IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 90-4746
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
RICKY RAMIREZ, JOSÉ GARCIA, and JOSÉ CANTU-CANTU, Defendants-Appellants.
No. 91-4022
ALFREDO GARCIA, Defendant-Appellant.
Appeals from the United States District Court for the Eastern District of Texas
(June 5, 1992)
Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
This is an appeal of convictions for possessing marijuana with
intent to distribute and conspiring to do so. Ricky Ramirez and
José Garcia appeal their convictions but not their sentences. José
Cantu-Cantu appeals from both his conviction and his sentence. The fourth appellant, Alfredo Garcia, appeals only from his sentence.
The points of error include insufficiency of evidence, admission of
evidence, prosecutorial misconduct, failure to strike a venire
panel, and improper sentencing. The district court's findings
concerning José Cantu-Cantu's objections to the Pre-Sentence
Investigation report are not in the record. We must therefore
vacate José Cantu-Cantu's sentence and remand his case to the
district court for entry of factfindings. In all other respects,
we affirm.
I.
The appellants were indicted along with ten others in July of
1990 for one count of conspiracy to possess 2,000 kilograms of
marijuana with intent to distribute and three counts of the
substantive offense. Count One of the four-count superseding
indictment alleged that defendants had conspired to possess 1,000
kilograms of marijuana with intent to distribute between January
1990 and March 23, 1990. The remaining counts alleged three
separate substantive violations of 21 U.S.C. § 841, stating that
defendants had possessed one hundred kilograms of marijuana with
intent to distribute in January, February, and March of 1990
respectively.
On October 3, 1990, the jury returned a verdict finding José
Garcia guilty of all counts. The jury found José Cantu-Cantu
guilty of the conspiracy count and substantive possession during
February and March. The government had dismissed the count against
Cantu-Cantu alleging a substantive violation in January. The jury
-2- found Ricky Ramirez guilty of the conspiracy count and the
substantive count of possession of marijuana in March, but
acquitted him of possession offenses in January or February.
Alfredo Garcia had earlier pled guilty to the fourth count only,
possession of marijuana with intent to distribute in March of 1990.
The government charged the transport of about 2,000 kilos of
marijuana by an eighteen-wheel semi-tractor trailer from Alfredo
Garcia's house in South Texas to Noel Ramirez's house in Dayton,
Texas. The government argued that the marijuana was transported in
monthly shipments in January, February, and March of 1990. Each
time the tractor-trailer rig was unloaded at Alfredo Garcia's
house, and the marijuana was hidden in a shed for several days.
The conspirators loaded the marijuana on to the rig, camouflaging
it with purchased cabbage and ice. The conspirators would then
drive the rig to Noel Ramirez's home near Dayton where the
marijuana was unloaded and taken away by smaller vehicles.
Noel Ramirez, testifying for the government, described the
operation after it arrived at his house but could not identify any
appellant as being present except José Cantu-Cantu. Several
conspirators unloaded the marijuana in his garage. The rig then
drove away and, after a short interval, pickup trucks or vans
arrived at Noel Ramirez's house to pick up the marijuana. Noel
Ramirez received $5,000.00 for the use of his garage.
The government's case depended heavily on the testimony of
witnesses with whom plea agreements had been negotiated. Rene
Vela-Garcia was the key witness. Vela-Garcia testified that he
-3- worked with Ricky Ramirez and José Garcia, among others, unloading
and loading marijuana and covering the marijuana with cabbages at
Alfredo Garcia's house in January, February, and March, 1990.
Vela-Garcia also testified that José Garcia and Ricky Ramirez had
driven with Vela-Garcia to Dayton to deliver the marijuana on
several occasions.
Vela-Garcia detailed Ricky Ramirez's and José Garcia's
participation in the "March load" of marijuana. According to Vela-
Garcia, José Garcia and Ricky Ramirez helped load the marijuana at
Alfredo Garcia's house and drove from Alfredo Garcia's house to
Dayton in a blue pick-up truck owned by José Garcia's father,
accompanying the March load of marijuana. After delivering the
marijuana at Noel Ramirez's house, some of the conspirators rented
a room at an EconoLodge.
The government also relied on the testimony of agents from the
Federal Drug Enforcement Agency, the Federal Bureau of
Investigation, and officers from the Texas Department of Public
Safety who participated in the surveillance and arrests of the
conspirators and who presented at trial photographs and documents
obtained during the operation. With the cooperation of Noel
Ramirez, the government began surveillance of his house on March
23, 1990. The agents testified that a tractor-trailer rig arrived
at Noel Ramirez's house, and marijuana was unloaded at the house.
The agents then followed the rig to an EconoLodge where they saw
several people leave the rig and enter Room 132 of the motel.
-4- After placing the EconoLodge under additional surveillance,
the agents photographed people entering and leaving the EconoLodge.
They saw Ricky Ramirez and a companion leave the motel in a blue
car that they had seen arrive earlier. The agents also testified
that they saw José Garcia drive up to the EconoLodge in a yellow
pick-up truck, park in the EconoLodge parking lot, enter Room 132
of the motel, exit Room 132 with two other alleged conspirators,
enter his pick-up truck, and prepare to leave the motel. The
agents arrested José Garcia and his two companions as they were
about to drive away. After these arrests, they entered Room 132
and arrested two other alleged conspirators. The agents searched
the pockets of the arrestees and discovered several documents that
were later introduced at trial, including a business card carried
by José Garcia with telephone numbers of several of the
conspirators.
