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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-12637
Non-Argument Calendar
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D.C. Docket No. 1:18-cr-00011-RWG-SMD-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENNIS REINALDO PERALTA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(May 21, 2020)
Before JILL PRYOR, GRANT and LUCK, Circuit Judges.
PER CURIAM:
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Dennis Reinaldo Peralta appeals his conviction for conspiracy to distribute
50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A). Peralta raises several challenges to his conviction including whether:
(1) the district court abused its discretion in denying his requested jury instruction
explaining that speculation, suspicion, or a guess was an insufficient basis for
conviction; (2) there was sufficient evidence to support his conviction; and (3) the
Middle District of Alabama was a proper venue. After careful review, and for the
reasons below, we affirm.
I. BACKGROUND
Peralta was indicted for one count of conspiracy to distribute 50 grams or
more of methamphetamine. 1 The following facts were established at his criminal
trial.
The Federal Bureau of Investigation (“FBI”) was investigating gang activity
involving Bryant Pouncy when they learned that a group, the “Pouncy gang,” was
distributing methamphetamine in Enterprise, Alabama. During the investigation
the FBI developed a confidential source, May, who worked with the gang’s drug
supplier, Jose Rubalcava, and was responsible for recruiting new buyers.
Rubalcava, who was based in Mexico, supplied the Pouncy gang with
1
Peralta was indicted alongside eight co-defendants who were charged for participating
in the conspiracy as well as other crimes.
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methamphetamine, which they picked up in Atlanta and then distributed in
Enterprise. As part of the investigation, the FBI introduced May to a certified
undercover employee (“UCE”). May then communicated to Rubalcava that the
UCE was interested in buying methamphetamine. Rubalcava contacted the UCE,
and the two agreed that Rubalcava would supply the UCE with one kilogram of
methamphetamine a month, for $10,500 per kilogram. On the call, Rubalcava
informed the UCE that he supplied people in Enterprise and made deliveries of
methamphetamine in Atlanta, where he wanted the UCE to pick up the delivery.
The UCE conducted multiple controlled purchases from Rubalcava. To
conduct the transactions, the UCE would contact Rubalcava, who would provide
him with a local phone number and a code word. The UCE would then contact the
person at that phone number who was in the Atlanta area and use the code word to
set up the methamphetamine delivery. The first code word was “alazan,” which
the UCE used to set up a transaction for one kilogram of methamphetamine for
$10,500. The UCE set up a second transaction with Rubalcava, with the code
word “lacho,” where again the UCE purchased one kilogram of methamphetamine
for $10,500. A third deal was set up by the UCE and Rubalcava, for the same
amount and price, with the code word “la rama.” In the third deal, the UCE
received a call from Peralta’s phone to set up the transaction. When the UCE
arrived at the pick-up location, he got into a Honda Accord, registered to Peralta,
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and made a transaction of $10,500 for one kilogram of methamphetamine. The
UCE identified Peralta in court as the individual with whom he had completed the
transaction.
The Pouncy gang traveled to Atlanta on at least two occasions to pick up
methamphetamine. Facebook Messenger records revealed one transaction for two
kilograms of methamphetamine for $18,000, and another, where Pouncy was
provided a phone number to call with the code word “alazan,” for about three
kilograms of methamphetamine for $29,000. On both occasions, the transactions
occurred in Atlanta via a courier or delivery person.
Records from Western Union revealed that Peralta had sent approximately
95 money transfers. The transfers were connected through his phone number and
name. A representative from Western Union testified that all of the transactions
were under $1,000—a threshold that would require additional sender information,
such as a driver’s license. The transactions used an address in the vicinity of
Lawrenceville, Georgia, and the majority of the transactions used a Belmont Lane
address in Lawrenceville that matched the address listed on Peralta’s license.
Fifty-five of the transactions were sent to Mexico, for a total of $44,042.77. For
these transactions, the following email address was provided,
dennisperalta665@yahoo.com.
