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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-8204
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REYMUNDO MONTOYA-ORTIZ,
and RUBEN MONTOYA,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
(November 12, 1993)
Before WIENER, BARKSDALE, and DeMOSS, Circuit Judges.
BARKSDALE, Circuit Judge:
The challenges by Reymundo Montoya-Ortiz and Ruben Montoya-
Lujan to their convictions and sentences for cocaine conspiracy and
possession turn in large part on the use that can be made of
evidence of prior similar acts. They contend, inter alia, that the
evidence is insufficient to sustain their convictions. We AFFIRM.
I.
Montoya-Ortiz and Montoya-Lujan are first cousins. They were
convicted for conspiracy to possess with the intent to distribute
more than five kilograms of cocaine, in violation of 21 U.S.C. งง
841(a)(1) and 846, and possession with the intent to distribute

more than five kilograms of cocaine, in violation of 21 U.S.C. ง
841(a)(1).1 Each was sentenced to life in prison.
II.
A.
Montoya-Ortiz and Montoya-Lujan contest the sufficiency of the
evidence. Our standard of review for such a contention is well
established:
When a challenge is made to the sufficiency of
the evidence supporting a conviction, this court
must decide whether a rational trier of fact could
have found that the evidence established guilt
beyond a reasonable doubt. We must view the
evidence in the light most favorable to the
verdict, accepting all credibility choices and
reasonable inferences made by the jury. The
standard is the same whether the evidence is direct
or circumstantial.
United States v. Gardea-Carrasco, 830 F.2d 41, 43-44 (5th Cir.
1987) (footnotes omitted). It is equally well established that
"[i]t is not necessary that the evidence exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt.... A jury is free to choose among
reasonable constructions of the evidence." United States v. Bell,
678 F.2d 547, 549 (5th Cir. 1982), aff'd, 462 U.S. 356 (1983).
1
Montoya-Ortiz was originally indicted, with Edmundo Calixto
Moreno and Jesus Ramos-Calderon, in October 1990. Moreno agreed
to cooperate with the Government, and pleaded guilty in December
1990 to possession with the intent to distribute cocaine. In
January 1991, he was sentenced to 97 months imprisonment. (A
Fed. R. Crim. P. 35 motion for a reduction of Moreno's sentence
was pending at the time of Appellants' trial.) Because the
Government decided to pursue the investigation further, the
indictment was dismissed without prejudice as to Ramos-Calderon
and Montoya-Ortiz. They were re-indicted in December 1991, with
Montoya-Lujan. Ramos-Calderon was a fugitive at the time of
trial.
- 2 -

"To establish a conspiracy under 21 U.S.C. ง 846, the
government must prove `that a conspiracy existed, that each co-
defendant knew of the conspiracy, and that each co-defendant
voluntarily joined in it.'" United States v. Simmons, 918 F.2d
476, 483-84 (5th Cir. 1990) (quoting United States v. Molinar-
Apodaca, 889 F.2d 1417, 1423 (5th Cir. 1989)). Proof of a formal
agreement is not necessary; all that is required is proof beyond a
reasonable doubt "[t]hat two or more persons in some way or manner,
positively or tacitly, came to a mutual understanding to try to
accomplish a common and unlawful plan". Id. at 484 (quoting United
States v. Williams-Hendricks, 805 F.2d 496, 502 (5th Cir. 1986)).
"An agreement may be inferred from concert of action, participation
from a `collocation of circumstances' and knowledge from
`surrounding circumstances'". United States v. Rodriguez, 993 F.2d
1170, 1175 (5th Cir. 1993).
For the substantive possession count, the Government is
required to prove that a defendant knowingly possessed cocaine with
the intent to distribute it. E.g., id. at 1175. "[P]ossession may
be either actual or constructive". United States v. Smith, 930
F.2d 1081, 1085 (5th Cir. 1991). "`Constructive possession' has
been defined as ownership, dominion, or control over the contraband
itself, or dominion or control over the premises in which the
contraband is concealed". Id. (emphasis in original).
The vehicles used for the offenses in issue departed from
Presidio, Texas. Montoya-Lujan contends that the Government failed
to prove beyond a reasonable doubt that he knowingly and
- 3 -

intentionally joined the conspiracy, maintaining that the evidence
showed only that he was present in Presidio at the time of those
offenses. He contends, further, that there is no evidence to show
that he constructively possessed the cocaine. Montoya-Ortiz
similarly contends that the evidence was insufficient to establish
the requisite knowledge and intent for conspiracy and possession
with the intent to distribute. The evidence, viewed in the light
most favorable to the verdict, was as follows.
On the afternoon of October 17, 1990, a pickup truck, pulling
a flat-bed trailer loaded with bales of hay, entered the primary
inspection area of the United States Border Patrol checkpoint south
of Marfa, Texas. It was driven by Montoya-Ortiz; Jesus Ramos-
Calderon (a/k/a Chuy) was a passenger.2 Ramos-Calderon was known
to Border Patrol agents to be involved in narcotics trafficking.
The truck was referred to the secondary inspection area and a
canine inspection was conducted. Although the dog showed interest
in the bales of hay, no contraband was found. Montoya-Ortiz and
Ramos-Calderon were taken inside the checkpoint trailer and
interviewed. Montoya-Ortiz stated that they had come to Presidio
to get hay at the Mario Pando Farm, downriver from Presidio, for
his race horses, and that he leased the farm. There was evidence
that, in the Presidio area, there is a Pando Farm that grows and
sells alfalfa hay (the type on Montoya-Ortiz's trailer). Other
testimony established that quality hay could be purchased in New
2
The truck was registered to Rosaria Montoya, Montoya-Ortiz's
wife.
- 4 -

Mexico, less than an hour's drive from Montoya-Ortiz's home in
Andrews, Texas. On the other hand, Presidio is about a three-hour
drive from Andrews.
About 15 or 20 minutes after the truck driven by Montoya-Ortiz
entered the checkpoint, and while he and Ramos-Calderon were still
inside the checkpoint trailer, a second pickup truck loaded with
bales of hay entered the primary inspection area. The truck was
driven by Edmundo Calixto Moreno; it, too, was referred to the
secondary inspection area. During a canine inspection, the dog
alerted, indicating narcotics on the truck. Border Patrol Agent
Casteneda advised Moreno of his rights and told him that he was
being placed under arrest. As Ramos-Calderon had instructed him to
do, Moreno indicated that he did not know anything about any
narcotics. He appeared to be very nervous, licking his lips and
wiping his hands on his pants.
Moreno was taken to the checkpoint trailer, where Montoya-
Ortiz and Ramos-Calderon were being interviewed. Although, in a
space about 10 by 20 feet, Moreno had to pass within two feet of
Ramos-Calderon and Montoya-Ortiz, they gave no indication that they
recognized Moreno, and appeared to deliberately ignore him. Agent
Casteneda testified that Moreno and Ramos-Calderon looked at each
other, and Moreno then turned away from Ramos-Calderon so quickly
he "thought he was going to snap his head off at his shoulders".3
Moreno told Agent Casteneda that he was from Kermit, Texas, and had
3
Moreno testified that, in the checkpoint trailer, Ramos-
Calderon pretended not to know him, and Montoya-Ortiz did not
greet him.
- 5 -

