United States v. Yaima Gonzalez , 294 F. App'x 527 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 24, 2008
No. 07-15435 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00040-CR-1-SPM-AK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YAIMA GONZALEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(September 24, 2008)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Yaima Gonzalez appeals her convictions for conspiring to manufacture,
distribute, and possess with intent to manufacture and distribute more than 1,000
marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii), and 846,
and manufacturing and possessing with intent to distribute more than 100
marijuana plants, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(vii) and 18
U.S.C. § 2.
At trial evidence reflected that Gonzalez was an owner and resident of the
property upon which marijuana plants were found. She made admissions
regarding the existence of the marijuana growing enterprise to Drug Enforcement
Administration agent Wayne Andrews, to which he testified at trial. Co-
defendants Roberto Valle and Lorenzo Valera also testified against her, implicating
her directly in the enterprise.
On appeal, Gonzalez argues that her convictions should be overturned
because of the admission of some testimony from Agent Andrews and because the
government impermissibly vouched for the testimony of government witnesses and
co-conspirators, Valle and Valera when they testified about their plea agreements.
We review a district court’s evidentiary rulings for abuse of discretion.
United States v. Westry, 524 F.3d 1198, 1214 (11th Cir. 2008), petition for cert.
filed, (no. 08-5343) (July 15, 2008). We review alleged Confrontation Clause
violations for harmless error. United States v. Ndiaye, 434 F.3d 1270, 1286 (11th
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Cir. 2006). However, arguments not presented to the district court are reviewed for
plain error. See United States v. Brown, 526 F.3d 691, 704 (11th Cir. 2008),
petition for cert. filed, (no. 08-5564) (July 28, 2008). To show such error, the
appellant must establish “(1) error (2) that is plain and (3) affects [his] substantial
rights.” Id. Essentially, the appellant must show that the error seriously affected
the fairness, integrity, or public reputation of the judicial proceeding. Id. In the
district court, Gonzalez neither objected to any of the testimony that she now
challenges, nor raised any of the arguments she now advances. Accordingly, our
review is for plain error.
Considering this record, including the testimony indicating her ownership,
residence, possession of the marijuana plants and incriminating statements, we find
no reversible error. Gonzalez argues that Andrews’ testimony constituted hearsay,
impermissible opinion testimony and violated the Confrontation Clause and the
rules of evidence. She further argues that Andrews’s conclusion regarding her
knowledge of the conspiracy was an opinion and violated Fed.R.Evid. 704(b).
Finally, she argues that the use of Andrews as a fact and opinion witness resulted
in the jury giving undue weight to his testimony. The essence of Andrews’s
testimony established the background of the investigation’s commencement and
relayed what Gonzalez herself told him during questioning. It did not violate
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Fed.R.Evid. 704(b). As to the testimony from Roberto Valle and Lorenzo Valera,
we find no reversible error in Gonzalez’ claim that the government improperly
elicited testimony concerning their plea agreements and sentencing reductions and
improperly ensured the truthfulness of their testimony. Prosecutors are not
prohibited from entering a plea agreement into evidence for the jury’s
consideration. United States v. Castro, 89 F.3d 1443, 1457 (11th Cir. 1996). We
have held that questioning regarding plea agreement requirements regarding
truthfulness and the possibility of perjury charges to be proper. Id. Where a
prosecutor questions witnesses regarding the truth-telling portions of their plea
agreement or brings out the fact that the agreements stated they were subject to
perjury penalties, the prosecutor is not vouching. United States v. Cano, 289 F.3d
1354, 1365-66 (11th Cir. 2002). The government’s questioning of Valle and Valera
did not constitute impermissible vouching as questions pertaining to the
requirement to be truthful and the penalties for perjury are permissible. We do not
find plain error. Moreover, having found no reversible error, there is no
cumulative error.
AFFIRMED.
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