[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 13, 2005
No. 03-10350
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 01-00812-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ROLANDO GARCIA,
LEONARDO ANTONIO ENRIQUEZ-VALDES,
a.k.a. Leo,
ALBERTO ARTIRES,
ENICIO MERCADO,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(April 13, 2005)
Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and RESTANI*,
Judge.
PER CURIAM:
We withdraw our previous opinion issued on March 22, 2005, and replace it
with this opinion.
This appeal arises out of the convictions and sentences of appellants Jose
Rolando Garcia, Leonardo Antonio Enriquez-Valdes, Alberto Artires, and Enicio
Mercado. After a twelve day trial, a jury found these four appellants guilty of
conspiracy to manufacture and possess with intent to distribute 100 or more
marijuana plants in violation of 21 U.S.C. § 846. Garcia, Valdes and Artires were
also convicted for maintaining a place for the purpose of manufacturing marijuana
in violation of 21 U.S.C. § 856(a)(1). Additionally, the jury found Valdes and
Artires guilty of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1).1
On appeal, the appellants contend that the district court made a variety of
errors, including: (1) the denial of appellants’ motions seeking judgment of
*Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
1
The jury acquitted both Garcia and Mercado of charges that they knowingly and
intentionally manufactured marijuana, acquitted Mercado of a charge that he knowingly
maintained a place for the purpose of manufacturing marijuana, and acquitted Julio Artires on all
charges against him. Additionally, the jury found co-defendant Felipe Suarez guilty on all
counts charged against him. However, Suarez did not appeal either his conviction or his
sentence.
2
acquittal on insufficiency of the evidence grounds; (2) the admission of improper
and irrelevant evidence; (3) the denial of joint motions for mistrial or, in the
alternative, severance based on the alleged improper and prejudicial closing
argument of counsel for Valdes; (4) the rejection of Garcia’s proposed jury
instruction for accessory after the fact; (5) at sentencing, the denial of Valdes’s
motion for a reduction in sentence pursuant to U.S.S.G. § 5C1.2, the “safety-valve”
provision; and (6) at sentencing, the court’s finding that Alberto Artires was
responsible for over 300 marijuana plants when the jury specifically found that he
was not involved in more than 100 marijuana plants.2
As to the convictions and sentences of Garcia and Mercado, we find no error
and affirm. As to Valdes and Alberto Artires, we affirm their convictions, but
vacate the judgments and remand for re-sentencing.
I. FACTUAL BACKGROUND
This case involves a network of marijuana grow houses, both active and
dismantled, located throughout South Florida. During the course of the
government investigation, which spanned over a period of one and one-half years,
agents searched and investigated at least twelve residences located in and near
2
All other issues raised on appeal do not merit further discussion and are summarily
rejected.
3
Miami.3
In May of 2000, the FBI received a confidential tip that Yovanni Espinosa
was operating a grow house in an efficiency apartment behind a house located at
15604 N.W. 37th Avenue in Opa Locka, Florida. Upon executing a search warrant
at this location on June 19, 2000, agents discovered a fully functioning marijuana
grow house with 104 marijuana plants plus additional decomposing plants. The
subject apartment had a high-voltage lighting system, a self-contained irrigation
and fertilization system, Mylar-covered walls, and large air conditioning units.
The agents also discovered miscellaneous photographs at the residence. One
photograph was a picture of a group of men, including co-defendants Alberto
Artires, Felipe Suarez, Enicio Mercado, Javier Rey, and Pedro Pablo Aldao.
Another picture depicted a house numbered “8504” and what appeared to be the
same vehicle as a vehicle located at the house being searched.
3
The cultivation of marijuana requires a very controlled environment. Marijuana grow
houses are sealed both to conceal the illegal activity and to keep out the natural light. High-
wattage fluorescent lights are used to focus artificial light on the plants and Mylar film is
attached to the walls to stimulate growth and allegedly minimize detection by infra-red detection
devices. Because the artificial light emits large quantities of heat, grow houses are typically
equipped with a venting system including exhaust fans and large air conditioning units.
Young marijuana plants are first grown in plastic starter trays before they are
transplanted to a material called “rock wool” and placed in large buckets with ceramic rocks
called “grow rocks.” Together, the rock wool and grow rocks act as a soil substitute. Water and
fertilizer are pumped through PVC pipes into holes drilled in the buckets. To harvest the
marijuana narcotic, the leaves and stems on the plants are clipped away and the collases, large
masses of buds covered with a sticky resin, are hung to dry.
4
On June 20, 2000, the agents searched Espinosa’s property located at 2968
Northwest 87th Terrace in Miami, Florida. At this address, the agents met Aldao
and discovered 48 mature marijuana plants that had been harvested and were
hanging to dry. Additionally, agents found 47 immature marijuana plants,
marijuana seedlings in starter trays, two live mother plants, and equipment used to
hydroponically grow marijuana.