borrowed a truck to go to Presidio to purchase hay. He stated that
he had gone to a ranch and asked a woman where to purchase it; she
took him to another place where he purchased 35 bales.
The truck driven by Moreno was searched; and, when the bales
of hay were removed from the truck bed, eight duffel bags
containing 484 pounds of cocaine (approximately 220 kilograms, with
a street value of $12 to $13 million) were discovered. After
Moreno was confronted with the results of the search, he admitted
that he had lied about a woman assisting him in purchasing hay. He
stated that he had taken the truck to a motel in Presidio where
others took the truck away from him and loaded it with hay and
cocaine. The manager of the La Siesta Motel in Presidio testified
that Moreno rented a room that day, and a receipt was introduced
into evidence.
Moreno testified that Ramos-Calderon, who had been Moreno's
boss when they worked in an oil field, picked him up in Kermit,
Texas, on the morning of October 17, and drove him to the La Siesta
Motel in Presidio. Ramos-Calderon instructed Moreno to rent a room
and wait for him while he loaded the truck with cocaine. Ramos-
Calderon returned about 45 minutes later and told Moreno that the
truck was ready. Then another truck, driven by Montoya-Ortiz,
arrived. Moreno testified that he had no direct contact with
Montoya-Ortiz, but that each saw the other. Ramos-Calderon told
Moreno that he was going to ride with Montoya-Ortiz; Moreno was to
drive Ramos-Calderon's truck, with the cocaine. Moreno testified
that Ramos-Calderon got into the passenger side of Montoya-Ortiz's
- 6 -

truck, Montoya-Ortiz said something to Ramos-Calderon, and Ramos-
Calderon then turned around and told Moreno to let them (Montoya-
Ortiz and Ramos-Calderon) go ahead and to wait 20 minutes before
following them to Odessa.
A few minutes after Moreno was brought into the checkpoint
trailer,
Montoya-Ortiz
and
Ramos-Calderon
were
released.
Subsequently, a registration check on the vehicle driven by Moreno
revealed that it was registered to Ramos-Calderon. Border Patrol
agents therefore contacted area law enforcement agencies for
assistance in stopping Montoya-Ortiz and Ramos-Calderon. They were
stopped outside of Balmorhea, Texas, by Deputy Sheriff Floyd
Estrada. Estrada's stepmother is Montoya-Ortiz's aunt. Montoya-
Ortiz recognized Estrada, and got out of the truck to greet him,
calling him by his first name, "Flavio". Montoya-Ortiz asked
Estrada what was going on, and Estrada told him to keep his
distance and that everything would be explained in time, because
they were waiting for the Border Patrol to arrive from Marfa.
Estrada testified that Montoya-Ortiz appeared to be extremely
nervous and kept looking around and asking what was going on.
Border Patrol Agent Mendoza arrived 10-15 minutes later and
advised Ramos-Calderon that there was some indication that he was
connected to a narcotics seizure at the Marfa checkpoint. Ramos-
Calderon stated that he had recognized the vehicle at the
checkpoint and knew that Moreno was driving it. Ramos-Calderon
said that he had turned away when Moreno was brought into the
checkpoint trailer, and that he had not seen him, but that, upon
- 7 -

leaving the trailer, he recognized Moreno's vehicle. Ramos-
Calderon stated that the truck was registered in his name because,
eight to nine months earlier, he had assisted Moreno in purchasing
it. Ramos-Calderon told Agent Mendoza that Montoya-Ortiz had
called him early that morning and had invited him to go with him to
Presidio to get a load of hay.
While Agent Mendoza questioned Ramos-Calderon, Deputy Estrada
questioned Montoya-Ortiz. Montoya-Ortiz said that he had been to
Presidio, bought hay, and was on his way back to Kermit with it.
Montoya-Ortiz told Deputy Estrada that his uncle, Florentino
Montoya, had helped him load the hay. The truck and trailer were
searched, but no contraband was found. Ramos-Calderon was taken
into custody, but Montoya-Ortiz was allowed to leave with his truck
and the hay. Deputy Estrada testified that Montoya-Ortiz just
"took off", without even saying goodbye.
Based on his 14 years' experience with the Border Patrol,
Agent Mendoza testified that he is familiar with the "lead
truck/load truck" concept. According to Agent Mendoza, generally
the lead truck does not contain narcotics. He testified that,
although there is generally some means of communication between the
lead and load vehicles, the purpose of a lead vehicle is either to
alert or to distract. If it is stopped, the load vehicle driver is
alerted that law enforcement agents are out and about. No
communication devices were found in the lead truck driven by
Montoya-Ortiz. Agent Mendoza testified that, because of Ramos-
- 8 -

Calderon's reputation as a narcotics trafficker, his mere presence
in the lead truck served as a distraction.
DEA Agent Mueller testified that the lead truck/load truck
concept is a common practice used by narcotics smugglers.
According to him, the lead truck can be anywhere from five minutes
to an hour ahead of the load truck. He testified that, generally,
the person who is in charge of the load will be in the lead truck
so that there will be nothing to connect him to the load if it is
intercepted by the authorities. He also testified that it is not
unusual for persons who are more involved and powerful in a drug
conspiracy to distance themselves from the drugs.
1.
None of the witnesses testified to having seen Montoya-Lujan
on October 17. However, the manager of the La Siesta Motel
identified Montoya-Lujan as having rented a room at the motel on
October 16, for two persons, for two nights; check-out time was
noon on October 18. The manager did not know who was staying with
Montoya-Lujan. The motel has six rooms; Montoya-Lujan was in room
2; and Moreno rented room 4 on October 17. The manager also
testified that Montoya-Lujan had stayed at his motel on several
occasions prior to October 17.
Montoya-Lujan points out that there are only two motels in
Presidio (the La Siesta being the least expensive), and that his
presence there on October 17 is insufficient to establish his
connection to the conspiracy or to show that he constructively
possessed cocaine. If this were the only evidence against Montoya-
- 9 -