The agents released José Garcia after his initial arrest
outside the EconoLodge but arrested him again later in McAllen, on
June 11, 1990. In the interview following his second arrest,
Garcia stated that "he was not responsible, that Jesus Garcia was
responsible for the transportation of the marijuana." When Shelton
asked how much money he received for loading and unloading
marijuana, Garcia stated that "he did not receive any money for
loading or unloading the marijuana." Garcia also expressed fear
that "Daniel Bautista [a co-conspirator] would have people come up
from Mexico and do harm to him and his family."
-5- The government also presented documents obtained in a search
of Cantu-Cantu's motel room at the EconoLodge. Cantu-Cantu was
arrested while driving a marijuana-laden truck from Noel Ramirez's
house. Agent Shelton read him his Miranda rights and drove him to
a Justice of the Peace where Cantu-Cantu signed a consent form
purportedly authorizing the government to search Cantu-Cantu's
motel room at the EconoLodge. The government searched the room and
discovered various motel and airline receipts that tended to
confirm Vela-Garcia's testimony about the travels of the members of
the conspiracy.
II.
A. Admission of José Garcia's Inculpatory Statements
José Garcia contends that the district court erred in
admitting into evidence his statements made to Agent Shelton,
because those statements were elicited in violation of his Fifth
Amendment rights. We need not reach the substantive merits of this
contention, however, because we find that the admission of the
challenged statements was harmless beyond a reasonable doubt.
After advising him of his Miranda rights, Shelton asked José
Garcia to sign a form waiving his rights. Garcia refused to sign
the form but told Agent Shelton that he would answer questions.
Shelton testified both in a suppression hearing and at trial that
Garcia was reluctant to speak because he feared his co-conspirators
would kill him. Shelton therefore terminated the interview,
writing on the waiver form that "Garcia did not wish to say any
more because he was afraid for his life." Shelton returned about
-6- an hour and a half later to renew his conversations with José
Garcia accompanied by Agent Humphries from the Drug Enforcement
Agency. According to Shelton's testimony at trial, Garcia added
nothing to his earlier statements.
José Garcia objects only to the admission of testimony
regarding his second interview with Shelton. However, Shelton
testified that Garcia made no new statements in the second
interview. The mention of the second interview was harmless beyond
a reasonable doubt. Arizona v. Fulminante, 111 S. Ct. 1246, 1266
(1991).
B. Admission of José Garcia's Business Card
José Garcia also contends that the business card seized from
him after his arrest outside the EconoLodge should have been
excluded from evidence because he was arrested without probable
cause.
Probable cause exists when the facts and circumstances known
to the arresting officer are sufficient to cause a person of
reasonable caution to believe that an offense has been or is being
committed and the arrested person is the guilty person. United
States v. Rocha, 916 F.2d 219, 238 (5th Cir. 1990); United States
v. Raborn, 872 F.2d 589, 593 (5th Cir. 1989). Mere association
with a known criminal does not, by itself, create probable cause
for arrest. Sibron v. New York, 392 U.S. 40 (1968); United States
v. Di Re, 332 U.S. at 593; United States v. Ingrao, 897 F.2d 860,
864 (7th Cir. 1990); Raborn, 872 F.2d at 594; Hillison, 733 F.2d at
697; United States v. Everoad, 704 F.2d 403, 406 (7th Cir. 1983).
-7- "[I]n order to find probable cause based on association with
persons engaging in criminal activity, some additional
circumstances from which it is reasonable to infer participation in
criminal enterprise must be shown." Hillison, 733 F.2d at 697.
We find such additional circumstances. José Garcia was not
only seen in the company of suspected drug traffickers. He was
seen meeting with these suspects while they were engaged in an
ongoing conspiracy. Noel Ramirez had told officers in charge of
the surveillance that the conspirators "were going to get some
vehicles to take the marijuana from my house." This information
was consistent with Noel Ramirez's accounts of the two earlier
marijuana deliveries, in which a semi-tractor-trailer delivered
marijuana to Noel Ramirez's house and vans and pick-up trucks took
the marijuana to Houston for distribution.
The officers, therefore, had reason to believe that, after the
occupants of the semi-tractor-trailer unloaded the marijuana, other
conspirators would arrive at Noel Ramirez's house in smaller
vehicles to pick up the marijuana. The officers could reasonably
believe that José Garcia was meeting with the occupants of the rig
before driving his pick-up truck to Ricky Ramirez's house to help
there.
José Garcia's behavior was consistent with such an inference.
Although the testimony is ambiguous, B.J. Lawrence, the officer
observing the motel, testified that he saw several "Latin males"
coming out of Room 132 and "coming in and out of" various vehicles,
including "the eighteen-wheeler parked on the end." At trial,
-8- Lawrence identified José Garcia as one of the people who entered
and exited the different vehicles. DEA Agent Humphries, the
arresting officer, also testified that Lawrence told him before the
arrest that "Mr. Garcia had been seen around the eighteen-wheeler."
A reasonable officer might then conclude that José Garcia was
connected not only to the occupants of Room 132 but also to the rig
that had transported the marijuana to Noel Ramirez's house
immediately before it arrived at the EconoLodge. The officers also
knew that others would soon return to Noel Ramirez's house in
smaller vehicles such as pick-up trucks to take the marijuana to
Houston. It was then reasonable to infer that José Garcia was a
knowing member of the conspiracy involving the rig and was leaving
the parking lot in a pick-up truck as part of the ongoing
conspiracy. See United States v. Raborn, 872 F.2d 589, 594 (5th
Cir. 1989). The district court's determination that the officers
had reason to believe, more probably than not, that José Garcia was
implicated in the conspiracy was not clearly erroneous. We hold
that evidence obtained incident to José Garcia's arrest was
admissible.
