United States v. Brito

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 27, 1998
• Docket: 17-20063
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-50757

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PABLO SALINAS BRITO; ADRIAN BRITO; JESUS SALINAS BRITO; ADAN BRITO; IGNACIO BERUMEZ BRITO; BENJAMIN HERNANDEZ RODRIGUEZ,

Defendants-Appellants.

Appeals from the United States District Court for the Western District of Texas

February 27, 1998

Before POLITZ, Chief Judge, and GARWOOD and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellants Pablo Salinas Brito (Pablo), Adrian Brito

(Adrian), Jesus Salinas Brito (Jesus), Adan Brito (Adan), Ignacio

Berumez Brito (Ignacio), and Benjamin Hernandez Rodriguez

(Rodriguez)(collectively, appellants), were convicted of conspiracy

and various substantive offenses arising out of their drug

importation and distribution enterprise. On appeal, the appellants

raise various constitutional issues and challenge, inter alia, the

sufficiency of the evidence, the admissibility of certain evidence,

and the district court’s sentencing findings as to the amount of marihuana involved in the offenses.

Facts and Proceedings Below

The appellants’ convictions are all related to a drug

smuggling organization (the Organization or the Brito gang) that,

according to the government’s evidence,1 over the course of several

months moved thousands of pounds of marihuana from Mexico to

Midland, Texas, where it was further distributed to other locations

in the interior of the United States. The Organization was

directed by the Britos, who oversaw the transportation and storage

of the drugs and actively participated in recruiting, supplying,

and escorting the drivers of the drug shipments.

In March 1995, the Organization was exposed when one of the

drug shipments was intercepted by law enforcement officers. In the

months that followed, more shipments were intercepted, and numerous

individuals recruited by the Brito gang were arrested. By late

November 1995, after numerous arrests and seizures, the smuggling

operation was effectively shut down and the conspiracy came to an

end. Appellants and other co-conspirators were charged together in

a twenty-count indictment and convicted by a jury in the Western

District of Texas. Much of the evidence at trial was provided by

co-conspirators who pleaded guilty and testified against

appellants.

The smuggling conspiracy began to unravel on March 15, 1995,

when a Border Patrol agent stopped a car near Marathon, Texas,

None of the appellants testified or presented any significant evidence.

2 driven by Herb Groessel (Groessel). The car contained

approximately 448 pounds of marihuana destined for Midland, Texas.

After Groessel and his passengers, Richard Olson (Olson) and Misty

Wheeler, were arrested, they agreed to cooperate with law

enforcement officials by delivering the marihuana as planned.

Under the watchful eye of law enforcement agents, Groessel left the

car containing the drugs at his parents’ house in Midland. The

car was later picked up by Juan Leija, escorted by Angel Lerma;2 it

was Angel Lerma who had initiated this trip by giving Groessel

$2000 and instructing him to go to Boquillas, Mexico, to pick up

the drug load.

Groessel told law enforcement officers, and later testified at

trial, that he smuggled drugs for Pablo. Olson also believed that

he was smuggling drugs for Pablo. But despite their belief that

Pablo was the leader of the Brito gang and was behind their

smuggling trips, neither Groessel not Olson had much contact with

Pablo. Angel Lerma gave Groessel instructions on when and where to

go pick up the shipments, and upon returning to Midland he was paid

by Jesus and Adan in cocaine and cash. Groessel saw Pablo a couple

of times in Mexico while picking up drug loads, and on occasion

Pablo would act as a “jammer”3 for the marihuana loads.

Groessel testified that he ran drugs about eighty times and

As of trial, Angel Lerma was a fugitive from justice. 3

A jammer drives quickly ahead of the vehicle that is carrying the marihuana load in an attempt to direct attention away from that vehicle and onto himself.

3 transported cash twice for Angel Lerma and Pablo. Olson, on the

other hand, was a novice and had just started smuggling drugs two

weeks before he was arrested. He testified that he had once

accompanied Groessel to Mexico in order to pick up a load of drugs,

but for one reason or other, they did not receive the drug load and

returned empty-handed. On at least one other occasion, however,

Groessel and Olson did manage to successfully transport a load to

Merkel, Texas.

On July 9, 1995, police officers made another drug bust. Juan

Munoz (Munoz), a confidential informant, told Odessa Police that he

was carrying forty-eight pounds of marihuana for delivery in

Midland. Police followed Munoz, who was driving a white Ford, to

a store in Odessa, where he placed a call on a pay phone. Shortly

thereafter, police observed a maroon Dodge pickup truck arrive.

The driver of the truck, later identified as Pablo, briefly spoke

with the informant, returned to his truck, and drove off, followed

by the informant in the white Ford. The maroon pickup truck

appeared to be “running heat” or checking for surveillance.

A short while later, the two vehicles stopped at a gas station

and another individual, Bumaro Ortega (Ortega), entered the white

Ford and drove it to Pablo’s house. Ortega left the car, with the

drugs in the trunk, in Pablo’s backyard and disappeared into

Pablo’s house. Police approached the house and received Pablo’s

wife’s consent to search the house for Ortega, who was found hiding

upstairs. Ortega then gave the police consent to search the white

Ford. As expected, the car contained approximately forty-eight

4 pounds of marihuana. Pablo’s truck was also stopped, but he was

not carrying any drugs.

On August 16, 1995, David Tovar (Tovar) and Evaristo Galindo

(Galindo), were arrested in Crane, Texas, for transporting 320

pounds of marihuana for the Brito gang. Tovar and Galindo had been

recruited as drivers by Oscar Salinas (Salinas), who was himself a

driver for the Brito gang and had been instructed by Adan to find

more drivers. After the two young recruits were arrested, Adan

gave money to Salinas to pass on to the boys’ parents.

Salinas was well connected to the Brito gang; he knew Ignacio

from school, and he had met all of Ignacio’s family members. Based

on his conversations with Ignacio and his family members, Salinas

learned that they were in the business of selling marihuana.

According to Salinas, despite the fact that the Brito brothers

considered each other equals, Pablo was the leader of this

marihuana enterprise.

Being well acquainted with the Britos and needing money,

Salinas asked Adan if he could sell drugs for the Brito gang. Adan

agreed and sold some marihuana to Salinas, who then sold it to

others. Later, Salinas asked Adan if he could transport drugs for

the brothers. The brothers were hesitant to allow him to transport

drugs since Pablo, Adrian, and Jesus did not trust Salinas.

Eventually however, they offered Salinas $4000 to transport a load.

For this first trip, Salinas was instructed by Adan that he

would have to procure a car and drive to La Linda, a small town

near Big Bend National Park, to pick up the drugs. Escorted by

5 Ignacio and Rodriguez and accompanied by his brother-in-law, Nick

Avila, Salinas drove his father-in-law’s old Pinto to Mexico. In

Mexico, Salinas told inquiring Federales that the Britos had sent

him. Satisfied with this response, the Federales let him continue.

