[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 09-13365 ELEVENTH CIRCUIT APRIL 29, 2010 Non-Argument Calendar JOHN LEY ________________________ CLERK
D. C. Docket No. 08-00228-CR-ORL-22KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMON GOITIA MORA, a.k.a. Moncho, JONATHAN MELENDEZ, a.k.a. Chulo, a.k.a. Rasta,
Defendants-Appellants.
________________________
Appeals from the United States District Court for the Middle District of Florida _________________________
(April 29, 2010) Before BLACK, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Ramon Goitia-Mora and Jonathan Melendez appeal from their convictions
for conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.
§ 846. On appeal, Goitia-Mora and Melendez argue that their convictions should
be reversed because they were not involved in a single conspiracy with Miguel
Montes, as alleged in the indictment. They argue that, instead, they were involved
in a separate conspiracy that was not charged in the indictment. Goitia-Mora and
Melendez contend that there was thus a material variance between the charge set
forth in the indictment and the evidence presented at trial. Melendez argues that
this material variance caused him substantial prejudice because he was unable to
challenge the evidence concerning Montes’s drug-trafficking activities. He
concedes, however, that the government provided him with all of its discovery
regarding Montes’s drug-trafficking activities. Goitia-Mora does not point to any
prejudice that he suffered as a result of the alleged material variance.
In addition, Melendez argues that his conviction should be reversed because
the evidence showed that he had only a buyer-seller relationship with Montes, as
opposed to a conspiratorial relationship. He also asserts that the district court erred
by failing to instruct the jury that, where the extent of the relationship between two
2 individuals is an agreement to buy and sell drugs, the evidence of this relationship,
standing alone, is insufficient to demonstrate the individuals were involved in a
conspiracy together.
For the reasons set forth below, we affirm.
I.
A federal grand jury charged the following defendants with conspiracy to
possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846:
(1) Melendez; (2) Goitia-Mora; (3) Omar Medina-Santiago; (4) Jose
Rosario-Oquendo; (5) Alberto Torres-Garrastequi; (6) Yahaira Cordero-Gonzalez;
(7) Alba Rivera; (8) Jessica Cruz; (9) Luis Cruz; (10) Jose Rodriguez;
(11) Edgardo Rivera-Ocana; and (12) Jorge Rivera.
At trial, Karl Weiss, a special agent employed by the Drug Enforcement
Administration, testified that he began an investigation into the present case in
August 2006, after U.S. postal inspectors learned that boxes containing cocaine
were being shipped from Puerto Rico into Orlando, Florida. In order to identify
the individuals responsible for these shipments, Weiss and other government
agents made controlled deliveries of the boxes to their intended recipients. The
agents then conducted surveillance to determine who ultimately took possession of
the boxes. During the investigation, the agents identified Miguel Montes as an
3 individual who was involved in the drug-trafficking activity. By monitoring
Montes’s telephone communications, the agents learned that Montes
communicated with Melendez and Goitia-Mora during 2007.
Cordero-Gonzalez testified that Melendez was in the business of importing
cocaine from Puerto Rico, and that she had agreed to assist Melendez by receiving
boxes of cocaine from Puerto Rico via mail. Cordero-Gonzalez and her roommate,
Alba Rivera, agreed to further assist Melendez by procuring additional delivery
addresses for the shipments of cocaine. Rivera recruited Maria Adames and other
individuals to receive boxes of cocaine on Melendez’s behalf. After the boxes
were delivered to various addresses, Cordero-Gonzalez ensured that they
ultimately were delivered to Melendez. On cross-examination, Cordero-Gonzalez
testified that she did not know Montes, and had never met him. She explained that
Melendez did not communicate with many of the people that she had recruited to
receive boxes, and that he instead preferred to communicate only with her, and let
her manage the individuals who had been recruited to receive boxes.
Next, various government agents and U.S. postal inspectors testified that,
while conducting surveillance in this case, they observed that boxes of cocaine
were delivered to Melendez’s associates at various locations, including the
following addresses in the Orlando area—7513 Rio Pinar, 5823-B Diego Street,
4 and 5740-B Shenandoah Way. Two of these witnesses testified that the boxes of
cocaine mailed to Melendez’s associates were packaged in the following manner:
one large “outer” box containing a smaller plastic box, with the smaller box
containing several kilograms of cocaine, as well as carbon paper, newspaper, and
dryer sheets.
