U.S. v. Garcia, No. 03-10350.

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Per Curiam
• Citation: 405 F.3d 1260
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Rolando GARCIA, Leonardo Antonio Enriquez-Valdes, a.k.a. Leo, Alberto Artires, Enicio Mercado, Defendants-Appellants.
• Docket Number: No. 03-10350.
• Decision Date: 13 April 2005

405 F.3d 1260 UNITED STATES of America, Plaintiff-Appellee,
v.
Jose Rolando GARCIA, Leonardo Antonio Enriquez-Valdes, a.k.a. Leo, Alberto Artires, Enicio Mercado, Defendants-Appellants. No. 03-10350. United States Court of Appeals, Eleventh Circuit. April 13, 2005.

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Gennaro Cariglio, Jr. (Court-Appointed), Law Office of Gennaro Cariglio, Jr., Sheryl Joyce Lowenthal (Court-Appointed), Mark Graham Hanson, (Court-Appointed), Miami, FL, Richard L. Rosenbaum (Court-Appointed), Law Offices of Richard L. Rosenbaum, Ft. Lauderdale, FL, for Defendants-Appellants.

Jeanne Marie Mullenhoff, Anne R. Schultz, U.S. Atty., Jonathan D. Colan, Gerald E. Greenberg, Miami, FL, for Plaintiff-Appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and RESTANI^*, Judge.

PER CURIAM:

We withdraw our previous opinion issued on March 22, 2005, and replace it with this opinion.

This appeal arises out of the convictions and sentences of appellants Jose Rolando Garcia, Leonardo Antonio Enriquez-Valdes, Alberto Artires, and Enicio Mercado. After a twelve day trial, a jury found these four appellants guilty of conspiracy to manufacture and possess with intent to distribute 100 or more marijuana plants in violation of 21 U.S.C. § 846. Garcia, Valdes and Artires were also convicted for maintaining a place for the purpose of manufacturing marijuana in violation of 21 U.S.C. § 856(a)(1). Additionally, the jury found Valdes and Artires guilty of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1).¹

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On appeal, the appellants contend that the district court made a variety of errors, including: (1) the denial of appellants' motions seeking judgment of acquittal on insufficiency of the evidence grounds; (2) the admission of improper and irrelevant evidence; (3) the denial of joint motions for mistrial or, in the alternative, severance based on the alleged improper and prejudicial closing argument of counsel for Valdes; (4) the rejection of Garcia's proposed jury instruction for accessory after the fact; (5) at sentencing, the denial of Valdes's motion for a reduction in sentence pursuant to U.S.S.G. § 5C1.2, the "safety-valve" provision; and (6) at sentencing, the court's finding that Alberto Artires was responsible for over 300 marijuana plants when the jury specifically found that he was not involved in more than 100 marijuana plants.²

As to the convictions and sentences of Garcia and Mercado, we find no error and affirm. As to Valdes and Alberto Artires, we affirm their convictions, but vacate the judgments and remand for re-sentencing.

I. FACTUAL BACKGROUND

This case involves a network of marijuana grow houses, both active and dismantled, located throughout South Florida. During the course of the government investigation, which spanned over a period of one and one-half years, agents searched and investigated at least twelve residences located in and near Miami.³

In May of 2000, the FBI received a confidential tip that Yovanni Espinosa was operating a grow house in an efficiency apartment behind a house located at 15604 N.W. 37th Avenue in Opa Locka, Florida. Upon executing a search warrant at this location on June 19, 2000, agents discovered a fully functioning marijuana grow house with 104 marijuana plants plus additional decomposing plants. The subject apartment had a high-voltage lighting system, a self-contained irrigation and fertilization system, Mylar-covered walls, and large air conditioning units. The agents also discovered miscellaneous photographs at the residence. One photograph was a picture of a group of men, including co-defendants Alberto Artires, Felipe Suarez, Enicio Mercado, Javier Rey, and Pedro Pablo Aldao. Another picture depicted a house numbered "8504" and what appeared to be the same vehicle as a vehicle located at the house being searched.

On June 20, 2000, the agents searched Espinosa's property located at 2968 Northwest 87th Terrace in Miami, Florida. At this address, the agents met Aldao and discovered 48 mature marijuana plants that had been harvested and were hanging to dry. Additionally, agents found 47 immature marijuana plants, marijuana seedlings

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in starter trays, two live mother plants, and equipment used to hydroponically grow marijuana.

On June 21, 2000, at Espinosa's 15604 N.W. 37th Avenue residence, the agents seized a photograph containing a sports utility vehicle, which they later determined was registered to co-defendant Felipe Suarez. Upon searching Suarez's residence located at 8504 Sheraton Drive, Miramar, Florida⁴ that same day, agents found decomposing marijuana material, paraphernalia for growing marijuana, and a bedroom that appeared to have been equipped to grow marijuana, but had been dismantled.

