainly err
when it did not strike testimony sua sponte).
4. Agent Luna’s Testimony
Lastly, Crespo argues that the government’s cross examina-
tion of Agent Luna improperly asked about Crespo’s tempera-
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32 Opinion of the Court 24-10310
ment. Because Crespo “failed to preserve [this issue] by unambig-
uously flagging the mistake and contemporaneously objecting,”
we review the district court’s admission of the testimony for plain
error. Id. at 1095 (citation modified). “The admission of evidence
constitutes plain error when the evidence was so obviously inad-
missible and prejudicial that, despite defense counsel’s failure to
object, the district court, sua sponte, should have excluded the evi-
dence.” Id.
Crespo’s arguments that the district court erred, let alone
plainly erred, are unpersuasive. The government’s colloquy with
Agent Luna was not “so obviously inadmissible” because the gov-
ernment’s questions were related to Crespo’s defense theory. See
id. The trial record indicates that Crespo attributed his tempera-
ment on July 17 to being drunk, and the questions asked by the
prosecutor probed whether he was ordinarily quick to anger or
prone to violence. Nor do we conclude that the prosecutor’s ques-
tions were “so obviously . . . prejudicial.” See id. During cross
examination, Agent Luna did not agree that Crespo was quick to
anger or prone to violence, and repeatedly during trial, the district
court instructed the jury that an attorney’s questions were not ev-
idence. In “maximizing,” see Lopez, 649 F.3d at 1247, the probative
value of this evidence, we cannot say that value was substantially
outweighed by the prejudicial effect of depicting Crespo as angry
and violent. The district court, thus, did not err, let alone plainly
err, by admitting this portion of Agent Luna’s testimony. See United
States v. Mosquera, 886 F.3d 1032, 1046 (11th Cir. 2018) (“It was not
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24-10310 Opinion of the Court 33
plain error—indeed, it was not error at all—for the court to not
strike the question sua sponte.”).
5. There is No Cumulative Error Requiring Reversal
As demonstrated above, none of Crespo’s “individual claims
of error or prejudice have any merit.” See Morris, 677 F.3d at 1132.
“Where there is no error . . . , there can be no cumulative error.”
Gamory, 635 F.3d at 497. We thus conclude that Crespo failed to
show cumulative error and his convictions are upheld on these
grounds. We turn next to address the motion for judgment of ac-
quittal.
F. Motion for Judgment of Acquittal
Crespo appeals the district court’s denial of his motion for
acquittal and argues that there was insufficient evidence to support
his conviction. Specifically, Crespo appeals the denial of his motion
as to Counts Five, Seven, Eight, and Ten.
In reviewing a challenge to the sufficiency of the evidence
and the denial of a Rule 29 motion for judgment of acquittal “‘[w]e
view the evidence in the light most favorable to the government,’
making all reasonable inferences and credibility choices in the gov-
ernment’s favor, and then ‘determine whether a reasonable jury
could have found the defendant guilty beyond a reasonable
doubt.’” Gamory, 635 F.3d at 497 (quoting United States v. Mercer,
541 F.3d 1070, 1074 (11th Cir. 2008)).
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34 Opinion of the Court 24-10310
Under this standard, a district court’s denial of a motion for
judgment of acquittal will be upheld “if we ‘determine that a rea-
sonable fact-finder could conclude that the evidence established the
defendant’s guilt beyond a reasonable doubt.’” Id. (quoting United
States v. Descent, 292 F.3d 703, 706 (11th Cir. 2002)). “The evidence
need not be inconsistent with every reasonable hypothesis other
than guilt, and we allow the jury to choose among several reason-
able conclusions to be drawn from the evidence.” Id. (citing United
States v. Hunt, 526 F.3d 739, 745 (11th Cir. 2008)). With these prin-
ciples in mind, we turn now to Crespo’s arguments.
1. Conspiracy to Commit Witness Tampering (Count Five)
Crespo argues that there was insufficient evidence to show
that he knowingly and willfully joined a conspiracy to commit wit-
ness tampering.
“For a defendant to be found guilty of conspiracy, the gov-
ernment must prove beyond a reasonable doubt (1) that a conspir-
acy existed; (2) that the defendant knew of it; and (3) that the de-
fendant, with knowledge, voluntarily joined it.” United States v.
Sosa, 777 F.3d 1279, 1289–90 (11th Cir. 2015). “[B]ecause the crime
of conspiracy is predominantly mental in composition, it is fre-
quently necessary to resort to circumstantial evidence to prove its
elements.” Id. at 1290 (quoting United States v. Toler, 144 F.3d 1423,
1426 (11th Cir. 1998)).
As an initial matter, Crespo does not dispute that the first
and second prongs are met. So, his success on this issue turns on
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24-10310 Opinion of the Court 35
whether sufficient evidence supports that he voluntarily joined the
conspiracy to commit witness tampering.
