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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 91-6116
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMIE BARRERA LOPEZ,
EUGENIO OZUNA RAMIREZ, JR.,
ELISEO DE LA GARZA, and
ROBERT SAN-MARTIN DELGADO,
Defendants-Appellants.
_______________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
_______________________________________________________
(December 8, 1992)
Before KING, WILLIAMS, and SMITH, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
At a joint trial, Defendants-Appellants Jamie Barrera Lopez,
Eugenio Ozuna Ramirez, Jr., Eliseo De La Garza, and Robert San-
Martin Delgado were each convicted on one count of conspiring to
possess and distribute marihuana in violation of 21 U.S.C. งง 846,
841(a)(1) and 841(b)(1)(B). Lopez, Ramirez, and Delgado were also
each convicted on one count of possessing marihuana with intent to
distribute in violation of 21 U.S.C. งง 841(a)(1) and 841(b)(1)(B)
and of 18 U.S.C. ง 2. Both counts relate to a series of

negotiations beginning May 1, 1990, leading up to the sale of 432
pounds of marihuana on May 16, 1990. Delgado and Lopez were
sentenced to 78 months in prison, Ramirez was sentenced to 71
months, and De La Garza to 66 months. Each appellant faces a
four-year term of supervised release following imprisonment.
Appellants raise six issues on appeal. All four challenge the
sufficiency of the evidence, Lopez challenges the admission of a
remote conviction, De La Garza and Ramirez challenge the denial of
their Motions for Severance, and De La Garza complains of the
denial of his Motion for New Trial. We affirm the convictions and
the rulings of district court.
I. FACTS AND PRIOR PROCEEDINGS
Between May 1 and May 16, 1990, McAllen undercover police
officer Anacleto Botello and narcotics agent Israel Saldivar worked
through a confidential informant to negotiate the purchase of a
large quantity of marihuana. The informant initially introduced
Botello to De La Garza on May 1, 1990. Botello testified that he
asked De La Garza about purchasing 200 to 300 pounds of marihuana
at a cost of $425 per pound. On May 2, De La Garza introduced the
officers to Ramirez, who confirmed the purchase quantity and price.
Several attempts to get together on a deal misfired for one
reason or another. Finally on May 16, in the midafternoon, the
informant called the agents, who met Ramirez at a Circle K
2

convenience store. Ramirez then led the agents to the "Two Mile
Line" property owned by Lopez to conclude the transaction. Because
the transfer was to take place at the back of the property,
however, the officers refused to close the deal and left. At 6:30
p.m., the officers again met Ramirez and the informant at the
Circle K. Botello testified that Ramirez wanted the officers to
accompany him to pick up the owner of the marihuana, but the
officers persuaded Ramirez to meet them at the load vehicle
containing the drugs. The surveillance team followed Ramirez first
to the Two Mile Line property, where he picked up an unidentified
man, and then to the load vehicle's location.
Meanwhile, the informant directed the officers to a house on
Harvey Street. When they arrived, they did not see the load
vehicle. Two men came out of the house, spoke with the informant,
got into a car, and led the officers down the street to another
house. Both officers testified that one of the men, Delgado,
motioned for them to follow. When they reached the other house,
Delgado pulled into the driveway and parked behind a white pickup
with a camper top. Delgado and his companion then left the car to
sit at a nearby picnic table. After waiting awhile, Saldivar and
the informant went to the pickup to see whether it contained
marihuana. At that point, Ramirez arrived with Lopez, who got out
of the passenger side of Ramirez's vehicle. According to Saldivar,
Lopez walked up, looked into the truck, and asked what Saldivar was
doing, to which Saldivar responded that he was checking out the
3

marihuana. Having seen the drugs, Saldivar then signaled Botello,
who gave the bust signal. Other officers appeared and arrested
Ramirez, Lopez, and Delgado. The fourth man escaped and was never
identified. De La Garza was not present and was arrested later.
Following a three day trial, a jury rendered guilty verdicts on all
counts, and all defendants timely appealed.
II. DISCUSSION
SUFFICIENCY OF THE EVIDENCE
All four appellants charge that the evidence presented in the
district court was insufficient to sustain their convictions.
Because decisions about the credibility of the evidence are the
province of the jury, we review both the evidence and the
inferences drawn from the evidence in the light most favorable to
the government. Glasser v. United States, 315 U.S. 60, 77, 80, 62
S.Ct. 457, 468, 469, 86 L.Ed. 680 (1942). In weighing the evidence
in this case we follow the Supreme Court's holding that
circumstantial evidence is not intrinsically different from
testimonial evidence. United States v. Bell, 678 F.2d 547, 549 n.
3 (5th Cir. 1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398,
76 L.Ed.2d 638 (1983). "It is not necessary that the evidence
exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt, provided
a reasonable trier of fact could find that the evidence establishes
guilt beyond a reasonable doubt." Id. at 549; see also United
States v. Vasquez, 953 F.2d 176, 181 (5th Cir.), cert. denied sub
4

