           Case: 13-10596   Date Filed: 11/19/2013   Page: 1 of 11


                                                       [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                    No. 13-10596; 13-10598; 13-10907
                         Non-Argument Calendar
                      ________________________

               D.C. Docket No. 5:12-cr-00020-WTH-TBS-4



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                  versus

ENELIO NIEBLA,
MIGUEL COTO and
EDDY PERAZA,

                                                       Defendants-Appellants.

                       ________________________

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

                            (November 19, 2013)

Before MARCUS, JORDAN and DUBINA, Circuit Judges.

PER CURIAM:
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       Enelio Niebla appeals his conviction for aiding and abetting the manufacture

of marijuana plants, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D) and 18 U.S.C.

§ 2. Eddy Peraza appeals his convictions for conspiring to manufacture 100 or

more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii) and

846, and for aiding and abetting the manufacture of marijuana plants, in violation

of 21 U.S.C. § 841(a)(1), (b)(1)(D) and 18 U.S.C. § 2. Miguel Coto appeals his

total sentence of 120 months’ imprisonment after a jury found him guilty of

conspiring to manufacture 100 or more marijuana plants, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(B)(vii) and 846, and of aiding and abetting the manufacture of

marijuana plants, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D) and 18 U.S.C.

§ 2.

       Mr. Niebla challenges his conviction on two grounds: (1) the district court

erred in denying his motion for judgment of acquittal on the conspiracy charge in

his first trial, which ended in a mistrial; and (2) there was insufficient evidence to

support his conviction for aiding and abetting the manufacture of marijuana plants.

Mr. Peraza challenges his convictions on three grounds: (1) there was insufficient

evidence to support his convictions; (2) the district court abused its discretion by

admitting a trial exhibit into evidence under the business records exception to the

hearsay rule; and (3) the form for requesting trial court transcripts is

unconstitutional because it does not provide for the automatic transcription of trial


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court proceedings.    Mr. Coto argues only that the district court erred by not

applying the safety-valve provision under U.S.S.G. § 5C1.2 to his sentence. After

careful review of the parties’ briefs and the relevant portions of the record, we

affirm.

                                           I.

      Mr. Niebla argues that the district court erred in denying his motion for

judgment of acquittal on the conspiracy charge in his first trial, which ended in a

mistrial. Because Mr. Niebla was ultimately acquitted of this charge in the second

trial, and asks for no further relief, we conclude that his claim is moot. See United

States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008) (“A case on appeal

becomes moot . . . when it no longer presents a live controversy with respect to

which the court can give meaningful relief.”) (quotes omitted). To the extent Mr.

Niebla invokes the double jeopardy clause, his claim fails because double jeopardy

does not attach after a trial ends in a mistrial, regardless of whether there was

sufficient evidence to support the convictions in that trial. See Richardson v.

United States, 468 U.S. 317, 325 (1984).

                                         II.

      Mr. Peraza argues that there was insufficient evidence for a reasonable jury

to convict him of conspiring to manufacture 100 or more marijuana plants. Both

Mr. Peraza and Mr. Niebla argue that there was insufficient evidence to support


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their convictions for aiding and abetting the manufacture of marijuana plants. We

disagree.

      We “review de novo a district court’s denial of judgment of acquittal on

sufficiency of evidence grounds,” viewing the evidence in the light most favorable

to the government and drawing all reasonable inferences in favor of the

government. United States v. Friske, 640 F.3d 1288, 1290-91 (11th Cir. 2011)

(quotes omitted).    “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.” Id. at 1291 (quotes omitted). We draw all

credibility determinations in favor of the jury’s verdict. United States v. Jiminez,

564 F.3d 1280, 1285 (11th Cir. 2009).

      To prove conspiracy under 21 U.S.C. § 846, the government must prove that

(1) an agreement existed between the defendant and one or more persons, (2) the

object of which is an offense under Title 21 of the United States Code. United

States v. Baker, 432 F.3d 1189, 1232 (11th Cir. 2005). Circumstantial evidence

can be sufficient to show the defendants “knowingly volunteered to join the

conspiracy.”     United States v. Garcia, 405 F.3d 1260, 1270 (11th Cir. 2005)

(quotes omitted).    Mere presence at the scene of illegal activity and close

association with co-conspirators are insufficient on their own to support a

conspiracy conviction. See Jiminez, 564 F.3d at 1285. Nonetheless, “where large


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quantities of drugs are present a prudent smuggler is not likely to suffer the

presence of unaffiliated bystanders.” United States v. Miranda, 425 F.3d 953, 959

(11th Cir. 2005) (quotes omitted).