C. Failure to Declare a Mistrial After Hermani's Testimony
Ricky Ramirez contends that the district court erred in
failing to declare a mistrial after Marisole Hermani, Ricky
Ramirez's sister and a witness for the prosecution, raised her
Fifth Amendment privilege while testifying. We review the ruling
on a request for mistrial for abuse of discretion. United States
v. Merida, 765 F.2d 1205, 1220-21 (5th Cir. 1985). We ask if the
-9- stricken evidence, viewed in the context of the whole trial, is so
highly prejudicial that it would have had a substantial impact on
the jurors' verdict. United States v. Baresh, 790 F.2d 393, 402
(5th Cir. 1986).
Hermani testified regarding the uniform that she wore at work,
the condition of her car, and her impressions of a photograph of a
car in front of the EconoLodge that the government had introduced
into evidence. Hermani stated that the car in the photograph was
not her car. On the suggestion of defense counsel, the district
court advised Hermani as to her Fifth Amendment privilege and later
appointed counsel to represent her. After consulting with counsel,
Hermani raised her Fifth Amendment privilege and refused to testify
further.
The district court was well within its discretion not to
declare a mistrial. Hermani's testimony had little impact on Ricky
Ramirez. The district court instructed the jury to disregard the
testimony.
Ricky Ramirez also contends that the district court abused its
discretion by failing to declare a mistrial after the prosecutor
referred to Hermani's testimony in his closing argument. At trial,
Ricky Ramirez's counsel objected to the prosecutor's remark but did
not request a mistrial. The district court again cautioned the
jury to disregard Hermani's stricken testimony. There was no abuse
of discretion.
D. Admission of Photograph of Hermani's Car
-10- Ricky Ramirez contends that the district court erred in not
excluding a photograph of Hermani's car from evidence. According
to Ricky Ramirez, this photograph was irrelevant and therefore
should have been excluded under Fed. R. Evid. 402. The decision to
admit evidence is within the sound discretion of the trial court.
Jon-T Chem., Inc. v. Freeport Chem. Co., 704 F.2d 1421, 1417 (5th
Cir. 1983). The photograph of Hermani's car was admitted to
corroborate Vela-Garcia's testimony that the car that arrived at
the EconoLodge to pick up Ricky Ramirez was driven by Ricky
Ramirez's sister. It was relevant for this purpose.
E. Prosecutor's Reference to Lack of Evidence Supporting Ricky Ramirez's Alibi
During trial and during his closing argument, Ricky Ramirez
relied on the alibi that he had attended a party during the events
of March. In his rebuttal argument, the prosecutor attacked Ricky
Ramirez's alibi by pointing to the lack of any evidence to support
such a defense, stating
"But you see, if there were forty or fifty people at this party that all saw Ricky Ramirez, wouldn't you think they would have called on [someone] that wasn't related to [Ramirez]? If there really was such a party, where kegs of beer were purchased, don't you think there would be just one receipt, one cancelled check, just one piece of hard evidence to show you that party ever existed to begin with, and if so, Ricky Ramirez was there?"
Ricky Ramirez's counsel objected, on the grounds that, with this
remark, the prosecution was shifting the burden of proof to
defendant. The district court overruled the objection.
Ricky Ramirez contends on appeal that the prosecutor's comment
on Ricky Ramirez's failure to produce evidence to rebut the
-11- government's case constituted misconduct. We disagree. The
prosecution may "comment on the failure of the defense to counter
or explain the evidence presented." United States v. Iredia, 866
F.2d 114, 118 (5th Cir. 1989). The prosecutor did no more.
F. Failure to Declare a Mistrial After Dismissal of Six Defendants from Case
After the trial started, six of the remaining nine defendants,
including appellant Alfredo Garcia, pled guilty and were dismissed
from the case on September 26, 27, and 28. On each occasion, the
district court gave cautionary instructions to the jury, telling
them to disregard the dismissal of defendants. The district court
did not tell the jury that the dismissed defendants had pled guilty
but only that they had been dismissed from the case. Defendants
moved repeatedly for mistrial, urging that dismissing the six co-
defendants would prejudice them. The district court denied the
motions for mistrial, finding that cautionary instructions would
protect defendants. The district court again instructed the jury
to disregard the dismissal of the six defendants before the jury's
deliberations.
All defendants except Alfredo Garcia contend that the district
court erred in failing to declare a mistrial when six co-defendants
pled guilty and were dismissed from the case during trial.
Defendants concede that the district court gave "carefully worded"
instructions to the jury to disregard the "dismissal" of the co-
defendants and the jury was never told that co-defendants had pled
guilty. Nevertheless, defendants contend that curative
instructions were insufficient to cure the prejudice.
-12- Failure to grant a mistrial is reviewed for abuse of
discretion only. United States v. Merida, 765 F.2d 1205, 1220-21
(5th Cir. 1985). Curative instructions are usually sufficient to
protect remaining defendants from prejudice arising out of the
guilty pleas of co-defendants. United States v. DeLucca, 630 F.2d
294, 298 (5th Cir. 1980).