nom. Gomez v. United States, 112 S.Ct. 2288, 119 L.Ed.2d 212
(1992). Thus, whether dealing with testimonial or circumstantial
evidence, the test for sufficiency of the evidence is whether the
jury could reasonably, logically, and legally infer that the
defendant was guilty beyond a reasonable doubt. United States v.
Jackson, 700 F.2d 181, 185 (5th Cir.), cert. denied sub nom. Hicks
v. United States, 464 U.S. 842, 104 S.Ct. 139, 78 L.Ed.2d 132
(1983).
1. Conspiracy
Count one of the indictment alleges that all appellants
conspired to possess marihuana with the intent to distribute. To
prove conspiracy under 21 U.S.C. ง 846, the prosecution must show
beyond a reasonable doubt (1) that there was an agreement to
violate the narcotics laws; (2) that each appellant knew of the
agreement and intended to join the conspiracy; and (3) that each
appellant voluntarily participated. United States v. Vergara, 687
F.2d 57, 60-61 (5th Cir. 1982). Concert of action can indicate
agreement and voluntary participation. The surrounding
circumstances may establish knowledge of a conspiracy. Also, the
government need not prove an overt act in furtherance of the
conspiracy to prove that a drug conspiracy existed. United States
v. Carter, 953 F.2d 1449, 1454 (5th Cir.), cert. denied sub nom.
Hammack v. United States, 112 S.Ct. 2980, 119 L.Ed.2d 598 (1992).
5

After a meticulous review of the record, we hold that the
evidence was sufficient for a reasonable jury to find each of the
four defendants guilty of conspiracy beyond a reasonable doubt. We
discuss separately the evidence relevant to each defendant.
a. De La Garza
Agent Botello testified that the confidential informant
introduced him to De La Garza, with whom he discussed the purchase
of a particular amount of marihuana for a specific price. Agent
Saldivar then "flashed" $80,000 to indicate that the agents were
willing to make the deal. Botello further testified that De La
Garza introduced him to Ramirez, a "man that [Botello] needed to
know." De La Garza participated in subsequent negotiations and
attempts to conclude the sale, which finally was to occur on May
16, the day of the arrests. De La Garza testified, offering an
innocent explanation for some of his actions and suggesting that
the agents were lying about their conversations with him. But
credibility is for the jury, which chose to believe the agents and
not De La Garza. Carter, 953 F.2d at 1455. The evidence was
sufficient for the jury to discredit De La Garza's explanation
reasonably and permissibly and to find him guilty of conspiracy.
De La Garza argues that he could not have been part of the
later operation because he was no longer present in the region at
the time of the sale. It is not necessary for every co-conspirator
to participate in every transaction, however, to be a member of a
6

single conspiracy. United States v. Stowell, 947 F.2d 1251, 1258-
59 (5th Cir. 1991), rehearing denied, 953 F.2d 188 (5th Cir.) (per
curiam), cert. denied, 112 S.Ct. 1269, 117 L.Ed.2d 497 (1992).
Additionally, the time when a member joined the conspiracy or the
role he played is irrelevant to whether he is guilty of conspiracy,
and he need not have known all of his co-conspirators. Vergara,
687 F.2d at 61.
De La Garza also asserts that he was entitled to a jury
instruction on multiple conspiracies. The record shows that De La
Garza failed to request such a jury instruction. Thus there was no
error.
b. Ramirez
Ramirez asserts that the government merely piled inference on
inference and did not prove its case beyond a reasonable doubt.
There was direct testimony, however, that Botello and Ramirez
expressly negotiated the terms of the drug transaction after De La
Garza introduced them. This alone is clearly sufficient evidence
to justify a conviction for conspiracy. But in addition, at the
second meeting on May 16, Ramirez agreed that he would pick up the
owner of the marihuana and meet the agents at the load vehicle to
conclude the deal. The jury properly could conclude that Ramirez
violated the narcotics laws by negotiating and arranging the sale
of the marihuana.
7

