FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 24, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-15435

Non-Argument Calendar

________________________

D. C. Docket No. 05-00040-CR-1-SPM-AK

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

YAIMA GONZALEZ, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________

(September 24, 2008)

Before TJOFLAT, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

Yaima Gonzalez appeals her convictions for conspiring to manufacture,
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distribute, and possess with intent to manufacture and distribute more than 1,000

marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii), and 846,

and manufacturing and possessing with intent to distribute more than 100

marijuana plants, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(vii) and 18

U.S.C. § 2. 

At trial evidence reflected that Gonzalez was an owner and resident of the

property upon which marijuana plants were found. She made admissions

regarding the existence of the marijuana growing enterprise to Drug Enforcement

Administration agent Wayne Andrews, to which he testified at trial. Codefendants Roberto Valle and Lorenzo Valera also testified against her, implicating

her directly in the enterprise.

On appeal, Gonzalez argues that her convictions should be overturned

because of the admission of some testimony from Agent Andrews and because the

government impermissibly vouched for the testimony of government witnesses and

co-conspirators, Valle and Valera when they testified about their plea agreements. 

We review a district court’s evidentiary rulings for abuse of discretion. 

United States v. Westry, 524 F.3d 1198, 1214 (11th Cir. 2008), petition for cert.

filed, (no. 08-5343) (July 15, 2008). We review alleged Confrontation Clause

violations for harmless error. United States v. Ndiaye, 434 F.3d 1270, 1286 (11th
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Cir. 2006). However, arguments not presented to the district court are reviewed for

plain error. See United States v. Brown, 526 F.3d 691, 704 (11th Cir. 2008),

petition for cert. filed, (no. 08-5564) (July 28, 2008). To show such error, the

appellant must establish “(1) error (2) that is plain and (3) affects [his] substantial

rights.” Id. Essentially, the appellant must show that the error seriously affected

the fairness, integrity, or public reputation of the judicial proceeding. Id. In the

district court, Gonzalez neither objected to any of the testimony that she now

challenges, nor raised any of the arguments she now advances. Accordingly, our

review is for plain error. 

Considering this record, including the testimony indicating her ownership,

residence, possession of the marijuana plants and incriminating statements, we find

no reversible error. Gonzalez argues that Andrews’ testimony constituted hearsay,

impermissible opinion testimony and violated the Confrontation Clause and the

rules of evidence. She further argues that Andrews’s conclusion regarding her

knowledge of the conspiracy was an opinion and violated Fed.R.Evid. 704(b). 

Finally, she argues that the use of Andrews as a fact and opinion witness resulted

in the jury giving undue weight to his testimony. The essence of Andrews’s

testimony established the background of the investigation’s commencement and

relayed what Gonzalez herself told him during questioning. It did not violate
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Fed.R.Evid. 704(b). As to the testimony from Roberto Valle and Lorenzo Valera,

we find no reversible error in Gonzalez’ claim that the government improperly

elicited testimony concerning their plea agreements and sentencing reductions and

improperly ensured the truthfulness of their testimony. Prosecutors are not

prohibited from entering a plea agreement into evidence for the jury’s

consideration. United States v. Castro, 89 F.3d 1443, 1457 (11th Cir. 1996). We

have held that questioning regarding plea agreement requirements regarding

truthfulness and the possibility of perjury charges to be proper. Id. Where a

prosecutor questions witnesses regarding the truth-telling portions of their plea

agreement or brings out the fact that the agreements stated they were subject to

perjury penalties, the prosecutor is not vouching. United States v. Cano, 289 F.3d

1354, 1365-66 (11th Cir. 2002). The government’s questioning of Valle and Valera

did not constitute impermissible vouching as questions pertaining to the

requirement to be truthful and the penalties for perjury are permissible. We do not

find plain error. Moreover, having found no reversible error, there is no

cumulative error. 

AFFIRMED.