FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 April 13, 2005 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 03-10350

________________________

D. C. Docket No. 01-00812-CR-PAS

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JOSE ROLANDO GARCIA, 

LEONARDO ANTONIO ENRIQUEZ-VALDES, 

a.k.a. Leo, 

ALBERTO ARTIRES, 

ENICIO MERCADO, 

Defendants-Appellants. 

________________________

Appeals from the United States District Court

for the Southern District of Florida

_________________________

(April 13, 2005)
*Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,

sitting by designation.

The jury acquitted both Garcia and Mercado of charges that they knowingly and 1

intentionally manufactured marijuana, acquitted Mercado of a charge that he knowingly

maintained a place for the purpose of manufacturing marijuana, and acquitted Julio Artires on all

charges against him. Additionally, the jury found co-defendant Felipe Suarez guilty on all

counts charged against him. However, Suarez did not appeal either his conviction or his

sentence.

2

Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and RESTANI*,

Judge.

PER CURIAM:

We withdraw our previous opinion issued on March 22, 2005, and replace it

with this opinion.

This appeal arises out of the convictions and sentences of appellants Jose

Rolando Garcia, Leonardo Antonio Enriquez-Valdes, Alberto Artires, and Enicio

Mercado. After a twelve day trial, a jury found these four appellants guilty of

conspiracy to manufacture and possess with intent to distribute 100 or more

marijuana plants in violation of 21 U.S.C. § 846. Garcia, Valdes and Artires were

also convicted for maintaining a place for the purpose of manufacturing marijuana

in violation of 21 U.S.C. § 856(a)(1). Additionally, the jury found Valdes and

Artires guilty of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1). 

1

On appeal, the appellants contend that the district court made a variety of

errors, including: (1) the denial of appellants’ motions seeking judgment of
All other issues raised on appeal do not merit further discussion and are summarily 2

rejected. 

3

acquittal on insufficiency of the evidence grounds; (2) the admission of improper

and irrelevant evidence; (3) the denial of joint motions for mistrial or, in the

alternative, severance based on the alleged improper and prejudicial closing

argument of counsel for Valdes; (4) the rejection of Garcia’s proposed jury

instruction for accessory after the fact; (5) at sentencing, the denial of Valdes’s

motion for a reduction in sentence pursuant to U.S.S.G. § 5C1.2, the “safety-valve”

provision; and (6) at sentencing, the court’s finding that Alberto Artires was

responsible for over 300 marijuana plants when the jury specifically found that he

was not involved in more than 100 marijuana plants. 

2

As to the convictions and sentences of Garcia and Mercado, we find no error

and affirm. As to Valdes and Alberto Artires, we affirm their convictions, but

vacate the judgments and remand for re-sentencing.

I. FACTUAL BACKGROUND

This case involves a network of marijuana grow houses, both active and

dismantled, located throughout South Florida. During the course of the

government investigation, which spanned over a period of one and one-half years,

agents searched and investigated at least twelve residences located in and near
The cultivation of marijuana requires a very controlled environment. Marijuana grow 3

houses are sealed both to conceal the illegal activity and to keep out the natural light. Highwattage fluorescent lights are used to focus artificial light on the plants and Mylar film is

attached to the walls to stimulate growth and allegedly minimize detection by infra-red detection

devices. Because the artificial light emits large quantities of heat, grow houses are typically

equipped with a venting system including exhaust fans and large air conditioning units. 

Young marijuana plants are first grown in plastic starter trays before they are

transplanted to a material called “rock wool” and placed in large buckets with ceramic rocks

called “grow rocks.” Together, the rock wool and grow rocks act as a soil substitute. Water and

fertilizer are pumped through PVC pipes into holes drilled in the buckets. To harvest the

marijuana narcotic, the leaves and stems on the plants are clipped away and the collases, large

masses of buds covered with a sticky resin, are hung to dry.

4

Miami.3

In May of 2000, the FBI received a confidential tip that Yovanni Espinosa

was operating a grow house in an efficiency apartment behind a house located at

15604 N.W. 37th Avenue in Opa Locka, Florida. Upon executing a search warrant

at this location on June 19, 2000, agents discovered a fully functioning marijuana

grow house with 104 marijuana plants plus additional decomposing plants. The

subject apartment had a high-voltage lighting system, a self-contained irrigation

and fertilization system, Mylar-covered walls, and large air conditioning units. 

The agents also discovered miscellaneous photographs at the residence. One

photograph was a picture of a group of men, including co-defendants Alberto

Artires, Felipe Suarez, Enicio Mercado, Javier Rey, and Pedro Pablo Aldao. 

Another picture depicted a house numbered “8504” and what appeared to be the

same vehicle as a vehicle located at the house being searched. 
Suarez was listed as the subscriber on the electric records for 8504 Sheraton Drive from 4

October 12, 1999 through December 15, 2000.

