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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-7108
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERIBERTO RUIZ, a/k/a Echeverry, JORGE
MARISIO-GONZALEZ and VALENTIN MONTERO,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Mississippi
_________________________________________________________________
March 22, 1993
Before POLITZ, Chief Judge, JOLLY, and DAVIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Heriberto Ruiz-Echeverry and Jorge Marisio-Gonzalez appeal
their convictions for conspiracy to import cocaine, and for felony
possession of cocaine. Gonzalez also appeals from his conviction
for interstate travel in aid of racketeering.1 We find no
reversible error. We AFFIRM.
I
In the mid-1980s, Nelson Clavijo, Stephen and Jeffrey
Giachelli, and others conspired to import cocaine from South
1Valentin Montero, who was convicted along with Ruiz and
Gonzalez, died during the pendency of his appeal.

America into the United States by concealing it in shipments of
barbed wire.
The first shipment at issue here, which contained 900
kilograms of cocaine, arrived in Jackson, Mississippi, in August
1987. Carlos Moreno-Sanchez designed and oversaw the construction
of false walls for concealment of the cocaine in the shipping
containers. Prior to the arrival of the cocaine in 1987, Moreno
traveled to Denver, Colorado, and recruited Montero and Gonzalez to
assist in unloading the shipment. Moreno gave them enough cash to
purchase airline tickets from Denver to Jackson. The co-
conspirators, including Montero, Gonzalez, and Ruiz, met in Jackson
and unloaded the cocaine. Later they rented a truck and took the
cocaine to south Florida for distribution.
In June 1988, the co-conspirators imported a second shipment
consisting of two containers of barbed wire in which 1750 kilograms
of cocaine were concealed. As with the previous shipment, the co-
conspirators, including Ruiz, met in Jackson and unpacked the
cocaine. Later they rented trucks and took the cocaine to south
Florida for distribution. Gonzales and Montero did not participate
in the 1988 shipment.
Moreno was arrested in January 1989, when he attempted to
smuggle approximately 5,000 pounds of cocaine into the port of New
Orleans, Louisiana. He pleaded guilty and agreed to cooperate with
the government.
II
-2-

Ruiz and Gonzalez were charged in a multi-count indictment,
along with Montero, the Giachelli brothers, Nelson and Ivan
Clavijo, and Miguel Vargas. The Giachelli brothers and Vargas
pleaded guilty. Vargas and Stephen Giachelli testified for the
government at trial. Nelson and Ivan Clavijo are fugitives, and
had not been apprehended at the time of trial. Ruiz was charged
with (1) conspiracy to import, possess, and distribute 900
kilograms of cocaine in 1987; (2) possession of 900 kilograms of
cocaine with intent to distribute it; (3) conspiracy to import,
possess, and distribute 1750 kilograms of cocaine in 1988; and (4)
possession of 1750 kilograms of cocaine with intent to distribute
it. Gonzalez was charged with conspiracy and felony possession of
cocaine with respect to the 1987 load, and with interstate travel
in aid of racketeering. The jury found both defendants guilty.
Ruiz was sentenced to 211 months of incarceration; Gonzalez was
sentenced to 168 months of incarceration.
III
A
Prior to trial in November 1991, Ruiz requested a pretrial
hearing to determine the admissibility of co-conspirator
statements. The district court denied the motion. Ruiz contends
that the district court erred by failing to make a preliminary
determination that co-conspirator statements were admissible. In
the alternative, he contends that the district court did not apply
the required legal standard to determine the admissibility of such
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statements. We review these evidentiary rulings only for abuse of
discretion. United States v. Triplett, 922 F.2d 1174, 1180-81 (5th
Cir.), cert. denied, ___ U.S. ___, 111 S. Ct. 2245 (1991).
(1)
As an initial matter, we reject the government's contention
that Ruiz failed to identify adequately the co-conspirators'
statements that he contends the district court erroneously
admitted. See United States v. Valdez, 861 F.2d 427, 432 (5th Cir.
1988) (defendant's failure to identify particular objectionable
hearsay statements precluded review of district court's ruling),
cert. denied, 489 U.S. 1083 (1989). Valdez is distinguishable,
because a portion of the record had been lost in that case, and the
defendant's objections were too vague to permit meaningful
appellate review. No such obstacles are present in this case.2
(2)
Ruiz contends that the district court erred by failing to
conduct a pre-trial hearing to determine the admissibility of co-
conspirator statements. We disagree. In United States v. James,
590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917
(1979), our court held that such determinations need not be made
prior to trial in all cases: "If [the district court] determines
it is not reasonably practical to require the showing to be made
before admitting the evidence, the court may admit the statement
2We also note that the district court granted Ruiz a standing
objection to all hearsay statements by his alleged co-conspirators.
-4-