Lujan, we would be inclined to agree; but, it is not. Agent
Mueller testified that he was not surprised that Montoya-Lujan was
not at the checkpoint on October 17, because it is common for the
more powerful players in drug deals to distance themselves from the
drugs. The most significant evidence of Montoya-Lujan's
consciousness of guilt is Moreno's testimony that, while they were
incarcerated together shortly before the trial, Montoya-Lujan
approached Moreno and asked Moreno to deny knowing him (Montoya-
Lujan) during the trial. In exchange, Montoya-Lujan offered to
help Moreno's family (a wife and four young children) when he got
out, by giving them a car and some money.4
Over Montoya-Lujan's objection, evidence of prior similar acts
was presented. See Fed. R. Evid. 404(b). Juan Gonzalez-King, who
was serving a 97-month sentence for cocaine conspiracy and
possession, testified that he had been in the narcotics business
for eight years. He met Montoya-Lujan (nicknamed "Huero"5) in
1990. In August 1990, they were together at a ranch in Mexico, and
received by airplane 750 kilograms of cocaine from Columbia.
Gonzalez and Montoya-Lujan brought the cocaine to Ojinaga,
Chihuahua, Mexico, just across the Rio Grande from Presidio.
Gonzalez testified that his job was to receive the airplane in
4
Larry Ozuna testified, on behalf of Montoya-Lujan, that he
was incarcerated with Moreno and Montoya-Lujan; that Moreno
attempted to talk to Montoya-Lujan; and that Montoya-Lujan did
not want to talk to Moreno. Needless to say, we will not disturb
the jury's credibility choice between the conflicting testimony
of Ozuna and Moreno.
5
Moreno testified that Huero means "white Mexican".
- 10 -

Mexico, refuel it, and send it back to Colombia; Montoya-Lujan's
group was in charge of transporting the cocaine from Mexico into
the United States.
Gonzalez testified that 200 of the 750 kilograms were
transported through Presidio to Odessa, Texas. During the
transportation, approximately 27 kilograms were "lost"; Gonzalez
testified that he asked Montoya-Lujan about the missing cocaine,
and that he got part of it back. Gonzalez testified also that he
never paid Montoya-Lujan for transporting cocaine, because Montoya-
Lujan would pay himself by stealing part of the merchandise.
Rodrigo Rodriguez, Gonzalez's direct superior, who was serving a
five-year sentence for cocaine conspiracy, testified that in
September 1990, he received 150 kilograms of cocaine from Montoya-
Lujan at a motel in Odessa to transport to Houston.
Moreno testified that he had been in Presidio several times
under similar circumstances, and that he had seen Montoya-Lujan in
Presidio and in Odessa with regard to other cocaine deals. Moreno
testified that, on September 26, 1990 (just three weeks prior to
the October 17 seizure at the Marfa checkpoint), he moved a load of
cocaine from Presidio, through the Marfa checkpoint, to Odessa,
with Montoya-Lujan and Ramos-Calderon. He testified that they used
the lead truck/load truck method, and used hay to conceal the
cocaine, which was packed in duffel bags. Moreno drove the load
truck, following Montoya-Lujan and Ramos-Calderon in the lead
truck. Just outside Odessa, they dumped the hay and moved six
duffel bags of cocaine from Ramos-Calderon's truck (the load
- 11 -

vehicle) to Montoya-Lujan's Bronco (the lead vehicle). Moreno
testified that he participated in transporting two loads in
September 1990, for which he was paid $8,500 by Ramos-Calderon.
Moreno expected to be paid for the October 17 load, but no set
price had been established.6
Montoya-Lujan does not challenge on appeal the admission,
under Rule 404(b), of the evidence of prior similar acts. Instead,
he contends that the jury should not have considered that evidence,
because there was no evidence that he participated in any of the
events of October 17. Regarding the similar acts evidence, the
jury was instructed as follows:
During this trial, you have heard evidence of
acts of a defendant which may be similar to those
charged in the indictment, but which were committed
on other occasions. You must not consider any of
this evidence in deciding if a defendant committed
the acts charged in the indictment. However, you
may consider this evidence for other, very limited,
purposes.
If you find beyond a reasonable doubt from
other evidence in this case that a defendant did
commit the acts charged in the indictment, then you
may consider evidence of the similar acts allegedly
committed on other occasions to determine:
Whether a defendant had the state of mind or
intent necessary to commit the crime charged in the
indictment;
or
Whether a defendant had a motive or the
opportunity to commit the acts charged in the
indictment;
6
Moreno testified that "the Montoyas" were going to pay
Ramos-Calderon for the October 17 load; but the jury was
instructed to disregard that testimony.
- 12 -

or
Whether a defendant acted according to a plan
or in preparation for commission of a crime;
or
Whether a defendant committed the acts for
which he is on trial by accident or mistake.
These are the limited purposes for which any
evidence of other similar acts may be considered.7
Accordingly, if the jury found beyond a reasonable doubt that the
physical acts in issue were committed, it could consider the
evidence of Montoya-Lujan's prior similar acts to determine the
state of mind with which he committed the acts in issue.8
Montoya-Lujan does not dispute the first element of a
conspiracy -- the existence of an agreement; but he contends that
there is no evidence that he knew of the conspiracy or voluntarily
7
This instruction is consistent with the Pattern Jury
Instructions of the District Judges Association of the Fifth
Circuit, Criminal Cases, Instruction No. 1.30 (1990). See also
E. Devitt, C. Blackmar, M. Wolff & K. O'Malley, 1 Federal Jury
Practice & Instructions: Civil and Criminal, ง 17.08, at 661-62
(4th ed. 1992).
8
The Government asserts that the district court's instruction
improperly limited the jury's consideration of evidence of
Montoya-Lujan's conduct prior to October 17, 1990, because such
evidence was intrinsic, rather than extrinsic. See United States
v. Royal, 972 F.2d 643, 647-48 (5th Cir. 1992), cert. denied, ___
U.S. ___, 113 S. Ct. 1258 (1993); United States v. Torres, 685
F.2d 921, 924 (5th Cir. 1982). The Government, however, did not
object to the instruction; accordingly, we will not consider this
belated contention. See Fed. R. Crim. P. 30 ("No party may
assign as error any portion of the charge or omission therefrom
unless that party objects thereto before the jury retires to
consider its verdict, stating distinctly the matter to which that
party objects and the grounds of the objection"); United States
v. Bigler, 817 F.2d 1139, 1140 (5th Cir.) ("This court has
repeatedly ruled that it will not consider issues that were not
raised before the trial court"), cert. denied, 484 U.S. 842
(1987).
- 13 -