On June 21, 2000, at Espinosa’s 15604 N.W. 37th Avenue residence, the
agents seized a photograph containing a sports utility vehicle, which they later
determined was registered to co-defendant Felipe Suarez. Upon searching
Suarez’s residence located at 8504 Sheraton Drive, Miramar, Florida 4 that same
day, agents found decomposing marijuana material, paraphernalia for growing
marijuana, and a bedroom that appeared to have been equipped to grow marijuana,
but had been dismantled.
Having received confidential information while at 8504 Sheraton Drive, the
agents immediately searched 8545 Long Acre Drive in Miramar, Florida. After
Mario Artires, the brother of Alberto Artires, consented to the search, the agents
discovered 90 marijuana plants and marijuana cultivation paraphernalia in a
bedroom that had been converted into a grow lab.
4
Suarez was listed as the subscriber on the electric records for 8504 Sheraton Drive from
October 12, 1999 through December 15, 2000.
5
On June 23, 2000, in response to information from a confidential source, the
agents searched a home at 9290 S.W. 149th Street, Miami, Florida, the home of
Reynaldo Artires, brother of Alberto and Mario Artires. There, agents found
marijuana cultivation materials and a dismantled grow house in Reynaldo’s garage,
but did not find any marijuana plants. After noticing that Reynaldo’s driver’s
license listed 1165 W. 33rd Street, Hialeah, Florida, as his address instead of the
home being searched, the agents immediately continued to that address. At 1165
W. 33rd Street, the agents met Garcia, who told them that he was renting the house
from Reynaldo. The agents did not find anything in the residence, but a police dog
alerted them to potential contraband in an efficiency apartment adjoining the house
and a white van parked in the driveway. In the apartment, the agents discovered
marijuana cultivation materials, marijuana leaves, and a dismantled grow house.
Notably, two fingerprints on the Mylar film covering the walls in the apartment
matched the fingerprints of Garcia. Additionally, the white van, which was
registered to Garcia, contained a plastic starter tray, five-gallon buckets, PVC
piping, and other materials that the agents had observed in other grow houses
during the investigation of this conspiracy.
On July 5, 2000, agents searched 3092 N.W. 15th Street, Miami, Florida.
Espinosa had previously lived at this address until it was purchased by Suarez.
6
Upon the arrival of the agents, the current tenant, Javier Rey, an indicted co-
conspirator who pled guilty prior to trial, consented to the search. At 3092 N.W.
15th Street, the agents discovered a dismantled grow house and marijuana
cultivation materials. On July 10, 2000, agents searched a home located at 11601
S.W. 9th Court in Pembroke Pines, Florida. There, the agents met Julio Artires,
who rented the home. The following day, agents seized items such as an air
handler, fluorescent lights, a cooler, and a digital scale from the residence.
Approximately nine months later, on April 6, 2001, the agents searched
3129 N.W. 13th Avenue, Miami, Florida after receiving a tip from an industrial gas
vendor. There, the agents found a plastic tray filled with 17 bags of processed
marijuana, unused rock wool, PVC piping, ceramic grow rocks, and a scale. In one
of the bathrooms of the residence, holes had been drilled into the ceiling and the
window was sealed with Mylar film and duct tape. That day agents also searched
1285-87 N.W. 28th Street, Miami, Florida, where they again found marijuana
cultivation paraphernalia.
Five months later, on September 26, 2001, the agents searched 8600 N.W.
30th Road, Miami, Florida. At this residence, the agents met Valdes. In a small
apartment at the rear of the residence, the agents found a fully-functioning grow
house with 117 marijuana plants. Approximately three surveillance cameras were
7
mounted on the roof of the small apartment. The wires for this surveillance system
ran from the apartment into the main residence. The agents recovered fingerprints
that matched Mercado’s fingerprints from the Mylar film found in the apartment.
According to the electricity records, Valdes was the subscriber for both the
apartment and the main residence.
On October 17 and 18, 2001, agents searched 15601 N.W. 39th Court, Opa
Locka, Florida, an address for which Alberto Artires was listed as the subscriber on
the electricity records. Alberto Artires consented to the search. There, agents
found marijuana cultivation paraphernalia, several nursery trays with marijuana
leaves in them, and small amounts of marijuana residue.
In addition to the physical evidence and testimony of the agents, government
witnesses including co-conspirators Manual Horta, Espinosa, Aldao, and Hernando
Hernandez testified against appellants at trial. The government’s key witness was
Espinosa, who pled guilty prior to trial. He testified that within a year of moving
to Florida from Cuba, he began assisting with marijuana cultivation. Initially,
Espinosa and others, including indicted co-conspirators Alberto, Mario, and
Reynaldo Artires, would assist Hernandez, an unindicted co-conspirator, maintain
grow houses and clip marijuana plants, including 33 plants grown at 1600 N.W.
28th Avenue in Miami, Florida.