subject to being connected up." Id. at 582. The district court
took that approach in this case, and did not abuse its discretion
in doing so.
(3)
Ruiz also contends that the district court applied the wrong
legal standard--a "prima facie test" rather than a "preponderance
of the evidence" test--in determining that the co-conspirator
statements were admissible.
As Ruiz correctly notes, co-conspirator statements are
admissible only if the prosecution proves, by a preponderance of
the evidence, "(1) that a conspiracy existed, (2) that the
coconspirator and the defendant against whom the coconspirator's
statement is offered were members of the conspiracy, and (3) that
the statements were made during the course and in furtherance of
the conspiracy." James, 590 F.2d at 582. The district court may
consider the co-conspirator statements in determining whether the
prosecution has met its burden. Bourjaily v. United States, 483
U.S. 171, 181 (1987); see also Triplett, 922 F.2d at 1181.
At the close of the government's case, the district court made
the following findings with respect to the existence of a
conspiracy:
.... The Court first will make a ruling on the
issue of the existence of conspiracies charged.
The Court adopted the procedure of not holding a
James hearing before allowing the witnesses to
testify as to alleged statements made by co-
conspirators.
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The Court finds that there is ample evidence
to make a prima facie case by a preponderance of
the evidence, that the two conspiracies that are
charged in the indictment did exist, that the
Defendants who are on trial in this case and who
are charged in the two separate conspiracies
alleged in the indictment, the 1987 and 1988
conspiracies, were, in fact, members of the
conspiracy, that the statements of co-conspirators
who have been -- which have been admitted into the
record were made at times when the conspiracies
existed and that they were made in furtherance of
those conspiracies.
The district court's use of the phrase "prima facie case by a
preponderance of the evidence" arguably is ambiguous. But see
Triplett, 922 F.2d at 1181. Its ruling, however, when considered
in context, clearly reflects that it applied the appropriate legal
standard in making the required findings. Those findings are amply
supported by the evidence.
B
Ruiz contends that the district court erred by admitting
photographs of him with some of his co-conspirators, because the
photographs are irrelevant and inflammatory. A customs agent took
the photographs in Memphis, Tennessee, in July 1988. They depict
Ruiz, Nelson Clavijo, and Vargas. We review the district court's
evidentiary ruling for abuse of discretion. Triplett, 922 F.2d at
1180-81.
The photographs are relevant, because they depict Ruiz with
his co-conspirators at a time when they were acting in furtherance
of the conspiracy. Moreover, Ruiz does not explain, nor can we
discern, how the photographs could be inflammatory or prejudicial.
-6-

Accordingly, we conclude that the district court did not abuse its
discretion by admitting the photographs.
C
Next, Ruiz contends that the district court committed
reversible error when it limited his cross-examination of Moreno.
Moreno was one of the leaders of the conspiracy. He was charged in
a separate indictment, pleaded guilty, and testified against his
co-conspirators. On cross-examination, counsel for Ruiz attempted
to question Moreno about whether he had reported his earnings from
his conspiratorial activities on his tax returns. The district
court sustained the prosecutor's objection, ruling that the
evidence was not relevant. The district court also limited Ruiz's
attempt to question Moreno about whether he had lied to a state
court judge who released him on probation. Between the 1987 and
1988 cocaine shipments, Moreno had pleaded guilty to state charges
of kidnapping, and had promised, as a condition of his probation,
that he would not commit any further crimes. Ruiz contends that
this information was essential to his defense, because Moreno was
one of the government's key witnesses, and his credibility was a
crucial factor.
"Limitation of the scope and extent of cross-examination is a
matter committed to the sound discretion of the trial judge
reviewable only for a clear abuse of that discretion." United
States v. Merida, 765 F.2d 1205, 1216 (5th Cir. 1985).
-7-

