FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 25, 2008

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-15243

Non-Argument Calendar

_________________________

D. C. Docket No. 07-20341-CR-ASG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO VANEGAS,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(September 25, 2008)

Before BARKETT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

Pedro Vanegas appeals his convictions for conspiracy to defraud the United

States, in violation of 18 U.S.C. § 371, and unlawful production of a Florida
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commercial driver's license ("CDL"), in violation of 18 U.S.C. §§ 1028(a)(1),

(c)(3)(A), and 18 U.S.C. § 2 . He also appeals the denial of his motion for a

mistrial.

I.

Vanegas argues there was insufficient evidence to support his conviction for

conspiracy. He argues he did not conspire to produce the identification card

because it was issued by state employees not a part of the conspiracy. He argues

did not conspire or unlawfully agree with Steven Baez, his alleged co-conspirator,

to produce any false identification. He claims he acted singularly in submitting

documents to the Florida Division of Driver Licenses and he did not agree with

Baez to achieve any unlawful objective. He argues his association with Baez, and

Vanegas's presence at the Driver Licenses office was insufficient to show a

conspiracy. He contends the government did not show his awareness of the

essential nature of the conspiracy. He argues mere association with the

conspirator, presence at the transaction, and assistance to the conspirator was not

sufficient to show he was a member of a conspiracy.

"Sufficiency of the evidence is a question of law reviewed de novo."

U.S. v. Martinez, 83 F.3d 371, 373-74 ( 11th Cir. 1996). The evidence is

sufficient to sustain a conviction if any rational trier of fact could have found the
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essential elements of the crime beyond a reasonable doubt. U.S. v. Mintmire, 507

F.3d 1273, 1289 (11th Cir. 2007). We view "the evidence in the light most

favorable to the Government and . . . [draw] all reasonable inferences and

credibility assessments in the Government's favor." Id. "Where the government

relies on circumstantial evidence, reasonable inferences, and not mere speculation,

must support the jury's verdict." U.S. v. Klopf, 423 F.3d 1228, 1236 (11th Cir.

2005) (quotation omitted).

"In order to charge a violation under § 371, the government must show that

the defendant conspired to commit one or more substantive offenses against the

United States, or that the defendant conspired to defraud the government in any

manner or for any purpose." U.S. v. Harmas, 974 F.2d 1262, 1266 (11th Cir.

1992). "It has long been established that this statutory language is not confined to

fraud as that term has been defined in the common law." Dennis v. U.S., 384 U.S.

855, 861 86 S.Ct. 1840, 1844, 16 L.Ed.2d 973 (1966). "It reaches any conspiracy

for the purpose of impairing, obstructing, or defeating the lawful function of any

department of government." Id. (quotation omitted). Under the "defraud" clause

of § 371, "the government must prove that the United States was the ultimate

target of the conspiracy." Harmas, 974 F.2d at 1268.

"In order to obtain a conviction for conspiracy under 18 U.S.C. § 371, the
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Government must prove (1) that an agreement existed between two or more

persons to commit a crime; (2) that the defendant knowingly and voluntarily

joined or participated in the conspiracy; and (3) a conspirator performed an overt

act in furtherance of the agreement." U.S. v. Ndiaye, 434 F.3d 1270, 1294 (11th

Cir. 2006). "The knowledge requirement is satisfied when the Government shows

a defendant's awareness of the essential nature of the conspiracy." Id. "A

conviction for conspiracy may be obtained via circumstantial evidence." Id.

"[A]greement is the essential evil at which the crime of conspiracy is

directed." U.S. v. Chandler, 388 F.3d 796, 806 (11th Cir. 2004). "[T]he

government must prove the existence of an agreement to achieve an unlawful

objective and the defendant's knowing participation in that agreement." Id.

(emphasis in original). "Since no one can be said to have agreed to a conspiracy

that they do not know exists, proof of knowledge of the overall scheme is critical

to a finding of conspiratorial intent." Id. (emphasis in original). We have

"reversed conspiracy convictions where there was no direct proof of an agreement,

and the circumstantial evidence of agreement was insufficient to support such an

inference." Id.