c. Delgado
Delgado's actions on May 16 constituted enough evidence for
the jury to infer his agreement and participation from the
"development and collocation of circumstances" and his knowledge
from the surrounding circumstances. Vergara, 687 F.2d at 61. The
agents testified that on May 16 they agreed with Ramirez to meet at
the load vehicle. The agents then proceeded to Delgado's house,
expecting the load vehicle to be there. When they did not find the
truck, Delgado led them up the street to his parents' house, parked
behind the truck, and waited for fifteen to twenty minutes until
Ramirez arrived. Finally, when the arresting officers burst onto
the scene, Delgado immediately fled.
While flight alone is insufficient to support a guilty
verdict, it is relevant and admissible, and the jury could take
into account Delgado's flight. United States v. Flores, 564 F.2d
717, 718-19 (5th Cir. 1977). Taking Delgado's actions in the
context of the surrounding circumstances and in conjunction with
both Ramirez's actions and the presence of 432 pounds of marihuana,
the jury properly concluded that Delgado was guilty in the
conspiracy.
d. Lopez
Lopez argues that he was merely present at the house on Harvey
Street and that the evidence did not establish his involvement in
the conspiracy. The evidence, however, supports the jury verdict.
8

Lopez established through his own testimony that he owned the
property on Two Mile Line Road. Surveillance agents testified that
they followed Ramirez to the property several times and observed
Lopez's vehicle near the gate. On May 8, Ramirez left the
undercover agents in order to locate the marihuana, and he traveled
to the Two Mile Line property. On May 16, Ramirez first led
Botello and Saldivar to the Two Mile Line property to conclude the
deal, but the agents refused to enter the property. Later that
day, Ramirez told Botello he was going to pick up "the individual
that was to get paid for the marihuana," and drove a Suburban to
the Two Mile Line property, where he picked up an unidentified man.
From there Ramirez went directly to Delgado's parents' house where
the agents and Delgado waited by the load vehicle, and Lopez
emerged from the Suburban. According to Saldivar, who was opening
the load vehicle to examine the drugs, Lopez approached him and
asked what he was doing. Saldivar responded that he was checking
the marihuana. Lopez then walked to where Delgado was sitting
nearby and fled with Delgado at the appearance of the arresting
officers.
Lopez testified that he was present at the scene because he
had offered Ramirez the Suburban as compensation for construction
work, and Ramirez was returning the Suburban to him. The jury
obviously did not believe him. It was reasonable to conclude that
Lopez was the owner of the marihuana because Ramirez went to pick
up the owner and returned with Lopez to the site of the drug deal.
9

The jury reasonably could discredit Lopez's explanation about
returning the Suburban because he arrived as a passenger, exited
the car while Ramirez remained in the driver's seat, and walked up
to the agent at the load vehicle. Considering those inferences
along with Lopez's conversation with Saldivar, his sitting down
with Delgado, and his flight from the scene, the jury justifiably
found beyond a reasonable doubt that Lopez knew of the conspiracy,
agreed to it, and participated by arriving to conclude the drug
sale.
Lopez relies on several cases to argue that the evidence was
insufficient to prove his knowing participation in the conspiracy.
The cases are distinguishable. In United States v. Longoria, 569
F.2d 422 (5th Cir. 1978), one defendant was the passenger in a car
carrying marihuana. Lopez, however, was not merely an innocent
passenger. Ramirez specifically stated that he was going to pick
up the marihuana's owner, and he returned with Lopez. In United
States v. Jackson, 700 F.2d 181 (5th Cir. 1982), cert. denied sub
nom. Hicks v. United States, 464 U.S. 842, 104 S.Ct. 139, 78
L.Ed.2d 132 (1983), a man joined friends in a restaurant while they
were transacting a drug deal and sat, saying nothing. Lopez, on
the other hand, did not appear unexpectedly, and he spoke with
Saldivar about the drugs. In United States v. Caro, 569 F.2d 411
(5th Cir. 1978), Caro resembled an unidentified man involved in a
drug transaction, and he fled when police came to his home to
question him. Caro, however, was never identified at the scene of
10

a drug transaction; Lopez was. Finally, in United States v.
Sacerio, 952 F.2d 860 (5th Cir. 1992), a man was paid to drive a
rental car to New Orleans. After police impounded the car and
discovered drugs, the defendants' behavior in trying to retrieve
the car was consistent with innocence. Again, Lopez arrived after
Ramirez left to retrieve the drugs' owner and fled when officers
appeared. These cases are not persuasive. Lopez was far more
deeply involved in the criminal activity than any of the defendants
in these cases.
2. Possession
Ramirez, Delgado, and Lopez assert that the evidence was
insufficient to support their convictions for possession with
intent to distribute. The government must prove three facts to
sustain the convictions: (1) that each defendant knowingly (2)
possessed the drug (3) with the intent to distribute. United
States v. Vergara, 687 F.2d 57, 61 (5th Cir. 1982). Possession may
be actual or constructive, joint among several defendants, and
established by circumstantial evidence. This court has defined
constructive possession as "the knowing exercise of, or the knowing
power or right to exercise, dominion and control over the
proscribed substance." Id. (quoting United States v. Glasgow, 658
F.2d 1036, 1043 (5th Cir. 1981)).
One who owns or controls a vehicle that contains contraband
can be deemed to possess. Vergara, 687 F.2d at 61. Additionally,
11

