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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 93-7388
___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MANUEL FLORES,
Defendant-Appellant.
* * * * * * * * * * * * * * * * * * * * * *
______________________________
No. 93-7662
______________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JUAN RAUL GARZA,
Defendant-Appellant.
___________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
____________________________________________________
(September 1, 1995)
Before DAVIS, SMITH and WIENER, Circuit Judges.
DAVIS, Circuit Judge:
In this consolidated appeal both Juan Raul Garza and Manuel
Flores challenge their convictions and sentences. Juan Raul Garza
was convicted of five violations of various drug trafficking laws1,
operating a continuing criminal enterprise (CCE)2, money
laundering3, and three counts of killing in furtherance of a CCE.4
After a punishment hearing, the same jury recommended a death
sentence for the three killings. Accordingly, the court sentenced
Garza to death for counts 7, 8, and 9, and to concurrent terms of
imprisonment for life (counts 1, 2, and 6), 40 years (counts 3 and
5) and 20 years (counts 4 and 10). Garza challenges both his
conviction and his sentence.
At a separate trial, Manuel Flores was convicted of two counts
of killing in furtherance of Garza's CCE5, one count of conspiring
to import over 1,000 kilograms of marijuana6, and one count of
possession with intent to distribute over 1,000 kilograms of
1Count 1: conspiracy to import more than 1,000 kilograms of
marijuana into the U.S. from Mexico, 21 U.S.C. §§ 963, 952(a)(2)
and 960(b)(1)(G);
Count 2: conspiracy to possess with intent to distribute
more than 1,000 kilograms of marijuana, 21 U.S.C. §§ 846,
841(a)(1) and 841(b)(1)(A)(vii);
Count 3: possession with intent to distribute approximately
163.6 kilograms of marijuana, 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B)(vii); 18 U.S.C. § 2;
Count 4: possession with intent to distribute approximately
95.4 kilograms of marijuana, 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C); 18 U.S.C. § 2;
Count 5: possession with intent to distribute approximately
596.3 kilograms of marijuana, 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B)(vii); 18 U.S.C. § 2.
2Count 6: 21 U.S.C. §§ 841(a), 848(c) and 848(e)(1)(A); 18
U.S.C. § 2.
3Count 10: 18 U.S.C. § 1956(a)(1)(A)(1) and 18 U.S.C. § 2.
4Counts 7, 8 and 9: 21 U.S.C. §§ 848(a), 848(c) and 848(e);
18 U.S.C. § 2.
521 U.S.C. §§ 848(a), 848(c), 848(e) and 18 U.S.C. § 2
621 U.S.C. §§ 963, 952(a)(2) and 960(b)(1)(G).
2
marijuana7. Flores was sentenced to life imprisonment for each
murder count and to 327 concurrent months' imprisonment for the
other counts. We find no reversible error and affirm.
I. FACTS
From the early 1980's until 1992, Juan Raul Garza built and
controlled an intricate drug trafficking enterprise. Working with
friends and associates from the tough neighborhood of his youth,
Garza sold thousands of pounds of marijuana in Texas, Louisiana and
Michigan, reaping hundreds of thousands of dollars in return.
Garza originally bought from a supplier who imported the marijuana
into the United States for him, but eventually he sent his own
workers into Mexico to buy the drug and drive it across the border.
Garza occasionally suffered setbacks when loads of marijuana
or cash were seized by law enforcement agencies. In addition to
putting a dent in Garza's profit margin, these incidents made him
suspicious that certain of his workers and associates were
cooperating with the police. Being the object of Garza's mistrust
was not a healthy condition - as the victims of Garza's three
murder convictions would attest.
Gilberto Matos was the first of the three to be killed. Matos
was an associate of Erasmo De La Fuente, a drug smuggler who worked
with Garza. Garza suspected that De La Fuente had tipped off the
police about a 1,350 pound shipment of marijuana that had been
seized from one of Garza's storage houses. Garza commissioned some
of his workers to murder De La Fuente, but they ran into trouble
because De La Fuente was continually surrounded by a small
721 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A)(vii).
3
entourage, which included Matos. When his patience wore thin,
Garza ordered Manuel Flores and Israel Flores to break into Matos'
auto repair shop and lie in wait for either De La Fuente or Matos.
If only Matos appeared, they were to kill him as a forewarning to
De La Fuente. When the unlucky Matos arrived at his shop alone,
Israel and Manuel made him lie face down on the floor and waited
about 45 minutes in case De La Fuente might show up. When their
wait proved fruitless, Manuel shot Matos in the back of the head.
For their work, Garza paid Israel and Manuel with cash and a car.

But Garza did not abandon his plans to murder De La Fuente.
Five months later, Garza supplied Israel Flores and Jesus Flores
with guns and took them to De La Fuente's nightclub to kill him.8
Nervous, Israel consumed too much liquor to help with the murder
and had to be dropped off in an alley. Jesus picked up Manuel
Flores and they went back to the nightclub. When De La Fuente left
the club and got into his car, Manuel shot him twice through the
driver's window. Jesus fired shots into the air to distract the
police from chasing Manuel, hid in a ditch for a few hours, then
called Garza, who picked him up. Garza paid each of the Flores
brothers $10,000. The third victim was Thomas Rumbo. After
surveillance officers watched Rumbo help load marijuana into a
trailer, they stopped him and told him what they had seen. Rumbo
agreed to cooperate and turned the entire 360 pound shipment over
to the officers. Rumbo tried to disguise his infidelity by cutting
a hole in the fence surrounding the trailer and telling one of
Garza's associates that the drugs had been stolen. Not fooled,
8Manuel and Jesus are brothers and Israel is their cousin.
4
Garza figured that Rumbo had stolen his merchandise and went
directly to Rumbo's house, taking two of his workers with him.
Rumbo reluctantly got into Garza's pickup truck and they drove to
another worker's house, where Garza picked up a gun. They stopped
again at Jesus Flores' house and Jesus, who owed Garza money for
cocaine, volunteered to go along. All five got into Jesus' car and
they drove around while Jesus interrogated Rumbo. Rumbo stuck to
his story, so they drove out to a rural farm road and Garza told
Rumbo that he knew Rumbo had taken the marijuana. Rumbo was told
to get out of the car and to walk home. Rumbo protested that he
was wearing new shoes but then climbed out. Garza shot Rumbo in
the back of the head and Rumbo fell back into the car. Garza and
Jesus lugged Rumbo's body out into the brush and Garza shot him
four more times.
Gradually, law enforcement agents tightened the net around
Garza's operations. They tapped Garza's phone and surveilled his
activities, seized more loads of drugs and money, arrested some of
his workers and converted others into informants. At one point,
Garza himself was arrested after making a delivery to an undercover
agent. In February 1992, the U.S. Customs Service mounted a
sweeping interstate offensive, using an assault helicopter,
hundreds of agents and a S.W.A.T. team to secure and search the
homes of Garza and his workers. As a result of this raid, most of
Garza's associates were indicted and arrested. Garza himself fled
to Mexico and could not be found.
The authorities finally located Garza when he ran low on money
and phoned one of his Michigan associates to arrange a sale.
5
Unknown to Garza, this person was cooperating with the government
and allowed agents to tape record his conversations with Garza.
Agents traced the calls and contacted the Mexican government, which
apprehended Garza and turned him over to the U.S. Customs Service.
Following the February 1992 raid, Garza and fifteen of his co-
conspirators were originally indicted with two drug trafficking
counts. While Garza was a fugitive, the government made plea
agreements with most of these co-conspirators. In exchange for
their testimony against Garza, the government allowed them to plead
to lesser charges and promised to recommend substantially reduced
sentences. After the plea agreements, Garza was reindicted with
the ten counts described above. Several months before Garza's
trial, Manuel Flores was tried and convicted of the murders of
Gilberto Matos and Erasmo De La Fuente.
We turn now to a consideration of the issues Garza raises in
this appeal.
II. JUAN RAUL GARZA
As required by 21 U.S.C. § 848, Garza's trial was divided into
a guilt phase and a punishment phase. Garza raises several
complaints about both phases of his trial; we will address the
guilt phase issues first.
A. JURY SELECTION
For several reasons, Garza maintains that the district court
conducted voir dire in such a way as to deprive him of critical
information about the potential jurors' views on capital
punishment. The Supreme Court has recently reminded us that:
Voir dire is conducted under the supervision of the court
and a great deal must, of necessity, be left to its sound
6
discretion. Even so, part of the guaranty of a
defendant's right to an impartial jury is an adequate
voir dire to identify unqualified jurors. Voir dire
plays a critical function in assuring the criminal
defendant that his [constitutional] right to an impartial
jury will be honored.
Hence, the exercise of [the trial court's] discretion,
and the restriction upon inquiries at the request of
counsel, [are] subject to the essential demands of
fairness.
Morgan v. Illinois, 119 L.Ed.2d 492, 503 (1992). On appeal, we
will not disturb the scope and content of voir dire without a
showing that there was insufficient questioning to allow defense
counsel to exercise a reasonably knowledgeable right of challenge.
United States v. Shannon, 21 F.3d 77, 82 (5th Cir.), cert. denied,
115 S.Ct. 260 (1994); United States v. Rodriguez, 993 F.2d 1170,
1176 (5th Cir. 1993), cert. denied, 114 S.Ct. 1547 (1994).
1. Did the district court err by limiting voir dire?
At the district court's behest, the parties submitted an
agreed proposed procedure for jury selection. The parties
suggested that the clerk send the venire a 19-page questionnaire,
which included questions on a juror's beliefs about the death
penalty. The parties further suggested that the court question the
venire as a group about most issues and question jurors
individually about their attitudes toward the death penalty and
their exposure to pre-trial publicity; Government and defense
counsel would then be given five or ten minutes per juror to ask
follow up questions on these subjects.
Before jury selection, the district court informed counsel
that it would not permit such a long questionnaire to be submitted
and that in particular, it would not allow the potential jurors to
7
be questioned through the mail about their attitudes toward capital
punishment. Instead, the court approved a two page questionnaire
covering general facts about jurors' backgrounds. The court also
stated that it would allow individual sequestered voir dire about
the death penalty and publicity, but only of those jurors whose
responses to general questions indicated that they had a problem in
either area. The court rules that it would give two hours to each
side (later expanded to three) to question jurors about any topic
they wished. After this conference, Garza against asked the court
to permit him to examine each juror on the death penalty and
publicity. The court denied this request.
Garza argues that in light of the parties' agreement to follow
this procedure, the court erred in refusing to allow him to
question each juror on the capital punishment issue. Garza
emphasizes that jurors may be particularly reluctant to volunteer
their opinions on such a personal and emotional topic as capital
punishment and argues that individual questioning would be more
likely to elicit honest and detailed responses. Garza also
complains that the district court unduly restricted the questions
he could ask about capital punishment and the time in which he had
to ask them.
Although we are sympathetic to Garza's concerns, our role is
not to decide what voir dire procedure is best, but to determine
whether the procedure chosen by the district court is sufficient.
To do this, we ask "'whether the procedure used . . . created a
reasonable assurance that prejudice would be discovered if
present.'" United States v. Quiroz-Hernandez, 48 F.3d 858, 868
8
(5th Cir. 1995) (quoting United States v. Nell, 526 F.2d 1223, 1229
(5th Cir. 1976)). When measured against this standard, we are
convinced that the voir dire was adequate.
First, our careful review of the record shows that the group
voir dire was sufficient to identify those jurors who needed to be
questioned further about the death penalty. The court first asked
jurors to identify themselves if they were opposed to the death
penalty or would automatically impose the death penalty. The court
followed this with several other questions about capital punishment
and encouraged all the jurors to ask any questions they had. The
court then privately questioned in more detail the members of the
panel who responded. The court's questions were carefully designed
to put the jurors at ease and encourage them to respond fully, and
the jurors' answers reflect that the court was successful in
obtaining a free flow of information from the venire.