5

On June 20, 2000, the agents searched Espinosa’s property located at 2968

Northwest 87th Terrace in Miami, Florida. At this address, the agents met Aldao

and discovered 48 mature marijuana plants that had been harvested and were

hanging to dry. Additionally, agents found 47 immature marijuana plants,

marijuana seedlings in starter trays, two live mother plants, and equipment used to

hydroponically grow marijuana. 

On June 21, 2000, at Espinosa’s 15604 N.W. 37th Avenue residence, the

agents seized a photograph containing a sports utility vehicle, which they later

determined was registered to co-defendant Felipe Suarez. Upon searching

Suarez’s residence located at 8504 Sheraton Drive, Miramar, Florida that same 4

day, agents found decomposing marijuana material, paraphernalia for growing

marijuana, and a bedroom that appeared to have been equipped to grow marijuana,

but had been dismantled. 

Having received confidential information while at 8504 Sheraton Drive, the

agents immediately searched 8545 Long Acre Drive in Miramar, Florida. After

Mario Artires, the brother of Alberto Artires, consented to the search, the agents

discovered 90 marijuana plants and marijuana cultivation paraphernalia in a

bedroom that had been converted into a grow lab. 
6

On June 23, 2000, in response to information from a confidential source, the

agents searched a home at 9290 S.W. 149th Street, Miami, Florida, the home of

Reynaldo Artires, brother of Alberto and Mario Artires. There, agents found

marijuana cultivation materials and a dismantled grow house in Reynaldo’s garage,

but did not find any marijuana plants. After noticing that Reynaldo’s driver’s

license listed 1165 W. 33rd Street, Hialeah, Florida, as his address instead of the

home being searched, the agents immediately continued to that address. At 1165

W. 33rd Street, the agents met Garcia, who told them that he was renting the house

from Reynaldo. The agents did not find anything in the residence, but a police dog

alerted them to potential contraband in an efficiency apartment adjoining the house

and a white van parked in the driveway. In the apartment, the agents discovered

marijuana cultivation materials, marijuana leaves, and a dismantled grow house. 

Notably, two fingerprints on the Mylar film covering the walls in the apartment

matched the fingerprints of Garcia. Additionally, the white van, which was

registered to Garcia, contained a plastic starter tray, five-gallon buckets, PVC

piping, and other materials that the agents had observed in other grow houses

during the investigation of this conspiracy. 

On July 5, 2000, agents searched 3092 N.W. 15th Street, Miami, Florida. 

Espinosa had previously lived at this address until it was purchased by Suarez. 
7

Upon the arrival of the agents, the current tenant, Javier Rey, an indicted coconspirator who pled guilty prior to trial, consented to the search. At 3092 N.W.

15th Street, the agents discovered a dismantled grow house and marijuana

cultivation materials. On July 10, 2000, agents searched a home located at 11601

S.W. 9th Court in Pembroke Pines, Florida. There, the agents met Julio Artires,

who rented the home. The following day, agents seized items such as an air

handler, fluorescent lights, a cooler, and a digital scale from the residence. 

Approximately nine months later, on April 6, 2001, the agents searched

3129 N.W. 13th Avenue, Miami, Florida after receiving a tip from an industrial gas

vendor. There, the agents found a plastic tray filled with 17 bags of processed

marijuana, unused rock wool, PVC piping, ceramic grow rocks, and a scale. In one

of the bathrooms of the residence, holes had been drilled into the ceiling and the

window was sealed with Mylar film and duct tape. That day agents also searched

1285-87 N.W. 28th Street, Miami, Florida, where they again found marijuana

cultivation paraphernalia. 

Five months later, on September 26, 2001, the agents searched 8600 N.W.

30th Road, Miami, Florida. At this residence, the agents met Valdes. In a small

apartment at the rear of the residence, the agents found a fully-functioning grow

house with 117 marijuana plants. Approximately three surveillance cameras were
8

mounted on the roof of the small apartment. The wires for this surveillance system

ran from the apartment into the main residence. The agents recovered fingerprints

that matched Mercado’s fingerprints from the Mylar film found in the apartment. 

According to the electricity records, Valdes was the subscriber for both the

apartment and the main residence. 

On October 17 and 18, 2001, agents searched 15601 N.W. 39th Court, Opa

Locka, Florida, an address for which Alberto Artires was listed as the subscriber on

the electricity records. Alberto Artires consented to the search. There, agents

found marijuana cultivation paraphernalia, several nursery trays with marijuana

leaves in them, and small amounts of marijuana residue. 

In addition to the physical evidence and testimony of the agents, government

witnesses including co-conspirators Manual Horta, Espinosa, Aldao, and Hernando

Hernandez testified against appellants at trial. The government’s key witness was

Espinosa, who pled guilty prior to trial. He testified that within a year of moving

to Florida from Cuba, he began assisting with marijuana cultivation. Initially,

Espinosa and others, including indicted co-conspirators Alberto, Mario, and

Reynaldo Artires, would assist Hernandez, an unindicted co-conspirator, maintain

grow houses and clip marijuana plants, including 33 plants grown at 1600 N.W.