8
Espinosa also testified that since moving to Florida, he has lived in four
houses with Suarez. With the help of Mercado and Alberto, Mario, and Reynaldo
Artires, Suarez and Espinosa grew crops of approximately 40 to 44 marijuana
plants at one house. At another house, Suarez, Mercado, and Espinosa grew three
crops of 30 marijuana plants, which they dried and clipped with the help of
Alberto, Mario, and Reynaldo Artires. Espinosa testified that he, Suarez, Mercado,
and Alberto and Julio Artires also grew, dried, and clipped two crops of 50-55
marijuana plants at a grow house in Carol City, Florida.
Espinosa testified that he and Aldao, who also pled guilty prior to trial, grew
three crops of approximately 48 marijuana plants at 2968 N.W. 87th Terrace in
Miami. While Espinosa held the title to the residence, Aldao lived there and
maintained the plants with the help of Espinosa, Mercado, Alberto Artires, and
Suarez. Espinosa also owned 15604 N.W. 37th Avenue, where he harvested one
crop of 40 marijuana plants with the help of Alberto Artires, Mercado, Suarez, and
Rey. Espinosa was in the process of growing a second crop of 40 plants plus
cultivating seedlings when he was arrested. Espinosa also testified that he helped
Alberto Artires cultivate a crop of 48 marijuana plants at Artires’s home near the
airport in Opa Locka.
Espinosa testified that he and Mercado set up a grow house for Valdes in an
9
efficiency apartment adjoining a rear bedroom of Valdes’s house located at 8600
N.W. 30th Road while Valdes watched. With seedlings provided by Aldao, Valdes
proceeded to grow two crops of marijuana plants, 53 and 50 plants respectively.
These crops were clipped by Espinosa, Alberto Artires, Mercado, Valdes, Suarez,
and others.
Aldao testified that he, like Espinosa, emigrated to Florida from Cuba. After
working in various jobs, Aldao started cultivating marijuana crops with Mercado
and Espinosa. Mercado, Espinosa, and Aldao grew a crop of over 90 plants at
Aldao’s house. At the time of Aldao’s arrest, he was drying his second crop of 96
marijuana plants at 2968 N.W. 87th Terrace in Miami.
Hernandez, an unindicted co-conspirator, testified that he too moved to
Florida from Cuba. After being introduced to Suarez, Hernandez and Suarez set up
many grow houses together. Each grow house had its own separate caretaker.
Hernandez testified that Alberto Artires may have assisted Suarez and him with
clipping marijuana plants, and that Alberto Artires and his brothers provided him
with marijuana to sell.
FBI Intelligence Research Specialist Maureen Hollinger testified that
hundreds of calls had been made between the telephone numbers of Garcia,
Alberto Artires, Mercado, and other co-conspirators. The analyst did not testify
10
that any calls had been made to or from Valdes. She also testified as to the
ownership of the various residences investigated and searched by the agents. She
testified that, from January 1997 through October 2001 (the span of the
conspiracy) the following individuals were the title owners of the following
properties: Espinosa owned 15604 N.W. 37th Avenue, Opa Locka, and 2968 N.W.
87th Terrace, Miami; Suarez owned 8504 Sheraton Drive, Miramar, and 3092
N.W. 15th Street, Miami; Mario Artires owned 8545 Long Acre Drive, Miramar;
and Albert Artires owned 15601 N.W. 39th Court, Opa Locka.
II. PROCEDURAL BACKGROUND
On August 31, 2001, a federal grand jury in the Southern District of Florida,
Miami Division, returned a sealed indictment charging nine defendants, including
Garcia, with various marijuana manufacturing and distribution offenses. On
December 14, 2001, the grand jury returned a superseding indictment adding
Alberto Artires, Mercado, and Valdes as defendants. Count I charged all the
defendants but Espinosa with conspiring to manufacture and possess with intent to
distribute 100 or more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1) and
846(b)(1)(B). The superseding indictment alleged that the conspiracy existed from
January 1997 through October 18, 2001.
In addition to the conspiracy charge, Garcia and Artires were charged in
11
Counts 10 and 20, respectively, with knowingly and intentionally manufacturing
marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D) and 18 U.S.C. §
2. Valdes and Mercado were similarly charged in Count 18, which specified that
they manufactured 100 or more marijuana plants. Garcia was charged in Count 11
with knowingly and intentionally maintaining a residence located at 1165 W. 33rd
Street, Hialeah, Florida for the purpose of manufacturing marijuana in violation of
21 U.S.C. §§ 856(a)(1) and 18 U.S.C. § 2. Valdes and Mercado were charged in
Count 19 with knowingly and intentionally maintaining a residence located at 8600
N.W. 30th Road, Miami, Florida for the purpose of manufacturing marijuana in
violation of 21 U.S.C. §§ 856(a)(1) and 18 U.S.C. § 2. Artires was similarly
charged in Count 21 with knowingly and intentionally maintaining a residence
located at 15601 N.W. 39th Court, Opa Locka, Florida for the purpose of
manufacturing marijuana in violation of 21 U.S.C. §§ 856(a)(1) and 18 U.S.C. § 2.