T h e
next day, the court permitted each side to question the jurors for
three hours. Both the government and Garza asked the venire about
their feelings toward specific aggravating and mitigating factors
and about the penalty process. These questions also elicited frank
responses from the venire. Throughout voir dire, when a juror came
forward with an answer suggesting bias, the court questioned the
juror separately and individually and most often allowed counsel to
ask questions as well.
Garza makes the related complaint that the court did not allow
him enough time to question each juror about the death penalty and
instructed him not to ask certain questions. Our review of the
record leads us to conclude that the time and questions allowed
9
were adequate. Although Garza lists a number of questions that the
court disapproved, the record reveals that the court actually
allowed Garza a great deal of latitude in his questioning of
individual jurors. Lastly, because our review of the specific
questions Garza wished to ask shows that they were not reasonably
necessary to enable Garza to challenge jurors over their views on
capital punishment, we conclude that the court did not abuse its
discretion in limiting them. Quiroz-Hernandez, 48 F.3d at 869.
As a whole, the court's plan to question the venire as a
group, to allow individual sequestered questioning of jurors who
came forward and to permit each side an additional three hours of
virtually unrestricted questioning was not an abuse of discretion.
See United States v. Guy, 924 F.2d 702, 707-08 (7th Cir. 1991)
(court did not err by conducting similar group voir dire on racial
prejudice). Although not every juror was ultimately questioned
individually, the record reflects that the two day voir dire
reasonably assured that the jurors' potential biases were uncovered
and explored.9
2.
Did the court err by refusing to permit Garza to
individually question Venire Members No. 11 and No. 19?
9We are unsure whether Garza means to challenge the court's
failure to individually question each juror about pretrial
publicity. However, our review of the record discloses that the
group questioning on this topic elicited a large number of
responses and that the court followed this up with thorough
individual questioning of the responding jurors. We see no abuse
of discretion on this issue, either.
Garza also criticizes the court for refusing the proposed
questionnaire and for substituting one that contained no
questions on the death penalty or pretrial publicity. However,
because the court provided for adequate questioning on all issues
during jury selection, the court's limitation on the
questionnaire was not an abuse of discretion.
10
Garza maintains that the court erred by dismissing jurors No.
11 and No. 19 for their opposition to the death penalty without
allowing him a sufficient opportunity to rehabilitate them. These
jurors both responded when the court initially asked who was
"against" the death penalty. When the court asked the follow-up
question whether they could "envision any setting, any case, not
this one, any case, that is just so heinous and so terrible and so
horrible, could you envision any case, in which you could find
yourselves voting for the death penalty," both of these jurors
unequivocally responded that they could not (in contrast to a
number of other "opposed" jurors who stated that they could). The
court then asked if these jurors could put aside their personal
feelings and "still follow the law," and again they responded that
they could not under any circumstances. The court denied Garza's
request to question No. 11 and No. 19 further and excused these
jurors as having "resoundingly" stated their disability in a
capital case. We see no error in the court's excusal of these
jurors. The district court, who observed these jurors and heard
their emphatic answers to his questions, was entitled to conclude
that further examination by counsel was pointless.
3.
Did the court err by dismissing for cause jurors opposed to
the death penalty?
Garza contends next that the district court erred by
dismissing for cause four jurors who indicated that they could not
impose the death penalty in his case. A district court properly
excuses a juror for cause when:
the juror's views [on the death penalty] would prevent or
substantially impair the performance of his duties as a juror
in accordance with his instructions and his oath.
11
Wainwright v. Witt, 469 U.S. 412, 424 (1985)); Williams v. Collins,
16 F.3d 626, 633 (5th Cir.), cert. denied, 115 S.Ct. 42 (1994).
This standard does not require the court to dismiss only those
jurors who would automatically vote against the death penalty in
every case. Stated differently, the trial court has the discretion
to excuse a juror when it "is left with the definite impression
that a prospective juror would be unable to faithfully and
impartially apply the law." Witt, 469 U.S. at 426. We give
considerable deference to the court's decision to excuse a juror on
this basis, because such decisions are based in large part on its
face-to-face credibility assessment of the prospective jurors. See
id., at 426-29 (although in habeas context, discussing universal
reasons for deference); United States v. Bryant, 991 F.2d 171, 174
(5th Cir. 1993) (decision to excuse juror for actual bias reviewed
for manifest abuse of discretion).
We first apply this standard to the court's dismissal of
jurors Ms. Nieto and Ms. Martinez. After thorough questioning by
the district court and counsel, both jurors stated that they would
only impose the death penalty if the defendant had abused and
murdered a very small child.10 Both jurors were unequivocal and the
10Ms. Nieto stated that she could only impose the death
penalty if the case "involved a rape and the murder of a small
child two or three years old." When the court questioned her
further, she said "Under no other circumstances. Only if it
involved a small child." Later, when the court asked Ms. Nieto
if she could follow the law, she replied, "Oh, I would only
follow the law if it involved a case such as I stated; otherwise,
no." The court then sustained the government's for-cause
challenge.
Ms. Martinez initially told the court that she was not in
favor of the death penalty, no matter how terrible the crime.
When the court asked her about a hypothetical case involving the
abuse of a three year old child, she stated that she might change
12
more the district court tested their beliefs, the more adamant they
became in their opposition to voting for death in any other case.
In these circumstances, the court did not abuse its discretion by
deciding that these jurors held beliefs that would substantially
impair them from performing their duties as jurors. Russell v.
Collins, 998 F.2d 1287, 1293 (5th Cir. 1993), cert. denied, 114
S.Ct. 1236 (1994) (juror might impose death only if victim was
small child); Bell v. Lynaugh, 828 F.2d 1085, 1092 (5th Cir.),
cert. denied, 484 U.S. 933 (1987) (juror might impose death only if
victim was a family member); Antwine v. Delo, 54 F.3d 1357, 1369
(8th Cir. 1995) (willingness to consider death in extreme
hypothetical situations does not render [potential jurors] immune
from exclusion for cause).
The third member dismissed was Mr. Narup, who told the court
that he could only impose death if the defendant had confessed to
the murder or if Mr. Narup himself had witnessed it.11 Garza argues
her mind if the victim was a child. The court asked if she could
envision imposing death in any other case and she replied that
she could not. The court then proposed the murder of a 20 year
old disabled victim who was abused and murdered and Ms. Martinez
answered, "When I say the death penalty, it makes me shake my
body all over." After persistent questioning from the court and
counsel, Ms. Martinez apparently became distraught and said, "It
is very hard for me to answer because it is the same question.
Death penalty." After the court noted several times on the
record that Ms. Martinez was becoming emotional it gently excused
her.
11Mr. Narup stated that he would not be able to believe even
an eye witness to a murder. As Mr. Narup himself put it, "They
make erasers on pencils but they don't make an antidote for a
lethal injection." The court carefully explained the reasonable
doubt standard and Mr. Narup responded:
I would probably always have a reasonable doubt. That is
the problem. Again, . . . I am not strict against the death
penalty. If I saw somebody committing a murder and I had a
13
that the court inappropriately dismissed Mr. Narup because "it is
up to each individual citizen to judge for himself the degree of
proof of guilt beyond a reasonable doubt." However, Mr. Narup did
not say that he would hold the government to a high standard;
rather, he indicated that he would hold the government to an
impossible standard. Essentially, Mr. Narup told the court that if
the defendant's life was at stake, no degree of proof would be
sufficient. The district court did not abuse its discretion in
concluding that Mr. Narup would be unable to follow its
instructions. See Drew v. Collins, 964 F.2d 411, 417 (5th Cir.
1992), cert. denied, 113 S.Ct. 3044 (1993) (proper to excuse juror
who would hold government to higher standard than reasonable
doubt).
Lastly, we consider the court's excusal of Mr. Flores. Mr.
Flores originally did not indicate that he was opposed to the death
penalty. Later, Mr. Flores apparently became aware that some of
the victims in the case had been involved in drug trafficking and
informed the court that he could never vote for the death penalty
in any case in which the victim was involved with drugs. The court
attempted to steer Mr. Flores away from considering these
particular circumstances of Garza's trial, but Mr. Flores
gun, I would shoot him. I am not against that, but I am
against shooting the guy whenever he may not have done it.
Somebody else comes over and said he did it. I don't know
that he did or not. I don't know this guy's motives. I
would have a reasonable doubt in my head.
Defense counsel attempted to rehabilitate Mr. Narup by
asking whether he could sit in judgment of a defendant who had
killed the President, to which Mr. Narup retorted, "If Oswald
hadn't been shot they would have executed him, wouldn't they?
Right now they still don't know whether he did it or not."
14
persisted. After further questioning, Mr. Flores agreed with the
government's statement that "if the person who is killed is another
drug dealer or a competitor or somebody else who is in the same
organization or something like that, in those situations [he] would
never consider the death penalty, [and] would never impose the
death penalty." The following discussion ensued:
GOVT:
In other words, if [the victim] was a person who was in
drugs . . . and the law says whether or not the person -
- whether or not the victim is one, you should still be
able to consider assessing the death penalty, you would
not be able to follow that law.
FLORES:
I would not be able to give the death penalty to
someone that is in the same thing that he [Garza] is
doing. They are both in drugs.
COURT:
Let's ask it this way. Let us say that the law does
not distinguish whether the person that was killed was
in drugs or not in drugs. Are you saying that under no
circumstances, if he was, that you could not follow
that law and give death under those circumstances?
FLORES:
Right, that is what I am saying.
After repeating several more times that he could not impose death
in a drug-related killing, Mr. Flores was excused.
As Garza points out, Mr. Flores was in a slightly different
position than Ms. Nieto and Ms. Martinez. Rather than identifying
the only case in which he could impose death, Mr. Flores indicated
that only in a case like Garza's could he not impose death. Garza
contends that this difference is one of constitutional dimension;
that even if Witt permits the court to dismiss Ms. Nieto and Ms.
Martinez, it does not support the dismissal of Mr. Flores. We
cannot agree. While the process of qualifying jurors to sit in a
capital case is of particular importance, "[h]ere, as elsewhere,
the quest is for jurors who will conscientiously apply the law and
15
find the facts." Witt, 469 U.S. at 423. The district court is not
limited to disqualifying only those jurors who would never vote for
the death penalty, id. at 421, but can excuse those who cannot set
aside their own predilections in deference to the rule of law.
Lockhart v. McCree, 476 U.S. 162, 176 (1986).
In Mr. Flores' case, the source of his bias was not the death
penalty in the abstract, or in some irrelevant hypothetical case.
Mr. Flores volunteered that he would not be able to overcome his
bias and vote in favor of the death penalty where the victim was a
co-conspirator in a drug trafficking case. The district court was
not required to ignore this bias and did not abuse its discretion
by excusing Mr. Flores.
4.
Did the court err by denying Garza's for-cause challenges to
certain jurors?
During voir dire, Garza challenged for cause two jurors for
their exposure to pretrial publicity and six for their
relationships to government witnesses and law enforcement
officers.12 The district court denied these challenges.
a. Pretrial publicity
Garza contends that the district court erred by not excusing
Ms. Esparza and Mr. Krell, both of whom had heard some publicity
about Garza's upcoming trial. Ms. Esparza told the court that she
had seen a recent article in the newspaper that had mentioned that
Garza was to be tried for drug trafficking. She did not remember
any reference to alleged killings or deaths. When the court asked
12Only two of these venire members went on to serve as
jurors. However, the record does not reveal whether Garza had to
use peremptory challenges to have the others excluded.
16
her if the article had caused her to form an opinion, she stated
that it had, "[b]ecause there is so much of that [drugs] in our
community. And we have so many young children. And I have
grandchildren." When the court asked if she would have trouble
being fair and impartial in a drug case, she replied "But I don't
have the facts, you see. I would have to see what exactly is
presented and then I would be able to." After thorough
questioning, Ms. Esparza assured the court that she could be fair,
that she did not already believe that Garza was guilty and that she
would only make a determination after all the facts had been
presented to her. Lastly, the court asked her if, despite the
article, she could view the evidence with a clean and open mind,
and she replied that she could.
