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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_________________________________
No. 91-8383
_________________________________
UNITED STATES OF AMERICA,
PLAINTIFF-APPELLEE,

v.
TOMAS BARKSDALE-CONTRERAS, LUIS MANUEL GONZALES-COPADO, FELIPE
CONTRERAS, JR., SALVADOR COPADO, JR., OSCAR GONZALEZ-MARCELINO,
ARTURO GONZALEZ, JR. AND ARMANDO BAEZA-DE ALBA,
DEFENDANTS-APPELLANTS.
_________________________________________________________________
APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
_________________________________________________________________
(September 1, 1992)
Before REYNALDO G. GARZA, DAVIS and BARKSDALE, Circuit Judges.
GARZA, REYNALDO G., Circuit Judge:
Defendants appeal their convictions from the Western District
of Texas on kidnapping, conspiracy and misprision charges. Finding
no error, we affirm.
On December 9, 1990, Jose Gaona (Gaona) was intercepted at
gunpoint near his home in Acuna, Mexico by defendants Luis Manuel
Gonzalez-Copado (Gonzalez-Copado) and Armando Baeza-De Alba
(Baeza). After being struck, Gaona was driven to the International

bridge at Del Rio, Texas. Still at gunpoint, Gaona was told to
keep quiet as they all crossed the border. Upon transporting Gaona
into Texas, the codefendants demanded $100,000 in ransom and then
proceeded to codefendant Tomas Barksdale-Contreras' (Barksdale)
home. Barksdale joined the group and they all proceeded to Lake
Amistad, Texas. On the way to the lake, Gonzalez-Copado slashed
Gaona's back five or six times with a knife. At the lake,
Gonzalez-Copado threatened to kill Gaona while holding a pistol to
his head. Gaona was then driven to a one room apartment at a used
car lot and placed in a closet. Gonzalez-Copado again struck and
kicked Gaona. Appellant Felipe Contreras, Jr. (Contreras) had
joined the group by this time and had also struck Gaona. The
ransom demand was then raised to $400,000. Gonzalez-Copado phoned
Gaona's home and, at gunpoint, the victim was forced to relay the
demands to his wife repeatedly throughout the day. In the interim,
appellants Arturo Gonzalez, Jr. (Gonzalez) and Oscar Gonzalez-
Marcelino (Marcelino) had joined the others. On two occasions
Gonzalez kicked the victim and Marcelino stated that Gaona should
be killed if his wife did not come up with the ransom. At around
6:00 P.M., Gaona was taken out to a shed at a nearby ranch and was
hung by the neck for about seven seconds. The last codefendant,
Salvador Copado, Jr. (Copado) and Gonzalez arrived and stood guard
over Gaona. Copado, armed with a gun, beat the victim with a rope,
threatened him with a stone and removed his shoes to prevent
escape.
In the evening the kidnappers called Gaona's home and told a
2

friend of his wife that they would kill Gaona if the money was not
forthcoming. Another ransom demand and death threat were made to
the victim's uncle later that evening. Gaona was taken to a motel
for the evening and present were Gonzalez-Copado, Barksdale, Baeza
and Contreras. Baeza and Contreras, armed, stood guard through the
night.
On the morning of December 10, Gaona was transferred to a
house in Del Rio, Texas. He was subsequently transferred to
various other locations. This continued through the next day,
until federal officers located Gaona being guarded by Baeza just
off the lake. Gaona was held captive for fifty-five hours.
Analysis
Appellant Baeza now questions federal jurisdiction because the
indictment failed to track the kidnapping statute exactly. 18
U.S.C. � 1201(a).1 The wording in the indictment charged that the
appellants "did knowingly and unlawfully seize, confine, kidnap,
abduct, and carry away and hold for ransom a person ... after he
was willfully transported in foreign commerce ...." The indictment
mistakenly asserted that the kidnapping took place after the victim
was transported in foreign commerce. Baeza does not explain why he
failed to raise this claim at the district level nor does he point
1
18 U.S.C. � 1201 provides in relevant part:
(a) Whoever unlawfully seizes, confines, inveigles
decoys, kidnaps, abducts, or carries away and holds for
ransom
or reward or otherwise any person, except in the case
of a
minor by the parent thereof, when:
(1) the person is willfully transported in
interstate or foreign commerce;
3