28th Avenue in Miami, Florida. 
9

Espinosa also testified that since moving to Florida, he has lived in four

houses with Suarez. With the help of Mercado and Alberto, Mario, and Reynaldo

Artires, Suarez and Espinosa grew crops of approximately 40 to 44 marijuana

plants at one house. At another house, Suarez, Mercado, and Espinosa grew three

crops of 30 marijuana plants, which they dried and clipped with the help of

Alberto, Mario, and Reynaldo Artires. Espinosa testified that he, Suarez, Mercado,

and Alberto and Julio Artires also grew, dried, and clipped two crops of 50-55

marijuana plants at a grow house in Carol City, Florida. 

Espinosa testified that he and Aldao, who also pled guilty prior to trial, grew

three crops of approximately 48 marijuana plants at 2968 N.W. 87th Terrace in

Miami. While Espinosa held the title to the residence, Aldao lived there and

maintained the plants with the help of Espinosa, Mercado, Alberto Artires, and

Suarez. Espinosa also owned 15604 N.W. 37th Avenue, where he harvested one

crop of 40 marijuana plants with the help of Alberto Artires, Mercado, Suarez, and

Rey. Espinosa was in the process of growing a second crop of 40 plants plus

cultivating seedlings when he was arrested. Espinosa also testified that he helped

Alberto Artires cultivate a crop of 48 marijuana plants at Artires’s home near the

airport in Opa Locka. 

Espinosa testified that he and Mercado set up a grow house for Valdes in an
10

efficiency apartment adjoining a rear bedroom of Valdes’s house located at 8600

N.W. 30th Road while Valdes watched. With seedlings provided by Aldao, Valdes

proceeded to grow two crops of marijuana plants, 53 and 50 plants respectively. 

These crops were clipped by Espinosa, Alberto Artires, Mercado, Valdes, Suarez,

and others. 

Aldao testified that he, like Espinosa, emigrated to Florida from Cuba. After

working in various jobs, Aldao started cultivating marijuana crops with Mercado

and Espinosa. Mercado, Espinosa, and Aldao grew a crop of over 90 plants at

Aldao’s house. At the time of Aldao’s arrest, he was drying his second crop of 96

marijuana plants at 2968 N.W. 87th Terrace in Miami. 

Hernandez, an unindicted co-conspirator, testified that he too moved to

Florida from Cuba. After being introduced to Suarez, Hernandez and Suarez set up

many grow houses together. Each grow house had its own separate caretaker. 

Hernandez testified that Alberto Artires may have assisted Suarez and him with

clipping marijuana plants, and that Alberto Artires and his brothers provided him

with marijuana to sell. 

FBI Intelligence Research Specialist Maureen Hollinger testified that

hundreds of calls had been made between the telephone numbers of Garcia,

Alberto Artires, Mercado, and other co-conspirators. The analyst did not testify
11

that any calls had been made to or from Valdes. She also testified as to the

ownership of the various residences investigated and searched by the agents. She

testified that, from January 1997 through October 2001 (the span of the

conspiracy) the following individuals were the title owners of the following

properties: Espinosa owned 15604 N.W. 37th Avenue, Opa Locka, and 2968 N.W.

87th Terrace, Miami; Suarez owned 8504 Sheraton Drive, Miramar, and 3092

N.W. 15th Street, Miami; Mario Artires owned 8545 Long Acre Drive, Miramar;

and Albert Artires owned 15601 N.W. 39th Court, Opa Locka. 

II. PROCEDURAL BACKGROUND

On August 31, 2001, a federal grand jury in the Southern District of Florida,

Miami Division, returned a sealed indictment charging nine defendants, including

Garcia, with various marijuana manufacturing and distribution offenses. On

December 14, 2001, the grand jury returned a superseding indictment adding

Alberto Artires, Mercado, and Valdes as defendants. Count I charged all the

defendants but Espinosa with conspiring to manufacture and possess with intent to

distribute 100 or more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1) and

846(b)(1)(B). The superseding indictment alleged that the conspiracy existed from

January 1997 through October 18, 2001.

In addition to the conspiracy charge, Garcia and Artires were charged in
The jury acquitted co-defendant Julio Artires. Co-defendant Suarez was found guilty on 5

all counts charged against him, but did not appeal his conviction or sentence. 