Montes testified that he began importing cocaine from Puerto Rico into
Orlando, Florida, in 2005. He explained that, in order to ship cocaine, his
associates would place the cocaine in a small box. They would wrap the cocaine in
carbon paper and dryer sheets. They would then place the small box containing
cocaine into a larger box. Giorliana Cortijo assisted Montes by recruiting
individuals to receive the boxes of cocaine that were shipped from Puerto Rico.
Montes communicated with Cortijo rather than directly communicating with the
individuals.
Montes further testified that he knew Melendez and Goitia-Mora, but did not
know Alba Rivera or Cordero-Gonzalez. Montes would speak with Melendez
about the cocaine business, stating the following about the nature of their
conversations: “[T]wo people that are in the same business, you know, talk about
the business, you know, how things [are] going, this and that.” On anywhere
between 10 to 15 occasions, he supplied Melendez with cocaine on a credit basis,
5 whereby he would give cocaine to Melendez, and Melendez would pay him for the
cocaine after he resold it. On at least one occasion, Melendez likewise supplied
approximately two kilograms of cocaine to Montes on a credit basis. Goitia-Mora
often would serve as a courier of cocaine and money between Melendez and
Montes. Montes identified a notebook as a notebook that he had used to keep track
of various aspects of his drug-trafficking business. In this notebook, he and
Cortijo had recorded addresses that he used to receive shipments of boxes of
cocaine. These addresses included the following Orlando locations, among others:
(1) 5740-B Shenandoah Way, (2) 5823-B Diego Street, and (3) 7513 Rio Pinar.
The government played recordings of telephone conversations between
Montes and Melendez. In one of these conversations, Melendez and Montes
discussed the price of cocaine, and they also discussed the fact that there had been
complaints about the quality of a particular type of cocaine. In addition, Montes
informed Melendez that a box of cocaine that he had been expecting from Puerto
Rico was missing. Montes explained that the box was supposed to be delivered to
Adames. By checking with the shipping company, Montes knew that the package
had arrived in the United States and had been received by an individual. Adames,
however, denied receiving the box. When Montes informed Melendez of this
situation, Melendez offered to assist him in finding the missing box. Montes had
6 believed that the box was stolen, and ultimately called Adames and threatened to
kill her. The government next played a recording of a telephone conversation
between Montes and one of his associates in Puerto Rico, wherein the two
discussed the missing box of cocaine.
The government also played recordings of numerous June 2, 2007, telephone
conversations between Melendez, Montes, and Goitia-Mora. In these
conversations, they discussed a cocaine transaction, in which Montes would deliver
cocaine to Goitia-Mora, and Goitia-Mora would deliver the cocaine to Melendez.
In one of these conversations, which was between Melendez and Montes,
Melendez asked Montes to give him a discount of $200 on some cocaine so that he
could pay Goitia-Mora and still make a $500 profit. Regarding the transaction on
June 2, Montes explained that, when he delivered the cocaine to Goitia-Mora, he
understood that Melendez would sell the cocaine to customers and then pay him
for the cocaine. Additional telephone conversations between Melendez and
Montes reflected that they would discuss the price and quality of the cocaine that
was generally available in the narcotics trade, and would tease each other in a
friendly manner.
On cross-examination, Montes testified that, in his view, he and Melendez
ran separate drug-trafficking organizations. Montes knew that Melendez received
7 packages of cocaine from Puerto Rico, but did not know who acted as Melendez’s
source of cocaine in Puerto Rico. He and Melendez had separate cocaine suppliers.
He and Melendez did not share profits with each other. Goitia-Mora did not run
errands for Montes, and Montes did not pay Goitia-Mora. Montes communicated
with Goitia-Mora only when Goitia-Mora acted as a courier between himself and
Melendez. Apart from Goitia-Mora, Montes did not know who was in Melendez’s
drug-trafficking organization.
On redirect examination, Montes testified that, between January and June of
2007, he sold approximately 50 kilograms of cocaine to Melendez, at prices
ranging between $18,000 to $21,000 per kilogram. Thus, he received
approximately $1,000,000 from Melendez during this 6-month period.
