FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JUNE 20, 2011

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-14916

________________________

D. C. Docket No. 08-00010-CR-1-SPM-AK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DIEGO CHOXJ CHA,

a.k.a. Lorenzo Sac,

Defendant-Appellant.

________________________

No. 09-15042

________________________

D. C. Docket No. 08-00010-CR-1-SPM-AK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM J. ERICKSON,
Defendant-Appellant.

________________________

Appeals from the United States District Court

for the Northern District of Florida

_________________________

(June 20, 2011)

Before MARTIN and BLACK, Circuit Judges, and RESTANI, Judge.

*

PER CURIAM:

Diego Choxj Cha, also known as Lorenzo Sac (“Sac”), and William J.

Erickson (“Erickson”) appeal their convictions and sentences. A jury found Sac

guilty of manufacturing or possessing with intent to distribute at least 100, but less

than 1000, marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii)

and 18 U.S.C. § 2. The district court sentenced Sac to the mandatory sixty-month

minimum term of imprisonment followed by four years of supervised release. See

21 U.S.C. § 841(b)(1)(B). Erickson was convicted of conspiracy to manufacture

and possess with intent to distribute more than 100, but less than 1000, marijuana

plants, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(vii) and 18 U.S.C. § 846;

manufacturing and possessing with intent to distribute at least 100, but less than

1000, marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii) and

 Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting *

by designation.

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18 U.S.C. § 2; and attempting to obstruct an official proceeding, in violation of 18

U.S.C. §§ 1512(c)(2) and 2. The district court sentenced Erickson to 88 months

imprisonment. After careful review of the record and the parties’ briefs, and

having had the benefit of oral argument, we affirm Sac’s and Erickson’s

convictions and sentences.

I.

Sac first argues that the district court erred in excluding two lay witnesses’

testimony as to whether Sac knew what marijuana was and whether he knew it was

illegal. We review evidentiary questions for abuse of discretion. United States v.

Brown, 415 F.3d 1257, 1264–65 (11th Cir. 2005). We will not reverse because of

an evidentiary ruling if the error was harmless. United States v. Khanani, 502 F.3d

1281, 1292 (11th Cir. 2007). A lay witness’s testimony is “limited to those

opinions or inferences which are (a) rationally based on the perception of the

witness, (b) helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue, and (c) not based on scientific, technical, or other

specialized knowledge within the scope of [the rule on expert testimony].” Fed. R.

Evid. 701. A lay witness’s opinion is admissible “only if it is based on first-hand

knowledge or observation . . . .” United States v. Marshall, 173 F.3d 1312, 1315

(11th Cir. 1999).

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The district court did not err in excluding the lay witnesses’ testimony as to

whether Sac knew what marijuana was or whether it was illegal. Sac’s personal

knowledge of the identifying characteristics of marijuana and its illegality were not

matters that were rationally based on the perceptions of these lay witnesses. See

Fed. R. Evid. 701. Neither witness knew Sac personally nor had first-hand

knowledge of his familiarity with marijuana at the time of the offense. Sister Mary

Waddell, a missionary who had worked in Guatemala, testified in general about the

pervasive poverty and illiteracy in the part of the country in which Sac had lived.

Similarly, Christian Barrientos, a biologist, testified in general about the

biodiversity of the plants in Guatemala. While these witnesses may have had

knowledge of the people and area where Sac was from, Sac did not establish that

they had first-hand knowledge of his particular familiarity with marijuana. By

Sac’s own admission, he left Guatemala and had been residing in the United States

for at least several months before law enforcement found him in Williston, Florida

living in a house filled with hundreds of marijuana plants and working to cultivate

them. Because the lay witnesses’ testimony about Sac’s familiarity with marijuana

was improper under Rule 701, the district court did not abuse its discretion in

excluding it.

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II.

