[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 28, 2008
No. 07-13648 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00119-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ANDRES GONZALEZ,
a.k.a. Andy,
FIDEL GONZALEZ,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 28, 2008)
Before CARNES, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Carlos Gonzalez appeals his convictions for conspiracy to distribute more
than 1000 marijuana plants, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), 846, and
possession with intent to distribute 100 or more marijuana plants, 21 U.S.C. §
841(a)(1), (b)(1)(B)(vii), and Fidel Gonzalez appeals his conviction and sentence
for conspiracy to distribute more than 1000 marijuana plants, 21 U.S.C. §§
841(a)(1), 841(b)(1)(A)(viii), 846. Fidel and Carlos each challenge evidentiary
rulings. Fidel also argues that there was a material variance between his
indictment and the evidence at trial, insufficient evidence to support his conviction,
and a sentencing error. We affirm.
I. BACKGROUND
Fidel and Carlos were involved in the cultivation, distribution, and sale of
marijuana. Carlos lived in Miami with Gilberto Perez. Carlos trained Perez about
the cultivation of marijuana plants and introduced Perez to Fidel. Perez harvested
three crops, each containing 50 to 60 marijuana plants. Fidel and Carlos paid Perez
based on the amount that Perez produced and retained “the balance” of the profits.
Fidel and Carlos transported the marijuana to New York in 30-pound increments.
Perez later received money from Carlos and Fidel to purchase two homes in
Homestead. Fidel helped convert the homes into greenhouses, and Fidel and
Carlos delivered marijuana plants to the two locations. Perez and Carlos’s father,
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Jose Hernandez, cultivated the plants and harvested three crops totaling 120 plants.
Hernandez also assisted other growers in harvesting ten additional crops, three of
which involved a total of 152 plants.
Perez introduced Carlos to Osvaldo Alonso, who later performed electrical
work and installed air conditioning in the marijuana greenhouses. Alonso
purchased a house in Homestead that Fidel helped convert into a greenhouse in
which Alonso harvested two crops totaling 132 marijuana plants. Fidel, who
observed the first harvest and took possession of the crop, divided the profit with
Alonso. With profits from the first house, Alonso purchased a second home,
where he harvested two additional crops totaling 132 marijuana plants. Fidel and
Carlos took possession of the marijuana, and Carlos paid Alonso for the crops.
In the meantime, Carlos recruited Ignacio Carbajal in Miami and introduced
him to Fidel. Carbajal purchased a home that Fidel and Carlos helped him to
convert into a marijuana greenhouse. Carbajal harvested two crops totaling 108
plants and divided the profits with Carlos. Fidel transported Carbajal to assist
others periodically to harvest their marijuana crops.
Carbajal introduced Carlos to his cousin, Ernesto Castillo, who cultivated
the marijuana in Carbajal’s Miami home and helped harvest marijuana at two other
Miami greenhouses. At one harvest, Castillo saw Fidel and Carlos overseeing the
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operation. When Castillo inquired when he would paid for the harvests, Carbajal
and his father told Castillo that Fidel controlled the money in the marijuana
operation.
After several crops were stolen from the Miami homes, Carlos and Fidel
moved their operations to Cape Coral, where they continued to provide money for
individuals in the marijuana network to purchase and convert homes into marijuana
greenhouses. The Gonzalezes assisted Perez to purchase a home that Perez used to
harvest 14 marijuana plants. Carlos provided Carbajal with money to purchase one
Cape Coral home, in which he harvested three crops totaling 76 plants. Carlos then
assisted Carbajal to purchase a second home, where Carbajal harvested 21 plants.
Carlos helped Carbajal’s father purchase a home in which Fidel helped to harvest
15 to 17 plants. Carlos also opened his home to Jose Pena Pupo, whom Carlos
paid to harvest between 115 and 120 plants.
Carlos recruited Armando Garcia in Cape Coral and used Alonso to convert
Garcia’s house into a marijuana greenhouse. Garcia harvested between 40 and 50
marijuana plants, after which Carlos collected the substance and paid Garcia
24,000 dollars. Garcia thereafter assisted others to harvest four or five crops.
Carlos also recruited his uncle, Carlos Hernandez, to participate in two
harvests totaling 124 plants. Fidel visited Hernandez on one occasion to observe
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the marijuana. Perez and Carbajal also visited Hernandez to advise him about
growing marijuana.