joined it. The essence of a conspiracy is an agreement; proof of
overt acts is not required to prove a conspiracy under 21 U.S.C. ง
846. Each of the two disputed elements of the conspiracy charge
involve Montoya-Lujan's state of mind. Therefore, the jury
properly could have considered evidence of Montoya-Lujan's prior
similar acts with respect to each of these two elements.
Based on the testimony of the La Siesta motel manager, the
jury reasonably could have concluded that Montoya-Lujan was present
in Presidio on October 17, registered at the same motel as Moreno.
It is true, as the jury was instructed, that "mere presence
together at the scene of a crime or close association will not
alone support the inference of a conspiracy".9 United States v.
Simmons, 918 F.2d 476, 484 (5th Cir. 1990) (emphasis added). But,
presence "is a `significant factor to be considered within the
context of the circumstances under which it occurs.'" United
States v. Evans, 941 F.2d 267, 272 (5th Cir.) (quoting United
States v. Medina, 887 F.2d 528, 533 (5th Cir. 1989)), cert. denied,
___ U.S. ___, 112 S. Ct. 451 (1991). "`Circumstances altogether
inconclusive, if separately considered, may, by their number and
9
The jury was instructed:
Mere presence at the scene of an event, even
with knowledge that a crime is being committed, or
the mere fact that certain persons may have
associated with each other, and may have assembled
together and discussed common aims and interests,
does not necessarily establish proof of the
existence of a conspiracy. Also, a person who has
no knowledge of a conspiracy, but who happens to
act in a way which advances some purpose of a
conspiracy, does not thereby become a conspirator.
- 14 -

joint operation, ... be sufficient to constitute conclusive
proof.'" United States v. Roberts, 913 F.2d 211, 218 (5th Cir.
1990), cert. denied, ___ U.S. ___, 111 S. Ct. 2264 (1991) (quoting
United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir. 1989)).
The jury properly could have considered the evidence of Montoya-
Lujan's prior similar acts, including his previous stays at the La
Siesta Motel, his previous trips to Presidio in connection with
cocaine deals, and his involvement in transporting cocaine by
methods substantially identical to the one used on October 17, to
determine that his presence at the La Siesta Motel on October 17
was not a mere coincidence, accident, or mistake, but was instead
a part of concerted activity with Montoya-Ortiz, Ramos-Calderon,
and Moreno in furtherance of the scheme to transport cocaine from
Presidio.
Montoya-Lujan also contends that his conviction for possession
with intent to distribute cocaine should be reversed, because the
Government failed to establish possession, actual or constructive
-- i.e., there was no evidence that he controlled or had the power
to control either the truck or the cocaine. We disagree. Although
Montoya-Lujan's presence at the La Siesta Motel is not enough,
standing alone, to prove that he constructively possessed the
cocaine, the jury properly could have considered his prior conduct
to determine that he intended to exercise dominion and control over
the cocaine that was being transported by others, and was in
Presidio for that purpose. Montoya-Lujan's attempt to persuade
- 15 -

Moreno to testify untruthfully is further evidence of his
consciousness of guilt with respect to the possession charge.
2.
Montoya-Ortiz contends that he was convicted solely because he
went to the La Siesta Motel on October 17 and picked up Ramos-
Calderon, and then went through the Marfa checkpoint about 20
minutes before Moreno. This is far from a correct characterization
of the evidence.
For starters, although Moreno could not hear what Montoya-
Ortiz said to Ramos-Calderon outside the La Siesta Motel,
immediately before Ramos-Calderon gave Moreno his instructions
about following their truck, the jury reasonably could have found,
based on the sequence of events, that Montoya-Ortiz and Ramos-
Calderon were conversing about instructing Moreno regarding how
long he should wait before following them. Based on this evidence,
a rational juror could have inferred that Montoya-Ortiz was aware
of the lead truck/load truck plan for transporting the cocaine
through the checkpoint, and voluntarily participated in it.
In addition, there was other evidence of Montoya-Ortiz's
guilt. He told the Border Patrol agents that he drove to Presidio
(a three-hour drive from his home in Andrews) to purchase hay; but
high-quality hay could be purchased in New Mexico (less than an
hour's drive from Andrews). "This Court has acknowledged that a
`less-than-credible explanation' for a defendant's actions is `part
of the overall circumstantial evidence from which possession and
knowledge may be inferred'". United States v. Diaz-Carreon, 915
- 16 -

F.2d 951, 955 (5th Cir. 1990). And, despite the fact that he had
seen Moreno outside the La Siesta Motel earlier in the day, there
was evidence that Montoya-Ortiz deliberately ignored Moreno when
Moreno was brought into the checkpoint trailer. Montoya-Ortiz's
extreme nervousness when stopped by his relative, Deputy Estrada,
near Balmorhea, and the fact that he did not even say goodbye to
his relative after Ramos-Calderon was taken into custody, are
further evidence of his consciousness of guilt.
In sum, viewing the evidence and the inferences that may be
drawn from it in the light most favorable to the verdict, we
conclude that a rational trier of fact could have found the
essential elements of the offenses beyond a reasonable doubt.
B.
Montoya-Lujan contends that his conviction must be reversed
because the prosecutor impermissibly commented on his failure to
testify. The Fifth Amendment "prohibits a prosecutor from
commenting directly or indirectly on a defendant's failure to
testify" in a criminal case. United States v. Wade, 931 F.2d 300,
305 (5th Cir.) (quoting United States v. Smith, 890 F.2d 711, 717
(5th Cir. 1989)), cert. denied, ___ U.S. ___, 112 S. Ct. 247
(1991). "The test for determining if a constitutional violation
has occurred is whether `the language used was manifestly intended
or was of such character that the jury would naturally and
necessarily take it to be a comment on the failure of the accused
to testify'". United States v. Rocha, 916 F.2d 219, 232 (5th Cir.
1990) (quoting Davis v. United States, 357 F.2d 438, 441 (5th
- 17 -

Cir.), cert. denied, 385 U.S. 927 (1966)), cert. denied, ___ U.S.
___, 111 S. Ct. 2057 (1991). And, "the comments complained of must
be viewed within the context of the trial in which they are made".
United States v. Dula, 989 F.2d 772, 776 (5th Cir. 1993). Reversal
is not warranted unless the improper comment had "a clear effect on
the jury". United States v. Rocha, 916 F.2d at 232.
During cross-examination, counsel for Montoya-Ortiz asked
Moreno:
Is there any other person that you know of that can
corroborate your story about you being in Presidio
and about Reymundo [Montoya-Ortiz] pulling up in
his truck and Mr. Ramos[-Calderon] getting out of
your truck and getting into his truck, anybody else
that can corroborate your story that you know of?
Moreno answered "No, sir." On redirect, the prosecutor asked
Moreno:
[Montoya-Ortiz's counsel] or [Montoya-Lujan's
counsel] asked you if there was anybody who could
corroborate your testimony about being down in
Presidio and doing these coke deals. Could Mr.
Ruben Montoya[-Lujan] corroborate your testimony?
Montoya-Lujan's counsel objected, contending that the prosecutor
was referring to the fact that Montoya-Lujan had not testified.
The court instructed the jury that "[t]he defendant has no burden
at all, and the jury will recognize that. The defendant does not
have to prove his innocence...."
There is no evidence that the prosecutor's question was
manifestly intended as a comment on Montoya-Lujan's failure to
testify; nor does Montoya-Lujan expressly charge such intent. The
comment complained of occurred during presentation of the
Government's case-in-chief, prior to when Montoya-Lujan would have
- 18 -