We find no abuse of discretion. There is no indication that
the jury ever learned of the guilty pleas. They were told only
that the co-defendants were dismissed from the case. The district
court instructed the jury both during the trial and in its final
instructions to disregard the dismissals, stating that "you should
not consider the fact that six of defendants are no longer part of
this trial." Under the circumstances, these instructions were
sufficient to cure any prejudicial impact from the successive
dismissals of defendants.
G. Sufficiency of the Evidence Supporting Ricky Ramirez's and José Garcia's Conviction
Ricky Ramirez and José Garcia challenge the sufficiency of the
evidence to support their convictions for conspiracy and also the
substantive offense of possession of marijuana with intent to
distribute in March, 1990. These contentions have no merit.
To prove possession of a controlled substance with intent to
distribute, the government must show beyond reasonable doubt that
defendant (1) possessed the illegal substance (2) knowingly (3)
with intent to distribute it. United States v. Olivier-Becerril,
861 F.2d 424, 426 (5th Cir. 1988). To prove conspiracy to possess
with intent to distribute, the government must show that (1) there
-13- was an agreement to violate federal narcotics laws; (2) Ricky
Ramirez and José Garcia knew of the agreement; and (3) Ricky
Ramirez and José Garcia voluntarily participated in the agreement.
United States v. Gallo, 927 F.2d 815, 820 (5th Cir. 1991). We view
the evidence in the light most favorable to the jury's verdict and
affirm if a reasonable trier of fact could have found that these
elements were proven beyond a reasonable doubt. Glasser v. United
States, 315 U.S. 60 (1942); United States v. Palella, 846 F.2d 977
(5th Cir. 1988).
Vela-Garcia testified at trial that he saw José Garcia at the
February unloading and loading of marijuana at Alfredo Garcia's
house.1 He also testified that he saw both Ricky Ramirez and José
Garcia help load the marijuana on to the rig and cover it with ice
and cabbage in March, 1990.2 According to Vela-Garcia, Ricky
1 On direct examination by the prosecution, Vela-Garcia testified concerning the February load as follows:
Q: Who helped you dig and move the cabbage . . . put the marijuana in the trucks?
A: Me, Ricky Ramirez . . . Jose Garcia helped. 2 On direct examination by the prosecution, Vela-Garcia testified as follows:
Q: Were you present when the third load of marijuana arrived at Alfredo Garcia's house?
A: Yes, I was.
Q: Who else was present with you?
A: Me, . . . Jose Garcia, Ricky Ramirez, . . . .
Q: After the marijuana was re-wrapped, when was the next time that you had any contact with it?
-14- Ramirez joined the other conspirators in the haul of marijuana to
Dayton, following the rig laden with marijuana in a blue pick-up
truck. Vela-Garcia also testified that Ricky Ramirez had re-
wrapped marijuana for Jesus Garcia. Finally, Vela-Garcia testified
about the remarks made by Jesus Garcia that "me, Ricky Ramirez, and
José Garcia . . . all of us were going to work together smuggling
the marijuana."
If the jury believed this testimony, it was entitled to
conclude that Ricky Ramirez and José Garcia knowingly possessed the
marijuana, and from its large quantities, infer their intent to
distribute it. United States v. Moreno-Hinojosa, 804 F.2d 845, 847
n.2 (5th Cir. 1986). This testimony, if believed, would also
support an inference that they knowingly participated in an
agreement to assist in the transportation of marijuana by loading
and unloading that marijuana at Alfredo Garcia's house.
A: Loading it.
Q: When did that take place?
A: Around March the 21st.
Q: All right. Who was present when it was re-loaded?
A: All of us. Me, Jesus Garcia, Juan Garcia, Alfredo Garcia, Ricky Ramirez, Ruben de los Santos, Jesus Alvarez were present.
. . .
Q: Now, did you use the same method again and got get [sic] cabbage?
A: We went to Teddy Bertuca's, me and Mencho Garcia sought the cabbage, bring it back, me and Ricky and Mencho dig it and again loaded the marijuana, covered it up again.
-15- Ricky Ramirez and Garcia contend that Vela-Garcia's testimony
implicating them in the conspiracy was inadmissible hearsay. They
did not so object at trial, and we review for plain error only.
Fed. R. Evid. 51; United States v. Blankenship, 746 F.2d 233, 238
n.1 (5th Cir. 1984).
According to Vela-Garcia's testimony, Jesus Garcia told Vela-
Garcia that he had hired Ricky Ramirez and José Garcia to help
smuggle marijuana as part of Jesus Garcia's general description of
the conspiracy. The existence of this conspiracy was amply
corroborated by independent evidence--Vela-Garcia's other testimony
concerning his personal knowledge of Ricky Ramirez's and José
Garcia's participation in the conspiracy. See Bourjailly v. United
States, 482 U.S. 171, 180, 181, 107 S. Ct. 2775, 2781 (1987).
Vela-Garcia's testimony about Jesus Garcia's statements was,
therefore, admissible as a co-conspirators' statement made in the
course of and in furtherance of the conspiracy. Fed. R. Evid.
801(d)(2)(E). United States v. Miliet, 804 F.2d 853, 856 (5th Cir.
1986). There was ample admissible evidence to support the
convictions for both conspiracy and possession of marijuana with
intent to distribute.
The arguments are little more than attacks on Vela-Garcia's
credibility. The district court properly instructed the jury that
the jury could consider Vela-Garcia's status as a government
informant in evaluating his credibility. The evidence is
sufficient to sustain the conviction of Ricky Ramirez and José
Garcia.