Beginning September 23, 2002, appellants and two other co-defendants were
tried together before a jury.5 None of the appellants testified at trial. On October
11, 2002, the jury began its deliberations. Ultimately, the jury found appellants
guilty as follows: Garcia guilty of conspiracy (Count 1) and maintaining 1165 W.
33rd Street, Hialeah, Florida, for the purpose of manufacturing marijuana (Count
5
The jury acquitted co-defendant Julio Artires. Co-defendant Suarez was found guilty on
all counts charged against him, but did not appeal his conviction or sentence.
12
11); Valdes guilty of conspiracy (Count 1), manufacturing 100 or more marijuana
plants (Count 18), and maintaining 8600 N.W. 30th Road, Miami, Florida, for the
purpose of manufacturing marijuana (Count 19); Artires guilty of conspiracy
(Count 1), maintaining marijuana (Count 20), and maintaining 15601 N.W. 39th
Court, Opa Locka, Florida, for the purpose of manufacturing marijuana (Count
21); and Mercado guilty of conspiracy (Count 1).6 Appellants were sentenced on
February 7, 2003, and are currently incarcerated.
III. DISCUSSION
A. Sufficiency of the Evidence
Appellants contend that, because the evidence was insufficient for a
reasonable jury to convict them, the district court erred in denying their motions
for judgment of acquittal filed pursuant to Rule 29 of the Federal Rules of Criminal
Procedure. We review the sufficiency of the evidence de novo, viewing the
evidence in the light most favorable to the government. United States v. Starrett,
55 F.3d 1525, 1541 (11th Cir. 1995). We must affirm the appellants’ convictions
unless, under no reasonable construction of the evidence, could the jury have found
the appellants guilty beyond a reasonable doubt. United States v. Camargo-
6
The jury acquitted Garcia of the charges in Count 10, acquitted Mercado of the charges
in Counts 18 and 19, and acquitted Julio Artires on all counts. Suarez was found guilty on all
counts charging him, but is not a party to this appeal.
13
Vergara, 57 F.3d 993, 997 (11th Cir. 1995). All reasonable inferences
and credibility choices must be made in favor of the government and the jury’s
verdict. United States v. Massey, 89 F.3d 1433, 1438 (11th Cir. 1996).
1. Challenges to Conspiracy Count
After a twelve day trial, the jury found the appellants guilty of participating
in a conspiracy to manufacture and possess with the intent to distribute marijuana,
in violation of 21 U.S.C. § 846. Appellants argue that there was insufficient
evidence of a conspiracy and no evidence that each of the defendants intended to
participate in a conspiracy. “To support a conspiracy conviction, the government
must prove (1) an agreement between the defendant and one or more persons, (2)
the object of which is to do either an unlawful act or a lawful act by unlawful
means.” United States v. Smith, 289 F.3d 696, 706 (11th Cir. 2002) (citation and
internal quotations omitted).
To prove participation in a conspiracy, the government must have proven
beyond a reasonable doubt, even if only by circumstantial evidence, that a
conspiracy existed and that the defendant knowingly and voluntarily joined the
conspiracy. United States v. Charles, 313 F.3d 1278, 1284 (11th Cir. 2002), cert.
denied, 539 U.S. 933 (2003). Thus, at issue is whether there was sufficient
evidence for the jury to find that the appellants knowingly volunteered to join the
14
conspiracy to sustain their conviction as to Count 1.7 To satisfy this burden, the
government need not prove that the defendants knew all of the detail or
participated in every aspect of the conspiracy. Id. at 1284. Rather, the government
must only prove that the defendants “knew the essential nature of the conspiracy.”
Id.
Whether the appellants knowingly volunteered to join the conspiracy may be
proven by “direct or circumstantial evidence, including inferences from the
conduct of the alleged participants or from circumstantial evidence of a scheme.”
United States v. Rodriguez, 765 F.2d 1546, 1551 (11th Cir. 1985) (citation and
internal quotations omitted). “Indeed, because the crime of conspiracy is
predominantly mental in composition, it is frequently necessary to resort to
circumstantial evidence to prove its elements.” United States v. Pineiro, 389 F.3d
1359, 1369 (11th Cir. 2004) (citation and internal quotations omitted).
Appellants challenge the trial testimony of co-conspirators Espinosa and
Aldao as incredible, untrustworthy, and uncorroborated. Nevertheless,
uncorroborated testimony of an accomplice may be enough to support a conviction
7
Although Alberto Artires did not explicitly challenge the sufficiency of the evidence in
his brief, he adopted by reference the relevant portions of his co-appellants’ briefs pursuant to
Rule 28(i) of the Federal Rules of Appellate Procedure. Because the other three appellants
challenged their conspiracy convictions, we have also addressed whether there was sufficient
evidence for the jury to convict Alberto Artires of conspiracy.