In Mexico, 280 pounds of marihuana were loaded into the trunk

and backseat of Salinas’ car. Escorted by Ignacio and Rodriguez,

who ensured that no police were in front of or behind the load

vehicle, Salinas drove back to Midland to Jesus’s house, where the

drugs were ultimately unloaded and placed in a shack behind the

house. After this trip was successfully completed, Salinas was

paid by Adan in cash and drugs.

Satisfied by his performance, Adan asked Salinas several more

times to transport drug loads for the Britos. Salinas agreed and

over the next several weeks he not only made trips to Mexico to

smuggle drugs back to the Midland area, but he also transported

drugs from Midland to other places in Texas. For these trips,

Salinas was usually escorted by Ignacio and Rodriguez, received

payment and instructions from Adan, and delivered the drug

shipments to Jesus. In addition to transporting the drugs,

Salinas, on at least one occasion, delivered $40,000 cash to Adan.

A fourth seizure of drugs belonging to the Britos occurred on

October 19, 1995, and led to the arrest of Salinas. For this trip,

Salinas obtained a gray Lincoln Town Car, which he took to

Igancio’s house so Pablo, Adrian, Jesus, and Adan could see it. He

then drove to Mexico where the car was loaded with marihuana. At

around this same time, Border Patrol agents received information,

6 based on a confidential informant’s tip, that a gray Lincoln Town

Car, driven by Salinas, would be smuggling a load of drugs from

Mexico. On October 19, 1995, law enforcement officials spotted the

Lincoln, driven by Salinas. The car was escorted by Ignacio in a

green pickup truck and by Rodriguez and his wife in a blue pickup

truck. Upon seeing the police cars, the Lincoln sped away from the

law enforcement officers and crashed into an embankment. After the

crash, Salinas fled, but was later apprehended. The Lincoln was

searched and 278 pounds of marihuana were found in its trunk.

The final drug seizure occurred on November 19, 1995, when a

pickup truck registered to Adrian, driven by Gustavo Manriquez

(Manriquez), was stopped and searched. The search uncovered 120

pounds of marihuana hidden in a secret compartment in the bed of

the truck. This ill-fated trip was directed by Pablo, who

instructed Carlos Valdez (Valdez) to take Adrian’s truck to San

Vicente, Mexico. Valdez knew that the truck had a secret

compartment and knew that the purpose of the trip was to transport

a load of marihuana back to Midland. Pablo accompanied Valdez down

to Mexico and instructed him to bring a roll of cellophane for

packaging marihuana. Once in Mexico, Pablo left with the truck.

On the return trip to the United States, Manriquez drove the truck

with the drugs and Valdez accompanied Adrian and Pablo in an escort

vehicle. This escort vehicle, a Pontiac Grand Am driven by Adrian,

was stopped a few minutes before the drug-laden truck was stopped.

As they were being pulled over, Pablo announced to the other

occupants of the car that they were going to get “busted” because

7 the truck behind them contained drugs. The agent searched their

car, but after a drug-sniffing dog failed to detect any drugs, the

three men were allowed to continue. Shortly thereafter, the truck

driven by Manriquez was stopped, and the drugs were discovered.

On May 30, 1996, a grand jury indictment was returned against

the six appellants charging twenty violations of the Title 21

Controlled Substances Act and the Title 18 Racketeering Act.4 All

appellants were charged in Count Two with conspiracy to import

marihuana in violation of 21 U.S.C. § 963, and in Count Three with

conspiracy to possess with intent to distribute marihuana in

violation of 21 U.S.C. § 846. Additionally, they were each charged

with several substantive offenses.

Pablo was also charged in Count One with engaging in a

continuing criminal enterprise, in violation of 21 U.S.C. § 848; in

Counts Four, Six, Eight, Ten, and Thirteen with possession with

intent to distribute marihuana, in violation of 21 U.S.C. § 841

(a)(1) and aiding and abetting, in violation of 18 U.S.C. § 2; in

Count Eleven with enticing a minor to possess with intent to

distribute marihuana, a violation of 21 U.S.C. § 861(a)(1); in

Count Fourteen with conspiring to launder money, in violation of 18

U.S.C. § 1956(h); and in Counts Fifteen through Twenty with money

laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), (B)(i)

& 2. On July 17, 1996, prior to trial, the United States moved for

The indictment also charged fourteen other individuals who are not appellants in this case. Several of these other charged persons pleaded guilty and cooperated with the government as witnesses at the trial.

8 dismissal, and the court dismissed Count Eleven of the indictment

due to the unavailability of an essential witness. Following a

jury trial, Pablo was convicted on all remaining counts in which he

was charged. Pablo requested that his conviction on either the

conspiracy count or the continuing criminal enterprise count be

vacated as violative of double jeopardy. The United States

conceded that Count Three, conspiracy to possess with intent to

distribute, had to be vacated, and accordingly the court dismissed

Count Three as to Pablo only. Pablo was then sentenced to 492

months’ imprisonment followed by five years of supervised release;

he was also ordered to pay a fine.

Adrian was also charged in Count Thirteen with possession with

intent to distribute marihuana, in violation of section 841(a)(1),

and aiding and abetting, in violation of section 2. Adrian was

convicted on all 3 counts and sentenced to 156 months’ imprisonment

followed by 5 years of supervised release.

Jesus was also charged in Counts Eight and Ten with possession

with intent to distribute marihuana, in violation of section

841(a)(1), and aiding and abetting, in violation of section 2.

Jesus was found guilty on all 4 counts and sentenced to 168 months’

imprisonment followed by 5 years of supervised release.

Adan was also charged in Counts Eight and Ten with possession

841(a)(1), and aiding and abetting, in violation of section 2.

Adan was convicted on all 4 counts and sentenced to 144 months’

9 Ignacio was also charged in Count Nine with importation of

marihuana, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and

aiding and abetting, in violation of section 2; and in Count Ten

with possession with intent to distribute marihuana, in violation

of section 841 (a)(1), and with aiding and abetting, in violation

of section 2. He was found guilty on all 4 counts and sentenced to

120 months’ imprisonment and 5 years of supervised release.

Rodriguez was also charged in Count Nine with importation of

marihuana, in violation of section 952(a), 960(a)(1), and aiding

and abetting, in violation of section 2; in Count Ten with

possession with intent to distribute marihuana, in violation of

section 841(a)(1), and with aiding and abetting, in violation of 18

U.S.C. § 2; in Count Fourteen of a money laundering conspiracy, in

violation of 18 U.S.C. § 1956(h); and in Count Fifteen with money

laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), (B)(i),

& 2. He was found guilty on all 6 counts and sentenced to 120

months’ imprisonment followed by 5 years supervised release.

All six appellants filed timely notices of appeal.

Discussion

On appeal, appellants assert the following claims of error:

(1) 21 U.S.C. § 848(c) is void for vagueness and the jury was not

properly instructed on the definition of “substantial income and

resources;”5 (2) the district court was required by the “rule of

lenity” to vacate Pablo’s continuing criminal enterprise conviction

Raised by Pablo.

