FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 APRIL 29, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-13365

Non-Argument Calendar

________________________

D. C. Docket Nos. 08-00228-CR-ORL-22KRS,

08-00228-CR-ORL-28KRS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAMON GOITIA MORA,

a.k.a. Moncho,

JONATHAN MELENDEZ,

a.k.a. Chulo,

a.k.a. Rasta,

Defendants-Appellants.

________________________

Appeals from the United States District Court

for the Middle District of Florida

_________________________

(April 29, 2010)
Before BLACK, MARTIN and FAY, Circuit Judges.

PER CURIAM:

Ramon Goitia-Mora and Jonathan Melendez appeal from their convictions

for conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.

§ 846. On appeal, Goitia-Mora and Melendez argue that their convictions should

be reversed because they were not involved in a single conspiracy with Miguel

Montes, as alleged in the indictment. They argue that, instead, they were involved

in a separate conspiracy that was not charged in the indictment. Goitia-Mora and

Melendez contend that there was thus a material variance between the charge set

forth in the indictment and the evidence presented at trial. Melendez argues that

this material variance caused him substantial prejudice because he was unable to

challenge the evidence concerning Montes’s drug-trafficking activities. He

concedes, however, that the government provided him with all of its discovery

regarding Montes’s drug-trafficking activities. Goitia-Mora does not point to any

prejudice that he suffered as a result of the alleged material variance.

In addition, Melendez argues that his conviction should be reversed because

the evidence showed that he had only a buyer-seller relationship with Montes, as

opposed to a conspiratorial relationship. He also asserts that the district court erred

by failing to instruct the jury that, where the extent of the relationship between two

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individuals is an agreement to buy and sell drugs, the evidence of this relationship,

standing alone, is insufficient to demonstrate the individuals were involved in a

conspiracy together.

For the reasons set forth below, we affirm.

I.

A federal grand jury charged the following defendants with conspiracy to

possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846:

(1) Melendez; (2) Goitia-Mora; (3) Omar Medina-Santiago; (4) Jose

Rosario-Oquendo; (5) Alberto Torres-Garrastequi; (6) Yahaira Cordero-Gonzalez;

(7) Alba Rivera; (8) Jessica Cruz; (9) Luis Cruz; (10) Jose Rodriguez;

(11) Edgardo Rivera-Ocana; and (12) Jorge Rivera.

At trial, Karl Weiss, a special agent employed by the Drug Enforcement

Administration, testified that he began an investigation into the present case in

August 2006, after U.S. postal inspectors learned that boxes containing cocaine

were being shipped from Puerto Rico into Orlando, Florida. In order to identify

the individuals responsible for these shipments, Weiss and other government

agents made controlled deliveries of the boxes to their intended recipients. The

agents then conducted surveillance to determine who ultimately took possession of

the boxes. During the investigation, the agents identified Miguel Montes as an

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individual who was involved in the drug-trafficking activity. By monitoring

Montes’s telephone communications, the agents learned that Montes

communicated with Melendez and Goitia-Mora during 2007.

Cordero-Gonzalez testified that Melendez was in the business of importing

cocaine from Puerto Rico, and that she had agreed to assist Melendez by receiving

boxes of cocaine from Puerto Rico via mail. Cordero-Gonzalez and her roommate,

Alba Rivera, agreed to further assist Melendez by procuring additional delivery

addresses for the shipments of cocaine. Rivera recruited Maria Adames and other

individuals to receive boxes of cocaine on Melendez’s behalf. After the boxes

were delivered to various addresses, Cordero-Gonzalez ensured that they

ultimately were delivered to Melendez. On cross-examination, Cordero-Gonzalez

testified that she did not know Montes, and had never met him. She explained that

Melendez did not communicate with many of the people that she had recruited to

receive boxes, and that he instead preferred to communicate only with her, and let

her manage the individuals who had been recruited to receive boxes.

Next, various government agents and U.S. postal inspectors testified that,

while conducting surveillance in this case, they observed that boxes of cocaine

were delivered to Melendez’s associates at various locations, including the

following addresses in the Orlando area—7513 Rio Pinar, 5823-B Diego Street,

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and 5740-B Shenandoah Way. Two of these witnesses testified that the boxes of

cocaine mailed to Melendez’s associates were packaged in the following manner:

one large “outer” box containing a smaller plastic box, with the smaller box

containing several kilograms of cocaine, as well as carbon paper, newspaper, and

dryer sheets.

