[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 12

- 16172 Non

- Argument Calendar

________________________ D.C. Docket No. 3:11

- cr - 00068

- MCR

- 5 UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

versus BENJAMIN DEAN GARRETT, a.k.a. Ben Garrett, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Northern District of Florida

________________________ (August 7, 2013) Before PRYOR , MARTIN and FAY , Circuit Judges

. PER CURIAM: Benjamin Garrett appeals his convictions for conspiring to transport stolen equipment and jewelry in i nterstate commerce, 18 U.S.C. § 371, and transporting

Case: 12-16172 Date Filed: 08/07/2013 Page: 1 of 52 stolen jewelry in interstate commerce, i d

. § 2314. The district court denied
Garrett ’s mo tion for a judgment of acquittal in which he argued that there was
in sufficient evidence to prove he joined a single conspiracy to transport stolen goods and that the district court abused its discretion by admitting t estimony that he offered to sell three stolen skid loaders , as evidence of prior bad acts . The district court also denied Garrett’s motion for a new trial in which he argued that the jury should not have been instructed that he could be held responsible for the transportation of stolen jewelry by his coconspirators

. Garrett challenges the denial of both of those motions. We affirm. Sufficient evidence supports Garrett ’s conviction for conspir ing to transport stolen goods in interstate commerce

. Viewed in the light most favorable to the prosecution, both the r ecordings of telephone conversations between Garrett and a coconspirator, K reg King , and King’s testimon y established that Garrett joined an ongoing conspiracy to st eal property and transport it to other state s f o r res a l e . See id. § 371 ; see United States v. Edouard , 485 F.3d 1324 , 1349 ( 11 th Cir

. 2007 )

. T he evidence established that, a fter King told Garrett about the conspiracy , Garrett purchased a golf cart for resale that he knew King’s cohorts had stolen in Alabama

. When Garrett was unable to obtain more stolen golf carts to sell in his pawn shop in Florida, Garrett recruit ed King and hi s co hort s to travel to Florida to steal from one of Garrett’ s regular customers jewelry that Garrett planned to sell in New York

Case: 12-16172 Date Filed: 08/07/2013 Page: 2 of 53 or Miami

. Garrett coordinated with his cocon spirators to burgle the customer’s home and steal the jewelry w hile she was at his pawn shop examin ing a diamond bracelet, a nd Garrett later attempted to sell a few pieces of the stolen jewelry in his pawn shop. But after Garrett encountered problems selling the jewelry, King and his cohorts transported mos t of the jewelry to North Carolina. Based on this evidence, the jury was entitled to f in d that Garrett joined an existing c onspiracy to transport stolen goods and that the burglary and theft of jewelry were committed in furtherance of that conspiracy. See United States v. Richardson , 532 F.3d 1279,
1284

– 86 (11th Cir. 2008); Edouard , 485 F.3d at 1347

– 48. The recor d supports a finding that Garrett and his coconspirators depended on each other to discover, pilfer, and transport goods and acted in concert to profit from their illegal enterprise

. See Edouard , 485 F.3d at 1347. Garrett argue s that he participate d in a single conspiracy to steal and transport jewelry instead of a multifaceted conspiracy in which its participants stole and transported heavy equipment and jewelry , but we will not disturb the contrary finding of the jury . “ Whether a scheme is one conspiracy or several is primarily a question for the jury. ” United St ates v. Stitzer , 785 F.2d 1506, 1518 ( 11 th Cir

. 1986)

. The prosecution p resented evidence that King and his cohorts had stolen and transported equipment b efore Garrett proposed that they steal jewelry , and the district court instructed the jury about mult iple conspiracies . T he

Case: 12-16172 Date Filed: 08/07/2013 Page: 3 of 54 jury found that Garrett joined an ongoing conspiracy in which its participants agreed to transport stolen equipment and jewelry

. S ubstantial evidence supports the finding that the overarching goal of the conspiracy was to steal valuable good s and peddle them i n different state s . See Edouard , 485 F.3d at 1347. Even if we were to assume that the district court erred by a dmitting evidence of uncharged bad acts , Fed. R. Evid. 404(b), by allowing King to testi f y that
Garrett offer ed to sell him t hree stolen skid loaders before joining the conspiracy , the error was harmless . We cannot say that the evidence had a “substantial and injurious effect” on the jury. See United States v. Phaknikone , 605 F.3d 1099, 1109 (11 th Cir

. 2010) . Th e prosecution introduced substantial evidence that Garrett eagerly joined King’s conspiracy to transport stolen goods and that Garrett coordinated the theft of his customer ’s jewelry with the intent to sell it in another
state

. The district court also did not err by instructing the jury that Garrett could be held responsible for the transportation of the stolen jewelry by his cohorts, under Pinkerton v. United States , 328 U.S. 6 40, 66 S. Ct. 1180 (1946). Ample evidence existed from which the jury could find that Garrett c ould reasonably foresee that a

co conspirator would transport the jewelry to another state

. See United States v. Alvarez , 755 F.2d 830 , 848

– 49 (11th Cir

. 1985 ). Garrett knew that his coconspirators regularly transported stolen goods to other state s , and he could have

Case: 12-16172 Date Filed: 08/07/2013 Page: 4 of 55 anticipated that his coconspirators would do so after Garrett was unable to sell the stolen jewelry in his pawn shop. T he district court “ did not err by submitting the Pinkerton issue to the jury. ” Id. at 849.
W e AFFIRM Garrett’s convictions. Case: 12-16172 Date Filed: 08/07/2013 Page: 5 of 5