                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                 FILED
                                                         U.S. COURT OF APPEALS
                               No. 08-13115                ELEVENTH CIRCUIT
                                                              MARCH 24, 2009
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                 D. C. Docket No. 07-00185-CR-ORL-31KRS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

ADAN GONZALEZ,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                               (March 24, 2009)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Adan Gonzalez appeals his convictions for conspiracy to distribute and
possession with intent to distribute five kilograms or more of cocaine. 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A)(ii), 846. Gonzalez challenges the admission of a prior

conviction, the sufficiency of the evidence, and the denial of his motion for a new

trial. We affirm.

                                I. BACKGROUND

      Gonzalez was indicted for his participation in a conspiracy to distribute

cocaine. In 2004, the Drug Enforcement Agency began to investigate the Beto

trafficking organization. Using a confidential informant, the Agency infiltrated the

organization and arranged for a target, Sergio Jacobo-Rojas, to accept a delivery of

cocaine on February 12, 2007, at a rest stop near Longwood, Florida. Gonzalez

coordinated the transport and delivery of the cocaine and was later apprehended in

Kansas.

      On February 8, 2007, Gonzalez called a fellow truck driver, Cristo Hildago-

Sanchez, and offered him $10,000 to assist in the delivery of 100 pounds of

marijuana to Florida. Gonzalez previously had been arrested for transporting drugs

through the Sierra Blanca border checkpoint outside El Paso, Texas, and needed

Hildago to transport the drugs. Hildago agreed and met Gonzalez in Phoenix,

Arizona, where two men of Mexican origin loaded Hildago’s truck with what he

believed to be large boxes of marijuana. The two men, later identified as brothers



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David and Gabino Lugo-Montes, made Hildago uncomfortable and he wrote down

their license plate number. After the transfer, Gonzalez and Hildago left. The two

men later stopped their trucks, removed smaller containers of drugs from the large

boxes, hid some of the drugs among crates of lettuce in the trailer of Hildago’s

truck, and concealed the rest of the drugs inside a suitcase in the sleeping

compartment of the truck.

      Gonzalez and Hildago drove in tandem and called each other frequently

during their cross-country trip. At one point during the trip, Gonzalez was delayed

several hours at a weigh station. While he waited for Gonzalez, Hildago inspected

a container of drugs and discovered that he was transporting cocaine. Angry that

Gonzalez would deceive him and hoard the additional cash usually paid to smuggle

cocaine, Hildago took a photograph of the cocaine on his cell phone and sent the

photograph to Gonzalez. Hildago wanted to end his participation in the smuggling

operation, but Gonzalez refused to load the cocaine on his truck. Gonzalez later

contacted the Lugo brothers, who persuaded Hildago to complete the delivery.

      Gonzalez and Hildago arrived at the rest stop in Florida on the morning of

February 12, 2007. Gonzalez parked his truck and trailer in an isolated area, left

Hildago with the two trucks, and accompanied the Lugo brothers to another

location to receive payment for the delivery. When Gonzalez returned, Hildago



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warned that he would wait only twenty minutes, then leave with the cocaine.

Gonzalez passed that information to a contact, who dispatched Jacobo and the

confidential informant.

      When Jacobo arrived at the rest stop, Gabino Lugo climbed into Hildago’s

truck, counted and repackaged the bundles of cocaine, and placed the boxes inside

the confidential informant’s truck. As Gabino Lugo moved the cocaine, Hidalgo

walked to the Lugos’ car, where David Lugo handed Hildago $20,000 and

instructed him to pay Gonzalez $10,000.

      Although they knew that the delivery was to occur at the rest stop, the

federal agents were not aware of the time for the delivery and did not have enough

officers to interrupt the drug transaction safely. Agents intercepted Jacobo and the

confidential agent at the next exit on the interstate highway, while other agents

secured the rest stop. Agents placed Jacobo under arrest, seized the cocaine and

three cellular telephones, and questioned the confidential informant. The

informant stated that the cocaine was removed from a white trailer that had the

words “Miami, Florida” painted on the side. The trailer was being pulled by a

truck and was driven by a Hispanic man.

      Agent James Dicaprio closed the rest stop and surveyed the area for

suspicious individuals. Agent Dicaprio approached Gonzalez, who was nervously



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talking on his cellular telephone, and asked for the telephone and identification.

Hidalgo saw Gonzalez and the agent and returned to his truck with the cash, which

he divided and concealed under a mattress inside the truck and in his girlfriend’s

purse. Later, Agent Jeffrey Blanton approached Hidalgo and asked him to consent

to a search of his trailer. When Hidalgo’s girlfriend admitted to federal agents that

she had $10,000 in her purse, Hidalgo claimed the money and stated that he had a

gun in the cab of his truck. Agents searched the truck and discovered $10,000 in

cash under the mattress, two cellular telephones, and a suitcase and cardboard box

that contained kilogram packages of cocaine. Under the mistaken belief that all

participants in the drug transaction had been apprehended, Agent Dicaprio allowed

Gonzalez to leave the rest stop.

      Hidalgo provided a statement to federal agents in which he implicated

Gonzalez and the Lugo brothers. Later, when Agent Dicaprio was shown

photographs, he remembered Gonzalez from the rest stop. In September 2007,

authorities discovered Gonzalez hiding in the sleeping berth of a truck that had

stopped in Kansas for a routine safety inspection.

      Gonzalez admitted that he knew the Lugo brothers and that he had

introduced them to Hildago in Phoenix, Arizona, in February 2007. The Lugo

brothers were arrested in Texas and officers seized three cellular telephones, all of



                                           5
which were assigned a 909 area code. One of the telephones was assigned the

phone number 909-223-9254; the portable memory chip, or SIM card, had been

removed from another telephone. Cellular telephone records established that

Gonzalez had called 909-223-9254 about 100 times during February 2006, and

Hidalgo later identified the number as a means to contact the Lugo brothers.

