United States v. Yohalvis Molina-Alfonso

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13456 ELEVENTH CIRCUIT
APRIL 29, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00054-FTM-99DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YOHALVIS MOLINA-ALFONSO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 29, 2010)
Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Yohalvis Molina-Alfonso appeals his convictions and sentences for
conspiracy to possess with intent to distribute at least 100 marijuana plants, in
violation of 21 U.S.C. § 846, and possession with intent to distribute less than 100
marijuana plants, in violation of 21 U.S.C. § 841. We affirm.
I. Background
Molina-Alfonso, Alain Alfonso,1 and Danny Rivero were charged by second
superseding indictment with conspiracy to possess with intent to distribute at least
100 marijuana plants, in violation of 21 U.S.C. § 846, and possession with intent to
distribute at least 100 marijuana plants, in violation of 21 U.S.C. § 841.
The evidence at trial established the following:2 Detective Ernest Gelinas of
the Highland County Sheriff’s Office received a tip about a house at 205 Ballard
Road and initiated surveillance. On December 4, 2007, he observed several
vehicles at the house prompting Gelinas, Detective Proctor, and City of Avon Park
police officer Lawrence Schneider to investigate further. Gelinas approached the
house with sirens activated, but no one responded. About thirty minutes later, a
man exited the house, went to one of the cars, and returned to the house.
Thereafter, Rivero and another man exited the rear of the house. As Gelinas and
Proctor approached Rivero, they observed a white van parked by the garage door
and several black trash bags with marijuana stems inside. Gelinas could smell
1
Alain Alfonso is not related to the defendant.
2
Defense counsel made numerous objections to the testimony of the government’s witnesses
and to the admission of evidence. Because we conclude that Molina-Alfonso fails to properly
challenge these evidentiary rulings on appeal, we do not discuss the objections here.
2
marijuana in the yard.
Gelinas, Proctor, and the two men returned to the front of the house and
knocked on the front door. Molina-Alfonso exited the house and spoke with
police. Officer Juan Delgado translated for the suspects and explained consent-to-
search forms, which both Molina-Alfonso and Rivera signed. A search of the car
revealed cash, rooting compound used to clone plants, fans, extension cords,
electrical components, a drill, a thermostat, and a Home Depot receipt tied to
Rivera. In the white van, police found loose marijuana, some of which was brown
and old, leaving police to believe that the van had been used to transport marijuana
on several occasions.
During the search, police found marijuana hanging to dry in the garage.
Inside the house, police found an energy bill in the name of Julio Espinosa for a
house at Highlands Boulevard. They also found marijuana, trimmings called
“shake,” chemicals to fertilize the plants, and materials often used in grow houses.
Police observed that the duct work in the house had been altered to help distribute
air conditioning, which, in Gelinas’s experience, was consistent with running a
grow house. Gelinas explained that it did not appear the men were growing
marijuana in the house at the time of the search, but that the house was probably a
grow house at some point. At the time of the search, the house was being used to
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dry marijuana.
Police interviewed Molina-Alfonso. He admitted that he lived in the Ballard
Road house, had been renting it from Rivera for the last two months at $1,700 per
month, and drove the white van found at the house. He explained that when he
went to purchase livestock feed, he found the trash bags with marijuana on the side
of the road. He took the bags home to dry the plants. He planned to keep the
marijuana for personal use. Officer Delgado, however, thought it was unlikely that
the drugs were for personal use given the quantity.
Highlands County Sheriff’s Officer Randy Labelle went to the Highlands
Boulevard address listed on the power bill found in the Ballard Road house and,
through the window, could see that it was a dismantled grow house. Labelle did
not see anyone at the residence, however he could see irrigation drums, fertilizer,
fans, and holes in the walls and ceiling.
In April 2008, as part of a DEA task force on grow houses, Cape Coral
police officer Don Donakowski conducted surveillance of a house at 1207 NW
21st Avenue. After Donakowski observed a gold Maxima leave the house, police
conducted a traffic stop of the Maxima; Alain Alfonso was the driver and
registered owner of the Maxima and Molina-Alfonso was the passenger. A
subsequent search of the 1207 NW 21st Avenue residence revealed plastic buckets
4
with soil and root systems, a grow room with a marijuana bud on the floor, 56
buckets with intact root systems, and another 51 baby marijuana plants in the
bathtub in the master bathroom.