Sac next challenges the sufficiency of the evidence supporting his conviction

for knowingly and intentionally manufacturing and possessing with intent to

distribute more than 100 but less than 1000 marijuana plants. Specifically, Sac

argues that the government failed to establish that he knew what marijuana was or

that it was an illegal controlled substance. We review de novo whether the

evidence was sufficient to sustain a conviction. United States v. Jiminez, 564 F.3d

1280, 1284 (11th Cir. 2009). We “view the evidence in the light most favorable to

the government and resolve all reasonable inferences and credibility evaluations in

favor of the jury’s verdict.” United States v. Robertson, 493 F.3d 1322, 1329 (11th

Cir. 2007) (quotation marks omitted). “We will not overturn a conviction on the

grounds of insufficient evidence ‘unless no rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.’” United States v.

Wright, 392 F.3d 1269, 1273 (11th Cir. 2004) (quoting United States v. Christo,

129 F.3d 578, 579 (11th Cir. 1997)).

To obtain a conviction under § 841(a)(1), the government must prove

beyond a reasonable doubt that the defendant knowingly or intentionally possessed

marijuana with intent to manufacture, distribute, or dispense it. See 21 U.S.C.

§ 841(a)(1). “[T]he government must establish the existence of three elements: (1)

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knowledge (of one’s possession); (2) possession of a controlled substance; and (3)

intent to distribute that substance.” United States v. Wilson, 183 F.3d 1291, 1299

n.13 (11th Cir. 1999). The government may establish “possession” by proving

either actual or constructive possession. See United States v. Leonard, 138 F.3d

906, 909 (11th Cir. 1998). The intent to distribute may be inferred from the

amount of drugs involved. United States v. Hernandez, 433 F.3d 1328, 1333 (11th

Cir. 2005), cert. denied, 547 U.S. 1047, 126 S. Ct. 1634 (2006).

Viewing the evidence in the light most favorable to the government, there

was sufficient evidence to support Sac’s conviction. The government established

that Sac had been living and working at a residence in Williston, Florida that had

been converted into a large-scale marijuana growing operation. When law

enforcement executed a search warrant at that residence on April 9, 2008, they

discovered Lorenzo Sac and his brother, Francisco Sac, hiding in a bathtub and

found 917 marijuana plants growing in rooms throughout the house, including the

bathroom where Sac was hiding. Law enforcement could smell the odor of

marijuana emanating from the house. Law enforcement also found specialized

lights, generators, air conditioners, diesel fuel, propane, potting soil and other

equipment necessary for growing marijuana in the residence. Lorenzo and

Francisco admitted that they were paid $500 per week to tend to and harvest the

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marijuana plants at this residence.

Sac argues that based on his testimony that he was not familiar with

marijuana, no reasonable jury could have found him guilty beyond a reasonable

doubt. We disagree. Sac testified that he did not know that the 917 plants in the

residence were marijuana plants. The jury was free to find that Sac was not a

credible witness and disbelieve Sac’s assertions that he did not know what

marijuana was or that it was illegal. See United States v. Brown, 53 F.3d 312, 314

(11th Cir. 1995) (explaining that a defendant’s trial testimony “if disbelieved by

the jury, may be considered as substantive evidence of the defendant’s guilt”).

We therefore conclude that the evidence was sufficient to support Sac’s

conviction. See United States v. Smith, 893 F.2d 1269, 1274 (11th Cir. 1990)

(sustaining conviction for knowingly and intentionally possessing with intent to

distribute marijuana where defendant was living on property upon which a patch of

marijuana was being grown and the marijuana plants were visible from the trailer

in which defendant was living); see also United States v. Coronel, 750 F.2d 1482,

1487–88 (11th Cir. 1985) (sustaining conviction for possession with intent to

distribute cocaine where law enforcement found defendant hiding near an

incubator that contained cocaine and where smell of cocaine and ether was

discernible).

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III.

Finally, Sac challenges the reasonableness of his sixty-month sentence.

Sac’s offense carries a sixty-month mandatory minimum sentence. See 21 U.S.C.