Although the evidence Ruiz sought to elicit undoubtedly was
relevant to Moreno's credibility and motive for testifying, much of
it ultimately was before the jury. In response to Ruiz's
questioning, Moreno admitted that he did not file tax returns in
1983 and 1984. Although the district court sustained the
government's objection to that line of questioning pursuant to Fed.
R. Evid. 403, it did not specifically instruct the jury to
disregard Moreno's responses. Moreno then admitted that he had
made over a million dollars from his various drug transactions.
The district court did not abuse its discretion by refusing to
allow Ruiz to question Moreno further about his payment of taxes.
We also find no abuse of discretion with respect to the
district court's limitation of cross-examination about Moreno's
kidnapping conviction and the terms of his probation. On direct
examination, Moreno testified that, between the 1987 load and the
1988 load, he was involved in an unrelated cocaine transaction, and
ended up in jail. He testified further that Nelson Clavijo
contacted him while he was in jail regarding plans for the 1988
cocaine shipment. The prosecutor asked Moreno to describe the
unrelated transaction, and explain why he was in jail, but Montero
objected. The prosecutor argued that this background information
was relevant to Moreno's credibility, but the district court
sustained Montero's hearsay objection.
During cross-examination by Ruiz's counsel, Moreno testified
that he "got into some trouble in Miami" between the 1987 and 1988
-8-

cocaine shipments to Mississippi. However, he testified that he
was not in jail on a cocaine charge. The prosecutor objected when
Ruiz's counsel asked Moreno why he was in jail, arguing that he had
tried to elicit that information on direct examination. The
district court sustained the prosecutor's objection, but allowed
Ruiz's counsel to ask Moreno whether he had been convicted of
another crime. Moreno then testified that he was in jail because
he had been convicted of kidnapping. Although the district court
sustained the prosecutor's objection when Ruiz's counsel asked
Moreno what sentence he received, Ruiz was able to establish that
Moreno was "let out of jail." During cross-examination by
Montero's counsel, Moreno admitted, without objection, that he was
placed on probation after pleading guilty to the kidnapping
charges.
Although the district court did not allow defense counsel to
question Moreno about whether he violated the terms of his
probation, we find that the testimony, considered as a whole,
refutes Ruiz's contention that he was unable to adequately attack
Moreno's credibility. Ruiz questioned Moreno at length about
alleged inconsistencies between his testimony at trial and his
testimony before the grand jury, and was able to establish that
Moreno believed that he was immune from prosecution for numerous
prior crimes; that he had traveled using an assumed name and a
-9-

black-market passport; and that he had lied to the authorities on
other occasions.3
C
Ruiz contends that the district court erred by refusing to
strike the following statement the prosecutor made during his
closing argument:
You are the arbiters of truth. You are the ones
who stand between the citizens of this country and
an injustice, crimes that were committed against
the nation in which we live.
Ruiz argues that the prosecutor's statement was an impermissible
appeal to passion or prejudice. We disagree. The quoted statement
was immediately preceded by the following: "What you decide in
this case should be based on the law, based on the evidence that
you have heard." It is well-settled that, unless the prosecutor
intended to inflame, "an appeal to the jury to act as the
conscience of the community is not impermissible." United States
v. Phillips, 664 F.2d 971, 1030 (5th Cir. Unit B 1981) (citation
omitted), cert. denied, 457 U.S. 1136 (1982). The prosecutor's
statements were merely a plea to the jury to do its duty--the
record reveals no evidence of an intent to inflame.
3We also note that the prosecutor tried to bring out the
information about the kidnapping charge on direct examination, but
was prevented from doing so when the district court sustained
Montero's hearsay objection.
-10-

