[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 27, 2005
No. 04-16663 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00131-CR-ORL-31JGG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO HERNANDEZ,
also known as Cesar Muniz,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 27, 2005)
Before CARNES, HULL and PRYOR, Circuit Judges.
PRYOR, Circuit Judge:
Arturo Hernandez appeals his convictions and sentences for conspiracy to
possess with intent to distribute two kilograms of cocaine hydrochloride, and
possession with intent to distribute two kilograms of cocaine hydrochloride. 18
U.S.C. § 2; 21 U.S.C. §§ 841, 846. Hernandez argues that the evidence was
insufficient to support his convictions, the district court erroneously denied his
motion for a new trial, and his sentence violated the Sixth Amendment, under
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). Because the
evidence was sufficient to support the verdicts and a new trial was not warranted,
we affirm the convictions. Because the district court erred when it applied the
Sentencing Guidelines as mandatory and the error was not harmless, we vacate
Hernandez’s sentence and remand for resentencing.
I. BACKGROUND
In 2004, Felipe Rivas, a confidential informant, approached David Lopez’s
son about buying Lopez’s truck. Lopez’s son asked Rivas if he was interested in
drugs. When Rivas spoke with Lopez about buying the truck, he told Lopez that
he drove a “semi” for a living. Lopez then asked Rivas if he ever transported
drugs, and Rivas responded, yes. Lopez and Rivas exchanged telephone numbers
and began to communicate about transporting drugs from Texas to Florida.
Several days later, Rivas met with Lopez and Antonio Benavides to discuss
transporting five “keys” of cocaine from Texas. Rivas agreed to go to Texas to get
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the drugs for Lopez and Benavides. Days later, Rivas called Lopez and stated that
he was returning from Texas with the drugs. Lopez informed Rivas that he needed
five “keys” of cocaine immediately, and they arranged to meet to transfer the
drugs. The agreed upon price was $17,000 per kilogram.
On the day of the meeting, Rivas called Lopez to finalize the exchange.
Lopez informed Rivas that he had enough money for only two kilograms because
“one of his guys had a car accident.” At the meeting place, Drug Enforcement
Agents provided Rivas with packaged cocaine, and Rivas took the drugs to the
appointed meeting place along with Erica Rodriguez, an undercover officer who
posed as his wife. Lopez met Rivas and told him that there were “some guys
coming with the money.” Lopez and Rivas then called Benavides to give him
directions to the meeting place. Benavides then arrived with Hernandez in a black
Ford Expedition. Benavides was driving the vehicle, and Hernandez was riding in
the passenger seat. Lopez approached the window of the Expedition and asked
how much money Benavides and Hernandez had. Hernandez replied “nine and
this.” Hernandez was holding a bag of money and Benavides was pulling more
money out of his pockets and putting it in the bag. Lopez took the money from
Hernandez.
Rivas then called Lopez over to his vehicle to look at the drugs. Rivas told
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Lopez there were five kilograms there, and Lopez responded that he would need
more because “two of these belongs to these guys.” After Lopez checked the
cocaine, Rivas got into his car. He heard Hernandez yell “trainos nos de nosotros”
or bring ours. Rivas told Lopez to give it to him. Lopez, Benavides, and
Hernandez then were arrested.
Hernandez, Lopez, and Benavides were indicted for conspiracy to possess
with intent to distribute cocaine hydrochloride and possession with intent to
distribute cocaine hydrochloride. Lopez pleaded guilty. Hernandez and Benavides
proceeded to trial.
At trial, a number of witnesses testified regarding Hernandez’s involvement
in the conspiracy. Rivas, who was wearing a wire during all the transactions,
testified that, at the transfer, Lopez asked Hernandez how much money there was
and Hernandez responded that there was “nine and this.” Rivas testified that
Hernandez was holding a bag full of money. Rivas testified that Benavides also
removed money from his pants pockets and put the money in the bag. After the
arrests, the agents found $33,800 in the bag.
Rivas testified that, while he was completing the transaction with Lopez, he
heard Hernandez say that he wanted his two in Spanish, and Lopez told Rivas “this
guy wants his two.” On cross-examination, Rivas stated that Hernandez said
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“trainos nos de nosotros,” which means “bring us ours.” Rivas further testified
that, during the transfer, Lopez stated that he would need more cocaine later
because two of the kilograms of cocaine he was purchasing belonged to “these
guys,” which referred to Benavides and Hernandez. Rivas testified that he had not
seen or heard of Hernandez before the day of the drug deal.
