FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 14, 2011

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-11158

Non-Argument Calendar

________________________

D. C. Docket No. 04-20446-CR-AJ

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus 

HERNAN PRADA, 

a.k.a. Papito, 

a.k.a. El Gordo, 

a.k.a. Humberto, 

a.k.a. Ramazote, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(November 14, 2011)

Before CARNES, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:

Hernan Prada appeals his convictions for conspiracy to import into the

United States five kilograms or more of cocaine, in violation of 21 U.S.C. § 963,

and conspiracy to possess with intent to distribute five kilograms or more of

cocaine, in violation of 21 U.S.C. § 846. Prada was indicted on July 2, 2004, and

the superseding indictment charged that he engaged in the two conspiracies from

1989 through December 7, 1999. He contends that the government presented

insufficient evidence at trial to show that the conspiracies continued after July 2,

1999, the date the statute of limitations period expired. Prada challenges the

credibility of four government witnesses who testified about his involvement in

cocaine trafficking after July 2, 1999. He also contends that his trial counsel

provided ineffective assistance. 

I.

“We review the sufficiency of the evidence de novo, taking the evidence in

the light most favorable to the government and drawing all reasonable inferences in

favor of the jury’s verdict.” United States v. Langford, 647 F.3d 1309, 1319 (11th

Cir. 2011). “[W]e will not disturb the verdict unless no reasonable trier of fact

could find guilt beyond a reasonable doubt.” Id. “It is well established that

credibility determinations are the exclusive province of the jury,” United States v.

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Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997) (alteration and quotation marks

omitted), and we accept those determinations unless a witness’ testimony is

“incredible as a matter of law.” Id. Testimony about “facts that the witness

physically could not have possibly observed or events that could not have occurred

under the laws of nature” is the kind that is incredible as a matter of law. Id.

(alteration and quotation marks omitted). The “uncorroborated testimony of an

accomplice may be enough to support a conviction if the testimony is not on its

face incredible or otherwise insubstantial.” United States v. Garcia, 405 F.3d

1260, 1270 (11th Cir. 2005). 

There is a five year statute of limitations for the conspiracies Prada was

charged with under 21 U.S.C. §§ 846 and 963. See 18 U.S.C. § 3282(a) (providing

that an offender must be prosecuted “within five years next after such offense shall

have been committed”). The requirements of the statute of limitations are satisfied

if the government proves that the conspiracies continued into the limitation period. 

See United States v. Arnold, 117 F.3d 1308, 1313 (11th Cir. 1997). “[A]

conspiracy is deemed to continue as long as its purposes have neither been

abandoned nor accomplished, and no affirmative showing has been made that it

has terminated.” Id. 

In the present case, to meet the requirements of the statute of limitations, the

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government had to prove that the two charged conspiracies continued on or after

July 2, 1999. The jury was instructed on the statute of limitations, and it returned a

guilty verdict on both counts against Prada. The court entered judgment on the 1

verdict and sentenced Prada to 342 months imprisonment and 5 years supervised

release. 

Four government witnesses testified about Prada’s activities in the cocaine

trafficking conspiracies after July 2, 1999: Mario Astaiza, Alex de Cubas, Alfredo

Devengoechea, and Bernardo Careaga. There was no evidence that Prada had

withdrawn from the cocaine conspiracies, see United States v. Westry, 524 F.3d

1198, 1216 (11th Cir. 2008) (“[W]ithdrawal is an affirmative defense that the

defendant has the burden to prove.”), or that the conspiracies had ended, see 

Arnold, 117 F.3d at 1313. 

Astaiza testified about his role in coordinating the shipment of the second

half of a 2500 kilogram, two-part shipment of cocaine that Prada was supplying to

a Mexican drug trafficker called El Licenciado. According to Astaiza, that

occurred in December 1999. The 2500 kilograms of cocaine Prada was sending for

El Licenciado were being shipped along with about 7000 kilograms of cocaine for

him that had been obtained from people other than Prada. Astaiza testified that on

At his first trial the jury was unable to reach a verdict, and the court declared a mistrial. 1

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December 6, 1999 El Licenciado told him that the Mexican Navy had intercepted

the boat that was carrying a total of about 8000 kilograms of cocaine. Astaiza

remembered the exact date because it was a Colombian holiday called “the day of

the little candles.” 