"The relationship of buyer and seller absent any prior or contemporaneous

understanding beyond the mere sales agreement does not prove a conspiracy to
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sell, receive, barter or dispose of stolen property although both parties know of the

stolen character of the goods. U.S. v. Solomon, 686 F.2d 863, 876 (11th Cir. 198

(quoting U.S. v. Ford, 324 F.2d 950, 952 (7th Cir. 1963)). "The act of buying and

selling may or may not be evidence of a conspiracy." Id. at 877. "The key factor

is the knowledge and understanding of the parties associated with the buying and

selling." Id. "It is the absence of any prior or contemporaneous understanding

that makes a mere agreement to buy and sell insufficient to establish a

conspiracy." Id. "Consequently, the act of buying and selling, preceded by or

coupled with a contemporaneous agreement, can itself be evidence of the

conspiracy." Id. However,"it is well settled that the existence of a simple

buyer-seller relationship alone does not furnish the requisite evidence of a

conspiratorial agreement." U.S. v. Wright, 63 F.3d 1067, 1072 (11th Cir. 1995)

(discussing conspiracy to distribute cocaine). "[Mere] presence or association

with others involved in a criminal scheme is not sufficient to prove participation in

a conspiracy . . . ." U.S. v. Mulherin, 710 F.2d 731, 738 (11th Cir. 1983).

In United States v. Mendez, 528 F.3d 811 (11th Cir. 2008) petition for cert. 

tiled, (U.S. Aug. 1, 2008) (No. 08-142), we recently overturned the conspiracy

conviction of another participant in the licensing scheme. 528 F.3d at 815-16

(reversing conviction for conspiracy to defraud United States). In Mendez, we
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held that fraudulently obtaining a CDL did not show intent to defraud the United

States. Id. at 815. Additionally, in dicta, we noted that the use of the DA-348-E

form and statements in the Florida CDL handbook and website describing the

"federal" requirement, were not sufficient to show the requisite intent to defraud

the United States where the defendant had difficulty reading English. Id. at 816.

Moreover, the government had to prove the defendant knew the United States was

to be defrauded by the scheme. Id. at 816-17. 

In this case, there was insufficient evidence for a rational trier of fact to find

that Vanegas conspired to defraud the United States. The DA-348-E form

Vanegas submitted to obtain his CDL asked if Vanegas was "391 qualified."

According to a witness, "391" referred to a federal statute, but there was no

evidence Vanegas knew this fact. There also existed a CDL handbook in Spanish

that explained the "391 qualifications," but there was no evidence Vanegas ever

read the handbook. While Vanegas had taken and failed the Spanish CDL exam

three times, only by mere speculation could one conclude from this evidence that

Vanegas knew the United States would be defrauded by his obtaining a CDL.

Furthermore, the Mendez court, in dicta, found similar evidence was insufficient

to show knowledge where the defendant, like Vanegas, had a limited

understanding of English. Therefore, we vacate his conviction for conspiracy to
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defraud the United States.

II.

Vanegas also argues that there was insufficient evidence to support his

conviction for unlawful production of an identification document. Vanegas argues

that because the identification card was issued by State employees, he did not

produce it. Baez conducted numerous transactions with people at the Homestead

drivers license office. Vanegas, however, did not produce any license prohibited

by the statute.

The standards set forth above apply here as well. "Under 18 U.S.C.

§ 1028(a)( 1 ) and (c)(3)(A), it is a crime to unlawfully produce an identification

document when the production is in or affects interstate or foreign commerce."

Mendez, 528 F.3d at 816. The statute includes CDL's. Id. The government only

needs to show a minimal nexus with interstate commerce and it is sufficient to

show the defendant "had the intent to accomplish acts, which, if successful, would

have affected interstate" commerce. Id. at 817. Whoever "aids, abets, counsels,

commands, induces or procures" the commission of an offense against the United

States is punishable as a principal. 18 U.S.C. § 2(a). Furthermore, whoever

"willfully causes an act to be done which if directly performed by him or another

would be an offense against the United States, is punishable as a principal."
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18 U.S.C. § 2(b). "[It] is well established that § 2(b) was designed to impose

criminal liability on one who causes an intermediary to commit a criminal act,

even though the intermediary who performed the act has no criminal intent and

hence is innocent of the substantive crime charged." U.S. v. Tobon-Builes, 706

F.2d 1092, 1099 (11th Cir. 1983). We have recently upheld the conviction of

another participant in the licensing scheme for violation of the above statutes on

similar facts. See Mendez, 528 F.3d at 817 (finding sufficient nexus to interstate

commerce).

