[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 24, 2008
No. 06-14154
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-20915-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILFREDO ROBLES,
a.k.a. Willy,
JAIRO RAFAEL SANZ DE LA ROSA,
RUDY ALBERTO RODRIGUEZ,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(June 24, 2008)
Before BIRCH, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
In this multi-count drug conspiracy case, Jairo Rafael Sanz de la Rosa
(“Sanz”) and Wilfredo Robles appeal their convictions and sentences, and Rudy
Rodriguez appeals his conviction. After a thorough review of the record and upon
hearing oral argument, we affirm the convictions of all defendants, but vacate and
remand Robles appeal for resentencing.
I.
Sanz, Robles, and Rodriguez were charged along with Jorge Isaacs Diaz
(“Isaacs”), Orlando Gonzalez-Perez (“Gonzalez-Perez”), and Humberto Rua in a
three-count indictment.1 Count 1 charged all defendants with conspiracy to import
five kilograms of more of cocaine, in violation of 21 U.S.C. §§ 952, 960(b), and
963. Count 2 alleged that all defendants engaged in conspiracy to possess with
intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C.
§ 846. Count 3 charged Sanz, Isaacs, and Rua with possession with intent to
distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841.
A. Pre-trial Motions
1. Motion to Suppress Wiretap Evidence
United States DEA Agents began investigating the Del Toro drug ring in
2004. Wiretaps issued as part of that investigation identified Del Toro, William de
Jesus Arias, Jorge Cuadra, Sanz, and Gonzalez-Perez as sources of cocaine in the
1
Rua was eventually dismissed from the indictment. Isaacs pleaded guilty to a single
count and testified for the government. Gonzalez-Perez fled and was tried separately.
2
United States. The scheme involved an extensive structure of importation and
distribution “cells.” One such cell was under Sanz’s leadership. The participants
in the scheme used multiple phones to compartmentalize the cells and limit
liability. In December 2004, as a result of intercepted calls, U.S. authorities were
able to seize over twenty kilograms of cocaine that Del Toro imported using cargo
planes.
In February 2005, U.S. DEA agents obtained information from a
confidential informant regarding importation of drugs through Miami International
Airport using airport employees. The informant confirmed that Sanz was involved
in narcotics importation using Isaacs, an airport employee and Sanz’s cousin, to
remove drugs from incoming planes. In June 2005, Colombian officials
intercepted a call, pursuant to a Colombian-issued wiretap, which led United States
DEA agents to believe that Sanz was planning to import narcotics with Del Toro.
In August 2005, Colombian authorities intercepted a call to Del Toro from Sanz at
786-426-7009 (target phone 1). Del Toro later informed Arias that Sanz’s number
was 786-356-9973 (target phone 2). Throughout August, Colombian authorities
intercepted calls on these two phones concerning narcotics deliveries. Agents were
able to intercept calls from Gonzalez-Perez and Isaacs to target phone 1.
Intercepted calls to target phone 2 identified Del Toro, Arias, and Isaacs as
3
participants.
Based on this information, the U.S. government requested wiretaps for target
phones 1 and 2 in September 2005. According to the affidavit, there was probable
cause to believe agents would intercept calls connected to drug trafficking by Del
Toro, Sanz, Arias, Isaacs, and others, via the two targeted phones. The
government explained that the intercepted calls would reveal evidence of the
participants in drug trafficking offenses, and that other normal investigative
techniques had failed. Specifically, the affidavit explained that traditional methods
such as surveillance, pen registers, and confidential informants had been of limited
use due to the international scope of the scheme and Sanz’s ability to conceal his
location and identity. The affidavit also confirmed that confidential informant had
been arrested and could no longer provide new information. The affiant further
explained why other techniques such as subpoenas, interviews, and undercover
operations would not be successful and would draw attention to the investigation.
According to the affidavit, the wiretaps would enable agents to identify additional
participants and their locations, and permit surveillance without alerting the
participants to the investigation. Finally, the affidavit confirmed that agents would
take all necessary steps to minimize the interceptions. The district court concluded
that the affidavit established probable cause and issued the wiretap authorization
4
for thirty days.