After Ernesto Castillo was arrested in Carbajal’s home, Fidel and Carlos
provided Castillo with money to hire an attorney. Castillo eventually agreed to
assist law enforcement to discover marijuana greenhouses in Miami. Castillo later
expressed an interest in assisting authorities in Cape Coral. Castillo identified four
homes that he had helped convert into greenhouses. Authorities placed a global
positioning tracker on Carbajal’s vehicle and tracked the vehicle to several other
homes in Cape Coral.
Based on information accumulated during the investigation, Cape Coral
officers and Drug Enforcement Administration agents executed warrants on seven
homes visited by Carbajal and seized 691 marijuana plants. Although neither Fidel
nor Carlos was arrested, their names were discovered in the contact lists of seized
cellular telephones, and several individuals, including Armando Garcia, were taken
into custody. When the authorities searched Garcia’s house, they discovered a
photograph of Carlos standing in what appeared to be a room of marijuana plants.
Authorities later arrested Gilberto Perez and Osvaldo Alonso, and they agreed to
cooperate in the investigation.
Fidel and Carlos were indicted for conspiracy to distribute more than 1000
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marijuana plants, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), 846, and possession
with intent to distribute 100 or more marijuana plants, 21 U.S.C. § 841(a)(1),
(b)(1)(B)(vii). Before trial, Carlos filed a motion in limine to exclude the
photograph seized from Garcia’s house. The district court withheld a ruling until
after the government laid a foundation for the evidence.
At trial, Gilberto Perez, Jose Hernandez, Armando Garcia, Osvaldo Alonso,
Carlos Hernandez, Ignacio Carbajal, Jose Pupo, and Ernesto Castillo testified about
their participation in the cultivation and harvesting of marijuana and their
interaction with Fidel and Carlos. Jose Hernandez testified that Fidel “controlled
the money” in the marijuana operation. Garcia testified that the photograph seized
from his home depicted Carlos standing among marijuana “plants that look like the
ones that I had in my house.”
On cross-examination, Castillo denied that he had told police that Carbajal
led the marijuana operation in Cape Coral. The government continued this line of
inquiry on redirect examination and asked Castillo to name the leader of the
marijuana organization, to which Castillo answered that he did not know. The
government then asked Castillo who he “believed” was the leader of the
organization. Fidel objected and argued that the question had been “asked and
answered” and that Castillo’s opinion was “irrelevant.” The district court
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overruled the objections, and Castillo answered that the leader was “[p]ossibly
Fidel.”
The jury found Fidel guilty of conspiracy to distribute more than 1000
marijuana plants. The jury found Carlos guilty of both the conspiracy crime and
possession with intent to distribute more than 100 marijuana plants. The jury also
made specific findings about the quantity of marijuana involved in Fidel’s and
Carlos’s crimes.
Before sentencing, Fidel objected to the presentence investigation report and
argued that, because he was acquitted on the possession charge, the marijuana
seized in Cape Coral should not be included in the calculation of his sentence.
Fidel also objected to his base offense level. Fidel reasserted these objections at
sentencing. The district court overruled the objections and stated that the jury
found beyond a reasonable doubt that Fidel was guilty of a conspiracy that
involved more than 1000 marijuana plants. The district court sentenced both Fidel
and Carlos to 120 months of imprisonment and five years of supervised release.
II. STANDARD OF REVIEW
We apply four standards of review in this appeal. We review evidentiary
rulings for an abuse of discretion. United States v. Kennard, 472 F.3d 851, 854
(11th Cir. 2006), cert. denied, 127 S. Ct. 3004 (2007). We review de novo
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challenges to the sufficiency of the evidence and view the evidence in the light
most favorable to the government. United States v. Futrell, 209 F.3d 1286, 1288
(11th Cir. 2000). We also review de novo the application of the sentencing
guidelines and examine related findings of fact for clear error. United States v.
Humber, 255 F.3d 1308, 1311 (11th Cir. 2001). Objections or arguments that are
not raised in the district court are reviewed for plain error. United States v.
Edouard, 485 F.3d 1324, 1343 (11th Cir. 2007); United States v. Evans, 478 F.3d
1332, 1338 (11th Cir.), cert. denied, 128 S. Ct. 257 (2007); United States v.
Dennis, 237 F.3d 1295, 1300 (11th Cir. 2001); United States v. Harness, 180 F.3d
1232, 1234 (11th Cir. 1999).
III. DISCUSSION
Carlos and Fidel Gonzalez raise five separate issues for our consideration.
All fail. We address each argument in turn.
