[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT November 15, 2004 No. 03-14723 THOMAS K. KAHN ________________________ CLERK
D. C. Docket No. 02-21057 CR-FAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAHZIEL PINEIRO,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida _________________________
(November 15, 2004) (As Amended January 7, 2005)
Before HULL and MARCUS, Circuit Judges, and HANCOCK*, District Judge.
MARCUS, Circuit Judge:
* Honorable James H. Hancock, United States District Judge for the Northern District of Alabama, sitting by designation. The opinion issued on November 15, 2004 is hereby corrected and
substituted with the following:
Jahziel Pineiro appeals his convictions, arising from a jury verdict, for one
count of conspiracy to manufacture marijuana plants, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B)(vii), 846; one count of maintaining a place for the purpose
of manufacturing marijuana, in violation of 21 U.S.C. § 856 and 18 U.S.C. § 2;
and two counts of possession of a firearm and ammunition by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). Pineiro argues that the district
court erred by denying his pre-trial motion to suppress, and that the evidence was
insufficient to support his drug-related convictions. We affirm.
I.
The relevant facts and procedural history are these. On April 25, 2003, by
superseding indictment, Pineiro was charged with: beginning in or about February
2002 and continuing through on or about December 13, 2002, conspiring to
manufacture 100 or more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B)(vii), 846 (Count I); manufacturing 100 or more marijuana plants, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii) (Count II); maintaining a place
for the purpose of manufacturing marijuana, in violation of 21 U.S.C. § 856(a)(1)
and 18 U.S.C. § 2 (Count III); possession of a firearm in furtherance of a drug
2 trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count IV);
possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§
922(g)(1), 924(a)(2) (Count V); and possession of ammunition by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count VI). The
indictment also included a forfeiture count.
Prior to trial, Pineiro moved to suppress evidence seized and statements
made in connection with a warrantless search of his property, arguing that: the
police lacked probable cause to search his home without a warrant; any consent he
gave was involuntary; the search exceeded the scope of such consent; he was not
given Miranda1 warnings; and his statements were coerced.
At an evidentiary hearing on Pineiro’s motion to suppress, the magistrate
judge considered the following testimony. FBI Special Agent Martin Pettit stated
that, in October 2002, he received information about a marijuana-growing
operation at multiple locations in Miami, Florida. His subsequent investigation
led to surveillance of a house located at 16001 S.W. 98th Avenue (“16001
House”). During surveillance at this location, Agent Pettit observed Pineiro’s
black Chevy Tahoe sports utility vehicle (“SUV”), which had white lettering on
the side, parked outside. He subsequently obtained a warrant to search the 16001
1 Miranda v. Arizona, 384 U.S. 436, 458-71, 86 S.Ct. 1602, 1619-26, 16 L.Ed.2d 694 (1966).
3 House. During his search on December 12, 2002, Pettit discovered a fully
functional marijuana grow site on the premises. Also at the 16001 House, the
agents encountered Lazaro Vazquez, who denied knowing Pineiro2 and who was
subsequently arrested. In the course of his investigation of the 16001 House,
Pettit learned that two other homes were associated with this location. Based on
this information, four special agents went to the next house associated with the
16001 House, this one at 25768 S.W. 123rd Court (“25768 House”), where they
encountered Pineiro.
Prior to obtaining Pineiro’s consent to search the 25768 House, the agents
spoke with Pineiro’s parents and brother, all of whom lived directly across the
street from the 25768 House. After Special Agent Pettit told the family he wished
to speak with Pineiro, Pineiro’s brother phoned him and, about 45 minutes later,
Pineiro arrived in a van. The agents approached the van and identified
themselves. They were armed, but their weapons were concealed. They told
Pineiro they wanted to look around the 25768 House. Pineiro agreed, but stated
he wanted to secure his dog before the agents entered the house.
2 We have no occasion to look at the admissibility of Vazquez’s statement, either at the suppression hearing or at the subsequent trial, because no error has been raised on appeal.