§ 841(b)(1)(B). However, Sac argues that he was entitled to a sentence lower than

the statutory mandatory minimum sentence under the “safety valve” exception, 18

U.S.C. § 3553(f). “When reviewing the denial of safety-valve relief, we review for

clear error a district court’s factual determinations.” United States v. Johnson, 375

F.3d 1300, 1301 (11th Cir. 2004). “We review de novo the court’s legal

interpretation of the statutes and sentencing guidelines.” Id.

“It is well-settled that a district court is not authorized to sentence a

defendant below the statutory mandatory minimum unless the government filed a

substantial assistance motion pursuant to 18 U.S.C. § 3553(e) or the defendant falls

within the safety-valve exception of § 3553(f).” United States v. Castaing-Sosa,

530 F.3d 1358, 1360 (11th Cir. 2008). A defendant is eligible for the safety-valve

exception only if, among other things, “the defendant has truthfully provided to the

Government all information and evidence the defendant has concerning the offense

or offenses that were part of the same course of conduct or of a common scheme or

plan . . . .” 18 U.S.C. § 3553(f)(5). The burden is on the defendant to prove that he

has met all of the safety-valve factors. See Johnson, 375 F.3d at 1302.

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Sac has failed to establish that the district court erred in denying safety-valve

relief. The district court found that Sac did not qualify for the safety valve

exception because he had not fulfilled the “tell-all” requirement for receiving

safety-valve relief insofar as he failed to provide the government with all the

information and evidence that he had concerning the charged offense. See United

States v. Yate, 176 F.3d 1309, 1310 (11th Cir. 1999) (discussing defendant’s

affirmative responsibility “to truthfully disclose to the government all information

and evidence that he has about the offense and all relevant conduct” under the

safety-valve exception). For example, even though at least 917 marijuana plants

were growing in the house where he lived, Sac provided the government with no

information about the intended distribution of those plants. See Johnson, 375 F.3d

at 1302–03 (holding that district court properly determined that defendant did not

qualify for safety valve exception when he failed to disclose information about the

intended distribution of the 273 marijuana plants he was cultivating). “Given the .

. . large number of plants, the district court did not err in reasonably inferring that

[Sac] was growing the marijuana for distribution.” Id. at 1302. Accordingly, Sac

did not qualify for the safety valve exception because he failed to provide the

government with any information about the distribution.

We need not consider Sac’s remaining challenges to the reasonableness of

9
his sentence in light of our conclusion that the district court properly sentenced Sac

to the sixty-month mandatory minimum sentence. See United States v. GallegosAguero, 409 F.3d 1274, 1276 (11th Cir. 2005) (“We will reverse the district court

[for a sentencing error] only if the error was harmful.”).

IV.

Erickson contends that the district court erred in denying his motions for an

evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674. He

1

claims that statements in the search warrant affidavits regarding Francisco Sac

providing law enforcement with a map of the 100th Street property were false.

Erickson further asserts that the statements in the affidavits concerning utility

records for that property were also false.

“To be entitled to a Franks hearing, a defendant must make a ‘substantial

preliminary showing that a false statement knowingly and intentionally, or with

reckless disregard for the truth, was included by the affiant in the warrant affidavit,

and . . . the allegedly false statement is necessary to a finding of probable cause.’”

United States v. Sarras, 575 F.3d 1191, 1218 (11th Cir. 2009) (quoting Franks, 438

 “Generally, a court’s decision about whether to hold an evidentiary hearing lies within 1

that court’s sound discretion and will be reviewed only for an abuse of discretion. We have not

stated a precise standard of review for a district court’s denial of a Franks hearing, and other

circuits are split on the issue.” United States v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir. 2006)

(citations omitted). Because we find no error under even a de novo standard of review, we need

not determine which standard of review applies. See id. 