one who exercises dominion over premises where contraband is found
can be deemed to possess. United States v. Carter, 953 F.2d 1449,
1456 (5th Cir.), cert. denied sub nom. Hammack v. United States,
112 S.Ct. 2980, 119 L.Ed.2d 598 (1992). Finally, the jury could
infer the intent to distribute from possession of a large amount of
drugs. Vergara, 687 F.2d at 62. Because 432 pounds of marihuana
exceeds what anyone would have for personal use, the jury
reasonably found that any defendant who possessed the marihuana had
the intent to distribute.
Ramirez was obviously involved in possession. He arranged the
drug deal and brought all the players together at the load
vehicle's location. Additionally, the load vehicle belonged to
Ramirez. Ownership, coupled with his knowledge that the drugs were
in the vehicle, can amount to constructive possession. Vergara,
687 F.2d at 61.
Delgado's possession of the marihuana is also obvious. The
agents first were directed to Delgado's house to find the load
vehicle. Delgado then led them to his parents' house and parked
behind the load vehicle. Finally, Delgado fled when the arresting
officers appeared. Both his actions and the fact that he exercised
dominion over his parents' property support the conclusion that he
knowingly and constructively possessed the marihuana. Carter, 953
F.2d at 1456.
12

Delgado's possession conviction is also proper under the
aiding and abetting statute, 18 U.S.C. ง 2. As a co-conspirator,
Delgado is liable for the substantive offenses committed by other
members of the conspiracy in furtherance of the common plan.
United States v. Alvarado, 898 F.2d 987, 993 (5th Cir. 1990); see
also Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct.
1180, 1183-84, 90 L.Ed. 1489 (1946). We can affirm Delgado's
possession conviction on the basis of both his constructive
possession and his status as a co-conspirator.
As for Lopez, the jury reasonably concluded that Lopez was the
owner of the marihuana when he arrived at the load vehicle with
Ramirez. This fact closely resembles evidence in Alvarado. In
that case, Alvarado was negotiating a drug deal with an undercover
officer. His co-defendant arrived when Alvarado said the drugs
would arrive, and we held that the jury reasonably found the co-
defendant to be the drugs' owner. Alvarado, 898 F.2d at 992.
Lopez's conversation with Saldivar also provided evidence that
Lopez knew the marihuana was in the pickup truck. Finally, he fled
when the arresting officers appeared. The suspicious circumstances
and the suggestion of ownership provide enough evidence to sustain
the jury's finding of constructive possession. Lopez's conviction
also can be sustained, of course, on the same co-conspirator
grounds as Delgado's.
13

ADMISSION OF REMOTE CONVICTION
Lopez contends that the trial court erred in admitting for
impeachment purposes a seventeen-year-old conviction for possession
of marihuana. We review evidentiary rulings for abuse of
discretion. United States v. Acosta, 763 F.2d 671, 693 (5th Cir.),
cert. denied sub nom. Weempe v. United States, 474 U.S. 863, 106
S.Ct. 179, 88 L.Ed.2d 148 (1985).
Agent Saldivar had testified that Lopez came up behind him,
looked into the pickup truck, and briefly discussed what Saldivar
was doing with the marihuana. On his direct examination, however,
Lopez denied both having a conversation with Saldivar and going to
the pickup truck. On cross-examination, the government first asked
Lopez about the disputed conversation with Saldivar, and then asked
without objection whether Lopez knew what the marihuana in
Government's Exhibit No. 1 was. When Lopez denied recognizing the
drugs, the government inquired whether Lopez had ever seen
marihuana in person. Over the defense's objections of irrelevance,
Lopez answered that he had not. A bench conference followed, at
which the district court refused to allow the government to pursue
questions about a suspected arrest for possession of marihuana in
1974.
The next day, however, the government produced a record of a
1974 conviction for possession of marihuana and sought to introduce
the conviction in order to impeach Lopez. The court held a lengthy
14

