            Case: 13-13207   Date Filed: 03/07/2014   Page: 1 of 5


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13207
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 3:12-cr-00125-MMH-JRK-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee


                                   versus



FRANK FREITAS HIGGINBOTHAM,

                                                          Defendant-Appellant.

                       ________________________

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


                              (March 7, 2014)

Before HULL, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
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      After a jury trial, Frank Higginbotham appeals his conviction for conspiracy

to manufacture five or more grams of methamphetamine, in violation of 21 U.S.C.

§§ 841(b)(1)(B), 846. On appeal, Higginbotham argues that the district court

erred in denying his motion for a judgment of acquittal. Higginbotham contends

that the trial evidence was insufficient to find beyond a reasonable doubt that a

conspiratorial agreement existed between him and any other person. After review,

we affirm.

      We review the denial of a motion for a judgment of acquittal and the

sufficiency of the evidence de novo. United States v. Hunt, 526 F.3d 739, 744

(11th Cir. 2008). The standard is the same whether the evidence is direct or

circumstantial. United States v. Utter, 97 F.3d 509, 512 (11th Cir. 1996). Under

Federal Rule of Criminal Procedure 29(a), the district court, “on the defendant’s

motion[,] must enter a judgment of acquittal of any offense for which the evidence

is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). We will affirm the

conviction “if, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Hunt, 526 F.3d at 745.

      Under 21 U.S.C. § 841(a), it is unlawful for a person “knowingly or

intentionally . . . to manufacture . . . a controlled substance,” such as

methamphetamine. 21 U.S.C. § 841(a)(1). To obtain a conspiracy conviction, the


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government must prove: (1) an agreement between the defendant and one or more

persons, (2) the object of which is to do either an unlawful act or a lawful act by

unlawful means, in this case, to manufacture methamphetamine. See United States

v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005). “[T]he government need not

demonstrate the existence of a formal agreement, but may instead demonstrate by

circumstantial evidence a meeting of the minds to commit an unlawful act.”

United States v. Toler, 144 F.3d 1423, 1426 (11th Cir. 1998) (quotation marks and

citation omitted).

      To prove participation in a conspiracy, the government must have proven

beyond a reasonable doubt that a conspiracy existed and that the defendant

knowingly and voluntarily joined the conspiracy. Garcia, 405 F.3d at 1269. The

government does not need to prove that the defendant knew all of the details or

participated in every aspect of the conspiracy, but must prove that the defendant

“knew the essential nature of the conspiracy.” Id. at 1269-70 (quotation marks

omitted). Whether the defendant “knowingly volunteered to join the conspiracy

may be proven by direct or circumstantial evidence, including inferences from the

conduct of the alleged participants or from circumstantial evidence of a scheme.”

Id. at 1270.

      Here, the district court did not err in denying Higginbotham’s motion for a

judgment of acquittal because there was ample circumstantial evidence that


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Higginbotham conspired with several other people to manufacture

methamphetamine. Specifically, Jennifer Woodruff testified that Higginbotham

was one of a group of people who manufactured methamphetamine in the back

bedroom of a house in St. Augustine, Florida and that the group shared equipment

and supplies. In addition, Woodruff testified that she supplied Higginbotham with

pseudoephedrine pills that he used to manufacture methamphetamine. Woodruff

explained that she bought pills for Higginbotham because a person is restricted to

buying only three boxes of pills per month and must show identification at the

pharmacy. In exchange for providing the pills, Woodruff received a portion of the

methamphetamine Higginbotham made. Woodruff also drove other people to the

pharmacy to purchase pseudoephedrine pills for Higginbotham, and she sometimes

delivered the pseudoephedrine pills that these individuals obtained to

Higginbotham.

      Anna Marie Buell testified that she, like Woodruff, gave Higginbotham

pseudoephedrine pills in exchange for receiving methamphetamine from

Higginbotham. In addition, Buell said that Higginbotham and his girlfriend,

Heather Kelly, cooked methamphetamine at Buell’s home in Hastings, Florida.

Higginbotham and Kelly shared supplies and equipment with Buell and her

boyfriend, who also cooked methamphetamine in the home.




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      This evidence, viewed in the light most favorable to the prosecution, amply

supports a jury finding beyond a reasonable doubt that Higginbotham agreed to

manufacture methamphetamine with multiple individuals, including Woodruff,

Buell, and Kelly, among others. To the extent Higginbotham challenges the

credibility of Woodruff’s and Buell’s testimony, credibility determinations are the

province of the jury and must be accepted unless the testimony was incredible as a

matter of law. See United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir.

1997). The jury in this case clearly found both witnesses credible, and

Higginbotham has not shown that their testimony is incredible as a matter of law.

Accordingly, the district court did not err in denying Higginbotham’s Rule 29(a)

motion for a judgment of acquittal.

      AFFIRMED.




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