15
if the testimony is not on its face incredible or otherwise insubstantial. United
States v. Butler, 792 F.2d 1528, 1536 (11th Cir. 1986). Because credibility
determinations are the exclusive province of the fact finder, we cannot disregard
the jury’s credibility determination unless it is “unbelievable on its face.” United
States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985).
In addition to the testimony of Espinosa and Aldao, the government offered
the testimony of other witnesses, including fact witnesses and government agents.
The government also offered telephone records and electrical company subscriber
records. This evidence coupled with an abundance of physical evidence, including
photographs of marijuana plants and cultivation paraphernalia, clearly indicate a
marijuana cultivation network. Based on the evidence offered at trial, a reasonable
jury easily could have found a conspiracy to manufacture marijuana. “Once the
existence of a conspiracy is established, only slight evidence is necessary to
connect a particular defendant to the conspiracy.” United States v. Clavis, 956
F.2d 1079, 1085 (11th Cir. 1992). Because there was sufficient evidence
connecting Garcia, Valdes, Alberto Artires, and Mercado to the conspiracy, their
convictions as to Count 1 should be sustained.
2. Challenges to Substantive Counts
a. Challenge to Conviction for Knowingly Manufacturing
Marijuana with Intent to Distribute
16
Valdes argues that there was insufficient evidence for a reasonable jury to
convict him of knowingly manufacturing marijuana. Section 841(a)(1) of Title 21
requires direct or circumstantial proof of the individual’s knowledge and intent.
United States v. Poole, 878 F.2d 1389, 1391 (11th Cir. 1989).
Valdes resided in a house located at 8600 N.W. 30th Road, Miami. Since
October of 1999, he was the individual listed as the subscriber on the electrical
records for both the main residence and an efficiency apartment adjacent to the
main residence. Upon searching the efficiency apartment, agents discovered 117
marijuana plants and a fully-functioning grow house. Accordingly, there was
sufficient evidence for a reasonable jury to find that Valdes knowingly
manufactured 117 marijuana plants with the intent to distribute the marijuana
narcotic.8
b. Challenges to Convictions for Knowingly Maintaining a
Place for the Purpose of Manufacturing Marijuana
To convict under 21 U.S.C. § 856(a)(1), the government must prove “that
the defendant: (1) knowingly, (2) operated or maintained a place, (3) for the
purpose of manufacturing, distributing, or using any controlled substance.”
Pineiro, 389 F.3d at 1367 (citation and internal quotations omitted). “Thus, the
8
Alberto Artires was also convicted of knowingly manufacturing marijuana. He did not
raise a sufficiency of evidence claim as to this conviction on appeal. Had he raised such a claim,
we would have rejected it.
17
offense requires two mental elements, knowledge and purpose.” Id. Garcia and
Valdes both challenge the sufficiency of the evidence for their convictions under §
856(a)(1).
Garcia rented the home located at 1165 West 53rd Street, Hialeah, Florida,
from Reynaldo Artires. Adjoining the home was an efficiency apartment that
agents later discovered had been used as a grow house. After a trained police
canine alerted the agents to the scent of controlled substances in the apartment and
a white van located on the property, the agents obtained a search warrant. Upon
searching the efficiency apartment, the agents discovered marijuana cultivation
paraphernalia, including irrigation hoses, five-gallon buckets, sealed windows,
patches of Mylar film on the walls, and marijuana residue. Nevertheless, Garcia
challenges this conviction by asserting that the government did not offer evidence
that placed Garcia physically in the efficiency apartment.
Two finger prints found on the patches of Mylar film in the apartment
matched Garcia’s fingerprints. Moreover, in the white van, which was registered
to Garcia, the agents found more marijuana cultivation materials. Additionally,
Espinosa testified that Garcia had assisted in clipping marijuana plants during the
conspiracy. FBI Specialist Hollinger also testified that numerous phone calls were
made between the phone numbers of Garcia, Mario Artires, Reynaldo Artires, and
18
another unindicted co-conspirator who operated a grow house in Carroll City,
Florida. From the totality of this evidence, it was reasonable for the jury to find
that Garcia knowingly maintained the efficiency apartment as a place for growing
marijuana.
At trial, the government offered evidence that agents discovered 117
marijuana plants and a fully-functioning grow house in an efficiency apartment
adjacent to Valdes’s home located at 8600 N.W. 30th Road in Miami. Although
Valdes contends that the government offered no evidence placing him physically in
the efficiency apartment, he was listed as the subscriber on the electricity records
for both the main residence and the efficiency apartment. Moreover, the wires
from the surveillance system monitoring the apartment ran into the main residence.