4 After Pineiro secured the dog in the garage, he walked with the agents
through the house. Special Agent Pettit testified that Pineiro never indicated that
he did not want the agents to enter his house, nor did he limit the scope of their
search. Pineiro refused to sign a consent-to-search form, but verbally consented to
the search. According to Agent Pettit, Pineiro moved the dog from the garage to
permit agents to search the garage. During the search of the premises, Special
Agent Pettit observed a partially dismantled grow room in one of the bedrooms, a
marijuana plant in the backyard, and marijuana leaves on the floor throughout the
house. The other agents found drug paraphernalia in the laundry room and more
marijuana leaves and clippings concealed in garbage bags in the garage. In the
house, specifically, the agents discovered construction debris, buckets, potting
soil, clipping scissors, leaf fragments of suspected marijuana, a ballast or
transformer used to power grow lights, a scale and tray used for weighing drugs,
and a three-sided box or “hood” used for growing marijuana. In the kitchen,
agents found a picture of Pineiro standing alongside trays of growing marijuana
plants and holding a “bong” -- a device used to smoke marijuana. Finally, in the
garage, the agents also found PVC pipes commonly used as irrigation tubes in
hydroponic marijuana grow operations.
5 Agent Pettit read Pineiro his Miranda rights and questioned him. Pineiro
signed a Miranda-rights waiver form and informed Pettit he had moved into the
house on November 16, 2002, and admitted that the plants and drugs in the house
belonged to him. When Pettit informed Pineiro of the search at the 16001 House
on the prior day, Pineiro explained that the 16001 House belonged to his cousin
(Vazquez). Pineiro, who described himself to Agent Pettit as a “pot-head,”
initially denied having any weapons and claimed the marijuana was not his, but
that it had been in the house when he moved in. He later recanted and told Pettit
he had constructed the apparatus in the dismantled grow room to cultivate
marijuana. He also later directed agents to a gun case. The agents then asked
Pineiro for permission to search his van and Pineiro consented, after which the
agents found more marijuana leaves and planting materials in the van.
In support of his motion to suppress, Pineiro testified he had been living at
the 25768 House for only two weeks when he was arrested. He stated that agents
asked to “look around,” but did not indicate that they wished to search his home.
According to Pineiro, he thought the agents would only walk through his house,
but would not open things and look everywhere. Pineiro also claimed he was not
advised of his Miranda rights until after he was questioned and arrested.
6 The magistrate judge recommended denying the motion to suppress. Based
on the testimony at the evidentiary hearing, the magistrate judge concluded that
Pineiro gave consent to search and that his consent was voluntary. The magistrate
judge observed that there was no evidence the agents used any force or threats to
secure the consent. The magistrate judge further found that law enforcement
officers advised Pineiro of his rights, but were not required to inform him he had
the right to refuse consent. Over Pineiro’s objections, the district court adopted
the recommendation and denied the motion to suppress.
At trial, Special Agent Pettit presented testimony that was, in all material
respects, consistent with the testimony he provided at the suppression hearing. He
described for the jury the special agents’ recovery of the following evidence at the
16001 House, the fully functional grow house where Pineiro’s cousin and co-
conspirator, Vazquez, was arrested: 131 marijuana plants in growing trays;
fluorescent light fixtures (commonly used in marijuana grow houses for its ability
to provide a broad spectrum of light but a low level of heat); and multiple strips of
rockwool (a soil substitute commonly used in hydroponic marijuana grow houses).
The next day, when the agents conducted a search of the 25768 House, they
discovered the following evidence indicating, in Pettit’s opinion, that the house
was a dismantled grow house: a high-pressure cylinder and safety cap (used to
7 store carbon dioxide during the grow process); buckets and potting soil; clipping
scissors; PVC pipes (commonly employed as irrigation tubing for hydroponic
marijuana cultivation); leaf fragments of marijuana; a ballast or transformer (used
to power “grow lights”); a scale and tray (for weighing drugs); a foil-backed
insulation board; and strips of rockwool. Pettit also discovered a three-sided box,
which was a home-made “hood,” used to grow marijuana. In one of the bedrooms,
Pettit testified that construction debris littered the floor and that the door had been
removed from the hinges. An air-conditioning unit was sitting on the floor and a
container of potting soil, and soil itself, were observed on the floor of this
bedroom. After Pineiro also consented to a search of his van parked outside,
agents found similar materials inside.
Pettit then described the third house searched, this one on December 13,
2002 right after completion of the search at the 25768 House. The third house was
located at 20535 Marlin Road (“Marlin Road House”) and owned by Vazquez,
who had been arrested in connection with the search of the 16001 House on the
previous day. At this house, the agents found another active grow site and
recovered 194 marijuana plants.