testified, had he elected to do so. Considering the context and
timing of the question, we conclude that the jury would not
naturally and necessarily have interpreted the question as a
comment on Montoya-Lujan's failure to testify.
Moreover, the district court instructed the jury, both in
response to Montoya-Lujan's objection and in its charge, that
Montoya-Lujan was not required to prove his innocence, that he had
a right not to testify, and that the jury could not consider his
failure to testify. Even assuming the prosecutor's remark could be
interpreted as a comment on Montoya-Lujan's failure to testify, any
harm resulting from the remark was cured by the court's
instructions. See United States v. Dula, 989 F.2d at 777.
C.
Both of the Appellants raise several issues regarding
sentencing. We "will uphold a sentence unless it was imposed in
violation of law; imposed as a result of an incorrect application
of the sentencing guidelines; or outside the range of the
applicable sentencing guideline and is unreasonable." United
States v. Haymer, 995 F.2d 550, 552 (5th Cir. 1993) (quoting United
States v. Howard, 991 F.2d 195, 199 (5th Cir. 1993)). "Errors of
law in applying the Sentencing Guidelines are fully reviewable on
appeal." United States v. Rocha, 916 F.2d at 242. But, "findings
of fact are entitled to considerable deference under the clearly
erroneous standard of review." Id. See United States v. Robins,
978 F.2d 881, 889 (5th Cir. 1992) ("The clearly erroneous standard
applies to the factual determination of what quantity of drugs is
- 19 -

implicated by the crime under consideration by the sentencing
court"); United States v. Watson, 988 F.2d 544, 550 (5th Cir. 1993)
("We review a district court's finding that a defendant was an
organizer or leader under the clearly erroneous standard"). "[T]he
district court need only determine its factual findings at
sentencing by a preponderance of the relevant and sufficiently
reliable evidence". United States v. Angulo, 927 F.2d 202, 205
(5th Cir. 1991) (internal quotation marks and citation omitted).
1.
Montoya-Lujan contends that he was denied due process because
the district court based its calculation of his base offense level
on unreliable information regarding drug quantities involved in
unadjudicated extraneous offenses.
"Due process does require that information relied upon when
determining an appropriate sentence have some minimal indicium of
reliability and bear some rational relationship to the decision to
impose a particular sentence." United States v. Angulo, 927 F.2d
at 204 (internal quotation marks and citation omitted). "The
guidelines provide that in resolving any disputed fact the court
may consider any information that has `sufficient indicia of
reliability to support its probable accuracy'". Id. at 204-05
(citing U.S.S.G. ง 6A1.3, p.s.). "[A] presentence report generally
bears sufficient indicia of reliability to be considered as
evidence by the trial court in making the factual determinations
required by the Guidelines. And it is proper for the district
court to rely on a presentence report's construction of evidence to
- 20 -

resolve a factual dispute, rather than relying on the defendant's
version of the facts". United States v. Robins, 978 F.2d at 889.
The PSR states that, based on the DEA's investigation, Agent
Mueller was of the opinion that the cocaine seized on October 17
was part of the 750-kilogram shipment from Colombia that Montoya-
Lujan received in Mexico in August 1990. And, Agent Mueller
testified at trial, based on his 20 years of experience with the
DEA, including being stationed in Bogota, Colombia, for five years,
that the cocaine seized on October 17 was 94% pure, industrial
strength, cocaine that came straight from the laboratory; he opined
that the source was the Medellin Cartel in Colombia.
Montoya-Lujan did not produce any evidence to contradict Agent
Mueller's conclusion, and did not attempt to question Agent Mueller
or the probation officer at the sentencing hearing. In light of
the evidence regarding Montoya-Lujan's involvement with shipments
of cocaine into the United States following the delivery of the
750-kilogram load to Mexico, and the temporal proximity between the
shipment of the 750-kilogram load in August 1990 and the 220-
kilogram seizure on October 17, we conclude that Agent Mueller's
opinion is sufficiently reliable to support its probable accuracy.
Montoya-Lujan's due process rights were not violated.
2.
Pursuant to U.S.S.G. ง 3B1.1, four points are added to the
offense level if the defendant was an organizer or leader of
criminal activity that involved five or more participants or was
otherwise extensive. Each Appellant challenges receiving this
- 21 -

adjustment, contending that the underlying leadership role finding
was improperly based on unreliable evidence of collateral
unadjudicated offenses.
(a)
For his challenge to this finding, Montoya-Lujan contends
again that he was denied due process. The probation officer's
leadership conclusion concerning Montoya-Lujan was based on
information provided to the probation officer by the United States
Attorney and the DEA.
As stated, Agent Mueller's opinion that the 220 kilograms of
cocaine seized on October 17 were part of the 750-kilogram load
received by Montoya-Lujan in Mexico is sufficiently reliable to
support its probable accuracy. At trial, there was testimony that
Montoya-Lujan was in charge of transporting the 750 kilograms from
Mexico into the United States. As also stated, although Agent
Mueller was available to provide additional clarification, Montoya-
Lujan did not question him or the probation officer at the
sentencing hearing. We conclude that the finding regarding
Montoya-Lujan's role in the offense is based on information that is
sufficiently reliable to support its probable accuracy.
(b)
Montoya-Ortiz asserts that, instead of this upward adjustment,
he should have received a two- or four-level decrease as either a
minimal or a minor participant. In assessing a defendant's role in
the offense, "[i]t is not the contours of the offense charged that
defines the outer limits of the transaction; rather it is the
- 22 -