10 where he was also convicted of a lesser included offense that was

dismissed at the government’s election;6 (3) the evidence was

insufficient to support the conviction of Pablo for engaging in a

continuing criminal enterprise under section 848(c);7 (4) the

evidence was insufficient to support the convictions of Jesus and

Adrian for conspiracy to import marihuana and conspiracy to possess

with intent to distribute, and the evidence was insufficient to

support their convictions for possession with intent to

distribute;8 (5) it was error that one conspiracy was charged in

the indictment, but evidence was produced at trial reflecting

multiple conspiracies;9 (6) it was an abuse of discretion to admit

testimony by a police officer concerning profile evidence of family

drug gangs and assigning roles within family drug gangs to various

members of the Brito gang;10 (7) it was an abuse of discretion to

admit evidence concerning a small amount of marihuana recovered

from the toilet at Adan’s house;11 (8) it was an abuse of discretion

to admit evidence concerning the sale of marihuana by Ignacio to

Raised by Pablo. 7

Raised by Pablo. 8

Raised by Adrian and Jesus. 9

Raised by Adrian. 10

Raised by Adrian, Jesus, Ignacio, and Adan. 11

Raised by Adan.

11 Salinas;12 (9) the district court should have granted the motion for

new trial based on jury misconduct;13 (10) the post-conviction

filing of an amended notice of enhanced penalty amounted to a

denial of the defendants’ confrontation rights;14 (11) the quantity

of marihuana, for which each defendant was held accountable, was

not properly determined.15 We consider these issues in that order.

I. Continuing Criminal Enterprise

Pablo was indicted and convicted for engaging in a continuing

criminal enterprise (CCE) in violation of section 848.16 The

essential elements of the offense are: (1) that Pablo committed

either of the conspiracy offenses charged in Counts Two or Three;

(2) that the violation of either such count was part of a

continuing series of violations of federal narcotics laws; (3) that

Raised by Ignacio. 13

Raised by Jesus, Adan, and Rodriguez; adopted by Adrian in Notice of Adoption pursuant to Federal Rule of Appellate Procedure 28(i). 14

Raised by Jesus and Rodriguez; adopted by Adrian in Notice of Adoption pursuant to Federal Rule of Appellate Procedure 28(i). 15

Raised by Adrian, Jesus, Rodriguez, Pablo, and Adan. 16

Count One of the indictment reads, in pertinent part, as follows:

“Defendant PABLO SALINAS BRITO undertook such continuing series of violations in concert with five or more persons, whom are listed in COUNT THREE of the Indictment and with respect to whom Defendant PABLO SALINAS BRITO occupied a position of organizer; supervisory position; and a position of management, and from which violations Defendant PABLO SALINAS BRITO obtained substantial income and resources.”

12 Pablo undertook to commit such series of offenses in concert with

five or more persons; (4) that Pablo occupied a position of

organizer or supervisor, or other management position over those

five or more persons; (5) and that Pablo obtained substantial

income or resources from the continuing series of violations.17

Pablo raises two issues concerning the phrase “substantial

income or resources,” found in the continuing criminal enterprise

provision at section 848(c)(2)(B). First, Pablo argues that the

district court failed to properly instruct the jury on the

definition of the phrase, and second, he argues that the phrase is

so vague that it renders the statute unconstitutional. We reject

21 U.S.C. § 848 provides, in relevant part:

“(c) ‘Continuing criminal enterprise’ defined

For purposes of subsection (a) of this section, a person is engaged in a continuing criminal enterprise if——

(1) he violates any provision of this subchapter or subchapter II of this chapter the punishment for which is a felony, and

(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter——

(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and

(B) from which such person obtains substantial income or resources.”

13 both arguments.

A. Jury Instruction

Pablo contends that the jury was not adequately instructed

because the court did not define the term “substantial” with a

specific dollar figure. Rather than using a dollar figure, the

district court followed the Fifth Circuit’s Pattern Jury

Instructions and defined “substantial income or resources” as

follows: “The term ‘substantial income or resources’ means income

in money or property which is significant in size or amount as

distinguished from some relatively insignificant, insubstantial, or

trivial amount.” Fifth Circuit Pattern Jury Instructions

(Criminal), Instruction No. 2.90 (1997 Ed.).

As a general rule, a jury instruction must define the factual

issues and clearly instruct the jurors as to the principles of law

they are to apply. See United States v. Wolfson, 573 F.2d 216

(5th Cir. 1978). However, the trial judge need not define

statutory terms unless they are highly “technical or specific,” or

“outside the common understanding” of jurors. United States v.

Chenault, 844 F.2d 1124, 1131 (5th Cir. 1988). While a definition

of the term “substantial” may in some circumstances aid the jury,

in United States v. Johnson, 575 F.2d 1347, 1358 (5th Cir. 1978),

we held that the term “substantial,” as it is found in section 848,

required no definition in the context of that case. In this case,

the court opted to define the term in question, but fell short of

giving a bright line with specific monetary figures that could be

considered substantial.

14 In the context of this section 848(c) prosecution, the

definition, as given by the court, adequately informed the jurors

on the factual issues and principles of law present in the case and

the court was not required to supplement its definition of

“substantial income and resources” with specific monetary figures.

We reject Pablo’s complaint concerning the district court’s

definition.

B. Constitutionality of Section 848(c)

Pablo further contends that because of the ambiguity inherent

in the term “substantial,” the statute is unconstitutionally vague.

This Court has specifically held that section 848 is not

unconstitutionally vague on its face. See Johnson, 575 F.2d at

1357-58; United States v. Cravero, 545 F.2d 406 (5th Cir. 1976).

In the context of the CCE statute, the inherent ambiguities of the

term “substantial” do not rise to the level of a constitutional

due process deficiency. Pablo does not challenge the sufficiency

of the evidence that he obtained “substantial income or resources”

from the drug operation.

The amount of income that a defendant receives by organizing

a criminal enterprise does not have the effect of making criminal

that which would otherwise be legal, innocent conduct. This is not

a statute which renders felonious the otherwise wholly innocent

operation of, say, a farm, if, but only if, the operator “obtains

substantial income or resources therefrom.” Instead, receiving

substantial income from a criminal enterprise merely enhances the

punishment for engaging in activities that are clearly serious

15 felonies regardless of the income derived. The due process concern

of giving individuals sufficient notice as to what activities are

prohibited is simply not an issue in this case. In practical

effect, the CCE “substantial income” provision enhances the penalty

for otherwise serious felonies. That this particular provision is

included as an element of the offense, rather than merely as a

sentencing factor, only enhances the protections afforded the

defendant.

We hold that this challenged provision of the CCE statute is

not unconstitutionally vague or violative of due process. We

therefore reject Pablo’s contentions in this respect.

II. Dismissal of Lesser Included Offense

Pablo was found guilty of continuing criminal enterprise

(Count One) as well as conspiracy to possess marihuana with intent

to distribute (Count Three). Since conspiracy to distribute a

controlled substance is a lesser included offense of CCE, see

Rutledge v. United States, 116 S.Ct. 1241 (1996), the government

moved to dismiss Count Three on the grounds of double jeopardy.

