                Case: 10-14418       Date Filed: 08/09/2013       Page: 1 of 8


                                                                       [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 10-14418
                              ________________________

                      D.C. Docket No. 2:09-cr-00077-JES-SPC-8

UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                            versus

ROBERTO PINEDA, a.k.a. Michaila,

                                                                       Defendant-Appellant.

                              ________________________

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

                                      (August 9, 2013)



Before DUBINA, JORDAN and BALDOCK,* Circuit Judges.

BALDOCK, Circuit Judge:


       *
         Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting
by designation.
              Case: 10-14418    Date Filed: 08/09/2013   Page: 2 of 8


      A federal jury convicted Defendant Roberto Pineda of two marijuana-

related crimes, one a conspiracy count and the other a substantive count.

Defendant now appeals his conviction on the conspiracy count. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

                                         I.

      Sometime around 2004, Defendant became involved with an indoor

marijuana growing operation run by Jose Diaz in the Fort Myers, Florida, area. He

was recruited into the operation by Herman Torres, one of Diaz’s supervisors.

Defendant started as a caretaker at a grow house on 20th Avenue in Naples,

Florida. The electricity at this house was billed to his name. Then in 2005,

Defendant became caretaker at a house on Everglades Boulevard in Collier

County. This house was purchased in the name of Veronica Torres, Herman

Torres’s sister. But the electricity was again billed to Defendant. Defendant

worked at the Everglades Boulevard house for about a year, through five or six

harvests, but left when the organization began to suspect the house was under

surveillance. The organization resumed growing marijuana at the house in early

2008, with Defendant again acting as caretaker and Herman Torres as his

supervisor. In the interim, Defendant completed a marijuana harvest at a grow

house on Van Camp Street in North Port.

                                         2
              Case: 10-14418    Date Filed: 08/09/2013   Page: 3 of 8


      Once he returned to the Everglades Boulevard house, Defendant tried to

avoid drawing attention to the house by twice taking the cut marijuana plants to

the Van Camp house, where co-defendant Ivan Curbelo completed the processing.

Defendant completed about five more marijuana harvests at the Everglades

Boulevard house. In late September 2009, police executed search warrants at

numerous grow houses linked to the organization. They found Defendant and his

co-defendant Francisco Arevalo inside the Everglades Boulevard house. The

house contained 165 growing marijuana plants. Officers also found mail and other

documents that belonged to Defendant, in addition to mail addressed to Veronica

Torres.

      Diaz testified that Defendant had participated in 12 to 15 marijuana

harvests. Diaz said he had met with Defendant 20 or 30 times over the course of

the conspiracy. In 2008, a Drug Enforcement Administration (DEA) agent

observed Defendant meet with co-defendant Herman Torres in a Walmart parking

lot, after which Defendant went into the Walmart and returned with an envelope

full of cash. On another occasion, an agent observed Defendant meet and

converse with Diaz in the parking lot of an auto parts store. Defendant had PVC

pipe in the back of his pickup during the meeting.

      A grand jury charged Defendant with violations of the Controlled

                                         3
                Case: 10-14418   Date Filed: 08/09/2013   Page: 4 of 8


Substances Act. The superseding indictment charged him with (1) conspiring to

manufacture and possess with intent to distribute 1,000 or more marijuana plants

and to distribute and possess with intent to distribute 100 or more kilograms of

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

846, and (2) manufacturing and possessing with intent to distribute 100 or more

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

Defendant testified on his own behalf at trial, claiming he did not know Diaz was

the head of a large drug trafficking organization. He testified that he had only met

Diaz twice, that he had never been to any grow houses other than the Everglades

Boulevard house, and that he had not even completed one harvest of marijuana.

The petit jury nevertheless convicted Defendant on both counts. The district court

sentenced Defendant to a term of 120 months in prison on each count, to be served

concurrently.

                                         II.

      On appeal, Defendant argues the evidence at trial varied from the indictment

because it only proved his involvement in one of several smaller conspiracies

rather than the large conspiracy charged in the indictment. “A material variance

between an indictment and the government’s proof at trial occurs if the

government proves multiple conspiracies under an indictment alleging only a

                                          4
                Case: 10-14418       Date Filed: 08/09/2013       Page: 5 of 8


single conspiracy.” United States v. Castro, 89 F.3d 1443, 1450 (11th Cir. 1996).

When confronted with a variance argument, we ask two questions, “[f]irst,

whether a material variance did occur, and, second, whether the defendant suffered

substantial prejudice as a result.” United States v. Chastain, 198 F.3d 1338, 1349

(11th Cir. 1999). This is, of course, merely another way of saying we review for

harmless error. See Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded.”).

