United States v. Trujillo, Anna

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 22, 2004
• Docket: 02-1521
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Trujillo No. 02-1521 ELECTRONIC CITATION: 2004 FED App. 0234P (6th Cir.) File Name: 04a0234p.06 Michigan, for Appellee. ON BRIEF: John F. Royal, Detroit, Michigan, for Appellant. Karen M. Gibbs, UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ OPINION _________________ UNITED STATES OF AMERICA , X RICHARD MILLS, District Judge. In this appeal, Anna Plaintiff-Appellee, - Trujillo asks this Court to vacate her conviction and sentence - - No. 02-1521 and to dismiss the indictment against her, to grant her a new v. - trial, or to remand her case for re-sentencing. > , Trujillo contends that she is entitled to the relief which she ANNA TRUJILLO, - seeks because the district court committed several substantive Defendant-Appellant. - and procedural errors which, taken either individually or as a N whole, entitle her to a vacation of her conviction and Appeal from the United States District Court sentence. for the Eastern District of Michigan at Detroit. No. 00-80676—Paul D. Borman, District Judge. For the following reasons, we AFFIRM the judgment and the sentence imposed upon Trujillo by the district court. Argued: March 9, 2004 I. BACKGROUND Decided and Filed: July 22, 2004 On November 14, 1998, Colorado State Police Trooper Steven Ortiz stopped a vehicle driven by Norma Jean Campos Before: MARTIN and CLAY, Circuit Judges; MILLS, near Pueblo, Colorado, for speeding and for impeding the District Judge.* normal flow of traffic. Beth Ann Rogensues was a passenger _________________ in the vehicle. Trooper Ortiz became suspicious of Campos and Rogensues because neither individual was listed on the COUNSEL rental agreement provided to Trooper Ortiz by Campos,1 because neither Campos nor Rogensues could identify who ARGUED: John F. Royal, Detroit, Michigan, for Appellant. Wayne F. Pratt, UNITED STATES ATTORNEY, Detroit,

* 1 The Hon orable R ichard M ills, United States District Judge for the The name on the rental agreement was Nancy Nichols, and the Central District of Illinois, sitting by designation. agreement was signed by Shawn Speckman.

1 No. 02-1521 United States v. Trujillo 3 4 United States v. Trujillo No. 02-1521

had rented the vehicle, and because Campos and Rogensues that they were transporting the marijuana to Detroit for the related inconsistent stories regarding their travel plans.2 Trujillos.3 Thereafter, Trooper Ortiz asked for, and received, After confessing to transporting the marijuana for the permission from Campos to search the vehicle. Upon Trujillos, Campos and Rogensues provided various details conducting his search, Trooper Ortiz discovered 123 pounds regarding their past marijuana trips for the Trujillos of marijuana hidden in duffle bags in the trunk. Accordingly, (including providing identifying information which allowed Trooper Ortiz arrested Campos and Rogensues and DEA agents in Detroit to confirm the provided information), transported the two women to the Drug Enforcement and they agreed to act as cooperating witnesses and to Administration (“DEA”) office. participate in a controlled delivery of the marijuana to the Trujillos. Thereafter, DEA Task Force Agent Powell Once at the DEA’s office, DEA task force agents telephoned DEA Agent Debra Lynch in Detroit in order to set interviewed Campos and Rogensues separately regarding up a controlled delivery. Based upon the information their transportation of marijuana. DEA Task Force Agent provided by DEA Task Force Agent Powell, DEA Agent Ronald Thurston interviewed Campos. Initially, Campos Lynch sought and obtained a search warrant from United denied any knowledge about the marijuana. However, States Magistrate Judge Donald Scheer for the Trujillo’s Campos eventually admitted that this was approximately her home. fifth or sixth trip transporting marijuana. Specifically, Campos stated that Anna and Julio Trujillo had contacted her On November 15, 1998, Campos and Rogensues returned, about driving to Arizona in order to meet with some people, under escort, to Detroit. Once in Detroit, Campos told DEA pick up loads of marijuana, transport it back to Detroit, Agent Lynch that she had been introduced to Anna Trujillo Michigan, and deliver the marijuana to them. through a mutual friend who had made a lot of money transporting marijuana for Anna Trujillo prior to 1998. Meanwhile, DEA Task Force Agent Perry Powell was Campos also informed DEA Agent Lynch that she and interviewing Rogensues. Initially, Rogensues told Agent Rogensues had driven to and from Arizona in order to Powell that she and Campos had been approached by a man transport marijuana for the Trujillos on five prior occasions. at a bus station who had asked them to transport the duffle Moreover, Campos stated that Shawn Speckman had rented bags for him. However, after hearing Campos crying in the cars for their use on the instant trip and also on two or three next room, Rogensues confessed that the story was a lie prior trips. which she and Campos had made up when they were in the back of Trooper Ortiz’s squad car. Rogensues then admitted In addition, Campos informed the DEA agents that Anna Trujillo had paid her $250.00 to title two cars in her name and, then, to transfer the title back to Trujillo after the cars 2 had been purchased. Finally, Campos and Rogensues advised Campos told Trooper Ortiz that she and Rogensues were on their way back to Detroit, Michigan, from Phoenix, Arizona, (where they had been staying with her aunt) because her mother had suffered a medical 3 emergency. On the other hand , Rogensues informed T rooper O rtiz that Rogensues testified that she never loo ked in any of the duffle bags they had been in Phoenix in order to relocate a business there, although but assumed marijuana was contain ed therein based upon what Campos she could not specify what type of business, and that she was unaware of had told her and the amount of money which they were receiving for the any medical emergency suffered by Camp os’ mother. trip. No. 02-1521 United States v. Trujillo 5 6 United States v. Trujillo No. 02-1521

