United States v. Yulexy Hernandez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-15056 ELEVENTH CIRCUIT
MAY 6, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00021-CR-T-23-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YULEXY HERNANDEZ,
JORGE REYES RUEDA,
Defendants-Appellants,
ROBERTO ORTIZ, SR.,
ROMELIO EVORA,
ROBERT ORTIZ, JR.,
JESUS SOSA-GONZALEZ,
Defendants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(May 6, 2009)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
After a jury trial, Yulexy Hernandez and Jorge Reyes Rueda appeal their
convictions for conspiracy to manufacture more than 100 but no more than 999
marijuana plants, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B)(vii). The
defendants argue that there is insufficient evidence to show that they participated in
the marijuana growing conspiracy.1
“[T]he elements of the offense of conspiracy under 21 U.S.C. § 846 are: (1)
an agreement between the defendant and one or more persons, (2) the object of
which is to do either an unlawful act or a lawful act by unlawful means.” United
States v. Toler, 144 F.3d 1423, 1426 (11th Cir. 1998). The government must prove
that the defendant knew of the conspiracy and voluntarily participated in it. United
States v. Guerra, 293 F.3d 1279, 1285 (11th Cir. 2002); see also Toler, 144 F.3d at
1428. Because a conspiracy is predominantly a mental crime, circumstantial
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We review a challenge to the sufficiency of the evidence de novo, viewing the evidence
in the light most favorable to the government. United States v. Toler, 144 F.3d 1423, 1428 (11th
Cir. 1998). All reasonable inferences and credibility determinations are drawn in favor of the
government. United States v. Ellisor, 522 F.3d 1255, 1271 (11th Cir. 2008). “‘Because we
recognize that the jury is free to choose between or among the reasonable conclusions to be
drawn from the evidence presented at trial, . . . sufficiency review requires only that a guilty
verdict be reasonable, not inevitable, based on the evidence presented at trial.’” Id. (quoting
United States v. Browne, 505 F.3d 1229, 1253 (11th Cir. 2007)). We will affirm a guilty verdict
unless no reasonable trier of fact could have found guilt beyond a reasonable doubt. Toler, 144
F.3d at 1428.
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evidence is frequently necessary to prove its elements, including participation.
Toler, 144 F.3d at 1426; see also United States v. Pineiro, 389 F.3d 1359, 1368
(11th Cir. 2004). “Although mere association with conspirators and mere presence
at the scene of a crime do not in themselves establish participation in a criminal
conspiracy, a jury may properly consider both in conjunction with one another and
with other facts to infer knowing and intentional participation.” United States v.
Brantley, 68 F.3d 1283, 1288 n.4 (11th Cir. 1995). This Court has considered a
close personal relationship between cousins operating similar grow houses to be
evidence supporting a finding of voluntary participation in the conspiracy. See
Pineiro, 389 F.3d at 1368-69.
“The government must show an ‘interdependence’ among the alleged co-
conspirators . . . as opposed to a series of smaller, uncoordinated conspiracies.”
Toler, 144 F.3d at 1426. Yet the government is not required to prove that every
alleged conspirator knew every detail about the conspiracy or that each defendant
had direct contact with each alleged co-conspirator. Guerra, 293 F.3d at 1285.
Rather, the government need only demonstrate that the defendant knew the
essential objective of the conspiracy, and the defendant may be convicted even if
he played only a minor role in the scheme. Id.3
At trial, the government presented evidence that Defendant Hernandez
purchased a residence at 480 Heather Court in Bartow, Florida, in June 2005 for
$181, 500. At the time, Hernandez’s monthly mortgage payment was $1394 and
his reported taxable income was $2960. During a search of Hernandez’s residence,
law enforcement seized 170 marijuana plants and supplies used to grow marijuana,
such as high-powered lights, a five-ton air conditioner, a carbon dioxide generator
and numerous fans. Hernandez admitted growing the marijuana plants in a post-
arrest statement to law enforcement.
Hernandez’s challenge to the sufficiency of the evidence is not to whether he
was growing marijuana plants, but to whether his growing operation was part of a
larger marijuana growing conspiracy involving eight different residences and
seventeen conspirators. To show that Hernandez participated in the conspiracy, the
government presented evidence that Hernandez’s marijuana growing operation was
strongly similar to those being operated by other conspirators. For example,
Hernandez used the same growing medium, equipment and irrigation system,
including the use of children’s pools. Also, Hernandez’s method for diverting
electricity to the house was essentially the same as the method used by several of
the other grow houses involved in the conspiracy.
In addition, the government showed that Hernandez made repeated visits to
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several of the other grow houses. For example, Hernandez’s license plate numbers
were included on a list of vehicles observed by a neighbor coming and going from
one of the grow houses. During law enforcement surveillance, Hernandez was
seen at three other grow houses. Three of the grow houses Hernandez visited were
operated by Hernandez’s cousins, with whom he was closely associated. During
the search of Hernandez’s house, law enforcement found a card noting what
appeared to be an appointment time and listing three other co-conspirators’ names,
including Hernandez’s two cousins. Law enforcement also found mail for one of
Hernandez’s cousins in Hernandez’s residence.
As to Defendant Reyes Rueda, the government presented evidence that he
purchased a $127,000 home at 6529 Foxcrest Lane in Lakeland, Florida, in March
2004 and paid $5,500 on the mortgage in 2004. In addition, Reyes Rueda made
large cash deposits that far exceeded the $1,100 in income reported on his 2005 tax
return. During a search of Reyes Rueda’s residence, law enforcement did not find
any marijuana plants or growing supplies. However, the search uncovered receipts
for a garden supply store for hydroponic gardening supplies, unused money
wrappers in denominations totaling $10,000, a notebook containing two co-
conspirators’ names and addresses and a blank check belonging to a third co-
conspirator. Officers also found a trailer on Reyes Rueda’s property that was filled
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with supplies like those found in other conspirators’ grow houses, such as light
fixtures and light bulbs, air conditioning duct work, children’s swimming pools,
zip ties used to bind electrical wiring and black garbage bags.
During surveillance, Reyes Rueda met with several of the co-conspirators,
including Defendant Hernandez’s two cousins, towed his trailer to several of the
grow houses on multiple occasions and allowed the trailer to be towed by some of
his co-conspirators. For instance, law enforcement observed Reyes Rueda’s trailer
at Defendant Hernandez’s residence at 480 Heather Court and the grow houses
operated by Hernandez’s two cousins. Law enforcement also observed the trailer
being pulled by vehicles owned by Hernandez’s two cousins and parked at one of
the grow houses at least a dozen times.
Based on this and other circumstantial evidence, and drawing all reasonable
inferences in favor of the government, a reasonable jury could find beyond a
reasonable doubt that both Defendants Hernandez and Reyes Rueda knowingly and
willingly participated in the conspiracy to grow marijuana plants. For the
foregoing reasons, Hernandez’s and Reyes Rueda’s convictions are affirmed.
AFFIRMED.
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