The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10244 ELEVENTH CIRCUIT
JANUARY 20, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 06-00297-CR-T-23-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IVAN GONZALEZ-BEJARANO,
a.k.a. Ivan B. Gonzalez,
a.k.a. Flaco,
a.k.a. Ivan Gonzalez,
a.k.a. Omar,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 20, 2010)
Before DUBINA, Chief Judge, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Appellant Ivan Gonzalez-Bejarano (“Gonzalez”), through counsel, appeals
his convictions and sentences for conspiracy to import five kilograms or more of
cocaine into the United States, in violation of 21 U.S.C. §§ 952(a),
960(b)(1)(B)(ii), and 963; conspiracy to possess with intent to distribute five
kilograms or more of cocaine, which would be unlawfully imported into the United
States, in violation of 21 U.S.C. §§ 841, 959, 960(b)(1)(B)(ii), and 963; possession
with intent to distribute five kilograms or more of cocaine, in violation of 21
U.S.C. § 841 and 18 U.S.C. § 2; and importation of five kilograms or more of
cocaine into the United States, in violation of 21 U.S.C. §§ 952 and 960 and 18
U.S.C. § 2. On appeal, Gonzalez argues that the district court erred in denying his
motion for a judgment of acquittal because the evidence introduced by the
government at trial was insufficient to support his convictions. He also asserts that
the district court should have excluded testimony concerning Jimmie Lee Byrd’s
role in the conspiracy because it created a conflict of interest with one of his
attorneys at trial, who had previously represented Byrd. Next, Gonzalez contends
that the district court erred in imposing a two-level enhancement pursuant to
U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon. Finally, Gonzalez
argues that the district court should not have imposed a four-level role
enhancement for being a leader or organizer under U.S.S.G. § 3B1.1(a).
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I.
“We review de novo whether there is sufficient evidence in the record to
support a jury’s verdict in a criminal trial, viewing the evidence in the light most
favorable to the government, and drawing all reasonable factual inferences in favor
of the jury’s verdict.” United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir.
2009). Evidence is sufficient where “a reasonable trier of fact could find that the
evidence established guilt beyond a reasonable doubt.” Id. at 1284-85 (quotation
omitted). We will not disturb a jury’s credibility determinations unless it can be
shown that a witness’s testimony was incredible as a matter of law. United States
v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997), modified on other grounds by
United States v. Toler, 144 F.3d 1423 (11th Cir. 1998). Testimony is incredible as
a matter of law if it involves facts that the witness could not possibly have
observed, or events that could not have occurred under the laws of nature. Id. We
have explained that a judgment of acquittal is not mandated simply because “the
government’s case includes testimony by an array of scoundrels, liars and
brigands.” United States v. Hewitt, 663 F.2d 1381, 1385 (11th Cir. 1981)
(quotation omitted). The uncorroborated testimony of a single co-conspirator is
sufficient to support a conviction. United States v. Garcia, 405 F.3d 1260, 1270
(11th Cir. 2005).
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To convict a defendant of conspiracy, “the government must prove beyond a
reasonable doubt that (1) an illegal agreement existed; (2) the defendant knew of it;
and (3) the defendant, with knowledge, voluntarily joined it.” United States v.
McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001). The government may prove the
existence of an illegal agreement through circumstantial evidence, including
inferences drawn from the conduct of the individuals allegedly involved in the
scheme. United States v. Seher, 562 F.3d 1344, 1364 (11th Cir. 2009). “A
defendant is deemed to have knowledge of the illegal agreement if he was aware of
the primary purpose of the conspiracy.” Id.
In order to convict a defendant under 21 U.S.C. § 841, the government must
show that the defendant knowingly distributed or possessed with the intent to
distribute a controlled substance. See 21 U.S.C. § 841(a)(1); United States v.
Woodard, 531 F.3d 1352, 1360 (11th Cir. 2008). Intent to distribute can be proven
circumstantially from the quantity of drugs involved. United States v. Poole, 878
F.2d 1389, 1392 (11th Cir. 1989). In order to convict a defendant of importation of
controlled substances, the government must show by direct or circumstantial
evidence that the defendant knew that the controlled substances came from outside
the United States. United States v. Champion, 813 F.2d 1154, 1168 (11th Cir.
1987).
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Because we conclude from the record that the evidence presented at trial was
sufficient for a reasonable juror to conclude beyond a reasonable doubt that
Gonzalez was guilty with respect to all four counts in the indictment, we hold that
the district court did not err in denying Gonzalez’s motion for a judgment of
acquittal.
II.