DEA Agent Lynch that they would either page or call Julio Campos and Rogensues ultimately pleaded guilty to Trujillo on his cellular telephone when they got back to conspiracy to deliver marijuana pursuant to a plea agreement Detroit and that, frequently, they would meet at the Trujillo’s which required them to cooperate with the Government. As residence in order to deliver the marijuana. a result of their pleas and cooperation, the district court sentenced Campos and Rogensues to three months in a half- Campos, Rogensues, and DEA Agent Lynch then went to way house, to three months on electronic tether, and to two the Rexford Police Department which is in close proximity to years of supervised release. the Trujillo’s residence. From there, the Trujillos were paged several times, but no response was ever received. The next On September 19, 2000, a federal grand jury indicted Anna day, Anna Trujillo telephonically spoke with both Campos and Julio Trujillo for conspiracy to possess with the intent to and Rogensues on four occasions which were tape recorded distribute in excess of one hundred kilograms of marijuana in by DEA agents. During the second of these four violation of 21 U.S.C. §§ 841(a)(1) and 846. Julio Trujillo conversations, Anna Trujillo instructed Campos to “bring the pleaded guilty, pursuant to a written plea agreement, to babies in from the cold so that they won’t get cold,” which conspiracy to possess with the intent to distribute in excess of Campos understood as an instruction to get the marijuana out one hundred kilograms of marijuana. In addition, pursuant to of the car and place it inside Campos’ home. In the third of the terms of the plea agreement, Trujillo agreed to provide these four telephone conversations, Rogensues advised Anna truthful and complete information, in good faith, concerning Trujillo that they had brought the babies in so that they would all of his knowledge about the marijuana trafficking. not get cold. Thereafter, the district court sentenced Julio Trujillo to eighty-three months of imprisonment.5 In the fourth conversation, Anna Trujillo told Rogensues that she (Rogensues) and Campos had cost her $250,000.00 Anna Trujillo, however, exercised her constitutional right and that everyone in the house would have to pay for it. to a jury trial. Prior to the start of her trial, Trujillo filed a Rogensues testified that she understood the comment to mean motion to suppress the physical evidence obtained as a result that Campos and she would have to pay for the marijuana.4 of the search of her residence. Trujillo argued that the Ultimately, the DEA agents were unsuccessful in their affidavit in support of the search warrant application filed by attempts to establish a controlled delivery of the marijuana to DEA Agent Lynch was defective, and therefore, the search the Trujillos. warrant was invalid. On September 6, 2001, after conducting an evidentiary hearing, the district court denied Trujillo’s On November 16, 1998, DEA agents searched the Trujillo’s motion to suppress. Specifically, the district court found that home pursuant to the warrant issued by Magistrate Judge the information contained within DEA Agent Lynch’s Scheer. As a result of the search, DEA agents discovered affidavit was sufficient to establish probable cause and also personal telephone books, titles to two vehicles in Campos’ found that, even if the affidavit had included the information name which had previously been used to transport marijuana, regarding Campos’ and Rogensues’ prior inconsistent two digital scales, cellular telephones and pagers, and a fax statements to DEA Task Force Agents Thurston and Powell, machine. However, no narcotics were discovered.

5 4 Julio Trujillo has filed a separate appeal with this Court challenging This conversation was not tape recorded. the sentence imposed up on him by the d istrict court. No. 02-1521 United States v. Trujillo 7 8 United States v. Trujillo No. 02-1521

probable cause would have still existed to issue the search back to Trujillo; and (3) evidence of an alleged threat by warrant. Trujillo toward Rogensues. Furthermore, at the final pretrial conference which occurred On November 8, 2001, a jury found Trujillo guilty of the five days prior to the start of trial, Trujillo represented to the one count charged in the indictment. On April 8, 2002, the district court that there had been a break-down in her district court sentenced Trujillo to seventy-eight months of relationship with her attorneys. As such, Trujillo asked the imprisonment. In so doing, the district court denied Trujillo’s district court to allow attorney John Royal’s motion to objection to the amount of marijuana for which she was being substitute his representation for that of her present counsel held accountable as relevant conduct and also denied and, thereafter, to allow her motion to continue the trial so Trujillo’s objection to a two-level enhancement, pursuant to that attorney Royal could have adequate time to prepare for U.S.S.G. § 3B1.1(c), for being an organizer or leader in the trial.6 At the hearing, attorney Royal informed the district conspiracy. On April 18, 2002, Trujillo filed a timely notice court that he desired to represent Trujillo in this matter but of appeal challenging her conviction and sentence. only if he had sufficient time to prepare for trial, i.e., sixty days. The Government objected to a continuance, asserting II. ANALYSIS that it would be prejudiced by any delay in the start of the trial. The district court then stated that jury selection would On appeal, Trujillo has raised seven grounds in support of proceed as scheduled on November 6, 2001, but that the her argument that we should vacate her conviction and either presentation of the evidence could be delayed until November outright dismiss the indictment against her or grant her a new 8, 2001. Given the district court’s denial of the motion to trial, and she has raised one ground in support of her continue, Attorney Royal did not believe that he had argument that, at a minimum, we should remand her case for sufficient time in which to prepare for trial, and thus, he re-sentencing. We will address her arguments seriatim. declined to take the case. A. MOTION TO SUPPRESS Finally, on the day prior to the start of the trial, the district court heard oral arguments on Trujillo’s motion in limine to Trujillo argues that the search warrant issued by Magistrate exclude certain evidence, pursuant to Federal Rule of Judge Scheer was invalid because the affidavit filed by DEA Evidence 404(b), which the Government sought to introduce Agent Lynch in support of the application for the warrant at trial. Thereafter, the district court excluded some of the omitted the fact that Campos and Rogensues had given Government’s evidence but authorized the admission of the numerous inconsistent versions of the facts surrounding their rest. Specifically, the district court allowed the Government marijuana trafficking before naming her and her husband as to introduce: (1) Campos’ testimony that, at Trujillo’s request, the ultimate recipients of the narcotics. Trujillo asserts that she traveled to Arizona and transported marijuana back to the omission of this critical information regarding the Detroit on several occasions prior to the beginning of the credibility and reliability of Campos and Rogensues rendered charged conspiracy; (2) Campos’ testimony that Trujillo paid the affidavit fatally defective. Trujillo claims that the omitted her to title several cars in her name and, then, transfer the title evidence regarding Campos’ and Rogensues’ lying to law enforcement agents before settling on a story incriminating her should have triggered an evidentiary hearing where she 6 would have been able to show that DEA Agent Lynch acted Attorney Royal represe nts Trujillo in this appe al. No. 02-1521 United States v. Trujillo 9 10 United States v. Trujillo No. 02-1521