E
Finally, Ruiz contends that the evidence was insufficient to
convict him of any crime. He argues that, at most, the evidence
showed that he was present when the cocaine was imported, and that
he associated with individuals who broke the law.
In reviewing a challenge to the sufficiency of the evidence,
we view the evidence in the light most favorable to the jury
verdict and affirm if a rational trier of fact could have found
that the government proved the essential elements of the crime
charged beyond a reasonable doubt. United States v. Webster, 960
F.2d 1301, 1307-08 (5th Cir.), cert. denied, ___ U.S. ___, 113 S.
Ct. 355 (1992). With respect to the conspiracy charges, the
government was required to prove, with either direct or
circumstantial evidence, that: (1) two or more persons agreed to
commit a crime, (2) the defendant knew of the conspiracy, (3) the
defendant intended to join the conspiracy, and (4) the defendant
participated in the conspiracy. United States v. Abadie, 879 F.2d
1260, 1265 (5th Cir.), cert. denied, 493 U.S. 1005 (1989).
The government's case against Ruiz was largely circumstantial,
but nevertheless compelling. With respect to the 1987 shipment,
Moreno testified that, when he arrived in Jackson, he went to
dinner with Nelson Clavijo, Vargas, and Ruiz. While Ruiz was
sitting at the table with them, Moreno and Clavijo discussed their
plans for unloading the shipment. Moreno testified further that he
saw Ruiz at the warehouse cleaning up scrap metal from the false
-11-

wall in the shipping container. Stephen Giachelli, another of the
co-conspirators, testified that he met Ruiz in Miami. Ruiz was
introduced as one of Nelson Clavijo's helpers. Giachelli testified
that Ruiz came to Jackson with Nelson Clavijo when the first
shipment arrived. Giachelli stated that he saw Ruiz and others
packing cocaine into cardboard boxes at the warehouse.
Moreno also testified he saw Ruiz cleaning up at the warehouse
after the 1988 shipment of cocaine was unpacked. Giachelli
testified that Ruiz was in Miami watching the second shipment of
cocaine before it was transported to New Orleans and then to
Jackson. He testified further that he saw Ruiz helping to
dismantle the false walls in the shipping containers, and packing
cocaine into boxes.
In addition, Giachelli testified that Ruiz was with Nelson
Clavijo in Memphis shortly after the second shipment was unloaded.
Clavijo called Giachelli in Jackson and asked Giachelli to come to
Memphis, explaining that he, Vargas, and Ruiz had been chased by
individuals with guns, but had escaped. Giachelli testified that
after he arrived in Memphis and picked up Clavijo, they located
Ruiz and Vargas, who were hiding by a garbage dumpster behind a
fast food restaurant. They retrieved a satchel of money from the
dumpster and Giachelli brought all three men back to Jackson.
Giachelli testified that the satchel contained two or three hundred
thousand dollars, and that Clavijo gave him a little over a hundred
thousand dollars.
-12-

Vargas, who was involved only with the 1988 shipment,
testified that Ruiz helped load boxes of cocaine from a mini-
warehouse into a truck. He also testified that Ruiz was present
when he discussed his plans to pack up the cocaine and drive it to
Miami; that Ruiz was in the car with Clavijo and followed him to
Florida; and that Ruiz helped unload the cocaine at Ivan Clavijo's
apartment. In addition, he testified that Ruiz went to Houston
with him and Nelson Clavijo, to get money.
Ruiz took the stand and admitted that he was present on each
of the occasions described by the government's witnesses, but
testified that he unloaded only barbed wire, not cocaine. He
testified that he received no money, and was present only to assist
his cousin, Nelson Clavijo. Ruiz maintained that he did not know
about any cocaine.
Based on this evidence, the jury clearly was entitled--
notwithstanding Ruiz's denials--to find that Ruiz knowingly
participated in both conspiracies, and that he was in joint
possession of the cocaine.
F
Gonzalez also challenges the sufficiency of the evidence. He
was convicted of conspiracy and felony possession with respect to
the 1987 shipment, and of interstate travel in aid of racketeering.
(1)
With respect to the conspiracy and felony possession charges,
Moreno testified that he met with Montero and Gonzalez in Denver
-13-