Police also found lease agreements showing that Rivera leased the 1207 NW
21st Avenue house to Molina-Alfonso and Alain Alfonso. In the kitchen, police
found a food saver and storage bags later determined to have Molina-Alfonso’s
prints on them.3
Molina-Alfonso and Alain Alfonso were placed in the back seat of a patrol
car and their conversation was recorded. In the conversation, Molina-Alfonso told
Alain Alfonso, “What you have to do is say that you bought it for yourself, that it’s
yours, that it was for your own consumption . . . Last time I said I wanted for my
own consumption, and I got out. It’s not a federal case. If it is buying and selling,
and so on, it’s a federal case, you don’t get out. You just say that is was for your
consumption.” Julissa Sanchez, a secretary with the Cape Coral police department
translated the conversation from the patrol car. Although she had not typed up the
transcript, she confirmed its accuracy.
The government offered as evidence crime lab reports and tests confirming
3
Defense counsel objected to the admission of the fingerprint cards for lack of foundation
and as hearsay. Counsel also objected to the testimony and report of forensic specialist Elizabeth
Lansky. The court overruled the objections.
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that the sample sent to the lab was marijuana. The government also proffered
testimony that Molina-Alfonso entered the United States from Cuba in 2006,
Danny Rivero arrived from Cuba in 1997, and Alain Alfonso arrived from Cuba in
2007.
After the government rested, Molina-Alfonso moved for judgment of
acquittal and for a mistrial. The court denied both motions. Molina-Alfonso did
not testify and the defense presented no other evidence. The jury convicted
Molina-Alfonso of conspiracy to possess with intent to distribute at least 100
marijuana plants and possession with intent to distribute less than 100 marijuana
plants.
The probation officer prepared a presentence investigation report (“PSI”),
grouping the two offenses together under U.S.S.G. § 3D1.2(d) and assigning a base
offense level of 18 under § 2D1.1(c)(11). With no enhancements or reductions,
and a criminal history category of I, the guidelines range was 27 to 33 month’s
imprisonment. Because the conspiracy count carried a mandatory minimum
sentence of 60 months’ imprisonment, the mandatory minimum became the
guideline range.
Molina-Alfonso asserted that he was entitled to reductions for acceptance of
responsibility under § 3E1.1(a) and his minor role in the offenses under
6
§ 3B1.2(b). The court overruled the objections. Molina-Alfonso then requested
that the court apply a variance based on the sentencing factors in 18 U.S.C.
§ 3553(a), but he conceded that the statutory mandatory minimum sentence did not
permit the court to sentence him below 60 months. The court denied the variance,
agreeing that it lacked the authority to sentence below the mandatory minimum and
further found that a variance was not warranted. After considering the § 3553(a)
factors, the court sentenced Molina-Alfonso to 60 months’ imprisonment. Molina-
Alfonso now appeals.
II. Standards of Review
“We review de novo a denial of a motion for judgment of acquittal based on
the sufficiency of the evidence, viewing the evidence in the light most favorable to
the government, with all reasonable inferences and credibility choices made in the
government’s favor.” United States v. Valencia-Trujillo, 573 F.3d 1171, 1185
(11th Cir. 2009), cert. denied, 2010 WL 333757 (Mar. 1, 2010) (quotation marks
omitted). We review a district court’s evidentiary rulings for an abuse of
discretion. United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005).
Generally, constitutional claims are reviewed de novo. United States v. Williams,
527 F.3d 1235, 1239 (11th Cir. 2008). Likewise, we review the decision not to
grant a mistrial for abuse of discretion. United States v. Emmanuel, 565 F.3d 1324,
7
1334 (11th Cir. 2009).
III. Discussion
A. Sufficiency of the Evidence
“[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). The government may
prove a conspiracy by circumstantial evidence. 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).
To show that Molina-Alfonso violated 21 U.S.C. § 841(a)(1), the
government must prove he knowingly and intentionally possessed with the intent
to distribute marijuana plants, all of which can be shown by direct or circumstantial
8
evidence. United States v. Poole, 878 F.2d 1389, 1391-92 (11th Cir. 1989).
Knowledge can be shown by the surrounding circumstances. Id. at 1392.
“Constructive possession is sufficient for the possession element, and can be
established by showing ownership or dominion and control over the drugs or over
the premises on which the drugs are concealed.” Id.Here, the evidence was sufficient to establish Molina-Alfonso’s guilt of
conspiracy and possession. Contrary to Molina-Alfonso’s argument, the
government proved his involvement with more than his mere presence. The
testimony at trial established that he was renting the Ballard Road house and the
1207 NW 21st Avenue house. Marijuana and materials for a grow house were
found in each house. The van Molina-Alfonso admitted was his contained
marijuana leaves, some of which were old and dried, indicating that the van had
been used to transport marijuana in the past. Molina-Alfonso admitted the
possession of the drugs found at Ballard Road, and the quantity found was
inconsistent with personal use. Moreover, after Molina-Alfonso was arrested, he
advised Alain Alfonso to claim the drugs found in the house were for his personal
use.
