United States v. Leodan Gallo Arias , 562 F. App'x 898 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-13391
Non-Argument Calendar
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D.C. Docket No. 5:12-cr-00042-ACC-PRL-8
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADEL GONZALEZ,
Defendant,
LEODAN GALLO ARIAS,
Defendant-Appellant.
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Appeals from the United States District Court
for the Middle District of Florida
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(April 9, 2014)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
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Leodan Gallo Arias appeals his conviction after a jury found him guilty of
manufacturing 50 or more marijuana plants, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C) and 18 U.S.C. § 2. Arias asserts the district court erred in denying his
motion for judgment of acquittal because the Government did not have credible
evidence to support his conviction. He further contends the jury verdicts, which
acquitted him of the conspiracy charge but found him guilty of the underlying
substantive offense, are inconsistent. After review, 1 we affirm Arias’s conviction.
Section 841(a)(1) of Title 21 of the United States Code makes it unlawful for
any person knowing or intentionally “to manufacture, distribute, or dispense, or
possess with intent to manufacture, distribute, or dispense, a controlled substance.”
21 U.S.C. § 841(a)(1). Pursuant to 18 U.S.C. § 2 “[w]hoever commits an offense
against the United States or aids, abets, counsels, commands, induces or procures
its commission, is punishable as a principal.” 18 U.S.C. § 2.
To obtain a drug conviction under 21 U.S.C. § 841(a)(1), the Government
must have proven beyond a reasonable doubt that Arias knowingly and
intentionally manufactured marijuana. See 21 U.S.C. § 841(a)(1). A conviction
under 21 U.S.C. § 841(a)(1) requires either direct or circumstantial evidence of a
defendant’s knowledge and intent. United States v. Garcia, 405 F.3d 1260, 1270
1
“We review de novo a district court’s denial of judgment of acquittal on sufficiency of
evidence grounds.” United States v. Friske, 640 F.3d 1288, 1290 (11th Cir. 2011) (quotation
omitted).
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(11th Cir. 2005). To support a conviction under 18 U.S.C. § 2, the government
must show that the defendant “associated himself with the criminal venture and
sought to make the venture a success.” United States v. Farris, 77 F.3d 391, 395
(11th Cir. 1996). We have held that sufficient evidence supported a defendant’s
conviction for knowingly manufacturing marijuana because the defendant resided
in the apartment and was listed as the customer on the electric records, where 117
marijuana plants and a functioning grow house were found. See Garcia, 405 F.3d
at 1270.
The district court did not err in denying Arias’s motion for judgment of
acquittal because the evidence was sufficient to establish, as the jury found, that
Arias knowingly manufactured 50 or more marijuana plants. See United States v.
Friske, 640 F.3d 1288, 1291 (“A jury’s verdict cannot be overturned if any
reasonable construction of the evidence would have allowed the jury to find the
defendant guilty beyond a reasonable doubt.” (quotation omitted)). The evidence
presented at trial showed a sophisticated marijuana grow operation at the 471 St.
Francis Street property (Francis property). A search of the Francis property
revealed 53 marijuana root bases, marijuana plant tops, and equipment used for
growing marijuana. Drug Enforcement Agency Special Agent Wayne Andrews
testified that investigators observed Arias at the Francis property several times
during a two-week period of the investigation. Arias was observed entering the
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outbuildings on the Francis property, which were later determined to be marijuana
grow rooms. Investigators also observed Arias take liquid fertilizer out of his truck
and carry it into one of the outbuildings, where investigators observed him working
for approximately three hours one night. A reasonable jury could infer that Arias
sought to make the marijuana grow operation a success based on the fact that he
was observed carrying liquid fertilizer and working in the grow rooms. See Farris,
77 F.3d at 395.
Furthermore, GPS tracking information showed Arias’s vehicle traveling
from the Francis property to a parking lot in Tampa, where the vehicles of Arias
and Carlos Solares, who pled guilty to conspiring to manufacture marijuana in the
instant case, were in the parking lot together. Although the title and utility bill
records were not in Arias’s name, Julio Castillo-Alvarez testified that Arias kept
clothes and “things” at the Francis property. See Garcia, 405 F.3d at 1270.
Castillo-Alvarez and Solares also testified that Solares recruited Arias to care for
the marijuana plants at the Francis property. Castillo-Alvarez testified that Arias
eventually stopped caring for the marijuana plants because he became fearful that
the authorities were watching the grow house. This is supported by Agent
Andrews’ testimony that after Arias spotted Agent Andrews’ car near the Francis
property, Arias began to drive suspiciously, and was soon after not observed at the
Francis property again. A reasonable jury could infer from the totality of the
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evidence that Arias was knowingly involved in the manufacture of marijuana at the
Francis property. See Friske, 640 F.3d at 1291.
Arias’s argument the jury’s verdicts are inconsistent is unavailing. Both the
Supreme Court and our Court have held that inconsistent verdicts for different
charges against one defendant are not sufficient to set aside the verdict. See Harris
v. Rivera, 454 U.S. 339, 345 (1981) (explaining inconsistency in a jury verdict on
different charges against one defendant is not a sufficient reason for setting the
verdict aside); United States v. Mitchell, 146 F.3d 1338, 1345 (11th Cir. 1998)
(“[A]s long as the guilty verdict is supported by sufficient evidence, it must stand,
even in the face of an inconsistent verdict on another count.”). Moreover, we have
upheld a defendant’s conviction where he was found guilty of the conspiracy and
not the underlying substantive offense. See United States v. Brito, 721 F.2d 743,
749 (11th Cir. 1983). In any event, the verdicts are not necessarily inconsistent
because the jury could have disbelieved Arias’s codefendants’ testimony and
rested its finding on the surveillance of Arias’s participation at the Francis
property, but found insufficient evidence of an agreement with the other co-
conspirators to commit the conspiracy count. The evidence viewed in the light
most favorable to the Government supports Arias’s conviction for manufacturing
50 or more marijuana plants. See Friske, 640 F.3d at 1290-91. Thus, the district
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court did not err in denying Arias’s motion for judgment of acquittal. Accordingly,
we affirm Arias’s conviction.
AFFIRMED.
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