United States v. Roberto Pineda , 532 F. App'x 863 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-14418
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D.C. Docket No. 2:09-cr-00077-JES-SPC-8
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO PINEDA, a.k.a. Michaila,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(August 9, 2013)
Before DUBINA, JORDAN and BALDOCK,* Circuit Judges.
BALDOCK, Circuit Judge:
*
Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting
by designation.
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A federal jury convicted Defendant Roberto Pineda of two marijuana-
related crimes, one a conspiracy count and the other a substantive count.
Defendant now appeals his conviction on the conspiracy count. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I.
Sometime around 2004, Defendant became involved with an indoor
marijuana growing operation run by Jose Diaz in the Fort Myers, Florida, area. He
was recruited into the operation by Herman Torres, one of Diaz’s supervisors.
Defendant started as a caretaker at a grow house on 20th Avenue in Naples,
Florida. The electricity at this house was billed to his name. Then in 2005,
Defendant became caretaker at a house on Everglades Boulevard in Collier
County. This house was purchased in the name of Veronica Torres, Herman
Torres’s sister. But the electricity was again billed to Defendant. Defendant
worked at the Everglades Boulevard house for about a year, through five or six
harvests, but left when the organization began to suspect the house was under
surveillance. The organization resumed growing marijuana at the house in early
2008, with Defendant again acting as caretaker and Herman Torres as his
supervisor. In the interim, Defendant completed a marijuana harvest at a grow
house on Van Camp Street in North Port.
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Once he returned to the Everglades Boulevard house, Defendant tried to
avoid drawing attention to the house by twice taking the cut marijuana plants to
the Van Camp house, where co-defendant Ivan Curbelo completed the processing.
Defendant completed about five more marijuana harvests at the Everglades
Boulevard house. In late September 2009, police executed search warrants at
numerous grow houses linked to the organization. They found Defendant and his
co-defendant Francisco Arevalo inside the Everglades Boulevard house. The
house contained 165 growing marijuana plants. Officers also found mail and other
documents that belonged to Defendant, in addition to mail addressed to Veronica
Torres.
Diaz testified that Defendant had participated in 12 to 15 marijuana
harvests. Diaz said he had met with Defendant 20 or 30 times over the course of
the conspiracy. In 2008, a Drug Enforcement Administration (DEA) agent
observed Defendant meet with co-defendant Herman Torres in a Walmart parking
lot, after which Defendant went into the Walmart and returned with an envelope
full of cash. On another occasion, an agent observed Defendant meet and
converse with Diaz in the parking lot of an auto parts store. Defendant had PVC
pipe in the back of his pickup during the meeting.
A grand jury charged Defendant with violations of the Controlled
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Substances Act. The superseding indictment charged him with (1) conspiring to
manufacture and possess with intent to distribute 1,000 or more marijuana plants
and to distribute and possess with intent to distribute 100 or more kilograms of
marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii), (b)(1)(B)(vii) and
846, and (2) manufacturing and possessing with intent to distribute 100 or more
marijuana plants in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii).
Defendant testified on his own behalf at trial, claiming he did not know Diaz was
the head of a large drug trafficking organization. He testified that he had only met
Diaz twice, that he had never been to any grow houses other than the Everglades
Boulevard house, and that he had not even completed one harvest of marijuana.
The petit jury nevertheless convicted Defendant on both counts. The district court
sentenced Defendant to a term of 120 months in prison on each count, to be served
concurrently.
II.
On appeal, Defendant argues the evidence at trial varied from the indictment
because it only proved his involvement in one of several smaller conspiracies
rather than the large conspiracy charged in the indictment. “A material variance
between an indictment and the government’s proof at trial occurs if the
government proves multiple conspiracies under an indictment alleging only a
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single conspiracy.” United States v. Castro, 89 F.3d 1443, 1450 (11th Cir. 1996).
When confronted with a variance argument, we ask two questions, “[f]irst,
whether a material variance did occur, and, second, whether the defendant suffered
substantial prejudice as a result.” United States v. Chastain, 198 F.3d 1338, 1349
(11th Cir. 1999). This is, of course, merely another way of saying we review for
harmless error. See Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded.”).