Pettit, who had investigated over 20 dismantled or fully functional grow
houses during his career, opined that the operations at the Marlin Road House
8 were “very similar to” the operations at the 16001 House. More specifically, Pettit
described the following equipment -- similar to materials he had seen just the day
before at both the 16001 House and the 25768 House: the same style and type of
fluorescent lightbulbs used in the operation of hydroponic grow houses; blocks of
rockwool; rows of ballasts; and a foil-backed insulation board. In the Marlin Road
House, in one of the rooms that had been equipped for hydroponic growing, Pettit
saw, as he had also seen in the 25768 House, an extra air conditioning unit, which,
he explained, served to cool the room and balance the higher temperature given
out by the fluorescent lighting. Notably, during the search of the Marlin Road
House, Pettit observed that Pineiro’s phone number appeared twice on the “caller
i.d.” unit. These calls took place on December 4 and 5, 2002 (during the charged
time period for the conspiracy), which was within the week prior to Pineiro’s and
Vazquez’s arrests.
In addition to Pettit’s testimony, the government presented testimony from
neighbors to two of the houses (the Marlin Road and 25768 Houses). Lance
Rafford testified that his mother lived across the street from the Marlin Road
House and that he had seen a black SUV with white lettering at the Marlin House
on three or four occasions during 2002. That same year, Artavius Williams, who
9 lived in the house directly behind the 25768 House noticed that bright lights
remained on at all times of the day and night at that house.
Rosa Millon-Roque, the owner of the 16001 House and, thus, both Pineiro’s
and Vazquez’s landlord during the relevant time period, testified that she rented
the house for a one-year term to Pineiro, starting in February 2002. On or about
February 13, 2002, Pineiro filled out a lease application, listing the 25768 House
as his current address. According to Millon-Roque, when he applied to rent the
house, Pineiro asked how often she planned to visit the property, and she informed
him that she never visited her rented properties. She noted, however, that when
she later decided to refinance the property and the appraiser wished to visit the
house, Pineiro told her that he did not want someone coming to the house when he
was not at home. On November 20, 2002 (during the period of the conspiracy),
Pineiro phoned Millon-Roque and indicated he wanted to break the lease. Millon-
Roque replied that she would try to find another renter immediately. Later that
same day, Pineiro called Millon-Roque and said he had found a friend who wanted
to rent the house and had the money to make the three required payments. He
indicated that this friend, who, as it turned out, was Vasquez, “knows the house.”
Six days later, Vasquez moved into the residence after signing a new lease, the
term of which included the two-month period remaining on the lease Pineiro had
10 broken. During Millon-Roque’s testimony, the government introduced lease
documents associated with Vazquez’s rental of the 16001 House, including,
notably, his lease application on which he listed Pineiro as a reference.
At the end of the government’s case-in-chief, Pineiro moved for judgment
of acquittal on all counts. The court denied the motion as to Counts I, III, V, and
VI, but granted the motion on Counts II (manufacturing 100 or more marijuana
plants) and IV (possession of a firearm in furtherance of a drug trafficking
offense).
In his defense, Pineiro called three witnesses. First, his father, Hugo,
testified that he lived across the street from the 25768 House. According to Hugo,
Pineiro lived at the 25768 House for about two weeks, having moved from the
16001 House before he was arrested. Hugo visited the 16001 House and never
observed any drugs. Pineiro’s second witness, Corey Blue, testified that he too
lived near the 25768 House and that he took odd jobs as a handyman. He stated
that he helped Pineiro repair and clean the 25768 House after Pineiro bought the
house in November, approximately three weeks before the arrest. According to
Blue, the previous tenants left the house dirty and filled with trash and other
debris. He testified that he had been working with Pineiro to clean the house for
11 about three weeks and that he had worked for five days each of those weeks. Blue
stated he never saw any drugs or guns in the house.
Finally, Pineiro’s wife, Jacqueline, testified that she and her husband moved
into the 25768 House in November 2002, and that the house needed a lot of
maintenance work. According to Jacqueline, she and her husband had previously
rented the 25768 House for a year, prior to moving to the 16001 House, which
they rented for a year before moving back to the 25768 house after purchasing it.
She admitted that her husband smoked marijuana, but claimed she never saw any
marijuana growing in the house. Jacqueline also testified, as Pineiro had stated to
Pettit during the search of the 25768 House, that Vazquez was Pineiro’s cousin.
The jury subsequently found Pineiro guilty of Counts I, III, V, and VI.
After the verdict, Pineiro moved for a new trial, arguing that the evidence was
insufficient to show a conspiracy or that he maintained a place for the purpose of
manufacturing marijuana. The district court summarily denied the motion.
