FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 1, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-15741

Non-Argument Calendar

________________________

D. C. Docket No. 07-20374-CR-JLK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ENRIQUE ALVAREZ,

Defendant-Appellant.

________________________

No. 07-15835

Non-Argument Calendar

________________________

D. C. Docket No. 07-20374-CR-JLK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AMELIA GIL,

Defendant-Appellant.
________________________

No. 07-15836

Non-Argument Calendar

________________________

D. C. Docket No. 07-20374-CR-JLK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIRIAM GIL,

Defendant-Appellant.

_________________________

Appeals from the United States District Court

for the Southern District of Florida

_________________________

(July 1, 2009)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

Enrique Alvarez, Miriam Gil, and Amelia Gil were convicted of violating 21

U.S.C. §§ 841(a)(1) and 846, which prohibit conspiring to possess with intent to

distribute 1,000 or more marijuana plants. This is their consolidated appeal.

Alvarez, who proceeded to a bench trial, appeals his conviction. Miriam and

Amelia, who pled guilty, appeal their sentences. For the reasons that follow, we

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affirm Alvarez’s conviction and Miriam’s and Amelia’s sentences. We address

each defendant’s appeal in turn.

I. ENRIQUE ALVAREZ

Alvarez appeals the district court’s denial of his motion for judgment of

acquittal. He argues that the evidence insufficiently supported a finding that the

government proved the indicted drug quantity. Instead, he argues, he should have

been convicted of the lesser-included offense involving more than 100 but fewer

than 1000 marijuana plants.

The applicable standard of review is sufficiency of the evidence. United

States v. Jackson, 544 F.3d 1176, 1186 n.14 (11th Cir. 2008) (per curiam), cert.

denied, 129 S. Ct. 1925 (2009). Under that standard, we review de novo the denial

of the motion for judgment of acquittal, “draw all reasonable inferences in favor of

the government[,] and determine whether a reasonable factfinder could conclude

that the evidence established the defendant's guilt beyond a reasonable doubt.” Id.

(citation and quotation marks omitted). “We will not reverse a conviction for

insufficient evidence in a non-jury trial unless, upon reviewing the evidence in the

light most favorable to the government, no reasonable trier of fact could find guilt

beyond a reasonable doubt.” United States v. Schaltenbrand, 930 F.2d 1554, 1560

(11th Cir. 1991) (citation omitted). We review the district court's bench trial

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findings of fact for clear error. O'Ferrell v. United States, 253 F.3d 1257, 1265

(11th Cir. 2001).

Here, the district court used two calculation methods to determine that

Alvarez’s offense involved at least 1,000 marijuana plants, each time erroneously

counting marijuana clones as plants. Under the first method, however, the court

calculated 1,002 plants before counting any of the clones. That first calculation

reflects the court’s apparent acceptance of the government’s theory that Alvarez

was involved in the conspiracy for at least six ninety-day growing cycles, each of

which produced 167 plants. Since a reasonable factfinder could conclude that the

evidence supporting the government’s theory established Alvarez’s guilt beyond a

reasonable doubt, we affirm Alvarez’s conviction.

II. MIRIAM GIL

A. Brady and Jencks Act Violations

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Miriam argues that the district court made erroneous Brady or Jencks Act

rulings in three instances. In the first instance, Miriam moved to preclude

Wilfredo Cabrera del Sol and Roberto Valle from testifying and to strike Juan

Carlos Castellanos’s testimony because the government had not provided required

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). 1

18 U.S.C. § 3500(b). 2

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disclosures. The district court denied Miriam’s motion. It concluded that the

Supreme Court decisions requiring such disclosures were inapplicable because the

government called these witnesses to rebut the defendant’s safety-valve statement.

The district court’s ruling appears to be erroneous, at least insofar as it ruled

that Brady is inapplicable to sentencing hearings. See Chandler v. Moore, 240

F.3d 907, 915–16 (11th Cir. 2001) (considering the merits of defendant’s claim of

a Brady violation during his resentencing hearing). However, we need not address

the propriety of the court’s ruling because Miriam does not show, or even argue,

that the material she sought met the criteria for a Brady disclosure. See United

States v. Hansen, 262 F.3d 1217, 1234 (11th Cir. 2001) (per curiam) (setting forth

criteria for a Brady claim).

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In the second instance, Miriam moved, under the Jencks Act, for production

of the safety-valve statement that Valle had submitted in another case and for a

portion of the PSI from that case. The district court denied the motion. It found

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[T]o state . . . a [Brady] claim, a defendant must show (1) that the

government possessed evidence favorable to the defendant (including

impeachment evidence) . . . ; (2) that the defendant does not possess

the evidence nor could he obtain it himself with any reasonable

diligence . . . ; (3) that the prosecution suppressed the favorable

evidence . . . ; and (4) that had the evidence been disclosed to the

defense, a reasonable probability exists that the outcome of the

proceedings would have been different.

Hansen, 262 F.3d at 1234 (citation and quotation marks omitted). 

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that disclosure was not required because Miriam had already pled guilty, and Valle

was called only to rebut assertions that Miriam made in her safety-valve statement.

This ruling also appears to be erroneous. The Jencks Act applies at

sentencing hearings, and Valle was called by, and testified on direct examination

for, the government. FED. R. CRIM. P. 32. Again, however, the propriety of the

court’s ruling is irrelevant because Miriam does not show, or even argue, that the

documents she sought were “statements” under the meaning of the Jencks Act, or

that they were related to the subject matter of Valle’s testimony.

In the third instance, Miriam moved, under both Brady and the Jencks Act,

for production of debriefing notes taken by law enforcement agents who

interviewed Valle about his case. But these notes, as Miriam’s attorney confirmed,

had been turned over to the defense. Therefore, the record does not support

Miriam’s contention that the district court erroneously denied her motion for

production of these notes.