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After the close of the government’s case, Peralta moved for a judgment of
acquittal, arguing that the government had failed to submit sufficient evidence to
connect him to the conspiracy as charged because he was not part of the Pouncy
gang and the UCE’s identification of him was inadequate. Peralta further argued
that he could not conspire with an agent, the UCE, and that venue was improper
because the UCE was his only connection to Alabama; all the transactions
occurred in Atlanta. The district court denied the motion for acquittal and found
that the venue issue turned on a question of fact for the jury to decide.
At trial, Peralta requested a jury instruction on speculation or guesswork,
which read:
If you believe the evidence in this case did nothing more than create a
suspicion, a possibility, speculation, or a guess that the defendant is guilty of
the criminal act(s) he is charged with, then that is an insufficient basis for
conviction. Circumstances merely causing a suspicion of guilt are not
sufficient to justify a conviction of crime.
Doc. 290 at 12.2 The government objected arguing that such an instruction would
be repetitive because the court’s jury instructions already included the Eleventh
Circuit’s pattern reasonable doubt instruction, which stated, “‘[p]roof beyond a
reasonable doubt’ is proof so convincing that you would be willing to rely and act
on it without hesitation in the most important of your own affairs.” Doc. 290 at 5.
The district court refused to give Peralta’s additional instruction on the grounds
2
“Doc. #” refers to the district court’s numbered docket entry.
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that it was covered by other instructions and was confusing. The jury found
Peralta guilty and he was sentenced to 151 months’ imprisonment.
This is Peralta’s appeal.
II. LEGAL ANALYSIS
Peralta raises three arguments on appeal. First, he contends that the district
court erred in failing to give his additional requested jury instruction. Second, he
argues that the district court erred in denying his motion for a judgment of acquittal
because the government failed to establish, beyond a reasonable doubt, that Peralta
was guilty of conspiring with the co-defendants listed in the indictment, who were
members of the Pouncy gang. Third, Peralta argues that the Middle District of
Alabama was an improper venue because he committed no crime there. We
consider each argument in turn.
A. The District Court Did Not Err in Refusing to Give Peralta’s Requested
Jury Instruction.
We review the district court’s refusal to give a proposed jury instruction for
an abuse of discretion. United States v. Dean,
487 F.3d 840, 847 (11th Cir. 2007).
“District courts enjoy broad discretion in formulating jury instructions, so long as
the charge as a whole accurately reflects the law in the context of a case’s facts.”
United States v. Isnadin,
742 F.3d 1278, 1296 (11th Cir. 2014). A district court
abuses its discretion in failing to give a requested instruction if (1) the requested
instruction was a correct statement of the law; (2) its subject matter was not
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substantially covered by the charge actually given; and (3) its subject matter dealt
with an issue in the trial court that was so important that the failure to give it
seriously impaired the defendant’s ability to defend himself. United States v.
Paradies,
98 F.3d 1266, 1286 (11th Cir. 1996).
Peralta requested a supplemental jury instruction that provided:
If you believe the evidence in this case did nothing more than create a
suspicion, a possibility, speculation, or a guess that the defendant is guilty of
the criminal act(s) he is charged with, then that is an insufficient basis for
conviction. Circumstances merely causing a suspicion of guilt are not
sufficient to justify a conviction of crime.
Doc. 290 at 12. Peralta argues that the district court erred in failing to give this
instruction because without it the court’s charge to the jury “did not explain that
speculation, suspicion, or a guess is an insufficient basis for conviction.”
Appellant’s Brief at 17. The government concedes that Peralta’s requested
instruction was a correct statement of law but argues that it was already
substantially covered by the court’s instruction on reasonable doubt. We agree
with the government.
Although the district court refused to give Peralta’s requested instruction, it
instructed the jury that it had to find Peralta guilty beyond a reasonable doubt,
which it defined as “a real doubt based on your reason and common sense after you
have carefully and impartially considered all of the evidence in the case.” Doc.
290 at 5. The court further explained that “‘[p]roof beyond a reasonable doubt’ is
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proof so convincing that you would be willing to rely and act on it without
hesitation in the most important of your own affairs.”