Over Pablo’s objection that the greater offense should be

dismissed, the court granted the government’s motion and dismissed

the lesser included offense.

Pablo now argues that the dismissal of the lesser count

violated the rule of lenity. The rule of lenity, however, is

inapplicable to this issue; it is a rule of statutory

interpretation that dictates that statutory ambiguities be resolved

in favor of leniency and prohibits a court from interpreting an

16 ambiguous statute in a way that maximizes the penalty. See Bifulco

v. United States, 100 S.Ct. 2247, 2252 (1980); United States v.

Sayklay, 542 F.2d 942, 944 (5th Cir. 1976). Since the question

before us does not involve any statutory interpretation, the rule

is inapplicable to this issue.

It is well settled that in cases of double jeopardy arising

from the simultaneous charging of a greater and a lesser included

offense, we dismiss the lesser included offense. See United States

v. Wilson, 116 F.3d 1066, 1087 (5th Cir. 1997); United States v.

Fields, 72 F.3d 1200, 1209-10 (5th Cir. 1996); United States v.

Tolliver, 61 F.3d 1189, 1223 (5th Cir. 1995). The Rutledge

decision has not placed this practice in question.

In Rutledge, the Court held that since section 846 is a lesser

included offense of section 848, the double jeopardy clause

prohibits imposing punishment for both offenses. Rutledge, 116

S.Ct. at 1250-51. Accordingly, the Court ordered that one of the

convictions be vacated and remanded the case to the trial court.

Id. The Court did not suggest that the greater offense must be

dismissed or in any way intimate that leniency was to be taken into

consideration.

Because the rule of lenity is inapplicable in this situation

and the law is clear that the lesser, rather than the greater,

offense should be vacated in this context, we find no error in the

court’s dismissal of Count Three, rather than Count One, as to

Pablo.

III. Sufficiency of the Evidence

17 Pablo, Jesus, and Adrian all contend that the evidence was

insufficient to support their convictions on several counts. In

reviewing challenges to the sufficiency of the evidence, we view

the evidence in the light most favorable to the jury’s verdict and

affirm if a rational trier of fact could have found that the

government proved all essential elements of a crime beyond a

reasonable doubt. See United States v. Puig-Infante, 19 F.3d 929

(5th Cir. 1994). Credibility determinations and reasonable

inferences are resolved in favor of the jury’s verdict. Id.

A. Pablo

Pablo challenges the sufficiency of the evidence supporting

his conviction for continuing criminal enterprise under 21 U.S.C.

§ 848. Pablo’s sole contention is that he did not occupy a

position of organizer, supervisor, or other management position

with respect to five or more persons as required by section

848(c)(2)(A). We disagree and hold that the evidence was

sufficient.

It is not required that the defendant acted with all five

persons at the same time or that he occupied the same position with

respect to all five persons. See United States v. Phillips, 664

F.2d 971, 1013 (5th Cir. 1981). Neither is it required that he

have been the sole or dominant organizer, supervisor, or manager of

the enterprise. See United States v. Michel, 588 F.2d 986, 1000

n.14 (5th Cir. 1979).

The evidence is sufficient to support the reasonable inference

that Pablo was a manager, supervisor, or organizer of at least five

18 members of the Britos’ smuggling enterprise. Groessel, a driver

for the Brito gang, characterized Pablo as the “boss,” the “head

guy,” and the “main man.” Another driver, Olson, stated that he

was transporting marihuana and cash for Pablo. The incident on

July 9, 1995, where Munoz met Pablo and drove a small load of drugs

to Pablo’s house, while Pablo checked for surveillance, indicates

Pablo’s control over Munoz. Salinas also perceived Pablo as the

leader and observed him with items for bribing Mexican Federales.

Later, Valdez personally observed Pablo bribing the Federales.

These bribing activities support the fact that Pablo had a

leadership role in the organization. According to Valdez, not only

did Pablo bribe the Federales, but he also supervised the trip in

November when Manriquez was stopped. That trip was initiated by

Pablo, who told Valdez to take Adrian’s truck to Mexico and asked

him to bring along a roll of cellophane for wrapping marihuana.

Clearly, Valdez was under Pablo’s control and supervision.

Additionally, Pablo supervised Rodriguez. Rodriguez used various

vehicles belonging to Pablo and even received a Dodge truck paid

for by Pablo, but registered in Rodriguez’s name.

At a minimum, a jury could have inferred that Pablo

supervised, organized, or managed five individuals associated with

the gang (Groessel, Olson, Munoz, Valdez, and Rodriguez).

Additionally, the fact that several witnesses identified Pablo as

the leader, supports an inference that he controlled more than just

those five members of the enterprise. We reject Pablo’s challenge

to the sufficiency of the evidence to support his CCE conviction.

19 B. Jesus

1. Conspiracy

Jesus challenges the sufficiency of the evidence supporting

his convictions for conspiracy to import marihuana (Count Two) and

conspiracy to possess marihuana with intent to distribute (Count

Three). Necessary elements of the charged conspiracies are: (1)

the existence of an agreement to import marihuana or to possess

marihuana with the intent to distribute, (2) knowledge of the

agreement, and (3) voluntary participation in the agreement. See

United States v. Mergerson, 4 F.3d 337, 341 (5th Cir. 1993).

Although mere association or presence by themselves are

insufficient to prove knowing participation in the agreement, see

United States v. Vergara, 687 F.2d 57, 61 (5th Cir. 1982), when

combined with other relevant circumstantial evidence these factors

may constitute sufficient evidence to support a conspiracy

conviction. See United States v. Williams-Hendricks, 805 F.2d 496,

503 (5th Cir. 1986). Thus, a conspiracy can be inferred from a

combination of close relationships or knowing presence and other

supporting circumstantial evidence. Id.

The evidence in this case clearly establishes a relationship

between Jesus and the other defendants. In addition, the

conviction is supported by circumstantial and direct evidence that

Jesus was a knowing and voluntary member of the Britos’ drug

conspiracy.

The evidence shows that Jesus actively participated in the

storage of marihuana. Salinas testified that he dealt mainly with

20 Jesus and Adan, and on his first smuggling trip Salinas took the

load to Jesus’s house where the marihuana was unloaded and stored.

On his second trip, Salinas initially took the drugs to his own

house, but later Jesus and Adan came by and took the drugs to

Jesus’s house. On another occasion, Jesus provided Bumaro Ortega

with keys to a storage unit for storing a load of drugs.

The evidence is adequate to support a reasonable inference

that Jesus was a knowing and voluntary member of the conspiracies

to import and distribute marihuana. We reject Jesus’s challenge to

the sufficiency of the evidence on the conspiracy counts.