Rodriguez, who remained in Rivas’s truck during the transfer, testified that,
toward the end of the transaction, she saw Hernandez make a beckoning motion
with his hand and heard him say “bring us our two.” Like Rivas, Rodriguez later
testified, on cross-examination, that Hernandez said “trainos nos de nosotros” or
“bring us ours.” Rodriguez testified that, before the transfer, she had not seen,
heard, or met Hernandez.
Rana Saoud, a special agent for the Immigration and Customs Enforcement,
testified that she participated in the investigation. Saoud videotaped the
transaction between Lopez and Rivas. Saoud also testified that she read the
Miranda rights and conducted a short interview with Benavides after he had
waived his rights. Saoud testified that Benavides stated that he received a
telephone call earlier in the day from Hernandez, who asked Benavides to give him
a ride to meet with Lopez because Hernandez was drunk and did not want to drive.
Another agent, Karl Weiss, testified that Benavides also stated he had not met
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Hernandez before that day.
Lopez and Benavides also testified at trial. Lopez testified that Hernandez
was not involved in the purchase of the cocaine. Lopez stated that he asked to
borrow Hernandez’s car because one of his other associates had an accident earlier
in the day. Lopez testified that, when he first asked to borrow Hernandez’s car,
Hernandez refused because it was his employer’s car. Lopez then asked
Hernandez to give him a ride, but Hernandez refused because he was intoxicated.
Lopez testified that Hernandez finally agreed to allow him to use the car if
someone else drove. Lopez testified that, at the scene of the drug deal, he asked
Hernandez to hand him a bag located in the car and asked Benavides how much
money was there, to which Benavides replied “nine.” He testified that Hernandez
did not say “bring us ours,” but instead shouted that he was leaving.
Benavides testified that Hernandez was drunk the day of the drug deal and
possibly did not know what was happening. Benavides testified that he had known
Hernandez about a year and a half. Benavides testified that Hernandez was asleep
in the car while Benavides drove. Benavides also testified that he did not hear
Hernandez say anything.
The jury convicted Hernandez of the offenses charged, and the jury found
that Hernandez’s offenses involved two kilograms of cocaine hydrochloride. The
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district court denied Hernandez’s motion for judgment of acquittal or, in the
alternative, a new trial. The district judge stated that, although he questioned the
credibility of the witnesses for the prosecution and found the case against
Hernandez to be weak, he could not supplant the findings of the jury. After
calculating the appropriate sentencing range under the Guidelines, the district court
sentenced Hernandez to the lowest sentence in the range, and the district court
stated that it would have imposed a lower sentence if it had the authority.
II. STANDARDS OF REVIEW
We review de novo the denial of a motion for judgment of acquittal. United
States v. Bowman, 302 F.3d 1228, 1237 (11th Cir. 2002). “When the motion
raises a challenge to the sufficiency of the evidence, we review the sufficiency of
the evidence de novo, drawing all reasonable inferences in the government’s
favor.” Id. We review the denial of a motion for a new trial for abuse of
discretion. Butcher v. United States, 368 F.3d 1290, 1297 (11th Cir. 2004).
III. DISCUSSION
Hernandez appeals both his convictions and sentence. As to his convictions,
Hernandez makes four arguments: (1) the evidence was insufficient to support the
verdict; (2) the standard of review used to judge the sufficiency of the evidence is
unconstitutional; (3) the district court employed the wrong standard when it denied
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his motion for a new trial; and (4) the judgment entered against him incorrectly
reflects convictions for five kilograms instead of two. Finally, Hernandez argues
that his sentence, which was imposed under a mandatory guidelines system,
violated the Sixth Amendment contrary to Booker. Because the government
correctly concedes both that we should remand this case for resentencing and that
the judgment of conviction erroneously states the amount of cocaine involved as
five kilograms instead of two, we do not address those two arguments. We address
Hernandez’s first three arguments in turn.
