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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-1482
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HILARIO GONZALEZ-BALDERAS, SR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(January 4, 1994)
Before POLITZ, Chief Judge, HIGGINBOTHAM, Circuit Judge, and
DAVIDSON,* District Judge.
POLITZ, Chief Judge:
Hilario Gonzalez-Balderas, Sr. appeals his convictions of
narcotics offenses and life imprisonment sentences. We affirm in
all respects, except as to one conspiracy count and concurrent
sentence.
*District Judge of the Northern District of Mississippi,
sitting by designation.

Background
Gonzalez-Balderas was indicted with 41 others for his role in
a cocaine distribution operation that reached from Colombia to
Matamoros, Mexico to New York City. He was in charge of the
distribution of cocaine in Houston, facilitated the shipment of
cocaine to other locales, and was responsible for the funnelling of
cocaine profits back to the top echelon of the organization in
Matamoros. A jury convicted him of conspiring to possess more than
five kilograms of cocaine with intent to distribute in violation of
21 U.S.C. § 846, engaging in a continuing criminal enterprise in
violation of 21 U.S.C. § 848, and conspiring to transport funds out
of the United States to promote an unlawful activity in
contravention of 18 U.S.C. § 371. The district court imposed
sentences of life imprisonment on each of the Title 21 counts and
a five-year sentence for the § 371 conspiracy conviction, all to
run concurrently. This appeal timely followed.
Analysis
Gonzalez-Balderas assigns numerous errors which we address in
turn.
1. Government challenge for cause.
Gonzalez-Balderas contends that the district court erred in
granting the government's challenge for cause of prospective juror
Wayne Green. Green admitted to a conviction for possession of
marihuana. His voir dire examination included the following:
2

The Court: Is there anything about that experience that you
think would affect you should you be selected to serve as a
juror [in] this case?
Green: I been thinking about that. As it stands right
now, I think I could give a fair judgment. There was
somewhat what I consider to be entrapment in my
experience, and if that were to come out in this case, I
might be biased a little bit.
. . . .
The Court: What is your definition of entrapment so
we'll know what kind of evidence you are talking about?
Green: Well, in my case it was being shown forty
thousand dollars and people will do a lot of things for
forty thousand dollars. To me that's entrapment when
they come to you and you don't go to them, and that was
my experience.
. . . .
Government: I would say that it seems to me that he was
treated unfairly by the FBI.
The Court: Is that a fair statement of the way you feel?
Green: I would say that about the entire situation, not
only the FBI but mostly the Dallas police officers,
Dallas and Richardson. That's who -- The FBI treated me
pretty good.
The Court: Okay. And they were not in the picture that
long?
[no response]
The Court: I'm not sure myself which law enforcement
agencies may be involved in the case before us here, but
if any of those law enforcement agencies are involved --
the FBI, the City of Dallas police, the City of
Richardson police -- do you think that your feelings
about the way that you were treated in your experience
would affect your ability to be impartial in this case?
Green: It could to a certain degree to be honest with
you. Right now from these proceedings I think I could be
fair, but I don't know what's going to come out in court.
. . . .
3

Defense Counsel: If this case were an FBI case as
opposed to a local agency case and if there is no
entrapment issue that is raised in this case, do you feel
like you could be fair and impartial to both sides?
Green: Yes, I do. If there is no entrapment.
We afford wide latitude to the trial court in determining the
impartiality of a potential juror and reverse only for an abuse of
discretion. We have only the cold record before us; the trial
court had the opportunity to observe the voice and demeanor of the
person in determining what he really was saying and in assessing
his credibility.1 We perceive no reason to disturb the trial
court's assessment herein. Green's prior conviction of a narcotics
offense, albeit comparatively minor, posed substantial potential
for bias in the trial of an accused narcotics trafficker.2 Indeed,
Green admitted to such doubts about his impartiality. The
combination of objective grounds for bias and subjective doubts of
impartiality entitled the trial court to discount Green's
conditional affirmation that he could be fair. Gonzalez-Balderas's
reliance on jurisprudence concerning excuse of Witherspoon3 jurors
in capital cases is misplaced. In death penalty cases removal of
a potential juror on the basis of opposition to the death penalty
is subject to heightened scrutiny.4
In any event, Gonzalez-Balderas does not contest the
1United States v. Hinojosa, 958 F.2d 624 (5th Cir. 1992).
2See United States v. Jones, 712 F.2d 115 (5th Cir. 1983).
3Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20
L.Ed. 2d 776 (1968).
4United States v. Prati, 861 F.2d 82 (5th Cir. 1988).
4