2. Substantive Offenses

Jesus also contends that the evidence was insufficient to

support his convictions on Counts Eight and Ten for possession of

marihuana with intent to distribute on August 16, 1995, and on

October 19, 1995, in violation of section 841(a)(1). Possession

may be actual or constructive and may be joint with other co-

perpetrators; “constructive possession is ‘the knowing exercise of,

or the knowing power or right to exercise, dominion and control

over the proscribed substance.’” United States v. Gardea Carrasco,

830 F.2d 41, 45 (5th Cir. 1987). See also United States v. Wilson,

657 F.2d 755, 760 (5th Cir. 1981), cert. denied, 455 U.S. 952

(1982).

There is no evidence that Jesus had either actual or

constructive possession of the drugs transported on the days in

question. With regard to the August 16, 1995, transaction, Jesus’s

only role appears to have been that he and Adan advised Salinas to

21 find additional drivers. The additional drivers, Tovar and

Galindo, then drove the load vehicle, and Salinas and Avila

escorted them. There is no evidence that Jesus accompanied them on

this trip or ever took possession of the drugs. With regard to the

October 16, 1995, trip, all Jesus did was inspect and approve a

vehicle that was later used to transport the shipment. The

government has not produced sufficient evidence to support Jesus’s

conviction on either of these two substantive counts.18

We therefore reverse Jesus’s convictions and sentences on both

Counts Eight and Ten.19

C. Adrian

Adrian, like Jesus, challenges the sufficiency of the evidence

supporting his conspiracy convictions on Counts Two and Three.

There was both direct and circumstantial evidence against

Adrian. The truck containing drugs in a secret compartment that

was stopped on November 19, 1995, belonged to Adrian. Adrian was

one of the occupants of the car that was escorting the truck. On

The government argues on appeal that the conviction could also be affirmed on an aiding and abetting theory. The government’s reliance on this theory is misplaced. The jury was not instructed on that theory; therefore we cannot sustain a conviction based upon it. See United States v. Acosta, 763 F.2d 671, 681 (5th Cir. 1985); United States v. Wilson, 657 F.2d 755, 762-63 (5th Cir. 1981). The theory of Pinkerton v. United States, 66 S.Ct. 1180 (1946), is likewise unavailable as the jury was not instructed thereon. See Acosta, 763 F.2d at 681. 19

We detect no reasonably possible prejudice respecting Jesus’s sentence on Counts One and Two, the guideline range of which was no higher by virtue of the convictions on Counts Eight and Ten.

22 another occasion, Adrian told Valdez about a van that was being

altered to create a secret compartment. Adrian also escorted

Groessel on at least one smuggling trip. In addition to this

evidence, the government brought forth several other witnesses who

connected Adrian to the conspiracy.

We recognize that the testimony provided at trial by Groessel

and Salinas suffered some shortcomings. Groessel, for instance,

could not identify Adrian in court. And Salinas, an admitted drug

addict, appears to have had trouble distinguishing between the

names “Adrian” and “Adan.” At trial, Salinas corrected statements

that he had made to the police incriminating Adrian, on the grounds

that he had gotten the names confused and had meant to say “Adan.”

The inability of Groessel to identify the defendant goes to

the weight and credibility of his testimony, but it does not render

such testimony devoid of any probative value. See Smith v. United

States, 358 F.2d 695, 695 (5th Cir. 1966). So, too, Salinas’ drug

use and apparent confusion over the names is also a question of

credibility, and his testimony is not totally negated thereby. We

generally resolve such issues of credibility in favor of the jury’s

verdict. See United States v. Gibson, 55 F.3d 173, 180 (5th Cir.

1995). Moreover, the testimony of Salinas and Groessel was not the

only evidence of Adrian’s guilt on the conspiracy counts.

We hold that the testimony of Groessel, Salinas, Valdez, and

others was, taken together, sufficient to prove that Adrian was a

knowing and voluntary member of the conspiracies to import

marihuana and to possess with the intent to distribute marihuana.

23 We reject his challenge to sufficiency of the evidence on Counts

Two and Three.

2. Substantive Offense

Adrian also challenges the sufficiency of the evidence

supporting his conviction on Count Thirteen for possessing

marihuana with the intent to distribute, in violation of section

841(a)(1), on November 19, 1995. Under this count, the government

had to prove: (1) knowing (2) possession (3) with intent to

distribute. See United States v. Ramirez, 954 F.2d 1035, 1039 (5th

Cir. 1992).

That Adrian did not have actual possession of the drugs when

they were seized from a hidden compartment in his pickup truck is

undisputed. But possession need not be actual; constructive

possession suffices and it can be joint with co-perpetrators. See

United States v. Vergara, 687 F.2d 57, 61 (5th Cir. 1982); Wilson,

657 F.2d at 760. Constructive possession exists if the defendant

knowingly has dominion and control, or has the power to exercise

dominion and control, over the drugs, see Gardea Carrasco, 830 F.2d

at 45, or if the defendant has knowing dominion and control over a

vehicle in which drugs are concealed, see United States v.

Richardson, 848 F.2d 509, 512 (5th Cir. 1988). T h e r e i s

sufficient evidence indicating that Adrian had constructive

possession of the drugs. The drugs that were seized on November

19, 1995, were discovered in a secret compartment in the bed of

Adrian’s pickup truck. The truck was driven by Manriquez, but it

was escorted by Adrian in a second car, accompanied by Valdez and

24 Pablo, who had driven Adrian’s truck down to Mexico earlier.

Adrian would have us believe that he was “just along for the

ride” and neither exercised nor had any dominion or control over

his own pickup truck or the drugs when the seizure occurred. In a

similar case, United States v. Rogers, 719 F.2d 767, 770-71 (5th

Cir. 1983), the defendant and some of his associates embarked on a

long trip to the border for no apparent reason. The trip was

financed entirely by the defendant, who drove his own car on the

trip and bankrolled the entire excursion. On the last leg of the

trip, the defendant rented a car, but continued to drive his own

car. The trip ended when his associate was arrested for smuggling

a load of marihuana in the car that the defendant had rented. This

Court concluded that the evidence was sufficient to support a

finding of constructive possession and affirmed the conviction of

the defendant. We reasoned as follows:

“Rogers’ presence near the drug pick-up was not ‘mere,’ rather, it was the effect of great effort and considerable expense on his part in promoting a long journey all but inexplicable for any other purpose, made chiefly in his own automobile, and ending with the capture of his associate in a load car over which [the defendant] had dominion and had rented for no apparent purpose on the last leg of the journey.” Rogers, 719 F.2d at 770-71.

The circumstances in Adrian’s case are similar to those in

Rogers. Given his ownership of the vehicle, his proximity to the

vehicle on the day in question,20 and his failure to ever provide

Mere proximity to the controlled substance, without dominion and control, is insufficient to establish constructive possession. See United States v. Cardenas, 748 F.2d 1015, 1019-20 (5th Cir. 1984).

25 any explanation as to the purpose of his trip to the Big Bend area,

we hold that the evidence was sufficient to find that he

constructively possessed the marihuana. Intent to distribute may

be inferred from the quantity involved.

We hold that there was sufficient evidence supporting Adrian’s

conviction on Count Thirteen.

