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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-7349
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BALDEMAR BERMEA,
ROGELIO BERMEA,
LORENZO RODRIGUEZ,
MANUEL GARCIA,
HONORIO GARZA,
MATILDE PEREZ,
GUADALUPE BERMEA,
ENRIQUE AVALOS and
TEODORO PEDRAZA,
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________________________________________________
(August 25, 1994)
Before GOLDBERG, KING and WIENER, Circuit Judges.
KING, Circuit Judge:
This case presents a myriad of issues common to appeals of
drug conspiracy convictions. Two less common issues are
difficult. One such issue concerns the failure of the district
court to conduct individual voir dire of the members of the jury
following prejudicial midtrial publicity. The other such issue
[bermea.004]
1
concerns the treatment of a pending James motion, ultimately
ruled on at trial, under the Speedy Trial Act.
I. BACKGROUND
A. FACTS
The appellants in this case were charged with participating
in one or both of two conspiracies to possess marijuana with the
intent to distribute. The first of these conspiracies, lasting
from late 1987 to mid-1988, allegedly involved eight persons,
including appellants Matilde Perez, Manuel Garcia, Honorio Garza,
Enrique Avalos, Teodoro Pedraza, and Lorenzo Rodriguez. The
second conspiracy lasted from late 1988 through early 1989, and
it allegedly involved seven persons, including appellants Perez,
Garza, Rogelio Bermea, Baldemar Bermea, and Guadalupe Bermea.
1. The First Conspiracy
Jaime Rios Gonzalez, an informant who began working for the
Drug Enforcement Administration (DEA) and other government
agencies in 1988, testified at trial as follows. In 1988,
Gonzalez was staying at a ranch owned by Garcia, getting paid
about $200 per week for doing "mostly nothing." (Other testimony
at trial indicates that Garcia's ranch was located just north of
Mission, Texas, which is in Hidalgo County near the border with
Mexico.) Avalos and Rodriguez also worked at Garcia's ranch
while Gonzalez was there, and Gonzalez identified Avalos as
Garcia's closest associate.
[bermea.004]
2
At some point, Garcia revealed to Gonzalez that he owned a
grain trailer with a secret compartment used for carrying large
quantities of marijuana. Garza, a constable of Starr County,
Texas (adjacent to Hidalgo County), and Perez came to Garcia's
ranch on one occasion, and Gonzalez overheard Perez tell Garcia
not to let his workers "get lost" because he had some work coming
up. A little later, Garcia told Gonzalez and other workers that
Perez and Garza would soon be providing a "load." A few days
later, Gonzalez and Rodriguez went to a different ranch owned by
Carlos Gomez, where they met Garcia, Garza, Avalos, and several
other men. That night, which was sometime in July 1988,
Gonzalez, Avalos, Rodriguez, Garcia, and the others loaded
bundles of marijuana into the secret compartment in Garcia's
grain trailer; Gonzales was told by Avalos and Garcia that the
load contained over 1800 pounds. Although Garza was not present
during the loading of the marijuana, Garcia told Gonzalez that
Garza and Perez had supplied the marijuana.
The trailer containing the marijuana remained on the Gomez
ranch for at least two weeks before Garcia gave the order to move
it. Another of Garcia's employees, Pepe Villarreal, drove the
tractor-trailer, while Gonzalez accompanied Avalos and Rodriguez
in another vehicle. Ultimately the tractor-trailer was taken to
the home of one "Shorty" Pedraza, which Gonzalez described as
being in the country near Giddings, Texas. There Gonzalez,
Villarreal, Rodriguez, Avalos, and Teodoro Pedraza unloaded the
marijuana and stored it in a shed on Shorty Pedraza's property.
[bermea.004]
3
Within the next few days, someone identified as "Ruben" arrived
with Garza in a truck equipped with a U-Haul trailer, and the men
loaded 600 pounds of marijuana (apparently into the U-Haul).
Gonzalez saw Ruben pay Garza an indeterminate amount of money,
and Gonzalez then left with Villarreal to return to Garcia's
ranch. A few days later, Gonzales saw Perez and Garza come to
Garcia's ranch and deliver four plastic sacks containing money to
one of Garcia's henchmen. Garcia paid Gonzalez $700 for his
work. Gonzalez stayed with Garcia through August of 1988. In
September of 1988 he began working for the DEA.
Gonzalez's testimony was corroborated in part by Carlos
Gomez, who testified at trial as a government witness. Gomez
testified that Garcia used Gomez's ranch as a site for loading
marijuana into the secret compartment of Garcia's trailer ten or
twelve times between January and August 1988. Gomez also
verified that Perez brought marijuana to the ranch on two or
three occasions and that Gonzalez had been at the ranch to load
marijuana with Garcia's men on one occasion.
2. The Second Conspiracy
Gonzalez testified that, near the end of his association
with Garcia, Garcia became upset with his cousins, the brothers
Guadalupe, Baldemar, and Rogelio Bermea. Garcia told Gonzalez
that the Bermeas had stolen his secret compartment design and
built their own trailer with a secret compartment and that he was
afraid that the Bermeas would get caught by law enforcement
officers and thus ruin the usefulness of his design.
[bermea.004]
4
Gonzalez was recruited to be a driver for the Bermeas by
Guadalupe and Baldemar Bermea in October of 1988. He went to a
ranch, apparently owned by Guadalupe and Baldemar Bermea, in late
October or early November 1988. Some time later the Bermeas'
tractor-trailer arrived, and marijuana was brought to the ranch
in a van by Perez and an unknown man. Perez told Gonzalez that
he and Garza had decided to start working with the Bermeas
because they could get a "cheaper rate" with the Bermeas than
they could with Garcia. While Rogelio, Guadalupe, and Baldemar
Bermea kept a lookout, Gonzalez and others loaded marijuana into
the secret compartment in the Bermeas' trailer, which Gonzalez
described as "identical" to Garcia's compartment. The next day,
Gonzalez left the ranch driving the tractor-trailer. He
contacted the DEA agents with whom he had been working, and the
agents arrested Rogelio Bermea, who was following Gonzalez in a
separate vehicle, along the way. Gonzalez continued with the
shipment and met Baldemar Bermea a little later, but Baldemar
Bermea apparently abandoned Gonzalez when Texas state highway
troopers began to follow Gonzalez. Eventually Gonzalez was
"arrested" by the DEA and the Hays County Sheriff's Department.
He helped the law enforcement officers unload the marijuana,
which turned out to weigh a little over 1300 pounds.
After Gonzalez turned the Bermeas' tractor-trailer over to
the DEA, he returned to the Bermeas' ranch and told them that he
had left the tractor-trailer at a certain truck stop with the key
under the floor mat. Guadalupe Bermea told him that the tractor-
[bermea.004]
5
trailer was nowhere to be found and then paid him $500 and told
him to "get lost for a while." Later, Baldemar Bermea told
Gonzalez that Garza and his brother had put a price on his head.
Another government witness was Juan Teodosa Solis, who
testified to the following events. Solis was recruited by
Rogelio Bermea to drive a second tractor-trailer with a secret
compartment in January 1989. Solis drove three shipments of
marijuana for the Bermeas successfully, and Perez accompanied him
on each of these trips. On the second trip, Solis overheard
Perez talking to someone on the phone that he referred to as
"Honorio." Additionally, while Solis was working for the
Bermeas, he was told by Guadalupe Bermea that Rogelio and
Baldemar Bermea were making plans with "Honorio" to transport
another load of marijuana. On a fourth trip, in early March
1989, Solis was arrested, and it appears that he pleaded guilty
to federal drug charges and was sentenced to seventy months in
prison. A DEA agent testified at trial that Solis was
transporting about 1100 pounds of marijuana at the time he was
arrested.
B. PROCEDURAL HISTORY
The final superseding indictment against the appellants
contained four counts. The first count charged that from
December 1987 through July 1988 Perez, Garcia, Garza, Avalos,
Pedraza, Rodriguez, and two others not before this court
conspired to possess more than 100 kilograms of marijuana with
the intent to distribute in violation of 21 U.S.C. §§ 846,
[bermea.004]
6
841(a)(1), and 841(b)(1)(B). The second count charged that from
November 1988 through May 1989 Perez, Garza, Rogelio Bermea,
Baldemar Bermea, Guadalupe Bermea, and two others not before this
court conspired to possess more than 100 kilograms of marijuana
with the intent to distribute, also in violation of 21 U.S.C. §§
846, 841(a)(1), and 841(b)(1)(B). The third count charged Perez,
Rogelio Bermea, Baldemar Bermea, Guadalupe Bermea, and two others
not before this court with possession of between 100 and 1000
kilograms of marijuana with the intent to distribute on or about
November 16, 1988, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B), and 18 U.S.C. § 2. The final count charged Perez,
Rogelio Bermea, Baldemar Bermea, and Guadalupe Bermea with
possession of between 100 and 1000 kilograms of marijuana with
the intent to distribute on or about March 3, 1989, also in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), and 18
U.S.C. § 2.
After a two-week trial, the jury returned its verdicts.
Perez was found guilty on counts one, two, and three and was
found not guilty on count four. Garza was found guilty on counts
one and two. Garcia, Avalos, Pedraza, and Rodriguez were found
guilty on count one. Rogelio and Guadalupe Bermea were found
guilty on counts two, three, and four. Baldemar Bermea was found
guilty on count two and was found not guilty on counts three and
four.
The appellants were sentenced under the sentencing
guidelines to terms of imprisonment as follows. Perez, Garcia,
[bermea.004]
7
Garza, and Rogelio Bermea were sentenced to 151 months.
Guadalupe Bermea was sentenced to 135 months. Avalos was
sentenced to 108 months. Baldemar Bermea was sentenced to 100
months. Pedraza was sentenced to 97 months, and Rodriguez was
sentenced to 92 months. An additional term of four years
supervised release was imposed on each appellant as well. These
appeals followed.
II. SUFFICIENCY OF THE EVIDENCE
Several of the appellants have raised claims that the
evidence was insufficient to support the jury verdicts. The
scope of our review of the sufficiency of the evidence after
conviction by a jury is narrow. We must affirm if a reasonable
trier of fact could have found that the evidence established
guilt beyond a reasonable doubt. United States v. Mergerson, 4
F.3d 337, 341 (5th Cir. 1993), cert. denied, 114 S. Ct. 1310
(1994). We must consider the evidence in the light most
favorable to the government, including all reasonable inferences
that can be drawn from the evidence. United States v. Pigrum,
922 F.2d 249, 253 (5th Cir.), cert. denied, 500 U.S. 936 (1991).
The evidence need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except
that of guilt, and the jury is free to choose among reasonable
constructions of the evidence. Id. at 254.
A. OFFENSE ELEMENTS AND PAID INFORMANTS
[bermea.004]
8
The sufficiency challenges raised in this appeal appear to
be limited to the conspiracy convictions. In order to prove that
a defendant committed the crime of conspiracy to possess
narcotics with intent to distribute, the government must prove
that (1) a conspiracy to possess narcotics with intent to
distribute existed, (2) the defendant knew of the conspiracy, and
(3) the defendant voluntarily participated in the conspiracy.
United States v. Hernandez-Palacios, 838 F.2d 1346, 1348 (5th
Cir. 1988); see United States v. Cardenas, 9 F.3d 1139, 1157 (5th
Cir. 1993), cert. denied, 114 S. Ct 2150 (1994). No proof of an
overt act is required. Hernandez-Palacios, 838 F.2d at 1348;
Cacace v. United States, 590 F.2d 1339, 1340 (5th Cir. 1979);
United States v. Palacios, 556 F.2d 1359, 1364 n.9 (5th Cir.
1977). But see United States v. Shabani, 993 F.2d 1419 (9th Cir.
1993) (holding that the elements of a drug conspiracy under 21
U.S.C. § 846 do include an overt act requirement), cert. granted,
114 S. Ct. 1047 (1994). Among the factors that may be considered
by the factfinder in determining whether a defendant is guilty of
committing a drug conspiracy crime are "concert of action,"
presence among or association with drug conspirators, and
"[e]vasive and erratic behavior." Cardenas, 9 F.3d at 1157. Of
course, mere presence or association alone cannot suffice to
establish that a person has voluntarily joined a conspiracy.
United States v. Magee, 821 F.2d 234, 239 (5th Cir. 1987).
The government's evidence at trial consisted largely of the
testimony of Jaime Gonzalez, who was a paid informant, Carlos
[bermea.004]
9
Gomez, who had reached an agreement to cooperate with the
government in exchange for dismissal of an indictment against his
wife and who was paid for his expenses in testifying, and Juan
Solis, who testified that he had been offered a reward if he
cooperated in future civil forfeiture proceedings brought by the
government. Although the credibility of witnesses who receive
consideration in exchange for their cooperation or testimony may
suffer from that fact, we have concluded that "it is up to the
jury to evaluate the credibility of a compensated witness."
United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir.
1987) (en banc) (overruling Williamson v. United States, 311 F.2d
441 (5th Cir. 1962), cert. denied, 381 U.S. 950 (1965)), cert.
denied, 484 U.S. 1026 (1988). We have cautioned that procedural
safeguards should be observed when paid informant testimony is
used by the government. The government must not use or encourage
the use of perjured testimony; the government must completely and
timely disclose the fee arrangement to the accused in accordance
with Brady v. Maryland, 373 U.S. 83 (1963); the accused must be
given an adequate opportunity to cross-examine the informant and
government agents about any agreement to compensate the witness;
and the trial court should give a special jury instruction
pointing out the suspect credibility of paid witnesses.