As a result of the initial wiretaps, U.S. agents intercepted numerous calls
between Isaacs and Sanz, and Del Toro and Sanz, which calls agents believed used
code words to discuss deliveries. In a September 30, 2005 call, Gonzalez-Perez
called Sanz on target phone 1. Agents believed this call involved an attempted
delivery of drugs to Willie. According to a criminal database, Robles’s alias was
“Willie.”2
The government obtained a second wiretap in November 2005 for target
phone one and a new number 786-356-2676, which agents believed was another
phone assigned to Sanz. The government informed the court that target phone one
was being used by Sanz and the former target phone 2 (the 9973 number) was
being used by Gonzalez-Perez. Agents identified about 100 calls between target
phone 1 and former target phone 2, leading them to believe that Gonzalez-Perez
was a participant in the narcotics scheme. Through the second authorizations,
agents expected to intercept calls from Sanz, Gonzalez-Perez, Del Toro, Arias, and
Robles, among others. According to the affidavit, continued wiretaps could assist
in identifying additional participants and narcotics deliveries. The remainder of the
2
Throughout the transcripts, Willie is spelled as both “Willie” and “Willy.” It is unclear
whether the difference is spelling is intended to differentiate between Willie Robles and Willie
Arias. For purposes of this opinion, we use the spelling Willie for both.
5
affidavit detailed the reasons the wiretap was necessary, the failure of other
investigative techniques, and the methods of minimization. The district court
granted authorization.
Rodriguez and Sanz moved to suppress the wiretap evidence on the grounds
that the government had, inter alia (1) failed to show necessity, (2) used boilerplate
and non-specific language in the affidavit, and (3) failed to comply with the
requirements in 18 U.S.C. § § 2515 and 2518. They also requested a Franks3
hearing, alleging that the affidavits were contradictory and false. The district court
denied the motion to suppress and for a Franks hearing, concluding that the
affidavit accompanying the September 2005 wiretap application sufficiently
explained why traditional techniques would not work and was detailed and
specific. The court also found that there was no allegation of deliberate falsehood
in the application and no evidence that the affidavit contained false or deliberately
misleading statements.
2. Motion for a Continuance
Prior to trial, the defendants filed several motions for continuances. In
particular, Rodriguez sought continuances in order to obtain different counsel. The
court granted these motions. Eleven days before trial was to commence, Rodriguez
3
Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
6
filed another motion for a continuance, again to seek new counsel. The court
denied this motion, stating that it would permit substitution of counsel only on the
condition that incoming counsel comply with the court’s calendar.
B. Evidence at Trial
Sanz and Isaacs each testified to their roles in the conspiracy. Isaacs
confirmed that he and Sanz imported cocaine by cargo plane. Each shipment
consisted of individual bars, or bricks, of cocaine wrapped in black electrical tape.
Each brick weighed about 200 grams and each shipment contained between 3 and
6 bricks. Between 2004 and 2005, Isaacs and Sanz imported about eighteen such
shipments. When Sanz and Isaacs were arrested, agents discovered just under one
kilogram of cocaine in their possession.
In September 2005, Sanz and Isaacs were attempting to unload a shipment of
800 grams of cocaine, but were having difficulty due to the poor quality of the
drugs. Agents believed Sanz and Isaacs wanted Robles to sell these drugs.
Both Sanz and Isaacs denied involvement with Robles. And Isaacs denied
any knowledge of either Robles or Rodriguez. Isaacs did identify two men
involved in the distribution: one who had a restricted drivers license and another
who owned a used car lot. The evidence established that Rodriguez owned a used
car lot and that Robles had a restricted drivers license. Sanz stated that he knew
7
Willie Arias through his dealings with Cuadra and that he had sold Willie drugs in
the past. Arias also had a restricted drivers license. Cuadra confirmed Sanz’s
involvement in the importation and distribution scheme, but denied knowing
Rodriguez or Robles. He admitted that he knew someone named Willie, but he did
not know Willie’s last name and did not see him in the courtroom.
1. Robles
The DEA learned of Robles when it intercepted calls on September 29 and
30 and agents believed the content of these calls confirmed Robles’s role in the
conspiracy. In a call on September 29, Robles and Gonzalez-Perez discussed
moving Gonzalez-Perez’ boat from his trailer. Robles owned a trucking company
and had access to a flatbed truck and forklift through his partner. In a conversation
that same afternoon, Gonzalez-Perez informed Sanz that Willie was coming over to
see about moving the boat that day or the next. On the morning of September 30,
the government intercepted a call between Robles and Gonzalez-Perez in which
Robles asked Gonzalez-Perez if he had “talked to the partner yet . . . the one in the
trailer.” Gonzalez-Perez responded no, that he had been waiting for Robles. DEA
agent Stephen Kepper explained that the partner referred to Sanz, who shared the
trailer with Gonzalez-Perez. Robles then told Gonzalez-Perez “I told you to call
him so you guys could work things out” and Robles offered to give Gonzalez-
8
Perez the partner’s number. There was no evidence that Robles had Sanz’s phone
number. Gonzalez-Perez indicated that he was getting ready to leave the trailer to
meet a dealer with Luis4 and that Luis was checking on the tag. Gonzalez-Perez
then told Robles that he would leave the papers. Kepper and Isaacs, who testified
as a cooperating witness, explained that “papers” was a code word for drugs.