with reckless disregard for the truth in presenting the warrant hypertechnical– manner, and the court should consider application to Magistrate Judge Scheer. In short, Trujillo whether the totality of the circumstances supports a contends that the affidavit presented by DEA Agent Lynch finding of probable cause, rather than engaging in was so condensed that it misled Magistrate Judge Scheer and line-by-line scrutiny. United States v. Greene, 250 F.3d rendered him unable to determine whether probable cause 471, 479 (6th Cir. 2001). The magistrate’s determination existed to issue the warrant. of probable cause is afforded great deference, and that determination should be reversed only if the magistrate The Government argues that the district court correctly arbitrarily exercised his discretion. Id. denied Trujillo’s motion to suppress because DEA Agent Lynch’s affidavit was not facially defective and probable United States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004). cause existed for the issuance of the warrant. Specifically, the Government asserts that the affidavit informed Magistrate “The task of the issuing magistrate is simply to make a Judge Scheer that Campos and Rogensues had been practical, common-sense decision whether, given all the interviewed separately and provided corroborating details circumstances set forth in the affidavit before him, including (details which were verified by DEA agents) as to Trujillo’s the ‘veracity’ and ‘basis of knowledge’ of persons supplying residence and informed Magistrate Judge Scheer of the fact hearsay information, there is a fair probability that contraband that Julio Trujillo had just been released from prison after or evidence of a crime will be found in a particular place.” serving a sentence for a drug conviction. Illinois v. Gates, 462 U.S. 213, 238 (1983). “The probable cause requirement . . . is satisfied if the facts and Furthermore, the Government contends that the affidavit circumstances are such that a reasonably prudent person clearly indicated that the information provided by Campos would be warranted in believing that an offense had been and Rogensues was reliable and corroborated. Finally, the committed and that evidence thereof would be found on the Government claims that, even had DEA Agent Lynch premises to be searched.” Greene v. Reeves, 80 F.3d 1101, informed Magistrate Judge Scheer of the fact that Campos 1106 (6th Cir. 1996)(citing United States v. Besase, 521 F.2d and Rogensues had provided inconsistent stories to DEA Task 1306, 1307 (6th Cir. 1975)). Thus, “only the probability, and Force Agents Thurston and Powell, the affidavit and not a prima facie showing, of criminal activity is the standard application would not have been weakened and still would of probable cause . . . .” United States v. Davidson, 936 F.2d have been supported by probable cause sufficient to issue the 856, 860 (6th Cir. 1991). search warrant. In the instant case, we find that the totality of the We have previously explained: circumstances presented in DEA Agent Lynch’s affidavit provided Magistrate Judge Scheer with a substantial basis for This court reviews the sufficiency of an affidavit to finding probable cause to search Trujillo’s residence. determine “whether the magistrate had a substantial basis Massachusetts v. Upton, 466 U.S. 727, 733 (1984). for finding that the affidavit established probable cause Accordingly, the district court did not err in denying to believe that the evidence would be found at the place Trujillo’s motion to suppress. cited.” United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)(quotation omitted). The affidavit should be As the district court correctly noted, in her affidavit, DEA reviewed in a commonsense–rather than a Agent Lynch specifically advised Magistrate Judge Scheer No. 02-1521 United States v. Trujillo 11 12 United States v. Trujillo No. 02-1521

that, after being interviewed separately, Campos and United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997). Rogensues provided detailed facts of a conspiracy to Thus, “it is clear that Franks v. Delaware requires that, even distribute marijuana. Specifically, the affidavit represented in such an instance of perjury, the warrant will be voided if that Campos and Rogensues were transporting money to the false statement is necessary to establish probable cause. Arizona in exchange for marijuana which they would then The defendant must prove by a preponderance of the evidence return to Julio Trujillo whom they contacted via his cellular that the affiant’s remaining content is insufficient to establish telephone or pager and who instructed them to deliver the probable cause.” United States v. Barone, 584 F.2d 118, 121 marijuana to his residence. Moreover, the affidavit stated that (6th Cir. 1978). Campos and Rogensues had planned to make five or six more trips to Arizona for the Trujillos in order to obtain marijuana. Here, Trujillo has failed to make a strong showing that Finally, DEA Agent Lynch’s affidavit contained the fact that DEA Agent Lynch excluded certain facts from her affidavit a controlled delivery was planned for the same day upon with an intention to mislead Magistrate Judge Scheer. Mays which she sought the search warrant. Thus, we believe that v. City of Dayton, 134 F.3d 809, 816 (6th Cir. 1998). In DEA Agent Lynch’s affidavit provided probable cause for addition, we agree with the district court that, even had DEA Magistrate Judge Scheer to issue the search warrant at issue. Agent Lynch included in her affidavit the fact that Campos and Rogensues had given prior inconsistent statements before As for Trujillo’s challenge to the reliability and credibility pointing to Trujillo as a co-conspirator, these facts would not of Campos and Rogensues and the necessity of an evidentiary have negated a finding of probable cause. Atkins, 107 F.3d at hearing prior to the issuance of the warrant, the affidavit 1216-17 (denying the defendant’s motion for a Franks clearly indicated that the information provided by Campos hearing because alleged material omissions were not essential and Rogensues was reliable and corroborated. Specifically, to a probable cause finding); United States v. Martin, 920 DEA Task Force Agents Thurston and Powell were able to F.2d 393, 398 (6th Cir. 1990)(rejecting the defendant’s verify with law enforcement authorities in Michigan that the request for a Franks hearing because the alleged material Trujillos lived at the address provided by Campos and omission bearing on the veracity of the principal informant Rogensues and that Julio Trujillo had recently been released was not essential to a finding of probable cause). Thus, we from prison after serving a sentence on a drug charge as stated affirm the district court’s denial of Trujillo’s motion to by Campos and Rogensues. Franks v. Delaware, 438 U.S. suppress. 154, 165 (1978)(noting that “probable cause may be founded upon . . . information . . . that sometimes must be garnered B. RULE 404(B) EVIDENCE hastily.”). Prior to the start of trial, the Government filed a notice Finally, as for Trujillo’s claim that DEA Agent Lynch acted regarding its intent to use certain evidence, pursuant to with reckless disregard for the truth in omitting certain facts Federal Rule of Evidence 404(b), at trial. The Government’s from her affidavit, a defendant is entitled to a Franks hearing notice engendered a motion in limine by Trujillo seeking an “if and only if : (1) there is a substantial preliminary showing order from the district court barring the introduction of the that specified portions of the affiant’s averments are Government’s Rule 404(b) evidence. At the conclusion of a deliberately or recklessly false and (2) a finding of probable hearing on the motion, the district court allowed in part and cause would not be supported by the remaining content of the denied in part Trujillo’s motion, allowing the admission at affidavit when the allegedly false material is set to one side.” No. 02-1521 United States v. Trujillo 13 14 United States v. Trujillo No. 02-1521