Having received confidential information while at 8504 Sheraton Drive, the agents immediately searched 8545 Long Acre Drive in Miramar, Florida. After Mario Artires, the brother of Alberto Artires, consented to the search, the agents discovered 90 marijuana plants and marijuana cultivation paraphernalia in a bedroom that had been converted into a grow lab.

On June 23, 2000, in response to information from a confidential source, the agents searched a home at 9290 S.W. 149th Street, Miami, Florida, the home of Reynaldo Artires, brother of Alberto and Mario Artires. There, agents found marijuana cultivation materials and a dismantled grow house in Reynaldo's garage, but did not find any marijuana plants. After noticing that Reynaldo's driver's license listed 1165 W. 33rd Street, Hialeah, Florida, as his address instead of the home being searched, the agents immediately continued to that address. At 1165 W. 33rd Street, the agents met Garcia, who told them that he was renting the house from Reynaldo. The agents did not find anything in the residence, but a police dog alerted them to potential contraband in an efficiency apartment adjoining the house and a white van parked in the driveway. In the apartment, the agents discovered marijuana cultivation materials, marijuana leaves, and a dismantled grow house. Notably, two fingerprints on the Mylar film covering the walls in the apartment matched the fingerprints of Garcia. Additionally, the white van, which was registered to Garcia, contained a plastic starter tray, five-gallon buckets, PVC piping, and other materials that the agents had observed in other grow houses during the investigation of this conspiracy.

On July 5, 2000, agents searched 3092 N.W. 15th Street, Miami, Florida. Espinosa had previously lived at this address until it was purchased by Suarez. Upon the arrival of the agents, the current tenant, Javier Rey, an indicted co-conspirator who pled guilty prior to trial, consented to the search. At 3092 N.W. 15th Street, the agents discovered a dismantled grow house and marijuana cultivation materials. On July 10, 2000, agents searched a home located at 11601 S.W. 9th Court in Pembroke Pines, Florida. There, the agents met Julio Artires, who rented the home. The following day, agents seized items such as an air handler, fluorescent lights, a cooler, and a digital scale from the residence.

Approximately nine months later, on April 6, 2001, the agents searched 3129 N.W. 13th Avenue, Miami, Florida after receiving a tip from an industrial gas vendor. There, the agents found a plastic tray filled with 17 bags of processed marijuana, unused rock wool, PVC piping, ceramic grow rocks, and a scale. In one of the bathrooms of the residence, holes had been drilled into the ceiling and the window was sealed with Mylar film and duct tape. That day agents also searched

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1285-87 N.W. 28th Street, Miami, Florida, where they again found marijuana cultivation paraphernalia.

Five months later, on September 26, 2001, the agents searched 8600 N.W. 30th Road, Miami, Florida. At this residence, the agents met Valdes. In a small apartment at the rear of the residence, the agents found a fully-functioning grow house with 117 marijuana plants. Approximately three surveillance cameras were mounted on the roof of the small apartment. The wires for this surveillance system ran from the apartment into the main residence. The agents recovered fingerprints that matched Mercado's fingerprints from the Mylar film found in the apartment. According to the electricity records, Valdes was the subscriber for both the apartment and the main residence.

On October 17 and 18, 2001, agents searched 15601 N.W. 39th Court, Opa Locka, Florida, an address for which Alberto Artires was listed as the subscriber on the electricity records. Alberto Artires consented to the search. There, agents found marijuana cultivation paraphernalia, several nursery trays with marijuana leaves in them, and small amounts of marijuana residue.

In addition to the physical evidence and testimony of the agents, government witnesses including co-conspirators Manual Horta, Espinosa, Aldao, and Hernando Hernandez testified against appellants at trial. The government's key witness was Espinosa, who pled guilty prior to trial. He testified that within a year of moving to Florida from Cuba, he began assisting with marijuana cultivation. Initially, Espinosa and others, including indicted co-conspirators Alberto, Mario, and Reynaldo Artires, would assist Hernandez, an unindicted co-conspirator, maintain grow houses and clip marijuana plants, including 33 plants grown at 1600 N.W. 28th Avenue in Miami, Florida.

Espinosa also testified that since moving to Florida, he has lived in four houses with Suarez. With the help of Mercado and Alberto, Mario, and Reynaldo Artires, Suarez and Espinosa grew crops of approximately 40 to 44 marijuana plants at one house. At another house, Suarez, Mercado, and Espinosa grew three crops of 30 marijuana plants,...