Mr. Krell informed the court that he had been in a scuba
diving class with Thomas Rumbo twenty years earlier and had heard
that he had been shot. Mr. Krell stated that he had not known
Rumbo personally and had not heard anything further about his
death. When the court asked Mr. Krell if he had any information
about how Rumbo had died, Mr. Krell responded "I don't know
anything about what happened." During a number of follow-up
questions, Mr. Krell said that he would be able to be impartial and
that he could make a decision based solely on the evidence.
As we have previously stated, "[a] person is not automatically
rendered unqualified to serve as a juror merely because he has been
exposed to media coverage of the charged crime. The issue becomes
whether exposure to media publicity will preclude the individual
from returning a verdict based solely on the person's application
17
of the law as stated to the evidence presented." Bell, 828 F.2d at
1093. The district court must decide this question after observing
"the demeanor and response of the prospective jurors and
[evaluating] any possible prejudice." United States v. Doggett,
821 F.2d 1049, 1051 (5th Cir. 1987). We will only second-guess the
court's decision that a juror is unbiased if there is an abuse of
discretion. Id.
We see no abuse of discretion in the court's conclusion that
neither Ms. Esparza nor Mr. Krell was biased by what they had
heard. The court carefully and thoroughly questioned both jurors
and allowed counsel to question them as well. The court was
entitled to find that these panel members were not tainted by media
coverage and were able to serve as jurors.13
b. Law enforcement connections
Garza also argues that the court should have excused a number
of jurors who were acquainted with government witnesses or members
of law enforcement. Garza complains about Ms. Scheiner, who was a
friend of Jim Parker, a potential government witness from the
district attorney's office14; Ms. Casas, who had several distant
13In a footnote, Garza asserts that the district court's
denial of his motion for a change of venue was an abuse of
discretion. Garza has pointed to nothing in the record in
support of this argument; thus, we find that Garza has
insufficiently presented this issue for review. McKethan v.
Texas Farm Bureau, 996 F.2d at 739 n.9 (5th Cir. 1993), cert.
denied, 114 S.Ct. 694 (1994).
14Ms. Scheiner stated that her children had grown up with
Parker's and that during that time, she travelled with Parker's
wife to Mexico. Ms. Scheiner also clarified that in the past ten
years, their children had gone separate ways and it had been a
long time since she had seen Parker.
18
connections to law enforcement15; Mr. Robles, who had friends who
worked for law enforcement and knew a government witness16; Mr.
Guevara, who worked at the Cameron County tax office and knew
several witnesses17; Mr. Medill, who was friends with several police
officers that he saw every three or four months; and Mr. Moreno,
was friends with a law enforcement witness but had not seen him in
two years. The district court specifically found that Guevara,
Medill and Moreno would not bring any pro-law enforcement bias to
their jobs as jurors and denied Garza's challenges to all six of
these jurors.
Again, we review the court's determination of a juror's actual
bias only for manifest abuse of discretion. Bryant, 991 F.2d at
174. After carefully reviewing the voir dire record, we conclude
that the court did not err.
B. TAPE RECORDINGS
1.
Did the court err by admitting tape recorded conversations?
For two reasons, Garza contends that the district court should
have excluded four tape recorded conversations between himself and
a co-conspirator, Daniel Bordayo. Bordayo had been arrested in the
February 1992 raid on Garza's operations and had pled guilty to
15Ms. Casas had children who grew up with the children of
Luis Romero, a witness from the Texas Department of Public
Safety; had a niece-in-law whom she thought worked for
Immigration and whom she had not seen in three or four years; and
had relatives on various police forces.
16Mr. Robles had friends who worked for Immigration, the
Brownsville Police Department, and as a Justice of the Peace. He
also knew Tony Torres, a prosecution witness, but stated that he
would not give his testimony any greater weight.
17Mr. Guevara worked in the same building as Tony Torres,
had gone to school with one witness and was a cousin of another.
19
several drug-related charges. Bordayo got word that Garza was
trying to contact him from Mexico, in hopes of raising cash and
revitalizing his decimated drug enterprise. Bordayo volunteered
this information to the government and consented to having the
phone calls with Garza recorded. The record reveals that the
government's primary objective was to learn Garza's whereabouts by
tracing these calls. At trial, the government introduced four of
these tape recorded conversations, in which Garza proposes a sale
of "commodities" and discusses the details with Bordayo.
First, Garza contends that the government violated his Sixth
Amendment right to counsel by using Bordayo to elicit incriminating
statements following his February 1992 indictment. However, Garza
did not raise this objection below. The record reveals that Garza
instead objected on grounds that the conspiracy had ended when the
statements were made. Thus, we apply the plain error standard.
United States v. Calverley, 37 F.3d 160 (5th Cir. 1994).
The district court's decision to admit these tapes was not
plain error. Assuming without deciding that Bordayo was acting as
a government agent, Garza has not met his burden of showing either
that the admission of the tapes affected the outcome of his
proceedings or that it seriously affected the fairness, integrity,
or public reputation of judicial proceedings. Calverley, 37 F.3d
at 164. These tapes were conceivably relevant only to Counts One
and Two (conspiracy to import marijuana and conspiracy to possess
with intent to distribute). The government offered overwhelming
evidence on these charges, including testimony from numerous
cooperating conspirators and law enforcement agents, supported by
20
many items of seized physical evidence and photographs. Given the
many legs upon which the guilty verdicts stood, Garza's general
assertion that the tapes prejudiced the jury against him is
insufficient.
Garza next argues that both his and Bordayo's statements were
inadmissible hearsay because they were not made in furtherance of
the conspiracy. This argument is entirely meritless, because
Garza's statements were admissible not as co-conspirator statements
but as the admissions of a party-opponent. Fed. R. Evid.
801(d)(2)(A); United States v. Clemons, 676 F.2d 122, 123 (5th Cir.
1982). Bordayo's statements were reciprocal and integrated
utterances and were admissible to put Garza's own statements in
context. United States v. Gutierrez-Chavez, 842 F.2d 77, 81 (5th
Cir. 1988). Even if Garza could no longer conspire with Bordayo,
because Bordayo had been arrested, Garza's statements were also
relevant and admissible to confirm the earlier conspiracy.18 United
States v. Goff, 847 F.2d 149, 168 n. 27 (5th Cir.), cert. denied,
488 U.S. 932 (1988).
2. Did the district court err by allowing non-expert witnesses to
testify as to certain tape recordings?
Garza maintains that the court erred by allowing three members
of the conspiracy, Angel Berndt Garcia, Jesus Flores and Daniel
Bordayo, to testify about the parties to and meanings of tape
recorded conversations between other conspirators.
Garza first complains that the district court allowed Berndt
Garcia to testify about several conversations even though he could
18 For this same reason the court correctly overruled
Garza's objection that these statements were irrelevant.
21
only identify one of the speakers. Garza's characterization is not
quite accurate. While Berndt Garcia could only identify one of the
speakers (Garza) with absolute certainty, he did identify the other
speaker, although with less certainty. In such cases, the district
court is given broad discretion to admit the tape and let the jury
decide what value to place on the identification. United States v.
Singh, 922 F.2d 1169, 1174 (5th Cir.), cert. denied, 500 U.S. 938
(1991) (conclusive proof of authenticity not required to admit
disputed evidence); United States v. Lance, 853 F.2d 1177, 1181
(5th Cir. 1988) (once minimally authenticated, issue becomes weight
of evidence, not admissibility). The district court did not abuse
its discretion in admitting this tape.
Garza next argues that these co-conspirators should not have
been allowed to explain the secret meanings of the conversations
both because they are not experts and because the meaning was
already clear. Fed. R. Evid. 701 allows lay witnesses to testify
about conversations consisting of "unfinished sentences and
punctuated with ambiguous references to events that are clear only
to [the participants]." United States v. De Peri, 778 F.2d 963,
977 (3d Cir. 1985), cert. denied, 475 U.S. 1110 (1986). The
district court may admit such opinions if they are (a) rationally
based on first hand knowledge and (b) helpful to a clear
understanding of the witness' testimony or the determination of a
fact in issue. United States v. Garcia, 994 F.2d 1499, 1506-07
(10th Cir. 1993) (agent who tapped phone conversation between
conspirators could testify about hidden meanings); United States v.
Simas, 937 F.2d 459, 462 (9th Cir. 1991). In Garza's case, the
22
witnesses met these criteria.
By listening to the tapes, the conspirators gained first hand
knowledge of these conversations, which were admissible as co-
conspirator statements in furtherance of the conspiracy. Garcia,
994 F.2d at 1507 (in-court perception of admissible out of court
statements constitutes first hand knowledge). Their opinions had
a rational connection to this factual basis because they were
members of the conspiracy and familiar with the events being
discussed. The district court ensured this rational connection by
repeatedly instructing the witnesses to testify only to what they
actually knew, thus preventing speculation and inference.
The co-conspirators' testimony was also helpful to the jury
because, contrary to Garza's assertion, these tapes did not always
speak for themselves. Hoping to disguise the topic of discussion,
the conspirators peppered their discourse with code phrases and
oblique references.19 The witnesses' testimony on the true meaning
of these phrases was helpful, if not essential, to the jury's
understanding of this evidence. The district court policed this
testimony and, for the most part, kept the government from asking
about segments of the conversations that were easily understood.
See De Peri, 778 F.2d at 978. In such circumstances, the district
court did not abuse its discretion by allowing the co-conspirators
to testify about the meaning of the tapes for the jury. Garcia,
994 F.2d at 1507.
19For example, one conspirator told Garza "The comrade, the
one who doesn't drink, is over there looking at the nest."
Berndt Garcia testified that this meant that another conspirator
was out surveying a landing strip for Garza's plane.
23
C. THE TRIAL COURT'S ROLE
Garza argues that the district court erred by acting as an
advocate for the government throughout his guilt and punishment
hearings. To constitute 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 Bermea, 30
F.3d 1539, 1569 (5th Cir. 1994), cert. denied, 115 S.Ct. 1113
(1995). To meet this test, "the judge's intervention must be
quantitatively and qualitatively substantial." Id.
Garza complains of two instances in which the district court
elicited evidence from witnesses that was harmful to him. First,
he complains that the district court elicited harmful information
from the government's pathologist, Dr. Lawrence Dahm. Second,
Garza complains that the court impeached Elizabeth Murillo, a
psychotherapist who testified as Garza's expert mitigation witness.
We have carefully reviewed the record of the exchanges the district
court had with these witnesses and find that the court did not
exceed its proper role in either incident.20
D. COUNT TEN
1.
Was Count Ten of the indictment sufficient?
Garza contends that Count Ten of the indictment did not
sufficiently allege a violation of 18 U.S.C. § 1956(a)(1)(A)(i),
the money-laundering statute. Garza repeatedly asked the district
court to dismiss this count, but the district court denied his
20Moreover, the judge instructed the jury to disregard
anything he did during the trial that suggested he had an opinion
about the case.
24
requests. Count Ten alleged:
On or about November 14, 1989 . . . the Defendant, JUAN RAUL
GARZA, with the intent to promote the carrying on of drug
dealing in violation of Title 21, United States Code, Sections
846 and 841(a)(1), and knowing that approximately $273,644.00
in United States currency in fact represented the proceeds of
that unlawful drug dealing, conducted and attempted to conduct
a financial transaction with that money in that the Defendant
attempted to move that money.
Garza asserts that the indictment fails because the phrase "move
that money" does not state an act that constitutes a financial
transaction.
We review the sufficiency of the indictment de novo. United
States v. West, 22 F.3d 586, 590 (5th Cir.), cert. denied, 115
S.Ct. 584 (1994). We will find that the indictment is sufficient
if it "(1) enumerates each prima facie element of the charged
offense, (2) notifies the defendant of the charges filed against
him, and (3) provides the defendant with a double jeopardy defense
against future prosecutions." United States v. Nevers, 7 F.3d 59,
62 (5th Cir. 1993), cert. denied, 114 S.Ct. 1124 (1994). We will
not reverse Garza's conviction for minor deficiencies in the
indictment that caused no prejudice. United States v. Shelton, 937
F.2d 140, 142 (5th Cir. 1991), cert. denied, 502 U.S. 990 (1991).