Cervantes-Pacheco, 826 F.2d at 315-16. We note that the district
court did give such a cautionary jury instruction, and that no
defendant complains that he was not allowed to conduct adequate
[bermea.004]
10
cross-examination regarding any agreements between the government
and its witnesses.
With these rules in mind, we evaluate the appellants'
insufficiency claims.
B. MANUEL GARCIA
Garcia's claim that the evidence was insufficient to sustain
his conspiracy conviction is without merit. His argument amounts
to little more than an attack on the credibility of Gonzalez and
Gomez because these government witnesses received consideration
for the government in exchange for their cooperation and
testimony. We have repeatedly stated that the jury is the final
arbiter of the credibility of witnesses. United States v.
Restrepo, 994 F.2d 173, 182 (5th Cir. 1993). We have held that a
guilty verdict may be sustained if supported only by the
uncorroborated testimony of a coconspirator, even if the witness
is interested due to a plea bargain or promise of leniency,
unless the testimony is incredible or insubstantial on its face.
United States v. Gadison, 8 F.3d 186, 190 (5th Cir. 1993); United
States v. Hernandez, 962 F.2d 1152, 1157 (5th Cir. 1992).
Testimony is incredible as a matter of law only if it relates to
facts that the witness could not possible have observed or to
events which could not have occurred under the laws of nature.
Gadison, 8 F.3d at 190; United States v. Hoskins, 628 F.2d 295,
297 (5th Cir.), cert. denied, 449 U.S. 987 (1980).
The testimony of Gomez and Gonzalez was not incredible or
insubstantial on its face. Indeed, Gomez's testimony tended to
[bermea.004]
11
corroborate Gonzalez's testimony regarding the loading of
Garcia's grain trailer at Gomez's ranch in July 1988. A
reasonable jury could have credited their testimony, which
included Garcia as an important member of the first conspiracy.
We therefore reject Garcia's claim.
C. HONORIO GARZA
Garza was convicted of both conspiracies alleged in the
indictment. The evidence adduced against him at trial consisted
of the following.
With respect to the first conspiracy, Gonzalez testified
that Garcia told him and Garcia's other workers that "Matilde and
Honorio" were going to bring them "a load" a few days before the
load of marijuana actually arrived at Gomez's ranch. Garza was
present at Gomez's ranch during the day before the loading
operation commenced, but Gonzalez did not testify that Garza was
present during the loading. Gonzalez also testified that Garcia
told him that Garza and Perez were the sources of the marijuana.
Garza was identified as accompanying Ruben to Shorty Pedraza's
home in Giddings, where Ruben picked up 600 pounds of marijuana
and paid Garza an indeterminate amount of money from a briefcase.
Garza points out that Gonzalez's testimony is somewhat unclear
regarding this transaction; although Gonzalez testified that the
transaction occurred in Giddings, the prosecutor's questions
strangely begin to refer to a "man in New Braunfels[, Texas]" in
the middle of Gonzalez's testimony. The prosecutor may have been
referring to the buyer that Gonzalez knew only as "Ruben," but
[bermea.004]
12
the record does not explicitly draw a connection between the two
references.
With respect to the second conspiracy, Gonzalez testified as
follows. Soon after Gonzalez went to work for the Bermeas, Perez
and an unknown man delivered a van loaded with marijuana to
Guadalupe and Baldemar Bermea's ranch. Gonzalez talked with
Perez after the marijuana was unloaded, and Perez told Gonzalez
that he and his "compadre" Honorio had decided to start using the
Bermeas because they had a cheaper rate. After Gonzalez turned
the Bermeas' trailer over to law enforcement officers, Baldemar
Bermea told him that "Los Nencos," a nickname for Garza and his
brother, had put a price on Gonzalez's head. Witness Solis also
connected Garza to the second conspiracy in his testimony. Solis
testified that he overheard Perez talking on a phone to "Honorio"
during two of Solis's trips as a driver for the Bermeas. Perez
told Solis that he was calling people in "the Valley" to assure
them that everything was going smoothly. On another occasion
Solis was told by Guadalupe Bermea that Rogelio and Baldemar
Bermea were making plans with Garza for another run.
The evidence was clearly sufficient to support a finding
that Garza was guilty as to the first conspiracy; Gonzalez's
testimony specifically tied Garza to the drug transaction
conducted in Giddings. Although the evidence tying Garza to the
second conspiracy is significantly weaker, we have held that
"[o]nly slight evidence is needed to connect an individual to an
illegal conspiracy once the United States has produced evidence
[bermea.004]
13
of that conspiracy." United States v. Vaquero, 997 F.2d 78, 82
(5th Cir.) (citing United States v. Duncan, 919 F.2d 981, 991
(5th Cir. 1990), cert. denied, 500 U.S. 926 (1991)), cert.
denied, 114 S. Ct. 614 (1993). The United States more than
sufficiently proved the existence of the second conspiracy; the
evidence connecting Garza to that conspiracy, although not
overwhelming, sufficiently supports the inference that he was
involved in that conspiracy in a somewhat removed position of
authority.
D. ENRIQUE AVALOS
Avalos challenges the sufficiency of the evidence to support
his conviction for participation in the first conspiracy. His
protests that the evidence shows "mere presence" at the scene of
conspiratorial activity, however, are without merit. Gonzalez
testified not only that Avalos was often present at Garcia's
ranch but also that Avalos was Garcia's closest associate.
Additionally, Avalos was identified by Gonzalez as one of the men
who helped load the marijuana into the secret compartment in
Garcia's grain trailer at Gomez's ranch in July of 1988 and who
helped unload the marijuana at Shorty Pedraza's home. Like his
co-appellants, Avalos makes much of the fact that the
government's main witnesses were paid or otherwise compensated
for their testimony and cooperation, but this fact was for the
jury to consider in weighing the credibility of the witnesses.
We will not second-guess the jury's determination.
[bermea.004]
14
E. TEODORO PEDRAZA
Although the government's evidence against Teodoro Pedraza
was not as extensive as its evidence against some of his
codefendants, we conclude that Pedraza's sufficiency challenge is
also without merit. Gonzalez identified Pedraza as one of the
men who converged at Shorty Pedraza's home and helped unload the
marijuana from Garcia's trailer. Gonzalez also testified that
Pedraza was part owner of the truck used during the first
conspiracy and that Pedraza and Garcia argued on one occasion
when Pedraza wanted Garcia to finish paying Pedraza for the
truck. Thus, Gonzalez's testimony, if believed, established more
than Pedraza's mere presence at the scene of conspiratorial
activity. Pedraza's complaint that the jury could not have
rationally convicted him and at the same time acquitted Shorty
Pedraza is without merit. See United States v. Zuniga-Salinas,
952 F.2d 876, 877 (5th Cir. 1992) (en banc) (holding that a
verdict convicting one alleged conspirator can stand even if the
jury acquits the sole alleged coconspirator). Because a rational
jury could have found that Pedraza actively participated in the
first conspiracy, we conclude that the evidence supporting his
conviction was sufficient.
F. LORENZO RODRIGUEZ
Rodriguez's argument that the evidence implicating him in
the first conspiracy was insufficient to support his conviction
is without merit. Gonzalez's testimony established Rodriguez's
frequent presence at Garcia's ranch before the July 1988
[bermea.004]
15
marijuana shipment as well as Rodriguez's participation in both
the loading of marijuana into Garcia's trailer at Gomez's ranch
and the unloading of the marijuana at Shorty Pedraza's home near
Giddings. Gomez also testified to Rodriguez's presence at his
ranch when the July 1988 shipment was loaded into Garcia's
trailer. The fact that Gonzalez and Gomez generally referred to
Rodriguez as "Lencho," the name listed in the indictment as an
"a/k/a" for Rodriguez, does not reduce the evidentiary weight of
their testimony or in-court identifications of Rodriguez, as
Rodriguez seems to argue.
G. ROGELIO BERMEA
Rogelio Bermea contends that the district court erred in
denying his motion for acquittal because the evidence was
insufficient to distinguish him from his relatives who were also
on trial. We disagree. According to Gonzalez, Rogelio Bermea
was present at the Bermea ranch when the marijuana was loaded
into the truck that Gonzalez was to drive, and Rogelio Bermea
also met Gonzalez at a convenience store during the shipment.
Witness Solis also affirmatively identified Rogelio Bermea as the
person who recruited him to drive loads of marijuana for the
Bermeas and opined that Rogelio Bermea was the "boss man" of the
conspiracy. This evidence, taken as a whole, was sufficient to
support Rogelio Bermea's conspiracy conviction.
H. BALDEMAR BERMEA
Baldemar Bermea's sufficiency of the evidence challenge,
like that of the other appellants, is without merit. He was
[bermea.004]
16
convicted only for his membership in the second conspiracy
alleged in the indictment. Gonzalez connected Baldemar Bermea to
the conspiracy by testifying that he was recruited by Guadalupe
and Baldemar Bermea, that Baldemar Bermea accompanied him part of
the way during the shipment that he drove and tried to warn him
that Texas highway patrol officers were following him, and that
Baldemar Bermea was the person who warned him that a price had
been put on his head. Although Gonzalez's in-court
identification of Baldemar Bermea was not recognized by the
district court and is thus not clear to this court on appeal,
Solis did make a clear in-court identification of Baldemar
Bermea. Solis's testimony also established Baldemar Bermea's
involvement in the second conspiracy. According to Solis,
Baldemar Bermea went with him to pick up the truck that Solis
used to transport marijuana and occasionally contacted him when
there was a load of marijuana ready to be shipped. Baldemar
Bermea also assured Solis that if he were arrested the Bermeas
would help him and his family financially. The evidence against
Baldemar Bermea was sufficient to support his conviction.
III. MIDTRIAL PUBLICITY
Garcia and Garza contend that they are entitled to reversal
of their convictions because they were unfairly prejudiced by
extensive publicity that occurred during the trial.
[bermea.004]
17
A. FACTS
[bermea.004]
18
Most of the publicity complained of by Garcia and Garza
consisted of articles published in a local newspaper, the McAllen
Monitor. The trial lasted from January 15-29, 1992. On
Saturday, January 18, the Monitor ran a story entitled
"Official's drug trial underway," detailing Gonzalez's testimony
and describing the case as one "involving former Starr County
Constable Honorio Garza and 11 other defendants." The next
article cited by Garza and Garcia was entitled "Witness details
drug ring operation" and summarized Gomez's testimony. The next
article was entitled "Testimony implicates constable," and it
detailed the testimony of Solis, including his belief that Perez
contacted Garza by telephone during marijuana shipments. On
January 23, the Monitor ran an article entitled "Witness says he
was offered bribe not to testify." The article briefly described
testimony by Solis under cross-examination by Garza's attorney
that Solis's brother had come to visit Solis in Starr County jail
in September of 1991 and told Solis that he was sent by Garza to
offer him money not to testify. The next article was entitled
"Jurors allowed to see evidence over objections." The article
stated that income tax records, weapons, cash, and jewelry had
been seized in raids on the homes of some of the defendants and
that the trial judge had admitted some of the articles into
evidence. Relying in part on a statement by the lead prosecutor,
the article further stated that one of the defendants, Eleazar
Bermea, had pleaded guilty to misprision of a felony and stated
in the plea agreement that "he knew there was a marijuana-
[bermea.004]
19
trafficking conspiracy, that he allowed his home to be used for
telephone conversations between conspirators, and that he did not
alert authorities about criminal acts." Two other articles
complained of describe the final day of testimony in the case and
mention in passing that jury deliberations had begun.
The other source of the publicity complained of by Garcia
and Garza was an episode of the nationally televised news program
Street Stories that aired the evening of January 23, 1992, in the
midst of the trial. Garza has provided a transcript of that
episode to this court in his record excerpts. A segment of that
episode focused on the marijuana smuggling trade in the Rio
Grande Valley, referring specifically to Starr County as a
"smuggler's paradise" and including footage of an unidentified
informant who asserted that forty percent of Starr County's law
enforcement personnel were involved in the drug trade.
Apparently photographs of Garza were included in the segment, and
the program reported that Garza had been indicted and that his
trial was pending. The appellants also claim that Garza was
shown on the program in handcuffs, although this cannot be
verified from the transcript.
The district judge made some efforts to discourage the
jurors from viewing any media accounts bearing on the case. In
the preliminary instructions to the jury before trial, the judge
gave the following admonition to the jury: "Don't read or listen
to anything about this case." Before adjourning for lunch on
January 23, the judge asked the jury as a whole if any jurors had
[bermea.004]
20
"read or seen or listened to anything about th[e] case," and no
juror responded. At the end of the day on January 23, the judge
reminded the jurors, "Don't forget my instructions about
newspapers, TV, radio or discussing the case with anybody." The
judge did not, however, accede to the request for individual voir
dire made by Garza's defense counsel. The Street Stories episode
was brought to the judge's attention the next morning before
trial resumed, and at the end of the day the judge gave the
following admonition:
I've also given you some instructions about not to read
anything about the case, not to hear anything about the
case, not to watch anything about the case, not to do any
investigation on your own about a caseSQabout the case and
not to discuss it with anybody. If through some
inadvertence you have seen something about the case or you
have read something about it but youSQyou're clearly not to
do that in any way. You cannot consider anything that is
not evidence, that has not been presented here in the
Courtroom, ladies and gentlemen. And you're under oath to
follow the instructions I give you with regard to that.
After some additional prompting by Garza's defense counsel, the
judge asked, "None of you have seen or heard anything about this
particular case or any defendant in this case recently, have
you?" The record reflects that there was no audible response to
the judge's question, and he dismissed the jury for the day.