At sentencing, based on an adjusted offense level of 20, a criminal history
category III, and the 60-month statutory minimum mandatory on Count I, see
U.S.S.G. § 5G1.1(b),3 the district court sentenced Pineiro to a 60-month term of
3 Section 5G1.1(b) provides: “ Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.” U.S.S.G. § 5G1.1(b).
12 imprisonment on each count, to run concurrently, four years of supervised release,
and a $100 special assessment as to each count. This appeal followed.
II.
A.
First, Pineiro argues that the district court erred by denying his motion to
suppress evidence seized at the 25768 House because the agents conducted a
warrantless search without his consent, or, alternatively, any consent he gave was
involuntary, as he was not advised of his right to refuse consent. Pineiro also
challenges the admissibility of statements he made after Special Agent Pettit
advised him of his Miranda rights. He argues that any incriminating statements
were coerced and taken in violation of Miranda.
Based on our careful review of the record, including the transcript of the
suppression hearing, we are satisfied that the government established, by a
preponderance of the evidence, both that Pineiro consented to the search at the
25768 House and that his consent was voluntary. See United States v. Blake, 888
F.2d 795, 798 (11th Cir. 1989) (“The government bears the burden of proving both
the existence of consent and that the consent was not a function of acquiescence to
a claim of lawful authority but rather was given freely and voluntarily.”) (citation
omitted). Special Agent Pettit testified that Pineiro led investigators on a tour of
13 his home and that he cooperated with their search efforts. His cooperation
included moving his dog into the garage and then into the yard to enable the
agents to enter. The agents first identified themselves and explained the purposes
of their search. And, although at least four agents entered Pineiro’s home and the
agents were armed, no one had a gun drawn and the guns were not visible.
Pineiro presented no evidence to show that there was anything inherently
coercive in the search. Moreover, in denying the motion to suppress, the
magistrate judge found Pettit’s testimony that Pineiro verbally consented to the
search to be more credible than Pineiro’s version of the events. Such a credibility
finding is within the province of the factfinder. United States v. Ramirez-Chilel,
289 F.3d 744, 749 (11th Cir. 2002), cert. denied, 537 U.S. 1114 (2003). On
appeal, Pineiro has not shown clear error in the trial court’s factual findings, which
this Court will not reverse “unless it is contrary to the laws of nature, or is so
inconsistent or improbable on its face that no reasonable factfinder could accept
it.” See id. (citation omitted). In short, viewing the totality of the circumstances,
the district court properly concluded that Pineiro consented to the search and that
his consent was voluntary.4
4 To the extent Pineiro suggests that the police were required to be more specific in advising him of his rights, and were required to tell him he had a right to refuse consent, this Court has squarely rejected this argument. See United States v. Zapata, 180 F.3d 1237, 1242 (11th Cir. 1999)
14 The district court also did not err by denying Pineiro’s motion to suppress
his inculpatory statements based on Miranda. Again, according to Pettit, he
informed Pineiro of his rights before questioning. Other than his own version of
the events, Pineiro presented no evidence to the contrary in the district court. See
Ramirez-Chilel, 289 F.3d at 749 (“[I]n evaluating the factual version of events
between the law enforcement officers and [the defendant], we should defer to the
[court’s] determinations unless [its] understanding of the facts appears to be
‘unbelievable.’”). The magistrate judge found that Pettit’s testimony was more
credible than Pineiro’s contradictory testimony. On this record, the district court
did not clearly err in its factual findings, nor did it incorrectly apply the law to the
facts. See United States v. Goddard, 312 F.3d 1360, 1362 (11th Cir. 2002),
cert. denied, 538 U.S. 969 (2003).
B.
In reviewing Pineiro’s challenges to the sufficiency of the evidence to
support his convictions on Counts I and III, we apply a de novo standard of
review, but resolve all reasonable inferences in favor of the jury’s verdict. See
United States v. Rudisill, 187 F.3d 1260, 1267 (11th Cir. 1999). The evidence is
(finding that the failure to inform the suspect that he had the right to refuse consent would not invalidate otherwise valid consent) (citation omitted).
15 sufficient so long as a reasonable trier of fact, choosing among reasonable
interpretations of the evidence, could find guilt beyond a reasonable doubt.
United States v. Lluesma, 45 F.3d 408, 409-10 (11th Cir. 1995). Indeed, a verdict
of guilty cannot be disturbed if there is substantial evidence to support it, “unless
no trier of fact could have found guilt beyond a reasonable doubt.” United States
v. Lyons, 53 F.3d 1198, 1202 (11th Cir. 1995) (citation omitted).