bench conference on the record, considering arguments from both
sides, and finally decided to admit the conviction for impeachment
purposes. The court gave the jury a limiting instruction both when
the evidence was admitted and during the jury charge.
1. Improper Questioning
Lopez first argues that the court erred by allowing the
government to question Lopez about whether he had ever seen
marihuana. Defense counsel objected at trial that the question was
irrelevant. Under Federal Rule of Evidence 401, relevant evidence
is "evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence."
Saldivar had testified that Lopez looked into the pickup and knew
that Saldivar was examining the marihuana. Lopez's direct
testimony refuted Saldivar's testimony; whether Lopez recognized
marihuana was relevant to his knowledge of the drug deal about to
take place. It follows that the district court properly overruled
the objection and allowed the question.
Lopez's complaint that the questioning went beyond the scope
of direct must fail. Federal Rule of Evidence 611(b) defines the
scope of cross-examination as "limited to the subject matter of the
direct examination and matters affecting the credibility of the
witness. The court may, in the exercise of discretion, permit
inquiry into additional matters as if on direct examination." The
15

government's questions were not beyond the scope of direct
examination. Lopez was offering his account of the events of May
16. Because some of Lopez's testimony directly contradicted Agent
Saldivar's, the integrity of the judicial proceeding was not
threatened by the government's attempts to clarify the testimony
and to question Lopez's credibility. Furthermore, because Rule 611
authorizes the district court to permit inquiry into further
matters, it was within the court's discretion to allow the
government to question Lopez about his knowledge of marihuana.
2. Improper Impeachment
Lopez next argues that the district court erred in admitting
for impeachment purposes Lopez's 1974 conviction for possession of
marihuana. Defense counsel offers several grounds for excluding
the conviction, and the record reveals some confusion about the
grounds for admitting the evidence. It is established, however,
that a district court's reliance on improper grounds for admitting
evidence will not amount to harmful error if other valid grounds
for admission exist, because such a situation does not affect a
defendant's substantial rights. United States v. Blake, 941 F.2d
334, 339 (5th Cir. 1991) (citing United States v. Cardenas, 895
F.2d 1338, 1345 (11th Cir. 1990) and Collins v. Seaboard Coastline
R.R. Co., 681 F.2d 1333, 1335 (5th Cir. 1982)), cert. denied, ___
S.Ct. ___, 1992 WL 203185, 61 U.S.L.W. 3155 (Nov. 30, 1992) (No.
92-302).
16

a. Rules 608 and 609
The parties assert that Federal Rules of Evidence 608(b) and
609 apply to the admission of Lopez's remote conviction. In this
instance, however, neither rule need be applied.
Federal Rule of Evidence 608(b) allows the cross-examiner to
inquire into specific instances of conduct concerning the witness's
character for truthfulness or untruthfulness as long as the
questioning is probative of credibility. Rule 608(b), however,
prohibits the introduction of extrinsic evidence to attack the
witness's credibility. First, evidence of a conviction is
extrinsic evidence forbidden by this rule. Second, possession of
marihuana is not an act that indicates a witness's character for
truthfulness or untruthfulness. Third, Rule 608 refers to Federal
Rule of Evidence 609, which expressly covers impeachment by
evidence of a conviction.
At first look, Rule 609 seems to support admission because the
rule allows impeachment with a prior conviction of a testifying
defendant. Rule 609(a)(1) also requires the district court to
determine that "the probative value of admitting this evidence
outweighs its prejudicial effect to the accused." FED. R. EVID.
609(a)(1). The record reveals that the district court expressly
considered the impeachment value of the prior conviction, the
similarity of the crimes, and the centrality of Lopez's
17

credibility. The court also implicitly balanced the probative
value of the evidence with the prejudicial effect.
Rule 609(b), however, imposes a time limit. Convictions more
than ten years old are inadmissible unless (1) the probative value
of the conviction substantially outweighs its prejudicial effect
and (2) the proponent gives the adverse party advance written
notice of the intent to use the conviction. FED. R. EVID. 609(b).
The intent of the notice provision is to prevent unfair surprise
and to give the defendant's attorney the opportunity to prepare
fully for trial. FED. R. EVID. 609 conference committee's note.
Lopez's prior conviction occurred in 1974; because Lopez was given
probation and was not confined, the date of the conviction
controls. The government failed to give advance written notice of
its intent to offer the conviction. The court ruled, however, that
this failure was not fatal because there was no unfair surprise.1
The fundamental problem with the application of either Rule
608 or 609 is that neither rule applies "in determining the
admissibility of relevant evidence introduced to contradict a
witness's testimony as to a material issue." See, e.g., United
1 The government had produced the defendant's rap sheet, and
the prosecutor did not discover the 1974 conviction until the day
before he offered it. Additionally, the district court noted that
both sides had received actual notice of the prior conviction in
the Pre-Trial Services Report prepared well in advance of the
trial. United States v. Capote-Capote, 946 F.2d 1100, 1105 (5th
Cir. 1991), cert. denied sub nom. Rodriguez v. United States, 112
S.Ct. 2278, 119 L.Ed.2d 204 (1992).
18