impartiality of the panel that actually judged his case. This is
fatal to his objection. We held in Prati that improper removal of
a member of the venire is not grounds for reversal in a non-capital
case unless the jurors who actually sat were not impartial within
the meaning of the sixth amendment. Gonzalez-Balderas argues that
this rule should be limited to improper denial of a defendant's
challenges. Prati, however, was not so limited; it was an appeal
of the grant of a government challenge for cause, as here. We may
not ignore the decision of a prior panel absent an intervening
Supreme Court ruling, legislation, or a decision by this court
sitting en banc. This assignment of error is rejected.

2. Batson objection.
There were three Hispanic Americans on the venire; the
government struck one with a peremptory challenge. Gonzalez-
Balderas contends that it did so for racial reasons in
contravention of Batson v. Kentucky.5 Proceeding directly to the
ultimate question of discrimination vel non,6 we agree with the
district court that the government proffered a race-neutral reason
for its challenge, the force of which Gonzalez-Balderas did not
overcome.
The person excused, Rudolfo Serna, testified that he had two
relatives who were police officers in the Rio Grande Valley. The
prosecuting attorney explained that police corruption associated
5476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed. 2d 69 (1986).
6United States v. Pofahl, 990 F.2d 1456 (5th Cir.), cert.
denied, 114 S.Ct. 266 and 1993 WL 375150 (1993).
5

with cocaine traffic across the border is endemic in that area.
Because he anticipated that testimony on this subject might be
presented at trial, the prosecutor feared potential bias. We find
this explanation more than adequate to dispel any inference of
discrimination, particularly in light of the fact that the
government did not strike either of the two other potential jurors
of Hispanic descent.
3. "Seek the truth" jury charge.
In its closing instruction to the jury on the duty to
deliberate, the court explained:
To reach a verdict, all of you must agree. Your
verdict must be unanimous on each count of the
indictment. Your deliberations will be secret. You will
never have to explain your verdict to anyone.
It is your duty to consult with one another and to
deliberate in an effort to reach agreement if you can do
so. Each of you must decide the case for yourself, but
only after an impartial consideration of the evidence
with your fellow jurors. During your deliberations, do
not hesitate to re-examine your own opinions and change
your mind if convinced that you were wrong. But do not
give up your honest beliefs as to the weight or effect of
the evidence solely because of the opinion of your fellow
jurors, or for the mere purpose of returning a verdict.
Remember, at all times, you are judges -- judges of the
facts. Your sole interest is to seek the truth from the
evidence in this case.
Gonzalez-Balderas contends that instructing the jury that its "sole
interest is to seek the truth" dilutes the reasonable doubt
standard of proof.
As an abstract concept, "seeking the truth" suggests
determining whose version of events is more likely true, the
government's or the defendant's, and thereby intimates a
6

