           Case: 13-13391   Date Filed: 04/09/2014   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-13391
                        Non-Argument Calendar
                      ________________________

               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.

                      ________________________

               Appeals from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (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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