      To prove a violation of 21 U.S.C. § 841(a)(1), the government must

establish beyond a reasonable doubt that the defendant knowingly and intentionally

manufactured a controlled substance, in this case marijuana. A conviction under

§ 841(a)(1) may be based on direct or circumstantial evidence of an individual’s

knowledge and intent. Garcia, 405 F.3d at 1270. 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). The evidence used to support a drug

conspiracy charge can also be used to support the substantive offense.         See

Miranda, 425 F.3d at 961-62.

      As to Mr. Peraza’s conspiracy conviction, a reasonable jury could find that

Mr. Peraza entered an agreement with others to manufacture marijuana based on

the evidence showing that (1) there were three grow house properties with very

similar characteristics (the “27th Street,” “165th Avenue,” and “52nd Street”

properties) where a total of over 100 live marijuana plants were found; (2) keys

seized during the search of the 27th Street property opened locks at all three grow

house locations; (3) Mr. Peraza leased the 165th Avenue property; (4) Mr. Peraza


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and his codefendants were observed traveling from the 165th Avenue property to

the 27th Street property; and (5) Mr. Peraza and his codefendants were observed

replacing an air conditioning unit in a grow room at the 27th Street property.

      The jury could reasonably find from this evidence that Mr. Peraza was more

than “merely associated” with marijuana growers, see United States v. Lopez-

Ramirez, 68 F.3d 438, 441 (11th Cir. 1995), or more than just “merely present” at

the scene of criminal activity, see United States v. Mieres-Borges, 919 F.2d 652,

658 (11th Cir. 1990). The jury could use this same evidence to reasonably find

that Mr. Peraza aided and abetted the manufacture of marijuana plants.           See

Miranda, 425 F.3d at 961-62 (evidence of conspiracy can be used to prove

substantive offense).

      As to Mr. Niebla’s conviction for aiding and abetting the manufacture of

marijuana plants, a reasonable jury could find that Mr. Niebla would not have been

permitted to go into the grow rooms at the 27th Street property unless he was

participating in manufacturing the marijuana. See Miranda, 425 F.3d at 959. Mr.

Niebla was observed helping to replace an air conditioning unit and replacing steps

to the grow house, where marijuana growing equipment was plainly visible and

there was a strong odor of marijuana. Based on this evidence, a jury could

reasonably find that Mr. Niebla “associated himself with the criminal venture and

sought to make the venture a success.” Farris, 77 F.3d at 395.


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       Thus, there was sufficient evidence to support Mr. Peraza’s conviction for

conspiracy to manufacture 100 or more marijuana plants, and to support the

convictions of Mr. Peraza and Mr. Niebla for aiding and abetting the manufacture

of marijuana plants.

                                               III.

       Mr. Peraza argues that the district court abused its discretion by admitting

under the business records exception to the hearsay rule an exhibit showing that

Mr. Peraza was the account holder for the electric service at the 165th Avenue

property. Although we agree that the district court committed error,1 we hold that

the error was harmless given the ample evidence linking Mr. Peraza to the 165th

Avenue property. See United States v. Arbolaez, 450 F.3d 1283, 1290 (11th Cir.

2006) (“Evidentiary and other nonconstitutional errors do not constitute grounds

for reversal unless there is a reasonable likelihood that they affected the

defendant’s substantial rights”).          In particular, Mr. Peraza’s landlady, Nelly

       1
          We review for abuse of discretion a district court’s evidentiary rulings. See United
States v. Lebowitz, 676 F.3d 1000, 1009 (11th Cir. 2012). We have held that the business
records exception, embodied in Federal Rule of Evidence 803(6), “requires that both the
underlying records and the report summarizing those records be prepared and maintained for
business purposes in the ordinary course of business and not for purposes of litigation.” United
States v. Arias-Izquierdo, 449 F.3d 1168, 1183-84 (11th Cir. 2006). Here, the electric
company’s representative testified that the document, while based on information kept in the
ordinary course of business, was prepared specifically for litigation. As such, it was
inadmissible. See id. at 1184 (holding that a typed summary of handwritten business records
created solely for litigation was inadmissible hearsay evidence); cf. United States v. Glasser, 773
F.2d 1553, 1558-59 (11th Cir. 1985) (computer printouts containing compilations of mortgage
account transactions not prepared for litigation are admissible under the business records
exception).

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Jaiman, testified that she had leased the property to Mr. Peraza, identified him in

court as her tenant, and identified a written lease that she had given him and that

the government submitted into evidence. Based on this evidence, along with the

other evidence of Mr. Peraza’s involvement in the marijuana growing operation,

the “average jury would not have found prosecution’s case less persuasive” if the

electric company record had not been admitted into evidence, and thus reversal is

not warranted. See United States v. Gari, 572 F.3d 1352, 1363 (2009); see also

Arbolaez, 450 F.3d at 1290 (“where an error had no substantial influence on the

outcome, and sufficient evidence uninfected by error supports the verdict, reversal

is not warranted”).