States v. Opager, 589 F.2d 799, 801-02 (5th Cir. 1979) (holding
that Rule 608 prohibits admission of extrinsic evidence to attack
the witness's character for truthfulness, but does not apply to
impeachment by contradiction) and United States v. Johnson, 542
F.2d 230, 234-35 (5th Cir. 1976) (holding that Rule 609 governs
credibility evidence, not contradiction). Federal Rule of Evidence
403 controls the admission of contradiction evidence, and the
remote conviction, if admissible, was admissible under Rule 403 in
preference to Rules 608 and 609.
b. Rules 402 and 403
Extrinsic evidence, which includes prior convictions, is
admissible under the general standards of Rules 402 and 403 to
contradict specific testimony, as long as the evidence is relevant
and its probative value is not substantially outweighed by the
danger of unfair prejudice. United States v. Carter, 953 F.2d
1449, 1458 (5th Cir. 1992), cert. denied sub nom. Hammack v. United
States, 112 S.Ct. 2980, 119 L.Ed.2d 598. Relevant extrinsic
evidence is admissible to contradict and possibly disprove a
witness's testimony about a material issue of the case. Opager,
589 F.2d at 803. Extrinsic evidence is material, not collateral,
if it contradicts "any part of the witness's account of the
background and circumstances of a material transaction, which as a
matter of human experience he would not have been mistaken about if
his story were true." Carter, 953 F.2d at 1458 n. 3 (quoting
MCCORMICK ON EVIDENCE ง 47, at 112 (E. Cleary ed., 3d ed. 1984)).
19

Finally, Rule 403 does not provide for a time limit like Rule 609
does.
In Opager, we determined that payroll records should have been
admitted to contradict a witness's testimony that he had seen the
defendant sell cocaine when they worked together in 1974. Opager,
589 F.2d at 800, 803. The records would have shown that the
witness and the defendant had not worked together then, calling
into question the witness's testimony. Likewise, in Carter, a
misdemeanor conviction was admissible under Rule 403 to challenge
a defendant's testimony that he was working during the period of
time when he was convicted. Carter, 953 F.2d at 1458. In the case
at hand, Lopez asserted on direct examination that he heard no
response from Saldivar about drugs and that he never had seen and
did not recognize marihuana. The government sought to contradict
Lopez's testimony by proving with the prior conviction for
possession that Lopez had seen and did recognize marihuana.
Rule 403 requires the court to weigh the probative value and
the prejudicial effect.2 This circuit has consistently applied the
two-part test established in United States v. Beechum, 582 F.2d 898
2 Rule 403 authorizes:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by consideration of undue delay, waste of time, or
needless presentation of cumulative evidence.
FED. R. EVID. 403.
20