12

Counts 10 and 20, respectively, with knowingly and intentionally manufacturing

marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D) and 18 U.S.C. §

2. Valdes and Mercado were similarly charged in Count 18, which specified that

they manufactured 100 or more marijuana plants. Garcia was charged in Count 11

with knowingly and intentionally maintaining a residence located at 1165 W. 33rd

Street, Hialeah, Florida for the purpose of manufacturing marijuana in violation of

21 U.S.C. §§ 856(a)(1) and 18 U.S.C. § 2. Valdes and Mercado were charged in

Count 19 with knowingly and intentionally maintaining a residence located at 8600

N.W. 30th Road, Miami, Florida for the purpose of manufacturing marijuana in

violation of 21 U.S.C. §§ 856(a)(1) and 18 U.S.C. § 2. Artires was similarly

charged in Count 21 with knowingly and intentionally maintaining a residence

located at 15601 N.W. 39th Court, Opa Locka, Florida for the purpose of

manufacturing marijuana in violation of 21 U.S.C. §§ 856(a)(1) and 18 U.S.C. § 2. 

Beginning September 23, 2002, appellants and two other co-defendants were

tried together before a jury. None of the appellants testified at trial. On October 5

11, 2002, the jury began its deliberations. Ultimately, the jury found appellants

guilty as follows: Garcia guilty of conspiracy (Count 1) and maintaining 1165 W.

33rd Street, Hialeah, Florida, for the purpose of manufacturing marijuana (Count
The jury acquitted Garcia of the charges in Count 10, acquitted Mercado of the charges 6

in Counts 18 and 19, and acquitted Julio Artires on all counts. Suarez was found guilty on all

counts charging him, but is not a party to this appeal. 

13

11); Valdes guilty of conspiracy (Count 1), manufacturing 100 or more marijuana

plants (Count 18), and maintaining 8600 N.W. 30th Road, Miami, Florida, for the

purpose of manufacturing marijuana (Count 19); Artires guilty of conspiracy

(Count 1), maintaining marijuana (Count 20), and maintaining 15601 N.W. 39th

Court, Opa Locka, Florida, for the purpose of manufacturing marijuana (Count

21); and Mercado guilty of conspiracy (Count 1). Appellants were sentenced on 6

February 7, 2003, and are currently incarcerated. 

III. DISCUSSION

A. Sufficiency of the Evidence

Appellants contend that, because the evidence was insufficient for a

reasonable jury to convict them, the district court erred in denying their motions

for judgment of acquittal filed pursuant to Rule 29 of the Federal Rules of Criminal

Procedure. We review the sufficiency of the evidence de novo, viewing the

evidence in the light most favorable to the government. United States v. Starrett,

55 F.3d 1525, 1541 (11th Cir. 1995). We must affirm the appellants’ convictions

unless, under no reasonable construction of the evidence, could the jury have found

the appellants guilty beyond a reasonable doubt. United States v. Camargo-
14

Vergara, 57 F.3d 993, 997 (11th Cir. 1995). All reasonable inferences

and credibility choices must be made in favor of the government and the jury’s

verdict. United States v. Massey, 89 F.3d 1433, 1438 (11th Cir. 1996). 

1. Challenges to Conspiracy Count

After a twelve day trial, the jury found the appellants guilty of participating

in a conspiracy to manufacture and possess with the intent to distribute marijuana,

in violation of 21 U.S.C. § 846. Appellants argue that there was insufficient

evidence of a conspiracy and no evidence that each of the defendants intended to

participate in a conspiracy. “To support a conspiracy conviction, the government

must prove (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. Smith, 289 F.3d 696, 706 (11th Cir. 2002) (citation and

internal quotations omitted). 

To prove participation in a conspiracy, the government must have proven

beyond a reasonable doubt, even if only by circumstantial evidence, that a

conspiracy existed and that the defendant knowingly and voluntarily joined the

conspiracy. United States v. Charles, 313 F.3d 1278, 1284 (11th Cir. 2002), cert.

denied, 539 U.S. 933 (2003). Thus, at issue is whether there was sufficient

evidence for the jury to find that the appellants knowingly volunteered to join the
Although Alberto Artires did not explicitly challenge the sufficiency of the evidence in 7

his brief, he adopted by reference the relevant portions of his co-appellants’ briefs pursuant to

Rule 28(i) of the Federal Rules of Appellate Procedure. Because the other three appellants

challenged their conspiracy convictions, we have also addressed whether there was sufficient

evidence for the jury to convict Alberto Artires of conspiracy.

15

conspiracy to sustain their conviction as to Count 1. To satisfy this burden, the 7

government need not prove that the defendants knew all of the detail or

participated in every aspect of the conspiracy. Id. at 1284. Rather, the government

must only prove that the defendants “knew the essential nature of the conspiracy.” 

Id. 

Whether the appellants knowingly volunteered to join the conspiracy may be

proven by “direct or circumstantial evidence, including inferences from the

conduct of the alleged participants or from circumstantial evidence of a scheme.” 

United States v. Rodriguez, 765 F.2d 1546, 1551 (11th Cir. 1985) (citation and

internal quotations omitted). “Indeed, because the crime of conspiracy is

predominantly mental in composition, it is frequently necessary to resort to

circumstantial evidence to prove its elements.” United States v. Pineiro, 389 F.3d

1359, 1369 (11th Cir. 2004) (citation and internal quotations omitted). 