prior to the arrival of the 1987 shipment. Moreno told Montero
that a container of cocaine was on its way to the United States,
and asked if he wanted to assist in unloading it. Montero agreed
to do so, and Moreno gave him $1500 cash for air fare from Denver
to Jackson. Gonzalez was present during this discussion. After
the shipment arrived in Jackson, Moreno called Montero in Denver.
Montero and Gonzalez arrived in Jackson that evening. The next
day, Moreno took Montero and Gonzalez to the warehouse. Moreno
testified that he told Montero and Gonzalez to make sure that
"everything," i.e., the cocaine was inside the container, and to
pack everything into boxes and get rid of the evidence, i.e., the
false wall in the container. Later, Moreno saw Gonzalez, Ruiz, and
Montero cleaning up scrap metal from the false wall. Moreno
testified that he, Montero, and Gonzalez returned to the hotel
after they finished unpacking the cocaine at the warehouse, and
that he paid Montero $20,000 cash for their work.
Stephen Giachelli testified that he saw Gonzalez putting
cocaine into boxes at the warehouse. He also testified that Nelson
Clavijo asked him to take Montero and Gonzalez to the airport after
the shipment was unpacked. The government introduced evidence
showing that Giachelli purchased tickets from Jackson to Denver on
American Airlines for "Valentin Gonzalez" and "Marisio Gonzalez."
Moreno's testimony that Gonzalez and Montero returned to the hotel
is somewhat inconsistent with Giachelli's testimony. According to
Giachelli, he went to the airport and purchased the tickets, and
-14-

then returned to the warehouse, picked up Montero and Gonzalez, and
took them directly to the airport. Ruiz testified that he did not
see Gonzalez at the warehouse.
Gonzalez's argument consists primarily of a challenge to the
jury's credibility determinations. As we have repeatedly held,
such credibility determinations are within the exclusive province
of the jury. See, e.g., United States v. Lindell, 881 F.2d 1313,
1322 (5th Cir. 1989), cert. denied, 496 U.S. 926 (1990).
Furthermore, we view the evidence in the light most favorable to
the jury's verdict. Id. We conclude that the evidence was
sufficient to support the jury's finding that Gonzalez knowingly
participated in the 1987 conspiracy and was in joint possession of
the cocaine involved in that conspiracy.
(2)
Gonzalez also contends that the evidence was insufficient to
convict him of traveling in interstate commerce in order to aid a
drug conspiracy, because he was only involved in the 1987 shipment
of cocaine and, thus, he was not involved in a continuous business
enterprise. The statute that Gonzalez was convicted of violating
defines "unlawful activity" as "any business enterprise involving
... narcotics or controlled substances ...." 18 U.S.C. � 1952(b).
We have defined a "business enterprise," as it is used in this
statute, as "a continuous course of conduct rather than sporadic,
casual involvement in a proscribed activity." United States v.
Cozzetti, 441 F.2d 344, 349 (5th Cir. 1971).
-15-

We do not, however, require the government to prove that the
defendant personally engaged in a continuous course of conduct.
United States v. Carrion, 809 F.2d 1120, 1127 (5th Cir. 1987).
Rather, the government must prove only that there was a continuous
business enterprise and that the defendant participated in the
enterprise. For instance, in Carrion, the government established
that the "business enterprise" had made three deliveries of
cocaine, and the defendant had helped with one of the deliveries.
Upholding the defendant's conviction, we held that the evidence was
sufficient, because the government established that the shipment of
cocaine that the defendant helped to deliver was part of a
continuous business enterprise. Id. Here, there were two cocaine
shipments, and the jury found that those two shipments constituted
a continuous business enterprise. Thus, proof that Gonzalez
participated in one of the shipments was sufficient to convict him
under the statute.
IV
For the foregoing reasons, the convictions of Ruiz and
Gonzalez are
A F F I R M E D.
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