Crespo argues that the government’s failure to prove that he
lied to SA Barranco about the patient interviewees having COVID
during their July 8 conversation means that insufficient evidence
supported his conviction. But Crespo ignores other evidence in the
trial record from which the jury could reasonably conclude that
Crespo was guilty beyond a reasonable doubt of this Count. For
example, a jury could reasonably conclude that Crespo’s phone
calls with Diaz about providing materially false testimony to SA
Lawless was evidence of Crespo voluntarily conspiring to witness
tamper. Additionally, the jury could also reasonably conclude that
Crespo’s voicemail to Lorenzo using Diaz’s phone was his volun-
tary attempt to dissuade Lorenzo from speaking with investigating
agents.
2. Witness Tampering (Counts Seven and Eight)9
We next address whether sufficient evidence supported Cre-
spo’s convictions for witness tampering.
“[A] person violates 18 U.S.C. § 1512(b) if he (1) knowingly
uses intimidation, threatens, or corruptly persuades another per-
son, or engages in misleading conduct toward another person, with
intent to (2) hinder, delay, or prevent the communication of infor-
9 Crespo was convicted of three counts of witness tampering but only appeals
the sufficiency of the evidence for these two counts.
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36 Opinion of the Court 24-10310
mation relating to the commission or possible commission of a fed-
eral offense (3) to a law enforcement officer or judge of the United
States.” United States v. Gatlin, 90 F.4th 1050, 1062 (11th Cir. 2024)
(citation modified).
Crespo only disputes the first prong for Counts Seven and
Eight. Count Seven concerns Crespo’s July 8 conversation with SA
Barranco about the patient recruits having COVID. For this
Count, Crespo argues that the evidence showed only that he told
SA Barranco about the patient recruits having COVID because he
had legitimate concerns about the safety of the HHS agents. Count
Eight concerns Crespo’s July 17 conversation with Diaz about what
to tell SA Lawless. For this Count, Crespo argues that he told Diaz
about what to say to SA Lawless because he was intoxicated.
But once again, Crespo ignores other evidence in the trial
record from which the jury could reasonably convict Crespo for
these counts. As to Count Seven, the jury could reasonably con-
clude that Crespo was lying about the patient recruits having
COVID because SA Barranco testified about Crespo’s unwilling-
ness to identify the source of his information and demeanor during
the conversation. As to Count Eight, the jury could reasonably
conclude that his call with Diaz about what to tell SA Lawless was
made with the requisite knowledge and intent, despite having a
few drinks.
3. Conspiracy to Obstruct Justice (Count Ten)
Last, we address whether sufficient evidence supported Cre-
spo’s convictions for conspiracy to obstruct justice.
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24-10310 Opinion of the Court 37
A person violates 18 U.S.C. § 1512(c)(2) if he corruptly ob-
structs, influences, or impedes any official proceeding, or attempts
to do so. “[T]he government must prove that the defendant knew
of or foresaw an official proceeding, and knew that his actions were
likely to affect it.” United States v. Beach, 80 F.4th 1245, 1257 (11th
Cir. 2023) (quoting United States v. Friske, 640 F.3d 1288, 1292 n.5
(11th Cir. 2011)). An official proceeding can be a grand jury pro-
ceeding and need not be pending or instituted at the time of the
offense. See id. at 1255; 18 U.S.C. § 1512(f); see also McAndrew v.
Lockheed Martin Corp., 206 F.3d 1031, 1040 (11th Cir. 2000).
Crespo argues that there was insufficient evidence to sup-
port his conviction of Count Ten because trial evidence showed
that the investigation into Dr. Gonzalez was closed and Crespo
could not have suspected that there would be any other official pro-
ceedings. But on review of the trial record, it was also reasonable
for the jury to conclude that Crespo foresaw that an official pro-
ceeding, Diaz’s grand jury indictment, would take place. The evi-
dence revealed that all Strike Force investigations sought to indict
the individuals they were investigating and the jury could conclude
that Crespo, a Strike Force member, knew this was the case. So,
when Crespo learned that Diaz was being investigated, the jury
could have also concluded that Crespo could foresee that a grand
jury proceeding might take place, even though it was not “pending
or about to be instituted at the time of [Crespo’s conduct].” See 18
U.S.C. § 1512(f).
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38 Opinion of the Court 24-10310
G. Good Faith Jury Instruction
Crespo argues that the district court erred in refusing to give
his requested jury instruction on good faith as a defense to his
charges in Counts Seven through Ten—witness tampering and ob-
struction of justice. Crespo’s theory is that instead of acting with
intent to obstruct the investigation, Crespo was acting with intent
to assist or help Diaz.