Appellants challenge the trial testimony of co-conspirators Espinosa and

Aldao as incredible, untrustworthy, and uncorroborated. Nevertheless,

uncorroborated testimony of an accomplice may be enough to support a conviction
16

if the testimony is not on its face incredible or otherwise insubstantial. United

States v. Butler, 792 F.2d 1528, 1536 (11th Cir. 1986). Because credibility

determinations are the exclusive province of the fact finder, we cannot disregard

the jury’s credibility determination unless it is “unbelievable on its face.” United

States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985).

In addition to the testimony of Espinosa and Aldao, the government offered

the testimony of other witnesses, including fact witnesses and government agents. 

The government also offered telephone records and electrical company subscriber

records. This evidence coupled with an abundance of physical evidence, including

photographs of marijuana plants and cultivation paraphernalia, clearly indicate a

marijuana cultivation network. Based on the evidence offered at trial, a reasonable

jury easily could have found a conspiracy to manufacture marijuana. “Once the

existence of a conspiracy is established, only slight evidence is necessary to

connect a particular defendant to the conspiracy.” United States v. Clavis, 956

F.2d 1079, 1085 (11th Cir. 1992). Because there was sufficient evidence

connecting Garcia, Valdes, Alberto Artires, and Mercado to the conspiracy, their

convictions as to Count 1 should be sustained. 

2. Challenges to Substantive Counts

a. Challenge to Conviction for Knowingly Manufacturing

Marijuana with Intent to Distribute 
Alberto Artires was also convicted of knowingly manufacturing marijuana. He did not 8

raise a sufficiency of evidence claim as to this conviction on appeal. Had he raised such a claim,

we would have rejected it. 

17

Valdes argues that there was insufficient evidence for a reasonable jury to

convict him of knowingly manufacturing marijuana. Section 841(a)(1) of Title 21

requires direct or circumstantial proof of the individual’s knowledge and intent. 

United States v. Poole, 878 F.2d 1389, 1391 (11th Cir. 1989). 

Valdes resided in a house located at 8600 N.W. 30th Road, Miami. Since

October of 1999, he was the individual listed as the subscriber on the electrical

records for both the main residence and an efficiency apartment adjacent to the

main residence. Upon searching the efficiency apartment, agents discovered 117

marijuana plants and a fully-functioning grow house. Accordingly, there was

sufficient evidence for a reasonable jury to find that Valdes knowingly

manufactured 117 marijuana plants with the intent to distribute the marijuana

narcotic.8

b. Challenges to Convictions for Knowingly Maintaining a

Place for the Purpose of Manufacturing Marijuana

To convict under 21 U.S.C. § 856(a)(1), the government must prove “that

the defendant: (1) knowingly, (2) operated or maintained a place, (3) for the

purpose of manufacturing, distributing, or using any controlled substance.” 

Pineiro, 389 F.3d at 1367 (citation and internal quotations omitted). “Thus, the
18

offense requires two mental elements, knowledge and purpose.” Id. Garcia and

Valdes both challenge the sufficiency of the evidence for their convictions under §

856(a)(1). 

Garcia rented the home located at 1165 West 53rd Street, Hialeah, Florida,

from Reynaldo Artires. Adjoining the home was an efficiency apartment that

agents later discovered had been used as a grow house. After a trained police

canine alerted the agents to the scent of controlled substances in the apartment and

a white van located on the property, the agents obtained a search warrant. Upon

searching the efficiency apartment, the agents discovered marijuana cultivation

paraphernalia, including irrigation hoses, five-gallon buckets, sealed windows,

patches of Mylar film on the walls, and marijuana residue. Nevertheless, Garcia

challenges this conviction by asserting that the government did not offer evidence

that placed Garcia physically in the efficiency apartment. 

Two finger prints found on the patches of Mylar film in the apartment

matched Garcia’s fingerprints. Moreover, in the white van, which was registered

to Garcia, the agents found more marijuana cultivation materials. Additionally,

Espinosa testified that Garcia had assisted in clipping marijuana plants during the

conspiracy. FBI Specialist Hollinger also testified that numerous phone calls were

made between the phone numbers of Garcia, Mario Artires, Reynaldo Artires, and
Again, Alberto Artires did not raise a sufficiency of the evidence claim as to his 9

conviction for knowingly maintaining a place for the purpose of manufacturing marijuana. We

would have also rejected such a claim if he had raised that argument on appeal. 

19

another unindicted co-conspirator who operated a grow house in Carroll City,

Florida. From the totality of this evidence, it was reasonable for the jury to find

that Garcia knowingly maintained the efficiency apartment as a place for growing

marijuana.