trial of six of the ten types of evidence proffered by the opportunity, personal involvement, and unexplained wealth) Government. and because the probative value of this evidence was not substantially outweighed by any unfair prejudice. As for On appeal, Trujillo has challenged the district court’s order Campos’ prior marijuana trips for Trujillo, the Government with regard to three types of the Government’s Rule 404(b) asserts that the evidence was highly probative to demonstrate evidence. First, Trujillo argues that the district court erred in Trujillo’s method of operation, plan, and preparation. As for allowing the Government to introduce evidence that Campos the title evidence, the Government claims that the evidence had traveled to Arizona in order to transport marijuana back established Trujillo’s consciousness of guilt, unexplained to Detroit for Trujillo on several occasions prior to the start of wealth, motive, and actions in furtherance of the conspiracy. the charged conspiracy. Second, Trujillo asserts that the Finally, as for the evidence of a threat, the Government district court erred in allowing the Government to introduce argues that the evidence was admissible to prove Trujillo’s evidence that Trujillo had paid Campos to title two intent and consciousness of guilt. automobiles in Campos’ name and, then, transfer the title back to her because these alleged acts also occurred prior to Federal Rule of Evidence 404(b) provides in relevant part: the start of the charged conspiracy. Third, Trujillo contends “Evidence of other crimes, wrongs, or acts is not admissible that the district court erred in allowing the Government to to prove the character of a person in order to show action in introduce evidence that Trujillo had threatened Rogensues conformity therewith. It may, however, be admissible for that, because Campos and Rogensues had cost her other purposes, such as proof of motive, opportunity, intent, $250,000.00, they were going to have to pay for the preparation, plan, knowledge, identity, or absence of mistake marijuana. or accident . . . .” Id. In determining whether other acts evidence under Rule 404(b) is admissible, this Court employs Trujillo argues that the district court erred in allowing the a three-part test: Government to introduce these three pieces of Rule 404(b) evidence because the district court failed to make any factual First, the district court must decide whether there is determination that any of the alleged actions actually sufficient evidence that the other act in question actually occurred. In addition, Trujillo claims that the district court occurred. Second, if so, the district court must decide erred in admitting this Rule 404(b) evidence because the whether the evidence of the other act is probative of a evidence did not assist the jury, because the Government did material issue other than character. Third, if the evidence not introduce the evidence for a legitimate purpose (she never is probative of a material issue other than character, the placed her intent at issue), and because the evidence was district court must decide whether the probative value of simply propensity evidence masquerading as Rule 404(b) the evidence is substantially outweighed by its potential evidence which was unfairly prejudicial to her. Finally, prejudicial effect. Trujillo asserts that the district court erred in failing to give a proper limiting instruction to the jury when it admitted the United States v. Jenkins, 345 F.3d 928, 937 (6th Cir. Government’s Rule 404(b) evidence. 2003)(citing United States v. Haywood, 280 F.3d 715, 719-20 (6th Cir. 2002)). “This court reviews a district court’s The Government argues that the district court did not err in evidentiary determinations under Fed. R. Evid. 404(b) for admitting the Rule 404(b) evidence because the evidence was abuse of discretion. A district court is considered to have admitted for permissible purposes (to show plan, intent, abused its discretion when this court is left with the definite No. 02-1521 United States v. Trujillo 15 16 United States v. Trujillo No. 02-1521

and firm conviction that the district court committed a clear abuse its discretion in admitting the Government’s Rule error of judgment in the conclusion it reached upon a 404(b) evidence.7 weighing of the relevant factors.” United States v. Copeland, 321 F.3d 582, 596 (6th Cir. 2003) (internal citations and C. SUBSTITUTION OF COUNSEL quotations omitted). Trujillo argues that the district court abused its discretion Here, we conclude that the district court did not abuse its in denying her motion to continue the trial so that her new discretion in admitting the Government’s Rule 404(b) attorney could adequately prepare for trial. Moreover, evidence. Although Trujillo argues that the district court because she could not obtain new counsel to represent her failed to make a factual determination that the alleged bad without the requested continuance, Trujillo asserts that the acts occurred, a jury could reasonably have concluded that district court deprived her of her right to counsel of her own Trujillo committed the prior bad acts based upon Campos’, choosing and forced her to proceed with the assistance of Rogensues’, and Speckman’s testimony and based upon the counsel in whom she had no confidence and who rendered her evidence discovered at Trujillo’s home pursuant to the search ineffective assistance. Accordingly, Trujillo contends that she warrant. Huddleston v. United States, 485 U.S. 681, 690 is entitled to a new trial. (1988). Therefore, the first step in the Rule 404(b) analysis is satisfied. The Government argues that the district court made all of the proper and appropriate inquiries of Trujillo as to her Likewise, the second step in the Rule 404(b) inquiry is dissatisfaction with her attorney and that the district court did satisfied. Because Trujillo was charged with a specific intent not abuse its discretion in denying her request for a crime, Rule 404(b) evidence was admissible to prove her continuance of the trial. The Government claims that, due to intent. E.g., United States v. Spikes, 158 F.3d 913, 930 (6th the lateness of her request, it would have been prejudiced by Cir. 1998)(“[T]his court has held that Rule 404(b) evidence a continuance and that the basis for Trujillo’s request for a is admissible to prove intent if specific intent is a statutory substitution of counsel was inadequate. Accordingly, the element of the offense.”). Moreover, we agree with the Government asserts that the district court did not err in district court that the Rule 404(b) evidence was admissible for denying Trujillo’s motion to continue. proper purposes other than propensity, including plan, opportunity, motive, and unexplained wealth. 7 In her appellate brie f, Trujillo contends that, although the district Finally, we also agree with the district court that the court gave a limiting instruction to the jury prior to deliberations, the evidence of Trujillo’s prior bad acts was not substantially district court erred in failing to give the jury an appropriate limiting outweighed by the danger of any unfair prejudicial effect. instruction when the Rule 404(b) evidence was presented. However, Fed. R. Evid. 403; United States v. Myers, 123 F.3d 350, Trujillo did no t lodge a timely objec tion to the district co urt’s failure to 362-63 (6th Cir. 1997). Accordingly, the district court did not instruct the jury contemporaneously with the admission of the Rule 404(b) evidence, and there is no plain error here. United States v. Stines, 313 F.3d 912, 919 (6th Cir. 20 02)(“W here a defendant fails to make a timely objection, stating the specific grounds for his objection, our review is limited to plain error.”); United States v. Miller, 115 F.3d 361, 36 6 (6th Cir. 199 7) (declining to find an abuse of discretion where the district court failed to provide a cautionary instruction at the time of the admission of the Rule 404(b) evidence but did so at the close of the case). No. 02-1521 United States v. Trujillo 17 18 United States v. Trujillo No. 02-1521

“A motion for new court-appointed counsel based upon continue. Accordingly, the district court did not abuse its defendant’s dissatisfaction with his counsel previously discretion in denying Trujillo’s motion to continue. appointed is addressed to the sound discretion of the trial court.” United States v. White, 451 F.2d 1225, 1226 (6th Cir. D. IMPROPER BOLSTERING OR VOUCHING 1971). We review a district court’s denial of a motion for a substitution of counsel for an abuse of discretion. United Trujillo argues that she is entitled to a new trial because the States v. Williams, 176 F.3d 301, 314 (6th Cir. 1999). In Government improperly vouched for and bolstered the particular, we consider: “(1) the timeliness of the motion, credibility of Campos and Rogensues. Specifically, Trujillo (2) the adequacy of the court’s inquiry into the matter, (3) the asserts that, because the Government had both witnesses extent of the conflict between the attorney and client and highlight to the jury the fact that under the terms of their plea whether it was so great that it resulted in a total lack of agreements they had to truthfully cooperate or they would be communication preventing an adequate defense, and (4) the in breach of their agreements, the jury was improperly left balancing of these factors with the public’s interest in the with the impression that the Government had some secret prompt and efficient administration of justice.” United States method by which to determine whether Campos and v. Mack, 258 F.3d 548, 556 (6th Cir. 2001); Williams, 176 Rogensues were telling the truth. Trujillo also claims error F.3d at 314; United States v. Jennings, 83 F.3d 145, 148 (6th based upon Rogensues’ testimony that she agreed to submit Cir. 1996). to a polygraph examination.