(5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct.
1244, 59 L.Ed.2d 472 (1979) and in United States v. Robinson, 700
F.2d 205, 213 (5th Cir.), aff'd after remand, 713 F.2d 110 (5th
Cir. 1983), cert. denied, 465 U.S. 1008, 104 S.Ct. 1003, 79 L.Ed.2d
235 (1984). Under Beechum, the court must first determine whether
the conviction is relevant. Second, the court must decide that the
probative value is not substantially outweighed by its prejudicial
effect, as set forth in Rule 403. United States v. Zabaneh, 837
F.2d 1249, 1262-64 (5th Cir. 1988). The district court properly
found the conviction relevant. The record also supports the court
in its holding that the weighing requirement was met.
3. Harmless Error
Regardless of which grounds justify admission of Lopez's
remote conviction, to be reversible error the admission of the
conviction must have substantially prejudiced Lopez's rights. See
FED. R. EVID. 103(a) and FED. R. CRIM. P. 52(a). Because Rule 403
provides valid grounds to admit the prior conviction, Lopez's
rights were not prejudicially affected. United States v. Blake,
941 F.2d 334, 339 (5th Cir. 1991), cert. denied, ___ S.Ct. ___,
1992 WL 203185, 61 U.S.L.W. 3155 (Nov. 30, 1992) (No. 92-302). The
court also gave the jury limiting instructions to clarify the
purpose of the evidence. United States v. Farias-Farias, 925 F.2d
805, 811-12 (5th Cir. 1991). The district court in the instant
case carefully admonished the jury to take the conviction as
evidence impeaching the credibility of Lopez's testimony, and it
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repeated that instruction when it gave the jury charge. There was
no error.
MOTIONS FOR SEVERANCE: De La Garza and Ramirez
Both De La Garza and Ramirez moved for severance. Before
trial, De La Garza's attorney filed a Motion for Severance so that
Ramirez could testify for De La Garza, because Ramirez refused to
waive his Fifth Amendment rights by testifying in the joint trial.
During trial, Ramirez's attorney orally moved for severance on two
grounds: first, because the admission of Lopez's prior conviction
would prejudice Ramirez, and second, because the government was
unwilling to enter into a plea bargain unless all four defendants
joined. Although Ramirez was willing to plea bargain, one of his
co-defendants was not.
Generally, defendants who are indicted together are tried
together. United States v. Arzola-Amaya, 867 F.2d 1504, 1516 (5th
Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312
(1989). Under Federal Rule of Criminal Procedure 14, however, the
trial court may grant a severance if the joinder of defendants
prejudices one defendant. Because the decision lies within the
trial court's discretion, we do not disturb that decision unless we
find abuse of that discretion. Arzola-Amaya, 867 F.2d at 1516.
To prove that the trial court abused its discretion, an
appellant must show more than a better chance of acquittal in a
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separate trial. The appellant must show that he received an unfair
trial, which "exposed [him] to compelling prejudice against which
the district court was unable to afford protection." United States
v. Kane, 887 F.2d 568, 571 (5th Cir. 1989), cert. denied sub nom.
Weber v. United States, 493 U.S. 1090, 110 S.Ct. 1159, 107 L.Ed.2d
1062 (1990). Additionally, the trial court must balance any
prejudice to the defendant with the court's interest in judicial
economy. United States v. Harrelson, 754 F.2d 1153 (5th Cir.),
cert. denied, 474 U.S. 908, 106 S.Ct. 277, 88 L.Ed.2d 241 (1985).
De La Garza argues that he was prejudiced by his inability to
have Ramirez testify in his behalf, because Ramirez elected not to
testify in the joint trial. Initially, De La Garza's Motion for
Severance stated only that Ramirez would "likely testify" if the
causes were severed. After the court pointed out that the motion
lacked an affidavit, De La Garza's attorney filed his client's
handwritten affidavit, which stated that Ramirez had said that he
knew De La Garza had nothing to do with the conspiracy.
The district court properly denied De La Garza's Motion for
Severance. To be entitled to severance so that a co-defendant may
testify, De La Garza must show "(1) a bona fide need for the
testimony; (2) the substance of the testimony; (3) its exculpatory
nature and effect; and (4) that the co-defendant will in fact
testify." United States v. Williams, 809 F.2d 1072, 1084 (5th
Cir.), rehearing granted and cause remanded, 828 F.2d 1 (5th Cir.),
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cert. denied, 484 U.S. 896, 108 S.Ct. 228, 98 L.Ed.2d 187 (1987).
In Williams, both Williams and his attorney presented the court
with their affidavits stating that a co-defendant would testify,
but they failed to offer an affidavit to that effect from the
co-defendant. Consequently, we held that the district court
properly denied Williams's Motion for Severance.
De La Garza's position is even weaker. Although his need for
Ramirez's testimony is clear and the exculpatory nature of the
testimony appears in De La Garza's affidavit, De La Garza offers
little proof of the substance of the testimony and no proof that
Ramirez would in fact testify. Defense counsel supplemented his
motion with De La Garza's affidavit, but not even De La Garza
stated that Ramirez would testify. Additionally, the court
received no affidavit from Ramirez himself. De La Garza did not
prove that he was entitled to severance, and the trial court
properly denied his motion.
Ramirez moved for severance during trial, not in a pretrial
motion as required by Federal Rule of Criminal Procedure 12(b)(5).
Ramirez asserts that possible prejudice to him did not appear until
the mid-trial introduction of Lopez's remote conviction. But it is
well established that precise instructions, both during trial and
in the jury charge, can cure such prejudice. See, e.g., Williams,
809 F.2d at 1084. Before admitting evidence of Lopez's prior
conviction, the district court carefully instructed the jury to
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consider the evidence only with regard to Lopez. The district
judge then repeated the limiting instruction when he delivered the
jury charge. Through those instructions the district court cured
any prejudice to Ramirez that might have arisen from admitting
Lopez's prior conviction.
Ramirez also contends that the government could have plea
bargained with him alone if there had been a severance. He asserts
that the denial resulted in a harsher sentence than he would have
received had he been tried separately. There is, however, no
constitutional right to a plea bargain, and the prosecutor has the
discretion either to bargain or to go to trial. United States v.
Rankin, 572 F.2d 503 (5th Cir.), cert. denied, 439 U.S. 979, 99
S.Ct. 564, 58 L.Ed.2d 650 (1978).
Any prejudice arising from the admission of Lopez's conviction
was cured by instruction, and no prejudice arose from the inability
to accept a plea bargain. The district court did not abuse its
discretion in denying Ramirez's Motion for Severance.
MOTION FOR NEW TRIAL: De La Garza
On July 18, 1991, the jury found De La Garza guilty of
conspiracy. De La Garza subsequently obtained new counsel, who
filed a Motion for New Trial on September 4, 1991. Before
sentencing on October 10, 1991, the district court took up and
denied the motion as untimely filed. Under Federal Rule of
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Criminal Procedure 33, a defendant's motion for new trial is timely
only if it is filed within "7 days after verdict or finding of
guilty or within such further time as the court may fix during the
7-day period." Otherwise, a defendant may file a motion for new
trial within two years after final judgment, but solely on the
ground of newly discovered evidence. The next day, De La Garza
filed his Notice of Appeal, arguing that he was entitled to a new
trial because the affidavit supporting the motion presented newly
discovered evidence.
Ramirez's affidavit, which De La Garza uses to support his
motion, does not satisfy the "newly discovered evidence"
requirement, as detailed in United States v. Alvarado, 898 F.2d
987, 994 (5th Cir. 1990). First, Rule 33 does not embrace
affidavits as newly discovered evidence. Second, not only was the
possibility of Ramirez's testimony known to De La Garza at trial,
but it was also the subject of his pretrial Motion for Severance.
Third, Ramirez's testimony would serve as some impeachment of
Officer Botello's testimony, but it is not likely that it would
lead to an acquittal. Fourth, the record suggests that De La Garza
failed to exercise due diligence in obtaining the affidavit. When
De La Garza's attorney first presented his Motion for Severance,
the district court gave him a few minutes to obtain an affidavit
from Ramirez that Ramirez would testify about De La Garza's
innocence at a separate trial. De La Garza's attorney did not
obtain such an affidavit until October 3, 1991, a full two and a
26