At trial, the government offered evidence that agents discovered 117

marijuana plants and a fully-functioning grow house in an efficiency apartment

adjacent to Valdes’s home located at 8600 N.W. 30th Road in Miami. Although

Valdes contends that the government offered no evidence placing him physically in

the efficiency apartment, he was listed as the subscriber on the electricity records

for both the main residence and the efficiency apartment. Moreover, the wires

from the surveillance system monitoring the apartment ran into the main residence. 

Therefore, considering the evidence, a reasonable jury could also find

Valdes guilty of knowingly maintaining a place for the purpose of manufacturing

marijuana. Accordingly, Garcia’s and Valdes’s challenges to their convictions for

knowingly maintaining a place for the purpose of manufacturing marijuana fail.9

B. Evidentiary Issues

Valdes contends that the district court erred in admitting evidence that did
20

not pertain to him, even though the evidence did support the charges brought

against his co-defendants. The government asserts that Valdes’s challenge of the

evidentiary rulings is actually a thinly-disguised severance argument. At no point

during the evidentiary objections did Valdes move the district court for a

severance, and, therefore, the issue of whether Valdes should have had a separate

trial because of this evidence is not before us. 

Valdes specifically argues that the evidence should have been excluded as

irrelevant and highly prejudicial. While Valdes claims that he was prejudiced by

the admission of evidence of his co-defendants’ unlawful acts, we have long

recognized that a defendant does not suffer compelling prejudice simply because

much of the evidence admitted at trial is applicable only to co-defendants. United

States v. Cassano, 132 F.3d 646, 651 (11th Cir. 1998). The general rule,

particularly applicable in conspiracy cases, is that defendants indicted together

should be tried together. Id.

Although the photographs, agency paperwork, and records to which Valdes

objected may not have been relevant to the charges brought against him, this

evidence was clearly relevant to the charges brought against his co-defendants. 

Further, the district court explicitly instructed the jury that each charge and the

evidence pertaining to that charge had to be considered separately. The acquittal of
At trial, Julio Artires moved the court for a mistrial or, in the alternative, a severance, 10

and Garcia, Mercado, Alberto Artires, and Suarez joined in the motion. 

21

Julio Artires on all charges and of Garcia and Mercado on certain charges indicates

that the jury followed the court’s instructions and made individualized

determinations of guilt. Accordingly, we hold that the district court did not abuse

its discretion in admitting this evidence over Valdes’s objection. 

C. Mistrial or, in the Alternative, Severance

Garcia argues that the district court erred in denying the appellants’ motion

for mistrial or, alternatively, severance due to prejudicial remarks made by counsel

for Valdes during his closing argument. We review motions for mistrial and 10

motions for severance for abuse of discretion. Starrett, 55 F.3d at 1553. Garcia

contends that he and his co-defendants were prejudiced by a remark made by

counsel for Valdes in his closing argument. In his closing argument, counsel for

Valdes stated: “The government was right. This [telephone] chart tells you all you

need to know . . . It tells you everything you need to know about this conspiracy.” 

Trial Tr. at p. 1431. Notably, the district court instructed the jury before closing

arguments began that the arguments of counsel were not evidence, and later

reminded the jury that such comments were not evidence. 

For an alleged improper closing argument to justify a new trial, the argument

“must be both improper and prejudicial to a substantial right of the defendant.” 
22

Rodriguez, 765 F.2d at 1559. When a curative instruction is given, this court

reverses only if the evidence “is so highly prejudicial as to be incurable by the trial

court’s admonition.” United States v. Perez, 30 F.3d 1407, 1410 (11th Cir. 1994). 

“[T]o compel severance, the defenses of co-defendants must be more than

merely antagonistic, they ‘must be antagonistic to the point of being mutually

exclusive.’” United States v. Knowles, 66 F.3d 1146, 1159 (11th Cir, 1995). A

district court should grant a motion for severance only if (1) there exists a “serious

risk that a joint trial would compromise a specific trial right of one of the

defendants,” or (2) a joint trial would “prevent the jury from making a reliable

judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 539

(1993). Notably, a district court’s limiting instructions “often will suffice to cure

any risk of prejudice.” Id. 

At issue is whether the comments made by Valdes’s attorney were

prejudicial to the point of compromising the rights of Valdes’s co-defendants. 

Having reviewed the record, we do not find that the comments were so highly

prejudicial that the district court’s instructions to the jury regarding closing

arguments did not cure any prejudice. Further, Alberto Artires, Garcia, and

Mercado have not demonstrated that the defense of Valdes was antagonistic to the

point of being mutually exclusive of their defenses. Considering the substantial
23

evidence of all of the appellants’ involvement in the conspiracy, the comments did

not prevent the jury from making a reliable judgment regarding guilt or innocence,

and Alberto Artires, Garcia, and Mercado did not suffer compelling prejudice. 

Thus, we affirm the district court’s denial of the motion for mistrial or severance. 