contours of the underlying scheme itself". United States v. Mir,
919 F.2d 940, 945 (5th Cir. 1990); see also U.S.S.G. ง 3B1.1
introductory commentary ("The determination of a defendant's role
in the offense is to be made on the basis of all conduct within the
scope of ง 1B1.3 (Relevant Conduct), ... and not solely on the
basis of elements and acts cited in the count of conviction").
Accordingly, the district court was entitled to base its
finding with respect to Montoya-Ortiz's role in the offense on
reliable information that Montoya-Ortiz's involvement with the 220
kilograms of cocaine seized on October 17 was merely part of a
larger scheme to distribute the 750 kilograms of cocaine shipped
from Colombia to Mexico in August 1990. See United States v.
Michelena-Orovio, 719 F.2d 738, 746 (5th Cir. 1983) (en banc)
("Conspiracies to distribute narcotics have generally been
considered to be prime examples of chain, or interconnected,
conspiracies, in which a participant in a segment of the conspiracy
may be convicted of participation in the whole"), cert. denied, 465
U.S. 1104 (1984).
Montoya-Ortiz objected to the PSR's finding regarding his role
on the ground that his attorney had no information about the DEA
identifying him as an organizer or leader of a substantial drug
smuggling organization. However, he did not question either Agent
Mueller or the probation officer at the sentencing hearing
regarding that investigation, nor did he contend that the results
of the DEA investigation were inaccurate or otherwise unreliable.
Based on both the PSR and the evidence introduced at trial, we
- 23 -

conclude that the district court did not clearly err in finding
that Montoya-Ortiz occupied a leadership role in the offense.
3.
Montoya-Ortiz contends that the district court erred by
increasing his offense level by two levels, pursuant to U.S.S.G. ง
2D1.1(b)(1), for possession of a dangerous weapon. He does not
dispute that, during a search following the stop near Balmorhea on
October 17, a Ruger .357 Magnum pistol was found in the cab of the
truck he was driving. Instead, he asserts that the district court
was precluded from considering evidence of the weapon at
sentencing, because it had suppressed evidence of the weapon at
trial.
Our court recently held that "[t]he exclusionary rule
applicable to Fourth Amendment violations is generally inapplicable
to the district court's consideration of evidence for purposes of
sentencing." United States v. Robins, 978 F.2d at 891. Although
the evidence about which Robins complained was not suppressed at
trial, Robins relied in part on United States v. Torres, 926 F.2d
321, 325 (3d Cir. 1991), which held that evidence suppressed at
trial for violation of the Fourth Amendment may later be considered
in determining a defendant's base offense level under the
Guidelines. Robins, 978 F.2d at 891-92. We agree.10
10
Montoya-Ortiz does not contend that the weapon was
unconstitutionally seized for the sole purpose of enhancing his
sentence. See Robins, 978 F.2d at 891-92 (discussing Verdugo v.
United States, 402 F.2d 599 (9th Cir. 1968) (prohibiting the use
of illegally seized evidence at sentencing when such use would
provide a substantial incentive for unconstitutional searches and
seizures), cert. denied, 402 U.S. 961 (1971)). See also United
- 24 -

Along this line, the Sentencing Guidelines provide that "the
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. ง 6A1.3(a). Montoya-
Ortiz does not contend that there are insufficient indicia of
reliability to support the probable accuracy of the evidence
regarding the seized weapon. Accordingly, the district court did
not err in considering the weapon for purposes of calculating
Montoya-Ortiz's offense level.
4.
Montoya-Ortiz asserts that his base offense level should have
been 38, based only on the 220 kilograms of cocaine seized on
October 17, 1990. In the PSR, however, the probation officer found
the level to be 40, based on 500-1,500 kilograms of cocaine. The
States v. Tejada, 956 F.2d 1256, 1263 (2d Cir.) ("Absent a
showing that officers obtained evidence expressly to enhance a
sentence, a district judge may not refuse to consider relevant
evidence at sentencing, even if that evidence has been seized in
violation of the Fourth Amendment"), cert. denied, ___ U.S. ___,
113 S. Ct. 124 (1992); United States v. Lynch, 934 F.2d 1226,
1237 (11th Cir. 1991) (declining to extend exclusionary rule to
sentencing proceedings), cert. denied, ___ U.S. ___, 112 S. Ct.
885 (1992); United States v. McCrory, 930 F.2d 63, 68 (D.C. Cir.
1991) (under particular facts of case, deterrent effect of
exclusionary rule would not outweigh detrimental effect of
excluding the evidence at sentencing), cert. denied, ___ U.S.
___, 112 S. Ct. 885 (1992). Contra, United States v. Nichols,
979 F.2d 402, 410-11 (6th Cir. 1992) ("exclusionary rule bars a
sentencing court's reliance on evidence illegally seized during
the investigation or arrest of a defendant for the crime of
conviction in determining the defendant's sentence under the
sentencing guidelines"). Cf. United States v. Montez, 952 F.2d
854, 856 (5th Cir. 1992) (exclusionary rule does not apply in
supervised release revocation hearings absent a showing of
harassment).
- 25 -

district court overruled Montoya-Ortiz's objections to being held
accountable for more than the 220 kilograms. Montoya-Ortiz
contends again that the district court erred in finding that he had
participated in other extraneous cocaine-related offenses, and in
using quantities of cocaine involved in those offenses to determine
his base offense level. Finally, he contends, albeit for the first
time on appeal, that the district court erred by failing to make a
specific finding that quantities of cocaine other than the 220
kilograms for which he was convicted were reasonably foreseeable to
him.
We need not decide this issue, because even if the district
court had considered only the 220 kilograms seized on October 17,
we conclude that the same sentence would have been imposed.
Accordingly, error, if any, in considering additional quantities of
cocaine, and the lack of a finding on those additional quantities,
was harmless. See United States v. Johnson, 961 F.2d 1188, 1189
(5th Cir. 1992) (citing Williams v. United States, ___ U.S. ___,
112 S. Ct. 1112, 1120-21 (1992)) (remand for resentencing is
unnecessary if "the district court would have imposed the same
sentence").
As stated by Montoya-Ortiz, and based on the 220 kilograms,
his base offense level would have been 38. U.S.S.G. ง 2D1.1(c)(3).
A base offense level of 38, plus a four-level increase for Montoya-
Ortiz's role as an organizer or leader, and a two-level increase
for possession of a dangerous weapon, results in a total offense
level of 44, one level above the highest level in the sentencing
- 26 -

table. U.S.S.G. Ch. 5, pt. A (Sentencing Table). The Guidelines
sentence for a defendant with a total offense level of 43 and a
criminal history category of II is life imprisonment. Id.
Therefore, error, if any, with respect to the quantity of cocaine
for purposes of calculating Montoya-Ortiz's base offense level was
harmless.
III.
The convictions and sentences of both Appellants are
AFFIRMED.
HAROLD R. DeMOSS, JR., Circuit Judge, dissenting:
I am unable to concur with the conclusion reached by my
colleagues in Part II, A 2 of the majority opinion, and I write to
express my contrary view that the evidence in this case as to
Montoya-Ortiz was not sufficient to support a jury finding of guilt
beyond a reasonable doubt. I have agonized long and hard over the
circumstances of this case, and I have come to the conclusion that
the evidence against Montoya-Ortiz is not sufficient because the
presumption of innocence and the requirement that the government
prove its case beyond a reasonable doubt compel such a conclusion
in a case such as this where the evidence is entirely
circumstantial and the inferences to be drawn therefrom are not
necessarily the result of the circumstantial facts.
- 27 -