IV. Variance Between the Indictment and Proof at Trial

Adrian contends that the indictment alleged one conspiracy

lasting from March to November 1995, but that the evidence

presented at trial indicates there were multiple conspiracies, only

one of which involved him. Since this issue has been raised for

the first time on appeal, we review it for plain error. See United

States v. Olano, 507 U.S. 725 (1993).

In order to determine whether multiple conspiracies existed,

we consider three factors: (1) a common goal, (2) the nature of

the scheme, (3) overlapping of participants in the various

transactions. See United States v. Jensen, 41 F.3d 946, 956 (5th

Cir. 1995). Based on these factors, we hold that the evidence

supports the existence of a single conspiracy in which the co-

conspirators, including Adrian, shared the common goal of importing

large quantities of marihuana from Mexico for distribution in the

United States. The scheme involved several escort vehicles

accompanying single drug-laden vehicles from Mexico to Midland.

While some of the participants in the individual trips varied, the

evidence supports the inference that the Britos were materially

involved throughout the existence of the conspiracy. We hold that

26 the evidence at trial proved the existence of a single conspiracy

in accordance with the indictment.

As a corollary to his argument that there were multiple

conspiracies, Adrian argues that he was only involved in the

November 19, 1995, transaction. Although the clearest evidence

against Adrian was related to the November 19, 1995, transaction,

there was evidence supporting Adrian’s involvement prior to that

date.

We hold that there was adequate evidence of a single

conspiracy and of Adrian’s involvement as a co-conspirator well

before November 19.

V. Admissibility of Evidence

Several of the appellants argue that some of the evidence

presented at trial was inadmissible. Since those appellants

properly objected at trial and preserved error on these points, we

review the trial court’s admission of evidence on an abuse of

discretion standard. See United States v. Speer, 30 F.3d 605 (5th

Cir. 1994).

A. Detective Bryant’s Testimony on Family Drug Gangs

Adrian, Jesus, Ignacio, and Adan contend that Bryant’s

testimony was inadmissible profile and opinion testimony which

impermissibly summarized and bolstered the testimony of other

witnesses. Bryant testified generally about the structure of

family drug gangs, and, based on the testimony of other witnesses,

he ascribed certain leadership roles to the Britos. Pablo was

labeled the leader; Adrian was labeled the second-in-command, and

27 the other Britos were labeled recruiters, overseers, and escorts.

Bryant described a profile of family drug organizations and

then compared the Britos’ actions to that profile. Using the

profile, Bryant testified that Pablo was the leader, and assigned

other leadership roles to the members of the organization. This

type of profile evidence is inadmissible to prove substantive guilt

based on similarities between defendants and a profile, see United

States v. Williams, 957 F.2d 1238 (5th Cir. 1992), and under the

circumstances the court abused its discretion in allowing Bryant to

testify in this respect over the defendants’ objections.

In the course of his profile testimony, Bryant relied on the

testimony of other witnesses, especially their conclusions and

views about the leadership hierarchy of the Brito gang. We have in

the past disapproved of this practice that “without good reason or

real need, unfairly allows one prosecution witness merely to repeat

or paraphrase the in-court testimony of another as to ordinary,

observable facts . . . .” United States v. Castillo, 77 F.3d 1480,

1500 (5th Cir. 1996).

In Castillo, we held that the error did not merit reversal

because the witness did not misstate or put an unfair spin on the

testimony that he repeated, and the testimony in question was

uncontradicted. Id. The witness in Castillo, relied on “ordinary,

observable facts” put forth by other witnesses. Id. Bryant,

however, relied on conclusory facts and subjective observations by

other witnesses. Castillo is thus distinguishable and does not

support a finding of harmless error in this case. Nevertheless, we

28 hold that Bryant’s testimony was harmless as to Adrian, Jesus,

Ignacio, and Adan, the only parties who have complained of it on

appeal.

The profile testimony was harmless because there was

substantial other evidence supporting the convictions for

conspiracy, and Bryant’s testimony merely assigned to the Britos

roles within an organization to which they clearly belonged.

Leadership is not an element of conspiracy, and therefore the fact

that they may have been assigned a leadership role was essentially

immaterial to their conspiracy convictions. Bryant did not

unfairly bolster or summarize any testimony pertaining to the

Britos’ convictions for conspiracy.

In addition to describing the family drug organization

profile, Bryant also testified about the difficulty of obtaining

evidence about such an organization. He described the difficulty

of infiltrating the organization and explained that the majority of

the evidence is gathered from co-conspirators. This testimony was

improper because it tended to implicitly suggest to the jury that

they should convict the defendants on a lower standard of proof.

General difficulty of proof does not justify conviction on any

lesser standard than beyond a reasonable doubt. See, e.g., United

States v. Beckner, F.3d at (No. 97-30285, 5th Cir. Feb.

2, 1998), slip op. 1847 at 1853. We hold, however, that on this

record and evidence the error was harmless. The jury was clearly

and properly instructed on the burden of proof by the court, and

neither the prosecutor (nor Bryant explicitly) asked the jury to

29 convict the defendants on a lower standard of proof. We presume

that the jury followed the court’s instructions and applied the

proper standard of proof, despite Bryant’s testimony.

We specifically note that testimony such as Bryant’s is

normally inappropriate and inadmissible. In this case, however,

the court’s error in admitting it was harmless.

B. Marihuana Recovered from Adan’s Toilet

Adan contends that evidence of a small amount of marihuana

found in the toilet of his house was irrelevant and prejudicial,

and was merely evidence of an extrinsic offense. We agree that the

court abused its discretion in admitting this evidence, but the

error is harmless and does not warrant reversal.

During a search of Adan’s house on May 31, 1996, a bag of

marihuana was discovered in the toilet after a young girl left the

bathroom. In light of the fact that the indictment did not allege

any drug activities after the conspiracy came to an end in November

1995 and the indictment charged the defendant with importing and

possessing large quantities of marihuana for distribution, the

discovery of a small user-quantity of marihuana after the

conspiracy had allegedly ended is irrelevant, extraneous offense

evidence. Cf. United States v. Elliott, 571 F.2d 880, 911 (5th

Cir. 1978) (holding that the government may introduce evidence of

other acts committed by conspirators during the life of the

conspiracy). As such, it was inadmissible.

The court’s erroneous admission of this evidence, however, was

harmless in that it did not affect Adan’s substantial rights in

30 light of all the evidence. Moreover, the jury was charged that the

defendants were not on trial for acts not alleged in the indictment

and the government did not refer to this evidence in its closing

argument.

C. Sale of Marihuana by Ignacio to Salinas

Ignacio contends that testimony by Salinas concerning the sale

and use of marihuana by Ignacio was inadmissible extraneous offense

evidence. Salinas testified that he and Ignacio got high together

and that Ignacio sold him “dope.” Salinas, however, was unsure as

to whether these events occurred during or prior to the alleged

Regardless of when these events transpired, the evidence was

admissible to show Salinas’ relationship to the Britos. The sales

and use of marihuana were thus intertwined with the charged

conspiracy and were not inadmissible extrinsic evidence. See

United States v. Royal, 972 F.2d 643, 647 (5th Cir. 1992) (holding

that evidence of prior drug transactions and convictions was

admissible to show relationship between co-conspirators). The

court’s admission of this testimony was not error.