preponderance of evidence standard. Such an instruction would be
error if used in the explanation of the concept of proof beyond a
reasonable doubt.7 The district court, however, did not use it in
this way. Rather, the trial court began its instructions with a
clear definition of the government's burden of proof in which it
repeatedly stated that the defendant could not be convicted unless
the jury found that the government had proven him guilty beyond a
reasonable doubt. It correctly defined proof beyond a reasonable
doubt as "proof of such a convincing character that you would be
willing to rely and act upon it without hesitation in the most
important of your own affairs." There is no reasonable likelihood
that the jury inferred that the single reference at the end of the
charge to "seeking the truth," rendered as it was in the context of
an admonition to "not give up your honest beliefs," modified the
reasonable doubt burden of proof.8
We found no plain error in such a charge in United States v.
Winn,9 where the defendant did not timely object. We now hold
that the charge is not erroneous under the standard of plenary
review accorded when, as here, an objection is properly preserved.
Nevertheless, although the sentence is taken from the Fifth Circuit
7Cf. Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.
2d 339 (1990).
8See Estelle v. McGuire, U.S. , 112 S.Ct. 475, 116
L.Ed.2d 385 (1991) (reaffirming that the standard for review of an
ambiguous jury instruction is whether there is a reasonable
likelihood that the jury applied the challenged instruction in a
way that violates the Constitution).
9948 F.2d 145 (5th Cir. 1991), cert. denied, U.S. , 112
S.Ct. 1599 (1992).
7

Pattern Jury Instructions,10 trial courts, in an abundance of
caution, may wish to delete it from their instructions.11
4. Coconspirator statements.
Gonzalez-Balderas contends that the district court erred by
admitting statements of his coconspirators without either a prior
finding that the statements were admissible under Rule 801(d)(2)(E)
of the Federal Rules of Evidence12 or a finding that a prior
determination was impractical. His challenge is foreclosed by
circuit precedent.
In James we held that the district court should require the
government to establish a Rule 801(d)(2)(E) predicate before
admitting coconspirator statements, unless the court finds that
order of proof impractical. In that event, the court may
conditionally admit the statement subject to a subsequent final
10Fifth Circuit Pattern Jury Instructions (Criminal), No. 1.25
(1990).
11The charge as given differs somewhat from the pattern
instruction, which suggests a sentence stating: "Your sole
interest is to seek the truth from the evidence in the case, to
decide whether the government has proved the defendant guilty
beyond a reasonable doubt." The additional clause -- "to decide
whether the government has proved the defendant guilty beyond a
reasonable doubt" -- cuts both ways. On the one hand, by repeating
that the jury must find guilt beyond a reasonable doubt, it
arguably reaffirms the government's burden of proof. On the other
hand, the juxtaposition of "seeking the truth" and "guilt beyond a
reasonable doubt" arguably conflates the two concepts.
12Under Fed.R.Evid. 801(d)(2)(E) statements by coconspirators
are admissible as nonhearsay if the government proves that a
conspiracy existed, that the declarant and the defendant were
members and that the statement was made during the course of and in
furtherance of the conspiracy. United States v. James, 590 F.2d
575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917 (1979).
8

determination.13 We have approved deferral of a James ruling until
the close of the government's case.14 If the district court finds
the statements to be admissible, the defendant suffers no prejudice
from the order of proof.15 Here, the district court made its James
ruling at the close of the government's case, finding the requisite
foundation. Gonzalez-Balderas has not shown that the district
court abused its discretion in deferring its ruling. Regardless,
if the court's substantive finding was correct, he suffered no
prejudice from the delay. Similarly nonprejudicial was the
omission of an express finding that an earlier determination was
not reasonably practical. It matters not whether the final
decision as to the admissibility of the statements could have been
made earlier if the decision to admit them ultimately was correct.
Gonzalez-Balderas, however, contests the decision to admit
statements that he says were made before he joined the conspiracy.
This argument misperceives the law. We have held that the fact
that the challenged statement was made before the defendant joined
the conspiracy is "of no consequence,"16 provided that "there was
evidence of [the defendant's] subsequent knowledge and willingness
13James; United States v. Fragoso, 978 F.2d 896 (5th Cir.
1992), cert. denied, U.S. , 113 S.Ct. 1664 (1993).
14Fragoso.
15James.
16United States v. Osgood, 794 F.2d 1087, 1093 (5th Cir.),
cert. denied, 479 U.S. 994 (1986).
9