Robles then referred to the trailer and the flatbed. Gonzalez-Perez responded that
he had the CDs Robles wanted and he would bring the CDs to Robles in order to
work something out. Robles responded “To see them. Okay, well, it’s fine.”
Kepper told the jury CDs was code for drugs.
That afternoon, agents intercepted another call between Sanz and Gonzalez-
Perez that confirmed that Willie was headed to the trailer. Authorities wanted to
learn Willie’s identity and conducted physical surveillance of the trailer park.
They observed Robles arrive in his Mercedes and watched as he and several
unidentified men stood around the trunk of the car. Although agents noticed a
broken-down boat on the property, Robles’s car did not have the capability to tow
a boat. Gonzalez-Perez met Robles at the trailer, but according to an intercepted
call, could not find his key to the trailer. Gonzalez-Perez called Sanz, who
indicated the trailer was open and that he was on his way. Because Robles was not
4
Luis’s identity is unclear.
9
permitted to drive at night, Robles left the trailer before Sanz arrived.
Later that evening, agents intercepted a call between Isaacs and Sanz in
which Sanz stated that he had to go to Homestead, Florida to take an item to the
man who had been unable to wait for Sanz at the trailer because he was not
permitted to drive at night. Robles did not reside in Homestead.
After his arrest, Robles informed agents that he knew Gonzalez-Perez
through his jewelry business and had been to Gonzalez-Perez’s trailer where he
once observed an unknown amount of cocaine wrapped in black electrical tape.
Although Gonzalez-Perez offered Robles the drugs to sell, Robles declined. And
although Robles admitted that Gonzalez-Perez showed him drugs, there was no
evidence that Robles left the property with the drugs. Robles was not arrested for
almost three months following this incident, but there was no evidence that he
returned at a later date to pick up the drugs, and no drugs were found at Robles’s
home when he was arrested.5
The government presented Fed. R. Evid. 404(b) evidence that Robles was
convicted in 2004 for conspiracy and marijuana trafficking and that in 1997,
5
In a call dated November 16, Gonzalez-Perez informed Sanz that Willlie had been
calling and had come by the day before. There was no evidence that Robles had visited with
Gonzalez-Perez on November 15, and agents did not intercept any calls involving Robles in
October or November.
10
Robles attempted to purchase cocaine from an undercover officer.6 When the
officer refused to front the drugs, Robles did not pursue the deal.
In his defense, Robles called two witnesses: Imer Diaz and Iliana Cardentey.
These two witnesses confirmed that Robles owned a jewelry business and a
trucking company and was known as Willie. Diaz explained that he was a driver
for Robles’s trucking company and twice had accompanied Robles to Gonzalez-
Perez’s trailer to discuss moving the boat. On the second trip, Robles and Diaz
went into the trailer to use the bathroom. Diaz observed Gonzalez-Perez offer
Robles a package. Diaz apparently overheard a call between Gonzalez-Perez and
Sanz in which Sanz said “It’s okay if he leaves, I will bring it to him wherever I
need to.” According to Diaz, the men could not have been talking about the boat
because Sanz could not have moved the boat. Diaz also accompanied Robles to a
car dealership on another occasion. They met Gonzalez-Perez at the dealership
and, while Robles and Diaz were listening to the radio and sitting in a truck Robles
wanted to buy, Gonzalez-Perez told Robles he had some CDs to sell to Robles.
In his closing argument, Robles argued that he was the victim of mistaken
identity and the Willie involved in drugs was Arias, who also had a suspended
license.
6
The court issued limiting instructions on the proper use of this evidence.
11
2. Rodriguez
Rodriguez also was not an initial target of the investigation, but authorities
identified Rodriguez as a participant after they intercepted several calls between
Sanz, Gonzalez-Perez, and Rodriguez in October and November 2005. In those
calls, the parties refer to “satellites,” “deep snow,” and “remote controls,” which
the government proffered and cooperating witnesses testified were code words for
cocaine, and Rodriguez asked if they were “small ones, just like the last time.” In
another call, Rodriguez and Gonzalez-Perez discuss whether Rodriguez should go
to Homestead. Rodriguez asks if there is a “whole one there,” which the
government proffered referred to a quantity of drugs. In a November call, Sanz
asked Rodriguez how it went with his friend with the cars and asked if the friend
has any other interest in “a beauty of a car.” Sanz later testified that he was trying
to sell his own car. He admitted, however, that the call with Rodriguez in which
the two discussed remote controls was about drugs.
On November 23, 2005, agents intercepted a call between Rodriguez and
Sanz indicating that the two planned to meet. Agents initiated surveillance and
followed Sanz to a warehouse area. The agent conducting the surveillance was
driving a blue buick. While watching Sanz, agents intercept a call from Rodriguez
warning Sanz that he was being followed and giving the exact location and
12
description of the agent. The two cancelled the meeting and agents aborted the
surveillance. Isaacs confirmed that Sanz intended to deliver drugs to a man who
owned a car dealership, but the delivery was cancelled when the men realized they
were being followed.