My assessment of the sufficiency of the evidence in this case
against Montoya-Ortiz has undoubtedly been colored by the following
considerations which continually popped up in my mind as I analyzed
the record in this case and thought through the implications of the
evidence and testimony presented:
a.
Montoya-Ortiz has received a sentence of life
imprisonment. While I recognize that such a sentence is not as
final as a death sentence, it is the next thing to it in that it
results in the deprivation of this defendant's liberty for the rest
of his natural life on earth.
b.
I am bothered by the disparity between the sentences
which Montoya-Ortiz received and the sentence of 97 months received
by the government's star witness, Moreno. Moreno was the person
who drove the truck from which the 220 kilograms of cocaine were
seized on October 17, 1990. Furthermore, Moreno admitted in his
testimony that he drove another truck earlier in September carrying
another load of cocaine. Using only the quantity of cocaine seized
by the government on October 17, and assuming that Moreno had no
criminal history points of any kind, his base offense level would
have started at 38, which calls for a sentencing range of 235 to
293 months. Furthermore, as indicated by footnote 1 of the
majority opinion, a motion for reduction of Moreno's sentence was
pending at the time of Montoya-Ortiz's trial.
c.
I am bothered by the sequence of the indictments in this
case. The events for which Montoya-Ortiz has been sentenced to
life in prison allegedly occurred on October 17, 1990. Montoya-
Ortiz, Ramos Calderon, and Moreno were indicted in October 1990,

and Moreno pleaded guilty to the charges of that indictment in
December 1990. Thereafter, the original indictment was dismissed
without prejudice as to Ramos Calderon and Montoya-Ortiz. Finally,
in December 1991, Montoya-Ortiz and Ramos Calderon were re-indicted
along with Montoya-Lujan. Given the requirements of the Speedy
Trial Act, I have to conclude that the government dismissed its
original indictment as to Montoya-Ortiz because they did not have
sufficient evidence to bring those charges to trial within 70 days
after the original indictment.
d.
Finally, I am bothered by the veritable flood of Rule
404(b) testimony, admitted in this case, not only from Moreno but
from three other convicted criminals turned government witnesses.
All of this testimony, however, related to prior bad acts of
Montoya-Lujan, not Montoya-Ortiz; and nowhere in any of this
testimony does any witness even mention Montoya-Ortiz. Given that
those whom the government has joined together in a conspiracy
indictment have virtually no opportunity of getting a severance for
separate trials, the possibility that the jury decided that
Montoya-Ortiz was guilty because there was so much testimony of bad
conduct on the part of Montoya-Lujan is a very real and ever-
present danger in this case.
With the foregoing in mind, and recognizing that Montoya-Ortiz
meticulously preserved for appellate review his contention that the
evidence in this case was insufficient, I examined the record in
this case with a sense of heightened scrutiny, making sure that
that evidence and testimony that the trial court ruled inadmissible
- 29 -

was omitted from consideration and that all of the Rule 404(b)
testimony was not considered for the purpose of testing the
sufficiency of evidence against Montoya-Ortiz. That the evidence
against Montoya-Ortiz is circumstantial and thin, is beyond
question. Though they do not expressly say so, my colleagues in
the majority opinion implicitly recognize that the evidence against
Montoya-Ortiz is thin; they take one-sixth of the space in their
opinion to discuss the evidence against Montoya-Ortiz compared with
the space in which they discuss the sufficiency of evidence against
Montoya-Lujan. Ultimately, my disagreement with the majority turns
on the inferences to be drawn from the thin quantity of
circumstantial
evidence
that
relates
to
Montoya-Ortiz's
involvement. Essentially the majority sustains the jury verdict
against Montoya-Ortiz on the basis of inferences drawn from the
following circumstances:
1.
The instruction given by Ramos Calderon to Moreno to
"wait about 25 minutes and then leave."
2.
The explanation which Montoya-Ortiz gave as to going to
Presidio to purchase hay.
3.
The conduct of Montoya-Ortiz when Moreno was brought into
the checkpoint trailer, south of Marfa; and
4.
The nervousness which Montoya-Ortiz exhibited and his
failure to say good-bye to the deputy sheriff that stopped him near
Balmorhea.
For discussion purposes, I treat the last three of these
circumstances together, because they were all events testified to
- 30 -

by law enforcement officers and occurred on October 17, 1990, the
day of the criminal activity alleged in the indictments. First of
all, the statement of going to Presidio to get hay was not in-and-
of-itself incorrect. As the majority indicates, there was in fact
a farm near Presidio which grew alfalfa hay and that was the type
of hay on Montoya-Ortiz's trailer. Clearly, none of the law
enforcement officers thought on October 17 that this explanation
was sufficiently implausible to justify arresting Montoya-Ortiz,
because on two occasions they released him to proceed on his way
after giving this explanation. At trial the government elicited
testimony about the availability of hay in New Mexico as an ex post
facto assertion of implausibility. And even the general testimony
about availability of hay in New Mexico does not undercut the
credibility of Montoya-Ortiz's statement. If Montoya-Ortiz had
said, "the nearest place I can get alfalfa hay is in Presidio,"
then testimony that alfalfa hay was available in New Mexico, which
was much closer, would make that statement implausible. Likewise,
if the government had offered testimony from the owner and operator
of the hay farm near Presidio that Montoya-Ortiz never bought any
hay from him; or if the government had offered testimony that
Montoya-Ortiz did not own any animals which would eat hay, then the
jury could logically infer that Montoya-Ortiz was trying to use his
trip to Presidio as a cover for some other activity. But the
government did not offer any such proof, and no inference of
"possession or knowledge" can reasonably be inferred from Montoya-
Ortiz's statement about going to Presidio for hay.
- 31 -

Similarly, whatever conduct Montoya-Ortiz exhibited which the
officers at the checkpoint south of Marfa described as
"deliberately ignoring" Moreno, cannot sustain any inference of
guilt. Moreno clearly testified that he "did not know" Montoya-
Ortiz, but only had "seen" him. There is no testimony whatsoever
in the record that Moreno ever talked to Montoya-Ortiz or even that
Moreno was ever in Montoya-Ortiz's immediate presence. Whatever
happened in terms of recognition, or not, among these defendants,
it was not perceived on that day by the law enforcement officers as
being indicative of any guilt on the part of Montoya-Ortiz because
they allowed Montoya-Ortiz and Ramos Calderon to proceed on their
way after Moreno was brought in. Likewise, the much testified
about "lead truck/load truck" theory did not ring any bells with
the law enforcement officers at the checkpoint south of Marfa.
They had both trucks at the secondary inspection point; they had
all three occupants of these vehicles in the trailer; the dog
alerted to the second truck during the canine sniff inspection; and
Ramos Calderon was allegedly "a known narcotics dealer." In spite
of the concurrence of all of these circumstances, the officers at
the check point obviously concluded that they did not have probable
cause to hold Montoya-Ortiz and Ramos Calderon and they let them
go. In my book, if the trained officers did not draw the
inferences of wrong doing from the circumstances, then those
circumstances are insufficient to sustain a jury verdict 14-months
later.
- 32 -