Here, these four factors weigh in favor of a conclusion that In addition, Trujillo contends that the Government’s error the district court did not abuse its discretion in denying in improperly vouching for and bolstering Campos’ and Trujillo’s motion to continue. First, the motion for Rogensues’ testimony was exacerbated by the prosecutor’s substitution of counsel and the motion for a continuance were rebuttal argument to the jury. Trujillo claims that the untimely, coming only three days prior to the scheduled start prosecutor’s reference to the “truthful testimony” agreements of the trial. Jennings, 83 F.3d at 148 (motion to continue in which Campos and Rogensues had entered was improper made the day before trial); Williams, 176 F.3d at 314 (motion because the statement was intended to convey to the jury the to continue made two weeks before trial). Second, the record prosecutor’s opinion that the witnesses’ testimony was establishes that the district court made an adequate inquiry truthful. Finally, Trujillo argues that the district court erred into the crux of Trujillo’s dissatisfaction with her attorney. in failing to give an appropriate cautionary instruction to the jury. Third, Trujillo admitted that her dissatisfaction was based upon her counsel’s failure to obtain a suppression of the The Government argues that it did not improperly bolster evidence seized from her home as a result of the search or vouch for Campos’ or Rogensues’ credibility when the warrant. Because the district court was not going to allow her prosecutor referred to the witnesses’ plea agreements. On the to reopen the suppression issue, this factor weighs in favor of contrary, the Government notes that the prosecutor limited the a denial of the motion to continue. Fourth, given the questioning of Campos and Rogensues to the existence of administrative hurdles and costs involved in ensuring the their plea agreements and did not suggest the prosecutor’s attendance of the Government’s witnesses for the trial, the personal assurance or belief as to the veracity or credibility of public’s interest in the prompt and efficient administration of either witness. Furthermore, the Government asserts that justice weighed in favor of denying Trujillo’s motion to Rogensues’ reference to her willingness to take a polygraph No. 02-1521 United States v. Trujillo 19 20 United States v. Trujillo No. 02-1521

examination was an unsolicited statement which the district Q. Did you receive consideration from the government in court properly determined to be a “non-issue” because exchange for your plea? Rogensues never took a polygraph test. Finally, the Government claims that the district court’s failure to give a A. Yes. cautionary instruction does not constitute plain error, especially in light of the overwhelming proof submitted at Q. Was there a consideration from the government in trial establishing Trujillo’s guilt. exchange for truthful cooperation in the case?

“‘Improper vouching occurs when a prosecutor supports the A. Yes. credibility of a witness by indicating a personal belief in the witness’s credibility thereby placing the prestige of the office J.A. 280. Likewise, during her direct examination, the of the United States Attorney behind that witness. [I]mproper prosecutor asked Rogensues the following questions, and vouching involves either blunt comments or comments that Rogensues gave the following answers: imply that the prosecutor has special knowledge of facts not in front of the jury . . . .’” United States v. Martinez, 253 F.3d Q. What were the charges against you in that case? 251, 253-54 (6th Cir. 2001)(quoting United States v. Francis, A. Conspiracy to deliver marijuana. 170 F.3d 546, 550 (6th Cir. 1999)). On the other hand, “‘[b]olstering occurs when the prosecutor implies that the Q. How did you plead? witness’s testimony is corroborated by evidence known to the government but not known to the jury.’” Id. at 254 (quoting A. Guilty. Francis, 170 F.3d at 551). “Whether improper vouching amounts to prosecutorial misconduct and whether it renders Q. Why was that? the trial fundamentally unfair are mixed questions of law and fact reviewable de novo.” United States v. Tocco, 200 F.3d A. Downward departure for testimony today. 401, 422 (6th Cir. 2000); United States v. Clark, 982 F.2d 965, 968 (6th Cir. 1993). *** In the present case, we find that the prosecutor did not Q. Could you tell the jurors what your agreement was improperly vouch for or bolster Campos’ or Rogensues’ with regard to cooperation? credibility. Accordingly, no prosecutorial error occurred which entitles Trujillo to a new trial. A. That I would tell the truth. I would be here for pretrial, trial, anything concerning this case, that I admit to a lie During her direct examination, the prosecutor asked detector test. Campos the following questions, and Campos gave the following answers: ***