A. The Evidence Is Sufficient to Support the Conviction.
Hernandez argues that the evidence is too weak and the inferences too
tenuous to support his conviction. He argues that the government has only “two
brief snippets of testimony” that connect him with the offenses: the testimony that
he said “nine and this” and “bring ours.” Hernandez argues that the statement
“nine and this” does not make sense and the government did not explain what the
words meant. He also argues that the statement “bring ours” was not explained by
the government. Both statements, Hernandez argues, are subject to innocent
explanations. Hernandez’s argument fails.
When we review the sufficiency of the evidence, we draw all reasonable
inferences in the light most favorable to the government. Bowman, 302 F.3d at
8
1237. “To sustain a conviction for conspiracy to possess cocaine with intent to
distribute, the government must prove beyond a reasonable doubt that (1) an illegal
agreement existed; (2) the defendant knew of it; and (3) the defendant, with
knowledge, voluntarily joined it.” United States v. McDowell, 250 F.3d 1354,
1365 (11th Cir. 2001). Participation in a conspiracy can be inferred from “a
development and collocation of circumstances.” Id. (citations omitted). “Although
mere presence at the scene of a crime is insufficient to support a conspiracy
conviction, presence nonetheless is a probative factor which the jury may consider
in determining whether a defendant was a knowing and intentional participant in a
criminal scheme.” Id.
“To sustain a conviction for possession of a controlled substance with intent
to distribute, the government must show that a defendant knowingly possessed the
controlled substance with the intent to distribute it.” United States v. Leonard, 138
F.3d 906, 908 (11th Cir. 1998). The government may prove possession by
showing actual or constructive possession. Id. at 909. “Constructive possession
exists when a defendant has ownership, dominion, or control over an object itself
or dominion of control over the premises or the vehicle in which the object is
concealed.” Id. “Intent to distribute may be inferred from the amount of [the drug]
involved.” United States v. Sarmiento, 744 F.2d 755, 761 (11th Cir. 1984).
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An individual who aids and abets the crime of possession of a controlled
substance with intent to distribute is punishable as a principal. 18 U.S.C. § 2. “To
prove guilt under a theory of aiding and abetting, the Government must prove: (1)
the substantive offense was committed by someone; (2) the defendant committed
an act which contributed to and furthered the offense; and (3) the defendant
intended to aid in its commission.” United States v. Camacho, 233 F.3d 1308,
1317 (11th Cir. 2000).
The evidence presented at trial was sufficient to sustain Hernandez’s
conviction on both counts. Rivas testified that Hernandez handed over the money
used to purchase the drugs and stated the amount of money was “nine and this.”
Rivas and Rodriguez both testified that Hernandez told Lopez to “bring us ours,”
which a jury could infer referred to the drugs. Rivas also testified that Lopez stated
that some of the drugs belonged to Hernandez and Benavides. Besides
Hernandez’s presence at the transaction, Benavides and Hernandez arrived in
Hernandez’s vehicle. The amount of drugs also was sufficient to support a finding
of Hernandez’s intent to distribute the drugs.
Hernandez’s arguments about this evidence are foreclosed by our standard
of review, which requires us to view the evidence in the light most favorable to the
government. Although Lopez and Benavides testified that Hernandez was not a
10
participant in the conspiracy, the jury was free to disbelieve their testimony. That
Hernandez’s statements and behavior are subject to innocent explanations is also
immaterial. “A jury is free to choose among reasonable constructions of the
evidence.” United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en
banc). Hernandez cannot prevail on appeal by repeating his unsuccessful argument
to the jury.
Our recent opinion in United States v. Diaz-Boyzo, __ F.3d __, No. 04-
15629 (December 14, 2005), is instructive. In that case, Diaz-Boyzo was indicted
in relation to a conspiracy to distribute methamphetamine and cocaine. Diaz-
Boyzo was only present on the day of the final transaction. Two conflicting stories
were presented at trial regarding Diaz-Boyzo’s involvement with the conspiracy.