Before the jury was brought into the courtroom on January
27, Garcia's attorney raised the Monitor article regarding the
property seized during the government raids and the statement
given by Eleazar Bermea in conjunction with his guilty plea, and
Garza's attorney moved for a mistrial, which the court denied.
When the jury was brought in that morning, the judge asked,
[bermea.004]
21
"Ladies and gentlemen, is there anybody who has seen, read or
heard anything about this case since you all were here on
Friday?" After getting no audible response, the judge reminded
the jury not to forget the instructions he had given, and the
trial proceeded. It appears that the judge did not give any
final instructions related to the publicity except for general
instructions that the jury should restrict its deliberations to
the evidence admitted in the case.
Garza argues that the district court should have granted a
mistrial because of prejudice stemming from the midtrial
publicity, that the district court committed reversible error in
failing to conduct midtrial voir dire regarding the publicity,
and that the district court committed reversible error for
failing to sequester the jury sua sponte. Garcia generally
presses the same points.
B. ANALYSIS
The management of midtrial publicity is entrusted to the
broad discretion of the district court; we will reverse only if
we find an abuse of discretion. United States v. Aragon, 962
F.2d 439, 443 (5th Cir. 1992); United States v. Harrelson, 754
F.2d 1153, 1163 (5th Cir.), cert. denied, 474 U.S. 908, and cert.
denied, 474 U.S. 1034 (1985).
1. Refusal to Conduct Individual Voir Dire
We consider first the argument that the district judge
committed reversible error by failing to voir dire the jurors
individually after the instances of midtrial publicity were
[bermea.004]
22
brought to the court's attention. There is a paucity of Supreme
Court authority on the subject of midtrial publicity. The more
celebrated cases dealing with the adverse effects of publicity,
e.g., Sheppard v. Maxwell, 384 U.S. 333 (1966), have involved
convictions obtained after massive pretrial publicity and
frequently a pervasive media presence during the trial as well.
The instant case is not one like Sheppard and its kind, as it
does not involve a "conviction obtained in a trial atmosphere
that had been utterly corrupted by press coverage." Murphy v.
Florida, 421 U.S. 794, 798 (1975). In Marshall v. United States,
360 U.S. 310 (1959) (per curiam), the Court exercised its
supervisory power over the enforcement of the criminal law in the
federal courts and reversed a conviction because the jurors had
been exposed to two newspaper accounts of the defendant's
criminal record. The district judge in Marshall conducted
individual voir dire of the jurors in his chambers and concluded
that the defendant would not be prejudiced by the publicity
because even the jurors who had read one or both of the
prejudicial articles said that they could be impartial in
deciding the case. Id. at 312. The Court, although recognizing
the district judge's broad discretion in ruling on the
possibility of prejudice from the publicity, reversed the
conviction and granted a new trial. Id. at 312-13.
Although the Supreme Court has not set down many guidelines
for resolving the problem of midtrial publicity, we have
considered the issue several times in recent years. Our
[bermea.004]
23
touchstone is United States v. Aragon, 962 F.2d at 443-47, in
which we undertook a thorough review of our cases regarding
midtrial publicity. The test, reduced to its most basic
elements, is twofold: voir dire is required if there are serious
questions of possible prejudice, considering (1) whether the
publicity is innately prejudicial, and if so (2) the probability
that the publicity in fact reached the jury. Id. at 443-44. In
determining whether publicized material is innately prejudicial,
we consider factors such as the content of the material, the
timing of the publicity in relation to critical stages of the
trial, and the possible effects of the material on legal
defenses. Id. at 444. The second prong is governed by
commonsense considerations such as the prominence of the media
coverage and the nature, number, and regularity of the district
court's warnings against viewing the coverage. Id. The test is
necessarily highly fact-specific. Id. (citing Marshall, 360 U.S.
at 312). We have held district courts to a stricter standard in
midtrial publicity cases as compared to pretrial publicity cases
because information reported during the trial is more likely to
remain in the mind of a juror exposed to it. Id. at 441 n.3
(citing United States v. Williams, 568 F.2d 464, 468 (5th Cir.
1978)).
a. Nature of the Publicity
We first consider whether the publicized material complained
of by the appellants was innately prejudicial. In Aragon, we
reaffirmed the rule that publicity revealing to jurors a
[bermea.004]
24
defendant's prior criminal record is inherently prejudicial. Id.
(citing Williams, 568 F.2d at 469). We also concluded that a
media account was innately prejudicial in the leading case of
United States v. Herring, 568 F.2d 1099 (5th Cir. 1978). In that
case, Herring was on trial for various drug offenses. Id. at
1100 n.3. Herring was a road manager for noted rock musician
Gregg Allman, and Allman testified at trial against Herring in
exchange for a grant of immunity. Id. at 1100. The local daily
newspaper carried a front-page story, complete with photograph,
entitled "ALLMAN UNDER HEAVY GUARD" and subtitled "Death Threats
Reported." Id. at 1102. We concluded that this material,
released on the very day the defendant took the stand, was
innately prejudicial and demanded full voir dire of the jurors.
Id. at 1105. Finally, in United States v. Williams, 809 F.2d
1072, 1091-92 (5th Cir.), modified, 828 F.2d 1 (5th Cir.), cert.
denied, 484 U.S. 896, and cert. denied, 484 U.S. 913, and cert.
denied, 484 U.S. 987 (1987), we considered midtrial publicity
stemming from a government witness's testimony that certain
defendants accused of drug offenses were involved in drug dealing
even during the trial. This testimony led the trial judge to
revoke bail, leading to numerous media accounts of the event,
including front page coverage complete with a color photograph of
the defendants being led away from the courthouse in chains. Id.
at 1091. We concluded that the nature of the material
"definitely [went] beyond the record and raise[d] serious
questions of possible prejudice." Id. at 1092.
[bermea.004]
25
Most of the publicity that occurred in the instant case was
not exceptionally prejudicial; as the district court noted, most
of the newspaper accounts were limited to descriptions of the
trial proceedings witnessed by the jurors themselves. See United
States v. Martinez-Moncivais, 14 F.3d 1030, 1037 (5th Cir. 1994)
(finding that publicity carried no potential for prejudice
because "the news media had merely publicized an issue that the
jurors had already been informed of by the judge himself"),
petition for cert. filed, 62 U.S.L.W. 3844 (U.S. June 3, 1994)
(No. 93-1933). Two specific instances of midtrial publicity,
however, do cause us special concern. First, the newspaper
account of Eleazar Bermea's plea agreement, and in particular its
detailed recitation of Bermea's admissions regarding the
existence and operations of a marijuana trafficking conspiracy,
went well beyond what the district judge told the jurors:
"Ladies and gentlemen, the case of Mr. Eleazar Bermea has been
disposed of, and it will not be necessary for you to return a
verdict of guilty or not guilty with regards to Mr. Bermea." We
have made it abundantly clear that evidence about a
coconspirator's conviction is not admissible as substantive proof
of the guilt of a defendant. United States v. Leach, 918 F.2d
464, 467 (5th Cir. 1990), cert. denied, 501 U.S. 1207 (1991); see
also United States v. Griffin, 778 F.2d 707, 710 (11th Cir. 1985)
("Due to the extreme and unfair prejudice suffered by defendants
in similar situations, courts and prosecutors generally are
forbidden from mentioning that a codefendant has either pled
[bermea.004]
26
guilty or been convicted."). Indeed, we held in the Leach case
that the government's introduction of evidence during Leach's
trial that Leach's alleged coconspirator had pleaded guilty rose
to the level of plain error and warranted reversal of one of
Leach's convictions despite his failure to object. Leach, 918
F.2d at 468. Thus, the newspaper coverage of Eleazar Bermea's
guilty plea and the details of his plea agreement was plainly
prejudicial to the remaining defendants. The same article also
mentioned certain items seized during a search of Garcia's house,
including $110,000 in cash, twenty weapons, and jewelry, that the
court had excluded from evidence. Second, the episode of Street
Stories chronicled public corruption in Starr County and
specifically mentioned Garza in conjunction with other prominent
Starr County residents who had pleaded guilty or already gone to
prison for drug offenses. Although no explicit connection was
made between these drug dealers, who included a justice of the
peace and a former county clerk, and Garza, Garza's name,
photograph, and indicted status were included or described in the
broadcast in close proximity to the persons who had pleaded
guilty or already gone to prison. We conclude that these two
instances of publicity contained material that was innately
prejudicial. See Aragon, 962 F.2d at 445 (suggesting that
publicity is innately prejudicial if its substance "may be taken
as probative of the appellants' guilt").
b. Probability of Jury Contamination
[bermea.004]
27
Our analysis must next focus on the likelihood that the
prejudicial accounts reached the jury. The most important
factors, in our view, are the prominence of the media coverage
itself and the measures taken by the district court to minimize
the probability of jury exposure. Lesser factors that we have
recognized as bearing on the inquiry include whether the jury
returned mixed verdicts, which can indicate fair-minded
consideration of the evidence, the length of the trial, and the
amount of detail provided to the district court regarding the
extent and content of the publicity. United States v. Faulkner,
17 F.3d 745, 764-65 (5th Cir. 1994), petition for cert. filed, 63
U.S.L.W. 3066 (U.S. July 18, 1994) (No. 94-100).
First, we consider the nature of the publicity itself. All
the articles, including the one containing the account of Eleazar
Bermea's guilty plea, appeared prominently in what is a
apparently a leading daily newspaper in the city where the trial
was held. As we have already noted, however, the great bulk of
the publicity was not particularly prejudicial, and the portion
of the article describing Eleazar Bermea's guilty plea consisted
of only three short paragraphs in the middle of a longer article.
See United States v. Manzella, 782 F.2d 533, 541 (5th Cir.)
(rejecting a claim based on midtrial publicity in part because
the media discussion of a defendant's prior conviction "occupied
but one short paragraph in a lengthy article"), cert. denied, 476
U.S. 1123, and cert. denied, 479 U.S. 961 (1986). The television
program, of course, aired nationally and could have been seen by
[bermea.004]
28
any of the jurors. On balance, it appears that the prejudicial
television broadcast was widely and freely disseminated in a
manner likely to reach some jurors, while the prejudicial
newspaper story was probably not as likely to come to their
attention. Cf. Aragon, 962 F.2d at 441-42 (reversing a
conviction based on a single article printed conspicuously on the
front page of the most widely circulated local daily newspaper);
Williams, 809 F.2d at 1091-92 (reversing a conviction based on
publicity including one front-page newspaper story with
photograph and reports on "local television and radio news
programs").
The other critical factor in weighing the probability that
the jury was exposed to the prejudicial publicity is the
procedure adopted by the district judge to shield the jury from
the publicity. The cases place great emphasis on the particular
instructions given to the jury by the trial judge to minimize or
eliminate the danger of jury contamination by prejudicial
publicity. For instance, we declined to reverse convictions due
to midtrial publicity in Faulkner, 17 F.3d at 764, in part
because the judge gave preliminary jury instructions regarding
the need to avoid press reports which were "unusually lengthy and
emphatic," rather than "boilerplate or casual recitations of
standard jury instructions." Faulkner involved a television
newscast on the first day of trial that erroneously reported that
the defendants' first trial had ended in a mistrial caused by
jury tampering. Id. at 763. We noted with favor the judge's
[bermea.004]
29
decision to give the jurors an immediate explanation of the real
reason for the prior mistrial, which was a hung jury, directly
rebutting the allegedly prejudicial statement in the press
report. Id. at 764. Another approach we have favored is the
giving of a blanket instruction to the jury not to view or listen
to any radio or television news broadcasts or to read any
newspapers except as provided by the court, and then to provide
newspapers with any relevant portions redacted from them.
Aragon, 962 F.2d at 445; Harrelson, 754 F.2d at 1163.
The procedures followed by the district judge in the instant
case, however, do not precisely match those used in any of the
precedents cited above. The judge did instruct the jury at the
outset and occasionally throughout the trial not to read or
listen to any media accounts of the case, an instruction we have
favored over the weaker instruction simply to pay no attention to
such accounts. Herring, 568 F.2d at 1105. The frequency of the
jury admonitions is also factor we have considered in deciding
whether an abuse of discretion has occurred. Faulkner, 17 F.3d
at 765. In Aragon, we reversed appellants' convictions due to
midtrial publicity, in part because "a selective prohibition
against reading about the case, done rather quickly and casually
by the court, did not obviate the court's need for inquiry."
Aragon, 962 F.2d at 445 (emphasis added). In the instant case,
the district judge apparently did not repeat his cautionary
instructions each day of the trial, despite the fact that
newspaper accounts of the trial appeared several times while the
[bermea.004]
30
trial was in progress. We observe, however, that the judge did
repeat his instructions on a few occasions; significantly, he
reminded the jury not to forget his "instructions about
newspapers, TV, radio, or discussing the case with anybody" just
before dismissing the jury the very day the prejudicial
television program aired. We presume that a jury heeds its
instructions. United States v. De La Rosa, 911 F.2d 987, 992
(5th Cir. 1990), cert. denied, 500 U.S. 959 (1991).
Additionally, even though the district judge did not conduct
individual voir dire regarding the publicity, he asked the jury
as a whole three times if anyone had been exposed to media
coverage of the case. Two of those inquiries were made
immediately following the two instances of innately prejudicial
publicity that we have already identified, so any contamination
would have fresh in the minds of any jurors that had been exposed
to those accounts. The fact that none of the jurors responded to
the judge's direct questions strongly suggests that no
contamination in fact occurred.