This evidence, when viewed together, was sufficient for the jury to find an
agreement to grow marijuana plants and that Molina-Alfonso was a part of the
9
agreement. It also established Molina-Alfonso’s possession of marijuana.
Additionally, the testimony at trial showed that police found 56 root systems
in one room and another 51 baby plants in another. This sufficiently establishes
the 100 plants for which Molina-Alfonso was convicted. Accordingly, Molina-
Alfonso’s sufficiency claim fails.
B. Evidentiary Issues4
Molina-Alfonso argues that the district court admitted irrelevant and
prejudicial evidence over his objections. He contends the errors, independently
and cumulatively, require reversal of his convictions. He asserts that the admission
of hearsay evidence violated his right to confront and cross-examine witnesses
under the Sixth Amendment. He further challenges the admission of the transcript
of the conversation in the police car on the ground that the translator did not type
the transcript. He also challenges the translator’s qualifications.
A district court “has broad discretion to determine the relevance and
admissibility of any given piece of evidence.” United States v. Merrill, 513 F.3d
1293, 1301 (11th Cir. 2008). Evidence is relevant if it has “any tendency to make
the existence of any fact that is of consequence to the determination of the action
4
We agree with the government that Molina-Alfonso failed to properly brief all of his
claims. For many of his evidentiary challenges, he merely lists his objection and recites the district
court’s ruling, but does not offer any argument. Thus, we conclude that these issues are abandoned.
United States v. Gupta, 463 F.3d 1182, 1195 (11th Cir. 2006).
10
more probable or less probable than it would be without the evidence.” Fed.R.Evid.
401. “All relevant evidence is admissible, except as otherwise provided. . . .
Evidence which is not relevant is not admissible.” Fed.R.Evid. 402. “Although
relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Fed.R.Evid. 403.
We will not reverse evidentiary errors unless “there is a reasonable
likelihood that they affected the defendant’s substantial rights.” United States v.
Frank, 2010 WL 890451, *15 (11th Cir. Mar. 15, 2010) (citation omitted).
Although Molina-Alfonso asserts error with respect to many evidentiary
decisions, we will address only those issues that were properly briefed.
1. Labelle’s testimony
“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403.
District courts have broad discretion to admit probative evidence, but their
discretion to exclude evidence under Rule 403 is limited. United States v.
Terzado-Madruga, 897 F.2d 1099, 1117 (11th Cir. 1990). “[T]he application of
Rule 403 must be cautious and sparing. Its major function is limited to excluding
11
matter of scant or cumulative probative force, dragged in by the heels for the sake
of its prejudicial effect.” United States v. Mills, 704 F.2d 1553, 1560 (11th Cir.
1983).
Here, Labelle testified that he investigated the house on Highlands
Boulevard and observed what appeared to be an abandoned grow house. The
government admitted evidence that the house belonged to Julio Espinosa. We
agree with the district court that the evidence was relevant to establish that the
conspiracy involved multiple grow houses and that the Highlands Boulevard and
Ballard Road houses were both connected to the conspiracy. See United States v.
Jiminez, 564 F.3d 1280, 1289 (11th Cir. 2009).
2. Consent-to-search form
Molina-Alfonso objected to the admission of the forms as hearsay and as a
Sixth Amendment Confrontation Clause5 violation because the co-conspirators
who signed the forms did not testify and he was not able to cross examine them.
The forms were admitted during Delgado’s testimony and Molina-Alfonso had the
opportunity to cross-examine Delgado about the forms.
We conclude Molina-Alfonso’s argument lacks merit. First, the consent
5
The Confrontation Clause bars the admission of the testimonial statements of a witness
who did not appear at trial unless the witness was unavailable and the defendant had a prior
opportunity to cross-examine him or her. Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
12
form signed by Molina-Alfonso is not hearsay because it is an admission by a
party-opponent. See Fed. R. Evid. 801(a), (d)(1). Moreover, Rivero’s consent
form would not constitute hearsay because it was not offered to prove that Rivero
gave consent. Instead, the consent forms put the officers’ decision to search the
property and cars in context. See United States v. Jiminez, 564 F.3d 1280, 1288
(11th Cir. 2009) (“this Circuit has long recognized that statements by out of court
witnesses to law enforcement officials may be admitted as non-hearsay if they are
relevant to explain the course of the officials’ subsequent investigative actions and
the probative value of the evidence’s non-hearsay purpose is not substantially
outweighed by the danger of unfair prejudice caused by the impermissible hearsay
use of the statement.”). Because these statements were not hearsay, there was no
Confrontation Clause violation. Id. at 1288 (“There can be no doubt that the
Confrontation Clause prohibits only statements that constitute impermissible
hearsay.” (citing Crawford, 541 U.S. 36, 59 n 9)).