When Rodriguez was arrested, he cooperated with authorities and permitted
a search of his home. Rodriguez admitted to agents that he knew Sanz and knew
that Sanz was involved in drugs, but he denied that he had any involvement.
Marcus Mitchell, Rodriguez’s cellmate during pre-trial detention, testified
that Rodriguez admitted selling drugs and identified his partners as Willie,
Orlando, Rafael, and Jorge. Rodriguez also talked about an incident in November
2005, in which Rodriguez was supposed to meet his contact but called it off after
he observed a blue buick following the contact.
The jury convicted Robles of conspiracy to possess with intent to distribute
cocaine, finding that the amount of drugs involved as less than 500 grams. The
jury convicted Rodriguez of conspiracy to possess with intent to distribute cocaine,
finding that the amount of drugs was at least 500 grams but less than 5 kilograms.
Both defendants were acquitted of the conspiracy to import cocaine offense.
Robles moved for a new trial and for judgment of acquittal, alleging that the
evidence was insufficient to sustain his conviction. The court denied the motion.
13
Robles filed a second motion for a new trial, this time based on newly discovered
evidence in the form of affidavits from Gonzalez-Perez, Sanz, and Rodriguez
averring that Robles was not involved and the Willie identified at trial was Arias.
The court denied the motion, concluding that Robles could not show that the
evidence was not discoverable earlier with the exercise of due diligence, or that the
evidence was likely to produce a different outcome.
Although the jury concluded that Robles was responsible for less than 500
grams of cocaine, the probation officer calculated the sentencing guidelines range
based on the government’s assertion that Robles was responsible for between 5 and
15 kilograms of cocaine. With a corresponding offense level of 32, no
enhancements or reductions, and a criminal history category III, the guidelines
range was 151 to 188 months’ imprisonment. Robles objected to the amount of
drugs, arguing that he was responsible for only 200 grams - or one brick - of
cocaine, which corresponded to the trial testimony that Gonzalez-Perez showed
him one brick while Robles was at the trailer. At sentencing, the court rejected the
government’s assertion and declined to hold Robles responsible for more than 500
grams of cocaine. The court also rejected Robles’s argument that he be held
responsible for only 200 grams. The court explained that it found Robles
accountable for just under the 500 grams attributed to Robles by the jury as
14
reasonably foreseeable amounts in the conspiracy. With a base offense level of 24,
the range became 63 to 78 months’ imprisonment.
Robles requested a sentence at the low end of the range, and, after
considering the arguments, the advisory guidelines range, and the § 3553(a)
factors, the court imposed a sentence of 63 months’ imprisonment.
Sanz received a sentence of 188-months’ imprisonment on each count, to
run concurrently. Rodriguez received a sentence of 72 months’ imprisonment.
Sanz now appeals, challenging the denial of the motion to suppress and the
sentence imposed. Robles challenges the sufficiency of the evidence, the denial of
his motions for a new trial, and his sentence. Rodriguez likewise challenges the
sufficiency of the evidence. He also raises the denial of the motion for a
continuance. We address each defendant in turn.7
II.
A. Sanz8
We review findings of fact for clear error and the application of the law to
7
After a thorough review of the record, we conclude the district court properly applied
the sentencing guidelines and did not abuse its discretion in imposing an 188-month term of
imprisonment for Sanz’s sentence. We affirm without further discussion.
8
In his appellate brief, Sanz indicates that he adopts the arguments made by his
codefendants. Sanz cannot adopt an argument on the sufficiency of the evidence. See United
States v. Khoury, 901 F.2d 948, 963 n.13 (11th Cir. 1990). The other issues presented are not
relevant to Sanz.
15
those facts de novo. United States v. Newsome, 475 F.3d 1221, 1223 (11th Cir.
2007). All facts are construed in the light most favorable to the prevailing party, in
this case the government. Id. at 1223-24. A district court’s finding with respect to
whether an affidavit in support of a wiretap adequately demonstrated that law
enforcement had exhausted normal investigative techniques, as required by 18
U.S.C. § 2518(1)(c), is subject to clear error review. United States v. Weber, 808
F.2d 1422, 1424 (11th Cir. 1987).
Sanz argues that the court erred by denying the motion to suppress because
the government failed to show necessity for the wire tap and proffered “craftily”
drafted affidavits to support its allegations. Sanz contends that, under Franks,9 the
court should have set aside these reckless and false assertions and considered
whether the remaining evidence supported the warrant.