Id. Under the given
instruction the jury was precluded from convicting Peralta based only on
“suspicion, a possibility, speculation, or a guess.”
Id. at 12.
The subject matter of Peralta’s requested jury instruction was therefore
substantially covered by the court’s instruction on reasonable doubt.
Paradies, 98
F.3d at 1286.
Thus, the district court did not abuse its discretion in denying Peralta’s
requested supplemental jury instruction.
B. The District Court Properly Denied the Motion for Judgment of
Acquittal Because Sufficient Evidence Supported Peralta’s Conviction.
Peralta also argues that the district court erred in denying his motion for a
judgment of acquittal because the district court failed to establish, beyond a
reasonable doubt, that he was guilty of conspiring with the co-defendants listed in
the indictment. He argues that he was arrested and charged after committing a
crime in Georgia, and there was no evidence that he conspired with the Pouncy
gang in Alabama. He further argued that he could not have conspired with a
government agent, the UCE.
We review de novo the district court’s denial of a judgment of acquittal on
sufficiency-of-evidence grounds, considering the evidence in the light most
favorable to the government and drawing all reasonable inferences as well as
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credibility determinations in the government’s favor. United States v. Capers,
708
F.3d 1286, 1296 (11th Cir. 2013). We may not overturn a jury’s verdict “if any
reasonable construction of the evidence would have allowed the jury to find the
defendant guilty beyond a reasonable doubt.”
Id. at 1297 (internal quotation marks
omitted). Circumstantial evidence may be used to establish an element of a crime,
even if the jury could draw more than one reasonable inference from the
circumstantial evidence. United States v. Henry,
920 F.2d 875, 877 (11th Cir.
1991). Applying this standard of review, we conclude that the evidence was
sufficient to support Peralta’s conviction.
To sustain a conviction for conspiracy with intent to distribute, the
government must prove that an agreement existed between two or more persons to
violate the narcotics laws, the defendant knew of the conspiratorial goal, and he
knowingly joined or participated in the illegal venture. United States v. Guerrero,
935 F.2d 189, 192 (11th Cir. 1991). The existence of such an agreement may be
proved by either direct or circumstantial evidence.
Id. (citation and internal
quotation marks omitted). The government does not have to prove that the alleged
conspirator knew all of the details of the conspiracy or that he participated in every
phase of the scheme. United States v. Orr,
825 F.2d 1537, 1543 (11th Cir. 1987).
The government may establish a defendant’s knowing participation in the
conspiracy through proof of surrounding circumstances, such as acts committed by
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the defendant that furthered the purpose of the conspiracy. United States v.
Iglesias,
915 F.2d 1524, 1527 (11th Cir. 1990). Further, a common purpose and
plan may be inferred from the circumstances. United States v. McDowell,
250 F.3d
1354, 1365 (11th Cir. 2001).
Here, the government presented sufficient evidence to support Peralta’s
conviction. First, the government established at trial the existence of an agreement
between Peralta and Rubalcava to distribute methamphetamine. Peralta worked
with Rubalcava to distribute the drug, as evidenced by his coordination of and
presence at the third controlled purchase by the UCE.3 Peralta’s direct
participation in the third transaction was also evidence that he knew of the
conspiratorial goals. Peralta’s knowing participation in the conspiracy was further
evidenced by circumstantial evidence presented at trial; specifically, the numerous
wire transfers Peralta made to Mexico—where Rubalcava was based. Peralta
transferred approximately $44,042.77 to Mexico in 55 money transfers—all under
the threshold that triggers the requirement of additional identifying information for
the sender. A jury could have inferred from the large sum of money he transferred
that Peralta played a larger role in the conspiracy beyond the single transaction.