Therefore, considering the evidence, a reasonable jury could also find
Valdes guilty of knowingly maintaining a place for the purpose of manufacturing
marijuana. Accordingly, Garcia’s and Valdes’s challenges to their convictions for
knowingly maintaining a place for the purpose of manufacturing marijuana fail.9
B. Evidentiary Issues
Valdes contends that the district court erred in admitting evidence that did
9
Again, Alberto Artires did not raise a sufficiency of the evidence claim as to his
conviction for knowingly maintaining a place for the purpose of manufacturing marijuana. We
would have also rejected such a claim if he had raised that argument on appeal.
19
not pertain to him, even though the evidence did support the charges brought
against his co-defendants. The government asserts that Valdes’s challenge of the
evidentiary rulings is actually a thinly-disguised severance argument. At no point
during the evidentiary objections did Valdes move the district court for a
severance, and, therefore, the issue of whether Valdes should have had a separate
trial because of this evidence is not before us.
Valdes specifically argues that the evidence should have been excluded as
irrelevant and highly prejudicial. While Valdes claims that he was prejudiced by
the admission of evidence of his co-defendants’ unlawful acts, we have long
recognized that a defendant does not suffer compelling prejudice simply because
much of the evidence admitted at trial is applicable only to co-defendants. United
States v. Cassano, 132 F.3d 646, 651 (11th Cir. 1998). The general rule,
particularly applicable in conspiracy cases, is that defendants indicted together
should be tried together. Id.
Although the photographs, agency paperwork, and records to which Valdes
objected may not have been relevant to the charges brought against him, this
evidence was clearly relevant to the charges brought against his co-defendants.
Further, the district court explicitly instructed the jury that each charge and the
evidence pertaining to that charge had to be considered separately. The acquittal of
20
Julio Artires on all charges and of Garcia and Mercado on certain charges indicates
that the jury followed the court’s instructions and made individualized
determinations of guilt. Accordingly, we hold that the district court did not abuse
its discretion in admitting this evidence over Valdes’s objection.
C. Mistrial or, in the Alternative, Severance
Garcia argues that the district court erred in denying the appellants’ motion
for mistrial or, alternatively, severance due to prejudicial remarks made by counsel
for Valdes during his closing argument.10 We review motions for mistrial and
motions for severance for abuse of discretion. Starrett, 55 F.3d at 1553. Garcia
contends that he and his co-defendants were prejudiced by a remark made by
counsel for Valdes in his closing argument. In his closing argument, counsel for
Valdes stated: “The government was right. This [telephone] chart tells you all you
need to know . . . It tells you everything you need to know about this conspiracy.”
Trial Tr. at p. 1431. Notably, the district court instructed the jury before closing
arguments began that the arguments of counsel were not evidence, and later
reminded the jury that such comments were not evidence.
For an alleged improper closing argument to justify a new trial, the argument
“must be both improper and prejudicial to a substantial right of the defendant.”
10
At trial, Julio Artires moved the court for a mistrial or, in the alternative, a severance,
and Garcia, Mercado, Alberto Artires, and Suarez joined in the motion.
21
Rodriguez, 765 F.2d at 1559. When a curative instruction is given, this court
reverses only if the evidence “is so highly prejudicial as to be incurable by the trial
court’s admonition.” United States v. Perez, 30 F.3d 1407, 1410 (11th Cir. 1994).
“[T]o compel severance, the defenses of co-defendants must be more than
merely antagonistic, they ‘must be antagonistic to the point of being mutually
exclusive.’” United States v. Knowles, 66 F.3d 1146, 1159 (11th Cir, 1995). A
district court should grant a motion for severance only if (1) there exists a “serious
risk that a joint trial would compromise a specific trial right of one of the
defendants,” or (2) a joint trial would “prevent the jury from making a reliable
judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 539
(1993). Notably, a district court’s limiting instructions “often will suffice to cure
any risk of prejudice.” Id.
At issue is whether the comments made by Valdes’s attorney were
prejudicial to the point of compromising the rights of Valdes’s co-defendants.
Having reviewed the record, we do not find that the comments were so highly
prejudicial that the district court’s instructions to the jury regarding closing
arguments did not cure any prejudice. Further, Alberto Artires, Garcia, and
Mercado have not demonstrated that the defense of Valdes was antagonistic to the
point of being mutually exclusive of their defenses. Considering the substantial
22
evidence of all of the appellants’ involvement in the conspiracy, the comments did
not prevent the jury from making a reliable judgment regarding guilt or innocence,
and Alberto Artires, Garcia, and Mercado did not suffer compelling prejudice.
Thus, we affirm the district court’s denial of the motion for mistrial or severance.
D. Jury Instruction for Accessory After the Fact
Garcia proposed that the jury be instructed on accessory after the fact
because such an instruction was allegedly supported by the evidence adduced at
trial. Specifically, Garcia requested the following jury instruction:
Accessory after the Fact
Whoever, knowing that an offense against the United States has
been committed, receives, relieves, comforts or assists the offender in
order to hinder or prevent his apprehension, trial, or punishment, is an
accessory after the fact.