D. Jury Instruction for Accessory After the Fact 

Garcia proposed that the jury be instructed on accessory after the fact

because such an instruction was allegedly supported by the evidence adduced at

trial. Specifically, Garcia requested the following jury instruction:

Accessory after the Fact 

Whoever, knowing that an offense against the United States has

been committed, receives, relieves, comforts or assists the offender in

order to hinder or prevent his apprehension, trial, or punishment, is an

accessory after the fact.

If you first find that there is a reasonable doubt as to whether

Jose Rolando Garcia committed the substantive offenses charged in

Counts 10 and 11 but you find beyond a reasonable doubt that Mr.

Garcia is an accessory after the fact, you must find him not guilty of

Counts 10 and 11.

Garcia argued that the telephone records offered into evidence by the government

showed that Garcia was following the instructions of Reynaldo Artires to dismantle

the grow house. Therefore, Garcia asserted his involvement in the conspiracy

commenced after the completion of the charged crimes. The government

responded that Garcia, in fact, dismantled the grow house to conceal his own

crime. 
24

In denying Garcia’s request for an accessory after the fact instruction, the

district court stated that the requested instruction would confuse the jury. 

Additionally, the district court noted that the instructions for the substantive

offenses correctly described the elements for those crimes, and Garcia could argue

that evidence that he dismantled a grow house did not necessarily prove that he

manufactured or maintained a place for manufacturing marijuana. 

We review a district court’s rejection of a proposed jury instruction for an

abuse of discretion. Starrett, 55 F.3d at 1551. The district court has broad

discretion in formulating jury instructions as long as those instructions are a correct

statement of the law. United States v. Schlei, 122 F.3d 944, 968 (11th Cir. 1997). 

“The district court’s refusal to incorporate a requested jury instruction will be

reversed only if the proffered instruction was substantially correct, the requested

instruction was not addressed in charges actually given, and failure to give the

instruction seriously impaired the defendant’s ability to present an effective

defense.” Starrett, 55 F.3d at 1551 (citation and internal quotations omitted). 

The government does not dispute that the proffered jury instruction was a

substantially correct statement of the law. Although the instructions given to the

jury did not include the requested instruction on accessory after the fact, Garcia has

not demonstrated that the district court’s failure to give the requested instruction
25

seriously impaired Garcia’s ability to present an effective defense. As the district

court noted, the omission of the requested instruction did not prevent Garcia from

arguing that evidence that he had dismantled a grow house did not prove that he

had manufactured marijuana or maintained a grow house. Therefore, we do not

find that the district court’s omission of this proposed jury instruction constitutes

an abuse of its discretion, and affirm the district court’s denial of Garcia’s request. 

E. Valdes’s Safety-Valve Request 

Valdes appeals the district court’s denial of his safety-valve request pursuant

to U.S.S.G. § 5C1.2. We review the district court’s application of the federal

sentencing guidelines to uncontroverted facts de novo. United States v. Clavijo,

165 F.3d 1341, 1343 (11th Cir. 1999). 

The safety-valve provision outlines five criteria that, if met, enable the

district court to sentence a defendant without regard to the mandatory minimum

sentences in certain cases. U.S.S.G. § 5C1.2; United States v. Brownlee, 204 F.3d

1302, 1304 (11th Cir. 2000). It is undisputed that Valdes meets the first four

criteria of the safety-valve provision and that the information he provided was

truthful. Therefore, at issue, is whether Valdes has satisfied the temporal

requirement outlined in U.S.S.G. § 5C1.2(a)(5). Sub-section (a)(5) provides, in

part: “not later than the time of the sentencing hearing, the defendant has truthfully
26

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.” U.S.S.G. § 5C1.2(a)(5) (emphasis added). At

sentencing, when it became apparent to Valdes that he had not completely

debriefed to the satisfaction of the government, he moved for a continuance of the

sentencing. The court declined his request for a continuance, and, ultimately,

declined to give him safety-valve relief due to his failure to completely debrief

prior to the commencement of sentencing. 

The government argues that our language in Brownlee created a rigid

jurisdictional rule that precludes a finding that Valdes satisfied the temporal

requirement in U.S.S.G. § 5C1.2(a)(5). In Brownlee, we held that even if a

defendant previously lied or withheld information from the government, the district

court is not later precluded from granting safety-valve relief. Brownlee, 204 F.3d

at 1304. We stated that “lies and omissions do not, as a matter of law, disqualify a

defendant from safety-valve relief so long as the defendant makes a complete and

truthful proffer not later than the commencement of the sentencing hearing.” 

Brownlee, 204 F.3d at 1305 (emphasis added). The government reads the end of

this statement in Brownlee as unequivocally requiring that the defendant’s safetyvalve proffer be completed prior to the commencement of the sentencing hearing. 
27

We disagree. Since Brownlee made his proffer prior to the commencement of his

sentencing, the temporal issue was not before us in that case. Therefore, the

temporal language in the latter part of that statement was not part of the holding,

and, as dicta, does not have the force of law. See McDonald’s Corp. v. Robertson,

147 F.3d 1301, 1315 (11th Cir. 1998) (Carnes, J., concurring) (“[D]icta in our

opinions is not binding on anyone for any purpose.”). 