Q. Did you plea pursuant to a plea agreement? A. I would submit to one – to one, which I will.

A. Yes. No. 02-1521 United States v. Trujillo 21 22 United States v. Trujillo No. 02-1521

J.A. 452, 500-01. Finally, during the prosecutor’s rebuttal did not prejudice Trujillo, and we also conclude that Trujillo argument, she made the following statement to the jury: has failed to satisfy the plain error standard with regard to the district court’s failure to give the jury an appropriate limiting Beth Ann Rogensues and Norma Jean Campos are not instruction. Accordingly, Trujillo is not entitled to a new trial free. Three months halfway house away from the based upon her claims of prosecutorial misconduct. children, three months on tether, two years probation, and they didn’t – they told you during the direct E. ADMISSION OF PRIOR INCONSISTENT examination that they didn’t come here, and they didn’t STATEMENTS agree they would get on the stand and say whatever the government wanted them to say. They promised to be During the trial, both Campos and Rogensues testified that truthful and provide complete information. Truthful and they had given statements to DEA Task Force Agents complete information concerning all individuals with Thurston and Powell during their post-arrest interviews in whom they conspired to distribute marijuana, but not which they admitted transporting marijuana for Trujillo and limited to Julio or Anna Trujillo. That’s what they told her husband. Campos and Rogensues also testified that they you during their examination. provided details to DEA Task Force Agents Thurston and Powell concerning where they delivered the marijuana upon J.A. 203. returning to Detroit, where the Trujillos lived, and the fact that Rogensues kept a ledger detailing each trip that she and As the above citations to the record make clear, the Campos had made in order to transport marijuana for the prosecutor did not offer any personal observations or opinions Trujillos. as to the veracity of either Campos or Rogensues, nor did she place the prestige of the Government behind their credibility. On cross-examination, Trujillo’s counsel attacked the Rather, the prosecutor’s questions and comments merely truthfulness of Campos’ and Rogensues’ testimony and encompassed the terms of Campos’ and Rogensues’ plea attempted to impeach them with their prior inconsistent agreements which this Court has held to be permissible. statements which they gave to Trooper Ortiz and to DEA Francis, 170 F.3d at 550. Thus, the Government did not Task Force Agents Thurston and Powell before settling on the engage in any improper vouching. story which they testified to at trial implicating Trujillo. Likewise, the Government did not engage in any improper The Government then called DEA Task Force Agents bolstering. Again, as the above citations to the record reveal, Thurston and Powell in order to rehabilitate Campos and the prosecutor did not imply that either Campos’ or Rogensues with the statements which Campos and Rogensues Rogensues’ testimony was corroborated by any evidence had made to them during their post-arrest interviews which known to the Government but not presented to the jury. were consistent with their trial testimony implicating Trujillo. Martinez, 253 F.3d at 254. Thus, there was no improper Trujillo’s counsel objected to DEA Task Force Agents bolstering. Thurston and Powell’s testimony regarding Campos’ and Rogensues’ prior consistent statements on hearsay grounds. Finally, we conclude that the district court correctly Fed. R. Evid. 802. The Government responded that the characterized Rogensues’ unsolicited testimony regarding her agents’ testimony was admissible because the agents’ willingness to submit to a polygraph test as a non-issue which testimony was offered to rebut Trujillo’s charge of recent No. 02-1521 United States v. Trujillo 23 24 United States v. Trujillo No. 02-1521

fabrication by Campos and Rogensues, and thus, the regarding Campos’ and Rogensues’ prior consistent testimony did not constitute hearsay. Fed. R. Evid. statements. Trujillo argues that the cases cited by the 801(d)(1)(B). The Government cited three cases to the Government and relied upon by the district court are no district court in support of its position: United States v. longer good law in light of the United States Supreme Court’s Hebeka, 25 F.3d 287 (6th Cir. 1994); United States v. Smith, holding in Tome v. United States, 513 U.S. 150 (1995), and 746 F.2d 1183 (6th Cir. 1984); and United States v. Hamilton, this Court’s holding in United States v. Toney, 161 F.3d 404 689 F.2d 1262 (6th Cir. 1982). After reviewing the cases (6th Cir. 1998). Trujillo contends that Campos’ and cited by the Government, the district court overruled Rogensues’ motive to lie arose when they were arrested by Trujillo’s objection and allowed DEA Task Force Agents Trooper Ortiz in Colorado, and thus, under the holdings of Thurston and Powell to testify regarding Campos’ and Tome and Toney, the district court committed reversible error Rogensues’ statements which were consistent to the in allowing the Government to rehabilitate Campos and testimony which Campos and Rogensues had given at trial. Rogensues via DEA Task Force Agents Thurston and Powell’s testimony. Accordingly, DEA Task Force Agent Powell testified that, during her interview, Rogensues stated that she was The Government claims that the district court did not err in delivering the marijuana which had been seized from the allowing DEA Agents Thurston and Powell to offer testimony rental vehicle to Julio Trujillo; that the Trujillos had delivered in an attempt to rehabilitate Campos and Rogensues because the rental vehicle to Campos and her to be used in the agents’ testimony was offered to rebut Trujillo’s charge of transporting the marijuana from Arizona to Detroit; that recent fabrication. In essence, the Government contends that Campos and she had completed five prior marijuana trips for Trujillo opened the door to this testimony by implying during the Trujillos; and that she was able to remember the dates of the cross-examination of Campos and Rogensues that they those marijuana trips because she kept a daytime ledger in were lying and that they had been improperly influenced by which she noted the states through which Campos and she their plea agreements with the Government. had driven, the miles logged, the hours each drove, and the total time it took to complete the trips. Similarly, DEA Task Federal Rule of Evidence 801(d)(1)(B) provides: “A Force Agent Thurston testified that, during her interview, statement is not hearsay if . . . [t]he declarant testifies at the Campos told him that she had completed seven trips to trial or hearing and is subject to cross-examination concerning Arizona in order to obtain marijuana which she then delivered the statement, and the statement is . . . consistent with the to the Trujillos in Detroit.8 declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or On appeal, Trujillo reasserts her argument that DEA Task improper influence or motive . . . .” Id. “A district court’s Force Agents Thurston’ and Powell’s testimony constituted determination of whether evidence constitutes hearsay under inadmissible hearsay, and therefore, the district court the Federal Rules of Evidence is a conclusion of law that is committed prejudicial error by allowing them to testify reviewed de novo.” Cox v. Treadway, 75 F.3d 230, 238 (6th Cir. 1996)(citing Hancock v. Dodson, 958 F.2d 1367, 1371 (6th Cir. 1992)). 8 The district court also allowed DE A Agent Lynch to offer testimony In the instant case, the district court committed error when concerning the prio r consistent statements given to her by Campos and it employed the wrong test in resolving Trujillo’s hearsay Roge nsues. No. 02-1521 United States v. Trujillo 25 26 United States v. Trujillo No. 02-1521

objection. As noted by Trujillo, the district court neither cited not believable to suggest that, a day or two after Campos and to nor referenced Toney or Tome in reaching its decision to Rogensues were stopped with more than fifty kilograms of overrule Trujillo’s hearsay objection. As such, the district marijuana in their car and were subsequently arrested, they court never rendered a factual finding as to when Campos and did not have a motive to lie, regarding the source of the Rogensues formed a motive to lie.9 Thus, the question which marijuana, in order to get lenient treatment.11 See United we must answer is whether the district court properly States v. Esparza, 291 F.3d 1052, 1055 (6th Cir. admitted this evidence despite the district court’s flawed 2002)(finding testimony made at the time of an arrest reasoning. inadmissible because “Esparza had the same motive to lie at the time of his statement to the officer as he did at the trial, In order for DEA Task Force Agents Thurston’s and and so his statement was not admissible to rebut a charge of Powell’s testimony not to be considered hearsay under Rule recent fabrication.”). Accordingly, we find that the district 801(d)(1)(B): (1) Campos and Rogensues had to testify and court erred in admitting the hearsay statements in question. been subject to cross-examination; (2) Trujillo had to expressly or impliedly charge recent fabrication or improper Nevertheless, we also find that this error does not warrant influence or motive by Campos and Rogensues during their a reversal. In order to merit a reversal, this error must be testimony; (3) the Government had to offer a prior consistent shown not to have been harmless, i.e., that it was more statement that was consistent with the Campos and Rogensues probable than not that the error materially affected the verdict. challenged in-court testimony; and, (4) Campos’ and United States v. Hernandez, 227 F.3d 686, 696 (6th Cir. Rogensues’ prior consistent statements must have been made 2000). We conclude that the district court’s admission of the prior to the time that their supposed motive to lie arose.10 hearsay statements constituted harmless error. Toney, 161 F.3d at 407; Tome, 513 U.S. at 167. The only factor which is at issue in the instant appeal is the last one, i.e. First, the error was harmless because the inadmissible whether the statements which Campos and Rogensues made hearsay testimony was effectively impeached. After DEA to DEA Task Force Agents Thurston and Powell which were Task Force Agent Thurston gave his testimony recounting the consistent with their trial testimony were made before they hearsay statements made by Campos and Rogensues, had formed a “motive to lie.” Trujillo’s counsel, at length, impeached the credibility of the stories given by Campos and Rogensues to DEA Task Force Based upon our review of the record, we conclude that Agent Thurston. See J.A. at 569. DEA Task Force Agent Campos’ and Rogensues’ prior consistent statements were Thurson admitted that Campos and Rogensues were in the made after they had formed their motive to lie. It is simply room together at one point when the details of their stories