If you first find that there is a reasonable doubt as to whether
Jose Rolando Garcia committed the substantive offenses charged in
Counts 10 and 11 but you find beyond a reasonable doubt that Mr.
Garcia is an accessory after the fact, you must find him not guilty of
Counts 10 and 11.
Garcia argued that the telephone records offered into evidence by the government
showed that Garcia was following the instructions of Reynaldo Artires to dismantle
the grow house. Therefore, Garcia asserted his involvement in the conspiracy
commenced after the completion of the charged crimes. The government
responded that Garcia, in fact, dismantled the grow house to conceal his own
crime.
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In denying Garcia’s request for an accessory after the fact instruction, the
district court stated that the requested instruction would confuse the jury.
Additionally, the district court noted that the instructions for the substantive
offenses correctly described the elements for those crimes, and Garcia could argue
that evidence that he dismantled a grow house did not necessarily prove that he
manufactured or maintained a place for manufacturing marijuana.
We review a district court’s rejection of a proposed jury instruction for an
abuse of discretion. Starrett, 55 F.3d at 1551. The district court has broad
discretion in formulating jury instructions as long as those instructions are a correct
statement of the law. United States v. Schlei, 122 F.3d 944, 968 (11th Cir. 1997).
“The district court’s refusal to incorporate a requested jury instruction will be
reversed only if the proffered instruction was substantially correct, the requested
instruction was not addressed in charges actually given, and failure to give the
instruction seriously impaired the defendant’s ability to present an effective
defense.” Starrett, 55 F.3d at 1551 (citation and internal quotations omitted).
The government does not dispute that the proffered jury instruction was a
substantially correct statement of the law. Although the instructions given to the
jury did not include the requested instruction on accessory after the fact, Garcia has
not demonstrated that the district court’s failure to give the requested instruction
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seriously impaired Garcia’s ability to present an effective defense. As the district
court noted, the omission of the requested instruction did not prevent Garcia from
arguing that evidence that he had dismantled a grow house did not prove that he
had manufactured marijuana or maintained a grow house. Therefore, we do not
find that the district court’s omission of this proposed jury instruction constitutes
an abuse of its discretion, and affirm the district court’s denial of Garcia’s request.
E. Valdes’s Safety-Valve Request
Valdes appeals the district court’s denial of his safety-valve request pursuant
to U.S.S.G. § 5C1.2. We review the district court’s application of the federal
sentencing guidelines to uncontroverted facts de novo. United States v. Clavijo,
165 F.3d 1341, 1343 (11th Cir. 1999).
The safety-valve provision outlines five criteria that, if met, enable the
district court to sentence a defendant without regard to the mandatory minimum
sentences in certain cases. U.S.S.G. § 5C1.2; United States v. Brownlee, 204 F.3d
1302, 1304 (11th Cir. 2000). It is undisputed that Valdes meets the first four
criteria of the safety-valve provision and that the information he provided was
truthful. Therefore, at issue, is whether Valdes has satisfied the temporal
requirement outlined in U.S.S.G. § 5C1.2(a)(5). Sub-section (a)(5) provides, in
part: “not later than the time of the sentencing hearing, the defendant has truthfully
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provided to the Government all information and evidence the defendant has
concerning the offense or offenses that were part of the same course of conduct or
of a common scheme or plan.” U.S.S.G. § 5C1.2(a)(5) (emphasis added). At
sentencing, when it became apparent to Valdes that he had not completely
debriefed to the satisfaction of the government, he moved for a continuance of the
sentencing. The court declined his request for a continuance, and, ultimately,
declined to give him safety-valve relief due to his failure to completely debrief
prior to the commencement of sentencing.
The government argues that our language in Brownlee created a rigid
jurisdictional rule that precludes a finding that Valdes satisfied the temporal
requirement in U.S.S.G. § 5C1.2(a)(5). In Brownlee, we held that even if a
defendant previously lied or withheld information from the government, the district
court is not later precluded from granting safety-valve relief. Brownlee, 204 F.3d
at 1304. We stated that “lies and omissions do not, as a matter of law, disqualify a
defendant from safety-valve relief so long as the defendant makes a complete and
truthful proffer not later than the commencement of the sentencing hearing.”
Brownlee, 204 F.3d at 1305 (emphasis added). The government reads the end of
this statement in Brownlee as unequivocally requiring that the defendant’s safety-
valve proffer be completed prior to the commencement of the sentencing hearing.
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We disagree. Since Brownlee made his proffer prior to the commencement of his
sentencing, the temporal issue was not before us in that case. Therefore, the
temporal language in the latter part of that statement was not part of the holding,
and, as dicta, does not have the force of law. See McDonald’s Corp. v. Robertson,
147 F.3d 1301, 1315 (11th Cir. 1998) (Carnes, J., concurring) (“[D]icta in our
opinions is not binding on anyone for any purpose.”).