The other factors recognized in the cases have little
bearing on this case. Two defendants were wholly exonerated, and
Perez and Baldemar Bermea were acquitted on one and two counts of
marijuana possession, respectively. Although these mixed
verdicts arguably weigh against finding an abuse of discretion in
the judge's refusal to conduct individual voir dire, Faulkner, 17
F.3d at 764-65, any force this factor might ordinarily carry is
substantially diminished in the instant case by the fact that
[bermea.004]
31
Garcia and Garza, the only defendants to complain about the
midtrial publicity, were not acquitted of any charges. The two-
week length of the instant trial does not militate strongly for
or against reversal, falling as it does between the extremes of
the Aragon case, in which the problematic publicity occurred in
the middle of a two-day trial, and the Faulkner case, in which
the prejudicial broadcast occurred on the first day of a seven-
week trial.
This is a close case, and the more prudent course would have
been for the district judge to conduct the requested voir dire
and perhaps to provide the jurors with newspapers to read each
day with all references to the case expurgated from them.
Considering all of the circumstances, however, we conclude that
the likelihood of actual jury exposure to the innately
prejudicial publicity was so low as to require the conclusion
that no abuse of discretion occurred. The most significant fact
distinguishing this case from Aragon and the other cases finding
reversible error is that the district judge did conduct a sort of
collective voir dire after both instances of innately prejudicial
publicity. The negative response he received on each occasion
strongly indicates that jury exposure did not occur in this case
and supports his discretionary decision that individual voir dire
was unnecessary.
We have found nothing in our cases to support a rule that
midtrial publicity requires individual voir dire even after the
district judge has made a collective inquiry to the jury and
[bermea.004]
32
received no positive response. Indeed, in United States v. Capo,
595 F.2d 1086, 1092-93 (5th Cir. 1979), cert. denied, 444 U.S.
1012 (1980), we rejected a midtrial publicity claim, basing our
decision in part on a collective voir dire of the jury by the
court after the publicity was brought to the court's attention.
As Manzella illustrates, there is no reason to presume, as Garcia
and Garza implicitly would have us do, that jurors would conceal
their exposure to media coverage from a direct inquiry by the
trial judge. Manzella, 782 F.2d at 541-42 (approving the trial
judge's decision to perform collective voir dire first and then
to voir dire individually only the three jurors who indicated
they had seen the publicity). Because the collective voir dire
indicated that no jury contamination occurred, and because
independent factors in this case exist that minimize the
likelihood of contamination such as the district judge's
instructions to the jury and the obscurity of the prejudicial
newspaper account, the district court acted within its discretion
in not performing a more searching examination of the jurors
individually. See United States v. Hyde, 448 F.2d 815, 848 n.38
(5th Cir. 1971) ("[W]hen there has been publicity that would
possibly prejudice the defendant's case if it reached the jurors,
the court should first ask the jurors what information they have
received. Then it should ask about the prejudicial effect and it
should make an independent determination whether the juror's
impartiality was destroyed."), cert. denied, 404 U.S. 1058
(1972); see also United States v. Davis, 583 F.2d 190, 196-98
[bermea.004]
33
(5th Cir. 1978) (finding an abuse of discretion because the trial
judge was aware that all the jurors had been exposed to media
coverage and still performed only cursory collective voir dire
asking whether any panel member felt that his impartiality had
been impaired). The precautions taken by the district court were
sufficient to dispel any serious questions about possible
prejudice.
2. Sequestration and Mistrial
Garza also contends that the district court committed
reversible error by denying his motion for a mistrial due to the
midtrial publicity and by failing to order sequestration of the
jury sua sponte. This court will reverse a district court's
refusal to grant a mistrial only if an abuse of discretion has
occurred. United States v. Limones, 8 F.3d 1004, 1007 (5th Cir.
1993), cert. denied, 114 S. Ct. 1543, and cert. denied, 114 S.
Ct. 1562 (1994). We have already determined that the district
court's decision not to conduct individual voir dire in
connection with the midtrial publicity was not an abuse of
discretion. By the same token, the court's decision not to
declare a mistrial based on the identical publicity was not an
abuse of discretion.
Garza argues that the district court should have sua sponte
ordered sequestration of the jury. His failure to request this
measure in the district court requires him to show that the
court's failure constituted plain error. FED. R. CRIM. P. 52(b)
("Plain errors or defects affecting substantial rights may be
[bermea.004]
34
noticed although they were not brought to the attention of the
court."). The Supreme Court has stated that the courts of
appeals "should correct a plain forfeited error affecting
substantial rights if the error 'seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.'" United States v. Olano, 113 S. Ct. 1770, 1779
(1993) (quoting United States v. Atkinson, 297 U.S. 157, 160
(1936)); see Jeffrey L. Lowry, Note, Plain Error RuleSQClarifying
Plain Error Analysis Under Rule 52(b) of the Federal Rules of
Criminal Procedure, 84 J. CRIM. L. & CRIMINOLOGY 1065, 1072-75
(1994) (discussing the Court's opinion in Olano). This a heavy
burden, and one that we conclude Garza has not met. It is well-
known that sequestration is one of the most burdensome tools of
the many available to assure a fair trial. United States v.
Greer, 806 F.2d 556, 557 (5th Cir. 1986). Even when error has
been preserved, the defendant complaining of a refusal to
sequester must demonstrate a substantial likelihood of prejudice
flowing from the reversal to sequester before we can find an
abuse of discretion. Id. at 557-58.
Given our conclusion that the district court's handling of
the midtrial publicity was not an abuse of discretion, we cannot
conclude that the court's failure to sequester the jury sua
sponte rose to the level of plain error.
IV. EVIDENTIARY RULINGS
[bermea.004]
35
Garcia contends that two of the district court's evidentiary
ruling constituted reversible error. First, he argues that the
court erred by admitting extrinsic offense evidence at trial.
The district court's decision to admit extrinsic offense evidence
under Federal Rule of Evidence 404(b) will not be disturbed
absent a clear showing of abuse of discretion. United States v.
Bruno, 809 F.2d 1097, 1106 (5th Cir.), cert. denied, 481 U.S.
1057 (1987).
The extrinsic offense evidence complained of by Garcia
consisted of certain testimony by Gonzalez that tended to show
that Garcia had been involved in cocaine trafficking with at
least some of the Bermeas prior to the summer of 1988. The
substance of this testimony was that Gonzalez encountered
Guadalupe Bermea in a bar in the summer of 1988. Guadalupe
Bermea complained to Gonzalez that Garcia would not give him $500
that he really needed after he, Baldemar Bermea, and their cousin
Tonio had made Garcia a millionaire. Gonzalez asked Guadalupe
Bermea what he meant, and Bermea responded that he, Baldemar
Bermea, and Tonio had helped Garcia ships 2400 "ki's" of cocaine
to Los Angeles. Later, Gonzalez asked Garcia about the cocaine
trafficking, and Garcia confirmed Guadalupe Bermea's story.
Garcia told Gonzalez that Avalos had concealed the cocaine in the
hull of a fiberglass boat, Villarreal had driven the boat to Los
Angeles, and Guadalupe Bermea, Baldemar Bermea, and Tonio had
also been involved. Before Gonzalez's testimony was elicited in
the presence of the jury, the district judge conferred with the
[bermea.004]
36
attorneys and heard Gonzalez's testimony out of the jury's
presence. The judge overruled all objections to this testimony
and administered a lengthy limiting instruction to the jury
during the testimony to consider the evidence of a defendant's
other violations of law only in determining "the motive, the
opportunity, the preparation, the plan, the knowledge, the
identity, and the state of mind or intent with which the
defendant may haveSQthe defendant did the act charged in the
indictment."
Federal Rule of Evidence 404(b) provides that
[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident[.]
We review alleged violations of Rule 404(b) under the two-pronged
test of United States v. Beechum, 582 F.2d 898, 911 (5th Cir.
1978) (en banc), cert. denied, 440 U.S. 920 (1979). That test
requires us to verify (1) that the evidence of extraneous conduct
is relevant to an issue other than a defendant's character, and
(2) that the evidence possesses probative value that is not
substantially outweighed by its undue prejudice and is otherwise
admissible under Rule 403. Id.
Garcia focuses on the second Beechum prong, contending that
Gonzalez's testimony about the cocaine trafficking was
inadmissible because its prejudicial effect outweighed its
probative value. We have held that the mere entry of a not
guilty plea in a conspiracy case raises the material issue of
[bermea.004]
37
intent sufficiently to justify the admissibility of extrinsic
offense evidence. United States v. Parziale, 947 F.2d 123, 129
(5th Cir. 1991), cert. denied, 112 S. Ct. 1499 (1992); United
States v. Roberts, 619 F.2d 379, 383 (5th Cir. 1980). The second
prong of the Beechum analysis inquires whether Rule 403 has been
satisfied, Beechum, 582 F.2d at 913, and we must take care not to
infringe upon the "broad discretion," Parziale, 947 F.2d at 129,
of the trial court regarding the relevance, probative value, and
prejudicial effect of evidence. Rule 403 tips the balance in
favor of the admission of relevant evidence, permitted exclusion
only if the evidence's probative value is substantially
outweighed by the danger of unfair prejudice. As we observed in
Beechum, similarity between the elements of the extrinsic offense
and those of the charged offense may enhance the probative value
of the extrinsic offense evidence. Beechum, 582 F.2d at 913. At
the same time, a close resemblance between the extrinsic offense
and the charged offense also increases the unfair prejudice to
the defendant. Id. at 915 n.20. It must also be remembered that
the probative value of extrinsic offense evidence is not a
constant; if the government already has a strong case on the
issue of intent, the extrinsic offense evidence may add little to
the government's case and should be excluded more readily. Id.
at 914.
Although Garcia discusses Beechum in his brief at length, he
does not explain how Beechum or any other case offers him solace
on the instant facts; his assertion that the district court not
[bermea.004]
38
only erred in performing the balancing test of Rule 403 but
abused his discretion in so doing is wholly without factual
support. We have frequently held in drug offense cases that
evidence of a defendant's extrinsic drug offenses is admissible.
E.g., Parziale, 947 F.2d at 129; United States v. Harris, 932
F.2d 1529, 1534 (5th Cir.), cert. denied, 112 S. Ct. 270, and
cert. denied, 112 S. Ct. 324 (1991), and cert. denied, 112 S. Ct.
914 (1992). A bald assertion that the probative value of
extrinsic offense evidence was substantially outweighed by its
prejudicial effect does not show an abuse of discretion by the
district court. Parziale, 947 F.2d at 129.
Garcia seems to argue that the district judge committed
reversible error because he did not make a determination out of
the jury's presence that Garcia committed the alleged extrinsic
offense. This proposition is at odds with the Supreme Court's
decision in Huddleston v. United States, 485 U.S. 681, 689
(1988), in which the Court held that the Federal Rules of
Evidence do not require a district court to make a preliminary
finding of fact that an alleged extrinsic offense or act has been
proved by the government by a preponderance of the evidence. If
the court determines, after introduction of the evidence, that
the jury could not reasonably find that the alleged extrinsic act
occurred by a preponderance of the evidence, however, the court
must instruct the jury to disregard the evidence. Id. at 690.
Garcia does not challenge the weight of the evidence supporting
the extrinsic cocaine conspiracy, only the lack of a preliminary
[bermea.004]
39
finding by the court that the extrinsic conspiracy existed.
Because such a finding is not required, his challenge is without
merit.
Garcia also complains of the court's decision admitting
certain evidence seized from his residence in April 1989,
approximately nine months after the end of the first conspiracy.
The court admitted a document showing Pedraza to be the owner of
a truck, an address book containing the names and telephone
numbers of some of Garcia's codefendants, and a piece of paper
listing names and telephone numbers including "Ruben" and
"Onorio." The court did not, we note, admit certain other items
that it deemed insufficiently connected to the case. We are
unable to conclude that the district court's admission of this
evidence constituted an abuse of discretion and therefore reject
Garcia's contention.
V. PROSECUTORIAL MISCONDUCT
Garcia, Garza, Perez, Rodriguez, and Rogelio Bermea contend
that their convictions should be reversed because of
prosecutorial misconduct. A criminal defendant bears a
substantial burden when attempting to show that prosecutorial
improprieties constitute reversible error. United States v.
Diaz-Carreon, 915 F.2d 951, 956 (5th Cir. 1990). Improper
prosecutorial comments require reversal only if the comments
substantially affected the defendant's right to a fair trial.
Id. In evaluating any effect on the right to a fair trial, we
[bermea.004]
40
consider three factors: the magnitude of the prejudicial effect
of the remarks, the efficacy of any cautionary instruction, and
the strength of the evidence of the defendant's guilt. Id. The
misconduct complained of must be examined in the context of the
trial in which it occurred. United States v. Willis, 6 F.3d 257,
264 (5th Cir. 1993). After careful review of the conduct
complained of by the defendants and the trial as a whole, we
conclude that any misconduct did not substantially affect the
defendants' right to a fair trial.
A. FACIAL EXPRESSIONS
First, Rodriguez and Rogelio Bermea complain that the
prosecutor acted sarcastically towards opposing counsel, and
specifically that she made improper facial expressions to the
jury during cross-examination of government witnesses and during
the defendants' closing argument. Only two exchanges between the
court and the defense attorney are quoted in the defendants'
briefs. In each case, although the court did not directly
instruct the jury to disregard the prosecutor's facial
expressions, the court did tell the prosecutor not to behave in
that fashion. The court also observed that the prosecutor's
behavior had actually "been very good in that score." The two
isolated instances cited by the defendants, occurring as they did
during a two-week trial, do not require reversal of the
convictions.
