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                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 16-17311
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 4:15-cr-00133-KOB-JHE-5


UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus


MIGUEL MANRIQUEZ,
a.k.a. 3 Eyes,
a.k.a. Paisa,
a.k.a. Juan Ricardo Campos,

                                                            Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                         ________________________

                              (November 2, 2017)

Before ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      After a jury trial, Miguel Manriquez was convicted of conspiracy to

distribute and possess with intent to distribute 50 grams or more of

methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A). On

appeal, he argues that the government did not present sufficient evidence to

identify him as one of the conspirators involved in a methamphetamine-

distribution scheme operating within Georgia state prisons. He also argues that the

district court abused its discretion by refusing to suppress a photograph of a tattoo

on his back that the government belatedly disclosed to him in violation of the

court’s discovery order. After careful review, we affirm.

                                         I.

      We review de novo the sufficiency of the evidence to support a criminal

conviction. United States v. Davis, 854 F.3d 1276, 1292 (11th Cir. 2017), petition

for cert. filed, (U.S. June 15, 2017) (No. 16-9642). “In doing so, we view the

evidence in the light most favorable to the government and draw all reasonable

inferences and credibility determinations in favor of the jury’s verdict.”        Id.

(internal quotation marks omitted). Our inquiry is limited to whether a reasonable

trier of fact could conclude that the evidence establishes the defendant’s guilt

beyond a reasonable doubt. Id. The evidence need not exclude every hypothesis

of innocence, and the jury is free to choose between reasonable constructions of

the evidence. United States v. Rodriguez, 732 F.3d 1299, 1303 (11th Cir. 2013).


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                                        A.

      We begin by summarizing the trial evidence.         As a result of George

O’Leary’s arrest for trafficking in methamphetamine and his subsequent decision

to cooperate with the authorities, law enforcement became aware of a

methamphetamine-distribution scheme operating within the Georgia prison system.

O’Leary told investigators that he had been buying large amounts of

methamphetamine from someone he knew as “Francisco,” who was somewhere in

the Georgia prison system. According to O’Leary, Francisco coordinated drug

deals using a cell phone, directing O’Leary where to pick up the drugs and how to

make payment.      From various pieces of information obtained during the

investigation, investigators were able to identify Francisco as Jose Rolando Arroyo

Balcazar (“Arroyo”), who was housed in Georgia’s Wilcox State Prison.

      As part of the investigation, O’Leary made several recorded calls to Arroyo

to set up controlled buys of methamphetamine. These controlled buys led to the

arrests of Arroyo’s sister, whose house was often used as a rendezvous point, and

Yesenia Montufar, who ran drugs for Arroyo. In addition to these recorded calls,

investigators obtained a wiretap to monitor communications to and from one of the

cell phones used by Arroyo.

      O’Leary and Montufar both testified at Manriquez’s trial.         They each

explained that Arroyo introduced them by phone to someone named “Miguel.” At


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one point, Arroyo told O’Leary that Miguel was his new methamphetamine

supplier. Thereafter, O’Leary spoke with Miguel several times by phone. During

one conversation, O’Leary talked to Miguel about sending him $400 for

methamphetamine. During another call, O’Leary and Miguel discussed wiring

money, and Miguel mentioned the name “Carmen Manriquez.”

      Montufar likewise was introduced to someone named “Miguel” by Arroyo.

She knew Arroyo because her brother was in prison with him. In addition to

running drugs for Arroyo outside the prison, Montufar also smuggled things into

the prison, such as cell phones and sometimes drugs. After Arroyo introduced her

to Miguel, whom Arroyo also referred to as “Three Eyes,” Montufar spoke with

Miguel on the phone. Miguel asked Montufar to call him “Angel.” Angel never

told Montufar where he was located, but Arroyo told her that he was in Calhoun

State Prison. In one phone call intercepted during the wiretap, Miguel referred to

himself as “Three Eyes” and stated that he was in “Calhoun.”1

      Based on information obtained during the investigation, such as the names

“Miguel” and “Manriquez” being mentioned, along with references to Calhoun

State Prison, investigators began looking for “Miguel Manriquez.” And they found

someone by that name—the defendant—who was incarcerated in Calhoun State

Prison. Further investigation revealed that Manriquez listed Carmen Manriquez as

      1
      Investigators determined that the individual with whom O’Leary, Montufar, and Arroyo
communicated used the same cell-phone number throughout the course of the investigation.
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his brother and contact person, and that a known alias of Manriquez was “Miguel

Angel Manriquez.”