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U.S. at 155–56, 98 S. Ct. at 2676). “[T]he substantiality requirement is not lightly

met.” United States.v. Arbolaez, 450 F.3d 1283, 1294 (11th Cir. 2006). As the

Supreme Court has explained:

To mandate an evidentiary hearing, the [defendant’s] attack must be

more than conclusory and must be supported by more than a mere

desire to cross-examine. There must be allegations of deliberate

falsehood or of reckless disregard for the truth, and those allegations

must be accompanied by an offer of proof. They should point out

specifically the portion of the warrant affidavit that is claimed to be

false; and they should be accompanied by a statement of supporting

reasons. Affidavits or sworn or otherwise reliable statements of

witnesses should be furnished, or their absence satisfactorily

explained. Allegations of negligence or innocent mistake are

insufficient.

Franks, 438 U.S. at 171, 98 S. Ct. at 2684.

The district court did not err in denying Erickson’s request for a Franks

hearing. Erickson’s attacks on the veracity of the affiants’ statements were

conclusory and unsupported by any proof. Erickson did not submit an affidavit

from Sac stating that he never provided law enforcement with a map of the 100th

Street property. Nor did Erickson offer any evidence establishing that the affiants’

statements concerning utility records for that property were false. Because

Erickson failed to offer any proof in support of his claims, the district court’s

denial of his request for a Franks hearing was not error.

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V.

Erickson also contends that the district court erred in denying his motion to

suppress evidence obtained from his property located at 191st Avenue. Erickson

argues that the law enforcement obtained a search warrant for 191st Avenue by

relying upon unlawful observations made during a warrantless entry of that

property. “Because rulings on motions to suppress involve mixed questions of fact

and law, we review the district court’s factual findings for clear error, and its

application of the law to the facts de novo.” United States v. Jordan, 635 F.3d

1181, 1185 (11th Cir. 2011) (quotation marks omitted). “We also construe all facts

in the light most favorable to the prevailing party in the district court—here, the

government.” United States v. Boyce, 351 F.3d 1102, 1105 (11th Cir. 2003).

The Fourth Amendment provides that: “The right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated . . . .” U.S. Const. Amend IV. The Fourth

Amendment, however, “is not implicated by entry upon private land to knock on a

citizen’s door for legitimate police purposes unconnected with a search of the

premises.” United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006).

“Absent express orders from the person in possession, an officer may walk up the

steps and knock on the front door of any man’s castle, with the honest intent of

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asking questions of the occupant thereof.” Id. (quotation marks omitted).

Here, several officers walked up to Erickson’s front door and knocked.

Erickson came out and instructed the officers to leave his property. En route to

Erickson’s door, the officers observed a pile of harvested marijuana root bases

approximately twenty-five yards from Erickson’s residence and marijuana residue

in a truck parked out front. The officers detained Erickson in the front yard while a

search warrant for the property was obtained. From their vantage point in the yard,

the officers could see inside of Erickson’s residence and observed survelliance

monitors and insulation.

Erickson argues that the officers’ observations violated his Fourth

Amendment rights and tainted the the validity of the warrant issued to search his

property. We disagree. The officers approached Erickson’s residence to conduct a

“knock and talk.” See Taylor, 458 F.3d at 1204. Their plain view observations

while properly on the property for that purpose do not constitute a constitutional

violation. See id. For that reason, the inclusion of the officers’ observations in the

warrant affidavit did not taint the validity of the search warrant for Erickson’s

property.

VI.

Erickson also contends that the prosecutor engaged in prosecutorial

13
misconduct, violating his due process right to a fair trial. Ordinarily, “[w]e review

claims of prosecutorial misconduct de novo because they involve a mixed question

of law and fact.” United States v. Schmitz, 634 F.3d 1247, 1259 (11th Cir. 2011).

However, because Erickson raises his claim for the first time on appeal, we review

only for plain error. Id.

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“To find prosecutorial misconduct, a two-pronged test must be met: (1) the

remarks must be improper, and (2) the remarks must prejudicially affect the

substantial rights of the defendant.” United States v. Eyster, 948 F.2d 1196, 1206

(11th Cir. 1991). “To establish prosecutorial misconduct for the use of false

testimony, a defendant must show the prosecutor knowingly used perjured

testimony, or failed to correct what he subsequently learned was false testimony,

and that the falsehood was material.” United States v. McNair, 605 F.3d 1152,

1208 (11th Cir. 2010); see also United States v. Dickerson, 248 F.3d 1036, 1041

(11th Cir. 2001) (explaining that “[t]he materiality element is satisfied if the false

testimony could reasonably be taken to put the whole case in such a different light

as to undermine confidence in the verdict” (quotation marks omitted)).