Montes testified that he began importing cocaine from Puerto Rico into

Orlando, Florida, in 2005. He explained that, in order to ship cocaine, his

associates would place the cocaine in a small box. They would wrap the cocaine in

carbon paper and dryer sheets. They would then place the small box containing

cocaine into a larger box. Giorliana Cortijo assisted Montes by recruiting

individuals to receive the boxes of cocaine that were shipped from Puerto Rico.

Montes communicated with Cortijo rather than directly communicating with the

individuals.

Montes further testified that he knew Melendez and Goitia-Mora, but did not

know Alba Rivera or Cordero-Gonzalez. Montes would speak with Melendez

about the cocaine business, stating the following about the nature of their

conversations: “[T]wo people that are in the same business, you know, talk about

the business, you know, how things [are] going, this and that.” On anywhere

between 10 to 15 occasions, he supplied Melendez with cocaine on a credit basis,

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whereby he would give cocaine to Melendez, and Melendez would pay him for the

cocaine after he resold it. On at least one occasion, Melendez likewise supplied

approximately two kilograms of cocaine to Montes on a credit basis. Goitia-Mora

often would serve as a courier of cocaine and money between Melendez and

Montes. Montes identified a notebook as a notebook that he had used to keep track

of various aspects of his drug-trafficking business. In this notebook, he and

Cortijo had recorded addresses that he used to receive shipments of boxes of

cocaine. These addresses included the following Orlando locations, among others:

(1) 5740-B Shenandoah Way, (2) 5823-B Diego Street, and (3) 7513 Rio Pinar.

The government played recordings of telephone conversations between

Montes and Melendez. In one of these conversations, Melendez and Montes

discussed the price of cocaine, and they also discussed the fact that there had been

complaints about the quality of a particular type of cocaine. In addition, Montes

informed Melendez that a box of cocaine that he had been expecting from Puerto

Rico was missing. Montes explained that the box was supposed to be delivered to

Adames. By checking with the shipping company, Montes knew that the package

had arrived in the United States and had been received by an individual. Adames,

however, denied receiving the box. When Montes informed Melendez of this

situation, Melendez offered to assist him in finding the missing box. Montes had

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believed that the box was stolen, and ultimately called Adames and threatened to

kill her. The government next played a recording of a telephone conversation

between Montes and one of his associates in Puerto Rico, wherein the two

discussed the missing box of cocaine.

The government also played recordings of numerous June 2, 2007, telephone

conversations between Melendez, Montes, and Goitia-Mora. In these

conversations, they discussed a cocaine transaction, in which Montes would deliver

cocaine to Goitia-Mora, and Goitia-Mora would deliver the cocaine to Melendez.

In one of these conversations, which was between Melendez and Montes,

Melendez asked Montes to give him a discount of $200 on some cocaine so that he

could pay Goitia-Mora and still make a $500 profit. Regarding the transaction on

June 2, Montes explained that, when he delivered the cocaine to Goitia-Mora, he

understood that Melendez would sell the cocaine to customers and then pay him

for the cocaine. Additional telephone conversations between Melendez and

Montes reflected that they would discuss the price and quality of the cocaine that

was generally available in the narcotics trade, and would tease each other in a

friendly manner.

On cross-examination, Montes testified that, in his view, he and Melendez

ran separate drug-trafficking organizations. Montes knew that Melendez received

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packages of cocaine from Puerto Rico, but did not know who acted as Melendez’s

source of cocaine in Puerto Rico. He and Melendez had separate cocaine suppliers.

He and Melendez did not share profits with each other. Goitia-Mora did not run

errands for Montes, and Montes did not pay Goitia-Mora. Montes communicated

with Goitia-Mora only when Goitia-Mora acted as a courier between himself and

Melendez. Apart from Goitia-Mora, Montes did not know who was in Melendez’s

drug-trafficking organization.

On redirect examination, Montes testified that, between January and June of

2007, he sold approximately 50 kilograms of cocaine to Melendez, at prices

ranging between $18,000 to $21,000 per kilogram. Thus, he received

approximately $1,000,000 from Melendez during this 6-month period.