-16- -17- H. Defense Counsel's Remark at Voir Dire that Five Defendants Had Pled Guilty
In voir dire, Jesus Garcia's counsel, Mark Steven Byrne,
stated that five of the original fourteen indicted defendants had
pled guilty before trial. This statement does not appear in the
record because defendants did not include any transcript of the
voir dire proceedings as part of the record on appeal.
However, after voir dire, the district court sua sponte noted
Mr. Byrne's statement, noted that there was "no . . . objection by
any of the defendants," and asked counsel whether "anybody wants me
to instruct the jury now or in closing in the final charge, or at
any time." None of the counsel for defendants made any suggestions
in response to the court's offer. Indeed, Mr. Byrne proceeded to
defend his remark regarding the five defendants' guilty pleas.
The district court, therefore, concluded that "I will handle
it [in] the way [that] I deem appropriate in the final charge."
While suggesting that cautionary instructions to the jury might be
appropriate, the court stated that "I don't foresee what is going
to be included in the charge this early in the trial." Again, no
defendant raised any objection or demanded that special
instructions be included in the final charge to cure any taint
created by the opening statement of defense counsel.
The district court did not refer in his final charge to the
five defendants who pled guilty before trial. The instructions
included only the charge that "[the jury] should not consider the
fact that six of the defendants [who pled guilty after trial
commenced] are no longer part of this trial when you are called
-18- upon to [reach a verdict]." No defendant objected to this
omission.
José Cantu-Cantu now contends for the first time on appeal
that the opening statement of Mr. Byrne so tainted the jury that he
ought to receive a new trial. Because defendants failed to request
any cautionary instruction, we review the district court's failure
to give such instructions for plain error only.
We cannot find that the "substantive rights of the accused
were blatantly and severely jeopardized" by the district court's
failure to give curative instructions such that the failure
constituted plain error. United States v. DeLucca, 630 F.2d 294,
298 (5th Cir. 1980). The jury heard a reference to the guilty
pleas of the five defendants only once, when one of defendants'
attorneys referred to those pleas. Neither the government nor
defendants ever repeated this reference to the five guilty pleas.
The district court could well have concluded that any further
reference in the charge to the five defendants' guilty pleas could
only highlight a single remark made at the outset of the three-week
trial. The district court did not plainly err in failing to give
curative instructions or take other corrective action sua sponte.
United States v. Rothman, 463 F.2d 488, 490 (2nd Cir. 1972).
I. District Court's Rulings concerning Jurors
Cantu-Cantu argues that a juror's failure to disclose that she
knew the prosecutor's wife from PTA prevented him from
intelligently striking the jury. The district court, however,
excused the juror in question before jury deliberations. Cantu-
-19- Cantu's inability to challenge the juror peremptorily could not
have prejudiced him.
Cantu-Cantu also contends that the district court erred in
excusing another juror before deliberations, on the ground that the
juror had been napping during the trial. We review the district
court's decision to discharge jurors before the jury's deliberation
for abuse of discretion, and reverse only upon a showing that the
discharge prejudiced defendant. United States v. Dumas, 658 F.2d
411, 413 (5th Cir. 1981). Cantu-Cantu has shown no prejudice.
Finally, Ricky Ramirez contends that the district court erred
in failing to declare a mistrial after the jury broke into laughter
at a remark made by Vela-Garcia while he was testifying. In
describing how a fight was broken up, Vela-Garcia stated "the party
broke up." The jury apparently was amused by the reference to a
fight as a party and laughed. In response, the district court
admonished the jury that "this [trial] is a serious matter, and it
deserves all of our attention." The district court did not abuse
its discretion in refusing to declare a mistrial.
J. Violation of Fed. R. Evid. 615
During trial, F.B.I. Agent Shelton and D.E.A. Agent Humphries
remained in the courtroom. At the beginning of trial, Cantu-Cantu
invoked "the Rule"--Fed. R. Evid. 615--in order to exclude one of
these two government agents from the courtroom. The district
court ruled, over defense objection, that both agents could remain
in the courtroom as representatives of the government while other
witnesses were testifying but that Shelton must leave the courtroom
-20- while Humphries testified and Humphries must leave the courtroom
while Shelton testified. The district court stated that given the
"scope and the length" of the investigation, "it is necessary to
have two people represent the government." Both government agents
in the courtroom eventually testified at trial.
José Cantu-Cantu now contends on appeal that, by failing to
exclude one of the two government agents from the courtroom, the
district court violated Fed. R. Evid. 615. Rule 615 provides that:
"At the request of a party, the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause."
Cantu-Cantu contends that Rule 615 gives the district court the
power to except only one person from the Rule's coverage as the
government's representative.
We will assume arguendo that the district court erred in
allowing the government to designate more than one witness as a
"representative" who was exempt from the Rule. See United States
v. Pulley, 922 F.2d 1283, 1286 (6th Cir. 1991); United States v.
Farnham, 791 F.2d 331, 335-36 (4th Cir. 1986); see also United
States v. Causey, 609 F.2d 777, 778 (5th Cir. 1980) ("from [Rule
615(2)'s] language, it would reasonably be argued that the rule
does not grant counsel for a party the right to designate more than
one representative of the party to be present during the
proceedings").