Unlike the factual circumstances in Brownlee, in the instant case, Valdes’s

opportunity for safety-valve relief hinges upon our interpretation of the temporal

requirement in U.S.S.G. § 5C1.2(a)(5). Sub-section (a)(5) specifically requires that

the proffer be made “not later than the time of sentencing.” U.S.S.G. § 5C1.2(a)(5)

(emphasis added). Notably, this temporal requirement does not preclude the

district court from exercising its discretion to continue a sentence. See United

States v. Madrigal, 327 F.3d 738, 739 (8th Cir. 2003). If the district court finds

that the factual circumstances warrant a continuance, then it may continue the

sentencing hearing to give the defendant more time to fully debrief and give a

formal safety-valve statement. Here, the district court interpreted our language in

Brownlee as trumping its discretion to continue the sentencing hearing to allow

Valdes to more fully debrief. 

“Of course, in the most typical cases the qualification for the safety valve
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should come before the commencement of the sentencing hearing in order to

prevent the defendant from misleading the government or manipulating the

sentence.” Madrigal, 327 F.3d at 745. Nevertheless, we believe that Valdes’s

circumstances warranted a continuance. First, Valdes, a first time drug offender,

does not speak English, and all translation at the initial debriefing was performed

by an agent rather than an independent translator. Second, his counsel erroneously

believed that Valdes had already made a sufficient statement to qualify for the

safety-valve and that he had been assured by the government agents that they

would follow-up with additional debriefings. Third, and perhaps most importantly,

there is no evidence that Valdes’s failure to fully debrief prior to the

commencement of the sentencing hearing was an attempt to mislead, manipulate,

stall or delay. Like Madrigal, Valdes’s failure to fully disclose prior to the

commencement of the sentencing hearing was due to a misunderstanding and not

in blatant disregard for the requirements of U.S.S.G. § 5C1.2. Therefore,

considering the facts of this case, the district court had good cause to continue

Valdes’s sentencing. 

We hold that a district court may continue a sentencing hearing to give a

defendant an opportunity to debrief for the purpose of considering safety-valve

relief, if the district court determines that the factual circumstances warrant a
29

continuance. In light of this conclusion, we remand to the district court for

consideration of Valdes’s safety-valve request. 

F. Amount of Plants Attributable to Alberto Artires

Alberto Artires appeals the district court’s factual determination at

sentencing that he was responsible for 312 marijuana plants when the jury

specifically found in a special interrogatory verdict that he was not responsible for

more than 100 marijuana plants. The district court’s factual finding was based on

evidence presented at trial and proven to the court’s satisfaction by a

preponderance of the evidence at the sentencing.

Alberto Artires has adequately preserved this claim. He clearly raised this

Apprendi-type constitutional claim in his objections to the Pre-sentence

Investigation Report and at sentencing. He then raised this constitutional claim

again in his initial brief, and, in his supplemental brief, he specifically challenged

this factual finding by the district court in light of Blakely v. Washington, ___ U.S.

___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). At no point has the government

argued that either plain error or harmless error review should apply to this claims. 

In fact, at oral argument, the government conceded that if the Supreme Court’s

decision in Booker was consistent with its Blakely decision, then Artires’s

Apprendi-type constitutional arguments are valid. 
30

In United States v. Booker, ___ U.S. ___, 125 S. Ct. 738, ___ L. Ed. 2d ___

(2005), the Supreme Court held that the Sixth Amendment as construed in Blakely

v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), applies to

the federal sentencing guidelines, and, consequently, held that the federal

sentencing guidelines are effectively advisory. This constitutional holding “means

that it is no longer possible to maintain the judicial factfinding that Congress

thought would underpin the mandatory Guidelines system that it sought to create.” 

Booker, 125 S. Ct. at 757 (Breyer, J.). As in Booker, the district court in this case

“applied the Guidelines as written and imposed a sentence higher than the

maximum authorized solely by the jury’s verdict.” Booker, 125 S. Ct. at 769

(Breyer, J.). Therefore, like Booker’s sentence, Alberto Artires’ sentence violates

the Sixth Amendment. Consistent with the Supreme Court’s remand in Booker, we

vacate the judgment of Alberto Artires and remand for resentencing. See, e.g.,

United States v. Reese, 397 F.3d 1337, 1338 (11th Cir. 2005) (remanding a

preserved error in light of Booker). 

IV. CONCLUSION

We affirm the district court’s judgment in all respects except the denial of

Valdes’s safety-valve request and the calculation of Alberto Artires’s sentence. 

Therefore, we vacate the judgments of Valdes and Alberto Artires and remand for
31

resentencing consistent with this opinion.

AFFIRMED in part, and VACATED and REMANDED in part.