B. CLOSING ARGUMENT
[bermea.004]
41
More serious are the appellants' various charges that the
prosecutor used improper closing arguments. The prosecutor must
abide by certain limitations in making a closing argument; the
prosecutor may not express a personal opinion on the merits of
the case or on the credibility of the witnesses, nor may she
misstate the jury's function or the burden of proof. United
States v. Cantu, 876 F.2d 1134, 1138 (5th Cir. 1989). We review
the specific arguments complained of by the appellants.
Near the beginning of her rebuttal, the prosecutor stated,
Now, Joe Martinez would have you believe that I'm some
kind of plaintiff's attorney and I'm looking for money or
something like that. Ladies and gentlemen, that's not my
job. I represent the people of the United States of
America. My job is to take narcotics traffickers off the
streets.
Two defense attorneys immediately objected, and Perez's attorney
moved for a mistrial, which the court denied. The court remarked
that "all she's saying is that she represents the government
here." Later, the prosector said that Garcia's attorney "talked
about 1692 and the Sixth Amendment and Bill of Rights. And
touching and feeling and love. Ladies and gentlemen, what we
have here is a drug conspiracy before you." Rodriguez and
Rogelio Bermea contend that this comment trivialized the law and
effectively told the jury that the drug conspiracy laws are more
important than the Bill of Rights. Finally, also in her
rebuttal, the prosecutor said, "There's never going to be enough
evidence for a defense attorney." Perez contends that this last
comment impermissibly shifted the burden of proof onto the
defense.
[bermea.004]
42
We accord wide latitude to counsel during closing argument,
and we also give some deference to the district court's
determination regarding the prejudicial or inflammatory nature of
those arguments. Willis, 6 F.3d at 263. Although it is highly
improper for a prosecutor to "invoke his personal status as the
government's attorney or the sanction of the government itself as
a basis for convicting a criminal defendant," United States v.
Goff, 847 F.2d 149, 163 (5th Cir.), cert. denied, 488 U.S. 932
(1988), the district court mitigated the prejudicial effect of
the prosecutor's mention of her status as the government's
attorney by quickly instructing the jury as follows:
Ladies and gentlemen I will give you instructions about the
government's burden and the government's role with regards
to what they have to prove beyond a reasonable doubt and
what one of these attorneys says, including [the
prosecutor], doesn't change that in any way whatsoever.
We also discount Perez's attempt to characterize an isolated
remark by the prosecutor as an effort, much less an effective
one, to shift the burden of proof onto the defense. Taken in
context, the prosecutor's remark that "[t]here's never going to
be enough evidence for a defense attorney" seems to have been
meant only to point out that all defense attorneys will argue
that the evidence against their clients is insufficient, not that
all defendants are guilty. Additionally, just prior to this
comment, the district judge had instructed the jury twice in
quick succession that the burden of proof never shifts from the
government and remains on the government to prove guilt beyond a
reasonable doubt.
[bermea.004]
43
Garcia and Garza add complaints about a few other
prosecutorial arguments during rebuttal. The prosecutor attacked
several of the defense attorneys for failing to explain the few
pieces of non-testimonial evidence against their clients and for
adopting the strategy of attacking the character of the main
government witnesses. Garcia and Garza contend that these
comments were, at a minimum, indirect references to the
defendants' failure to testify. Of course, both direct and
indirect comments on a defendant's decision not to testify
constitute violations of the Fifth Amendment's guarantee against
compulsory self-incrimination. United States v. Forrest, 620
F.2d 446, 455 (5th Cir. 1980). Certainly the prosecutor could
have summarized the evidence in a way less likely to focus the
jury's attention on the defendants' decisions not present any
evidence of their own, but merely calling attention to the fact
that the government's evidence has not been rebutted or explained
is not automatically a comment on a defendant's failure to
testify. United States v. Pitre, 960 F.2d 1112, 1124 (2d Cir.
1992); United States ex rel. Adkins v. Greer, 791 F.2d 590, 598
(7th Cir.), cert. denied, 479 U.S. 989 (1986). The district
judge certainly did not interpret the prosecutor's comments as
violative of the guarantee against self-incrimination; on several
occasions he responded to defense objections by reminding the
jury simply that the burden of proof remained with the
government, regardless of the prosecutor's arguments. To hold
that a prosecutor's comment is a comment on the defendant's
[bermea.004]
44
failure to testify, we must conclude that the prosecutor's
manifest intention was to comment on that failure or that the
comment was such that the jury would naturally and necessarily
take it to be such a comment. United States v. Dula, 989 F.2d
772, 776 (5th Cir.), cert. denied, 114 S. Ct. 172 (1993). We
think this conclusion is not warranted on this record; the
judge's instructions would lead the jury away from placing such a
construction on the prosecutor's remarks, and in any event the
final jury instruction offset any harm by informing the jury that
"no inference whatever may be drawn from the election of a
defendant not to testify."
Garcia also argues that the prosecutor personally vouched
for the credibility of Gonzalez by asserting that government
informants are fired if they are found to have lied to law
enforcement officers. This argument is meritless. Because no
objection to this argument was made, we review only for plain
error, which we find lacking. The record makes it plain that the
prosecutor merely repeated the testimony of agent Alvarez and did
not assert outside knowledge of this policy or of Gonzalez's
honesty.1 See United States v. Carter, 953 F.2d 1449, 1461 (5th
Cir.) (rejecting a claim based on a prosecutor's praise of DEA
agents for their bravery in part because the prosecutor did not
imply outside knowledge of their bravery, much less of their
1 Garcia's attorney quotes the offending comment in his
brief but conveniently omits the portion that makes it clear that
the prosecutor is only restating agent Almarez's testimony. Such
tactics do not enhance counsel's credibility with this court.
[bermea.004]
45
truthfulness), cert. denied, 112 S. Ct. 2980 (1992). Nor do we
accept Garcia's contention that the prosecutor made improperly
inflammatory pleas for the jury to act as the conscience of the
community. To the extent that she made such a plea, the district
judge responded to a defense objection by instructing the jury to
consider only the guilt of the individual defendants and not any
possible effects of the verdicts on the defendants or anyone
else. This was adequate to cure any error.
Garza raises one other argument regarding the prosecutor's
closing argument that is specific to him. Additional background
facts must be recounted in order for us to address his claim.
A search warrant was executed on Garza's residence in April
1989. Among the materials seized was a certificate of deposit
(CD) dated August 23, 1988, in the amount of $90,000. This CD
was admitted into evidence near the end of the trial, along with
some of Garza's income tax returns stating that his adjusted
gross income in both 1987 and 1988 was about $23,000. The
government's purpose in introducing this evidence, plainly, was
to imply Garza's involvement in the drug conspiracies by
highlighting the disparity between his declared income and his
actual wealth. The prosecutor explicitly drew the connection
between the July 1988 drug transaction near Giddings and the
purchase of the CD in August 1988 in her closing argument. In
his motion for new trial, Garza claimed that the government knew
before trial that the money used to purchase the CD did not come
from drug transactions, and he attached a DEA report (referred to
[bermea.004]
46
as a "DEA-6") from May 1989 stating that some $87,000 of the
money Garza used to buy the CD came from two checks, one from a
Mexican bank and the other from "Merill [sic] Lynch,
Pierce/Fender [sic] and Smith Incorporated" in McAllen, Texas.
Garza argues that the prosecutor's argument based on the CD
was improper because his defense attorney was unaware that the
government knew about the source of the funds and nevertheless
planned to make a jury argument inviting the inference that the
CD was bought with drug proceeds. He also contends that the
government withheld the DEA-6 despite his pretrial requests for
exculpatory evidence. Garza relies on our opinion in United
States v. Anderson, 574 F.2d 1347 (5th Cir. 1978), in which we
stated that "the knowing use by the prosecution of false evidence
or perjured testimony which is material to the issues in a
criminal trial is a denial of due process. A conviction obtained
by the use of such evidence cannot be permitted to stand." Id.
at 1355 (footnotes omitted).
The government responds that Garza's claim is without merit
because the prosecutor made no false statements in her closing
argument. As the district court observed during the hearing on
Garza's motion for new trial, the DEA-6 does not show that the
money Garza used to purchase the CD was legitimately acquired,
much less that the government knew that the money was
legitimately acquired. Indeed, the DEA-6 does not even eliminate
the possibility that Garza used the money from the Giddings drug
sale (or from some other drug transaction), filtered through
[bermea.004]
47
financial institutions, to buy the CD. The inference to be drawn
from the disparity between Garza's income and his wealth is thus
not negated by the DEA-6. Garza has not shown that the
prosecutor's comments were based on false evidence. In any
event, Anderson requires reversal only if the prosecution's use
of false evidence creates a reasonable likelihood that the jury's
verdict might have been different. Id. at 1356. We find no such
likelihood on these facts.
Taking the trial as a whole, we conclude that the
prosecutor's closing argument does not cast "serious doubt,"
Willis, 6 F.3d at 263, upon the correctness of the jury verdict
or the fairness of the trial.
C. MISCELLANEOUS COMPLAINTS
Rodriguez makes two other complaints about the prosecutor's
conduct in the instant case that are without merit. He contends
that his counsel requested the prosecution to produce the photo
array from which Rodriguez was apparently identified, that the
court granted his request, and that the prosecutor disobeyed the
court's direction by refusing to provide the array. We have
reviewed the pertinent portion of the record and found that the
court directed the prosecutor and Rodriguez's defense counsel to
confer (apparently out of court) and report back to the court if
there was still any disagreement. The district judge told the
attorneys that if they did not bring the matter to his attention
again "the Court will assume that that's been taken care of."
Rodriguez does not call our attention to any subsequent hearing
[bermea.004]
48
on the matter, so we cannot conclude that this incident involved
any prosecutorial misconduct.
Rodriguez's other complaint is that the government used the
indictment process in a matter that constituted prosecutorial
misconduct. We believe that this claim is more properly analyzed
under the speedy trial rubric, which Rodriguez also invokes.
VI. SPEEDY TRIAL AND APPELLATE DELAY
A. SPEEDY TRIAL ACT
Rodriguez contends that the district court erred in
overruling his motion to dismiss the third superseding indictment
by reason of delay. We review the facts supporting a Speedy
Trial Act ruling using the clearly erroneous standard and the
legal conclusions de novo. United States v. Ortega-Mena, 949
F.2d 156, 158 (5th Cir. 1991).
Rodriguez was first named as a defendant (under the name
Lencho Ramirez) in the superseding indictment filed on April 23,
1991, and he was arrested and made his initial appearance on May
1, 1991. A new superseding indictment (apparently the third
superseding indictment in the case), was filed on November 26,
1991. At the arraignment on this indictment, which took place on
December 3, 1991, the presiding magistrate judge noted that the
only change wrought by new indictment was to expand the alleged
length of each conspiracy. Although the government claims that
Rodriguez did not move to dismiss the new indictment, the record
belies this assertion; on December 16, 1991, Rodriguez filed a
[bermea.004]
49
motion to dismiss by reason of delay. This motion was denied
after a hearing on January 3, 1992. Trial commenced, as we have
noted, on January 15, 1992.
The Speedy Trial Act requires that criminal defendants be
tried "within seventy days from the filing date . . . of the
information or indictment, or from the date the defendant has
appeared before a judicial officer of the court in which such
charge is pending, whichever date last occurs." 18 U.S.C. §
3161(c)(1). The seventy-day clock will be tolled during certain
delays enumerated in § 3161(h). Under § 3161(h)(1)(F), the clock
is tolled during any "delay resulting from any pretrial motion,
from the filing of the motion through the conclusion of the
hearing on, or other prompt disposition of, such motion." The
government contends that this provision negates Rodriguez's
speedy trial argument.
The Supreme Court has held that § 3161(h)(1)(F) tolls the
speedy trial clock during all delays between the filing of a
motion and the conclusion of the hearing on that motion,
regardless of whether the delay in holding that hearing is
"reasonably necessary." Henderson v. United States, 476 U.S.
321, 330 (1986). This indefinite exclusion is limited, however,
by § 3161(h)(1)(J), which limits to thirty days an exclusion
"reasonably attributable to any period . . . during which any
proceeding concerning the defendant is actually under advisement
by the court." Once a hearing has been held on a motion and all
necessary additional materials submitted to the court, or once a
[bermea.004]
50
motion not requiring a hearing is filed along with necessary
supporting materials, § 3161(h)(1)(J) limits the excluded period
to thirty days. See Henderson, 476 U.S. at 329 (noting that
district courts cannot use § 3161(h)(1)(F) to circumvent the
thirty-day limit of § 3161(h)(1)(J)). The fact that pretrial
motions are pending, standing alone, does not necessarily toll
the speedy trial clock indefinitely; the motions must require a
hearing under § 3161(h)(1)(F) if indefinite tolling is to occur.
See generally United States v. Johnson, --- F.3d ---, manuscript
op. at 4-6 (5th Cir. Aug. 9, 1994) (No. 93-8875) (providing an
overview of the proper interplay between §§ 3161(h)(1)(F) and
(J)).
It appears that we have implicitly agreed with the several
circuits that have consistently interpreted § 3161(h)(7) to
provide that all defendants who are joined for trial generally
fall within the speedy trial computation of the latest
codefendant and that the excludable delay of one codefendant may
be attributed to all defendants. United States v. Neal, 1994 WL
381985 (5th Cir. July 21, 1994) (No. 90-1957) (holding that the
clock was tolled from the day the last-arraigned defendant
appeared before a judicial officer because "[a]t that time,
several Defendants already had filed pretrial motions, and
pretrial motions of some type remained pending [for over two
years]."); see also United States v. Arbelaez, 7 F.3d 344, 347
(3d Cir. 1993); United States v. Butz, 982 F.2d 1378, 1381 (9th
Cir.) (observing that the First, Second, Sixth, Eighth, and
[bermea.004]
51
District of Columbia Circuits also follow this interpretation),
cert. denied, 114 S. Ct. 250 (1993); United States v. Mendoza-
Cecelia, 963 F.2d 1467, 1477 (11th Cir.), cert. denied, 113 S.
