The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 1, 2009
No. 07-15741 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-20374-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ENRIQUE ALVAREZ,
Defendant-Appellant.
________________________
No. 07-15835
Non-Argument Calendar
________________________
D. C. Docket No. 07-20374-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AMELIA GIL,
Defendant-Appellant.
________________________
No. 07-15836
Non-Argument Calendar
________________________
D. C. Docket No. 07-20374-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIRIAM GIL,
Defendant-Appellant.
_________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(July 1, 2009)
Before MARCUS, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Enrique Alvarez, Miriam Gil, and Amelia Gil were convicted of violating 21
U.S.C. §§ 841(a)(1) and 846, which prohibit conspiring to possess with intent to
distribute 1,000 or more marijuana plants. This is their consolidated appeal.
Alvarez, who proceeded to a bench trial, appeals his conviction. Miriam and
Amelia, who pled guilty, appeal their sentences. For the reasons that follow, we
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affirm Alvarez’s conviction and Miriam’s and Amelia’s sentences. We address
each defendant’s appeal in turn.
I. E NRIQUE A LVAREZ
Alvarez appeals the district court’s denial of his motion for judgment of
acquittal. He argues that the evidence insufficiently supported a finding that the
government proved the indicted drug quantity. Instead, he argues, he should have
been convicted of the lesser-included offense involving more than 100 but fewer
than 1000 marijuana plants.
The applicable standard of review is sufficiency of the evidence. United
States v. Jackson, 544 F.3d 1176, 1186 n.14 (11th Cir. 2008) (per curiam), cert.
denied, 129 S. Ct. 1925 (2009). Under that standard, we review de novo the denial
of the motion for judgment of acquittal, “draw all reasonable inferences in favor of
the government[,] and determine whether a reasonable factfinder could conclude
that the evidence established the defendant's guilt beyond a reasonable doubt.” Id.
(citation and quotation marks omitted). “We will not reverse a conviction for
insufficient evidence in a non-jury trial unless, upon reviewing the evidence in the
light most favorable to the government, no reasonable trier of fact could find guilt
beyond a reasonable doubt.” United States v. Schaltenbrand, 930 F.2d 1554, 1560
(11th Cir. 1991) (citation omitted). We review the district court's bench trial
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findings of fact for clear error. O'Ferrell v. United States, 253 F.3d 1257, 1265
(11th Cir. 2001).
Here, the district court used two calculation methods to determine that
Alvarez’s offense involved at least 1,000 marijuana plants, each time erroneously
counting marijuana clones as plants. Under the first method, however, the court
calculated 1,002 plants before counting any of the clones. That first calculation
reflects the court’s apparent acceptance of the government’s theory that Alvarez
was involved in the conspiracy for at least six ninety-day growing cycles, each of
which produced 167 plants. Since a reasonable factfinder could conclude that the
evidence supporting the government’s theory established Alvarez’s guilt beyond a
reasonable doubt, we affirm Alvarez’s conviction.
II. M IRIAM G IL
A. Brady1 and Jencks Act2 Violations
Miriam argues that the district court made erroneous Brady or Jencks Act
rulings in three instances. In the first instance, Miriam moved to preclude
Wilfredo Cabrera del Sol and Roberto Valle from testifying and to strike Juan
Carlos Castellanos’s testimony because the government had not provided required
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Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
2
18 U.S.C. § 3500(b).
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disclosures. The district court denied Miriam’s motion. It concluded that the
Supreme Court decisions requiring such disclosures were inapplicable because the
government called these witnesses to rebut the defendant’s safety-valve statement.
The district court’s ruling appears to be erroneous, at least insofar as it ruled
that Brady is inapplicable to sentencing hearings. See Chandler v. Moore, 240
F.3d 907, 915–16 (11th Cir. 2001) (considering the merits of defendant’s claim of
a Brady violation during his resentencing hearing). However, we need not address
the propriety of the court’s ruling because Miriam does not show, or even argue,
that the material she sought met the criteria for a Brady disclosure. See United
States v. Hansen, 262 F.3d 1217, 1234 (11th Cir. 2001) (per curiam) (setting forth
criteria for a Brady claim).3
In the second instance, Miriam moved, under the Jencks Act, for production
of the safety-valve statement that Valle had submitted in another case and for a
portion of the PSI from that case. The district court denied the motion. It found
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[T]o state . . . a [Brady] claim, a defendant must show (1) that the
government possessed evidence favorable to the defendant (including
impeachment evidence) . . . ; (2) that the defendant does not possess
the evidence nor could he obtain it himself with any reasonable
diligence . . . ; (3) that the prosecution suppressed the favorable
evidence . . . ; and (4) that had the evidence been disclosed to the
defense, a reasonable probability exists that the outcome of the
proceedings would have been different.
Hansen, 262 F.3d at 1234 (citation and quotation marks omitted).
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that disclosure was not required because Miriam had already pled guilty, and Valle
was called only to rebut assertions that Miriam made in her safety-valve statement.
This ruling also appears to be erroneous. The Jencks Act applies at
sentencing hearings, and Valle was called by, and testified on direct examination
for, the government. F ED. R. C RIM. P. 32. Again, however, the propriety of the
court’s ruling is irrelevant because Miriam does not show, or even argue, that the
documents she sought were “statements” under the meaning of the Jencks Act, or
that they were related to the subject matter of Valle’s testimony.
In the third instance, Miriam moved, under both Brady and the Jencks Act,
for production of debriefing notes taken by law enforcement agents who
interviewed Valle about his case. But these notes, as Miriam’s attorney confirmed,
had been turned over to the defense. Therefore, the record does not support
Miriam’s contention that the district court erroneously denied her motion for
production of these notes.
