[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-14629

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D.C. Docket No. 1:11-cr-20338-DMM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIO PONCE RODRIGUEZ,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida 

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(March 4, 2014)

Before ANDERSON, Circuit Judge, and MOODY,∗ and SCHLESINGER,∗∗

District Judges.

 ∗ Honorable James S. Moody, Jr., United States District Judge for the Middle District of 

Florida, sitting by designation. ∗∗ Honorable Harvey E. Schlesinger, United States District Judge for the Middle District 

of Florida, sitting by designation.

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PER CURIAM:

After oral argument and careful consideration of the briefs and relevant parts 

of the record, we conclude that the judgment of the district court should be 

affirmed. We discuss the several arguments of defendant-appellant in turn.

Defendant argues that there was insufficient evidence that he knew 

that the drugs he was transporting through Central America would ultimately 

be unlawfully imported into the United States. In addition to circumstantial 

evidence that the conspirators, including defendant, knew that the ultimate 

purpose of the conspiracy was that the drugs being handled and transported 

would ultimately be unlawfully imported into the United States,1 there was 

also direct evidence of such knowledge. Several of the defendant’s coconspirators indicated that everyone involved in the conspiracy knew that 

 1 The circumstantial evidence included: (a) evidence that the usual route for the 

importation of drugs from South America into the United States market was through Central 

America, whereas the usual route for the importation of drugs into the European market was 

through Africa; (b) evidence that illegal drugs intended for the United States market would 

ordinarily be paid for in United States dollars while drugs intended for the European market 

would ordinarily be paid for in Euros; and (c) evidence that that bulk loads of cocaine as large as 

those involved in this case would ordinarily be intended for the large United States market, rather 

than for the smaller markets of the poverty-stricken Central American countries. Thus, the 

evidence in this case that the defendant and his conspirators were receiving very large bulk loads 

of cocaine from South America, and were transporting same through Honduras, Guatemala and 

Mexico, and were paying and being paid in United States dollars is circumstantial evidence that 

the defendant and his co-conspirators knew that the ultimate destination of the cocaine was the 

United States market. Because of the direct evidence in this case, we need not address the issue 

of whether or not such circumstantial evidence would ever be sufficient to convict. We also note 

that the defendant in this case testified before the jury and expressly denied any involvement in 

the movement of drugs across Central America and into Mexico and the United States. The jury 

observed his testimony, could disbelieve him and could believe the opposite.

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the large bulk shipments of cocaine they were handling and transporting 

through Central America were intended to be imported into the United 

States, that is that the United States was the ultimate destination for the bulk 

cocaine loads. And one of them `testified about his joint venture with 

defendant to ship 1,000 kilograms of cocaine from Venezuela to Guatemala 

and on to Mexico and the United States. This co-conspirator testified that 

defendant said he was planning to bring his share of the cocaine to the 

United States. 

Defendant also argues that the district court’s instructions to the jury 

constituted a constructive amendment of the indictment, effectively permitting the 

jury to convict if the jury found that defendant actually caused the drugs to be 

imported into the United States, rather than the offense actually charged in the 

indictment – i.e., that defendant distributed the drugs (e.g., outside of the United 

States), knowing that the drugs would ultimately be imported into the United 

States. We note that there was no objection to the jury instructions, on this or on 

any other ground. To support his constructive amendment argument, the defendant

points to the first phrase of a two-phrase sentence that – if considered in isolation 

from everything else in the instructions – might possibly be read as an indication 

that the defendant was charged with actually importing the drug into the United 

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States.2 However, as fully explored at oral argument, the second phrase of that 

very same sentence, and numerous other very clear provisions of the jury 

instructions persuade us that there is no possibility that the jury would have 

misunderstood the true offense charged in the indictment. Indeed, the sentence 

immediately following the sentence upon which defendant relies made it 

absolutely clear that the jury could not misunderstand the true charge. Moreover, 

the jury also had during its deliberations the actual indictment itself. We readily 

conclude that there was no constructive amendment.3

 There was no error, plain or 

otherwise.

The defendant also challenges the jury instructions with respect to the mens 

rea element. Our careful review of the jury instructions persuades us that the jury 

fully understood the mens rea requirement. We cannot conclude that there was 

error, and certainly not plain error.

 2 In light of our resolution of this case, we can assume arguendo, but need not 

decide, that this phrase would actually constitute a constructive amendment if considered in 

isolation.

3 Defendant also relies on one other reference in the instructions to the effect that 

defendant conspired to import. However, that reference was in the context of instructions with 

respect to the verdict form’s provision requiring the jury to designate the number of kilograms 

involved if the jury found the defendant guilty. In light of the numerous explicit and very clear 

provisions in the instructions – describing precisely and correctly the charges in the indictment –

and in light of the limited context of provision about the verdict form, and finally, in light of the 

fact that the actual charge in the indictment could colloquially be referred to as importation, we 

readily conclude that the jury could not possibly have misinterpreted the true charge and that 

there was no constructive amendment.

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We doubt that defendant’s vague and conclusory mention of a 

single/multiple conspiracy issue in his initial brief is sufficient to warrant 

entertaining the issue. In any event, we readily conclude that defendant has not 

demonstrated error in this regard.

With respect to defendant’s arguments that improper cross-examination of 

defendant’s main witness and cumulative errors require a new trial, we note 

initially that there was no objection in the district court to any of the errors 

complained of. We have carefully considered the arguments of the parties, and 

relevant portions of the record, and we have considered the errors complained of, 

both individually and in the aggregate, and we conclude that there probably has 

been no error at all and certainly that there has been no plain error.

For the foregoing reasons,4 the judgment of the district court is

AFFIRMED.

 4 Other arguments on appeal are rejected without need for discussion.

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