Villa-Gamino, a member of the conspiracy, and Diaz-Boyzo testified, on the one
hand, that Diaz-Boyzo was not involved in the conspiracy and was merely present
at the sale of methamphetamine to the confidential informant and undercover agent
because he had asked Villa-Gamino for a ride. Id. at 7-9. The government
presented testimony, on the other hand, that Diaz-Boyzo arrived with Villa-
Gamino to the scene of the drug transaction, rode with Villa-Gamino to pick-up
part of the drug delivery, and was present at the final delivery. The government
also presented testimony that Diaz-Boyzo was watching Villa-Gamino during the
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drug transaction, and that Diaz-Boyzo possessed a loaded firearm during the
delivery. Id. at 12-13. The jury found Diaz-Boyzo guilty.
Diaz-Boyzo argued on appeal that the evidence was not sufficient to support
the verdict, but we affirmed his conviction. We held that, although mere presence
was insufficient to support the conviction, the evidence taken together was
sufficient. With regard to the testimony that Diaz-Boyzo was not involved in the
conspiracy, we noted that “the jury was free to disbelieve and disregard [the
dealer’s] testimony that Diaz-Boyzo was not involved in the drug transaction and
did not serve as protection for him.” Id. at 13.
As in Diaz-Boyzo, the evidence of Hernandez’s involvement in the
conspiracy was sufficient to support the conviction. The jury was free to
disbelieve Hernandez’s mere presence defense and infer from the evidence that
Hernandez was a willing participant. If anything, the evidence of Hernandez’s
statements during the transaction was more substantial evidence of guilt than the
evidence against Diaz-Boyzo.
B. The Standard of Review for Sufficiency of the Evidence Is Constitutional.
In the light of the failure of his latter argument, Hernandez argues that the
standard of review used in this Circuit to consider a motion for judgment of
acquittal is unconstitutional both on its face and as applied to him. He argues that
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the standard of review violates the Sixth Amendment right to trial by jury and due
process of law. This argument also fails.
Contrary to Hernandez’s protestations, our standard for evaluating the
sufficiency of the evidence preserves the right to trial by jury and due process of
law. A jury determined Hernandez’s guilt, and we respect that determination.
Under our standard, “we are bound by the jury’s credibility determinations, and by
its rejection of the inferences raised by the defendant.” United States v. Peters, 403
F.3d 1263, 1268 (11th Cir. 2005). The evidence does not have to “exclude every
reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt[.]” Bell, 678 F.2d at 549. “Instead, the relevant
question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 2789 (1979).
C. The District Court Did Not Abuse Its Discretion
in Denying the Motion for a New Trial.
“On a motion for a new trial based on the weight of the evidence, the court
need not view the evidence in the light most favorable to the verdict. It may weigh
the evidence and consider the credibility of the witnesses.” United States v.
Martinez, 769 F.2d 1297, 1312 (11th Cir. 1985). “If the court concludes that,
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despite the abstract sufficiency of the evidence to sustain the verdict, the evidence
preponderates sufficiently heavily against the verdict that a serious miscarriage of
justice may have occurred, it may set aside the verdict, grant a new trial, and
submit the issues for determination by another jury.” Id. (internal quotations and
citation omitted).
Hernandez argues that the district court abused its discretion when it denied
his motion for a new trial because the district court erroneously applied the wrong
standard and resolved all the evidence in favor of the government when it
considered his motion. Hernandez contends that if the district court had applied
the correct standard to his motion for a new trial the district court would have
granted him a new trial.
We agree that the district court applied an incorrect standard when it
considered Hernandez’s motion for a new trial. In its order denying Hernandez’s
motion, the district court only iterated and applied the standard of review
appropriate for a motion for judgment of acquittal; that is, the district court viewed
all the evidence, made all inferences, and resolved all credibility issues in the light
most favorable to the government. As articulated above, that is the not the
appropriate standard to apply to a motion for a new trial.
Before we remand this case to the district court to consider the motion for
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new trial under the appropriate standard, we must determine whether the error of
the district court affected Hernandez’s substantial rights or was harmless. An error
that “does not affect substantial rights[, however,] must be disregarded.” Fed. R.
Crim. P. 52(a). In determining whether the error of the district court was harmless,
we consider what would have happened on appeal if the district court had granted
Hernandez’s motion for a new trial. Cf. Butcher, 368 F.3d at 1294-95. It is clear
that the grant of a new trial could have been appealed by the government, 18
U.S.C. § 3731, and Hernandez did not contest at oral argument that the government
would have appealed the grant of a new trial. If on appeal, we would have
reversed the grant of a new trial, then the error of the district court did not affect
Hernandez’s substantial rights.