to any prejudice because of the wording of the indictment. The
test of the sufficiency of an indictment is whether it charges all
of the elements of the offense so that an accused may prepare his
defense and be protected against double jeopardy. Hamling v.
United States, 418 U.S. 87, 117 (1974). When the sufficiency of an
indictment is first challenged at the appellate level, the language
is liberally construed and reversible error will not be found
unless the wording cannot by reasonable construction charge a
crime. United States v. De La Rosa, 911 F.2d 985, 985-89 (5th Cir.
1990), cert. denied, 114 L.Ed.2d 726 (1991); United States v.
Gaspard, 744 F.2d 438, 439 n.2 (5th Cir. 1984), cert. denied, 469
U.S. 1217 (1985); United States v. Cauble, 706 F.2d 1322, 1333 n.25
(5th Cir. 1983), cert. denied, 465 U.S. 1005 (1984).2 Moreover,
this court has held "that an indictment need not precisely track
the language of the statute; it is sufficient if it informs the
defendant of every element of the offense charged." United States
v. Hernandez, 891 F.2d 521, 524 (5th Cir. 1989), cert. denied, 495
U.S. 909 (1990), (citing United States v. Boyd, 885 F.2d 246 (5th
Cir. 1989)). We find the indictment sufficient.
Appellants challenge the sufficiency of evidence as well as
the admission of certain testimony. Deference to the district
court's admission of evidence is well settled. The verdict must be
affirmed if the court concludes that any reasonable trier of fact
could have found that the evidence established guilt beyond a
2
We note that the jury charge did include instructions
that the kidnapping charge required the finding that it
preceded the transportation of Gaona in foreign commerce.
4

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
United States v. Anderson, 933 F.2d 1261, 1274 (5th Cir. 1991).
Gonzalez-Copado claims that there was insufficient evidence
against him. The record contradicts this and reveals overwhelming
evidence that the appellant was not only guilty of kidnapping but
was also the moving force behind the crime. First, he abducted
Gaona at gunpoint and forced Gaona to communicate the ransom
demands. He personally beat and slashed him on several occasions
and assisted in temporarily hanging Gaona at the shed. This
evidence is plainly sufficient.
Appellants Barksdale and Contreras maintain that their
convictions cannot stand because their involvement began after
Gaona had been transported in foreign commerce. Barksdale adds
that there was no proof of his knowledge that the abduction had
occurred in Mexico. The arguments lack merit. "[I]t is settled
law, however, that one who joins an ongoing conspiracy is deemed to
have adopted the prior acts and declarations of conspirators, made
after the formation and in furtherance of the conspiracy." United
States v. Cintolo, 818 F.2d 980, (1st Cir.), cert. denied, 484 U.S.
913 (1987). "[A] conspiracy is like a train[;] when a party
knowingly steps aboard he is part of the crew and accepts
responsibility for the existing freight [it is already carrying]."
United States v. Baines, 812 F.2d 41, 42 (1st Cir. 1987). "With
[a] conspiracy thus fully established, the declarations and acts of
the various members, even though made or done prior to the
adherence of some to the conspiracy become admissible against all
5

as declarations or acts of co-conspirators in aid of the
conspiracy." United States v. United States Gypsum Co., 333 U.S.
364, 393, 68 S. Ct. 525, 541, 92 L.Ed. 7461 (1948).
The entry into the conspiracy of Barksdale and Contreras after
the movement across the border does not bar holding them
responsible for the prior acts. Proof of transportation of a
kidnapped victim in interstate or foreign commerce is necessary to
establish federal jurisdiction. Knowledge by the kidnappers of the
crossing of boundaries is not a necessary element of the offense.
United States v. Bankston, 603 F.2d 528, 532 (5th Cir. 1979).
Gonzalez and Copado seek review of the credibility of evidence
regarding their entry into the United States with a gun without
detection. Determining the weight and credibility of evidence is
within the sole province of the jury. United States v. Pena, 949
F.2d 751, 756 (5th Cir. 1991). An appellate court will not
supplant the jury's determination of credibility with that of its
own. United States v. Barron, 707 F.2d 125, 127 (5th Cir. 1983).
A review of the record reveals that the findings of the jury were
not unreasonable.
Marcelino argues that he should not have been found guilty of
misprision after he was acquitted of kidnapping and conspiracy. He
contends that hearsay allowed by the trial judge under the
coconspirator exception cannot be used if he is found innocent of
the conspiracy charges. An individual's acquittal of the
underlying crimes does not prevent him from being convicted of
misprision. See United States v. Davila, 698 F.2d 715, 720 (5th
6