While Garza is correct that the phrase "move the money" does
not describe in detail the financial transaction relied upon, we
conclude that the indictment was nevertheless sufficient. The
indictment tracks the statutory language for each of the elements
of money laundering, which are that the defendant "(1) conducted or
attempted to conduct a financial transaction, (2) which the
defendant knew involved the proceeds of unlawful activity, (3) with
the intent [either] to promote or further unlawful activity."
25
West, 22 F.3d at 590. In addition to these statutory bare bones,
the indictment was "accompanied with such a statement of the facts
and circumstances as . . . informed the accused of the specific
offense . . . with which he [was] charged." Hamling v. United
States, 418 United States 87, 117 (1974). The indictment specified
the date on which the event occurred, the exact dollar amount
involved and the fact that the general type of transaction at issue
was the movement of this money. See § 1956(c)(4)(A)(i). This
description fairly informed Garza of the charge he would have to
meet. It is also sufficient to bar future prosecutions for this
same offense. We conclude that the district court did not err by
refusing to dismiss Count 10.
Garza also suggests that the evidence was insufficient to
prove that he conducted a financial transaction. The government
can prove a financial transaction by establishing the transfer or
delivery of money, § 1956(c)(3), which can include giving it "over
to the care or possession of another." United States v. Puig-
Infante, 19 F.3d 929, 938 (5th Cir.), cert. denied, 115 S.Ct. 180
(1994). The trial evidence established that Garza received this
money from Richard Bordayo in Michigan and delivered an Oldsmobile
Toronado containing this money to Israel Flores to drive back to
Texas. Garza emphasizes that Israel originally told Texas
Department of Public Safety (DPS) troopers that he did not know of
the money in the car and that Garza himself denied knowing of the
money. However, Garza conveniently ignores both Israel's trial
testimony that he knew he was transporting money for Garza and
Trooper Jorge Castillo's testimony strongly suggesting that Garza
26
was angry with Israel for losing the money to the police. The
evidence was sufficient to establish a financial transaction.
2.
Did the district court err by denying a motion to suppress?
Garza contends that the court erred by admitting the money
seized from the Toronado driven by Israel Flores, Flores' statement
to the Texas DPS troopers and Garza's own statements to Trooper
Castillo. After a pre-trial hearing, the district court denied the
motion to suppress. Garza challenges this ruling and contends that
this evidence should have been excluded.
Approximately two weeks before the stop, Trooper Castillo was
contacted by a confidential informant (CI) with whom he had worked
before. The CI told Castillo that she was friends with Garza and
that Garza was involved in drug trafficking. A week later, the CI
phoned Trooper Castillo again and told him that she had travelled
to Michigan with Garza and that they had brought back money. The
CI also stated that they planned to return to Lansing, Michigan to
pick up more money. Several days later, Castillo heard from
relatives of the CI that a black Oldsmobile Toronado loaded with
money was being driven from Michigan by Flores. Trooper Castillo
was given a specific license number and given the approximate time
that the car would be on U.S. Highway 77 in Texas.

Castillo arranged for surveillance along Highway 77 and the
Toronado was spotted by agents at about 7:00 pm on November 14,
1989. Officers followed the Toronado in unmarked cars until 8:20
pm, when they had a marked police car pull it over for speeding.
Trooper Castillo candidly testified that "the reason the trooper
stopped him besides the speeding is because I asked him to." The
27
officer agreed. Flores drove the Toronado to a DPS outpost, where
the search began at 8:30 pm. Within ten minutes of starting the
search, officers discovered $274,540 in cash hidden behind the
vents in the back interior panels of the car. At some point,
Flores was issued a warning for speeding.
Trooper Castillo advised Flores of his Miranda rights and took
his statement. Flores told Trooper Castillo that he was unaware of
the money in the car and that he was going to deliver the car to
Garza. In the meantime, officers had also confirmed that the car
was registered to Garza. Trooper Castillo drove to Garza's home
where he informed Garza that he was an officer with the DPS, told
him of the seizure and gave Garza a Miranda warning. Castillo then
questioned Garza about the money and Garza denied that it was his.
Garza refused to make a written statement and Castillo left, as
Israel Flores arrived at Garza's house.
The district court found, inter alia, that Flores was in fact
speeding at the time that he was pulled over, that Flores made a
valid consent to the search, that Trooper Castillo gave proper
Miranda warnings to Garza and Garza had made statements to Castillo
freely and without coercion.
a. The stop
Garza first maintains that, because the Texas troopers stopped
the Toronado on the pretext that it was speeding but for the actual
purpose of investigating the CI's tip, the stop was illegal. This
argument is foreclosed by United States v. Roberson, 6 F.3d 1088
(5th Cir. 1993), cert. denied, 114 S.Ct. 753 (1994) (relying on
United States v. Causey, 834 F.2d 1179 (5th Cir. 1987) (en banc)).
28
Under Roberson, "while we do not applaud what appears to be a
common practice of some law enforcement officers to use technical
violations as a cover for exploring more serious violations, we may
look no further than the court's finding that [the officer] had a
legitimate basis for stopping the [vehicle]." 6 F.3d at 1092.
Garza does not dispute that Flores was speeding, a factual finding
which is supported by Trooper Castillo's uncontradicted testimony
at the suppression hearing. As Roberson makes clear, this is the
end of our inquiry.21
b. The search
Garza next maintains that the search of the Toronado was
illegal because the troopers did not obtain a warrant. However,
the district court found that Flores gave a valid, uncoerced
consent to the search and concluded that the consensual search was
constitutional under United States v. Matlock, 415 U.S. 164 (1974).
Garza argues that the consent was not valid because it was tainted
by an illegally pretextual stop. Because we have concluded that
the stop was not unlawful, we also conclude that the consent was
not tainted.
On appeal, Garza asserts that the scope of the search exceeded
Flores' consent.22 Garza never presented this argument to the
district court; we review for plain error. Calverley. We measure
21Garza's reliance on United States v. Smith, 799 F.2d 704
(11th Cir. 1986) is thus unavailing.
22In passing, Garza also suggests that because the vehicle
was moved from the side of the highway (the location named in
Flores' written consent), the consent was no longer valid. As
the evidence shows that Flores agreed to move the car and, in
fact, moved it himself, this argument is meritless.
29
the scope of consent by asking "'what would the typical reasonable
person have understood by the exchange between the officer and the
[consenter].'" United States v. McSween, 53 F.3d 684, 687 (5th
Cir. 1995) (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)).
Using this standard, we conclude that the district court did not
plainly err.
Before the troopers asked for his consent to search, they told
Flores that they believed contraband had been placed in the
vehicle. Flores then signed a written consent that permitted the
troopers to search the "vehicle" including the "containers and
contents." Flores was present during the search and did not
attempt to stop or restrict the search at any time. McSween, 53
F.3d at 688 (failure to object to breadth of search indicates that
search was within scope of consent). Contrary to Garza's
description of the search as a "dismantling" or "dissection" of the
car, the record reveals that troopers merely unscrewed two screws
and removed two vent covers from the interior panels. Compare
United States v. Ibarra, 965 F.2d 1354 (5th Cir. 1992) (evenly
divided en banc court) (agents used sledgehammer to smash open
securely boarded-up attic). Given these circumstances, we have no
doubt that the district court did not plainly err by admitting this
evidence as the product of a valid consent.23
3. Garza's statements.
Garza first asserts that his statements were the fruits of an
23Because we uphold the search on this ground, we do not
address Garza's arguments that the troopers lacked probable cause
to search the Toronado and that the circumstances did not justify
the troopers' failure to obtain a warrant.
30
illegal search and seizure. This argument is, of course, precluded
by our conclusions above.
Garza next complains that he did not waive his Miranda rights.
We uphold the district court's findings of fact related to this
issue unless they are clearly erroneous, but we make a de novo
review of the ultimate conclusion of voluntariness. United States
v. Rojas-Martinez, 968 F.2d 415, 418 (5th Cir.), cert. denied, 113
S.Ct. 828 (1992). With these standards in mind, we conclude that
Garza's statement was voluntary. Garza does not dispute the facts
as we explained them above, but emphasizes that Trooper Castillo
began asking questions immediately after he finished reading Garza
his rights; that Garza was not given a written waiver form; that
Garza was reluctant to answer some of Castillo's questions and
refused to make a written statement. However, contrary to Garza's
suggestion, his refusal to make a written statement after having
already made verbal statements supports a conclusion that, had he
wished to remain silent earlier, he would have done so. The fact
that Trooper Castillo did not try to further question Garza after
Garza declined to make a written statement also supports the
court's finding that Garza was not coerced. In view of the
circumstances, the district court did not err in deciding that
Garza's statements were voluntary.
In sum, we conclude that the district court did not err by
admitting the evidence obtained through the stop and search of the
Toronado on November 14, 1989.
E. OTHER ISSUES
1. Did the court err by admitting photographs of lost evidence?
31
Garza complains that the court should not have admitted a
photograph of the interior of Gilberto Matos' car, which showed a
set of keys and two pairs of gloves that the government lost before
trial. This photo bolstered Israel Flores' testimony that he and
Manuel Flores wore gloves when they murdered Matos and that they
left the gloves in Matos' car. It also supported the investigating
officer's testimony that they found gloves in the car at the crime
scene. The district court admitted the photo as an accurate
representation of what the investigator saw when he looked inside
Matos' car.24 The government properly authenticated the photo and
the court did not err by admitting it. Fed. R. Evid. 901(a);
United States v. Mojica, 746 F.2d 242, 245 (5th Cir. 1984).
Garza next argues that, by losing the gloves and keys, the
government violated its duty to preserve evidence that might have
exculpated him. However, Garza does nothing more than state
generally that the lost keys and gloves might have helped him and
never even theorizes as to how they would have assisted him. Under
Fifth Circuit precedent, such unfocused speculation is not enough
and this argument must fail. United States v. Binker, 795 F.2d
1218, 1230 (5th Cir. 1986), cert. denied, 479 U.S. 1085 (1987)
(evidence must possess exculpatory value that is apparent before
its loss).
2.
Did the district court commit pretrial error and allow
government misconduct?
Garza raises a number of issues concerning the manner in which
the district court managed discovery and scheduling. Garza first
24Contrary to Garza's argument, the best evidence rule is
not implicated in this ruling.
32
contends that the district court deprived him of his right to
effective counsel by refusing to grant him an additional one
month's continuance. Garza was indicted on January 5, 1993 and was
given several continuances over the following months. On May 28,
Garza filed a motion asking the court to continue his trial date
thirty days after the already rescheduled June 30 trial date. The
court instead gave Garza an additional week and jury selection
commenced on July 6, 1993.
We will find that the district court abused its discretion in
refusing a continuance only if Garza can show that he was seriously
prejudiced by the denial. United States v. Ross, 58 F.3d 154, 159
(5th Cir. 1995). When he moved for this continuance, Garza
emphasized the vast amount of evidence that the government
produced, the number of aggravating murders that the government
alleged and that much of the documentary evidence of the Mexican
murders was written in Spanish; on appeal he reiterates these same
factors. However, even after this motion, Garza had over one month
in which to prepare for trial. Garza makes no effort to explain
what he was unable to accomplish in this time or what more he would
have done had he been given the extra three weeks. In short, Garza
has not shown that he was prejudiced. For this reason, we find
that the court did not err in limiting its continuance to one week.

Garza next argues that the government purposefully inflated
its witness list in order to prevent him from preparing for trial.
Approximately one week before jury selection, the government gave
Garza a list containing more than 400 names. Garza complained that
the government could not honestly expect to call this number of
33
witnesses and the court asked the government to provide a list of
witnesses which the government would "call for certain." Four days
before the government began presenting evidence, the government
gave Garza a revised list of approximately 200 witnesses. At
trial, the government called approximately 60-70 of these
witnesses.25

We see no error in the manner in which the district court
handled this issue. When Garza brought his objection to the
court's attention, the court appropriately directed the government
to submit a more limited list. The government readily complied and
Garza did not renew his complaint after receiving the revised list.