3
Peralta argues that the UCE’s identification of Peralta at the third purchase was
unreliable, however, it is exclusively the jury’s role to determine the credibility of witnesses. See
United States v. Clay,
832 F.3d 1259, 1294 (11th Cir. 2016).
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The government also established at trial that Rubalcava, who was based in
Mexico, supplied the Pouncy gang with methamphetamine, which was picked up
in Atlanta and then sold in Enterprise. Peralta’s participation in the third
transaction with the UCE was conducted in the same manner as the transactions
involving the Pouncy gang. In fact, the code used by the UCE in one of the
Atlanta transactions, “alazan,” was the same code used by the Pouncy gang in one
of their transactions. The government established that both the Pouncy gang and
the UCE had ties to the confidential source, May, who was responsible for
recruiting new methamphetamine buyers for Rubalcava. May had recruited both
the Pouncy gang and the UCE. The UCE then, in one of his transactions, received
the methamphetamine directly from Peralta.
A jury could have inferred from all of this information that Peralta and the
Pouncy gang were all members of the same overall conspiracy to distribute
methamphetamine. The government is not required to prove that Peralta knew all
of the details of the conspiracy or all of its members or that he participated in every
phase of the scheme. See
Orr, 825 F.2d at 1543.
Accordingly, there was sufficient evidence to establish that Peralta
knowingly engaged in acts that furthered the purpose of the overall conspiracy.
Id.
The district court thus did not err in denying Peralta’s motion for judgment of
acquittal.
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C. The Middle District of Alabama Was a Proper Venue.
Having established that there was sufficient evidence of Peralta’s conviction,
we turn to his argument that the Middle District of Alabama was an improper
venue for his criminal proceedings. Here, Peralta again argues that he was not part
of the Pouncy conspiracy and that he did not commit any illegal act in the Middle
District of Alabama. Therefore, he argues, venue was improper in the Middle
District of Alabama.
The United States Constitution guarantees, in two places, that a criminal
defendant has a right to be tried in a proper venue. United States v. Cabrales,
524
U.S. 1, 6 (1998); see U.S. Const. art. III, § 2, cl. 3; U.S. Const. amend. VI.
However, an offense that was “committed in more than one district” can be
prosecuted “in any district in which such offense was begun, continued, or
completed.” 18 U.S.C. § 3237.
In a conspiracy case, venue is proper in any district where an overt act was
committed in furtherance of the conspiracy. United States v. Smith,
918 F.2d 1551,
1557 (11th Cir. 1990). The government must support its choice of venue by a
preponderance of the evidence.
Id. We review a challenge to venue in the light
most favorable to the government, making all reasonable inferences and credibility
choices in favor of the jury verdict when deciding whether the government has
proved by a preponderance of the evidence that an offense occurred in the trial
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district. United States v. Burroughs,
830 F.2d 1574, 1580 (11th Cir. 1987)
(citation omitted). In a conspiracy case, the overt act need not be committed by the
defendant for venue to be proper because the “acts of accomplices and unindicted
co-conspirators can also expose the defendant to jurisdiction.” United States v.
Matthews,
168 F.3d 1234, 1246 (11th Cir. 1999), opinion amended on denial of
reh’g sub nom. United States v. Moore,
181 F.3d 1205 (11th Cir. 1999). The fact
that most of the conspiracy’s activity took place in a venue other than the one
chosen for trial does not destroy venue.
Id.
As discussed above, the government presented at trial sufficient evidence
that Peralta was a member of the conspiracy with Rubalcava to distribute
methamphetamine, including by the Pouncy gang in Enterprise. Viewing all
reasonable inferences and credibility choices in favor of the jury’s verdict, we
cannot say that no overt acts furthering the conspiracy occurred in the Middle
District of Alabama. The evidence at trial established that members of the Pouncy
gang coordinated with Rubalcava for the purchase of methamphetamine on at least
two occasions. Members of the Pouncy gang picked up the methamphetamine in
Atlanta that had been supplied by Rubalcava and then distributed it in Enterprise.
Rubalcava also informed the UCE that he supplied drugs in Enterprise and made
deliveries of methamphetamine in Atlanta.
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Thus, as a member of the conspiracy, Peralta was exposed to jurisdiction
where other conspirators were exposed to jurisdiction.
Matthews, 168 F.3d at
1246. Accordingly, the Middle District of Alabama was not an improper venue.
III. CONCLUSION
For the above reasons, we affirm Peralta’s conviction and sentence.
AFFIRMED.
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