Ray Schulte, an agent employed by the Orange County Sheriff’s Office,
testified that, on May 31, 2007, he observed that a package of cocaine was
delivered to Adames. The officers monitored telephone calls between Montes and
Adames on that day and, as result, the officers were concerned about Adames’s
safety. On cross-examination, Schulte testified that, based on the telephone
conversations that he monitored on May 31, he believed that the box of cocaine
that was missing belonged only to Montes and did not belong to Melendez. He
further testified that his concern for Adames’s safety on May 31 had nothing to do
8 with Melendez.
After the government rested its case, Melendez moved for a judgment of
acquittal under Fed.R.Crim.P. 29, arguing that the government failed to prove that
a single conspiracy existed, as charged in the indictment. He argued that the
evidence showed that he and Montes ran separate drug organizations. Melendez
asserted that, to the extent that Adames or any other individual served both
organizations as a cocaine recipient, this overlap was incidental, and did not occur
due to any agreement between himself and Montes. Melendez further pointed out
that he and Montes had separate cocaine suppliers and did not share profits. He
argued that the extent of the relationship between his and Montes’s organizations
was a buyer-seller relationship, where each organization occasionally purchased
cocaine from the other organization.
Goitia-Mora joined in Melendez’s motion, arguing that the variance between
the single conspiracy charged in the indictment and the evidence presented at trial
was so material that it had substantially prejudiced him. Goitia-Mora argued that
the jury would not be able to differentiate between the two conspiracies that
actually existed, and would likely transfer the guilt attributable to parties in
Montes’s group to parties in Melendez’s group. Melendez argued that the material
variance between the indictment and the evidence presented at trial prejudiced him
9 because the government introduced evidence of Montes’s threats of violence
against Adames over the missing cocaine shipment. He asserted that this evidence
pertained only to Montes and the separate conspiracy with which Montes was
involved, and that he thus had not been able to challenge this evidence adequately.
The court denied Melendez’s and Goitia-Mora’s Rule 29 motions, finding
that there was sufficient evidence to permit the jury to decide whether they were
involved in a single conspiracy with Montes, as alleged in the indictment. The
parties had a charge conference, but it is not clear from the transcript whether they
discussed a buyer-seller jury instruction. While Melendez referred to his proposed
jury instructions during the charge conference, which he apparently had filed with
the court at an earlier date, the record does not contain Melendez’s proposed jury
instructions.
In his closing argument, Melendez argued to the jury that the evidence
demonstrated that there had been two separate conspiracies—one among the
members of Montes’s group and another among the members of his
group—instead of a single conspiracy, as charged in the indictment. Melendez
further argued to the jury that, in the event that they did not find that a single
conspiracy existed, they were required to acquit him. In his closing statement,
Goitia-Mora asserted substantially the same argument. In its jury instructions, the
10 court explained to the jury that the defense’s theory was that the government had
failed to prove that they were involved in a single conspiracy with Montes, as
charged in the indictment. The court also instructed the jury that, if they found that
the single conspiracy alleged in the indictment did not exist, they were required to
acquit Melendez and Goitia-Mora. The court did not give a buyer-seller jury
instruction. The jury found Melendez and Goitia-Mora guilty of the conspiracy
charge set forth in the indictment.
II.
We will not reverse a conviction on the ground that a single conspiracy was
alleged in the indictment, while multiple conspiracies were proven at trial, unless
the variance between the charged conspiracy and the evidence presented at trial is
material, and the material variance prejudiced the defendant. United States v.
Richardson, 532 F.3d 1279, 1284 (11th Cir. 2008), cert. denied, 129 S.Ct. 950
(2009). We need not decide whether a jury reasonably could have found that a
single conspiracy existed where it is apparent that the defendant cannot
demonstrate substantial prejudice. United States v. Starrett, 55 F.3d 1525, 1553
(11th Cir. 1995).
In order to determine whether there is a material variance, we examine
whether sufficient evidence supports the jury’s verdict that a single conspiracy
11 existed. Richardson, 532 F.3d at 1284. If the evidence, as viewed in the light most
favorable to the government, supports the jury’s determination that a single
conspiracy existed, then there is not a material variance between the indictment and
the evidence presented at trial. Id. In considering whether a jury reasonably could
have found that a single conspiracy existed, it is necessary to consider the
following factors: “(1) whether a common goal existed; (2) the nature of the
underlying scheme; and (3) the overlap of participants.” Id. (quotation omitted).
The common goal element is defined “as broadly as possible.” Id. at 1285.