Ray Schulte, an agent employed by the Orange County Sheriff’s Office,

testified that, on May 31, 2007, he observed that a package of cocaine was

delivered to Adames. The officers monitored telephone calls between Montes and

Adames on that day and, as result, the officers were concerned about Adames’s

safety. On cross-examination, Schulte testified that, based on the telephone

conversations that he monitored on May 31, he believed that the box of cocaine

that was missing belonged only to Montes and did not belong to Melendez. He

further testified that his concern for Adames’s safety on May 31 had nothing to do

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with Melendez.

After the government rested its case, Melendez moved for a judgment of

acquittal under Fed.R.Crim.P. 29, arguing that the government failed to prove that

a single conspiracy existed, as charged in the indictment. He argued that the

evidence showed that he and Montes ran separate drug organizations. Melendez

asserted that, to the extent that Adames or any other individual served both

organizations as a cocaine recipient, this overlap was incidental, and did not occur

due to any agreement between himself and Montes. Melendez further pointed out

that he and Montes had separate cocaine suppliers and did not share profits. He

argued that the extent of the relationship between his and Montes’s organizations

was a buyer-seller relationship, where each organization occasionally purchased

cocaine from the other organization.

Goitia-Mora joined in Melendez’s motion, arguing that the variance between

the single conspiracy charged in the indictment and the evidence presented at trial

was so material that it had substantially prejudiced him. Goitia-Mora argued that

the jury would not be able to differentiate between the two conspiracies that

actually existed, and would likely transfer the guilt attributable to parties in

Montes’s group to parties in Melendez’s group. Melendez argued that the material

variance between the indictment and the evidence presented at trial prejudiced him

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because the government introduced evidence of Montes’s threats of violence

against Adames over the missing cocaine shipment. He asserted that this evidence

pertained only to Montes and the separate conspiracy with which Montes was

involved, and that he thus had not been able to challenge this evidence adequately.

The court denied Melendez’s and Goitia-Mora’s Rule 29 motions, finding

that there was sufficient evidence to permit the jury to decide whether they were

involved in a single conspiracy with Montes, as alleged in the indictment. The

parties had a charge conference, but it is not clear from the transcript whether they

discussed a buyer-seller jury instruction. While Melendez referred to his proposed

jury instructions during the charge conference, which he apparently had filed with

the court at an earlier date, the record does not contain Melendez’s proposed jury

instructions.

In his closing argument, Melendez argued to the jury that the evidence

demonstrated that there had been two separate conspiracies—one among the

members of Montes’s group and another among the members of his

group—instead of a single conspiracy, as charged in the indictment. Melendez

further argued to the jury that, in the event that they did not find that a single

conspiracy existed, they were required to acquit him. In his closing statement,

Goitia-Mora asserted substantially the same argument. In its jury instructions, the

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court explained to the jury that the defense’s theory was that the government had

failed to prove that they were involved in a single conspiracy with Montes, as

charged in the indictment. The court also instructed the jury that, if they found that

the single conspiracy alleged in the indictment did not exist, they were required to

acquit Melendez and Goitia-Mora. The court did not give a buyer-seller jury

instruction. The jury found Melendez and Goitia-Mora guilty of the conspiracy

charge set forth in the indictment.

II.

We will not reverse a conviction on the ground that a single conspiracy was

alleged in the indictment, while multiple conspiracies were proven at trial, unless

the variance between the charged conspiracy and the evidence presented at trial is

material, and the material variance prejudiced the defendant. United States v.

Richardson, 532 F.3d 1279, 1284 (11th Cir. 2008), cert. denied, 129 S.Ct. 950

(2009). We need not decide whether a jury reasonably could have found that a

single conspiracy existed where it is apparent that the defendant cannot

demonstrate substantial prejudice. United States v. Starrett, 55 F.3d 1525, 1553

(11th Cir. 1995).

In order to determine whether there is a material variance, we examine

whether sufficient evidence supports the jury’s verdict that a single conspiracy

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existed. Richardson, 532 F.3d at 1284. If the evidence, as viewed in the light most

favorable to the government, supports the jury’s determination that a single

conspiracy existed, then there is not a material variance between the indictment and

the evidence presented at trial. Id. In considering whether a jury reasonably could

have found that a single conspiracy existed, it is necessary to consider the

following factors: “(1) whether a common goal existed; (2) the nature of the

underlying scheme; and (3) the overlap of participants.” Id. (quotation omitted).

The common goal element is defined “as broadly as possible.” Id. at 1285.