Erickson argues that the prosecutor committed prosecutorial misconduct

 Under the plain error standard of review, “(1) there must be error; (2) the error must be 2

plain; (3) the error must affect the appellant’s substantial rights; and (4) the error must seriously

affect the fairness, integrity, or public reputation of judicial proceedings.” United States v.

Pantle, 637 F.3d 1172, 1174 (11th Cir. 2011) (quotation marks omitted). 

14
when he elicited testimony from Agent Andrews concerning Florida Department of

Revenue records from 2007 and 2008 showing that Erickson had no reported

income. Erickson asserts that Andrews’ testimony was misleading because he had

other sources of income during those years that he was not required to report to the

Florida Department of Revenue. He also claims that the prosecutor engaged in

misconduct by offering conflicting testimony from Agents Andrews and Riley

regarding where law enforcement found marijuana grow books on his properties.

Erickson has failed to establish plain error with respect to any of his claims

of prosecutorial misconduct. Agent Andrews’ testimony concerning Erickson’s

Florida Department of Revenue records was not false. Erickson stipulated to the

accuracy of those records at trial. To the extent that any discrepancy existed in the

two agents’ testimony about the location at which marijuana grow books were

found, the discrepancy was not material. Agent Andrews testified that grow books

were found in Erickson’s office at his 191st. Avenue property. Agent Riley

testified that two books were found in Erickson’s office and that five books were

found in a trailer at his 187th Street property. The discrepancy in the agents’

testimony does not “undermine [our] confidence in the verdict.” See Dickerson,

248 F.3d at 1042. For these reasons, we conclude that Erickson has failed to

establish that the district court plainly erred in rejecting his claims of prosecutorial

15
misconduct.

VII.

Erickson contends that the district court erred at sentencing in holding him

accountable for 1,123 marijuana plants. Specifically, he argues that it was

improper for the district court to hold him accountable for the 917 marijuana plants

found at a property that his co-defendant, John Sager, owned. Erickson argues that

the district court should not have taken those plants into account in calculating his

guidelines range because they related to acquitted conduct. We review the district

court’s interpretation of the sentencing guidelines de novo, and its factual findings

for clear error. United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir. 2005).

A district court may consider all relevant conduct in calculating a

defendant’s offense level. See United States v. Hamaker, 455 F.3d 1316, 1336

(11th Cir. 2006). Relevant conduct may include conduct for which the defendant

was acquitted. See United States v. Duncan, 400 F.3d 1297, 1304 (11th Cir. 2005)

(explaining that a district court may take into account acquitted conduct at

sentencing as long as the government proves the conduct by a preponderance of the

evidence and the sentence imposed does not exceed the statutory maximum

authorized by the jury’s verdict). In the case of jointly undertaken criminal

activity, relevant conduct includes “all reasonably foreseeable acts and omissions

16
of others in furtherance of the jointly undertaken criminal activity.” U.S.S.G.

§ 1B1.3(a)(1)(B) (Nov. 2008).

The district court did not clearly err in holding Erickson accountable for the

917 marijuana plants found on Sager’s property. The record shows that Erickson

and Sager were involved in a marijuana grow operation. The plants at Sager’s

property were “reasonably foreseeable” to Erickson as part of that jointly

undertaken criminal activity. Erickson and Sager’s colloboration in the grow

operation was extensive. The government presented evidence establishing that

Erickson and Sager had similar structures on their properties in furtherance of the

operation and co-owned a property. The district court did not err in holding

Erickson accountable for the plants found at both his and Sager’s properties.

For these reasons, we affirm Sac’s and Erickson’s convictions and

sentences.

AFFIRMED.

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