      Before trial, Gonzalez filed a motion in limine to exclude any reference to a

previous conviction for misprision of a felony. See 18 U.S.C. § 4. Gonzalez

argued that the conviction was irrelevant under Federal Rule of Evidence 402 and

should be excluded as unfairly prejudicial under Rule 403. The government

argued in response that the conviction was admissible to establish Gonzalez’s

intent, knowledge, plan, and absence of mistake. The district court did not decide

the motion before trial.

      After opening statements, the district court heard arguments on Gonzalez’s

motion in limine. The government argued that the previous crime was similar to

his present charges. The government explained that federal border agents

discovered 399 pounds of marijuana inside a trailer attached to Gonzalez’s truck

and he disclaimed any knowledge of the drugs. Gonzalez was charged for

possession with intent to distribute marijuana, but later pleaded guilty to the lesser

offense of misprision of felony. The district court denied the motion based on the



                                           6
“underlying facts relating to [Gonzalez’s] prior conviction.”

      At trial, Hildago, his girlfriend, and Jacobo testified about the events related

to the drug transaction. Hildago identified his cellular telephone records and

photographs of the Lugo brothers. Gonzalez failed to object when a federal agent

testified about Gonzalez’s previous conviction. Gonzalez did not present any

evidence on his behalf and moved “to dismiss for lack of evidence.” The district

court denied the motion, and the jury convicted Gonzalez of conspiracy to

distribute and possession with intent to distribute five kilograms or more of

cocaine.

      Two months later, Gonzalez moved for a new trial based on newly-

discovered evidence. Gonzalez based his motion on a report prepared by an

Agency analyst that stated that the telephone number 909-223-9254 was assigned

to a man named Alec E. Burton. Testimony at trial established that the telephone

was pre-paid and had no subscriber information to identify the purchaser.

Gonzalez used the report at trial to challenge testimony from Hildago that the

telephone number was used by the Lugo brothers. Gonzalez alleged in his motion

for a new trial that he diligently had tried to determine the true owner of the

telephone; his counsel had spoken to a person named Alberto Mora by dialing two

different numbers listed on the cellular phone list; and Mora knew both Gonzalez



                                           7
and Hidalgo, but Mora was going to be out of town and was reluctant to testify at

Gonzalez’s trial. Gonzalez alleged that Mora had agreed recently to testify that he

had received several calls from Hidalgo on the 9254 telephone number, which

would establish that Hidalgo provided false testimony that the telephone number

belonged to the Lugo brothers. The district court denied the motion.

                          II. STANDARDS OF REVIEW

      We apply three standards of review in this appeal. Objections or arguments

regarding evidentiary rulings that are not raised during trial are reviewed for plain

error. United States v. Khoury, 901 F.2d 948, 966 (11th Cir. 1990). We review de

novo the denial of a judgment of acquittal, and construe the evidence in the light

most favorable to the government. United States v. Browne, 505 F.3d 1229, 1253

(11th Cir. 2007). We review the denial of a motion for a new trial for abuse of

discretion. United States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir. 2002).

                                 III. DISCUSSION

      Gonzalez challenges his conviction on three grounds. First, Gonzalez argues

that his previous conviction for misprision of felony was not relevant to his drug

charges and was not admissible at his trial. Second, Gonzalez argues that he was

entitled to an acquittal because the government failed to prove that he actually or

constructively possessed the cocaine. Third, Gonzalez argues that he is entitled to



                                           8
a new trial based on newly-discovered evidence. These arguments fail.

      The district court did not plainly err when it denied Gonzalez’s motion in

limine. The circumstances underlying Gonzalez’s conviction for misprision of

felony were relevant to Gonzalez’s intent and knowing participation in a

conspiracy to distribute cocaine and his efforts to abet the possession of the

cocaine. See Fed. R. Evid. 404(b). Gonzalez’s “not guilty plea in [his] drug

conspiracy case . . . [made] intent a material issue and open[ed] the door to

admission of prior drug-related offenses as highly probative, and not overly

prejudicial, evidence of [his] intent.” United States v. Calderon, 127 F.3d 1314,

1332 (11th Cir. 1997), modified on other grounds by United States v. Toler, 144

F.3d 1423 (11th Cir. 1998).

      The district court did not err by denying Gonzalez’s motion for a judgment

of acquittal. Ample evidence also established Gonzalez’s involvement in the

criminal offenses. The government proved that Gonzalez knowingly participated

in a conspiracy to distribute cocaine and that he aided and abetted in the possession

of cocaine by coordinating the transport and delivery of the illegal drugs. See 18

U.S.C. § 2; 21 U.S.C. §§ 841(a)(1), 846; United States v. Hernandez, 433 F.3d

1328, 1333 (11th Cir. 2005); United States v. Camacho, 233 F.3d 1308, 1317 (11th

Cir. 2000). The government was not required to prove that Gonzalez was in actual



                                           9
or constructive possession of the drugs. See Hernandez, 433 F.3d at 1333.

      The district court did not abuse its discretion by denying Gonzalez a new

trial. Gonzalez discovered the purported owner of the 9254 cellular telephone

number during his trial. Although the witness refused to testify, Gonzalez

suggested at trial that the number was owned by someone other than the Lugo

brothers. The admission of evidence that another person owned the 9254 cellular

telephone number also would not probably produce a different result because there

is ample evidence that Gonzalez conspired to distribute cocaine, called and met

with the Lugo brothers in furtherance of that conspiracy, and arranged for the

transportation and delivery of the cocaine.

                                IV. CONCLUSION

      Gonzalez’s convictions are AFFIRMED.




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