-21- Even so, Jose Cantu-Cantu has shown no prejudice from this
error. The district court sequestered Shelton and Humphries
whenever either was testifying, thus minimizing the opportunity
that each would have to tailor their testimony. Compare Farnham,
791 F.2d at 335 ("we hold that the district court erred in refusing
to sequester Agent Martin, if not during the entire trial, at least
during the testimony of his colleague [another government case
agent]") (emphasis added).
Cantu-Cantu has not shown how he was prejudiced by the extra
government agent in the courtroom when neither Shelton nor
Humphries were testifying. Absent a specific showing of prejudice,
there is no reversible error. United States v. Bobo, 586 F.2d 355,
366 (5th Cir. 1978) ("even if there were a violation of the rule
[615], 'the defendants must demonstrate that the [violation]
created sufficient prejudice to require reversal'") (quoting United
States v. Warren, 578 F.2d 1058, 1076 (5th Cir. 1978) (en banc));
William L. Comer Family Equity Pure Trust v. Commissioner of
Internal Revenue, 953 F.2d 140-41 (6th Cir. 1992).
K. Admission of documents seized in allegedly illegal search of Cantu-Cantu's motel room
Agent Shelton followed a green pick-up truck and blue van
after another officer radioed instructions to him. Shelton
eventually pulled the truck over and arrested its occupants,
including José Cantu-Cantu. Bundles of marijuana were in the
truck.
Shelton took Cantu-Cantu to the offices of a local justice of
the peace, and another government agent, Agent Kuykendall, read
-22- Cantu-Cantu his Miranda warnings in Spanish. Agent Kuykendall then
read a consent form to Cantu-Cantu in Spanish and asked him to
consent to a search. The consent form was a standard pre-printed
form authorizing search and seizures in residences. The agents,
however, crossed out the first reference to "residence" and
inserted in handwriting, "Room 227, Gateway Motel, Richey St.
Houston TX." The altered form read as follows, with the bracketed
portions added by hand:
"I, [José Cantu], having been informed of my constitutional right not to have a search made of the premises hereinafter mentioned without a search warrant and of my right to consent to such a search, hereby authorize [agents of the DEA and DPS] peace officers to conduct a complete search of my [Room, Room 227, Gateway Motel, Richey St. Houston, Texas]. These officers are authorized by me to take from my residence, out houses, and motor vehicles, if any, any letters, papers, materials, or other property which they may desire. This written permission is being given by me to the above named officers voluntarily and without threats or promises of any kind and is given with my full and free consent."
Both Kuykendall and Shelton explained the form in English and
Spanish, and both testified in a suppression hearing that Cantu-
Cantu's signing of the form was free from threats, coercion, or
pressure. After Cantu-Cantu signed the form, the agents searched
his motel room, finding receipts from airline trips and motels that
tended to corroborate Vela-Garcia's account of the conspiracy.
These receipts were introduced at trial over Cantu-Cantu's
objection, after the district court held a hearing to determine the
voluntariness of Cantu-Cantu's consent.
Cantu-Cantu now challenges the finding of voluntary consent,
admitting these receipts. In support of this contention, Cantu-
-23- Cantu notes that he had been in confinement for about four hours
when he signed the consent form and that he had not used the
restroom or had anything to eat or drink. Cantu-Cantu also notes
that, while the form authorizes a search of his motel room, it
authorizes seizures only from Cantu-Cantu's residence, out houses,
and motor vehicles.
In reviewing the district court's denial of a motion to
suppress evidence, we review the district court's factfindings for
clear error only. United States v. Lopez, 911 F.2d 1006, 1008 (5th
Cir. 1990). All evidence is viewed in the light most favorable to
the prevailing party. United States v. Reed, 882 F.2d 147, 149
(5th Cir. 1989). To determine if the finding that the consent was
voluntary is supported by a preponderance of the evidence. United
States v. Hurtado, 905 F.2d 74, 76 (5th Cir. 1990) (en banc).
The district court found on the basis of the evidence
presented in a suppression hearing that Cantu-Cantu consented to
the search of his hotel room without being "overreached, coerced,
or threatened." None of Cantu-Cantu's allegations indicate that
this finding was clearly erroneous. Cantu-Cantu does not contend
that any government agent used any coercive methods.
Cantu-Cantu's objections to the wording of the consent form
are equally meritless. Under the circumstances, the district court
could conclude that the second use of the word "residence" referred
to Cantu-Cantu's motel room, not his legal residence in McAllen,
Texas. The form signed by Cantu-Cantu was a pre-printed form. The
reference to "residence, outhouses, and motor vehicles, if any" was
-24- boiler-plate language that, by oversight, was not altered as was
the first reference to "residence."
It is undisputed that Cantu-Cantu signed the form free of
restraints. It is also undisputed that Agent Shelton read Cantu-
Cantu his Miranda rights before the signing, which were translated
into Spanish for Cantu-Cantu by Agent Kuykendall. According to the
uncontradicted testimony of Agent Kuykendall, Cantu-Cantu was "very
cooperative" and had "no problem" with the search of his motel
room, because there was "nothing in there that we couldn't see."
Under the totality of the circumstances, we find that the district
court did not err in finding that Cantu-Cantu voluntarily consented
to the search of the motel room. United States v. Yeagin, 927 F.2d
798, 800-801 (5th Cir. 1991).
L. Denial of Requested Jury Instructions
Cantu-Cantu contends that the district court erred in its
instructions to the jury. The district court's instructions stated
that the jury was entitled to "decide how much [of the testimony]
you believe" and that the jury did not have to "accept all of the
evidence as true or accurate." Cantu-Cantu contends that the
district court should have charged the jury that they were entitled
to decide how much of the testimony they believed "if any" and that
the jury did not have to accept all "or any" of the evidence.