As for the sufficiency of the evidence, Pineiro first argues that the record
was insufficient to support his conviction for maintaining a place for the purpose
of manufacturing marijuana because the government did not establish when the
dismantled grow house was functional (i.e., before or after he purchased and
moved into the house), or when it had been dismantled. He urges that the
government’s evidence showed only that he bought the house a few weeks before
his arrest and that he had been cleaning and repairing the house from the previous
owner’s mess.5
5 To the extent that Pineiro asserts that the indictment’s language, “on or before December 13, 2002,” permitted the government to go back in time indefinitely to when there was a functioning grow house at the 25768 House, his argument is unpersuasive. Not only did he fail to raise this issue in the district court in connection with the indictment, but the government’s evidence at trial was consistent with the language of the indictment: the evidence showed that the 25768 House contained a functioning grow house while under Pineiro’s ownership.
16 To convict under § 856, a jury must find “that the defendant (1) knowingly,
(2) operated or maintained a place, (3) for the purpose of manufacturing,
distributing, or using any controlled substance.” United States v. Clavis, 956 F.2d
1079, 1090 (11th Cir. 1992). Thus, “[t]he offense requires two mental elements,
knowledge and purpose. The purpose element applies to the person who is charged
with maintaining the place for the illegal activity. It is not sufficient that others
possess the requisite purpose.” Id.
Here, there was an abundance of evidence from which a trier of fact,
choosing among reasonable interpretations of the evidence, could find, beyond a
reasonable doubt, that Pineiro was guilty of knowingly maintaining a place for the
purpose of manufacturing marijuana. Again, Special Agent Pettit testified that
during the search of the 25768 House, the agents recovered green leafy material
(which later tested positive as marijuana), clipping scissors, pots, potting soil,
potting containers, ballasts, grow lights, a foil-backed insulation board, rockwool,
and construction debris -- all of which are consistent with equipment and materials
used in grow houses. Pettit also said that Pineiro admitted to constructing the
grow areas. Moreover, agents found a picture of Pineiro standing alongside trays
of growing marijuana plants and holding a bong. Finally, neighbor Williams said
that he could smell marijuana coming from the 25768 House between January and
17 June 2002 and that he had observed lights on at the house at all hours of the day
and night. On the basis of this evidence, alone, the government established
beyond a reasonable doubt the elements required to convict under § 856.
Pineiro’s theory of defense at trial, like his argument on appeal, is that the
evidence seized during the search of the 25768 House, including the dismantled
grow house, belonged to the prior tenant and not him. Although Pineiro presented
testimony that would support this theory of the case, the jury was free to reject (as
it did) the defense explanation of the evidence and find Pettit and Williams more
credible. Indeed, on this record, the jury reasonably also could have inferred that
Pineiro maintained the grow house from the fact that Pineiro lived in the house
containing tools, trash, and leaves connected to a grow house, both within the
house and in its garage. Moreover, Special Agent Pettit testified that Pineiro
confessed to ownership of the grow materials, although he later recanted the
admission. This too satisfied the government’s burden to establish a knowing and
intentional violation of § 856.
We are likewise unpersuaded by Pineiro’s challenge to the sufficiency of the
evidence to support his conspiracy conviction, although this is a closer question.
“To support a conspiracy conviction, the government must prove ‘(1) an
agreement between the defendant and one or more persons, (2) the object of which
18 is to do either an unlawful act or a lawful act by unlawful means.’” United States
v. Smith, 289 F.3d 696, 706 (11th Cir. 2002) (citation omitted). The government
must prove that “a conspiracy existed, that the defendant knew of it, and that
defendant, with knowledge, voluntarily joined it.” United States v. Ryan, 289
F.3d 1339, 1346 (11th Cir. 2002). The government may show participation in the
conspiracy by circumstantial evidence, if not by direct evidence, United States v.
Anderson, 326 F.3d 1319, 1329 (11th Cir. 2003) (citing Lyons, 53 F.3d at 1198),
and it need prove only that Pineiro knew the general nature and scope of the
conspiracy. United States v. Clark, 732 F.2d 1536, 1539 (11th Cir. 1984)
Pineiro primarily challenges the government’s evidence as to the first
requirement -- an illegal agreement between the defendant and one or more
conspirators. Pineiro claims that the government showed only that he knew
Vazquez, but failed to establish that Vazquez was ever present at the 25768
House, had ever called the 25768 House, or had any connection to the house.