Prada argues that Astaiza’s testimony was unbelievable on its face because

that holiday is actually on December 8, not December 6. Any discrepancy in 2

those dates, however, does not change the fact that the jury could have chosen to

credit Astaiza’s testimony that he continued to be involved in drug trafficking

conspiracies with Prada in December 1999, particularly given that Prada did not

ask the district court to take judicial notice of the date of the religious holiday and

did not argue to the jury the discrepancy that he points out to this Court. Even if

Prada was confused about the exact date, that does not make his testimony

incredible as a matter of law. See Calderon, 127 F.3d at 1325. 

De Cubas testified that he managed drug smuggling trips. He testified that

he met with Prada in early July 1999 regarding the transportation of 1500

Prada filed a motion in this Court asking us to take judicial notice of the fact that 2

December 8 is a Catholic Holy Day that is widely celebrated in Colombia. For the sake of

argument, we grant Prada’s motion and notice that fact. See Fed. R. Evid. 201(b)(2) (stating that

judicial notice may be taken when the fact in question is “one not subject to reasonable dispute

in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy

cannot reasonably be questioned”); cf. Levan v. Capital Cities/ABC, Inc., 190 F.3d 1230, 1235

(11th Cir. 1999) (taking judicial notice of the Prime Rate on February 14, 1989 because it could

not reasonably be disputed). 

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kilograms of cocaine, and again in November 1999 he checked on the status of the

deal. According to de Cubas’ testimony, he was on stand-by to transport a load of

cocaine for Prada, and that agreement lasted until November 1999. 

Devengoechea testified that he prepared boats for Prada between 1999 and

2001. He identified Prada’s associates in the drug trafficking trade and Prada’s

house and its location. Careaga also testified about Prada’s role as a supplier of

cocaine to others who sold it. According to Careaga, five kilograms of cocaine that

Prada had supplied in November 1999 were seized by police, and the drugs were

marked with the numbers “1061.” Those numbers add up to 8—the “lucky”

number Prada always used in some form on his cocaine shipments based on his

belief in numerology. Although the testimony given by these four witnesses

contained numerous inconsistencies, which Prada catalogs in detail, a reasonable

jury could have chosen to credit the parts of their testimony showing that Prada

remained involved in the charged conspiracies after July 2, 1999. 

The government presented sufficient evidence that Prada had a long-term

drug trafficking relationship with El Licenciado, who shipped cocaine into the

United States. See United States v. Mercer, 165 F.3d 1331, 1335 (11th Cir. 1999)

(explaining that a conspiracy can be shown based on a continuing relationship

between a buyer and seller of drugs or a continuing course of conduct); United

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States v. Beasley, 2 F.3d 1551, 1560–61 (11th Cir. 1993) (“[T]he jury could have

reasonably inferred a continuing course of conduct between Christopher and

Stanberry designed to result in the distribution of cocaine . . . .”). 

When the district court denied Prada’s motion for a judgment of acquittal, it

recognized the inconsistencies in some of the witnesses’ testimony and commented

that if it were the factfinder, it would acquit. The court acknowledged, however,

that it was not the factfinder and that there was enough evidence for a reasonable

jury to convict. We agree. The credibility determinations based on the testimony

presented were for the jury, and we cannot say that no reasonable trier of fact could

find guilt beyond a reasonable doubt based on the evidence that the conspiracies

continued beyond July 2, 1999.

II.

Prada also contends that his trial counsel provided ineffective assistance.

We generally do not “consider claims of ineffective assistance of counsel raised on

direct appeal where the district court did not entertain the claim nor develop a

factual record.” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). 

The Supreme Court has instructed that “ineffective-assistance claims ordinarily

will be litigated in the first instance in the district court, the forum best suited to

developing the facts necessary to determining the adequacy of representation

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during an entire trial.” Massaro v. United States, 538 U.S. 500, 505, 123 S.Ct.

1690, 1694 (2003). That is because, even though the record may reflect specific

actions taken by counsel, it does not reflect the reasons underlying those actions. 

Id. The preferred way to bring a claim of ineffective assistance of counsel is

through a 28 U.S.C. § 2255 motion. Id. at 504, 123 S.Ct. at 1694. 

Because the district court did not consider the issue and develop a factual

record with respect to the performance of trial counsel, we decline to consider

Prada’s ineffective assistance claim for the first time on direct appeal.

AFFIRMED.

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