      Montufar’s testimony also linked Angel with a back tattoo of the Virgin

Mary. Montufar explained that, on one occasion, she and Angel had been talking

on the phone about tattoos. Angel said that he had a tattoo of the Virgin Mary on

his back and he sent Montufar a picture of it with his cell phone. A similar tattoo

was found on Manriquez’s back after his arrest in connection with this case. As

part of the booking process at the Hoover City Jail, a corrections officer took a

picture of a tattoo on Manriquez’s back. The tattoo was of the Virgin Mary with

the words “Three Eyes” above it. Montufar testified that the tattoo in the booking

photograph looked like the tattoo that Angel sent her.

      Both Montufar and Manriquez were held in the Hoover City Jail on these

charges. Montufar testified that she spoke to Angel through a door in the jail and

recognized his voice as the person she spoke to on the phone. She did not see him,

however. Montufar also identified Angel’s voice on a call between Arroyo and

Miguel, associating Angel’s voice with Miguel. She was not on the call, but she

recognized his voice from her own conversations with him.

                                         B.

      In arguing that he should have been granted a judgment of acquittal,

Manriquez’s central contention is that the government’s evidence failed to prove


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beyond a reasonable doubt that he was the person identified in the evidence

variously as Miguel, Angel, and Three Eyes. He points out that O’Leary and

Montufar could not identify him at trial and did not connect him with the voice

they heard on the phone. As a result, he asserts, the government failed to prove

that he was “the voice on the phone.”

      Although no direct evidence connected Manriquez to the methamphetamine-

distribution conspiracy, the government provided sufficient circumstantial

evidence to identify Manriquez as “the voice on the phone.”              “The test for

sufficiency of evidence is identical regardless of whether the evidence is direct or

circumstantial, and no distinction is to be made between the weight given to either

direct or circumstantial evidence.” United States v. Mieres-Borges, 919 F.2d 652,

656–57 (11th Cir. 1990). But “[w]hen the government relies on circumstantial

evidence, reasonable inferences, not mere speculation, must support the

conviction.” United States v. Mendez, 528 F.3d 811, 814 (11th Cir. 2008).

      Here, reasonable inferences support Manriquez’s conspiracy conviction.

O’Leary and Montufar’s testimony, along with corroborating recordings and

transcripts, established that the “voice on the phone” was known as Miguel, Angel,

or Three Eyes, that he was incarcerated at Calhoun State Prison, that he had a

tattoo of the Virgin Mary on his back, and that he knew someone named Carmen

Manriquez.    Other evidence established that Manriquez was incarcerated at


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Calhoun State Prison during the relevant period, that his brother’s name is Carmen

Manriquez, that a known alias of his was Miguel Angel Manriquez, that he has a

tattoo of the Virgin May on his back with the words “Three Eyes” above it, and

that Montufar identified his voice at the Hoover City Jail where he was being held

in connection with this offense. Given the substantial overlap between the facts

known about the voice on the phone and Manriquez and the absence of any

reasonable possibility of mere coincidence, a jury could reasonably infer, beyond a

reasonable doubt, that the voice identified on the phone calls as Miguel, Angel, and

Three Eyes belonged to Manriquez.

      Accordingly, the district court properly denied Manriquez’s motion for

judgment of acquittal.

      Manriquez raises a new argument on appeal that was not presented to the

district court at trial, though he does so only in passing and without citing any legal

authority. Even assuming that this argument has been properly raised on appeal, it

is reviewed for plain error, which Manriquez cannot establish. See United States v.

Hunerlach, 197 F.3d 1059, 1068–69 (11th Cir. 1999) (new grounds for acquittal

not raised to the district court are reviewed for plain error).

      Manriquez asserts that, even if evidence was sufficient to prove that the

voice on the phone was his, the government failed to present evidence that he was

part of a conspiracy to distribute or possess with the intent to distribute


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methamphetamine. He points out that there is no evidence that he ever actually or

constructively possessed methamphetamine.

      But the government did not need to prove that Manriquez possessed

methamphetamine in order to sustain a conspiracy conviction.         “To sustain a

conviction under 21 U.S.C. § 846, the government must prove (1) that an illegal

agreement existed to possess with intent to distribute a controlled substance; (2)

that the defendant knew of the agreement; and (3) that the defendant knowingly

and voluntarily joined the agreement.” United States v. Barron-Soto, 820 F.3d

409, 418 (11th Cir. 2016).       O’Leary’s testimony along with corroborating

recordings and transcripts demonstrate that Manriquez was knowingly involved in

a conspiracy to distribute methamphetamine. According to O’Leary, Arroyo said

that Manriquez was his new methamphetamine supplier and, thereafter, O’Leary

spoke with Manriquez about sending him $400 for methamphetamine. It was not

plainly erroneous for the district court to fail to sua sponte grant a judgment of

acquittal on this ground.