The government responds that it had shown necessity by establishing that
other investigatory techniques had been exhausted and conventional techniques
were unlikely to produce results. It further asserts that there was no violation
under Franks, as Sanz failed to argue in his motion that there was any intentional
9
In Franks, the Supreme Court held that where a defendant makes a substantial
preliminary showing that a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by an affiant in a search warrant affidavit, and if the
allegedly false statement was necessary to the finding of probable cause, the Fourth Amendment
requires that a hearing be held at the defendant’s request to determine admissibility of the fruits
of the search. 438 U.S. at 171-72.
16
misrepresentation or omission in the affidavit.
Under 18 U.S.C. § 2518, an application for a wire tap must include, inter
alia: “a full and complete statement of the facts and circumstances relied upon by
the applicant . . . including details as to the particular offense . . . , a particular
description of . . . the type of communications sought to be intercepted, the identity
of the person . . . whose communications are to be intercepted”, and “a full and
complete statement as to whether or not other investigative procedures have been
tried and failed or why they reasonably appear to be unlikely to succeed if tried or
to be too dangerous.” 18 U.S.C. § 2518(1)(b), (c).
The court may then issue an order “if the judge determines on the basis of
the facts submitted by the applicant that– (a) there is probable cause for belief that
an individual is committing, has committed, or is about to commit a particular
offense . . . ; (b) there is probable cause for belief that particular communications
concerning that offense will be obtained through such interception; (c) normal
investigative procedures have been tried and have failed or reasonably appear to be
unlikely to succeed if tried or to be too dangerous [and] (d). . . there is probable
cause for belief that . . . the facilities from which, or the place where, the . . .
communications are to be intercepted are being used, . . . are leased to, listed in the
name of, or commonly used by such person.” 18 U.S.C. § 2518(3).
17
Necessity
An application for an order authorizing a wiretap must include “a full and
complete statement as to whether or not other investigative procedures have been
tried and failed or why they reasonably appear to be unlikely to succeed if tried or
to be too dangerous.” 18 U.S.C. § 2518(1)(c). The affidavit supporting an
application need not show a “comprehensive exhaustion of all possible
techniques,” but need explain only the failure of those techniques “that reasonably
suggest themselves.” United State v. Van Horn, 789 F.2d 1492, 1496 (11th Cir.
1986).
Here, the affiant provided extensive explanation as to the techniques already
employed and the reasons why the wire tap was necessary. Accordingly, we
conclude that the district court properly determined that the government
established necessity.
Franks Hearing
In order to be entitled to relief, Sanz must show (1) that the alleged
misrepresentations or omissions were knowingly or recklessly made by the agent,
and (2) that the result of excluding the alleged misrepresentations and including the
alleged omissions would have been a lack of probable cause for issuance of the
warrants. United States v. Jenkins, 901 F.2d 1075, 1080 (11th Cir. 1990). Upon
18
review of the motion to suppress and the wiretap application, we conclude that
Sanz has not met this burden.
B. Robles10
1. Sufficiency of the Evidence
Sufficiency of the evidence is a question of law reviewed de novo, viewing
the evidence in the light most favorable to the government and making all
inferences and credibility choices in the government’s favor. A conviction must be
upheld, “unless the jury could not have found the defendant guilty under any
reasonable construction of the evidence.” United States v. Chastain, 198 F.3d
1338, 1351 (11th Cir. 1999). “The prosecution need not rebut all reasonable
hypotheses other than guilt. The jury is free to choose between or among the
reasonable conclusions to be drawn from the evidence presented at trial, and the
court must accept all reasonable inferences and credibility determinations made by
the jury.” United States v. Sellers, 871 F.2d 1019, 1021 (11th Cir. 1989) (internal
quotations and citations omitted). Additionally, witness credibility is the sole
province of the jury. United States v. Parrado, 911 F.2d 1567, 1571 (11th Cir.
1990),
10
At the close of the government’s case, all defendants moved for judgment of acquittal,
which the court denied. The parties renewed the motions at the close of all evidence, and the
court again denied the motions.
19
Both Rodriguez and Robles were convicted of conspiracy to possess with
intent to distribute cocaine. Conspiracy to possess cocaine with intent to distribute
requires the government to prove beyond a reasonable doubt “(1) that a conspiracy
existed; (2) that the defendant knew of it; and (3) that the defendant, with
knowledge, voluntarily joined it.” United States v. Molina, 443 F.3d 824, 828
(11th Cir. 2006) (quotation omitted). The agreement forming the basis of the
conspiracy can be proved “by circumstantial evidence, through ‘inferences from
the conduct of the alleged participants or from circumstantial evidence of a
scheme.’” United States v. Obregon, 893 F.2d 1307, 1311 (11th Cir. 1990)
(citation omitted). “Where the government’s case is circumstantial, reasonable
inferences, and not mere speculation, must support the jury’s verdict.” United
States v. Meija, 97 F.3d 1391, 1392 (11th Cir. 1996).
