                Case: 10-12480        Date Filed: 07/25/2012       Page: 1 of 6

                                                                       [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             _________________________

                                    No. 10-12480
                             __________________________

                        D.C. Docket No. 1:09-cr-00240-KD-N-1



UNITED STATES OF AMERICA,

                                                                          Plaintiff - Appellee,

                                             versus

JOSE NORIEGA,
                                                                      Defendant - Appellant.

                             __________________________

                      Appeal from the United States District Court
                         for the Southern District of Alabama
                          ___________________________

                                        (July 25, 2012)

Before TJOFLAT and CARNES, Circuit Judges, and MICKLE,* District Judge.

PER CURIAM:

       *
          Honorable Stephan P. Mickle, United States District Judge for the Northern District of
Florida, sitting by designation.
                 Case: 10-12480       Date Filed: 07/25/2012        Page: 2 of 6

         This is our second opinion in this case. Jose Noriega appeals his

convictions for conspiracy and possession of marijuana with intent to distribute.

He contends that the district court should have suppressed evidence seized at his

Chutney Drive property, arguing that Corporal Wilbur Williams’ protective sweep

of his property was illegal. He also contends that the government did not present

enough evidence to support his conspiracy conviction. In our first opinion, we

issued a limited remand so that the district court could make a finding related to

whether the evidence seized at Noriega’s property was admissible under the

independent source exception to the exclusionary rule, even if the protective

sweep was illegal. United States v. Noriega, 676 F.3d 1252, 1263–64 (11th Cir.

2012). The district court has made that factfinding, and we have the case once

again.

                                                 I.

         The first time this case was before us, we noted that “[t]he legality of the

protective sweep is a difficult question,” but we recognized that, if the protective

sweep was illegal, the evidence might have been properly admitted anyway under

the independent source exception to the exclusionary rule.1 Id. at 1260 (quotation



         1
        We set out the facts and procedural history of this case in our earlier opinion.
See Noriega, 676 F.3d at 1256–58. For brevity, we will not repeat them here.

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marks omitted). We applied the two-part independent source exception test to

determine whether the district court had properly admitted the evidence regardless

of whether the protective sweep was illegal. See id. at 1260–63. The first thing

we did was excise from Corporal Williams’ search warrant affidavit the

information he gained during the arguably illegal protective sweep, and we

determined that the remaining information in that affidavit was enough to support

a probable cause finding. See id. at 1260–61.

      We then asked “whether Corporal Williams’ decision to seek the warrant

was prompted by what he saw during the protective sweep.” Id. at 1263

(alteration and quotation marks omitted). Because the district court did not

resolve that factual question when it ruled on Noriega’s motion to suppress, we

remanded the case “for the limited purpose of allowing [the district court] to find

whether Corporal Williams would have sought the oral search warrant for the

Chutney Drive house and outbuilding if he had not already conducted the

protective sweep of that house.” Id. In doing so, we held:

      If Williams would have sought the warrant anyway, the district court
      did not err in denying the motion to suppress under the independent
      source exception to the exclusionary rule, and we can move on to
      Noriega’s sufficiency of the evidence claim, which we do not reach at
      this time. But if Williams would not have sought the warrant anyway,
      we will have to decide whether the district court erred in determining
      that the protective sweep of Noriega’s house did not violate the

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       Fourth Amendment.

Id.

       On remand, the district court found “as a matter of fact that, even if he had

not first conducted a protective sweep of the Chutney Drive house, [Corporal]

Williams would have sought a warrant to search that house and its outbuilding.”2

For that reason, the evidence was admissible under the independent source

exception to the exclusionary rule even if the protective sweep was illegal. See

Noriega, 676 F.3d at 1263. The district court did not err in admitting it.

                                              III.

       We turn next to Noriega’s contention that the government did not present

enough evidence to support his conviction for conspiracy to possess marijuana

with intent to distribute. Noriega argues that “nothing exists to connect the three

houses (and the individuals found at each).” “We review de novo the sufficiency

of the evidence presented at trial, and we will not disturb a guilty verdict unless,

given the evidence in the record, no trier of fact could have found guilt beyond a

reasonable doubt.” United States v. White, 663 F.3d 1207, 1213 (11th Cir. 2011)


       2
         Noriega contends that the district court’s finding was clearly erroneous. We disagree.
The court based its finding on Corporal Williams’ testimony at the hearing on remand, which the
court found “to be credible in all respects.” We “give particular deference to credibility
determinations of a fact-finder who had the opportunity to see live testimony.” See United States
v. Lebowitz, 676 F.3d 1000, 1009 (11th Cir. 2012).

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(quotation marks omitted). “In reviewing the sufficiency of the evidence, we look

at the record in the light most favorable to the verdict and draw all reasonable

inferences and resolve all questions of credibility in its favor.” Id. (quotation

marks omitted).

      To prove that Noriega committed conspiracy to possess marijuana with

intent to distribute, the government had to establish: (1) the existence of an

agreement between two or more persons for someone to possess marijuana with

intent to distribute; (2) “that [Noriega] knew of the conspiratorial goal”; and (3)

“that he knowingly joined or participated in the illegal venture.” United States v.

Brown, 587 F.3d 1082, 1089 (11th Cir. 2009). “Because conspiracies are

secretive by nature, the existence of an agreement and [Noriega’s] participation in

the conspiracy may be proven entirely from circumstantial evidence.” White, 663

F.3d at 1214 (quotation marks omitted).

      The record contains ample evidence connecting Noriega, Sabina, and Huezo

in a marijuana-growing conspiracy. Police officers found Noriega drinking beer

with Sabina and Huezo at Noriega’s Chutney Drive property, where police officers

found a marijuana-growing operation. See United States v. Bacon, 598 F.3d 772,

777 (11th Cir. 2010) (per curiam) (“[A]lthough mere presence is insufficient to

support a conviction for conspiracy, the jury is permitted to consider presence as a

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probative factor in determining whether the defendant knowingly and intentionally

participated in a criminal scheme.”). Sabina told an Immigration and Customs

Enforcement agent that he was living at the Chutney Drive property at the time he

was arrested. Sabina owned the Jib Road property, where officers found another

marijuana-growing operation, and he leased that property to Huezo.

      The government also introduced evidence that the three properties at which

officers found marijuana-growing operations were part of the marijuana-growing

conspiracy. At each property, there were two 5-ton air conditioners; an invoice

showed that someone in Miami, Florida, had bought three of those air conditioners

on a single order form; and at each of the properties, officers found one of the

three 5-ton air conditioners that were listed on that order form. In light of all that

evidence, a reasonable jury could have found that the government proved beyond

a reasonable doubt that Noriega was guilty of conspiracy to possess marijuana

with intent to distribute.

      AFFIRMED.




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