             Case: 12-16172     Date Filed: 08/07/2013   Page: 1 of 5


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-16172
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 3:11-cr-00068-MCR-5

UNITED STATES OF AMERICA,



                                                                 Plaintiff-Appellee,

                                      versus

BENJAMIN DEAN GARRETT,
a.k.a. Ben Garrett,

                                                             Defendant-Appellant.

                          ________________________

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

                                (August 7, 2013)

Before PRYOR, MARTIN and FAY, Circuit Judges.

PER CURIAM:

      Benjamin Garrett appeals his convictions for conspiring to transport stolen

equipment and jewelry in interstate commerce, 18 U.S.C. § 371, and transporting
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stolen jewelry in interstate commerce, id. § 2314. The district court denied

Garrett’s motion for a judgment of acquittal in which he argued that there was

insufficient evidence to prove he joined a single conspiracy to transport stolen

goods and that the district court abused its discretion by admitting testimony that

he offered to sell three stolen skid loaders, as evidence of prior bad acts. The

district court also denied Garrett’s motion for a new trial in which he argued that

the jury should not have been instructed that he could be held responsible for the

transportation of stolen jewelry by his coconspirators. Garrett challenges the

denial of both of those motions. We affirm.

      Sufficient evidence supports Garrett’s conviction for conspiring to transport

stolen goods in interstate commerce. Viewed in the light most favorable to the

prosecution, both the recordings of telephone conversations between Garrett and a

coconspirator, Kreg King, and King’s testimony established that Garrett joined an

ongoing conspiracy to steal property and transport it to other states for resale. See

id. § 371; see United States v. Edouard, 485 F.3d 1324, 1349 (11th Cir. 2007). The

evidence established that, after King told Garrett about the conspiracy, Garrett

purchased a golf cart for resale that he knew King’s cohorts had stolen in Alabama.

When Garrett was unable to obtain more stolen golf carts to sell in his pawn shop

in Florida, Garrett recruited King and his cohorts to travel to Florida to steal from

one of Garrett’s regular customers jewelry that Garrett planned to sell in New York


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or Miami. Garrett coordinated with his coconspirators to burgle the customer’s

home and steal the jewelry while she was at his pawn shop examining a diamond

bracelet, and Garrett later attempted to sell a few pieces of the stolen jewelry in his

pawn shop. But after Garrett encountered problems selling the jewelry, King and

his cohorts transported most of the jewelry to North Carolina. Based on this

evidence, the jury was entitled to find that Garrett joined an existing conspiracy to

transport stolen goods and that the burglary and theft of jewelry were committed in

furtherance of that conspiracy. See United States v. Richardson, 532 F.3d 1279,

1284–86 (11th Cir. 2008); Edouard, 485 F.3d at 1347–48. The record supports a

finding that Garrett and his coconspirators depended on each other to discover,

pilfer, and transport goods and acted in concert to profit from their illegal

enterprise. See Edouard, 485 F.3d at 1347.

      Garrett argues that he participated in a single conspiracy to steal and

transport jewelry instead of a multifaceted conspiracy in which its participants

stole and transported heavy equipment and jewelry, but we will not disturb the

contrary finding of the jury. “Whether a scheme is one conspiracy or several is

primarily a question for the jury.” United States v. Stitzer, 785 F.2d 1506, 1518

(11th Cir. 1986). The prosecution presented evidence that King and his cohorts

had stolen and transported equipment before Garrett proposed that they steal

jewelry, and the district court instructed the jury about multiple conspiracies. The


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jury found that Garrett joined an ongoing conspiracy in which its participants

agreed to transport stolen equipment and jewelry. Substantial evidence supports

the finding that the overarching goal of the conspiracy was to steal valuable goods

and peddle them in different states. See Edouard, 485 F.3d at 1347.

         Even if we were to assume that the district court erred by admitting evidence

of uncharged bad acts, Fed. R. Evid. 404(b), by allowing King to testify that

Garrett offered to sell him three stolen skid loaders before joining the conspiracy,

the error was harmless. We cannot say that the evidence had a “substantial and

injurious effect” on the jury. See United States v. Phaknikone, 605 F.3d 1099,

1109 (11th Cir. 2010). The prosecution introduced substantial evidence that

Garrett eagerly joined King’s conspiracy to transport stolen goods and that Garrett

coordinated the theft of his customer’s jewelry with the intent to sell it in another

state.

         The district court also did not err by instructing the jury that Garrett could be

held responsible for the transportation of the stolen jewelry by his cohorts, under

Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180 (1946). Ample evidence

existed from which the jury could find that Garrett could reasonably foresee that a

coconspirator would transport the jewelry to another state. See United States v.

Alvarez, 755 F.2d 830, 848–49 (11th Cir. 1985). Garrett knew that his

coconspirators regularly transported stolen goods to other states, and he could have


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anticipated that his coconspirators would do so after Garrett was unable to sell the

stolen jewelry in his pawn shop. The district court “did not err by submitting the

Pinkerton issue to the jury.” Id. at 849.

      We AFFIRM Garrett’s convictions.




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