The Government, however, argues that we can review only for plain error
because Defendant failed to raise this argument below.1 The Government is
correct that Defendant did not raise the variance argument when he moved for
judgment of acquittal. But he did raise the argument in his Rule 33 motion for
new trial. See Doc. 334 at 5 (“This material variance between the evidence
introduced at trial and the allegations of the superseding indictment was
substantially prejudicial to the defendant . . . .”). Although we have said a
variance argument “in essence is one form of challenge to the sufficiency of the
evidence,” United States v. Jenkins, 779 F.2d 606, 616 (11th Cir. 1986), we have
not required a defendant to raise a variance claim in a Rule 29 motion. Instead, we
1
The distinction between plain and harmless error review lies in which party bears the
burden of proof regarding prejudice. United States v. Olano, 507 U.S. 725, 734–35 (1993).
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have considered a variance argument raised for the first time in a Rule 33 motion
for new trial. United States v. Reed, 887 F.2d 1398, 1402 (11th Cir. 1989). The
real question in determining our standard of review is whether Defendant “brought
the error to the trial court’s attention.” Henderson v. United States, 133 S. Ct.
1121, 1124 (2013). Defendant did so here, and the district court denied
Defendant’s variance claim on the merits.2 So we will review this argument under
the ordinary harmless error standard.
“[T]he arguable existence of multiple conspiracies does not constitute a
material variance from the indictment if, viewing the evidence in the light most
favorable to the Government, a reasonable trier of fact could have found that a
single conspiracy existed beyond a reasonable doubt.” United States v. Moore,
525 F.3d 1033, 1042 (11th Cir. 2008). “To determine whether the jury could have
found a single conspiracy, we consider: (1) whether a common goal existed; (2)
the nature of the underlying scheme; and (3) the overlap of participants.” United
States v. Seher, 562 F.3d 1344, 1366 (11th Cir. 2009) (quoting United States v.
Edouard, 485 F.3d 1324, 1347 (11th Cir. 2007)). “If a defendant’s actions
facilitated the endeavors of other coconspirators, or facilitated the venture as a
2
The district court noted that Defendant’s Rule 33 motion was untimely, but considered
his arguments anyway because the Government failed to object to the motion’s untimeliness.
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whole, then a single conspiracy is shown.” Id. (quoting United States v. Chandler,
388 F.3d 796, 811 (11th Cir. 2004)). “It is irrelevant that particular conspirators
may not have known other conspirators or participated in every stage of the
conspiracy; all that the government must prove to establish conspiracy liability is
an agreement or common purpose to violate the law and intentional joining in this
goal by the coconspirators.” United States v. Alred, 144 F.3d 1405, 1415 (11th
Cir. 1998).
Ample evidence supported the jury’s finding that Defendant was a member
of the charged conspiracy. Diaz testified that Defendant participated in 12 to 15
marijuana harvests at three different grow houses run by the organization. On two
occasions, Defendant took harvested marijuana from one grow house to another.
Diaz testified that Herman Torres recruited Defendant into the organization and
was responsible for paying him, but that the money ultimately came from Diaz.
DEA agents observed Defendant meeting with both Diaz and Herman Torres on
two occasions prior to Defendant’s arrest. Police found Defendant and another
man inside a house full of marijuana. Although Veronica Torres owned the house
and received mail at that address, Defendant set up the electricity in his name.
From this evidence, the jury could conclude Defendant was aware of Diaz’s larger
marijuana-growing operation.
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Defendant responds by arguing that Diaz was not a credible witness, an
argument that misses the point. When determining whether a variance occurred,
we “view the evidence in the light most favorable to the government,” United
States v. Brown, 587 F.3d 1082, 1092 (11th Cir. 2009), and cannot disturb the
jury’s credibility determinations unless the testimony is “incredible as a matter of
law,” United States v. Flores, 572 F.3d 1254, 1263 (11th Cir. 2009) (quoting
United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997)). Testimony is
only incredible as a matter of law if it relates to “facts that the witness could not
have possibly observed or events that could not have occurred under the laws of
nature.” Id. (quoting Calderon, 127 F.3d at 1325). Diaz’s testimony, combined
with the other evidence in the case, allowed a reasonable jury to find Defendant
guilty of the charged conspiracy. Therefore, no material variance occurred.
AFFIRMED.
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