Even if the court erred by admitting the forms containing Rivero’s signature,
the error was harmless. See Caraballo, 595 F.3d at 1229. The admission of the
forms was not harmful to the defense, as the consent forms were unlikely to make
the jury believe Molina-Alfonso was guilty.
13
3. Transcript
A jury may use transcripts as an aid to understanding the content and
meaning of tape recordings. United States v. Cruz, 765 F.2d 1020, 1023 (11th Cir.
1985). If the parties are unable to produce a stipulated transcript, “each side should
produce its own version of a transcript or its own version of the disputed portions.”
United States v. Hogan, 986 F.2d 1364, 1376 (11th Cir. 1993). Each party may
also “put on evidence supporting the accuracy of its version or challenging the
accuracy of the other side’s version.” Id.Molina-Alfonso’s challenge to the transcript is without merit. First, for the
transcripts to be admissible, all that was required was testimony that the transcript
was accurate, and this could be accomplished by testimony from the person who
prepared the transcript or someone who heard the tape. United States v. Rochon,
563 F.2d 1246, 1251-52 (5th Cir. 1977);6 see also United States v. Green, 40 F.3d
1167, 1173 (11th Cir. 1994). Here, Sanchez testified to the accuracy of the
transcript and this testimony was sufficient to render the transcript admissible. See
United States v. Myers, 972 F.2d 1566, 1577 (11th Cir. 1992) (permitting
testimony of lay witness if based on personal experience and observation). At no
6
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this court
held that all decisions handed down by the former Fifth Circuit before the close of business on
September 30, 1981, are binding precedent in the Eleventh Circuit.
14
time did Molina-Alfonso challenge the accuracy of the transcript or seek to admit
his own transcription. Under these circumstances, there is no error. See Hogan,
986 F.2d at 1376 (concluding that defendant’s claim of error must fail when he
does not offer his own transcript and does not point out inaccuracies in the
government’s transcript).
To the extent that Molina-Alfonso objected to Sanchez’s testimony because
she was not a certified translator, we are not persuaded. Molina-Alfonso did not
submit his own translation and did not identify any portion of the translation that
was inaccurate. See United States v. Frank, 2010 WL 890451, *15 (11th Cir. Mar.
15, 2010). Moreover, Molina-Alfonso had the opportunity to cross-examine
Sanchez and raise her qualifications as an issue of credibility for the jury.
C. Mistrial
To receive a mistrial, a defendant “must show that his substantial rights are
prejudicially affected.” Emmanuel, 565 F.3d at 1334 (quotation marks omitted).
“The decision of whether to grant a mistrial lies within the sound discretion of a
trial judge as he or she is in the best position to evaluate the prejudicial effect of
improper testimony.” United States v. Perez, 30 F.3d 1407, 1410 (11th Cir. 1994).
“[W]hen the record contains sufficient independent evidence of guilt, any error was
harmless.” United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007).
15
Because the district court committed no single evidentiary error, there is no
cumulative error, and the court did not abuse its discretion in denying the motion
for a mistrial. See United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004)
(concluding that cumulative error doctrine is inapplicable where district court
commits no individual errors). Moreover, Molina-Alfonso has offered nothing to
show that he suffered prejudice. The government’s case against Molina-Alfonso
was strong, especially in light of his admission to possession of the marijuana, the
other marijuana found in the van Molina-Alfonso admitted driving, and
Molina-Alfonso’s own statements recorded in the patrol car.
D. Sentencing
Molina-Alfonso argues that the court erred in determining his sentence
because he was entitled to a reduction for his minor role in the offense and his
acceptance of responsibility.
Molina-Alfonso’s conspiracy conviction carried a mandatory minimum
sentence. Because the district court correctly imposed the statutory mandatory
minimum sentence, any error in the guidelines calculations is harmless. United
States v. Raad, 406 F.3d 1322, 1323 n.1 (11th Cir. 2005).
IV. Conclusion
For the foregoing reasons, Molina-Alfonso’s convictions and sentences are
16
AFFIRMED.
17