Garza has not shown that the court's remedy was insufficient to
protect his rights or that it affected the outcome of his trial.
United States v. Neal, 27 F.3d 1035, 1049 (5th Cir. 1994).
Garza also complains that the government did not provide him
with the criminal records of Trooper Castillo's confidential
informant who testified as part of the government's case, in
violation of Brady, 373 U.S. 83. However, the record shows that
Garza discovered the witness' criminal record. He was able to
impeach this witness on cross-examination with the information that
she had been convicted of helping her husband steal a truck.
Therefore, we find no Brady violation. Lawrence v. Lensing, 42
F.3d 255, 257 (5th Cir. 1994) (when defendant is able to take
25Garza also states that the government did not include the
witnesses' addresses on this list as required by 18 U.S.C. §
3432. However, because Garza did not raise this issue below or
include the witness list in the record, we are unable to review
this issue. See United States v. Carrillo-Figueroa, 34 F.3d 33,
39 (1st Cir. 1994); United States v. Vasquez, 985 F.2d 491, 494-
95 (10th Cir. 1993).
34
advantage of essential information, no violation).
Additionally, Garza complains that the government gave him
insufficient notice of the facts and information underlying the
aggravating factors in general and of two of the alleged
aggravating homicides in particular. However, Garza does not point
to any failure of the government to comply with the district
court's discovery orders and does not argue that the court erred by
failing to order discovery of aggravating evidence. Garza has
shown no error.
Next, Garza complains that the government did not specify
which people on its witness list were confidential informants.
There is no merit to this point, given that the record demonstrates
that prior to trial, Garza's attorney informed the court that the
defense knew who the confidential informant was. 26
3.
Did the court err by denying Garza's request for Jencks Act
and Brady material?
Garza contends that the government withheld the statements of
three witnesses to which he was entitled under the Jencks Act, 18
U.S.C. § 3500, and Brady v. Maryland, 373 U.S. 83 (1963). These
witnesses were cooperating co-conspirators who had been debriefed
by government agents prior to their plea negotiations. None of
these witnesses had made formal statements, but government agents
had taken notes during their interviews. Garza maintains that he
is entitled to these notes.
26Garza also complains that the government interfered with
his attempts to interview a prosecution witness. However, while
this witness was generally uncooperative, the record contains
nothing to show that the government itself did anything to hinder
his attempts to talk with her.

35
a. Jencks Act
A Jencks Act statement is either (1) "a written statement
signed or otherwise adopted or approved by the witness," or (2) "a
'substantially verbatim recital' of an oral statement made by the
witness." United States v. Thomas, 12 F.3d 1350, 1364 (5th Cir.),
cert. denied, 114 S.Ct. 1861 (1994). When an agent takes notes
while interviewing a witness, those notes are not statements
"unless the witness 'signed, read, or heard the entire document
read.'" Id. (quoting United States v. Pierce, 893 F.2d 669, 675
(5th Cir. 1990), cert. denied, 113 S.Ct. 621 (1992)). The record
supports the district court's conclusion that the government had
not obtained a "statement" from any of these witnesses.
b. Brady material
Garza also asserts that these notes should have been disclosed
to him as Brady material. However, Garza never made a specific
Brady request for these notes and, until his appeal, never
suggested that these notes might contain Brady material. In these
circumstances, the district court did not err in accepting the
government's representation that it has furnished the defendant
with all Brady materials. The district court was under no duty to
make an independent sua sponte inquiry to determine whether these
notes might contain exculpatory information. See United States v.
Gaston, 608 F.2d 607, 614 (5th Cir. 1979).
4.
Did the court err by admitting a statement not disclosed in
discovery?
Garza contends that the district court erred by admitting a
statement of his that the government had not disclosed during pre-
trial discovery. Because Garza was not entitled to this statement
36
under the discovery rules, the court did not err in admitting the
statement.
Garza made this statement after Trooper Castillo came to his
house to ask him about the money that troopers had discovered in
the Toronado driven by Israel Flores. Garza first denied that the
money was his, then reconsidered and said that since he owned the
car and the money was inside it, he figured the money should belong
to him.27 Just as the troopers were leaving the house, Israel
Flores arrived. Garza flew off the handle and yelled at Flores in
Spanish, "What happened, fool?", an inculpatory statement
suggesting that Garza knew that the money was in the car all along.
Before trial, the district court ordered the government to
produce any "statements" that Garza had made. The government
disclosed everything that Garza had said to the troopers but did
not reveal Garza's angry exclamation to Flores. When Trooper
Castillo testified about this incident, the court overruled Garza's
objection that the statement should have been produced during
discovery.
Relying on United States v. Alvarez, 987 F.2d 77, 84-86 (1st
Cir.), cert. denied, 114 S.Ct. 147 (1993), Garza contends that the
district court erred by not suppressing this statement. However,
the statement in Alvarez was covered under Fed. R. Crim. P. 16(a),
which, among other things, requires the government to disclose
those oral statements it plans to use at trial that the defendant
27This about-face apparently happened when Trooper Castillo
told Garza, in effect, that since the money was not his, he
surely would not mind signing a form releasing the money to the
state.
37
made in response to interrogation by any person then known to the
defendant to be a government agent.
Garza's statement is different because Garza did not make his
statement to Trooper Castillo or any other government agent, he
made it to Israel Flores in Trooper Castillo's presence. Not only
was this not a statement made to a government agent, it was also
not made in response to interrogation. See United States v. Kusek,
844 F.2d 942, 947 (2d Cir.), cert. denied, 488 U.S. 860 (1988)
(voluntary outbursts not covered by rule). Thus, Rule 16(a) does
not apply and the court did not abuse its discretion by admitting
evidence of this statement.
5.
Did the court err by allowing the government to object during
Garza's closing argument?
Garza argues next that the government objected so often during
his closing argument that he was "deprived of his procedural rights
to rebut the government's accusations." The record does not
support this argument. Garza was given 1.5 hours to close, which
occupied 60 pages of transcript. During Garza's argument, the
government objected eight times on the grounds that Garza
mischaracterized either the law or the evidence. On most
occasions, the court instructed the jury to disregard any
statements of law made by the attorneys that were inconsistent with
the court's charge or to consider the evidence as the jury
remembered it. Our review shows that while these objections were
not entirely fruitful, they were also not frivolous. As the record
reveals, the district court did not err, plain or otherwise, by
failing to curb the government's objections.

Garza complains in more detail that through one of these
38
objections, the government commented on his failure to testify.
This objection occurred during the following exchange:
ATTORNEY FOR GARZA: Now, Mr. Garza did not testify. And the
reason he didn't testify, ladies and gentlemen, is
because that decision was mine. He doesn't have ---
GOVT:
Objection, Your Honor. That is a misstatement of the
law. The individual --
COURT:
The objection is overruled.
It is obvious to us that the government did not manifestly
intend to comment on Garza's silence by this objection, when
Garza's silence had already been raised by Garza's counsel. The
government was objecting to what it perceived as Garza's
implication that the decision not to testify is made solely by the
defendant's attorney. Additionally, the jury would most naturally
construe this objection as a comment on Garza's closing argument,
rather than on his choice not to testify. Garza's contention that
the government's brief objection highlighted his decision to remain
silent after he undertook to raise the issue and explain his
silence is meritless. United States v. Mackay, 33 F.3d 489, 495
(5th Cir. 1994).
F. THE PENALTY PHASE
The day after the jury's guilty verdict, the district court
convened the penalty hearing. The jury made a binding
recommendation of a death sentence for each of Garza's § 848(e)
convictions after taking steps required by the statute.28 First,
as to each murder, the jury was asked to decide whether the
28For an additional overview of the § 848 scheme, see U.S.
v. Chandler, 996 F.2d 1073, 1082-83 (11th Cir. 1993), cert.
denied, 114 S.Ct. 2724 (1994).
39
government had established at least one of the four aggravating
"intent" factors in § 848(n)(1).29 § 848(j). For the De La Fuente
murder, the jury found that Garza had intentionally killed De La
Fuente, (n)(1)(A), and that Garza had intentionally engaged in
conduct intending that De La Fuente be killed and/or that lethal
force be employed against him, (n)(1)(C). For the Rumbo murder,
the jury again found both (n)(1)(A) and (n)(1)(C) and for the Matos
murder, the jury found only (n)(1)(C). If the jury had not
unanimously found one of these factors to exist for a murder, it
could not have recommended a death sentence for that murder. §
848(k).
Having found the requisite aggravating intent for all three
killings, the jury then considered the second category of
statutory aggravating factors derived from § 848(n)(2)-(12). In
this step, the jury found that Garza had committed all three
murders after substantial planning and premeditation, (n)(8), and
that Garza procured De La Fuente and Matos' killing by payment of
something of pecuniary value, (n)(6). Again, if the jury had not
unanimously found at least one of these enumerated factors for any
of these killings, it could not have recommended death for that
particular murder. § 848(k).
Having found these second tier statutory aggravators to exist,
29Paraphrased, § 848(n)(1) requires the jury to decide
whether the defendant intentionally:
A)
killed the victim;
B)
inflicted serious bodily injury causing death;
C)
engaged in conduct intending that the victim be killed or
that
lethal force be employed against the victim, causing
death; or
D)
engaged in conduct creating a grave risk of death to an
innocent person, and that person died.
40
the jury was directed to determine whether the government had
proven any of its non-statutory aggravators. In response to this
inquiry, the jury found that Garza was responsible for five
additional killings, that he procured two of these killings by
payment of something of pecuniary value, that four of these
killings
were
committed
after
substantial
planning
and
premeditation, that two of these killings were committed in
furtherance of the CCE, and that Garza represented a continuing
danger to the lives of others based upon his pattern of violent and
brutal acts.
The jury next considered whether Garza had proven any
mitigating factors. Garza's jury found that Garza had established
the statutory mitigators that he was under unusual and substantial
duress, that he was youthful, that other defendants who were
equally culpable would not be punished by death and that the
victims consented to the criminal conduct that resulted in their
deaths. Although it did not specify which one, the jury also found
at least one mitigator from the list of non-statutory mitigators
that Garza had introduced.
After making these findings, the jury was instructed to
balance the aggravators against the mitigators. The jury could
recommend death only if it unanimously found that the aggravators
sufficiently outweighed the mitigators to justify a sentence of
death. Even if it found the aggravators sufficiently weighty, the
jury was never required to recommend death. After considering the
questions required by the statute, Garza's jury recommended a death
sentence. Pursuant to § 848(o), the jurors certified that they
41
arrived at this decision without considering the race, color,
religion, national origin or sex of Garza or his victims. After
the jury recommended death, the district court imposed a death
sentence as the statute mandated. § 848(l).
1. Did Garza have a right to have the jury informed that life
imprisonment without parole was the only alternative to a
death sentence?
a. Simmons v. South Carolina
Garza contends that the jury should have been told that if
they decided against a death sentence, his only alternative
sentence would be life imprisonment without possibility of parole.
Instead, Garza's jury was informed that life without parole was a
possible sentence, but not the only other sentence that the court
could impose. Garza relies on Simmons v. South Carolina, 114 S.Ct.
2187 (1994), which holds that when a defendant is legally
ineligible for parole and the government uses the defendant's
future dangerousness as an aggravator, due process requires that
the jury be informed that if he is not executed, the defendant will
spend the rest of his life in prison. Garza maintains his
situation was analogous to Simmons because he was ineligible for
anything less than a life sentence. For the following reasons, we
disagree.
1) Alternative sentence
Under § 848(e), if the jury had not recommended a death
sentence, the district court could have sentenced Garza to "any
term of imprisonment, which shall not be less than 20 years, and
which may be up to life imprisonment." The district court would
then have been required to follow the Sentencing Guidelines to
42
arrive at an appropriate sentence. Garza correctly points out that
under the base offense level for § 848(e) murders, the available
sentence is life imprisonment. See U.S.S.G. § 2A1.1 and Sentencing
Table. However, the Guidelines also allow a district court to
depart from the assigned offense levels and impose a lesser
sentence.