Because Miriam has not shown that she was denied access to any material

that she was entitled to receive, we find no reversible error in the district court’s

Brady and Jencks Act rulings. Although the record contains other references to

required disclosures, the Jencks Act, and Brady, Miriam has abandoned any

challenge to those by not addressing them plainly and prominently in her appellate

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brief. See United States v. Jernigan, 341 F.3d 1273, 1284 n.8 (11th Cir. 2003)

(noting that a claim that is not “plainly and prominently” indicated is abandoned on

appeal, even if properly preserved).

B. Safety Valve

Miriam further argues that the district court clearly erred by determining that

her safety-valve statement did not truthfully reveal her involvement in the offense.

“When reviewing the denial of safety-valve relief, we review for clear error a

district court's factual determinations. We review de novo the court's legal

interpretation of the statutes and sentencing guidelines.” United States v. Johnson,

375 F.3d 1300, 1301 (11th Cir. 2004) (per curiam) (citations omitted). The

defendant has the burden of proving her eligibility for safety-valve relief. Id. at

1302.

The Sentencing Guidelines provide for sentencing without regard to any

statutory minimum ("safety valve") when specific requirements are met. U.S.

SENTENCING GUIDELINES MANUAL § 5C1.2(a) (2008). To qualify for safety-valve

relief, the defendant must “truthfully disclose to the Government all information

and evidence that [s]he has about the offense and all relevant conduct.” Johnson,

375 F.3d at 1302 (citation and quotation marks omitted). "[I]t is the offense for

which the defendant is convicted that determines the scope of information which

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the defendant must disclose." Id. (citation omitted). In a conspiracy case, the

defendant is required to provide "all the information that [s]he possesses about

[her] involvement in the offense, including information relating to the involvement

of others and to the chain of the narcotics distribution." United States v. Cruz, 106

F.3d 1553, 1557 (11th Cir. 1997) (citation omitted).

We reject Miriam’s challenges to the district court’s finding that her safetyvalve statement failed to comply with §5C1.2(5)’s “tell-all” requirement.

Although the government did not prove that Miriam possessed a gun in furtherance

of her drug activities, details surrounding the recovery of her firearms were an

important part of this case. The record supports the district court’s finding that

Miriam was misleading about this. She stated that she did not know where the gun

was and that she did not help the agents find it. However, a Drug Enforcement

Administration agent rebutted her statements by testifying that Miriam told him

exactly where the gun was. Thus, the record supports the district court’s finding

that Miriam failed to comply with the “tell-all” requirement. We affirm the court’s

denial of safety-valve relief.

III. AMELIA GIL

A. Brady and Jencks Act Violations

Amelia adopts by reference Miriam’s argument that the district court

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unfairly impeded her defense by making various procedural errors, including

erroneous rulings under Brady and the Jencks Act. See FED. R. APP. P. 28(i)

(allowing an appellant to adopt by reference a portion of another party’s brief).

Since Miriam fails to establish that the district court committed any Brady or

Jencks Act errors that would require a remand, so does Amelia.

B. Safety Valve

Amelia further argues that the district court clearly erred by denying her

safety-valve relief based on Castellanos’s testimony. We disagree. The district

court credited some portions of Castellanos’s testimony and discreded others. The

court’s credibility determinations were within its discretion as a factfinder. United

States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002).

The district court’s finding that Amelia’s safety-valve statements were

inadequate is supported by the record. The court considered three specific

examples. First, the court determined that Amelia was involved in the operation by

2002 or 2003 and that her statement was incorrect to the extent she asserted that,

before 2005, she was only generally aware of Feliciano Castillo’s and Miriam’s

activities. The court’s factual finding regarding the date of Amelia’s involvement

was not clearly erroneous given Castellanos’s testimony that, on several occasions

in 2002 or 2003, Amelia cut marijuana plants and was present during conversations

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about the business.

Second, the court determined that Amelia’s statement was incorrect

regarding a conversation she had with Castellanos and Castillo about marijuana

activities. Castellanos testified that the conversation occurred in 2003, but Amelia

denied participating in it. Again, given Castellanos’s testimony, the court’s finding

that Amelia was not truthful on this point was not clearly erroneous.

Third, the court determined that Amelia’s statement was inadequate because

her direct testimony failed to state that Castellanos set up lights for Castillo.

Amelia’s testimony regarding Castellanos’s activities with Castillo was internally

inconsistent: on cross-examination, she testified that Castellano did “nothing” with

Castillo; on rebuttal, she testified that Castellano set up the electrical board, and

that Castillo shared this plan with her beforehand; and on cross-examination for

her rebuttal, she testified that she did not know that Castellanos set up the board

until after the fact.

To be sure, the district court was mistaken when it stated that Amelia was

asked on direct what did Castellanos do when he came over. The court correctly

noted, however, that Amelia did not discuss Castellanos’s involvement on direct

examination at all. Given the internal inconsistencies in her testimony regarding

Castellanos’s involvement, and considering the court’s warning that her testimony

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at sentencing should constitute the entirety of her safety-valve statement, the record

supports the court’s finding that her statement was inadequate on this point.

Finally, although Amelia asserts that the court erroneously found that she

recruited Castellanos, her assertion is not supported by the record, as the court

found that Miriam brought Castellanos to the houses. Thus, the record supports the

district court’s determination that Amelia’s safety-valve statement did not meet the

requirements of the “tell-all” provision. We affirm the court’s denial of safetyvalve relief.

IV. CONCLUSION

After carefully reviewing the record and the parties’ briefs, we find no

reversible error. We affirm Alvarez’s conviction and Miriam’s and Amelia’s

sentences.

AFFIRMED.

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