                                         IV.

      Mr. Peraza contends that CJA Form 24, the form used to request trial court

proceedings, is unconstitutional because it does not provide for the automatic

transcription of critical trial court proceedings. Because Mr. Peraza did not raise

this constitutional challenge in the district court, and because he does not attempt

to show how he was harmed by the existence of the CJA Form 24, we will not

consider the issue on appeal. See Resolution Trust Corp. v. Dunmar Corp., 43

F.3d 587, 598 (11th Cir. 1995) (“Well-settled precedent provides that arguments

not raised at the district court level will generally not be considered on appeal.”)




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                                              V.

       Mr. Coto argues that the district court erred by failing to apply U.S.S.G.

§ 5C1.2, the safety-valve provision, after concluding that he had been untruthful in

his debriefing with the government.2 He further contends that the district court

clearly erred by deferring to the government’s determination about whether Mr.

Coto had been truthful in his debriefing.

       We review de novo a district court’s interpretation and application of the

Sentencing Guidelines. United States v. Zaldivar, 615 F.3d 1346, 1350 (11th Cir.

2010). In an appeal of a denial of safety valve relief, we review findings of fact for

clear error and the application of law to those facts de novo. United States v.

Johnson, 375 F.3d 1300, 1301 (11th Cir. 2004). The burden is on the defendant to

show that he has met all of the safety-valve factors. United States v. Cruz, 106

F.3d 1553, 1557 (11th Cir. 1997).

       A defendant who satisfies the five factors set forth in § 5C1.2 of the

Guidelines is eligible for a two-level reduction in offense level.                  U.S.S.G.

§ 5C1.2(a); see also United States v. Milkintas, 470 F.3d 1339, 1344 (11th Cir.

2006).     The fifth factor, which is the only one in dispute here, requires the

       2
          In his brief, Mr. Coto states that he adopts the arguments of his codefendants to the
extent that they applied to him. We have determined that sufficiency of the evidence arguments
are fact-specific and require independent briefing, and we therefore will not consider Mr.
Peraza’s and Mr. Niebla’s sufficiency of the evidence arguments adopted by Mr. Coto. See
United States v. Khoury, 901 F.2d 948, 963 n.13 (11th Cir. 1990). Moreover, we do not consider
Mr. Peraza’s and Mr. Niebla’s remaining arguments adopted as they are not applicable to Mr.
Coto. See United States v. Bernal-Benitez, 594 F.3d 1303, 1318 n.20 (11th Cir. 2010).
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defendant to truthfully provide the government with “all information and evidence

the defendant has concerning the offense or offenses that were part of the same

course of conduct or of a common scheme or plan.” U.S.S.G. § 5C1.2(a)(5). The

district court, not the government, must make the factual finding as to whether the

defendant provided complete and truthful information to the government. See

United States v. Brownlee, 204 F.3d 1302, 1305 (11th Cir. 2000). It is error for the

district court to defer to the government the responsibility of determining whether

the information the defendant gave to the government was truthful. See United

States v. Espinosa, 172 F.3d 795, 797 (11th Cir. 1999).

      The district court did not clearly err in concluding that Mr. Coto was not

truthful about his relevant conduct in his safety-valve debriefing because Mr.

Coto’s statements during his debriefing were contradicted by the evidence

presented at trial. See Brownlee, 204 F.3d at 1305. Notably, Mr. Coto claimed

that he was only involved in the grow operation at the 52nd Street location in

contradiction to the “persuasive circumstantial evidence at trial that these three

grow houses were interconnected,” including evidence that all three grow houses

had the same type of growing facilities; that keys to all three locations were found

in a codefendant’s truck; and that Mr. Coto was seen moving an air conditioner at

the 27th Street location, which was surrounded by grow-operation equipment.




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      Because Mr. Coto did not meet his burden of demonstrating that the safety-

valve provision applied, the district court did not err. Cruz, 106 F.3d at 1557. Mr.

Coto’s argument that the district court erred by deferring to the government is

unavailing. Although the district court did consider the government’s position, it

made its own factual finding that Mr. Coto’s proffered statements were untruthful

based on the evidence produced at trial.        See Espinosa, 172 F.3d at 797.

Accordingly, we affirm Mr. Coto’s sentence.

                                        VI.

      The convictions and sentences of Mr. Niebla, Mr. Peraza and Mr. Coto are

affirmed.

      AFFIRMED.




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