Moreover, although presence is a permissible factor to be considered in
determining whether a defendant conspired with another, “it is well settled that
mere presence will not support a conviction.” United States v. Charles, 313 F.3d
1278, 1284 (11th Cir. 2002). “Mere presence, guilty knowledge, even sympathetic
observation” and close association with a co-conspirator are insufficient, without
more, to support a conviction for conspiracy to distribute drugs. United States v.
Lyons, 53 F.3d 1198, 1201 (11th Cir. 1995). Yet, such factors may raise a
20
permissible inference of participation in a conspiracy, which the jury may consider
as a “material and probative factor . . . in reaching its decision.” United States v.
Hernandez, 896 F.2d 513, 518 (11th Cir. 1990).
Robles argues that there was no evidence of any agreement and no evidence
to connect him to the cocaine. He asserts that the evidence supported his claim that
he was involved with Gonzalez-Perez solely to move a boat from Gonzalez-Perez’s
property. The government responds that the September 30 telephone call between
Robles and Gonzalez-Perez was sufficient for the jury to conclude that there was
an agreement to possess the drugs. The government further explains that there was
other evidence of Robles’s intent: Robles had been in the trailer and seen the
cocaine, Robles had a prior conviction for drugs, and Rodriguez’s cell mate
identified Willie as one of the men Rodriguez stated was involved in the drug
distribution.
Upon review of the record, we conclude that the evidence was sufficient to
establish Robles’s participation in a conspiracy to possess cocaine with the intent
to distribute it. The jury listened to the testimony of Robles’s co-conspirators and
found that their denials of Robles’s involvement lacked credibility, a decision with
which we do not interfere. “The jury is free to choose between or among the
reasonable conclusions to be drawn from the evidence presented at trial,” Sellers,
21
871 F.2d at 1021, but we are not. We “must accept all reasonable inferences and
credibility determinations made by the jury.” Id.
The jury was entitled to credit the testimony of Isaacs and agent Kepper that
“CD” referred to cocaine and the testimony of agent Kepper that “papers” referred
to narcotics and narcotics related items. We have repeatedly held that it is
reasonable for a jury to find that conversations that contain coded language are
about narcotics when agents or coconspirators familiar with the conspiracy have
testified that the codes refer to narcotics. See United States v. Garcia, 447 F.3d
1327, 1339 (11th Cir. 2006); United States v. Atkins, 618 F.2d 366, 369–370 (5th
Cir. 1980).11 If we accept the credibility determinations made by the jury, as our
standard of review requires, we must read the conversation between Gonzalez and
Robles as an express agreement for Gonzalez to bring units of cocaine to Robles.
“Conspiracies are rarely evidenced by explicit agreements, and must almost
always be proven by inferences that may be fairly drawn from the behavior of the
alleged conspirators,” DeLong Equipment Co. v. Wash. Mills Abrasive Co., 887
F.2d 1499, 1515 (11th Cir. 1989), but both explicit agreement and the conduct of
the conspirators establishes the conspiracy at issue in this appeal. The evidence
11
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this
court held that all decisions handed down by the former Fifth Circuit before the close of business
on September 30, 1981, are binding precedent in the Eleventh Circuit.
22
establishes Robles’s conspiracy by the explicit agreement that Gonzalez made on
the telephone to deliver cocaine to Robles and inferences that may be fairly drawn
from the behavior of Robles in going to the trailer where the delivery was to occur
and Sanz in explaining to Isaacs that a person had come to pick up cocaine.
The evidence of prior drug activity only strengthens our conclusion, as these
convictions may establish intent. United States v. Roberts, 619 F.2d 379, 383 (5th
Cir. 1980) (holding that a prior conviction increases the likelihood that the
defendant intended to conspire to commit similar subsequent criminal conduct).
Finally, Mitchell testified that Rodriguez identified a man named Willie as
another participant in the drug scheme. According to the crime database, Robles’s
alias was Willie. Therefore, viewing the evidence in the light most favorable to the
government, the evidence sufficiently established that Robles knew of an
agreement and voluntarily joined it.
2. Motion for a New Trial
Robles argues that the government failed to disclose information on William
Arias and Arias’s suspended license, and that there is a reasonable probability the
outcome of the trial would have been different had the defense been given this
information. Robles further asserts that the court erred by denying his motion for a
new trial because Gonzalez-Perez’s affidavit was new evidence not available
23
earlier given that Gonzalez-Perez was a fugitive. The government responds that
courts are skeptical of proffers from codefendants, and thus, Gonzalez-Perez’s
affidavit does not meet the test for new evidence. With respect to Arias’s
information, the government contends it was available to Robles before trial and
was a matter of public record.