half months after the verdict. Because the affidavit does not
satisfy the requirements of newly discovered evidence, the trial
court did not abuse its discretion in denying De La Garza's Motion
for New Trial.
De La Garza additionally argues that the trial court "should
have allowed the motion and given it proper consideration" under
United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d
657 (1984). In the first place, De La Garza's reliance on Cronic
is misplaced. In Cronic, the defendant raised a claim of
ineffective assistance of counsel in a motion for new trial that
was filed two months after filing the notice of appeal. Cronic,
466 U.S. at 652, 104 S.Ct. at 2043. In a footnote, the Court
explains that when a Rule 33 Motion for New Trial is filed pending
appeal, the trial court has the jurisdiction to entertain the
motion, either by denying it or by certifying to the appellate
court its intention to grant the motion. Cronic, 466 U.S. at 667
n. 42, 104 S.Ct. at 2051 n. 42; see also FED. R. CRIM. P. 33. This
court followed Cronic in United States v. Fuentes-Lozano, 580 F.2d
724 (5th Cir. 1978), appeal after remand on other grounds, 600 F.2d
552 (5th Cir. 1979). De La Garza, however, filed his Motion for
New Trial before filing the Notice of Appeal. Therefore, the
procedure outlined in Cronic and in Fuentes-Lozano is inapplicable.
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In the second place, although the trial court denied the
Motion because it was untimely, the judge stated on the record
proper alternative grounds for denial:
[E]ven if the Court could consider this I would still
deny it because it is not newly discovered evidence as
that is enunciated in the case law . . . . This was
evidence that was available at the trial and before the
trial and is not something that has now all of a sudden
been discovered by the defendant. In fact, he had
explored it before the trial. And therefore, the Court
would have denied it even if it were a timely filed
motion for new trial.
III. CONCLUSION
We affirm the convictions of all four defendants. The
evidence is sufficient to sustain them. We also affirm the
district court's decisions to admit the evidence of Lopez's remote
conviction and to deny De La Garza's Motion for New Trial and De La
Garza and Ramirez's Motions for Severance.
AFFIRMED.
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