“[C]ommon . . . means similar or substantially the same, rather than shared or

coordinate.” Id. (quotation omitted). Regarding the third prong of the test, there

need not be an overlap among all of the participants, and that the co-conspirators

need not know of each other in order to be involved in the same conspiracy. Id.

at 1285-86. Moreover, “[i]f a defendant’s actions facilitated the endeavors of other

co-conspirators, or facilitated the venture as a whole, a single conspiracy is

established.” Id. at 1284 (quotation omitted).

Even if there is a material variance between the conspiracy charged in the

indictment and the evidence presented at trial, a defendant must demonstrate that

he was substantially prejudiced by this variance in order to obtain the reversal of

his conviction. Id. at 1286. In order to demonstrate that he was substantially

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prejudiced by a material variance between the indictment and the evidence

presented at trial, a defendant must show either that: (1) he was unfairly surprised

by the evidence presented at trial, and thus was unable to prepare an adequate

defense; or (2) there were so many defendants and separate conspiracies that there

was a substantial likelihood that the jury would transfer the proof of one

conspiracy to a defendant involved in another conspiracy. Id. at 1286-87. It is the

defendant’s burden to demonstrate prejudice. See United States v. Calderon, 127

F.3d 1314, 1328 (11th Cir. 1997) (holding that, even if we were to conclude that

there was a material variance, it would be “incumbent” on the defendant to

demonstrate that the variance substantially prejudiced him). We have held that,

where a case involved 11 defendants and 2 possible conspiracies, the case was “not

so complex by definition that the jury [would] be unable to segregate the evidence

properly.” United States v. Caporale, 806 F.2d 1487, 1501 (11th Cir. 1986).

Here, viewing the evidence in the light most favorable to the government,

there was sufficient evidence to permit the jury to conclude that Melendez and

Goitia-Mora were involved in the single conspiracy alleged in the indictment. The

evidence demonstrated that Melendez, Goitia-Mora, Montes, and their associates

shared the common goal of importing cocaine from Puerto Rico into the Orlando

area in order to resell it for a profit. In addition, the evidence showed that the

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nature of the underlying scheme was substantially the same among Montes and his

associates and Melendez and his associates. Both Melendez and Montes imported

cocaine from Puerto Rico, albeit from different suppliers. The boxes of cocaine

that Melendez and Montes received were packaged in a substantially similar

manner. In addition, both Melendez and Montes hired at least one individual to

arrange for the safe delivery of the cocaine packages by procuring delivery

addresses and managing the individuals who took delivery of the boxes.

Finally, there was sufficient evidence of overlapping participants between

the two organizations to support the jury’s verdict. Melendez and Montes assisted

each other by supplying each other with cocaine on a credit basis, and Goitia-Mora

assisted both Melendez and Montes by carrying cocaine and money between them.

Adames received cocaine on behalf of both Melendez and Montes. In addition, the

evidence also showed that some of the addresses used by Melendez to receive

cocaine shipments were also used by Montes for the same purpose. Thus, despite

the fact that the record contained evidence that Melendez and Montes operated

separate drug organizations, the jury still reasonably could have found that

Melendez and Goitia-Mora were involved in a single conspiracy with Montes.

Moreover, even if we were to conclude that the jury could not have

reasonably found that a single conspiracy existed, Goitia-Mora’s and Melendez’s

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convictions would still be due to be affirmed because they have not demonstrated

substantial prejudice. Goitia-Mora does not point to any evidence of prejudice in

his brief on appeal. Melendez concedes, in his brief on appeal, that the

government provided him with all of its discovery related to Montes’s drug

trafficking. Throughout the trial proceedings, neither Melendez nor Goitia-Mora

indicated that they were unfairly surprised by the government’s evidence. Rather,

defense counsel for both parties thoroughly cross-examined the evidence

introduced by the government, including Montes’s testimony concerning his

importation and distribution of drugs. While Melendez asserts that the evidence

concerning Montes’s threats of violence against Adames was prejudicial, defense

counsel established, during cross-examination of Montes and Agent Schulte, that

Melendez was not involved in this incident.