Unlike the factual circumstances in Brownlee, in the instant case, Valdes’s
opportunity for safety-valve relief hinges upon our interpretation of the temporal
requirement in U.S.S.G. § 5C1.2(a)(5). Sub-section (a)(5) specifically requires that
the proffer be made “not later than the time of sentencing.” U.S.S.G. § 5C1.2(a)(5)
(emphasis added). Notably, this temporal requirement does not preclude the
district court from exercising its discretion to continue a sentence. See United
States v. Madrigal, 327 F.3d 738, 739 (8th Cir. 2003). If the district court finds
that the factual circumstances warrant a continuance, then it may continue the
sentencing hearing to give the defendant more time to fully debrief and give a
formal safety-valve statement. Here, the district court interpreted our language in
Brownlee as trumping its discretion to continue the sentencing hearing to allow
Valdes to more fully debrief.
“Of course, in the most typical cases the qualification for the safety valve
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should come before the commencement of the sentencing hearing in order to
prevent the defendant from misleading the government or manipulating the
sentence.” Madrigal, 327 F.3d at 745. Nevertheless, we believe that Valdes’s
circumstances warranted a continuance. First, Valdes, a first time drug offender,
does not speak English, and all translation at the initial debriefing was performed
by an agent rather than an independent translator. Second, his counsel erroneously
believed that Valdes had already made a sufficient statement to qualify for the
safety-valve and that he had been assured by the government agents that they
would follow-up with additional debriefings. Third, and perhaps most importantly,
there is no evidence that Valdes’s failure to fully debrief prior to the
commencement of the sentencing hearing was an attempt to mislead, manipulate,
stall or delay. Like Madrigal, Valdes’s failure to fully disclose prior to the
commencement of the sentencing hearing was due to a misunderstanding and not
in blatant disregard for the requirements of U.S.S.G. § 5C1.2. Therefore,
considering the facts of this case, the district court had good cause to continue
Valdes’s sentencing.
We hold that a district court may continue a sentencing hearing to give a
defendant an opportunity to debrief for the purpose of considering safety-valve
relief, if the district court determines that the factual circumstances warrant a
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continuance. In light of this conclusion, we remand to the district court for
consideration of Valdes’s safety-valve request.
F. Amount of Plants Attributable to Alberto Artires
Alberto Artires appeals the district court’s factual determination at
sentencing that he was responsible for 312 marijuana plants when the jury
specifically found in a special interrogatory verdict that he was not responsible for
more than 100 marijuana plants. The district court’s factual finding was based on
evidence presented at trial and proven to the court’s satisfaction by a
preponderance of the evidence at the sentencing.
Alberto Artires has adequately preserved this claim. He clearly raised this
Apprendi-type constitutional claim in his objections to the Pre-sentence
Investigation Report and at sentencing. He then raised this constitutional claim
again in his initial brief, and, in his supplemental brief, he specifically challenged
this factual finding by the district court in light of Blakely v. Washington, ___ U.S.
___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). At no point has the government
argued that either plain error or harmless error review should apply to this claims.
In fact, at oral argument, the government conceded that if the Supreme Court’s
decision in Booker was consistent with its Blakely decision, then Artires’s
Apprendi-type constitutional arguments are valid.
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In United States v. Booker, ___ U.S. ___, 125 S. Ct. 738, ___ L. Ed. 2d ___
(2005), the Supreme Court held that the Sixth Amendment as construed in Blakely
v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), applies to
the federal sentencing guidelines, and, consequently, held that the federal
sentencing guidelines are effectively advisory. This constitutional holding “means
that it is no longer possible to maintain the judicial factfinding that Congress
thought would underpin the mandatory Guidelines system that it sought to create.”
Booker, 125 S. Ct. at 757 (Breyer, J.). As in Booker, the district court in this case
“applied the Guidelines as written and imposed a sentence higher than the
maximum authorized solely by the jury’s verdict.” Booker, 125 S. Ct. at 769
(Breyer, J.). Therefore, like Booker’s sentence, Alberto Artires’ sentence violates
the Sixth Amendment. Consistent with the Supreme Court’s remand in Booker, we
vacate the judgment of Alberto Artires and remand for resentencing. See, e.g.,
United States v. Reese, 397 F.3d 1337, 1338 (11th Cir. 2005) (remanding a
preserved error in light of Booker).
IV. CONCLUSION
We affirm the district court’s judgment in all respects except the denial of
Valdes’s safety-valve request and the calculation of Alberto Artires’s sentence.
Therefore, we vacate the judgments of Valdes and Alberto Artires and remand for
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resentencing consistent with this opinion.
AFFIRMED in part, and VACATED and REMANDED in part.
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