to participate in the conspiracy."17 There was such evidence
herein. Gonzalez-Balderas asks us to disregard our precedent; even
if we were so inclined, we could not do so.
5. Transcripts.
The government introduced into evidence several Spanish
language tape recordings with English language transcripts. The
government played the tape recordings to the jury and the
sponsoring witness identified the voices. In some instances,
however, the government played only part of the tape recordings.
Gonzalez-Balderas objects to admission of those portions of the
transcripts accompanying the parts of the tapes that were not
played, arguing that the voices were not identified.
As the trial court observed, the jury was capable of listening
to the entirety of the tape recordings and deciding whether the
voices changed. If the voices changed and the transcript did not
so reflect, the jury was bound by its instructions to disregard the
transcript. After the government authenticated the transcripts as
accurate renditions of the audio recordings, it was incumbent on
Gonzalez-Balderas to raise any specific objections that he may have
had to the identification of a particular speaker.18 He did not do
so and will not be heard to complain now.
6. Sentencing.
The district court sentenced Gonzalez-Balderas to life
17United States v. Rocha, 916 F.2d 219, 240 (5th Cir. 1990),
cert. denied, U.S. , 111 S.Ct. 2657 (1991).
18United States v. Armendariz-Mata, 949 F.2d 151 (5th Cir.
1991), cert. denied, U.S. , 112 S.Ct. 2288 (1992).
10

imprisonment for each of his convictions under 21 U.S.C. § 846 and
§ 848, as prescribed by the Sentencing Guidelines. Gonzalez-
Balderas challenges several of the underlying calculations. Even
if he were correct, the sentence prescribed by the Guidelines would
not change.
Gonzalez-Balderas contends that the entire 13,600 kilograms of
cocaine seized from the enterprise cannot be attributed to him. The
evidence adduced at trial, however, established that six shipments
of cocaine, each consisting of 600 to 650 kilograms, were delivered
to Gonzalez-Balderas. Whether 13,600 kilograms or 3,600 kilograms
are used, the base offense level under the § 2D1.1 Drug Quantity
Table is 42. U.S.S.G. § 2D1.5, the guideline for 21 U.S.C. § 848
convictions, mandates the addition of 4 levels, resulting in a base
offense level of 46. The maximum offense level on the Guideline
grid is 43, directing a sentence of life imprisonment whether the
defendant's criminal history category is I, as Gonzalez-Balderas
urges, or II, as the district court found. Regardless of the
disposition of Gonzalez-Balderas' objections to the additional
enhancements,19 his Guidelines sentence is life imprisonment.
Gonzalez-Balderas, however, contends that the district court
might have granted his request for a downward departure had his
offense level been lower. We are not persuaded. The district
court considered a life sentence necessary as a deterrent in light
19Gonzalez-Balderas challenges the two-level adjustment for
presence of a firearm and maintains that the enhancement for his
role in the conspiracy should have been three levels rather than
four.
11

of the vast profits that Gonzalez-Balderas stood to gain in his
role as a middle manager in a large-scale enterprise. Because the
refusal to depart did not result from an assigned error, it could
not warrant reversal of the sentence.20
7. Double jeopardy.
Finally, Gonzalez-Balderas contends that a conspiracy in
violation of 21 U.S.C. § 846 is a lesser-included offense of a §
848 continuing criminal enterprise. The government concedes that
he is correct. The double jeopardy clause therefore requires that
we vacate the conviction and sentence under Count 1 of the
indictment.21
The conviction and sentence for conspiracy to possess cocaine
with intent to distribute under Count 1 are VACATED. The
convictions and sentences under Counts 121 and 122 of the
indictment are AFFIRMED.
20Williams v. United States, U.S. , 112 S.Ct. 1112, 117
L.Ed. 2d 341 (1992).
21United States v. Devine, 934 F.2d 1325 (5th Cir. 1991), cert.
denied, U.S. , 112 S.Ct. 349, 911, 952, 954, 1164, 1197
(1992).
12