Ct. 436 (1992); United States v. Tanner, 941 F.2d 574, 580 (7th
Cir. 1991), cert. denied, 112 S. Ct. 1190 (1992). The filing of
a superseding indictment does not affect the speedy trial clock
for offenses charged in the original indictment or any offense
required to be joined under double jeopardy principles. United
States v. Gonzales, 897 F.2d 1312, 1316 (5th Cir. 1990), cert.
denied, 498 U.S. 1029 (1991). The clock continues to run from
the original indictment or arraignment, whichever was later, and
all speedy-trial exclusions apply as if no superseding indictment
had been returned. Id. This prevents the government from
circumventing the speedy-trial guarantee through the simple
expedient of obtaining superseding indictments with minor
corrections. However, motions pending on the charges in the
previous indictment continue to toll the clock after the
superseding indictment is returned if some of the original
charges are retained. Id. at 1316-17.
The government relies principally on the James2 motions
filed by Rodriguez's codefendants before Rodriguez himself was
indicted to toll the speedy trial clock. The record contains a
pretrial ruling by the district court filed on March 4, 1991, in
which the court ordered James motions by Garza, Pedraza, Baldemar
2 United States v. James, 590 F.2d 575 (5th Cir.) (en banc),
cert. denied, 442 U.S. 917 (1979).
[bermea.004]
52
Bermea, and Guadalupe Bermea to be carried with the case until
trial. The district court ruled on the defendants' James motions
at trial after the close of the government's evidence on January
27, 1992.3 The Eleventh Circuit has specifically held that James
motions will toll the speedy trial clock until trial if the
hearing is deferred until trial. United States v. Phillips, 936
F.2d 1252, 1254 (11th Cir. 1991); United States v. Garcia, 778
F.2d 1558, 1562 (11th Cir.), cert. denied, 477 U.S. 906 (1986).
It appears, however, that we have never specifically so held in
this circuit. In Johnson, we held that a pending James motion
that was never argued or ruled upon, even at trial, did not toll
the speedy trial clock beyond the thirty days permitted by §
3161(h)(1)(J). Id., manuscript op. at 10-11. We recognized that
the result might have been different had the trial court held a
hearing on the James motion immediately before or during trial.
Id., manuscript op. at 9 n.8.
We must decide the question left open in Johnson in the
instant case because other pretrial motions and continuances did
not sufficiently toll Rodriguez's speedy trial clock to bring him
within the seventy-day limit. Several of Rodriguez's
3 The court denied the James motions. Avalos and Garza make
bald assertions that this ruling was in error, but we need not
address claims unsupported by argument. United States v.
Ballard, 779 F.2d 287, 295 (5th Cir.), cert. denied, 475 U.S.
1109 (1986). In any event, the government satisfied its burden
under Federal Rule of Evidence 801(d)(2)(E) to show by a
preponderance of the evidence that the alleged conspiracies
existed, Bourjaily v. United States, 483 U.S. 171, 176 (1987),
thereby rendering the coconspirator statements complained of
admissible.
[bermea.004]
53
codefendants filed motions to suppress evidence prior to
Rodriguez's initial appearance. These motions were ultimately
heard on September 10, 1991, and the district court denied the
last motion to suppress on September 12, 1991. Rodriguez's
speedy trial clock thus could not have started to run until
September 13, 1991. It did not, however, because Avalos filed a
motion in limine on September 11, 1991, which tolled the clock
for at least thirty days under §§ 3161(h)(1)(F) and (J).
According to the government, the district judge carried this
motion to trial and ruled on it on the first day of the trial.
Our review of the record, however, shows that the motion was
mentioned at the beginning of the trial, but we find no ruling on
the motion in the portion of the record cited by the government.
Giving Rodriguez the benefit of the doubt, we will presume that
the motion in limine tolled the clock for only thirty days. In
any event, Rogelio Bermea obtained a continuance, granted by the
court under the "ends of justice" provision of the Speedy Trial
Act, § 3161(h)(1)(8), on September 23, 1991, resetting the trial
for October 15, 1991. Trial did not actually begin then, and the
next pre-trial motion cited by the government was Rodriguez's own
motion to dismiss by reason of delay, filed December 16, 1991.
Sixty-one days lapsed between October 15 and December 16, 1991.
The motion to dismiss tolled the clock until January 3, 1992,
when the motion was denied. Nine more days lapsed before the
government filed a motion in limine on January 13, 1992. If we
do not consider the James motions in our calculus, seventy non-
[bermea.004]
54
excludable days lapsed before trial began on January 15, 1992,
and the Speedy Trial Act was violated.
We have observed that pending motions carried for hearing
just before or during trial will toll the speedy trial clock
indefinitely. United States v. Santoyo, 890 F.2d 726, 728 (5th
Cir. 1989), cert. denied, 495 U.S. 959 (1990). In Santoyo, we
held that a defendant's motion in limine tolled the clock for
some eight months, even though the district court carried the
motion for hearing during trial soon after the motion was filed.
Id. at 728. In United States v. Welch, 810 F.2d 485, 488 (5th
Cir. 1987), we held that a defendant's motion to sever tolled the
clock for almost two years in the absence of any showing that the
defendant had unsuccessfully attempted to receive a hearing. In
Johnson, we left open the question of whether James motions
carried until and actually ruled upon during trial could toll the
speedy trial clock throughout their pendency. Johnson,
manuscript op. at 9 n.8. Confronted with such a case, we agree
with the Eleventh Circuit's decisions in Phillips and Garcia.
We conclude that the pendency of Rodriguez's codefendants'
James motions tolled the speedy trial clock throughout
Rodriguez's prosecution because they were ultimately heard and
ruled upon during trial. His Speedy Trial Act claim is therefore
without merit.
B. APPELLATE DELAY
Garza contends that the delay that has occurred between his
conviction and the consideration of his appeal has denied him due
[bermea.004]
55
process. He was convicted in January 1992 and sentenced in May
1992; it appears that his request for the appellate record was
not met until some time after June 8, 1993, when Garza's attorney
contacted the clerk of this court inquiring into the reasons for
the delay. At the time Garza filed his original brief with this
court, he asserts, he had already been incarcerated for some
twenty-two months.
In Rheuark v. Shaw, 628 F.2d 297, 302 (5th Cir. 1980), cert.
denied, 450 U.S. 931 (1981), a civil rights action, we recognized
that a state could violate due process if it substantially
delayed the appellate process it provided for convicted criminal
defendants. See id. (assuming without deciding that a delay of
almost two years between the filing of a notice of appeal and the
state's preparation of the appellate record exceeds the limits of
due process). The Ninth Circuit has recognized that "'extreme
delay in the processing of an appeal may amount to a violation of
due process'" in the context of federal criminal cases. United
States v. Tucker, 8 F.3d 673, 676 (9th Cir. 1993) (en banc),
cert. denied, 114 S. Ct. 1230 (1994). The factors set forth in
Barker v. Wingo, 407 U.S. 514, 530 (1972), guide our inquiry.
Thus, we must consider the length of the delay, the reasons for
the delay, the defendant's assertion of his right to appeal, and
the prejudice to the defendant occasioned by the delay. Tucker,
8 F.3d at 676; Rhueark, 628 F.2d at 303 n.8. In the appellate
context, we evaluate the fourth factor by focusing on three types
of possible prejudice from appellate delay: (1) oppressive
[bermea.004]
56
incarceration pending appeal, (2) the anxiety and concern of the
convicted party awaiting the outcome of the appeal, and (3)
impairment of the convicted party's grounds for appeal or the
viability of his defenses in the event of retrial. Tucker, 8
F.3d at 676; Rhueark, 628 F.2d at 303 n.8.
We cannot ascertain with precision the length of the delay
in the instant case. Garza filed his notice of appeal in May
1992. His record excerpts contain a letter to the clerk of our
court indicating that Garza's attorney had not yet received the
record in early June 1993. According to the government, however,
the record was forwarded to this court on May 14, 1993. Garza
filed his original brief on October 4, 1993, so in any event less
than a year and a half passed between the filing of his notice of
appeal and his receipt of the record. Although this delay is
unfortunate, it is not so excessive as to militate strongly in
Garza's favor. See Tucker, 8 F.3d at 674 (affirming Tucker's
conviction despite a delay of over three years between Tucker's
notice of appeal and the completion of the trial transcript).
Moreover, we do not believe that Garza has satisfied the
prejudice prong of the test, which has been identified as the
most important factor in the analysis. Id. at 676. The only
claim of prejudice that Garza makes is that he fears the
government may destroy certain exculpatory evidence that it did
not provide to him before trial. This claim is not persuasive;
even if it were, it is not clear that the delay complained of by
Garza is at all connected with the prejudice he asserts. See
[bermea.004]
57
Rhueark, 628 F.2d at 303 n.8 (observing that the loss of defense
witnesses is one type of possible prejudice from appellate
delay). We reject Garza's due process claim.
VII. JUDICIAL MISCONDUCT
Perez and Garza both complain of judicial misconduct giving
the appearance of partiality towards the prosecution. Perez
styles his complaint as a due process claim, while Garza argues
that the judge's conduct deprived him of the effective assistance
of counsel. In both cases, our role is to determine whether the
judge's behavior was so prejudicial that it denied Perez a fair,
as opposed to a perfect, trial. Williams, 809 F.2d at 1086
(citing United States v. Pisani, 773 F.2d 397, 402 (2d Cir.
1985)). To rise to the level of constitutional error, the
district judge's actions, viewed as a whole, must amount to an
intervention that could have led the jury to a predisposition of
guilt by improperly confusing the functions of judge and
prosecutor. United States v. Samak, 7 F.3d 1196, 1197-98 (5th
Cir. 1993); United States v. Davis, 752 F.2d 963, 974 (5th Cir.
1985); United States v. Gomez-Rojas, 507 F.2d 1213, 1223-24 (5th
Cir.), cert. denied, 423 U.S. 826 (1975). The judge's
intervention in the proceedings must be quantitatively and
qualitatively substantial to meet this test. Davis, 752 F.2d at
974.
In his brief, Perez recounts numerous episodes from the
trial that he contends illustrate the plain appearance of
[bermea.004]
58
judicial bias on the part of the district judge. First, the
judge interrupted Perez's attorney several times during his
opening statement. Next, Perez claims that the judge showed a
pattern of bias in favor of the prosecution by sustaining
objections before the prosecution even made them. On several
occasions, according to Perez, the judge even rehabilitated
government witnesses Gonzalez, Gomez, and Solis during the
defendants' cross-examination of those witnesses. The judge
frequently explained his decision to intervene in the questioning
in terms of his concern for efficiency and clarity, and the
government stresses the district judge's authority to control the
tone and tempo of a trial and to elicit additional information
from witnesses if he believes it would benefit the jury. United
States v. Rodriguez, 835 F.2d 1090, 1094 (5th Cir. 1988).
We begin by dismissing Perez's complaint based on the
district judge's occasionally peremptory style of sustaining
prosecution objections. Contrary to Perez's suggestion, the
trial judge was not in the habit of sustaining prosecution
objections without any prompting from the prosecutor herself.
Although the judge did sustain several prosecution objections
without waiting to hear their legal bases, he generally acted
only after the prosecutor had interrupted defense questioning by
standing and addressing the court. Additionally, although the
frequency of a court's interruptions of defense counsel is
significant, the nature of those interruptions is more pertinent
to our inquiry. Williams, 809 F.2d at 1087. Given the numerous
[bermea.004]
59
defendants in this case, the district judge's intervention was
helpful in keeping the proceedings moving forward and preventing
repetition. Moreover, his manner toward the defendants in
sustaining these objections was not such as would suggest any
departure from neutrality. Nor do we fault the judge's
interruption of the opening statement by Perez's counsel, as it
appears that the judge intervened simply to prevent counsel from
straying into the mode of closing argument.
We next consider the judge's occasional colloquies with
government witnesses during cross-examination. When one defense
attorney asked Gonzalez if he was the primary source of
information for the government agents, Gonzalez answered yes and
the prosecution objected. The following exchange occurred:
THE COURT:
Objection sustained. How do you know that?
Have they told you everybody that they talk
to?
GONZALEZ:
No, sir, I'm sorry.
THE COURT:
Well, then, howSQwhat do you base that answer
on?
GONZALEZ:
Well, he askedSQ
THE COURT:
Why don't you listen to the questions here?
GONZALEZ:
Yes, sir.
THE COURT:
He asked you if you were the primary source
of the agents. And your answer is what? Are
you? And if you are, and you say yes, how do
you know that?
GONZALEZ:
I don't know that.
THE COURT:
Well, then, why did you say yes?
GONZALEZ:
I didn't stop to think, sir.
[bermea.004]
60
THE COURT:
Well, you need to.
GONZALEZ:
Yes, sir. Thank you.
Although Perez styles this exchange as rehabilitation of the
witness by the court, we find it difficult to perceive how the
defense was harmed by the court's tongue-lashing of one of the
prosecution's key witnesses. The exchange, which concerned a
truly collateral question and answer, seems unlikely to impress a
jury with the judge's partiality to the prosecution's cause.