Garza acknowledges this point but contends that the Guidelines
would not have permitted a departure in his case. Garza first
argues that because the jury made the aggravating findings that he
intentionally killed (or caused to be killed) Matos, De La Fuente
and Rumbo, § 848(n)(1)(A) and (n)(1)(C) made Garza ineligible for
departure under § 2A1.1. He relies on comment (n.1) to § 2A1.1
which provides that a departure may warranted if defendant did not
cause death intentionally. However, assuming without deciding that
the jury's findings of intentional killing would be binding on the
sentencing judge and therefore prevent a downward departure, the
court could not predict before the jury begins its deliberation
whether it is going to find the necessary intent. Thus, when the
attorneys make their final arguments in the penalty phase and when
the court gives its penalty instructions, no one would know whether
life imprisonment would be the only permissible sentence.
Garza also contends that he does not qualify for departure
because none of the Guidelines' enumerated grounds for departure
(substantial assistance, etc.) exist in his case. This contention
is both incorrect and insufficient. Garza's jury found as a
mitigator the fact that Garza was under unusual and substantial
duress, which might qualify Garza for downward departure under §§
43
5K2.12. Further, § 5K2.0 gives the district court broad discretion
to depart for any "mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration" by the Guidelines.
Thus, even if Garza did not fall within an express departure
category, the court would not have been legally barred from finding
a different, legitimate reason to reduce his sentence. In sum,
because the Sentencing Guidelines vest the district court with
discretion to adjust a life sentence downward, a life sentence was
not the only legal sentence other than death that Garza might
receive. In such circumstances, the district court did not err by
preventing Garza from informing the jury to the contrary either in
voir dire or in his closing argument, or by failing to tell them so
itself. Allridge v. Scott, 41 F.3d 213, 221-22 (5th Cir. 1994),
cert. denied, 115 S.Ct. 1959 (1995); Kinnamon v. Scott, 40 F.2d
731, 733 (5th Cir.), cert. denied, 115 S.Ct. 660 (1994).

2) Reliance on future dangerousness
Garza further urges that, even if the government did not
violate the express holding of Simmons, its emphasis on future
dangerousness was inappropriate because it knew that anything less
than a life sentence was unlikely. However, the record clearly
shows that the government primarily focused on the danger Garza
would pose while still in prison, making Garza's case materially
different than Simmons. Allridge, 41 F.3d at 222 n.12 (citing
Simmons, 114 S.Ct. at 2194). The government did comment briefly on
Garza's potential non-death sentence after Garza himself repeatedly
urged the jury that life imprisonment would be sufficient
punishment. In rebuttal, the government stated "The defense says,
44
well, he is going to die in prison, but the law is twenty years to
life. We don't know that he is going to die in prison. The Judge
can give him any term. The only people who can give him the death
penalty is you." While Garza places great weight on the reference
to "any term", we are confident that, in the context of the entire
penalty phase, the jury did not misunderstand the government's
statement. Garza also complains that by having his cooperating co-
conspirators testify about their reduced sentences, the government
impressed the jury with the "revolving-door" nature of the penal
system. But Garza himself repeatedly emphasized these witnesses'
reduced sentences in order to attack their credibility; he cannot
fairly claim now that such information contributed to a Simmons
violation.
This does not mean that district courts should allow the
government to freely hammer away on the theme that the defendant
could some day get out of prison if that eventuality is legally
possible but actually improbable. By this point in any penalty
hearing, the judge will have heard the same evidence as the jury
and will ordinarily know whether he would consider a downward
departure if the jury declines to recommend death. If the court
knows that a twenty-year sentence is highly unlikely, it should, in
its discretion, preclude the government from arguing that the
defendant may be free to murder again two decades hence. But that
is not what happened in Garza's case, and we see no error in the
way the district court handled the issue.

b. Jury's power to recommend a specific non-death
sentence.
Garza maintains that the jury should have been given accurate
45
information about the non-death sentencing alternatives because
under § 848(k), it was within the jury's power to recommend a
sentence of life imprisonment.30 First, we are satisfied, as
indicated above, that the jury was given accurate information about
the legally available non-death sentences.
Garza's contention also rests on a misinterpretation of §
848(k) and the jury's role in sentencing under that statute.
According to Garza, the legislative history of § 848 requires us to
conclude that the jury has the power to recommend a specific non-
death sentence that is binding on the court. However, we agree
with the Eleventh Circuit's well-reasoned interpretation of the
plain language of the statute and agree that § 848(k) is clear
enough to be interpreted without resort to legislative history.
Chandler, 996 F.2d at 1084-85. Section 848(k) must be read in
harmony with the rest of the statute, particularly §§ 848(l) and
848(p), which respectively read:
Upon the recommendation that the sentence of death be imposed,
the court shall sentence the defendant to death. Otherwise
the court shall impose a sentence, other than death,
authorized by law;
If a person is convicted for an offense under subsection (e)
of this section and the court does not impose the penalty of
death, the court may impose a sentence of life imprisonment
without possibility of parole.
Therefore, we conclude that § 848(k) does not allow the jury to
make a binding recommendation on any sentence other than that of
death.
30In relevant part, § 848(k) reads:
[T]he jury . . . shall recommend that a sentence of
death shall be imposed rather than a sentence of life
imprisonment or some other lesser sentence.
46
Garza attempts to distinguish Chandler because a Simmons issue
was not present in that case. This difference has no bearing on
whether Chandler properly construed § 848(k). Garza also asserts
that we must accept his interpretation of § 848(k) because it
avoids the constitutional problem in Simmons. But we need not
construe a statute to avoid a problem we have determined does not
exist. Additionally, since Simmons can be satisfied with an
appropriate jury instruction in the appropriate case, Simmons need
not inform our construction of § 848(k).
Lastly, Garza points out that the recently adopted Federal
Death Penalty Act of 1994 gives the jury the power to recommend
either a death sentence or a life sentence without parole. 18
U.S.C. § 3593(f). However, under the law in effect at the time of
Garza's sentencing, the jury's only responsibility was to recommend
for or against death and Garza advances no persuasive argument for
applying the 1994 Act. Therefore, we conclude that § 848(k) did
not require the jury to be informed that it could recommend a
sentence other than death.
2.
Are the § 848(n)(1) findings and factors unconstitutional?
a. The narrowing requirement
Garza argues that the § 848 sentencing scheme is
unconstitutional because the (n)(1) aggravators do not narrow the
class of defendants eligible for the death penalty. As we
previously described, § 848(n)(1) requires that the jury find that
the defendant either:
(A) intentionally killed the victim,
(B) intentionally inflicted serious bodily injury which
resulted in the death of the victim,
47
(C)
intentionally engaged in conduct intending that the
victim be killed or that lethal force be employed
against the victim, which resulted in the death of the
victim, or
(D)
intentionally engaged in conduct which:
(i) the defendant knew would create a grave risk of
death to a person, other than one of the
participants in the offense; and
(ii) resulted in the death of the victim.
These factors act as both a gateway and as aggravators. If the
jury does not find at least one of these factors, its consideration
of a penalty of death must stop; once the jury finds an (n)(1)
factor, it must later weigh that factor (along with other
aggravators) against any mitigating factors. For the three murder
convictions in Garza's case, the jury found a total of five (n)(1)
factors.
Garza and the government agree that these factors are taken
from Enmund v. Florida, 458 U.S. 782 (1982) and Tison v. Arizona,
481 U.S. 137 (1987). In these decisions, the Supreme Court
described the minimal level of homicidal intent that the Eighth
Amendment requires before a state may execute a defendant for
murder. Taken together, Enmund and Tison stand for the rule that
the state may not put to death a defendant who did not "himself
kill, attempt to kill, or intend that a killing take place or that
lethal force will be employed," Enmund, 458 U.S. at 597, or
significantly participate in a felony with reckless indifference to
human life, Tison, 481 U.S. at 158. While every state or federal
capital punishment scheme must provide for a factfinder to decide
whether the defendant is sufficiently culpable under Enmund/Tison,
the § 848 procedure is the only scheme we have found which also
uses the Enmund/Tison factors as aggravating circumstances.
48
Garza contends that the constitution does not permit an
Enmund/Tison finding to be used as an aggravator because the
Enmund/Tison culpability requirement must be met in every case in
which the defendant can lawfully be executed. Thus, Garza argues,
"a sentencer fairly could conclude that [it] applies to every
defendant eligible for the death penalty [and it] is
constitutionally infirm." Arave v. Creech, 113 S.Ct. 1534, 1542
(1993). Although this argument is appealing on its face, it
ultimately must fail.31
The answer to this issue lies in determining what the Creech
Court meant when it spoke of defendants who are "eligible" for the
death penalty. In other words, to figure out whether an aggravator
narrows, we must first understand what class or category of
offenses or offenders it must narrow from. Garza's argument
necessarily depends on the presumption that this class is defined
in part by Enmund/Tison. But this is not the case.
Although Lowenfield v. Phelps dealt with a different issue,
the Court's analysis there informs our decision here. Like § 848,
the aggravating circumstance in Lowenfield was included both as an
31As Garza is zealous to point out, this is a different
issue than other courts have confronted in upholding the (n)(1)
factors. Compare Chandler, 996 F.2d at 1092-93; United States v.
Pitera, 795 F. Supp. 546, 556-57 (E.D.N.Y. 1992); United States
v. Pretlow, 779 F. Supp. 758, 771-73 (D.N.J. 1991); United States
v. Cooper, 754 F. Supp. 617, 621-22 (N.D.Ill. 1990), aff'd., 19
F.3d 1154 (1994). In each of these cases, the defendant argued
that the (n)(1) factor unconstitutionally duplicated an element
of the offense. These courts correctly rejected this argument
for the reasons given in Lowenfield v. Phelps, 484 U.S. 231
(1988). In contrast, Garza's argument does not hinge on the fact
that Enmund culpability is both an aggravator and a statutory
element; his argument would be the same even if intent was not
part of capital murder under § 848(e).
49
element of the crime and as an aggravator at sentencing.
Lowenfield was convicted of three counts of first-degree (capital)
murder, which was defined as "the killing of a human being . . .
(3) when the offender has a specific intent to kill or to inflict
great bodily harm upon more than one person." 484 U.S. at 241-42
(citing La.Rev.Stat.Ann. § 14:30A). As the sole aggravator, the
jury found that "the offender knowingly created a risk of death or
great bodily harm to more than one person." Id. To determine
whether this aggravator performed the required narrowing function,
the Lowenfield Court looked to the larger class of all murders -
even though this class included felony murders for which the death
sentence could not necessarily be imposed under Enmund/Tison. 484
U.S. at 241 and 246. Because the larger class included defendants
to whom the aggravator did not apply, the Court concluded that the
aggravator narrowed.32
Garza was convicted under § 848(e), which reads in part:
any person engaging in or working in furtherance of a
continuing criminal enterprise . . . who intentionally kills
or counsels, commands, induces, procures, or causes the
intentional killing of an individual, and such killing results
. . . may be sentenced to death.
The (n)(1) factors roughly duplicate the statute's "intentionally
kills" element, so in order to determine whether the (n)(1) factors
narrow the class of defendants eligible for the death penalty, we
(like the Lowenfield Court) contrast them to federally-defined
32Indeed, in Creech itself, the Court compared the disputed
aggravator against a class that was defined without regard to
Enmund/Tison. To determine whether the factor "cold-blooded,
pitiless slayer" narrowed, the Creech Court contrasted it with
the broad class of state-defined capital murders, which, again,
encompassed certain kinds of simple felony murder. 113 S.Ct. at
1543.
50
murders generally. Under 18 U.S.C. § 1111:
Murder is the unlawful killing of a human being with malice
aforethought. Every murder perpetrated by poison, lying in
wait, or any other kind of willful, deliberate, malicious, and
premeditated killing; or committed in the perpetration of, or
attempt to perpetrate, any arson, escape, murder, kidnapping,
treason, espionage, sabotage, aggravated sexual abuse or
sexual abuse, burglary, or robbery . . . is murder in the
first degree. Any other murder is murder in the second
degree.