Pineiro also asserts that the government did not sufficiently connect him (Pineiro)
to the drugs found at the 16001 House or the Marlin Road House, both of which
Vazquez owned or occupied during the charged time period of the conspiracy
(beginning in or about February 2002 and continuing through on or about
December 13, 2002). We disagree.
19 Not only did numerous witnesses testify that Pineiro knew Vazquez, but the
government also presented evidence that the two men were cousins. Moreover,
when Vazquez moved into the 16001 House, he listed Pineiro as a reference on his
lease application. And, when Pineiro sought to break his lease early at that house,
he was able to produce Vazquez to sign a new lease (that would include the two-
month term left on Pineiro’s lease) on the very day he informed Millon-Roque of
his intent to vacate the house early. He even told her that the new tenant “knew
the house.” Indeed, only three weeks later, on December 12, 2002, the agents
searched the 16001 House, just recently vacated by Pineiro and then occupied by
his cousin Vazquez, and discovered a substantial marijuana growing operation.
The government also presented testimony that an SUV generally matching
the description of Pineiro’s vehicle was parked in front of both the Marlin Road
and 16001 Houses during the charged period of the conspiracy (again, beginning
in or around February 2002 and continuing through on or about December 13,
2002). During his October 2002 surveillance of the 16001 House, where he
subsequently executed a search warrant and arrested Vazquez, Special Agent Pettit
observed a black Chevy Tahoe SUV with “custom rims.” The SUV Pettit saw had
advertising on its side“with the wording of a yacht repair business . . . Atlantics . .
. Motor Yacht Maintenance and Repair,” which is the name of the company
20 Pineiro owned. Neighbor Rafford testified to seeing, three or four times in 2002, a
black SUV that he thought had “chrome rims” and “white lettering . . . about some
kind of driving school” parked outside of the Marlin Road House, which, it was
undisputed, was owned by Vazquez. Moreover, when Vazquez signed the lease at
the 16001 House, he also owned the Marlin Road House. And, as we have noted,
during a search of the Marlin Road House, police observed Pineiro’s phone
number twice on the “caller i.d.” unit. Both calls were placed during the week
prior to the search and within the time frame of the conspiracy.
In addition to the abundant evidence establishing a close personal
relationship between Vazquez and his cousin Pineiro, notably a relationship that
Vazquez denied when he was arrested at the 16001 House by claiming he did not
even know Pineiro, Special Agent Pettit testified at length about the substantial
similarities between the dismantled grow house at the 25768 House and the
existing grow houses at the 16001 House and Marlin Road House. Simply put, the
houses associated with both Pineiro and his cousin Vazquez contained the same
materials, including: fluorescent lighting, extra air conditioning units, buckets and
pots, planting soil and related materials, foil-backed boards for light enhancement,
extra vents and fans for cooling, and rockwool material. The similarity between
the dismantled grow house under Pineiro’s control and the two operational grow
21 houses under Vazquez’s control, all within the time period alleged in the
indictment, is further circumstantial evidence of an illegal agreement to work
together to manufacture marijuana.
It is well-settled that the “existence of an agreement in a conspiracy case is
rarely proven by direct evidence that the conspirators formally entered or reached
an agreement. . . . The more common method of proving an agreement is through
circumstantial evidence.” United States v. Morales, 868 F.2d 1562, 1574 (11th
Cir. 1989). Indeed, “[b]ecause the crime of conspiracy is ‘predominantly mental
in composition,’ it is frequently necessary to resort to circumstantial evidence to
prove its elements.” United States v. Toler, 144 F.3d 1423, 1426 (11th Cir. 1998)
(quoting United States v. Shabani, 513 U.S. 10, 16, 115 S. Ct. 382, 386, 130 L. Ed.
2d 225 (1994)). Thus, it is not enough to discard a jury’s finding of a conspiracy
simply because the government did not present direct evidence of an illegal
agreement. We also look to the weight of circumstantial evidence before
undertaking the severe remedy of overturning a jury verdict. After undertaking a
thorough review of this record, we cannot say that no trier of fact could find guilt
beyond a reasonable doubt. See Lyons, 53 F.3d at 1202. Based on all of the
evidence, a reasonable jury could have found an illegal agreement between the
cousins, Pineiro and Vazquez, to manufacture marijuana.
AFFIRMED.