We ask "whether the court's charge, as a whole, is a correct
statement of the law and whether it clearly instructs the jurors as
to the principles of law applicable to the factual issues
confronting them." United States v. Stacey, 896 F.2d 75, 77 (5th
-25- Cir. 1990). We find that Cantu-Cantu's contention is meritless.
The instructions fairly told the jury that it could reject any of
the evidence. Cantu-Cantu's requested instructions were implicit
in the instructions given.
M. Sentencing of José Cantu-Cantu and Alfredo Garcia
Both Alfredo Garcia and José Cantu-Cantu challenge their
sentences and the district court's sentencing procedures on appeal.
José Cantu-Cantu contends that the district court erred in refusing
to give him a two-point reduction of his sentence for acceptance of
responsibility and in increasing his sentencing range by three
points for being a marijuana broker or leader of the conspiracy.
Alfredo Garcia contends that the district court erred in
attributing the January and February loads of marijuana in
calculating his sentence. Finally, both contend that the district
court violated Fed. R. Crim. P. 32(c)(3)(D) by failing to enter
factual findings concerning their challenges to their Pre-Sentence
Reports.
1. José Cantu-Cantu
Fed. R. Crim P. 32(c)(3)(D) provides that:
"If the comments of the defendant and the defendants' counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to each allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence report thereafter made available to the Bureau of Prisons."
-26- Cantu-Cantu filed numerous written objections to the findings
and recommendations of his Pre-Sentence Investigation Report. He
disputed the PSI's finding that he owned the marijuana transported
in the February and March loads and the PSI's recommendation that
he be considered a "broker" of marijuana under the sentencing
guidelines. He also objected that Vela-Garcia, the witness the PSI
relied upon in making these assessments, was unreliable and that
the other undisputed facts indicated that Cantu-Cantu took orders
from his brother.
We have no transcript of the sentencing hearing, and no other
record of the district court's findings. "Where there are disputed
facts material to the sentencing decision, the district court must
cause the record to reflect its resolution thereof, particularly
when the dispute is called to the court's attention." United
States v. Sherbak, 950 F.2d 1095, 1098 (5th Cir. 1992) (quoting
United States v. Warters, 885 F.2d 1266, 1271-72 (5th Cir. 1989)).
We vacate Cantu-Cantu's sentence and remand to allow the district
court to enter the findings of fact required by Fed. R. Crim. P.
32(c)(3)(D).
2. Alfredo Garcia
Alfredo Garcia raises three objections to his sentence.
First, Alfredo Garcia contends that the district court failed to
make a factual finding required by Fed. R. 32(c)(3)(D) concerning
one of his objections to the PSI report. Second, Garcia contends
that the district court did not comply with U.S. Sentencing
Guideline § 6A1.3(b) by failing to notify the parties of its
-27- tentative findings before making final findings of fact. Finally,
Alfredo Garcia contends that the district court erred in basing
Garcia's sentence on his alleged participation in the January and
February shipments, with no credible evidence of his participation.
At the conclusion of the evidence at the sentencing hearing,
the district court orally made the following factual findings:
"the information contained in the presentence report, paragraphs objected to, paragraphs 15 through 20, and 22, is by a preponderance of the evidence correct, and I believe it. I further find that your objections to paragraphs 25, 30, 32, along with paragraph 46, and paragraph 60 and 61, are not well taken. That it is clear from all the evidence before me, and the information furnished, and I find from a preponderance of the evidence that the defendant was involved with all three of the marijuana loads, and that the guidelines were appropriately applied and correct offense level was used in calculating the sentence guidelines range."
Garcia contends that these factual findings were inadequate,
because the district court failed to make a specific factual
findings in response to paragraph 17 of the PSI report, which
stated that Garcia had received $5,000.00 for his part in the
storage and loading of marijuana. Garcia objected to this
paragraph of the report and supported this objection with testimony
from his wife that her husband never suddenly acquired large sums
of money in March 1990. The district court found that her
testimony and that of Alfredo Garcia's daughter, Belinda Reyes, was
inconsistent and less than candid.
The district court adopted all of the findings contained in
paragraphs 15 through 20 of the PSI report, stating that they were
"by a preponderance of the evidence correct and I believe it."
This adoption of the PSI's findings indicates that the court "at
-28- least implicitly, weighed the positions of then probation
department and the defense and credited the probation department's
determination of the facts." United States v. Sherbak, 950 F.2d
1095, 1099 (5th Cir. 1992). "Rule 32 does not require a
catechismic regurgitation of each fact determined and each fact
rejected when they are determinable from a [Presentence Report]
that the court has adopted by reference." Id. Having adopted all
of the PSI report's findings on the record, the district court
adequately complied with Rule 32.
Alfredo Garcia also contends that the district court failed to
comply with U.S.S.G. § 6A1.3(b) by failing to provide Garcia with
tentative findings sufficient to allow objections. This contention
is frivolous. Garcia's counsel received the PSI report a month
before the sentencing hearing. Garcia raised numerous objections
to the PSI report at that hearing and presented the testimony of
two witnesses to support those objections. After cross-examination
of these witnesses, the court made specific oral findings rejecting
Garcia's objections to the PSI report and then asked Garcia and
Garcia's counsel if they had any further comments. Neither Garcia
nor his counsel made any further objections or requested a
continuance. These procedures amply satisfy the requirements of
§ 6A1.3.