Section 1111 includes simple felony murder; to be guilty of first
degree murder, the defendant need only have intended to commit the
underlying felony. No other mens rea is required. United States
v. Thomas, 34 F.3d 44, 48-49 (2d Cir.), cert. denied, 115 S.Ct. 527
(1994); United States v. Chischilly, 30 F.3d 1144, 1159-60 (9th
Cir. 1994), cert. denied, 115 S.Ct. 946 (1995). See also United
States v. Browner, 889 F.2d 549, 552 n.2 (5th Cir. 1989) (aspects
of traditional felony-murder rule survive in § 1111). Thus, § 1111
encompasses defendants that would not necessarily qualify for the
death penalty under Enmund and Tison.
By selecting out only those defendants who were at least
reckless of killing, the (n)(1) factors genuinely narrow the class
of defendants who have committed murder. This is precisely what
the constitution requires. Tuilaepa, 114 S.Ct. at 2634 ("[t]o
render a defendant eligible for the death penalty in a homicide
case . . . the trier of fact must convict the defendant of murder
and find one [aggravator] at either the guilt or penalty phase");
Zant v. Stephens, 462 U.S. 862, 877 (1983) (capital sentencing
scheme must "genuinely narrow that class of persons eligible for
the death penalty and must justify the imposition of a more severe
sentence on the defendant compared to others found guilty of
51
murder"). That the federal definition of murder does not include
the Enmund/Tison culpability requirement is not of constitutional
concern. What Lowenfield suggests in operation, the Supreme Court
has stated elsewhere directly: Enmund "does not affect the state's
definition of any substantive offense, even a capital offense" and
"does not supply a new element of the crime of capital murder that
must be found by the jury." Cabana v. Bullock, 474 U.S. 376, 385
and n.3 (1986).33
If we were to agree with Garza's argument on this point we
would also have to ignore the "settled principle" that "the
sentencer should consider the circumstances of the crime in
deciding whether to impose the death penalty." Tuilaepa, 114 S.Ct.
at 2637. And lastly, we find significant the fact that we are
dealing with a statute that includes an additional narrowing
factor (killing in furtherance of a CCE) and requires the jury to
33For these reasons alone, we are satisfied that the (n)(1)
factors perform the constitutionally required narrowing function.
However, as Garza relies heavily on principles taken from Godfrey
v. Georgia, 446 U.S. 420 (1980), and Maynard v. Cartwright, 486
U.S. 356 (1988), we stop to explain why these opinions do not
alter our decision on this issue. In the first place, Godfrey
and Maynard were primarily concerned with aggravators which were
unconstitutional because they were vague. See Godfrey, 446 U.S.
at 428 ("outrageously or wantonly vile, horrible or inhuman");
Maynard, 486 U.S. at 363-64 ("especially heinous, atrocious, or
cruel"). However, the difference between those aggravators on
the one hand and the (n)(1) aggravators on the other is not
simply that those terms were vague while the (n)(1) terms are
not. The Godfrey and Maynard aggravators were simply descriptive
- adjectives that a jury could impose on the facts of any murder.
In contrast, the (n)(1) factors are objective facts that not
every jury will find in every murder, even murders under §
848(e). Cf. U.S. v. Villarreal, 963 F.2d 725 (5th Cir.), cert.
denied, 113 S.Ct. 353 (1992) (defendant was guilty of § 848(e)
capital murder because he aided and abetted the killer, but jury
found no (n)(1) factor). While all murders may be heinous, not
all murderers intend to kill.
52
find not just Enmund/Tison culpability but at least one other
narrowing aggravator. § 848(n)(2)-(12).
We conclude that the Enmund/Tison culpability factors only
apply to a subclass of defendants that may be sentenced to death.
For this reason, we hold that the (n)(1) aggravating factors narrow
the class of defendants eligible for the death penalty and are
constitutionally sound.
b. Sufficiency of the evidence
Garza contends next that two of his death sentences are
invalid because they are based on multiple (n)(1) factors. As we
have already said, for the Rumbo and De La Fuente murders, the jury
found that Garza intentionally killed the victims, (n)(1)(A), and
also that he intentionally engaged in conduct intending that the
victims be killed or that lethal force be employed against the
victims, which resulted in the death of the victims, (n)(1)(C).
Garza maintains both that these findings violate the prohibition on
the use of redundant aggravators and as to the De La Fuente murder,
the (n)(1)(A) aggravator is unsupported by the evidence.
In support of his first argument, Garza relies on numerous
state court decisions vacating death sentences where the jury's
verdict was predicated on multiple aggravators based on the same
underlying evidence. For example, in Randolph v. State, 463 So.2d
186, 193 (Fla. 1984), cert. denied, 473 U.S. 907 (1985), the court
held that it was error to find as separate aggravators the facts
that the murder was (1) committed during the commission of a
robbery and (2) committed for pecuniary gain. The court reasoned
that these factors overlapped and really constituted only one
53
aggravating circumstance. Garza argues that the multiple (n)(1)
findings are invalid for the same reason.
We find these cases inapposite. In cases like Randolph, the
aggravators simply described the same conduct or motive in two
different ways (i.e., a defendant who robs is usually seeking
pecuniary gain). However, intentionally killing and intentionally
engaging in conduct intending that the victim be killed are not
necessarily identical conduct. A defendant who personally murders
a victim has a different mental state than one who pays others to
kill. Similarly, a defendant who personally kills and hires others
to assist him during the killing has more than one blameworthy
intention. Although the ultimate goal is the same - the victim's
death - the defendant's intentions as to how he will achieve that
goal are not singular. It is not irrational for Congress to decide
that a defendant with such dual intent should be treated as more
deserving of death than a defendant with only one.
Garza also maintains that the evidence does not support the
jury's (n)(1)(A) finding that he intentionally killed De La
Fuente.34 In brief, the evidence showed that on the night of the
murder, Garza gave Jesus Flores and Israel Flores a handgun, drove
them to De La Fuente's nightclub, where De La Fuente would be that
night, and told them to kill De La Fuente when he left the club.
Garza contends that because he did not perform the act that
immediately resulted in De La Fuente's death, the jury erred by
34Under § 848(q)(3)(B), we affirm Garza's sentence if we
determine that "the information supports the special finding of
the existence of every aggravating factor upon which the sentence
was based . . . ."
54
finding that he "intentionally killed the victim." However, under
the particular facts of this killing, we find that the jury could
legitimately find that Garza intentionally killed De La Fuente.
Although the term "killed" is not defined in § 848, we have no
doubt that Congress did not intend to limit that term to one who
kills alone without help or assistance. Thus, we are persuaded
that "killed" includes one who actively participates with others in
a killing. Although Garza was not present at the very moment of De
La Fuente's death, the jury was entitled to conclude that he
actively participated in it by furnishing the weapon, determining
when, where and how the victim would be killed, bringing his hit
men to the scene, and giving them explicit instructions. Garza
both contracted for this killing and actively participated in it.
For this reason, the jury was entitled to conclude that Garza had
two roles in this murder - he helped to kill the victim and he
engaged in "conduct intending that the victim be killed." We
conclude that the evidence supports both the (n)(1)(A) and
(n)(1)(C) findings for the De La Fuente killing.
3.
Is the § 848(n)(8) "substantial planning" aggravator
unconstitutionally vague?
Under § 848(n)(8), the government may prove as an aggravating
factor that "[t]he defendant committed the offense after
substantial planning and premeditation." Garza maintains that this
factor is invalid because it is unconstitutionally vague. At
sentencing, the government sought to prove and the jury found that
the (n)(8) aggravator existed for all three of the substantive
murder convictions and four of the aggravating murders.
Garza argues that the (n)(8) aggravator is unconstitutionally
55
vague and that the district court's instructions failed to cure
this defect. Before trial, Garza made the unsuccessful objection
that the (n)(8) factor was vague and facially unconstitutional.
The government now argues that Garza never requested the district
court to further define "substantial planning" and urges us to
apply the plain error standard to the jury instructions. Our
review of the record reveals that the district court was fully
aware of Garza's objection to this factor and told Garza that he
had preserved his objection in full. The plain error standard is
therefore not appropriate in this circumstance.
An aggravating factor must "channel the sentencer's discretion
by [a] clear and objective standard[] that provide[s] specific and
detailed guidance," Creech, 113 S.Ct. at 1540, and adequately
"inform juries what they must find to impose the death penalty,"
Maynard, 486 U.S. at 361-62. As the Supreme Court has recently
explained, "Because the 'proper degree of definition' of
[aggravating and mitigating] factors often 'is not susceptible of
mathematical
precision,'
our
vagueness
review
is
quite
deferential." Tuilaepa, 114 S.Ct. at 2634 (quoting Walton, 497
U.S. at 655). We will uphold an aggravating factor "if it has some
'common-sense core meaning . . . that criminal juries should be
capable of understanding.'" Id. (quoting Jurek v. Texas, 428 U.S.
262 (1976) (White, J., concurring in judgment)).
Garza maintains that the term "substantial" is vague because
it is subjective and has different meanings: it can be used to
refer either to something of high magnitude or to something that is
not imagined or fanciful. However, we agree with the Northern
56
District of Illinois, which upheld the (n)(8) aggravator against
exactly this challenge and concluded that "the 'substantiality'
requirement is frequently encountered and readily understood in a
number of contexts in criminal law." Cooper, 754 F.2d at 623.
See, e.g., United States v. Sutton, 961 F.2d 476, 478 (4th Cir.),
cert. denied, 113 S.Ct. 171 (1992) ("substantial step" not vague);
United States v. Rovetuso, 768 F.2d 809, 821 (7th Cir. 1985), cert.
denied, 474 U.S. 1076 (1986) (same); United States v. Johnson, 575
F.2d 1347, 1357 (5th Cir. 1978), cert. denied, 440 U.S. 907 (1979)
("substantial income" not vague). In each of these cases, the term
"substantial" was used to denote a thing of high magnitude and each
of these courts concluded that the term alone, without further
explanation, was sufficient to convey that meaning and to enable
the jury to make an objective assessment. Cf. Blystone v.
Pennsylvania, 110 S.Ct. 1078, 1084 (1990) (upholding against a
different challenge "substantial impairment" as a mitigator).35
Garza argues that Maynard supports his position because it
holds that the term "especially" failed to guide the sentencer's
discretion. However, we agree with the government that the Maynard
Court condemned the phrase "especially heinous" not because
"especially" is vague but because "heinous" was, and adding
"especially" did not cure that problem. 486 U.S. at 364.
In sum, we conclude that the (n)(8) aggravator is sufficiently
definite and objective to pass constitutional muster. The district
court did not err by submitting this factor to the jury or by
35Victor v. Nebraska, 114 S.Ct. 1239 (1994), and Arnold v.
State, 236 Ga. 534, 541-42 (Ga. 1976), relied on by Garza, do not
support a contrary conclusion.
57
failing to further define the term "substantial."
4. Did the penalty instructions misstate the law?
Garza next challenges the verdict form and several penalty
phase instructions.36 Before we consider each alleged error
individually, we pause to express the general standards that will
guide our analysis. A district court has substantial latitude in
framing its instructions to the jury. United States v. Kinney, 53
F.3d 664, 676 (5th Cir. 1995); United States v. Willis, 38 F.3d
170, 179 (5th Cir.), cert. denied, 115 S.Ct. 2585 (1995). When
reviewing challenges to jury instructions, we take into account the
court's charge as a whole and the surrounding context of the trial,
including arguments made to the jury. Id.; Kinney, 53 F.3d at 676.
Assuming that the defendant raised the error below, we will reverse
only if the instructions do not correctly reflect the legal issues.