9 “The district court’s determination of when the mo tive to lie arose is a factual finding, which we review under the ‘clearly erroneous’ 11 W ithin two days of being arrested and giving custodial statements, standard.” Toney, 161 F.3d at 408. Campos and Rogensues attempted to cooperate with the p olice in 10 arranging for the delivery of the marijuana to Trujillo an d her husba nd in The fact that the Govern ment prese nted the evidence of Ca mpo s’ a manner which would have incriminated b oth. E.g., J.A. at 331 (o n cross- and Rogensues’ prior consistent statements through DEA Task Force examination, Trujillo’s counsel asked, “And then you ended up coming Agents Thurston and Powell’s testimony rather than from Campo s and back here, and you were arraigned after you were unable to set up the Rogensues them selves is o f no co nsequence. Hebeka, 25 F.3d at 293. Trujillos, correct?,” to which Campos respond ed, “Yes.”). No. 02-1521 United States v. Trujillo 27 28 United States v. Trujillo No. 02-1521

were clarified–which indicates that their stories differed F. MOTION FOR A MISTRIAL earlier–thereby, impeaching Campos’ and Rogensues’ stories. Prior to the start of trial, the district court ruled that there In addition, DEA Task Force Agent Thurston was unable could be no mention of any marijuana found in the possession to deny Trujillo’s attorney’s assertion that Campos had been of Thomas Hysell where the Government could not prove that so distressed upon her arrest that she was crying when she the marijuana recovered from him came from Trujillo’s home. was in custody. Id. More importantly, DEA Task Force Because Hysell did not testify at trial, the district court’s Agent Thurston agreed that Campos’ and Rogensues’ stories order resulted in the exclusion of any reference to the only implicated Trujillo in a very minor role when compared marijuana obtained from him after he had met Speckman at to that of her husband, Julio. See J.A. at 573-74. the Trujillo’s home on the night of November 16th. Second, the error was harmless because Trujillo’s counsel During the trial, the prosecutor questioned Speckman about effectively impeached the two witnesses whose testimony was what had transpired when Hysell visited Trujillo’s residence buttressed by the inadmissible hearsay. Trujillo’s counsel just before DEA agents searched the residence pursuant to a impugned the motives of Campos and Rogensues during his search warrant–allegedly trying to imply that Hysell had examination of them and which the jury could have recalled purchased marijuana from Trujillo. After Trujillo’s counsel upon hearing DEA Task Force Agent Thurston’s testimony. objected, the district court cautioned the prosecutor not to let the witness testify regarding the marijuana seized from Third, the Government presented other significant Hysell. admissible evidence which confirmed Trujillo’s involvement in marijuana trafficking activities. For example, Shawn Subsequently, while DEA Agent Anthony Bryndza was Speckman’s testimony indicated Trujillo’s involvement in testifying, the prosecutor inadvertently tendered an exhibit drug trafficking activities, and DEA Agent Lynch testified as consisting of marijuana taken from Hysell the night that he to having found, at Trujillo’s residence, “phone books with went to Trujillo’s home and met with Speckman. The names, . . . two scales, in addition to a cellular telephone and prosecutor’s reference to the exhibit caused Bryndza to refer pager, fax machine, all have information and phone numbers to the marijuana and attribute it to Hysell. Trujillo’s counsel linking to the crime.” J.A. at 356. immediately moved for a mistrial, but the district court denied the motion, admonished the witness, and instructed the jury Accordingly, in light of the other admissible evidence to disregard any references to the exhibit or testimony presented by the Government during the trial and Trujillo’s regarding the marijuana attributed to Hysell. attorney’s effective impeachment of DEA Task Force Agent Thurston, Campos, and Rogensues, it is not probable that, Trujillo argues that the district court abused its discretion even without the improper admission of the prior consistent in denying her motion for a mistrial based upon the statements of Campos and Rogensues, Trujillo would have Government’s witnesses’ references to the marijuana obtained been acquitted. As such, the district court’s improper from Hysell in violation of the district court’s order excluding admission of DEA Task Force Agents Thurston’s and this evidence. Trujillo contends that the prosecutor’s Powell’s hearsay statements was harmless and does not violation of the district court’s order was flagrant and highly require a reversal of Trujillo’s conviction. prejudicial. Accordingly, Trujillo asserts that the prosecutor’s improper implication to the jury that she lived at a house No. 02-1521 United States v. Trujillo 29 30 United States v. Trujillo No. 02-1521