We review a district court’s evidentiary rulings for an abuse of discretion.
United States v. Hands, 184 F.3d 1322, 1326 (11th Cir. 1999). Even if the district
court made an erroneous evidentiary ruling, we need not reverse the defendant’s
conviction if we conclude that the error was harmless. Id. at 1329. An evidentiary
error is harmless if it “had no substantial influence on the outcome and sufficient
evidence uninfected by error supports the verdict.” Id. (quotation omitted). We
have explained, in the context of ineffective-assistance-of-counsel claims, that an
actual conflict of interest occurs when a lawyer represents “inconsistent interests.”
Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir. 1999) (en banc). To establish
inconsistent interests, the defendant “must make a factual showing of inconsistent
interests or point to specific instances in the record to suggest an actual impairment
of his or her interests.” Id. (quotations omitted).
Here, Gonzalez has not shown that he and Byrd had inconsistent interests,
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nor has he explained how the asserted conflict of interest hindered his counsel’s
representation. In addition, Gonzalez has not asserted that his co-counsel,
Hernandez, faced a similar conflict of interest. Thus, there does not appear to be
any reason that Hernandez could not have handled the cross-examination of the
witnesses who mentioned Byrd in their testimony. Under these circumstances, we
conclude that the district court did not abuse its discretion in admitting testimony
concerning Byrd’s role in the conspiracy.
III.
We review the district court’s factual findings under U.S.S.G. § 2D1.1(b)(1)
for clear error, and its application of the Sentencing Guidelines to those facts de
novo. United States v. Pham, 463 F.3d 1239, 1245 (11th Cir. 2006). Section
2D1.1(b)(1) of the Sentencing Guidelines provides that a defendant’s base offense
level should be increased by two “[i]f a dangerous weapon (including a firearm)
was possessed.” A defendant’s sentence may be enhanced under § 2D1.1(b)(1)
based upon a co-conspirator’s possession of a firearm if the government can show
by a preponderance of the evidence that: “(1) the possessor of the firearm was a
co-conspirator, (2) the possession was in furtherance of the conspiracy, (3) the
defendant was a member of the conspiracy at the time of possession, and (4) the
co-conspirator possession was reasonably foreseeable by the defendant.” United
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States v. Gallo, 195 F.3d 1278, 1284 (11th Cir. 1999) (emphasis omitted). We
have recognized that it is “reasonably foreseeable that a co-conspirator would
possess a firearm where the conspiracy involved trafficking in lucrative and illegal
drugs.” Pham, 463 F.3d at 1246.
In this case, several witnesses testified that some of Gonzalez’s
co-conspirators possessed firearms in furtherance of the drug conspiracy. In
addition, the possession of firearms was reasonably foreseeable to Gonzalez
because the conspiracy involved tens of thousands of kilograms of cocaine.
Accordingly, we conclude that the district court did not clearly err in imposing a
two-level enhancement pursuant to § 2D1.1(b)(1).
IV.
We review for clear error a district court’s determination of a defendant’s
role in the offense. United States v. Gupta, 463 F.3d 1182, 1197 (11th Cir. 2006).
Section 3B1.1 of the Sentencing Guidelines provides that a defendant’s offense
level should be enhanced by four levels if he “was an organizer or leader of a
criminal activity that involved five or more participants or was otherwise
extensive.” U.S.S.G. § 3B1.1(a). There can be more than one individual who
qualifies as a leader or organizer of a criminal conspiracy. Id., comment. (n.4);
United States v. Vallejo, 297 F.3d 1154, 1169 (11th Cir. 2002) (“The defendant
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does not have to be the sole leader or kingpin of the conspiracy in order to be
considered an organizer or leader within the meaning of the Guidelines”). In
determining whether a defendant qualifies a leader or organizer, relevant factors
include:
(1) the exercise of decision making authority, (2) the nature of
participation in the commission of the offense, (3) the recruitment of
accomplices, (4) the claimed right to a larger share of the fruits of the
crime, (5) the degree of participation in planning or organizing the
offense, (6) the nature and scope of the illegal activity, and (7) the
degree of control and authority exercised over others.
Gupta, 463 F.3d at 1198 (quoting U.S.S.G. § 3B1.1, comment. (n.4)).
We conclude from the record here that the district court did not clearly err in
imposing a four-level enhancement for being a leader or organizer because the
evidence established that Gonzalez played a leading role in a large drug-trafficking
conspiracy.
Based on our review of the record and consideration of the parties’ briefs,
we affirm Gonzalez’s convictions and sentences.
AFFIRMED.
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