Perhaps more problematic was the following exchange between
the court and government witness Gomez. During cross-
examination, Gomez appears to have testified (although his
testimony is somewhat confusing) that his wife and children had
occasionally accompanied a drug-runner named Javier Garcia during
previous operations. When asked by defense counsel why he sent
his wife and children with Garcia, Gomez answered, "That was
stupid on my side." Counsel asked if Gomez did it as a favor,
but the judge interrupted and the following conversation took
place:
THE COURT:
Well, it's stupid, but the reason that you do
something like that is because you want
people to think that this is an innocent
situation, isn't that right?
GOMEZ:
That's correct.
THE COURT:
Children are used in that situation. It
pretends like it's a family outing. Isn't
that sometimes the practice that's carried
out?
GOMEZ:
That's correct, Your Honor.
THE COURT:
And that women are less likely to be
suspected if they have children with them?
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61
GOMEZ:
That's correct, Your Honor.
THE COURT:
And that's the reason that you allowed this
to happen, and it was planned that way?
GOMEZ:
That's correct. I regret it, though.
In Perez's view, this colloquy was highly prejudicial because it
made the behavior testified to by the witness appear to be
normal; apparently Perez would have preferred to leave Gomez's
testimony about the involvement of his wife and children
unexplained and thus, presumably, less believable. We do not
believe, however, that any substantial prejudicial effect accrued
from the judge's intervention. It bears repeating that the
district judge "may question witnesses and elicit facts not yet
adduced or clarify those previously presented." Williams, 809
F.2d at 1087 (citation omitted) (emphasis added).
Government witness Solis was cross-examined extensively
about his 1989 guilty plea in federal district court for his role
in transporting marijuana during the second conspiracy. Solis
testified that when he pleaded guilty he did not tell the court
about the involvement of his coconspirators, and Perez's defense
counsel got Solis to admit that he had probably lied under oath
in so doing. Later, Rogelio Bermea's attorney returned to this
subject and tried to get Solis to admit that he had been under
oath each time he met with the judge before whom he had pleaded
guilty. At this point the district judge intervened and asked
Solis if he had been placed under oath only at the time of his
plea and not at sentencing, to which Solis agreed. The judge
went so far as to "take judicial notice of the fact that when we
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62
sentence individuals we don't place them under oath." Again,
this appears to have been a rather collateral matter, and the
judge's intervention seems designed to clarify the witness's
somewhat confused testimony about events three years earlier
rather than to bolster the prosecution's case or to convey to the
jury a desire to thwart the defense's efforts. During cross-
examination by still a third defense attorney, the judge again
interrupted to explain the normal procedures followed at
sentencing when Solis had difficulty remembering. We do not
consider the judge to have overstepped his role in ensuring the
clarity of the evidence for the jury's scrutiny. Even though the
judge arguably cut off a possible avenue of impeachment, the
value of impeaching Solis on the intricacies of the procedures
attendant to a guilty plea could not have been great. The manner
in which the judge undertook the explanation was not overtly
hostile to the defense or favorable to the prosecution.
Finally, Perez complains that the district judge actively
rehabilitated Solis after Garza's defense attorney got Solis to
contradict his previous testimony regarding letters Solis had
sent to the Bermeas from jail asking for money. After Solis
admitted that he had lied on the previous day during his
testimony, the judge stepped and asked Solis why he had lied;
Solis then retreated and said he had simply gotten confused. We
do not consider this incident sufficiently egregious to warrant
reversal. As the judge noted, Solis's testimony the previous day
had been elicited by the judge himself, and that testimony was
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63
more equivocal than Garza's attorney represented in his cross-
examination; the judge was therefore within his prerogative to
clarify the proceedings for the benefit of the jury. In any
event, the jury witnessed Solis's self-contradiction to the
extent it actually occurred and could use that fact in assessing
his credibility if it chose to do so.
Additionally, we note that the district judge took care to
give an accurate jury instruction regarding his role in the
proceedings. He observed that he had occasionally made comments
to the lawyers and asked questions of the witnesses, and he
instructed the jury not to assume from any of his actions that he
had any opinion about the facts of the case. The judge went on
to state, "Except for my instructions to you on the law, you
should disregard anything I may have said or done during the
course of the trial, in arriving at your findings as to the
facts." We have held that a curative instruction such as this
one can operate against a finding of constitutional error.
Samak, 7 F.3d at 1198 (citing Davis, 752 F.2d at 975).
Having reviewed all the incidents complained of by Perez in
the context of the entire trial and jury instructions, we
conclude that the district judge's actions in handling the trial
did not stray so far from neutrality as to cast any doubt on the
ability of the jury to consider Perez's case without a
predisposition towards a finding of guilt. The intervention that
did occur was not such as would have caused jury confusion
regarding the roles of judge and prosecutor.
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64
Garza contends that the judge prevented his defense counsel
from effectively cross-examining and impeaching the government's
witnesses on several occasions. Having reviewed the pertinent
portions of the record, we are in general agreement with the
government that the district judge for the most part intervened
only when necessary to prevent repetition and that Garza's
attempts to impeach the government witnesses were not unduly
hampered. Garza complains that he was not allowed to publish to
the jury a signature he procured from Solis during trial for
purposes of comparison, but the judge simply held that defense
exhibit along with all other exhibits for the jury's inspection
when they began deliberating. Finally, Garza complains of
Solis's testimony that Solis's brother had told him that Garza
wanted to pay Solis not to testify, but as the district judge
pointed out at the time it was Garza's own attorney that
inadvertently coaxed Solis to testify in this manner. The
incident did not involve judicial misconduct. Garza's judicial
misconduct complaints are without merit.
VIII. SEVERANCE
Rodriguez and Rogelio Bermea contend that they were
improperly joined in the same indictment as their codefendants
and that the district court erred in denying their motions for
severance. They have waived any argument, however, that their
joinder was improper under Federal Rule of Criminal Procedure
8(b). We have noted that a claim of misjoinder under Rule 8 is
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65
conceptually distinct from a claim that the district court should
have granted a severance under Rule 14. Manzella, 782 F.2d at
540. Neither appellant has provided a citation to the portion of
the record (assuming that one exists) in which the misjoinder
argument was presented to the district court. Typically, we will
not consider on appeal matters not presented to the trial court.
Quenzer v. United States (In re Quenzer), 19 F.3d 163, 165 (5th
Cir. 1993). In any event, Rodriguez and Rogelio Bermea do not
argue that they were misjoined in the argument sections of their
briefs, but instead confine their arguments to the district
court's denial of their motions for severance. We will confine
ourselves to the severance argument actually presented in their
briefs. United States v. Ballard, 779 F.2d 287, 295 (5th Cir.),
cert. denied, 475 U.S. 1109 (1986). Garza also makes a argument
that he was entitled to a severance; his complaint, however,
focuses on the joint trial of the two conspiracy charges against
him rather than on the joint trial of all the defendants in this
case.
We review the denial of a motion for severance for abuse of
discretion. United States v. Castro, 15 F.3d 417, 422 (5th Cir.
1994), petition for cert. filed (U.S. May. 27, 1994) (No. 93-
9334); United States v. Arzola-Amaya, 867 F.2d 1504, 1516 (5th
Cir.), cert. denied, 493 U.S. 933 (1989). If defendants have
been properly joined, the district court should grant a severance
only if there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants or
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66
prevent the jury from making a reliable determination of guilt or
innocence. Zafiro v. United States, 113 S. Ct. 933, 938 (1993);
Castro, 15 F.3d at 422. Any prejudice created by a joint trial
can generally be cured through careful jury instructions.
Castro, 15 F.3d at 422.
A. RODRIGUEZ AND ROGELIO BERMEA
Rogelio Bermea does not persuade us that any of his specific
trial rights were compromised by the joint trial or that the jury
was prevented from making a reliable determination of his guilt
or innocence. He cites only two incidents of the joint trial as
probative of prejudice to his defense. First, he complains that
Garza's defense counsel prejudiced his trial rights by spending a
large part of his cross-examination "on restating testimony
against Rogelio Bermea." Even if this were true, we would be
hard-pressed to find any great prejudice against Rogelio Bermea
from this fact alone; in any event, our review of the record
belies this assertion. Second, Rogelio Bermea argues that he was
greatly prejudiced by being tried jointly with three family
members (including Eleazar Bermea, who pleaded guilty during the
trial). As we have already seen, however, the jury was able to
draw distinctions among the Bermea defendants, acquitting
Baldemar Bermea of two of the three counts against him. The
district judge, we also note, was careful to require the
prosecution to specify which Bermea was being discussed by
government witnesses during their examinations. The jury
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67
instructions also reduced any prejudice to Rogelio Bermea from
the joint trial.4
Rodriguez complains that he was prejudiced by the joint
trial because of the tactics adopted by counsel for his
codefendants. He cites an exchange between Gonzalez and Rogelio
Bermea's defense counsel in which Bermea's counsel expressed
disgust with Gonzalez's profession and asked Gonzalez if he was a
"sneaky, sleazy liar" as leaving the jury with the impression
that the defense table was in complete disarray. He also
complains about an objection made by Garza's defense attorney
during his own counsel's closing argument. These incidents,
however, were minor when viewed in the context of the whole
record and did not put Rodriguez's trial rights at serious risk.
The objection to Rodriguez's counsel's closing argument, in
particular, was harmless because his counsel was merely prevented
from showing the jury a copy of a report from a law enforcement
agency, and not from arguing the contents of that report.
Rodriguez also focuses on language in Zafiro in which the
Court recognized that "[w]hen many defendants are tried together
in a complex case and they have markedly different degrees of
culpability, th[e] risk of prejudice is heightened." Zafiro, 113
4 Rogelio Bermea also raises a claim of ineffective
assistance of counsel. We conclude that this case is appropriate
for application of the general rule in our circuit that such
claims cannot be resolved on direct appeal unless first raised in
the district court. United States v. McCaskey, 9 F.3d 368, 380
(5th Cir. 1993), cert. denied, 114 S. Ct. 1565 (1994). The
record is not sufficiently developed with respect to the merits
of the claim to justify an exception. Bermea remains free to
pursue his claim in accordance with 28 U.S.C. § 2255.
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68
S. Ct. at 938. We reject this argument as well. This case,
although involving numerous defendants, did not involve
particularly complex facts. Nor does Rodriguez's alleged lesser
involvement in the drug trafficking mandate severance. Both
Gomez and Gonzalez testified that Rodriguez substantially
participated in the July 1988 shipment of marijuana for Garcia,
and the evidence against Rodriguez was not significantly less
than the evidence against some of the other defendants involved
in that transaction. In any event, "a quantitative disparity in
the evidence 'is clearly insufficient in itself to justify a
severance.'" United States v. Pofahl, 990 F.2d 1456, 1483 (5th
Cir.) (citation omitted), cert. denied, 114 S. Ct. 266, and cert.
denied, 114 S. Ct. 560 (1993). Nor do we find any "spillover
effect" severe enough to warrant reversal. Rodriguez complains
of certain extrinsic offense evidence admitted at trial regarding
an earlier cocaine-trafficking conspiracy involving Garcia,
Guadalupe and Baldemar Bermea, Avalos, and others. Rodriguez was
not mentioned in connection with this scheme, however, and we
presume that the jury followed its instructions to consider the
case against each defendant "separately and individually." See
id. at 1483 & n.36.
We conclude that any prejudice suffered by Rogelio Bermea
and Rodriguez as a result of the joint trial was not substantial
enough to warrant a finding of abuse of discretion. Moreover,
any prejudice was sufficiently cured by the district court's
instructions to the jury.
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69
B. HONORIO GARZA
Garza complains that the district court abused its
discretion by refusing to sever the two conspiracy counts against
him. We may reverse only on a showing of clear prejudice from
the court's decision. United State v. Fortenberry, 914 F.2d 671,
675 (5th Cir.), reh'g denied with opinion, 919 F.2d 923 (5th Cir.
1990), cert. denied, 499 U.S. 930 (1991). "Clear prejudice may
result when the jury is unable to separate the evidence and apply
it to the proper offenses, or where the jury might use the
evidence of one of the crimes to infer criminal disposition to
commit the other crimes charged." Id. Garza contends that the
similarities between the two conspiracies created a high
probability of jury confusion, as well as a strong possibility
that the jury would use the stronger evidence connecting Garza
with the first conspiracy to convict him of the second as well.
We reject Garza's contention. Although the conspiracies
were quite similar in many respects, they were distinct in time
and involved different participants. As our statement of the
facts, supra Part I.A, illustrates, the evidence at trial was
fairly easy to separate as relevant to either one conspiracy or
the other. Jury confusion was not unusually likely. The
district judge carefully instructed the jury that "[e]ach offense
and the evidence pertaining to it should be considered separately
and individually." The mixed verdicts returned with respect to
Perez and Baldemar Bermea demonstrate that the jury was not
confused. Considering all the circumstances, we conclude that
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70
Garza has not shown that he suffered any more prejudice than
inevitably inheres whenever "'multiple charges are jointly
tried.'" United States v. Rocha, 916 F.2d 219, 229 (5th Cir.
1990) (citation omitted), cert. denied, 500 U.S. 934 (1991).
IX. MOTION FOR NEW TRIAL
Garza complains of the district court's decision denying his
motion for a new trial. He relies almost entirely on claims that
we have already discussed. For instance, he again complains that
the government failed to provide him with a copy of the DEA-6
report that described the source of the funds he used to buy the
$90,000 CD. As the government points out, this information was
available to Garza both before and during trial, so even if
Garza's attorney did not receive the DEA-6 report (which the
prosecutor contested) Garza's ability to impeach agent Alvarez or
rebut the prosecutor's closing argument was not impeded. To the
extent Garza is raising a Brady claim, it is without merit. See
Dula, 989 F.2d at 775 n.9 (noting that Brady does not oblige the
government to provide defendants with evidence that is equally
available to the defense and the prosecution).