We will reverse a district court’s decision not to give a re-
quested jury instruction “when we are left with a substantial and
ineradicable doubt as to whether the jury was properly guided in
its deliberations.” United States v. Lopez, 590 F.3d 1238, 1248 (11th
Cir. 2009) (quoting United States v. Grigsby, 111 F.3d 806, 814 (11th
Cir. 1997)). The requested instruction (1) must be “correct;” (2)
must not be “substantially covered by the charge actually given;”
and (3) must “deal[] with some point in the trial so important that
failure to give the requested instruction seriously impaired the de-
fendant’s ability to conduct his defense.” United States v. Chastain,
198 F.3d 1338, 1350 (11th Cir. 1999). We “examine[] the jury
charges as a whole, determining whether the entire charge suffi-
ciently instructed the jury about the issues.” United States v. Horner,
853 F.3d 1201, 1208 (11th Cir. 2017).
First, Crespo’s jury instruction is incorrect because he does
not cite to any relevant caselaw, and we are aware of none, indicat-
ing that good faith is a defense to witness tampering and obstruc-
tion of justice. See United States v. Zlatogur, 271 F.3d 1025, 1030
(11th Cir. 2001) (requiring a jury instruction to have legal support).
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24-10310 Opinion of the Court 39
Second, Crespo’s proposed instruction was substantially covered in
the charge actually given because the jury was informed of the nec-
essary state of mind to be convicted when the district court de-
scribed “knowing” and “willful” conduct, “corrupt persuasion,”
and “misleading conduct,” as relevant to the criminal counts. See
18 U.S.C. §§ 1512(b)(3), (c)(2). The district court’s instructions
were sufficient to guide the jury. See Horner, 853 F.3d at 1208. And
third, refusing to give the proposed jury instruction did not seri-
ously impair Crespo’s ability to conduct his defense because there
was no evidentiary basis to give this instruction. See Zlatogur, 271
F.3d at 1030 (requiring some basis in the evidence). In observing
the above, we cannot say that there is an ineradicable doubt that
the jury was misguided in its deliberations. See Lopez, 590 F.3d at
1248.
We thus conclude that the district court did not abuse its
discretion in rejecting Crespo’s proposed jury instruction.
H. Sentencing
We now address the final issue raised on appeal. Crespo ar-
gues that the district court miscalculated his sentence for two rea-
sons: his base offense level should have been calculated based on
his involvement in Diaz’s crimes, not Dr. Gonzalez’s, and the dis-
trict court failed to make individualized findings regarding the
scope of his involvement in Dr. Gonzalez’s crimes.
Under the Sentencing Guidelines, a defendant is held ac-
countable for his relevant conduct. See U.S.S.G. § 1B1.3. Applica-
tion Note 3 of § 1B1.3 provides that, when a defendant is convicted
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40 Opinion of the Court 24-10310
of a drug conspiracy offense, his relevant conduct includes drug
quantities with which the defendant “was directly involved” and
also “all quantities of contraband that were involved in transactions
carried out by other participants, if those transactions were within
the scope of, and in furtherance of, the jointly undertaken criminal
activity and were reasonably foreseeable in connection with that
criminal activity.” U.S.S.G. § 1B1.3, cmt. n.3(D).
Here, Crespo misunderstands the oxycodone quantity used
to calculate his sentence. He claims that the district court improp-
erly attributed all of Dr. Gonzalez’s illegal distribution to Crespo.
But a closer look at the PSI and the district court’s adoption thereof
show that this is not the case. Specifically, the PSI only included
Crespo’s portion of Dr. Gonzalez’s distribution to Diaz and neither
included the remainder of Dr. Gonzalez’s oxycodone distribution
nor the oxycodone from other clinics that Diaz referred patients to.
And Crespo “jointly undert[ook] criminal activity” in furtherance
of this portion of the scheme because he impeded the investigation
thereof. Id.
Crespo’s second argument fares no better. In support, he
cites to United States v. Moran, where we held that “[t]o determine
whether a defendant is liable for the acts of co-conspirators, the dis-
trict court must first make individualized findings concerning the
scope of criminal activity undertaken by the defendant.” 778 F.3d
942, 974 (11th Cir. 2015). But Crespo cites the wrong standard be-
cause his offense “involved obstructing the investigation or prose-
cution of a criminal offense,” for which we apply U.S.S.G. § 2X3.1,
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24-10310 Opinion of the Court 41
the “Accessory After the Fact” Guideline. See United States v.
McQueen, 86 F.3d 180, 182 (11th Cir. 1996). According to this
guideline, his sentence is “based on the severity of the underlying
offense that was the subject of the judicial proceeding sought to be
obstructed, impeded or influenced.” See United States v. Brenson,
104 F.3d 1267, 1285 (11th Cir. 1997); see also McQueen, 86 F.3d at
182. Because the purpose of Crespo’s obstruction offense was to
impede the investigation into Diaz’s trafficking, his sentence was
based on that underlying drug trafficking offense.
We thus conclude that the district court did not err in calcu-
lating Crespo’s sentence.
IV. CONCLUSION
For all these reasons, we affirm Crespo’s convictions and
sentence.
AFFIRMED.
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