frequented by individuals who possessed marijuana entitled against the accused. United States v. Monus, 128 F.3d her to a new trial, and therefore, the district court erred in 376, 394 (6th Cir. 1997)(citing United States v. Cobleigh, denying her motion for a mistrial. 75 F.3d 242, 247 (6th Cir. 1996)); Carroll, 26 F.3d at 1385 (citing United States v. Leon, 534 F.2d 667, 679 The Government argues that, contrary to Trujillo’s (6th Cir. 1976)). To reverse a conviction because of an assertion otherwise, the complained of remarks were not improper non-flagrant statement, a reviewing court must flagrant. In fact, the Government notes that the references to determine that: 1) the proof of the defendant’s guilt is not the marijuana possessed by Hysell were made by a witness, overwhelming; 2) the defense counsel objected; and 3) not the prosecutor, and therefore, the witness’ comments the trial court failed to cure the impropriety by failing to should not be attributed to it. Accordingly, the Government admonish the jury. Monus, 128 F.3d at 394; Carroll, 26 claims that the district court did not abuse its discretion in F.3d at 1385-86 (citing United States v. Bess, 593 F.2d denying Trujillo’s motion for a mistrial. 749, 757 (6th Cir. 1979)). “We review for abuse of discretion the district court’s Francis, 170 F.3d at 549-50. denial of a motion for mistrial.” United States v. Yang, 281 F.3d 534, 549 (6th Cir. 2002). “An abuse of discretion exists In the case sub judice, we find that the district court did not when the reviewing court is firmly convinced that a mistake abuse its discretion in denying Trujillo’s motion for a has been made.” United States v. Carroll, 26 F.3d 1380, 1383 mistrial. Although the reference to the marijuana recovered (6th Cir. 1994). Deference is given to the district court from Hysell was improper because it violated the district because “[t]he trial judge is in the best position to determine court’s pre-trial order, we do not believe the reference was the nature of the alleged jury misconduct . . . [and] is also in flagrant or requires a reversal. Our review of the record leads the best position to determine appropriate remedies for any us to believe that reference was accidental, did not mislead demonstrated misconduct.” United States v. Copeland, 51 the jury or prejudice Trujillo, and was an isolated statement. F.3d 611, 613 (6th Cir. 1995). Moreover, immediately after the improper statement by Bryndza, the district court properly admonished the jury, and As we have previously explained: we cannot say that the other evidence of Trujillo’s guilt is so insubstantial that a reversal is required in light of this When reviewing claims of prosecutorial misconduct, we improper reference. Accordingly, the district court did not determine first whether the statements were improper. abuse its discretion in denying Trujillo’s motion for a See United States v. Krebs, 788 F.2d 1166, 1177 (6th Cir. mistrial. 1986). If they appear improper, we then look to see if they were flagrant and warrant reversal. See United G. CUMULATIVE ERROR States v. Carroll, 26 F.3d 1380, 1388 (6th Cir. 1994). To determine flagrancy, the standard set by this Court is: 1) Trujillo argues that, even if no single assignment of error is whether the statements tended to mislead the jury or sufficient to warrant a new trial, the totality of errors deprived prejudice the defendant; 2) whether the statements were her of her constitutional right to a fair trial. Accordingly, isolated or among a series of improper statements; 3) Trujillo asks us to grant her a new trial based upon a theory of whether the statements were deliberately or accidentally cumulative error. before the jury; and 4) the total strength of the evidence No. 02-1521 United States v. Trujillo 31 32 United States v. Trujillo No. 02-1521

The Government argues that, because Trujillo has failed to H. ORGANIZER/LEADER ENHANCEMENT demonstrate that the district court committed any individual errors, her claim of cumulative error fails. In any event, the Finally, Trujillo argues that, at a minimum, she is entitled Government claims that Trujillo has failed to demonstrate that to a new sentencing hearing because the district court erred in Trujillo was deprived of her right to a fair trial as a result of enhancing her offense level by two levels, pursuant to any of the district court’s rulings. U.S.S.G. § 3B1.1(c), for being an organizer or leader in the conspiracy. Trujillo asserts that the evidence presented In order to obtain a new trial based upon cumulative error, during her trial clearly established that the leader of the a defendant must show that the combined effect of conspiracy was her husband, Julio, and that the only actions individually harmless errors was so prejudicial as to render which she allegedly took in furtherance of the conspiracy was his trial fundamentally unfair. United States v. Parker, 997 to rent cars for Campos and Rogensues to be used in the F.2d 219, 221 (6th Cir. 1993). This is so because “errors that transportation of marijuana. Accordingly, Trujillo asks the might not be so prejudicial as to amount to a deprivation of Court to remand this matter for re-sentencing with directions due process when considered alone . . . may cumulatively to the district court that she not receive a two-level produce a trial setting that is fundamentally unfair.” United enhancement for being an organizer or leader. States v. Hernandez, 227 F.3d 686, 697 (6th Cir. 2000)(citing Walker v. Engle, 703 F.2d 959, 963 (6th Cir. 1983))(internal The Government contends that the evidence presented at quotation marks omitted). trial proved that Trujillo exercised control over Campos and Rogensues. Accordingly, the Government claims that the However, the only error committed by the district court was district court did not err in enhancing Trujillo’s base offense in admitting some hearsay statements made by DEA Task level by two pursuant to U.S.S.G. § 3B1.1(c). Force Agents Thurston and Powell. We have found this error to be harmless, and Trujillo has failed to identify any other Title 18 U.S.C. § 3742(e) provides that courts of appeals error committed by the district court which could be “shall accept the findings of fact of the district court unless combined with this harmless error in order to support a they are clearly erroneous and shall give due deference to the finding of cumulative error and which would rise to the level district court’s application of the guidelines to the facts.” Id.; of fundamental unfairness. United States v. Rivera, 900 F.2d United States v. Jackson-Randolph, 282 F.3d 369, 389-90 1462, 1471 (10th Cir. 1990)(holding that “a cumulative-error (6th Cir. 2002). U.S.S.G. § 3B1.1(c) provides that “[i]f the analysis should evaluate only the effect of matters determined defendant was an organizer, leader, manager, or supervisor in to be error, not the cumulative effect of non-errors.”). In any criminal activity other than described in (a) or (b), short, there is no showing in the record in this case that increase by 2 levels.” Id. (emphasis in original). Thus, the Trujillo was denied a fundamentally fair trial. United States Sentencing Guidelines provision “requires a sentencing court v. Ashworth, 836 F.2d 260, 267 (6th Cir. 1988). Accordingly, to enhance a sentence [by] two levels if the court finds that Trujillo is not entitled to a new trial based upon her claim of the accused served in a managerial or supervisory role during cumulative error. the criminal activity.” Jones v. United States, 161 F.3d 397, 399 (6th Cir. 1998). In the present case, the evidence presented by the Government at trial clearly established that Trujillo exercised No. 02-1521 United States v. Trujillo 33

control, supervision, and management over Campos and Rogensues. Trujillo recruited Campos to transport the marijuana across the country for her; she provided transportation for Campos to do so; she provided instruction as to who and where to meet in order to obtain the marijuana; and she instructed Campos and Rogensues concerning how to handle the marijuana upon their return to Detroit, i.e., she instructed them to “bring in the babies from the cold so that they won’t get cold” which Campos understood as coded language instructing her to bring the marijuana into Campos’ house. Accordingly, based upon the evidence presented at trial, we find that the district court did not clearly err in denying Trujillo’s objection to the two-level enhancement which she received, pursuant to U.S.S.G. § 3B1.1(c), for being an organizer or leader of the charged conspiracy. III. CONCLUSION Accordingly, for the reasons set forth above, we AFFIRM the judgment and the sentence imposed upon Trujillo by the district court.