Garza does raise one new argument, claiming that the
government failed to establish the chain of custody with respect
to certain telephone records introduced into evidence. Garza's
defense counsel questioned the records custodian called by the
government to introduce the records and elicited from her the
admission that she did not know whether the records had been
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71
maintained in their original form or altered in any way. The
custodian did, however, verify that the records were business
records within the definition of Federal Rule of Evidence 803(6)
and that they were accurate when made. Evaluating the
admissibility of evidence, of course, is a matter within the
sound discretion of the trial court. United States v. Sparks, 2
F.3d 574, 582 (5th Cir. 1993), cert. denied, 114 S. Ct. 720, and
cert. denied, 114 S. Ct. 899, and cert. denied, 114 S. Ct. 1548
(1994). Because any break in the chain of custody goes to the
weight of the evidence rather than its admissibility, id., we
conclude that Garza has not shown an abuse of discretion in the
evidentiary ruling or error in the denial of his motion for new
trial.
X. SENTENCING
Several appellants challenge the sentences imposed by the
district court. Because they were sentenced on May 12, 1992, the
district court applied the version of the federal sentencing
guidelines effective from November 1, 1991, through October 31,
1992. See United States v. Mills, 9 F.3d 1132, 1136 n.5 (5th
Cir. 1993) (noting that a sentencing court must apply the version
of the guidelines effective at the time of sentencing unless
application of that version would violate the Ex Post Facto
Clause of the Constitution).
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A. DRUG QUANTITIES
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73
Avalos, Pedraza, Guadalupe Bermea, and Baldemar Bermea
contend that the district court erred in calculating the drug
quantities attributable to them under the sentencing guidelines.
The amount of drugs for which an individual shall be held
accountable represents a factual finding that must be upheld
unless clearly erroneous. United States v. Maseratti, 1 F.3d
330, 340 (5th Cir. 1993), cert. denied, 114 S. Ct. 1096, and
cert. denied, 114 S. Ct. 1552 (1994). A finding of fact is
clearly erroneous when, although there is enough evidence to
support it, the reviewing court is left with a firm and definite
conviction that a mistake has been committed. United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948). If the
district court's account of the evidence is plausible in light of
the record viewed in its entirety, the court of appeals may not
reverse it even though convinced that, had it been sitting as the
trier of fact, it would have weighed the evidence differently.
Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985).
Drug conspirators are accountable not only for the quantities of
drugs they actually possessed but also for the foreseeable acts
of their coconspirators committed in furtherance of the
conspiracy. United States Sentencing Commission, Guidelines
Manual, § 1B1.3(a)(1) (Nov. 1991).5
5 All citations to the sentencing guidelines are to the
version effective November 1, 1991, unless otherwise indicated.
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1. Avalos and Pedraza
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75
The sum and substance of the argument made by these two
appellants (who share the same counsel on appeal) is as follows:
"The Court erred in not granting defendant's objections to the
Presentence Investigation Report and finding that the amount was
3,800 pounds of marihuana instead of 1,800 pounds as shown by the
testimony." The presentence investigation reports (PSRs)
prepared for Avalos and Pedraza contained the following
paragraph:
According to the [confidential informant], he learned by
conversing with Pepe Villarreal and others, that Manuel
Garcia had previously transported two or three other
marihuana loads for Honorio Garza. These loads, which were
transported within the timespan of the conspiracy cited in
Count 1, involved approximately 1,000 pounds of marihuana
per load. The defendants who participated in the delivery
of the 1,800-pound marihuana load also took part in the
transportation of the aforementioned loads. Later, another
[confidential informant] corroborated the information
concerning the previous loads.
Thus, the PSR recommended a base offense level for both Avalos
and Pedraza of thirty-two, based on a drug quantity of 3800
pounds (roughly 1720 kilograms) of marijuana. The district court
adopted the drug quantities recommended in the PSRs, but it
granted both Avalos and Pedraza a two-level reduction for minor
participation in the conspiracy against the recommendations of
the PSRs.
The trial testimony was clearly sufficient to support a
finding that 1800 pounds of marijuana should be attributed to
Avalos and Pedraza based on the July 1988 shipment of marijuana
to Shorty Pedraza's residence in Giddings. The question is
whether the district court clearly erred in "tacking on" an
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76
additional 2000 pounds of marijuana based on alleged prior
shipments. We recall that a PSR generally bears sufficient
indicia of reliability to be considered by the trial court as
evidence in making the factual determinations required by the
sentencing guidelines. United States v. Gracia, 983 F.2d 625,
629 (5th Cir. 1993); United States v. Robins, 978 F.2d 881, 889
(5th Cir. 1992).
As we noted in the recitation of facts, Part I.A.1 supra,
Gomez testified that Garcia used Gomez's ranch as a loading site
ten or twelve times between January and August 1988. Gomez
clearly testified that Avalos was present on several of those
occasions and that Avalos was Garcia's "next in command." Given
the fact that the secret compartment used to hold the marijuana
was capable of holding at least 1800 pounds of the drug, we
conclude that the district court did not clearly err in assigning
Avalos 3800 pounds of marijuana for sentencing purposes. The
evidence connecting Pedraza with the earlier shipments is more
tenuous but still sufficient. Gonzalez testified that he met
Pedraza at Garcia's ranch in "early '88"; he further testified
that Pedraza told him on one occasion that he was the owner of
the truck used to transport the marijuana and that Garcia was
paying him in installments for the truck. Avalos and Garcia also
told Gonzalez that the truck was registered in Pedraza's name,
and Pedraza told Gonzalez that Garcia paid him $25 per pound of
marijuana to arrange for storage at Shorty Pedraza's residence.
Gomez testified that the truck was actually registered under
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77
Pedraza's wife's name and that he saw Pedraza at Shorty Pedraza's
residence "a couple of times." Taken as a whole, the evidence
prevents us from concluding that the district court committed
clear error as to the drug quantities ascribed to Avalos and
Pedraza.
2. Guadalupe and Baldemar Bermea
The PSRs prepared for Guadalupe and Baldemar Bermea
recommended a finding that 5496 pounds (roughly 2490 kilograms)
of marijuana were attributable to each for sentencing purposes.
Such a finding results in a base offense level of thirty-two.
The district court accepted this quantity calculation but gave
both Guadalupe and Baldemar Bermea a two-level reduction for
minor participation. The Bermeas contend that the evidence
supporting this quantity calculation was insufficiently reliable
to be relied upon by the district court at sentencing. They also
contend that the court erred by attributing to each of them the
entire amount of drugs involved in the second conspiracy rather
than the amount of drugs each agreed to conspire to possess with
intent to distribute.
At sentencing, the district court "may consider relevant
information without regard to its admissibility under the rules
of evidence applicable at trial, provided that the information
has sufficient indicia of reliability to support its probable
accuracy." U.S.S.G. § 6A1.3(a). Reasonable reliability is all
that is required by § 6A1.3(a). United States v. Rogers, 1 F.3d
341, 344 (5th Cir. 1993). Guadalupe and Baldemar Bermea do not
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78
explain why the information relied upon by the district court and
the probation officer who prepared the PSRs was unreliable. Law
enforcement agents confirmed some 2400 pounds of the 5496-pound
total because they seized 2400 pounds of marijuana from the
trucks driven by Gonzalez and Solis. The remaining 3000 pounds
was based on an interview conducted with Solis after his arrest,
in which he told a DEA agent that he had made three successful
shipments of over 1000 pounds each before he was arrested during
the fourth shipment. This was not far afield from Solis's
testimony at trial, which indicated that one load was actually
about 950 pounds, another was about 1300 pounds, and the third
was at least 1000 pounds based on the amount Solis was paid by
Rogelio Bermea. This information satisfies the low threshold of
reliability established by § 6A1.3(a). Indeed, that section
permits consideration of out-of-court declarations by an
unidentified informant if there is good cause for the
nondisclosure of the informant's identity and there is sufficient
corroboration of the information by other means. U.S.S.G. §
6A1.3 comment. The Bermeas' complaint is without merit.
The Bermeas' other argument is based on amendments to §
1B1.3 and its commentary that took effect on November 1, 1992,
after their sentencing. Although the revised guidelines are not
applicable to defendants sentenced prior to that date, we have
nevertheless referred to them for guidance in cases such as the
one at bar because they were intended only to clarify what the
guidelines already provided. Maseratti, 1 F.3d at 340. The
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79
Bermeas particularly rely on illustration (c)(7) to the new §
1B1.3:
Defendant R recruits Defendant S to distribute 500 grams of
cocaine. Defendant S knows that R is the prime figure in a
conspiracy involved in importing much larger quantities of
cocaine. As long as Defendant S's agreement and conduct is
limited to the distribution of the 500 grams, Defendant S is
accountable only for that 500 gram amount (under subsection
(a)(1)(A)), rather than the much larger quantity imported by
Defendant R.
U.S.S.G. § 1B1.3 comment. (illus. (c)(7)) (Nov. 1992).
The government responds that the Bermeas' argument is
without merit because both Baldemar and Guadalupe Bermea were
direct participants in the entire marijuana trafficking
conspiracy. Both were implicated in the shipment driven by
Gonzalez, and both were substantially implicated by Solis as
active participants in the conspiracy throughout Solis's tenure
as a driver for the Bermeas. Guadalupe and Baldemar Bermea do
not provide us with sufficient basis in the record to reverse the
district court's findings that both men were accountable for all
the drugs possessed during the course of the conspiracy. See
U.S.S.G. § 1B1.3 comment. n.2 (Nov. 1992) ("With respect to
offenses involving contraband (including controlled substances),
the defendant is accountable for . . . all reasonably foreseeable
quantities of contraband that were within the scope of the
criminal activity that he jointly undertook.").
B. ACCEPTANCE OF RESPONSIBILITY
Guadalupe Bermea contends that the district court erred in
denying him a two-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1(a). The defendant bears
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80
the burden of demonstrating to the sentencing court that he is
entitled to a downward adjustment for acceptance of
responsibility, and we review the sentencing court's acceptance
of responsibility determination with even more deference than
under the pure clearly erroneous standard. United States v.
Watson, 988 F.2d 544, 551 (5th Cir. 1993), cert. denied, 114 S.
Ct. 698 (1994); see U.S.S.G. § 3E1.1 comment. n.5 ("The
sentencing judge is in a unique position to evaluate a
defendant's acceptance of responsibility. For this reason, the
determination of the sentencing judge is entitled to great
deference on review.").
Bermea does not contend that he "clearly demonstrate[d] a
recognition and affirmative acceptance of personal responsibility
for his criminal conduct," § 3E1.1(a); he contends only that the
denial of the reduction violated his constitutional privilege
against self-incrimination. The same argument was made in United
States v. Singer, 970 F.2d 1414, 1420 (5th Cir. 1992) ("Singer
contends that the Sentencing Guidelines' acceptance of
responsibility provision impermissibly requires individuals to
admit guilt in order to receive a sentence reduction."). We
rejected that claim. Id.; see also United States v. Mourning,
914 F.2d 699, 707 (5th Cir. 1990) ("The government is permitted
to reward contrition. This is not the same as compelling self-
incrimination."). Bermea's argument is without merit.
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81
C. EX POST FACTO CLAUSE
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82
Baldemar Bermea contends that his sentence was imposed in
violation of the Constitution because the conspiracy for which he
was convicted began prior to the November 18, 1988 amendment to
21 U.S.C. § 846. He argues that the amendment increased the
maximum punishment for the offense of conspiracy to possess
marijuana with intent to distribute and that this increased
punishment cannot constitutionally apply to him under the Ex Post
Facto Clause. U.S. CONST. art. 1, § 9.
Bermea's contention is without merit. We have recognized
that an increase in sentence based on an amendment effective
after an offense is committed would be a clear violation of the
Ex Post Facto Clause. United States v. Thomas, 12 F.3d 1350,
1370 (5th Cir.), cert. denied, 114 S. Ct. 1861, and cert. denied,
114 S. Ct. 2119 (1994). Conspiracy, however, is a continuing
offense. If there is evidence that the conspiracy continued
after the effective date of the amendments, the Ex Post Facto
Clause is not violated by sentencing under the amendments. Id.
at 1370-71. The evidence that the second conspiracy continued
after November 18, 1988, is substantial. If it was foreseeable
to Bermea that the second conspiracy would continue past the
effective date of the amendments, he can avoid being sentenced
under those amendments only if he withdrew from the conspiracy by
taking affirmative acts that are inconsistent with the object of
the conspiracy and communicated in a manner reasonably calculated
to reach other conspirators. Id. at 1371; United States v.
Devine, 934 F.2d 1325, 1332 (5th Cir.), cert. denied, 112 S. Ct.
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83
349 (1991), and cert. denied, 112 S. Ct. 911, and cert. denied,
112 S. Ct. 952, and cert. denied, 112 S. Ct. 954, and cert.
denied, 112 S. Ct. 1164, and cert. denied, 112 S. Ct. 1197
(1992). Bermea cannot prevail on his Ex Post Facto Clause
argument merely by asserting that his participation in the second
conspiracy was not shown to have continued after November 18,
1988. United States v. Puma, 937 F.2d 151, 158 (5th Cir. 1991),
cert. denied, 112 S. Ct. 1165 (1992).
We have treated a district court's decision to sentence a
conspirator under amendments that became effective during the
conspiracy as a factual finding subject to review only for clear
error. Thomas, 12 F.3d at 1371. Bermea has not shown such error
to exist. His argument is meritless.
XI. CONCLUSION
For the foregoing reasons, we AFFIRM the judgments below.
[bermea.004]
84

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