VI. Juror Misconduct

Jesus, Adan, Rodriguez, and Adrian contend that the court

should have granted a new trial based on juror misconduct. The

jury returned a guilty verdict against all the appellants. The

unanimity of the verdict was confirmed through a jury poll of each

juror individually as to each defendant individually in which each

juror separately affirmed that the verdict was that of the

31 particular juror separately as to each defendant. Despite her

affirmances during the jury poll, however, a juror later alleged

that her verdict was coerced through threats and insults that she

received from other jurors, and that the jurors impermissibly

discussed punishment and appellate rights. As a result of these

allegations, several appellants filed Motions for New Trial, which

were denied without a hearing.

Generally, a verdict may not be challenged if the jurors were

polled and agreed to the verdict. See United States v. Straach,

987 F.2d 232, 241-42 (5th Cir. 1993). This rule prevents courts

from delving into the internal deliberations of the jury. However,

a juror may impeach the jury’s verdict with evidence that the

verdict was influenced by outside sources. See Mattox v. United

States, 13 S.Ct. 50 (1892). Federal Rule of Evidence 606(b)

specifically prohibits a juror from testifying on any matter that

occurred during the jury’s deliberations unless it concerns

improper extraneous information or outside influence.

We have previously held that pressure from other jurors, such

as the “coercion” at issue in this case, is not considered an

“outside influence,” and an affidavit concerning such pressure is

inadmissible. See Straach, 987 F.2d at 241-42 (5th Cir. 1993);

United States v. Vincent, 648 F.2d 1046, 1049-50 (5th Cir. 1981).

Because the affidavit in this case merely alleged internal

coercion, it was inadmissible to support the Motions for New Trial,

and thus the court below did not abuse its discretion in refusing

to consider this evidence and denying appellants’ motions for new

32 trial.

The affidavit also alleged that the jury improperly discussed

extraneous general information concerning sentencing and the

defendants’ rights of appeal, contrary to the court’s specific

instructions that they were not to consider punishment. Since

there is nothing to suggest this information was brought to the

jury’s attention by an outside source, the court did not abuse its

discretion in denying the Motions for New Trial. See Fed. R. Evid.

606(b); Straach, 987 F.2d at 242 (holding that although the jury

improperly discussed penalties that might be imposed against the

defendant, the verdict must stand where there is no evidence that

they learned of these matters from an outside source).

VII. Amended Notice of Enhanced Penalty

Rodriguez, Jesus, and Adrian contend that the government’s

Amended Notice of Enhanced Penalty violated their Sixth Amendment

right to confront their accusers. The government’s original Notice

of Enhanced Penalty notified the defendants that the government

would seek an enhanced penalty because the conspiracy involved more

than one hundred kilograms of marihuana. After the guilty verdicts

were returned, the government filed an Amended Notice of Enhanced

penalty alleging that more than one thousand kilograms of marihuana

were involved in the conspiracies to import and possess marihuana.

Under the Sentencing Guidelines, a conviction involving one

hundred kilograms of marihuana carries a lower base offense level

than a conviction involving one thousand kilograms. See Drug

Quantity Table, U.S.S.G. § 2D1.1(c). Several co-conspirators

33 pleaded guilty and testified against appellants in return for

lighter sentences of two to five years. In order to challenge the

credibility of the witnesses and potentially expose their ulterior

motives for testifying, these co-conspirators were questioned about

the sentences that they had avoided by cooperating with the

government. At trial it appeared that these lower sentences were

in lieu of sentences calculated based on one hundred kilograms.

If, however, one thousand kilograms were the appropriate amount,

they may have lowered their potential exposure even more.

Because the appellants were not notified before trial that

appellants would be sentenced based on one thousand kilograms of

marihuana, they assert that therefore they only questioned the

witnesses about their ulterior motives based on their avoidance of

sentences based on one hundred kilograms. Rodriguez, Jesus, and

Adrian now contend that the witnesses had even greater motivation

to lie since they had avoided much stiffer sentences, and because

the government failed to inform them of this greater quantity, they

could not adequately cross-examine the witnesses and expose these

motives. They contend that this violated their Sixth Amendment

rights to cross-examine witnesses and reveal to the jury the

witnesses’ potential bias and ulterior motives.

There is no evidence, however, suggesting that the witnesses

agreed to testify in order to avoid being sentenced based on one

thousand kilograms. It appears that the witnesses, like the

appellants, assumed that they would be sentenced based on one

hundred kilograms. Thus, the fact that the government later sought

34 an even stiffer penalty did not affect the witnesses’ original

choice to cooperate, rather it merely made it a better choice in

retrospect.

Moreover, a notice of enhanced penalty as to appellants——which

the government was not required to file before trial, see United

States v. Thames, 12 F.3d 1350, 1373 (5th Cir.), cert. denied, 511

U.S. 1095 (1994)——did not bind the government as to the cooperating

witnesses. Appellants had adequate opportunity to cross-examine

the witnesses as to any ulterior motives they may have been

harboring at the time they testified, and therefore their Sixth

Amendment rights were not violated.

VIII. Sentencing

Pablo, Adrian, Adan, Jesus, and Rodriguez contend that they

were improperly sentenced because the court miscalculated the

amounts of marihuana involved and that those amounts were

misweighed. We review the factual findings of the trial court for

clear error. See United States v. Mejia-Orosco, 867 F.2d 216 (5th

Cir. 1989).

Under the United States Sentencing Guidelines (USSG), sentence

is imposed based on the defendant’s offense level. For drug

trafficking crimes that do not involve serious bodily injury or

death, the base offense level is calculated based on the quantity

of drugs involved. See U.S.S.G. § 2D1.1(a)(3). For a defendant

involved in a drug trafficking conspiracy, the quantity includes

both the drugs with which the defendant was directly involved and

the drugs that can be attributed to him through the conspiracy.

35 See United States v. Puig-Infante, 19 F.3d 929, 942 (5th Cir.

1994); U.S.S.G. § 1B1.3(a)(1).

The defendant will not necessarily be held responsible for the

full amount of drugs involved in the conspiracy, rather the

defendant will only be held accountable for those amounts of drugs

that he knew or reasonably could have known or believed were

involved in the conspiracy. See United States v. Puma, 937 F.2d

151, 160 (5th Cir. 1991); United States v. Thomas, 963 F.2d 63, 65

(5th Cir. 1992) (holding that an individual involved in a

conspiracy trafficking large amounts of drugs will be held

accountable even for drugs that are beyond his “universe of

involvement”). In order to calculate this amount, a court may

consider the co-conspirator’s role in the conspiracy, his

relationship to the other conspirators, and any other information

with “sufficient indicia of reliability.” See Puig-Infante, 19

F.3d at 942.