In our evaluation of whether the error the district court was harmless, we are
informed by our opinion in Butcher. In that case, the district court granted habeas
corpus relief on the ground that trial counsel had been ineffective for failure to file
a timely motion for a new trial. Id. at 1292-93. The district court concluded that
the failure of trial counsel prejudiced the petitioners because the trial court would
have granted the motion for new trial if it had been timely filed. Id. at 1294. We
reasoned that, in determining the prejudice element of the Strickland test, we must
consider what would have happened on appeal: “the fairness and reliability of the
15
criminal proceeding . . . is not served by deciding the issue without regard to what
would have happened on appeal.” Id. at 1295. We reversed the grant of habeas
relief because it would have been an abuse of discretion to grant a new trial. Id. at
1300.
The logic of Butcher applies as well to our review of whether the error of the
district court was harmful. To explain whether we would have reversed the grant
of a new trial on appeal, we first consider the standard for our review of such
decisions. We then review the evidence presented at trial.
“Although we . . . review a court’s denial of a motion for a new trial for
abuse of discretion, we more closely scrutinize a court’s grant of a new trial.”
United States v. Cox, 995 F.2d 1041, 1044 (11th Cir. 1993). “[T]he grant of new
trial based on the weight of the evidence is more closely scrutinized than the grant
of new trial on other grounds.” Butcher, 368 F.3d at 1297. “[W]hile we do not
conduct pure de novo review in these circumstances, the review that we do conduct
is not much different because we want ‘to assure that the judge does not simply
substitute his judgment for that of the jury.’” Id. (quoting Conway v. Chem.
Leaman Tank Lines, Inc., 610 F.2d 360, 363 (5th Cir.1980)). “We may conclude
that the district court overreached its authority by granting a new trial if our review
of the record reveals that the evidence did not preponderate heavily against the
16
jury’s verdict.” Cox, 995 F.2d at 1044.
Applying that standard, our review of the evidence convinces us that it did
not preponderate heavily against the verdict. The testimony of the witnesses at
trial produced two conflicting stories, either of which the jury could have believed.
Lopez and Benavides testified, on the one hand, that Hernandez was not part of the
conspiracy but was only present at the drug transfer because the car belonged to
Hernandez’s employer. Lopez and Benavides’s account was supported by the
testimony of Rivas and Rodriguez that Hernandez was not present at any meetings
before the May 28 drug transfer. Rivas and Rodriguez described, on the other
hand, events from which a jury could infer that Hernandez was familiar with the
purpose and details of the conspiracy.
The testimonies of Rivas and Rodriguez provided ample support for the
charges by the government. Rivas testified that Hernandez was holding the money
bag and was aware of the amount of cash present. Rivas also testified that Lopez
told him some of the cocaine was for Benvaides and Hernandez. Both Rivas and
Rodriguez testified that they heard Hernandez say “bring us ours.”
The jury chose to believe the latter account of the drug transaction. The jury
found Hernandez guilty. That verdict implicitly rejected the testimonies of Lopez
and Benavides and credited the testimonies of Rivas and Rodriguez.
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Although the district court was unimpressed with the case presented by the
government, the district court “may not reweigh the evidence and set aside the
verdict simply because it feels some other result would be more reasonable.”
Martinez, 763 F.2d at 1313-14. The verdict reached by the jury was reasonable,
and the evidence does not “preponderate heavily against the verdict, such that it
would be a miscarriage of justice to let the verdict stand.” Id. at 1313. “Motions
for new trials based on weight of the evidence are not favored. Courts are to grant
them sparingly and with caution, doing so only in those really ‘exceptional cases.’”
Martinez, 763 F.2d at 1313. This case is not the exceptional one that would
warrant a new trial. Because the grant of a new trial would have been an abuse of
discretion, the error of the district court in employing the wrong standard for a new
trial was harmless.
IV. CONCLUSION
We affirm Hernandez’s convictions and remand this case for resentencing
with advisory guidelines. We also instruct the district court to correct the error in
the judgment of conviction to reflect the drug amount found by the jury.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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United States v. Arturo Hernandez
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2005-12-27
Citations: 433 F.3d 1328
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