A. The Photograph of Carlos Gonzalez Was Admissible.
Carlos argues that the district court erroneously admitted into evidence a
photograph that depicted him surrounded by marijuana plants. He contends that
the government did not authenticate the photograph and it was unduly prejudicial.
We disagree.
The district court did not abuse its broad discretion by admitting the
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photograph into evidence. Testimony from Armando Garcia that Carlos was
featured in the photograph and standing among what appeared to be marijuana
plants provided sufficient information to authenticate the photograph. See Fed. R.
Evid. 901(a), (b)(1). Garcia’s lack of knowledge about the photographer and the
date of the photograph did not affect its admissibility. See United States v.
Clayton, 643 F.2d 1071, 1074 (5th Cir. Unit B 1981). The probative value of the
photograph outweighed any prejudice created by its admission because it provided
physical evidence of Carlos’s involvement in the marijuana conspiracy and his
actual possession of marijuana. See United States v. Tinoco, 304 F.3d 1088, 1120
(11th Cir. 2002).
B. Testimony Regarding Fidel’s Leadership Was Admissible.
Fidel argues, for the first time on appeal, that the district court should have
excluded testimony from Ernesto Castillo that Fidel was “possibly” the leader of
the conspiracy because the government did not establish that Castillo possessed
firsthand knowledge of the matter. This argument fails. Castillo testified that he
“knew” Fidel and Carlos, he observed them at a marijuana harvest, he received
money from Fidel and Carlos to hire a defense attorney, and his cousin told him
that Fidel controlled payment of workers in the marijuana harvesting business. See
Fed. R. Evid. 602. Based on Castillo’s cumulative knowledge about the
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conspiracy, the admission of Castillo’s testimony did not prejudice Fidel’s
substantial rights. See United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir.
2005).
C. There Was No Variance Between Fidel’s Indictment and
the Evidence Introduced At Trial.
We review an argument of material variance viewing the evidence in the
light most favorable to the government to determine whether a reasonable trier of
fact could have found that a single conspiracy existed beyond a reasonable doubt.
United States v. Castro, 89 F.3d 1443, 1450 (11th Cir. 1996). When an argument
of material variance is raised for the first time on appeal, we review for plain error.
United States v. Dennis, 237 F.3d 1295, 1300 (11th Cir. 2001). To be reversible
error, the facts proved at trial must materially differ from the facts alleged in the
indictment and the defendant must suffer substantial prejudice as a result. United
States v. Weissman, 899 F.2d 1111, 1114 (11th Cir. 1990).
Fidel’s argument that a material variance existed fails. The government
introduced evidence that was consistent with the conspiracy charged in Fidel’s
indictment. Fidel and Carlos were charged with “knowingly and willfully
combin[ing], conspir[ing], confederat[ing] and agree[ing] with each other and with
other persons . . . to possess with intent to distribute more than one thousand
(1000) marijuana plants” beginning in “September 2001, through and including
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May 17, 2005.” Testimony presented by numerous government witnesses
established that Fidel and Carlos acted jointly to recruit and assist individuals to
purchase and convert houses in Homestead, Miami, and Cape Coral into indoor
marijuana greenhouses, to cultivate and harvest over 1000 marijuana plants, and to
sell the marijuana.
D. Sufficient Evidence Supports Fidel’s Conviction.
Fidel argues, for the first time on appeal, that there was insufficient evidence
to prove he conspired to distribute more than 1000 marijuana plants, but this
argument fails. When a defendant fails to move for a judgment of acquittal, we
will affirm his conviction unless “the evidence on a key element of the offense is
so tenuous that a conviction would be shocking.” United States v. Bischel, 156
F.3d 1148, 1150 (11th Cir. 1998). Testimony from Gilberto Perez, Jose
Hernandez, Osvaldo Alonso, Carlos Hernandez, and Ignacio Carbajal established
that Fidel assisted in the cultivation of over 1000 marijuana plants in homes
located in Homestead, Miami, and Cape Coral.
E. Fidel Was Correctly Sentenced For Conspiring to Distribute
More Than 1000 Marijuana Plants.
Fidel argues that his sentence was improperly enhanced for his involvement
with more than 1000 marijuana plants because witnesses did not distinguish
marijuana seedlings from marijuana plants. His argument fails. Testimony
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supports the finding by the jury that Fidel conspired to distribute more than 1000
marijuana plants.
IV. CONCLUSION
The convictions of Carlos Gonzalez and the conviction and sentence of Fidel
Gonzalez are AFFIRMED.
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