In addition, while Melendez argues that the evidence of Montes’s

drug-trafficking activities must have confused the jury, this case involves only 2

defendants and 2 possible conspiracies, and we have held that a case involving 11

defendants and 2 conspiracies is not so complex as to prejudice a defendant by

confusing a jury. See Caporale, 806 F.2d at 1501. Moreover, Melendez’s and

Goitia-Mora’s claims of prejudice are further undermined by the fact that they both

focused on single-conspiracy arguments in their closing statements, and the district

15
court clearly instructed the jury that, if it found that there were multiple

conspiracies instead of the single conspiracy charged in the indictment, it must

acquit Melendez and Goitia-Mora. Accordingly, even if there was a material

variance, Goitia-Mora and Melendez cannot demonstrate that this variance caused

them substantial prejudice.

III.

We review de novo the issue of whether the evidence is sufficient to support

the jury’s determination that individuals entered into a conspiracy. United States v.

Mercer, 165 F.3d 1331, 1333 (11th Cir. 1999). There is a “critical distinction

between a conspiratorial agreement and a buyer-seller transaction.” Id. at 1335. In

a buyer-seller relationship, the parties come to an agreement, but the agreement

amounts to the mere exchange of drugs for money. Id. This type of transaction “is

simply not probative of an agreement to join together to accomplish a criminal

objective beyond that already being accomplished by the transaction.” Id.

(quotation omitted). In other words, “[w]here the buyer’s purpose is merely to buy

and the seller’s purpose is merely to sell, and no prior or contemporaneous

understanding exists between the two beyond the sales agreement, no conspiracy

has been shown.” Id. (quotation omitted).

On the other hand, a jury may infer that a conspiratorial relationship exists

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between two parties to a drug transaction where “the evidence shows a continuing

relationship that results in the repeated transfer of illegal drugs to the purchaser.”

Id. Thus, we have held that there was sufficient evidence of a conspiracy where

the defendant purchased cocaine from the same supplier on a credit basis on

several occasions, the supplier knew that the defendant was reselling the cocaine

for a profit, and the defendant helped the supplier arrange for a shipment of

cocaine. United States v. Beasley, 2 F.3d 1551, 1560-61 (11th Cir. 1993). This

evidence demonstrated that the relationship between the supplier and the defendant

was “far more than merely a buyer-seller relationship.” Id. at 1560.

Here, the evidence showed that Melendez’s and Montes’s relationship went

beyond that of mere buyer and seller. Montes testified that he sold cocaine to

Melendez on a credit basis on anywhere between 10 to 15 occasions. During these

transactions, he sold approximately 50 kilograms of cocaine to Melendez in

exchange for approximately $1,000,000. Melendez also sold approximately two

kilograms of cocaine to Montes on a credit basis. When discussing the price of

cocaine with Montes, Melendez asked that Montes give him a discount so that

Melendez could make a larger profit from the cocaine. In addition, in their

telephone conversations, Melendez and Montes discussed the state of the cocaine

market in general. In one conversation, Melendez offered to help Montes recover a

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missing cocaine shipment. Because Melendez and Montes transacted in cocaine

with each other on over ten occasions, supplied each other with large quantities of

cocaine on a credit basis, and discussed profit margins and the state of the cocaine

market in general, the jury reasonably could infer that they sold each other cocaine

with the knowledge that it would be resold at a profit to other consumers.

Accordingly, Melendez’s argument that the district court should have granted his

motion for a judgment of acquittal because he and Montes had only a buyer-seller

relationship lacks merit.

IV.

We review a district court’s failure to give a requested jury instruction for

abuse of discretion. United States v. Gomez, 164 F.3d 1354, 1355-56 (11th Cir.

1999). The buyer-seller jury instruction is based upon the law that, where the

extent of the relationship between two individuals is an agreement to buy and sell

narcotics, this evidence does not demonstrate that the two individuals were in a

conspiracy together. See Beasley, 2 F.3d at 1560-61. This instruction is not

appropriate where two individuals frequently deal in large quantities of narcotics.

Gomez, 164 F.3d at 1356.

It is unclear whether Melendez has preserved this argument properly for

appeal, as the record does not include his proposed jury instructions, and the

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transcript of the charge conference does not clearly indicate whether the parties

discussed the buyer-seller jury instruction. In any event, we need not decide this

issue because Melendez’s argument lacks merit regardless of the standard of

review. As discussed above, the evidence did not demonstrate that Melendez and

Montes had merely a buyer-seller relationship, and, as a result, the buyer-seller

jury instruction was not warranted.

AFFIRMED.

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