“[C]ommon . . . means similar or substantially the same, rather than shared or
coordinate.” Id. (quotation omitted). Regarding the third prong of the test, there
need not be an overlap among all of the participants, and that the co-conspirators
need not know of each other in order to be involved in the same conspiracy. Id.
at 1285-86. Moreover, “[i]f a defendant’s actions facilitated the endeavors of other
co-conspirators, or facilitated the venture as a whole, a single conspiracy is
established.” Id. at 1284 (quotation omitted).
Even if there is a material variance between the conspiracy charged in the
indictment and the evidence presented at trial, a defendant must demonstrate that
he was substantially prejudiced by this variance in order to obtain the reversal of
his conviction. Id. at 1286. In order to demonstrate that he was substantially
12 prejudiced by a material variance between the indictment and the evidence
presented at trial, a defendant must show either that: (1) he was unfairly surprised
by the evidence presented at trial, and thus was unable to prepare an adequate
defense; or (2) there were so many defendants and separate conspiracies that there
was a substantial likelihood that the jury would transfer the proof of one
conspiracy to a defendant involved in another conspiracy. Id. at 1286-87. It is the
defendant’s burden to demonstrate prejudice. See United States v. Calderon, 127
F.3d 1314, 1328 (11th Cir. 1997) (holding that, even if we were to conclude that
there was a material variance, it would be “incumbent” on the defendant to
demonstrate that the variance substantially prejudiced him). We have held that,
where a case involved 11 defendants and 2 possible conspiracies, the case was “not
so complex by definition that the jury [would] be unable to segregate the evidence
properly.” United States v. Caporale, 806 F.2d 1487, 1501 (11th Cir. 1986).
Here, viewing the evidence in the light most favorable to the government,
there was sufficient evidence to permit the jury to conclude that Melendez and
Goitia-Mora were involved in the single conspiracy alleged in the indictment. The
evidence demonstrated that Melendez, Goitia-Mora, Montes, and their associates
shared the common goal of importing cocaine from Puerto Rico into the Orlando
area in order to resell it for a profit. In addition, the evidence showed that the
13 nature of the underlying scheme was substantially the same among Montes and his
associates and Melendez and his associates. Both Melendez and Montes imported
cocaine from Puerto Rico, albeit from different suppliers. The boxes of cocaine
that Melendez and Montes received were packaged in a substantially similar
manner. In addition, both Melendez and Montes hired at least one individual to
arrange for the safe delivery of the cocaine packages by procuring delivery
addresses and managing the individuals who took delivery of the boxes.
Finally, there was sufficient evidence of overlapping participants between
the two organizations to support the jury’s verdict. Melendez and Montes assisted
each other by supplying each other with cocaine on a credit basis, and Goitia-Mora
assisted both Melendez and Montes by carrying cocaine and money between them.
Adames received cocaine on behalf of both Melendez and Montes. In addition, the
evidence also showed that some of the addresses used by Melendez to receive
cocaine shipments were also used by Montes for the same purpose. Thus, despite
the fact that the record contained evidence that Melendez and Montes operated
separate drug organizations, the jury still reasonably could have found that
Melendez and Goitia-Mora were involved in a single conspiracy with Montes.
Moreover, even if we were to conclude that the jury could not have
reasonably found that a single conspiracy existed, Goitia-Mora’s and Melendez’s
14 convictions would still be due to be affirmed because they have not demonstrated
substantial prejudice. Goitia-Mora does not point to any evidence of prejudice in
his brief on appeal. Melendez concedes, in his brief on appeal, that the
government provided him with all of its discovery related to Montes’s drug
trafficking. Throughout the trial proceedings, neither Melendez nor Goitia-Mora
indicated that they were unfairly surprised by the government’s evidence. Rather,
defense counsel for both parties thoroughly cross-examined the evidence
introduced by the government, including Montes’s testimony concerning his
importation and distribution of drugs. While Melendez asserts that the evidence
concerning Montes’s threats of violence against Adames was prejudicial, defense
counsel established, during cross-examination of Montes and Agent Schulte, that
Melendez was not involved in this incident.