The district court found that Pablo committed offenses

involving over 19,000 kilograms of marihuana. This amount, being

between 10,000 and 30,000 kilograms, yielded a base level of 36

under the Sentencing Guidelines. The court also added 4 points for

the CCE conviction, pursuant to U.S.S.G. § 2D1.5(a)(1), for a base

level total of 40. With a base level of 40 and criminal history

category III, the court sentenced Pablo to 492 months in prison.

Pablo objected to the court’s calculation of the quantity of

drugs involved. The court overruled the objection and specifically

36 adopted the factual statements as to the amount involved from the

Presentencing Report (PSR).

Pablo contends that the evidence considered by the court and

the PSR for calculating his sentence lacked the requisite

“sufficient indicia of reliability.” The majority of the 19,225

kilogram figure was based on the testimony of Groessel, who, after

his arrest, told police officers that he had driven as many as 80

loads averaging 500 pounds per load. At trial, Groessel testified

that the loads weighed between 300 and 400 pounds. Despite this

trial testimony, the PSR used the 500 pound estimate and calculated

that Groessel had transported 18,144 kilograms for Pablo.21

Even if the PSR had used the lowest estimate of the weight per

load (300 pounds), the total quantity would still have been greater

than 10,000 kilograms. Thus, any error concerning the weight of

the loads was harmless since even the most conservative calculation

yields a total over ten thousand kilograms.

Pablo also challenges the veracity and reliability of

Groessel’s testimony that he transported eighty loads for Pablo.

Whenever a defendant challenges the facts contained in the PSR, the

court must either make specific findings as to those facts or

determine that those facts will not be considered at sentencing.

See Fed. R. Crim. P. 32. In order to satisfy Rule 32, the court

may make implicit findings by adopting the PSR. See Puig-Infante,

This figure was calculated by multiplying 80 times 500 pounds and then converting that figure into kilograms by dividing by 2.2046 lbs./kg.

37 19 F.3d at 943.

At Pablo’s sentencing hearing, the court resolved this factual

dispute concerning the amount involved by explicitly accepting the

factual statements contained in the PSR. The court’s findings of

fact are subject to a clearly erroneous standard of review, and we

find that the court’s adoption of the PSR, after having heard all

the testimony and having seen all the evidence, was not clearly

erroneous.

B. Adrian

The court adopted Adrian’s PSR and found that there was proof

that there were more than one thousand kilograms of marihuana

involved, and hence Adrian had a base level of 32 under the

Sentencing Guidelines. Additionally, the court adopted the PSR’s

finding of a category III criminal history. As a result, Adrian

was sentenced to 156 months’ imprisonment.

Adrian now contends that he should not have been held

accountable for all the drugs involved in the conspiracy from June

through November. Adrian was clearly involved with the 120 pound

load that was seized on November 19, 1995. However, as a co-

conspirator, he can also be held accountable for the other loads

even though he did not actively participate in their

transportation. Given his level of involvement in the conspiracy,

these loads were foreseeable to him, and thus the quantity was

properly calculated by the court. The court’s findings of fact are

subject to considerable deference, and in the absence of a clearly

erroneous finding, the sentence must be affirmed. We affirm

38 Adrian’s sentence.

C. Adan, Jesus, and Rodriguez

Adan was sentenced to 144 months’ imprisonment. The court

found that he was involved with over one thousand kilograms of

marihuana and set his base level at 32 with a criminal history

category of two. The court made virtually identical findings for

Jesus as to weight, but sentenced him to 168 months’ imprisonment

because of his higher, category four criminal history.

Rodriguez, on the other hand, received a lighter sentence.

The court found that Rodriguez was involved with over one thousand

kilograms of marihuana, giving him a 32 base level, but reduced the

level by two points for being a minor participant. Thus, with a

base level of 30 and category one criminal history, the court

sentenced Rodriguez to 120 months’ imprisonment, the statutory

minimum for conspiring to import and conspiring to distribute over

1,000 kilograms of marihuana in violation of 21 U.S.C. §§ 846 and

963.

Adan, Jesus, and Rodriguez contend that the court’s

calculation of the quantity of marihuana was erroneously based on

the gross weight of the marihuana rather than the net weight. Both

Adan and Rodriguez specifically raised this issue at the sentencing

hearing, while Jesus made a broad objection as to the amounts

involved. The court noted that it could not reweigh the marihuana

and found by a preponderance of the evidence that over one thousand

kilograms of marihuana were involved. The court adopted the

findings of the PSR and imposed sentence.

39 The weights given in these appellants’ respective PSRs are

identified as net weights. The mere suspicion by appellants that

these are actually gross weights is insufficient to challenge the

sentence. Since appellants have provided no specific evidence that

these weights are incorrect, we affirm and hold that the court did

not err in adopting the PSR’s findings.

Adan also contends that Salinas’s testimony concerning the

amounts of marihuana that he transported is unreliable and that

the actual amount is much lower than the 1006 kilograms reflected

in the PSR. The 1006 kilogram figure was based on amounts that

were actually seized and on the testimony of Salinas concerning

loads that he transported. According to Salinas’ testimony, (1)

the first load that he transported was 280 pounds; (2) the second

was 300 pounds; (3) the third was 200 to 250 pounds; (4) he

delivered a load worth $40,000 to Fort Worth, which, at $1800 per

pound, weighed about 22 pounds; (5) 3 other loads with no estimated

weights were also transported; (6) Tovar and Galindo were arrested

with 320 pounds; (7) Salinas stored 80 to 100 pounds that were

transported by his uncle; (8) Salinas was arrested with 278 pounds

of marihuana. The PSR calculated that Salinas’s activities in

connection with the Brito gang involved a quantity of 1006

kilograms.

To calculate Adan’s total involvement, the PSR used this 1006

kilogram figure. The PSR estimated that Adan was involved to the

same extent as Salinas and attributed the 1006 kilograms to Adan.

Additionally, the PSR found that Adan was involved with the

40 November 19, 1995, shipment of 54.54 kilograms of marihuana.

Adan’s total was thus calculated at 1060.54 kilograms. The court

adopted this figure and found that the quantity involved was over

one thousand kilograms.

Adan failed to offer any affidavits or evidence to rebut the

findings of the PSR, hence the court was free to adopt it. See

United States v. Rodriguez, 897 F.2d 1324 (5th Cir. 1990). We

reject Adan’s argument that Salinas’s testimony was unreliable,

and, therefore, we hold that the quantity of marihuana was properly

calculated and adequately supported by the record.

For these reasons, we affirm the sentences imposed by the

district court.22

Conclusion

We affirm the convictions and sentences of Pablo, Adrian,

Adan, Ignacio, and Rodriguez. As to Jesus, we reverse his

convictions and sentences on Counts Eight and Ten, but affirm his

convictions and sentences on Counts Two and Three.

REVERSED in part; AFFIRMED in part

Except Jesus’s sentences on Counts Eight and Ten, convictions on which we have reversed.