Id. Thus, even if a portion of the instruction is not technically
perfect, we will affirm if the charge in its entirety presents the
jury with a reasonably accurate picture of the law. United States
v. Branch, 46 F.3d 440, 443 n.2 (5th Cir. 1995). If the defendant
did not object below, however, we review for plain error. Willis,
38 F.3d at 179.
a. The unanimity requirement
Garza first argues that the verdict form created a substantial
36In one gargantuan footnote, Garza asserts a laundry list
of faults in the verdict form, most of which were not briefed
elsewhere. Other than citing the Fifth, Sixth and Eighth
Amendments to the U.S. Constitution, Garza provides nothing to
support his bald claim that because of these characteristics, the
verdict form as a whole deprived Garza of due process of law.
These issues are not adequately briefed to merit consideration.
McKethan, 996 F.2d 739 n.9. See also Fed. R. App. P. 28(a)(6).
58
possibility that the jury believed that any decision rejecting the
death penalty had to be unanimous. Specifically, Garza objects to
the portion of the form which read:
We, the Jury, unanimously find that the aggravating factors
presented in this case sufficiently outweigh any mitigating
factor or factors that have been found to exist, or in the
absence of mitigating factors, the aggravating factors are
themselves sufficient, and recommend that a sentence of death
shall be imposed.
Answer "Yes" or "No".
ANSWER: ____________
The form then included a line for each juror to sign.
Garza complains that the word "unanimously" should not have
been included in this instruction. Garza posits that the question
led the jury to believe that they could not answer "No" unless they
unanimously did not recommend a death sentence. In other words,
Garza argues that the jury could have understood this form to mean
that all twelve jurors had to agree not to impose the death
penalty, an understanding that is obviously inconsistent with §
848(k).37 Garza also complains that the form did not contain a
37Garza's interpretation of the verdict form gains support
from the district court's own actions during the conference. At
one point, the court stated:
We will modify it to reflect, "We, the jury, having found" -
- well, "We, the jury, find that the aggravating factors
sufficiently outweigh any --
Well, it is not unanimous because "No" doesn't require. I
don't want unanimously in there.
* * *
I will tell them that. I am saying, I don't want to -- "No"
doesn't require unanimous.
This statement was directed in part to the court clerk, who later
asked the court to clarify how it wanted the form to read. From
59
statement informing the jury that they were never required to
recommend death.
If Garza's interpretation is one that "a reasonable jury could
have drawn from the instructions given by the trial judge and from
the verdict form employed in this case," we would find that the
district court erred. Mills v. Maryland, 486 U.S. 367, 375-76
(1988). And if this form was the only guidance the jury received
on this point, reversal might be required. However, when we
consider the verdict form as supplemented by the court's charge, we
have no doubt that the jury did not interpret the verdict form in
this fashion.
At the very outset of the punishment phase, the court twice
told the jury that "the jury does not ever have to make [a death
penalty] recommendation." Later during its introductory remarks,
the court informed the jury that it did not unanimously have to
agree on the mitigating factors, that "[o]ne of you is all that is
required," The court stated that while all twelve jurors had to
agree to recommend death, "[i]f any one of you . . . do not
recommend death" then the court would perform the sentencing.
At the close of the punishment phase evidence, the court again
repeatedly told the jury that "[a]ll twelve of you do not have to
agree as to a mitigating factor. Only one of you has to be
persuaded . . . " The court stressed several times that "under no
circumstances do you ever have to recommend death. Under no
circumstances. In order for death to be recommended, all twelve of
the record, it appears that the court wanted the term
"unanimously" deleted but the clerk accidentally left it in the
form that was eventually given to the jury.
60
you must agree." The court also stated that "any member who finds
by a preponderance of the evidence the existence of a mitigating
factor may consider such factor established for his or her weighing
of aggravating and mitigating factors regardless of the number of
other jurors who agree that such mitigating factor has been
established." During his closing argument, Garza's attorney
likewise emphasized that the jury was never required to impose a
death sentence and that if only one juror disagreed, the jury could
not recommend death.
Our review of the record leaves us firmly convinced that no
reasonable juror would interpret the verdict form to require that
the decision not to recommend death must be unanimous or that the
jury was somehow required to impose death. Thus, the court did not
abuse its discretion by tendering this verdict form to the jury.
b. Reinstruction on Garza's failure to testify
Garza contends that the district court erred by failing to
tell the jury that they were to draw no unfavorable inference from
Garza's failure to testify at the sentencing hearing. Carter
v.Kentucky, 450 U.S. 288 (1981). Garza requested such an
instruction at the guilt phase and the district court gave it.
Garza never asked the court to give such an instruction at the
sentencing phase and did not object to the court's proposed
punishment instructions even though they did not include this
charge. Accordingly, we review for plain error. United States v.
Gibson, 55 F.3d 173, 180 (5th Cir. 1995).
We conclude that the district court did not plainly err by not
spontaneously giving another Carter instruction at Garza's
61
punishment hearing. As the Carter Court itself clarified, "a
criminal trial judge must give a 'no-adverse-inference' jury
instruction when requested by a defendant to do so." 450 U.S. at
300. Garza attempts to persuade us that the rights safeguarded by
Carter are sufficiently important that the failure to give such an
instruction can never be harmless. This is clearly not the case.
United States v. Gomez-Olivas, 897 F.2d 500, 501-02 (10th Cir.
1990) (because court is only required to give "no-adverse-
inference" instruction when requested, failure to give unrequested
instruction that defendant could not be compelled to testify was
also not error).
Garza has not shown that, in his own case, the lack of a
Carter instruction affected his substantial rights. In spite of
Garza's silence, the jury found several mitigating factors on his
behalf and declined to find several of the aggravating factors that
the government had attempted to prove. Both these facts strongly
imply that the jury evaluated the evidence fairly and objectively
without the instruction and did not make its findings on the basis
of an unfair prejudice. The record also reveals that no party made
reference to Garza's failure to testify at his penalty hearing.
Moreover, we note that the punishment phase evidence against Garza
was overwhelming and egregious and included five aggravating
murders. In these circumstances, the fact that the jury was not
given a second Carter instruction did not amount to plain error.
c. Standard of proof
Lastly, Garza maintains that the district court erred by
instructing the jury that the aggravators had to "sufficiently
62
outweigh" the mitigators in order for the jury to recommend death,
instead of instructing them that the aggravators had to outweigh
the mitigators beyond a reasonable doubt. Again, Garza did not
object to this portion of the verdict form or the charge. Garza's
failure to object is particularly noteworthy considering that
during verdict form conference, the court expressly deleted the
reasonable doubt standard and substituted the "sufficiently
outweigh" standard, asked for objections and received none. Thus,
the plain error standard applies.
Under any standard, however, the district court committed no
error. The court took the "sufficiently outweigh" language
directly from § 848(k). Although Garza fervently argues that the
reasonable doubt standard is most appropriate in cases where the
defendant's life is on the line, he provides no authority that
establishes that the Constitution requires this standard. Indeed,
the Supreme Court has "never held that a specific method for
balancing mitigating and aggravating factors in a capital
sentencing proceeding is constitutionally required." Franklin v.
Lynaugh, 487 U.S. 164, 179 (1988) (plurality); Zant v. Stephens,
462 U.S. 862, 875-876 n.13 (1983); Sonnier v. Maggio, 720 F.2d 401,
408 (5th Cir. 1983), cert. denied, 465 U.S. 1051 (1984). Thus, we
conclude that the court's penalty instruction based on the language
of § 848(k) is constitutionally valid. Accord Chandler, 996 F.2d
at 1091-92.38

III. MANUEL FLORES
38Garza lastly contends that the district court erred by
admitting hearsay, in the form of a newspaper article, during the
punishment hearing. This argument is meritless. § 848(j).
63
As we stated earlier, Manuel Flores was convicted of murdering
Gilberto Matos and Erasmo De La Fuente in furtherance of Garza's
CCE and of conspiring to import and possess over 1,000 kilograms of
marijuana. Flores raises two evidentiary issues.
A. FLORES' CONFESSION
Flores first argues that the district court erred by admitting
his oral confession. While Flores was incarcerated for a previous
conviction, he was twice visited by United States Customs Service
Agent Mark Reich. During Agent Reich's first visit, Flores denied
that he had anything to do with murdering Matos or De La Fuente.
When Agent Reich called on him a second time, however, he confessed
to both murders. Before trial, Flores moved to suppress his
confession, arguing that he had not been properly informed of his
Miranda rights and that the confession was unreliable because it
was not tape recorded or witnessed by anyone other than Agent
Reich. After a hearing, the district court found that Agent Reich
had given Flores oral Miranda warnings and denied the motion to
suppress.
Flores now argues that under Fed. R. Evid. 403, the district
court should have excluded his confession because it was so
unreliable that its probative value was outweighed by the danger of
unfair prejudice. Flores is not arguing that his confession is
unreliable because it was coerced; nor does he contest the district
court's factual findings that he received adequate Miranda warnings
and was not threatened or intimidated. Indeed, Flores produced no
evidence suggesting that Agent Reich's testimony is inaccurate.
Instead, Flores essentially argues that without a written waiver,
64
a recording, or more than one witness, an out-of-court confession
should be excluded because it is unreliable as a matter of law.
When the evidentiary value of an out-of-court confession
depends on the credibility of the officer who repeats it, the court
correctly allows the jury to make this call. United States v.
Rico, 51 F.3d 495, 507 n.33 (5th Cir. 1995). Flores has not
provided any reason why the district court should have excluded
Flores' confession as either unreliable or unfairly prejudicial.
The district court did not err in admitting Flores' oral
confession.
In two conclusory sentences, Flores also asserts that his
conviction was based solely on an un-corroborated oral confession.
Flores has failed to sufficiently brief this argument and we
consider it waived. McKethan, 996 F.2d at 739 n. 9. Additionally,
our review of the record shows that Flores' confession was
corroborated by other evidence, including the co-conspirator
statements that are the subject of his next argument.
B. CO-CONSPIRATOR STATEMENTS
Flores argues that the district court erred by permitting
Baldomero Medina-Garza (Medina), Rolando Vasquez, Jorge Vela-Garcia
and Gregory Strader to testify to out-of-court statements made by
other conspirators about the murders of De La Fuente and Matos.
The court allowed their testimony over Flores' hearsay objections.
On appeal, Flores maintains that these statements were not
admissible under Fed. R. Evid. 801(d)(2)(E) because they were not
made in furtherance of the conspiracy, but instead were idle
chatter and bragging. We review the district court's decision to
65
admit this testimony for abuse of discretion. United States v.
McConnell, 988 F.2d 530, 533 (5th Cir. 1993).
Flores first maintains that Medina should not have been
allowed to testify that Juan Garza had told him that Garza arranged
for Matos and De La Fuente to be killed. Flores argues that
because Medina believed that Garza made this statement out of
overweening pride, the statement was simple boasting and not in
furtherance of the conspiracy. However, the district court was
entitled to conclude that Garza made these statements in order to
encourage loyalty and obedience among the conspirators, a purpose
clearly in furtherance of the conspiracy.
Flores next asserts that Vela-Garcia should not have been
allowed to testify that Jesus Flores told him that Jesus and Manuel
Flores had killed De La Fuente and that Garza had paid Jesus for
the job. However, this statement is also in furtherance of the
conspiracy; not only did it inform Vela-Garcia of the progress of
the conspiracy, it provided a money incentive for Vela-Garcia to
assist the conspiracy in future murders. See United States v.
Pool, 660 F.2d 547, 562 (5th Cir. 1981) (statement keeping others
abreast of conspiracy's status is in furtherance); United States v.
Simmons, 923 F.2d 934, 945 (2d Cir. 1991), cert. denied, 111 S.Ct.
2018 (1992) (statements inducing assistance are in furtherance).
Flores does not tell us what other specific statements he believes
should have been excluded, but our review of the entire record
shows that all of the admitted conspirator statements furthered the
conspiracy in similar ways. We conclude that the district court
did not abuse its discretion by allowing this testimony.
66
IV. Conclusion
For the reasons stated above, the convictions and sentences of
Garza and Flores are AFFIRMED.
67

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