We have held that the district court is not obliged to furnish
his tentative factual findings before a sentencing hearing where,
as here, the district court simply adopts the PSI report. United
States v. Mueller, 902 F.2d 336, 347 (5th Cir. 1990). Garcia had
-29- the PSI report at least ten days before the sentencing hearing.
Fed. R. Crim. P. 32(c)(3)(A). Mueller, 902 F.2d at 347 ("because
the district court merely adopted the PSI's findings, the PSI
provided Mueller with adequate notice of all the issues that the
district court resolved at the sentencing hearing"). Moreover, the
district court provided Garcia and his counsel with an opportunity
to make further comment before sentence was imposed as required by
Fed. R. Crim. P. 32(a)(1)(c). Had Garcia or his counsel been
dissatisfied with the district court's findings, they could have
used their right of allocution to raise further objections or
request a continuance for further preparation. United States v.
Mills, Slip Op. No. 91-1841, at 4073 (5th Cir. April 14, 1992).
There was no violation of U.S.S.G. § 6A1.3(b).
Finally, Alfredo Garcia contends that the district court erred
in finding that he had assisted in the transportation of all three
loads of marijuana for the purpose of calculating his sentence. We
review the district court's factual findings made in sentencing for
clear error. United States v. Chavez, 947 F.2d 742, 746 (5th Cir.
1991). We find no clear error in the challenged finding.
Garcia's wife and daughter both testified at his sentencing
hearing that no marijuana was stored in the white shed behind
Garcia's house. Mrs. Garcia also testified that she did not
believe that her husband dealt in marijuana, despite her husband's
guilty plea to possessing marijuana with intent to distribute in
March 1990. The district court rejected the testimony of Garcia's
daughter and wife, on the basis of the witnesses' "demeanor and
-30- candor, or lack thereof" and contradictions in the witnesses'
testimony. On the basis of testimony presented at trial, the
district court found that Garcia "was involved in all three of the
marijuana loads."
The district court was entitled to disbelieve Garcia's
witnesses and credit the trial testimony and the information in the
PSI report that Garcia played a pivotal role in all three
deliveries by lending his residence as a storage site. At trial,
Ruiz Salas testified that Daniel Bautista told him that Alfredo
Garcia was a participant in the January load, and Vela-Garcia
testified that Alfredo Garcia helped unload marijuana in January.
Vela-Garcia also testified that the conspirators used a shed behind
Alfredo Garcia's house for all three loads, and that he helped with
the loading of the March load. This was ample support for
sentencing based on all three loads of marijuana.
Alfredo Garcia objects that Salas's testimony is unreliable
hearsay. A sentence can rest on hearsay that has sufficient
indicia of reliability. United States v. Marshall, 910 F.2d 1241,
1244 (5th Cir. 1990). Garcia simply contends that Salas was not
trustworthy. We cannot say, however, that the district court
clearly erred in crediting Salas.
Alfredo Garcia also contends that the district court could not
consider Vela-Garcia's testimony in assessing his sentence, because
he was dismissed from the case before Vela-Garcia testified. For
support, Garcia cites United States v. Castellano, 882 F.2d 474
(11th Cir. 1989). However, the Castellano opinion cited by Garcia
-31- was vacated on petition for rehearing, and a second opinion was
substituted. United States v. Castellano, 904 F.2d 1490 (11th Cir.
1990). The second Castellano opinion clarified its earlier
reasoning by stating that
"It was never the position of this panel that a sentencing court may not consider testimony from the trial of a third party as a matter of law; rather, we were of the view that a sentencing court must follow the procedural safeguards incorporated in section 6A1.3 of the guidelines--safeguards designed to protect the defendant's right to respond to information offered against him and to ensure reliability of the information under consideration."
Castellano, 904 F.2d at 1496. In short, Castellano stands for no
more than the proposition that the sentencing court must comply
with the procedures contained in § 6A1.3, regardless of the source
of the information used to determine defendant's sentence.
Nothing in § 6A1.3 of the Sentencing Guidelines bars the use
of Vela-Garcia's testimony in sentencing Alfredo Garcia, as long as
that testimony had sufficient indicia of reliability. Garcia
contends that Vela-Garcia was an unreliable witness, referring to
evidence presented at trial that Vela-Garcia had told lies and
contradicted himself. Garcia also notes that Vela-Garcia testified
pursuant to a plea agreement and therefore had an incentive to
testify against his co-defendants. At best, this evidence creates
a credibility question for the district court to resolve. The
decision to credit Vela-Garcia's testimony is not clearly
erroneous. United States v. Alfaro, 919 F.2d 962, 967 (5th Cir.
1990).
-32- In essence, Garcia contends that Vela-Garcia's information
concerning his participation in the January and February loads
cannot be used in assessing his sentence because he pled guilty
only to possession of marijuana in March. This contention has no
merit, because the district court is not limited in its
consideration to the charges of which Garcia was actually
convicted. United States v. Byrd, 898 F.2d 450, 452 (5th Cir.
1990); United States v. Taplette, 872 F.2d 101, 106 (5th Cir.
1989).
The sentence imposed on José Cantu-Cantu is VACATED, and his
case is REMANDED for further findings of fact and resentencing
consistent with this opinion. The district court's judgment is
AFFIRMED in all other respects.
-33-