The district court may grant a motion for new trial based on such evidence if
the interest of justice so requires and if (1) the evidence was in fact discovered
after trial, (2) the defendant exercised due care to discover the evidence, (3) the
evidence was not merely cumulative or impeaching, (4) the evidence was material,
and (5) the evidence was of such a nature that a new trial would probably produce
a different result. Fed. R. Crim. P. 33(a); United States v. Lee, 68 F.3d 1267,
1273-74 (11th Cir. 1995). Each element of this test must be satisfied or else a new
trial is not warranted. Lee, 68 F.3d at 1273-74. Furthermore, motions for new trial
are “highly disfavored,” and district courts “should use great caution in granting a
new trial motion based on newly discovered evidence.” United States v. Jernigan,
341 F.3d 1273, 1287 (11th Cir. 2003) (quotation omitted).
In order to obtain a new trial based on an asserted Brady violation, the
defendant must show that: (1) the government possessed evidence favorable to the
defendant; (2) the defendant does not possess the evidence and could not obtain the
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evidence with any reasonable diligence; (3) the prosecution suppressed the
favorable evidence; and (4) had the evidence been disclosed to the defendant, there
is a reasonable probability that the outcome would have been different. United
States v. Vallejo, 297 F.3d 1154, 1164 (11th Cir. 2002). “Failure to meet any one
of these elements will defeat a motion for a new trial.” United States v. Starrett, 55
F.3d 1525, 1554 (11th Cir. 1995). Where, as here, a defendant fails to raise a
Brady claim at trial, we review for plain error.
a. Gonzalez-Perez’s affidavit
Gonzalez-Perez’s affidavit allegedly cleared Robles of any participation in
the conspiracy. These statements, however, were cumulative to the testimony
given by Sanz, Isaacs, and Cuadra. Notably, new trials are disfavored, especially
when premised on statements by codefendants. Accordingly, we find no error in
the court’s refusal to grant a new trial based on this evidence.
b. Arias’s information
Robles challenges Arias’s information as both the basis for a new trial and as
a Brady violation. To the extent he raises this as new evidence warranting a new
trial, he has not shown that the information was unavailable. The government
disclosed Arias’s existence during pre-trial disclosures and Arias was listed as a
potential target in the wire tap affidavits. Robles had the opportunity to cross
25
examine the DEA agents and Sanz, who mentioned Arias in his testimony.
Moreover, Robles put forth his theory that he was being mistaken for Arias,
who was involved in Sanz’s operation, was also known as “Willie,” and whose
license had been suspended. Because the jury had this information and found it
unpersuasive, Robles cannot show that the outcome would have been different.
Thus, his claim for a new trial on this ground fails.
To the extent that Robles raises a Brady issue, there is no evidence that the
government suppressed the information on Arias. In any event, as discussed
above, Robles cannot show that the outcome would have been different.
Accordingly, the district court properly denied the motions for a new trial.
3. Sentencing
We review a district court’s determination as to the amount of drugs for
clear error. United States v. Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000).
When a conviction stems from a conspiracy charge, the defendant is responsible
for the amount of drugs in all reasonably foreseeable acts done in furtherance of
the conspiracy. U.S.S.G. § 1B1.3(a)(2).
In determining the appropriate drug quantity, the district court must make
proper findings of fact, namely, “individualized findings concerning the scope of
criminal activity undertaken by a particular defendant” and findings concerning the
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specific quantities attributable to that defendant. United States v. Ismond, 993 F.2d
1498, 1499 (11th Cir. 1993). In the event that the district court does not make
proper findings of fact, the sentence nevertheless may be upheld if the record
supports the amount of drugs attributed to the defendant. Id. The government
must prove this amount by a preponderance of the evidence. Id. This court has
held that “the preponderance standard is not toothless” and that it “does not grant
district courts a license to sentence a defendant in the absence of sufficient
evidence.” United States v. Lawrence, 47 F.3d 1559, 1566-1567 (11th Cir. 1995).
Rather, the burden requires “reliable and specific evidence” of the drug amounts
attributable to the defendant. Id.
Here, the district court failed to make appropriate findings of fact. The court
merely adopted the jury’s findings without explaining the scope of Robles’s
activity or the foreseeable amount of drugs. Moreover, a review of the evidence at
trial does not establish that Robles was involved in any part of Sanz’s drug scheme
aside from the September 30 transaction, where he observed a single brick of
cocaine. The government has not offered sufficient evidence to show that Robles’s
involvement exceeded a single 200 grams transaction. There was no testimony to
establish that a CD, which was code for cocaine, was a specific quantity of drugs,
and no evidence that Robles was involved with the 800 grams of cocaine Sanz and
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Isaacs were trying to sell. Accordingly, we vacate Robles’s sentence and remand
for resentencing.