Cir. 1983). Marcelino is still guilty of the affirmative act of
concealment of the conspiracy. Federal Rule of Evidence 801
(d)(2)(A) provides that "a statement by a coconspirator of a party
during the course and in futherance of the conspiracy" is not
hearsay. The evidence does not become inadmissible because of the
acquittal of the defendant on the charge of conspiracy. The
standard used by the trial judge in determining the existence of a
conspiracy for purposes of admitting the statement of a
coconspirator is that of a preponderance of the evidence; the jury
must reach the higher standard of beyond a reasonable doubt.
Bourjaily v. United States, 483 U.S. 171, 176 (1987). Thus the
trial judge only has to find that existence of the conspiracy was
more likely than not. Indeed, the admission of evidence is valid
even in the absence of a conspiracy charge, as long as the proof
showed a joint venture. United States v. Samientio-Rozo, 676 F.2d
146, 149 (5th Cir. 1982). Additionally, the confrontation clause
of the Sixth Amendment is not violated here. The fact that the
coappellants chose not to testify does not negate the admissibility
of their out of court statements. Bourjaily, 483 U.S. at 181-184;
Delaney v. United States, 263 U.S. 586, 590 (1924).
Gaona also testified that he himself heard Marcelino state
that Gaona should be killed if the ransom was not paid. Gaona had
met Marcelino before the kidnapping and could identify his voice
even though the victim was held in a closet. This is not hearsay
and is allowable as a party-opponent admission. Fed.R.Evid.
801(d)(2)(A).
7

The issues raised regarding misprision are also meritless. We
find evidence of concealment of the crime when the appellants made
false statements to police while participating in the kidnapping.
United States v. Hughes, 566 F.2d 674, 675 (9th Cir. 1977).
Baeza asserts that his misprision conviction was in violation
of his Fifth Amendment privilege against self-incrimination. He
did not, however, present any argument and has thus waived this
point. See Fed.R.App.P. 28(a)(4) (requiring argument of issue in
appellant's brief). Aside from presenting no argument, Baeza's
claim fails because of its untimeliness. The privilege is not
self-executing and the failure to assert it in a timely fashion
precludes seeking its protection for the first time on appeal.
Minnesota v. Murphy, 465 U.S. 420, 427-429 (1984); Roberts v.
United States, 445 U.S. 552, 559 (1980); Garner v. United States,
424 U.S. 648, 653 (1976).
Appellants question the exclusion of impeachment testimony
regarding Gaona and drug trafficking. The trial judge granted the
government's motion in limine preventing discussion of drug
trafficking because it was seen as irrelevant to the kidnapping
charge. The district court stated that if the defense intended to
bring the issue up later they should approach the bench so that
relevancy could be weighed at that time. The trial judge stated
that the defense could use any theory as long as there was evidence
to support it. Neither evidence nor witnesses were ever produced
to support this theory. "[T]rial judges retain wide latitude
insofar as the Confrontation Clause is concerned to impose
8

reasonable limits on cross-examination based on concerns about,
among other things, harassment, prejudice, confusion of the issues,
the witness' safety, or interrogation that is repetitive or only
marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986). This court regards limits placed upon the scope or extent
of cross-examination to be a matter committed to the sound
discretion of the trial judge, and the decision is reviewed under
a standard of clear abuse of discretion. United States v. Duncan,
919 F.2d 981, 988-989 (5th Cir. 1990), cert. denied, 111 S.Ct. 2036
(1991). We find no abuse here.
Appellants also challenge two references to drug dealing made
by witnesses. The trial judge quickly addressed the jury and
stated that those allegations should not be considered. We find no
prejudice against the appellants. The jury was admonished swiftly
and firmly and the circumstances surrounding the kidnapping were
inflammatory on their own. The court presumes that a jury will
follow an instruction to disregard inadmissible evidence unless
there is an overwhelming probability that the jury will be unable
to follow the instruction and there is a strong probability that
the effect is devastating. Greer v. Miller, 483 U.S. 756, 766 n.8
(1987). We find no reversible error.
Appellants also allege error in the trial judge's instructions
to the jury that no inferences should be made regarding any
appellants' silence. The "no" was apparently missing from the
transcript. The government has assured us that "no" was actually
said and that the court stenographer has stated that indeed it was
9

a typographical error. We observe that counsel for appellants,
when directly questioned about the matter, did not unequivocally
contradict the government's assertions that the error was merely
typographical.3 Furthermore, there was no objection at the time
the instruction was given despite careful questioning as to the
presence of any objections by the district court. We are satisfied
that the matter was a typographical error and thus reject any
notions to the contrary.
Challenges to various sentencing calculations and several
other issues have been raised. After careful review of the law and
the record in this case, we conclude these matters are entirely
without merit.
For the reasons discussed above, the convictions and sentences
of appellants are in all respects
AFFIRMED.

3
Counsel stated that he "tended to agree" that the
matter was merely the result of a typograpical error.
10