The last set of circumstances that occurred on October 17 in
the presence of government officers were the events that took place
near Balmorhea when the deputy sheriff stopped Montoya-Ortiz's
truck pursuant to instructions which he had received from the DEA
officers, because the DEA had discovered that the truck which
Moreno was driving belonged to Ramos Calderon. The government and
the majority opinion make much of the fact that this deputy sheriff
was a distant relative of Montoya-Ortiz and that this distant
relative testified that Montoya-Ortiz was "extremely nervous" and
took off without even saying good-bye, when the officers ultimately
released Montoya-Ortiz. The testimony by the deputy sheriff,
regarding nervousness was brief and conclusionary. I am
continually bothered by the extent to which our Court has
recognized "nervousness" as a mantra which police officers can
recite to justify further inquiry and search. However, in the rare
cases such as this one, where further inquiry and search fails to
turn up any objective evidence of wrong doing, then I submit
nervousness loses its value as evidence of guilt. I would suggest
that "nervousness" is not an atypical reaction when the average
citizen is stopped by a police officer. It is the unexpected and
the unanticipated confrontation with police officers that gives one
the jitters. If we assume that the government's theory of this
case is correct, and that Montoya-Ortiz was the leader of the
conspiracy that was attempting to smuggle the cocaine in the second
truck driven by Moreno, then once Montoya-Ortiz and Ramos Calderon
were released from the checkpoint south of Marfa, they would
- 33 -

proceed with the knowledge that (i) the second truck had been
stopped at the checkpoint, (ii) Moreno had been brought inside for
questioning, and (iii) more than likely the canine sniffer which
inspected their own vehicle had inspected the second truck.
Whether they knew the dog had alerted to the second truck is not
clear from the record, but certainly that would be a known and
expectable event. Given this knowledge, what course would guilty
minds then follow? First they would wait a sufficient period of
time somewhere along the route to see whether or not Moreno and his
truck were released. The longer they waited, the more likely it
became that the second truck had been searched and the cocaine
found. When sufficient time elapsed to reach the conclusion that
the second truck and its cargo had been compromised, they would
have two alternatives. First, to escape, ditch their own trailer,
change course, and attempt to avoid apprehension; or proceed along
their original course towards home, but being prepared to face the
possibility that they would be stopped when the DEA agents checked
the registration plates on the second truck and learned that it was
registered to Ramos Calderon. When ultimately stopped, the truck
and trailer were still on the highway headed most directly back to
Montoya-Ortiz's home in Andrews. So under the government's theory,
the conspirators did not elect to try to escape; but they would,
however, be proceeding with the awareness that at any time they
could be stopped, and they had ample time to prepare themselves for
that eventuality.
- 34 -

On the other hand, assume, as the law presumes, that Montoya-
Ortiz was not involved in the conspiracy, was not aware of the
cocaine in the second truck, and was not aware that the second
truck belonged to Ramos Calderon. The stop at the Immigration
checkpoint south of Marfa was a routine, and anticipated event,
since neither he nor Ramos Calderon were U.S. citizens. After
being released at the Immigration checkpoint, they proceeded on
their route home; and the stop by the deputy sheriff outside of
Balmorhea was an unanticipated event, at least to Montoya-Ortiz.
It was the unanticipated circumstance which precipitated his
nervousness, rather than guilty knowledge. Once stopped, Montoya-
Ortiz had to go through the aggravation of delay until the DEA
agents arrived, then the aggravation of having his truck and
trailer unloaded and searched and reloaded, and then the upset of
having his passenger arrested. That he then left without saying
"good-bye" to the deputy sheriff, in my mind does not come even
close, to being an indicia of guilt. It is self-evident from the
facts of the officers who arrested Ramos Calderon that they did not
view the "nervousness" of Montoya-Ortiz as sufficient evidence of
probable cause to arrest Montoya-Ortiz too.
Finally, I address the significance of the instruction which
Ramos Calderon gave to Moreno at the motel in Presidio. It is
important to note that the record clearly establishes that Moreno
did not hear what, if anything, Montoya-Ortiz said to Ramos
Calderon. The only person that Moreno ever heard say anything was
Ramos Calderon. It is also important to note that Ramos Calderon,
- 35 -

while named as a defendant in the counts of the indictment, was a
fugitive at the time of trial and not present in the courtroom. It
is also important to note the content of instruction given by Ramos
Calderon. It does not mention Montoya-Ortiz either directly or
indirectly. It does not mention anything about lead truck or load
truck. It does not mention anything about the cocaine, either
expressly or by code name. It does not refer directly or
indirectly to the checkpoint south of Marfa. In short, the words
used by Ramos Calderon do not raise or suggest any inference
whatsoever regarding what, if anything, Montoya-Ortiz may have
previously said to Ramos Calderon. In my book, an inference is a
conclusion which may be drawn as a matter of logic or as a matter
of high probability from other known facts. What Ramos Calderon
said to Moreno, cannot be used to infer knowledge of anything on
the part of Montoya-Ortiz. It is possible, of course, as the
majority concludes, that Montoya-Ortiz told Ramos Calderon to tell
Moreno exactly what he did. It is also possible that whatever
Montoya-Ortiz said to Ramos Calderon had absolutely nothing to do
with what Ramos Calderon said to Moreno. In short, I cannot agree
that any inference flows as a matter of logic or high probability
from the words stated by Ramos Calderon to Moreno; and I disagree
fundamentally with the precedents relied upon by the majority which
use the words "could have found" instead of "would have found" as
the criteria by which a reasonable jury would measure the evidence.
For all of the foregoing reasons, I would hold that the
evidence was not sufficient to show that there was an agreement on
- 36 -

the part of Montoya-Ortiz to enter the conspiracy which Moreno
described between himself, Ramos Calderon, and Montoya-Lujan; and
since there was no evidence of any kind of any possession by
Montoya-Ortiz of the cocaine in question, the conviction of
Montoya-Ortiz under counts 1 and 2 should be overturned.
c:br:opinions:92-8204:dis
- 37 -