C. Rodriguez
1. Motion for Continuance
We review the denial of a motion for a continuance for abuse of discretion.
United States v. Baker, 432 F.3d 1189, 1248 (11th Cir. 2005).
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the
accused shall enjoy the right ... to have the Assistance of Counsel for his defence.”
U.S. Const. amend. VI. “[A]n essential part of that right is the accused’s ability to
select the counsel of his choice.” United States v. Ross, 33 F.3d 1507, 1522 (11th
Cir. 1994) (citation omitted). “Thus, a criminal defendant has a presumptive right
to counsel of choice.” Id. Nevertheless, a defendant’s right to the counsel of his
choice is not absolute. Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692,
1697, 100 L.Ed.2d 140 (1988) (noting some of the circumstances in which the
right to counsel of choice is “circumscribed”); see also Ross, 33 F.3d at 1523.
In other words, the Sixth Amendment right to counsel of choice is not
inexorable. United States v. Gonzalez-Lopez,126 S.Ct. 2557, 2565-66, 165
L.Ed.2d 409 (2006); Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616, 75
L.Ed.2d 610 (1983). Thus, a denial of a continuance request will not always
28
amount to a Sixth Amendment violation of a paying defendant’s choice of counsel.
Baker, 432 F.3d at 1248 (citing Ungar v. Sarafite, 376 U.S. 575, 589-91, 84 S.Ct.
841, 849-50, 11 L.Ed.2d 921 (1964)). A court may limit a defendant’s right to
counsel of his choice for many reasons including “the demands of its calendar,” or
“fairness.” Gonzalez-Lopez, 126 S.Ct. at 2565-66.
The district court, in exercising its discretion, must balance a defendant’s
right to adequate representation against the overall interest in the efficient
administration of justice. Baker, 432 F.3d at 1248. “Consequently, broad
discretion must be granted trial courts on matters of continuances; only an
unreasoning and arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay violates the right to assistance of counsel.” Morris,
461 U.S. at 11-12. (internal citations and quotation marks excluded). An appellate
court, when reviewing whether the denial of a continuance violated a defendant’s
“fair or reasonable opportunity” to choose counsel, should consider the following
factors: (1) the length of the delay; (2) whether the counsel who becomes
unavailable for trial has associates prepared to try the case; (3) whether other
continuances have been requested and granted; (4) the inconvenience to all
involved in the trial; (5) whether the requested continuance is for a legitimate
reason; and (6) any unique factors. Baker, 432 F.3d at 1248 (internal quotations
29
omitted) (citing United States v. Bowe, 221 F.3d 1183, 1190 (11th Cir. 2000)).
Here, the court already had granted three previous continuances when
Rodriguez sought another continuance eleven days before the trial was to begin.
The government and the other defendants were ready to proceed to trial. The court
instructed that the substitution of counsel was acceptable as long as new counsel
adhered to the court’s trial schedule. We find no abuse of discretion.
2. Sufficiency of the Evidence
Rodriguez asserts that his involvement was consistent with that of a buyer-
seller relationship.
Although existence of a simple buyer-seller relationship alone does not
furnish the requisite evidence of conspiratorial agreement, where the buyer
knowingly assumes a role instrumental to the success of the conspiracy, a jury may
properly infer that he is a member of it. United States v. Bascaro, 742 F.2d 1335,
1359 (11th Cir. 1984); see also United States v. Mercer,165 F.3d 1331, 1335-36
(11th Cir. 1999) (concluding that a buyer-seller relationship by itself was
insufficient to infer the existence of a conspiracy, but acknowledging that a pattern
of repeated transactions and fronting drugs would be sufficient).
Here, viewing the evidence in the light most favorable to the government,
the evidence was sufficient to convict Rodriguez. The government presented
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several intercepted phone calls in October and November which Rodriguez, Sanz,
and Gonzalez-Perez used code words for drug transactions. These conversations
also clarified that Rodriguez had been involved in other transactions with Sanz and
Gonzalez-Perez prior to these intercepted calls. Additionally, Rodriguez warned
Sanz that he was being followed as Sanz was on his way to meet Rodriguez. And
Rodriguez’s cell mate testified that Rodriguez admitted his involvement and named
the other participants. Because witness credibility is the sole province of the jury,
Parrado, 911 F.2d at 1571, we conclude this evidence was sufficient for the jury to
find that Rodriguez conspired to possess cocaine with the intent to distribute it.
III.
For the foregoing reasons, we AFFIRM the convictions of all defendants,
we AFFIRM the sentences of Sanz and Rodriguez, and we VACATE and
REMAND Robles’s sentence for further proceedings consistent with this opinion.
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