       The Government, however, argues that we can review only for plain error

because Defendant failed to raise this argument below.1 The Government is

correct that Defendant did not raise the variance argument when he moved for

judgment of acquittal. But he did raise the argument in his Rule 33 motion for

new trial. See Doc. 334 at 5 (“This material variance between the evidence

introduced at trial and the allegations of the superseding indictment was

substantially prejudicial to the defendant . . . .”). Although we have said a

variance argument “in essence is one form of challenge to the sufficiency of the

evidence,” United States v. Jenkins, 779 F.2d 606, 616 (11th Cir. 1986), we have

not required a defendant to raise a variance claim in a Rule 29 motion. Instead, we



       1
        The distinction between plain and harmless error review lies in which party bears the
burden of proof regarding prejudice. United States v. Olano, 507 U.S. 725, 734–35 (1993).

                                               5
                Case: 10-14418       Date Filed: 08/09/2013      Page: 6 of 8


have considered a variance argument raised for the first time in a Rule 33 motion

for new trial. United States v. Reed, 887 F.2d 1398, 1402 (11th Cir. 1989). The

real question in determining our standard of review is whether Defendant “brought

the error to the trial court’s attention.” Henderson v. United States, 133 S. Ct.

1121, 1124 (2013). Defendant did so here, and the district court denied

Defendant’s variance claim on the merits.2 So we will review this argument under

the ordinary harmless error standard.

       “[T]he arguable existence of multiple conspiracies does not constitute a

material variance from the indictment if, viewing the evidence in the light most

favorable to the Government, a reasonable trier of fact could have found that a

single conspiracy existed beyond a reasonable doubt.” United States v. Moore,

525 F.3d 1033, 1042 (11th Cir. 2008). “To determine whether the jury could have

found a single conspiracy, we consider: (1) whether a common goal existed; (2)

the nature of the underlying scheme; and (3) the overlap of participants.” United

States v. Seher, 562 F.3d 1344, 1366 (11th Cir. 2009) (quoting United States v.

Edouard, 485 F.3d 1324, 1347 (11th Cir. 2007)). “If a defendant’s actions

facilitated the endeavors of other coconspirators, or facilitated the venture as a



       2
         The district court noted that Defendant’s Rule 33 motion was untimely, but considered
his arguments anyway because the Government failed to object to the motion’s untimeliness.

                                               6
              Case: 10-14418     Date Filed: 08/09/2013   Page: 7 of 8


whole, then a single conspiracy is shown.” Id. (quoting United States v. Chandler,

388 F.3d 796, 811 (11th Cir. 2004)). “It is irrelevant that particular conspirators

may not have known other conspirators or participated in every stage of the

conspiracy; all that the government must prove to establish conspiracy liability is

an agreement or common purpose to violate the law and intentional joining in this

goal by the coconspirators.” United States v. Alred, 144 F.3d 1405, 1415 (11th

Cir. 1998).

      Ample evidence supported the jury’s finding that Defendant was a member

of the charged conspiracy. Diaz testified that Defendant participated in 12 to 15

marijuana harvests at three different grow houses run by the organization. On two

occasions, Defendant took harvested marijuana from one grow house to another.

Diaz testified that Herman Torres recruited Defendant into the organization and

was responsible for paying him, but that the money ultimately came from Diaz.

DEA agents observed Defendant meeting with both Diaz and Herman Torres on

two occasions prior to Defendant’s arrest. Police found Defendant and another

man inside a house full of marijuana. Although Veronica Torres owned the house

and received mail at that address, Defendant set up the electricity in his name.

From this evidence, the jury could conclude Defendant was aware of Diaz’s larger

marijuana-growing operation.

                                          7
               Case: 10-14418     Date Filed: 08/09/2013    Page: 8 of 8


      Defendant responds by arguing that Diaz was not a credible witness, an

argument that misses the point. When determining whether a variance occurred,

we “view the evidence in the light most favorable to the government,” United

States v. Brown, 587 F.3d 1082, 1092 (11th Cir. 2009), and cannot disturb the

jury’s credibility determinations unless the testimony is “incredible as a matter of

law,” United States v. Flores, 572 F.3d 1254, 1263 (11th Cir. 2009) (quoting

United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997)). Testimony is

only incredible as a matter of law if it relates to “facts that the witness could not

have possibly observed or events that could not have occurred under the laws of

nature.” Id. (quoting Calderon, 127 F.3d at 1325). Diaz’s testimony, combined

with the other evidence in the case, allowed a reasonable jury to find Defendant

guilty of the charged conspiracy. Therefore, no material variance occurred.

      AFFIRMED.




                                           8