In addition, while Melendez argues that the evidence of Montes’s
drug-trafficking activities must have confused the jury, this case involves only 2
defendants and 2 possible conspiracies, and we have held that a case involving 11
defendants and 2 conspiracies is not so complex as to prejudice a defendant by
confusing a jury. See Caporale, 806 F.2d at 1501. Moreover, Melendez’s and
Goitia-Mora’s claims of prejudice are further undermined by the fact that they both
focused on single-conspiracy arguments in their closing statements, and the district
15 court clearly instructed the jury that, if it found that there were multiple
conspiracies instead of the single conspiracy charged in the indictment, it must
acquit Melendez and Goitia-Mora. Accordingly, even if there was a material
variance, Goitia-Mora and Melendez cannot demonstrate that this variance caused
them substantial prejudice.
III.
We review de novo the issue of whether the evidence is sufficient to support
the jury’s determination that individuals entered into a conspiracy. United States v.
Mercer, 165 F.3d 1331, 1333 (11th Cir. 1999). There is a “critical distinction
between a conspiratorial agreement and a buyer-seller transaction.” Id. at 1335. In
a buyer-seller relationship, the parties come to an agreement, but the agreement
amounts to the mere exchange of drugs for money. Id. This type of transaction “is
simply not probative of an agreement to join together to accomplish a criminal
objective beyond that already being accomplished by the transaction.” Id.
(quotation omitted). In other words, “[w]here the buyer’s purpose is merely to buy
and the seller’s purpose is merely to sell, and no prior or contemporaneous
understanding exists between the two beyond the sales agreement, no conspiracy
has been shown.” Id. (quotation omitted).
On the other hand, a jury may infer that a conspiratorial relationship exists
16 between two parties to a drug transaction where “the evidence shows a continuing
relationship that results in the repeated transfer of illegal drugs to the purchaser.”
Id. Thus, we have held that there was sufficient evidence of a conspiracy where
the defendant purchased cocaine from the same supplier on a credit basis on
several occasions, the supplier knew that the defendant was reselling the cocaine
for a profit, and the defendant helped the supplier arrange for a shipment of
cocaine. United States v. Beasley, 2 F.3d 1551, 1560-61 (11th Cir. 1993). This
evidence demonstrated that the relationship between the supplier and the defendant
was “far more than merely a buyer-seller relationship.” Id. at 1560.
Here, the evidence showed that Melendez’s and Montes’s relationship went
beyond that of mere buyer and seller. Montes testified that he sold cocaine to
Melendez on a credit basis on anywhere between 10 to 15 occasions. During these
transactions, he sold approximately 50 kilograms of cocaine to Melendez in
exchange for approximately $1,000,000. Melendez also sold approximately two
kilograms of cocaine to Montes on a credit basis. When discussing the price of
cocaine with Montes, Melendez asked that Montes give him a discount so that
Melendez could make a larger profit from the cocaine. In addition, in their
telephone conversations, Melendez and Montes discussed the state of the cocaine
market in general. In one conversation, Melendez offered to help Montes recover a
17 missing cocaine shipment. Because Melendez and Montes transacted in cocaine
with each other on over ten occasions, supplied each other with large quantities of
cocaine on a credit basis, and discussed profit margins and the state of the cocaine
market in general, the jury reasonably could infer that they sold each other cocaine
with the knowledge that it would be resold at a profit to other consumers.
Accordingly, Melendez’s argument that the district court should have granted his
motion for a judgment of acquittal because he and Montes had only a buyer-seller
relationship lacks merit.
IV.
We review a district court’s failure to give a requested jury instruction for
abuse of discretion. United States v. Gomez, 164 F.3d 1354, 1355-56 (11th Cir.
1999). The buyer-seller jury instruction is based upon the law that, where the
extent of the relationship between two individuals is an agreement to buy and sell
narcotics, this evidence does not demonstrate that the two individuals were in a
conspiracy together. See Beasley, 2 F.3d at 1560-61. This instruction is not
appropriate where two individuals frequently deal in large quantities of narcotics.
Gomez, 164 F.3d at 1356.
It is unclear whether Melendez has preserved this argument properly for
appeal, as the record does not include his proposed jury instructions, and the
18 transcript of the charge conference does not clearly indicate whether the parties
discussed the buyer-seller jury instruction. In any event, we need not decide this
issue because Melendez’s argument lacks merit regardless of the standard of
review. As discussed above, the evidence did not demonstrate that Melendez and
Montes had merely a buyer-seller relationship, and, as a result, the buyer-seller
jury instruction was not warranted.
AFFIRMED.