Because Miriam has not shown that she was denied access to any material
that she was entitled to receive, we find no reversible error in the district court’s
Brady and Jencks Act rulings. Although the record contains other references to
required disclosures, the Jencks Act, and Brady, Miriam has abandoned any
challenge to those by not addressing them plainly and prominently in her appellate
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brief. See United States v. Jernigan, 341 F.3d 1273, 1284 n.8 (11th Cir. 2003)
(noting that a claim that is not “plainly and prominently” indicated is abandoned on
appeal, even if properly preserved).
B. Safety Valve
Miriam further argues that the district court clearly erred by determining that
her safety-valve statement did not truthfully reveal her involvement in the offense.
“When reviewing the denial of safety-valve relief, we review for clear error a
district court's factual determinations. We review de novo the court's legal
interpretation of the statutes and sentencing guidelines.” United States v. Johnson,
375 F.3d 1300, 1301 (11th Cir. 2004) (per curiam) (citations omitted). The
defendant has the burden of proving her eligibility for safety-valve relief. Id. at
1302.
The Sentencing Guidelines provide for sentencing without regard to any
statutory minimum ("safety valve") when specific requirements are met. U.S.
S ENTENCING G UIDELINES M ANUAL § 5C1.2(a) (2008). To qualify for safety-valve
relief, the defendant must “truthfully disclose to the Government all information
and evidence that [s]he has about the offense and all relevant conduct.” Johnson,
375 F.3d at 1302 (citation and quotation marks omitted). "[I]t is the offense for
which the defendant is convicted that determines the scope of information which
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the defendant must disclose." Id. (citation omitted). In a conspiracy case, the
defendant is required to provide "all the information that [s]he possesses about
[her] involvement in the offense, including information relating to the involvement
of others and to the chain of the narcotics distribution." United States v. Cruz, 106
F.3d 1553, 1557 (11th Cir. 1997) (citation omitted).
We reject Miriam’s challenges to the district court’s finding that her safety-
valve statement failed to comply with §5C1.2(5)’s “tell-all” requirement.
Although the government did not prove that Miriam possessed a gun in furtherance
of her drug activities, details surrounding the recovery of her firearms were an
important part of this case. The record supports the district court’s finding that
Miriam was misleading about this. She stated that she did not know where the gun
was and that she did not help the agents find it. However, a Drug Enforcement
Administration agent rebutted her statements by testifying that Miriam told him
exactly where the gun was. Thus, the record supports the district court’s finding
that Miriam failed to comply with the “tell-all” requirement. We affirm the court’s
denial of safety-valve relief.
III. A MELIA G IL
A. Brady and Jencks Act Violations
Amelia adopts by reference Miriam’s argument that the district court
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unfairly impeded her defense by making various procedural errors, including
erroneous rulings under Brady and the Jencks Act. See F ED. R. A PP. P. 28(i)
(allowing an appellant to adopt by reference a portion of another party’s brief).
Since Miriam fails to establish that the district court committed any Brady or
Jencks Act errors that would require a remand, so does Amelia.
B. Safety Valve
Amelia further argues that the district court clearly erred by denying her
safety-valve relief based on Castellanos’s testimony. We disagree. The district
court credited some portions of Castellanos’s testimony and discreded others. The
court’s credibility determinations were within its discretion as a factfinder. United
States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002).
The district court’s finding that Amelia’s safety-valve statements were
inadequate is supported by the record. The court considered three specific
examples. First, the court determined that Amelia was involved in the operation by
2002 or 2003 and that her statement was incorrect to the extent she asserted that,
before 2005, she was only generally aware of Feliciano Castillo’s and Miriam’s
activities. The court’s factual finding regarding the date of Amelia’s involvement
was not clearly erroneous given Castellanos’s testimony that, on several occasions
in 2002 or 2003, Amelia cut marijuana plants and was present during conversations
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about the business.
Second, the court determined that Amelia’s statement was incorrect
regarding a conversation she had with Castellanos and Castillo about marijuana
activities. Castellanos testified that the conversation occurred in 2003, but Amelia
denied participating in it. Again, given Castellanos’s testimony, the court’s finding
that Amelia was not truthful on this point was not clearly erroneous.
Third, the court determined that Amelia’s statement was inadequate because
her direct testimony failed to state that Castellanos set up lights for Castillo.
Amelia’s testimony regarding Castellanos’s activities with Castillo was internally
inconsistent: on cross-examination, she testified that Castellano did “nothing” with
Castillo; on rebuttal, she testified that Castellano set up the electrical board, and
that Castillo shared this plan with her beforehand; and on cross-examination for
her rebuttal, she testified that she did not know that Castellanos set up the board
until after the fact.
To be sure, the district court was mistaken when it stated that Amelia was
asked on direct what did Castellanos do when he came over. The court correctly
noted, however, that Amelia did not discuss Castellanos’s involvement on direct
examination at all. Given the internal inconsistencies in her testimony regarding
Castellanos’s involvement, and considering the court’s warning that her testimony
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at sentencing should constitute the entirety of her safety-valve statement, the record
supports the court’s finding that her statement was inadequate on this point.
Finally, although Amelia asserts that the court erroneously found that she
recruited Castellanos, her assertion is not supported by the record, as the court
found that Miriam brought Castellanos to the houses. Thus, the record supports the
district court’s determination that Amelia’s safety-valve statement did not meet the
requirements of the “tell-all” provision. We affirm the court’s denial of safety-
valve relief.
IV. C ONCLUSION
After carefully reviewing the record and the parties’ briefs, we find no
reversible error. We affirm Alvarez’s conviction and Miriam’s and Amelia’s
sentences.
AFFIRMED.
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