As to this conviction, there was sufficient evidence for a jury to find that

Vanegas had unlawfully produced an identification document. A CDL is covered

by the statute, and intending to drive a commercial vehicle illegally satisfies the

interstate commerce requirement. While Vanegas did not produce the CDL

himself, he submitted the false DA-348-E form and caused the examiner to

unlawfully issue a CDL, thereby violating the statute as an aider and abettor.

Therefore we affirm his conviction on this count.

III.

Vanegas argues the district court improperly denied his motion for a mistrial

when Michael Long, an investigator for the Florida Highway Patrol, gave

inadmissible testimony. He asserts that Long improperly identified him by using
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hearsay evidence, and that the prosecutor improperly identified Vanegas for Long.

Long's testimony was also unfairly prejudicial. Long testified that he had arrested

numerous people for receiving the illegal forms and that Baez had supplied the

documents. The testimony prejudicially associated Vanegas with other people

arrested for receiving CDL's improperly. Combined with the unfair identification,

the testimony influenced the verdict.

We review a refusal to grant a mistrial for abuse of discretion. U.S. v. Diaz,

248 F.3d 1065, 1101 ( 11th Cir. 2001). A defendant must show substantial

prejudice in order to be granted a mistrial. U.S. v. Chastain, 198 F.3d 1338, 1352

(11th Cir. 1999). This requires "a reasonable probability that . . . the outcome of

the trial would have been different.” U.S. v. Newsome, 475 F.3d 1221, 1227 (11th

Cir. 2007) cert. denied, 128 S.Ct. 218 (2007). The "trial judge has discretion to

grant a mistrial since he is in the best position to evaluate the prejudicial effect of

a statement or evidence on the jury." U.S. v. Delgado, 321 F.3d 1338, 1346-47

(11th Cir. 2003) (internal quotations and citation omitted).

Where the defendant has failed to raise the issue below, we review only for

plain error. U.S. v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).

Additionally, we review for plain error when a party raises an objection on appeal

different than the objection to the evidence raised in the district court. U.S. v.
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Walther, 867 F.2d 1334, 1343 (11th Cir. 1989). Vanegas did not seek a mistrial

below based on Long's statements that he had arrested other people for submitting

false DA-348-E forms. Therefore, we review that part of his argument for plain

error.

Plain error requires the defendant to show: (1) an error; (2) that is plain; (3)

that affects substantial rights; and (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings. U.S. v. Cotton, 535 U.S. 625, 631, 122

S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002). An appellate court should exercise

plain error review "sparingly." Jones v. U.S., 527 U.S. 373, 389, 119 S.Ct. 2090,

2102, 144 L.Ed.2d 370 (1999). Where "[d]efense counsel effectively caused the

injury about which he now complains . . . . [it is] invited error [and] constitutes

neither plain nor reversible error." U.S. v. Parikh, 858 F.2d 688, 695 (11th Cir.

1988).

We find no abuse of discretion in the refusal to grant a mistrial because of

Long's identification of Vanegas. The prosecutor did not improperly identify

Vanegas for Long, as Long had already identified Vanegas as a person he had

arrested for submitting a false DA-348-E form. Although the prosecutor

improperly named the person identified as Vanegas before establishing the proper

foundation, Long's testimony showed he had personal knowledge that the person
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he identified was Vanegas. The prosecutor properly introduced the full

identification of Vanegas, and the premature naming did not substantially

prejudice Vanegas.

The district court did not commit plain error by denying a mistrial for

Long's statements that he had arrested other people for submitting false DA-348-E

forms. The testimony was relevant to his identification of Vanegas, and, on

cross-examination, Long stated he had not connected Vanegas with any of the

other individuals arrested. Moreover, Vanegas chose to address the arrests in

greater detail on cross examination, weakening any claim of error. Any prejudice

resulting from the statements was minimal and unlikely to affect the outcome of

the trial because the government never argued there was a connection between

Vanegas and the others who had used the DA-348-E forms.

Upon review of the record and upon consideration of the briefs of the

parties, we find no reversible error as to Vanegas's conviction for unlawful

production of an identification document or the denial of his motion for a mistrial.

We hold, however, that there was insufficient evidence to convict him of

conspiracy to defraud the United States. Therefore we vacate Vanegas's

conviction as to that count and remand for re-sentencing.

VACATED IN PART AND AFFIRMED IN PART