                                        II.

      Manriquez maintains that the government should not have been able to use

at trial the booking photograph of his back tattoo, which provided a clear link

between Manriquez and the person Montufar knew as Angel, because the

government failed to disclose the photograph by the deadline in the district court’s


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discovery order. He argues that the district court abused its discretion by failing to

suppress the photograph.

      In a criminal trial, the government must permit the defendant to inspect and

to copy or photograph certain documents, including photographs, that are within

the government’s control if they are material to preparing the defense or the

government intends to use them in its case-in-chief at trial. Fed. R. Crim. P.

16(a)(1)(E). In this case, the district court had entered a discovery order requiring

the government to disclose any such evidence at least fourteen days before trial.

And it is undisputed that the government violated the order by disclosing the

booking photograph eleven days before trial.         But the district court denied

Manriquez’s motion to prevent the government from introducing the evidence at

trial. See Fed. R. Crim. P. 16(d)(2) (providing that that the court may sanction a

party for failure to comply with Rule 16, including by granting a continuance or

prohibiting the party from introducing the undisclosed evidence).

      We review the district court’s decision whether to impose a sanction for the

violation of a discovery order for an abuse of discretion. United States v. Euceda-

Hernandez, 768 F.2d 1307, 1311–12 (11th Cir. 1985); see United States v.

Campagnuolo, 592 F.2d 852, 858 (5th Cir. 1979) (district courts have “broad




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discretion to administer sanctions for the violation of a valid discovery order”). 2 A

discovery violation does not automatically prohibit the use of unrevealed evidence.

United States v. Rodriguez, 799 F.2d 649, 652 (11th Cir. 1986). We will reverse a

conviction based on the government’s violation of a discovery order only if the

violation affected the defendant’s substantial rights. United States v. Rivera, 944

F.2d 1563, 1566 (11th Cir. 1991). Prejudice is measured mainly by how the

violation affected the defendant’s ability to prepare a defense. United States v.

Chastain, 198 F.3d 1338, 1348 (11th Cir. 1999).

       Here, Manriquez has not shown substantial prejudice due to the district

court’s refusal to exclude the booking photograph.               While the evidence was

important to the government’s case, the government missed its deadline by just

three days, and Manriquez had eleven days before trial to develop a defense

strategy in response to the evidence. Manriquez asserts that the government’s

belated disclosure prevented him from taking certain actions, such as researching

statistics about the prevalence of Virgin Mary tattoos or producing a photo lineup

of similar tattoos to present to Montufar under cross examination, but he fails to

explain how an additional three days would have made a difference in that regard.

Moreover, the district court found that “defense counsel was on notice that

[Montufar] had made reference to the tattoo, so he at least had some inkling that

       2
        This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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that might be at issue even before the photograph was disclosed.” 3                        “More

importantly, if [Manriquez] had, in fact, been prejudiced by the delayed disclosure

of [the photograph], he should have moved for a continuance.” See Rivera, 944

F.2d at 1566. But he did not, and instead elected to proceed to trial.

       In light of the relatively minor violation of the district court’s discovery

order, the court acted well within its discretion by refusing to impose the “extreme

sanction” of exclusion of the evidence. United States v. Rodriguez, 765 F.2d 1546,

1557 (11th Cir. 1985) (internal quotation marks omitted). Manriquez has not

shown that the belated disclosure prejudiced his ability to prepare a defense. See

Chastain, 198 F.3d at 1348. While it may have been within the district court’s

discretion to exclude the evidence despite a lack of prejudice, see Campagnuolo,

592 F.2d at 858 (“We find no abuse of discretion where, as here, a district judge for

prophylactic purposes suppresses evidence that, under a valid discovery order, the

government should have disclosed earlier, even if the nondisclosure did not

prejudice the defendants.”), the absence of prejudice to Manriquez’s substantial

rights precludes granting relief on appeal. See Rivera, 944 F.2d at 1566

                                               III.

       In sum, sufficient evidence supports Manriquez’s methamphetamine-

conspiracy conviction, and the district court did not abuse its discretion by

       3
         Manriquez appears to dispute that fact on appeal, but he did not object to or dispute that
finding below, and he points to nothing in the record to contradict it now.
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allowing the government to introduce at trial a photograph of a tattoo on

Manriquez’s back that was not timely disclosed by the deadline in the court’s

discovery order.

      We therefore AFFIRM Manriquez’s conviction.




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