* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20503

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JUAN FERNANDO RIOS

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Texas

4:06-CR-52-19

Before REAVLEY, JOLLY, and GARZA, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Juan Fernando Rios (“Rios”) was convicted by a jury

of his peers for conspiracy to possess with intent to distribute 50 grams or more

of methamphetamine in violation of 21 U.S.C. § 846, 841(a)(1) and (b)(1)(A)(viii).

The District Court sentenced Rios to 292 months of imprisonment and a fiveyear period of supervised release. Rios now appeals his conviction and sentence.

We AFFIRM. 

United States Court of Appeals

Fifth Circuit

F I L E D

May 2, 2008

Charles R. Fulbruge III

Clerk
No. 07-20503

1 All references to the substance or content oftelephone conversations hereinafter come

from wire intercepts that had been placed on various co-conspirators’ telephones.

2

I

Since 2002,the Drug Enforcement Agency (“DEA”) had been investigating

a large-scale drug trafficking organization, which it believed was importing

crystal methamphetamine (“meth” or “ice”) from Mexico into the United States

for distribution in areas including Texas. In December 2004, as part of this

investigation, the DEA arranged for undercover agents to purchase meth from

suspected dealers (a “buy-bust”). The buy-bust netted two pounds of meth and

three meth dealers. One of the dealers (“Perez”) cooperated with the DEA by

providing telephone numbers for certain meth suppliers and placing phone calls

to them. One of the suppliers that Perez contacted was Baldemar Eduardo

Sanchez (“Sanchez”). The DEA thereafter placed wire intercepts on Sanchez’s

telephone. Through these intercepts, the DEA identified Luis Leal (“Leal”) as

a major supplier of meth coming out of Mexico. Over the course of its

investigation, the DEA intercepted several thousand telephone calls.1

On March 16, 2005, the DEA intercepted two calls between Leal and

Sanchez, during which they discussed the pick up and delivery of certain monies

that Sanchez owed to Leal for the meth he had supplied. Leal explained that a

close friend of his would pick up the money from Sanchez and would identify

himself as “Johnny” or “Juan.” Authorities later identified “Johnny” or “Juan”

as Rios. Later that evening, the DEA intercepted a telephone call between Leal

and a woman who indicated that Rios would pick up the money on the following

day. That same night, the DEA intercepted a third call between Sanchez and

Leal during which Sanchez informed Leal that Rios would pick up the money on

March 17, 2005.

Rios called Sanchez twice on March 17, 2005. During these two telephone

calls, Sanchez gave Rios directions to his house, told him that he would be
No. 07-20503

2 At trial, Sanchez confirmed that he had given Rios the proceeds from meth sales on

March 17, 2005. Bingaman also confirmed that Rios had picked up the money from Sanchez.

3 The relevant portions of the affidavit are set forth in Section II.A, infra.

3

waiting, and they agreed to meet later that day. Through covert video

surveillance of Sanchez’s house on March 17, 2005, the DEA observed Rios

arrive at Sanchez’s home, go inside, and then leave. While Rios was in Sanchez’s

house, the DEA also observed one of his co-conspirators, Katie Bingaman

(“Bingaman”), arrive at Sanchez’s home. Later that evening, the DEA

intercepted a telephone call between Sanchez and Leal during which Sanchez

stated that he had given Rios $34,000 to deliver to Leal.

Approximately two months later, the District Court authorized the DEA

to place wire intercepts on Rios’s telephone during the period from May 25, 2005,

through June 29, 2005. The DEA recorded intercepts during this time in which

Rios discussed various other possible drug transactions, but the DEA did not

record Rios discussing any transaction in connection with the instant meth

conspiracy. The DEA ultimately arrested Rios in February 2006. Following

Rios’s arrest, the DEA played the recorded telephone calls between Sanchez and

“Johnny”from March 17, 2005. Rios confirmed that “Johnny’s” voice was his and

that he had picked up money from Sanchez’s house on that date.2 Rios, however,

denied knowing that the money had anything to do with meth.

Before trial, Rios moved to suppress recordings from the wire intercepts

that were on his telephone during May 2005 and June 2005. Specifically, Rios

argued that the DEA affidavit put forth in support of its application for the

wiretaps was insufficient.3 The District Court conducted a suppression hearing,

held the affidavit to be sufficient, and denied Rios’s motion. The recordings

became a trial issue when, on cross-examination of DEA Special Agent Large

(“SA Large”), defense counsel elicited testimony that Rios’s voice had been

recorded on only two of the approximately 6000 telephone calls that had been
No. 07-20503

4

intercepted from his co-conspirators. On redirect, the Government sought to

have SA Large describe the content of the recordings from Rios’s telephone,

namely the possible drug transactions that were unrelated to the meth

conspiracy. Rios objected. The District Court allowed the testimony under Fed.

R. Evid. 404(b) as evidence of Rios’s motive, intent, or knowledge with respect

to the meth conspiracy.

The jury convicted Rios, and the District Court sentenced him to 292

months imprisonment with five years of supervised release. The PSR did not

credit Rios with a safety valve or for acceptance of responsibility. Rios objected.

The District Court overruled his objections and adopted the PSR. Also during

sentencing, the Government described certain statements that Rios made during

two separate proffer sessions concerning his extensive involvement in a

marijuana conspiracy and his frequent role as a money carrier in drug

transactions that were unrelated to the instant meth conspiracy. Rios objected

thatthe Government had violated the proffer agreements, and the District Court

made no ruling. Rios now appeals his conviction and sentence.

II

Rios contends that the District Court committed four errors in connection

with his jury trial and sentencing: First, Rios argues that the District Court

erred in denying his motion to suppress evidence obtained via wire intercepts on

his telephone. Second, Rios argues that the District Court erred in admitting

testimony, under Fed. R. Evid. 404(b), about certain wiretapped conversations

during which Rios discussed possible drug transactions that were unrelated to

the instant meth conspiracy. Third, Rios argues that the District Court erred in

refusing to credit him with a safety valve or for acceptance of responsibility

because the District Court misinterpreted Sections § 5C1.2 and § 3E1.1 of the

United States Sentencing Guidelines (“Guidelines”) or (“USSG”). Finally, Rios

argues that the District Court erred at sentencing in considering certain
No. 07-20503

4 Section 2518(1)(c) provides:

Each application for an order authorizing or approving the

interception of a wire, oral, or electronic communication under

this chapter . . . shall include the following information:

(c) a full and complete statement as to whether or

not other investigative procedures have been tried

and failed or why they reasonably appear to be

unlikely to succeed if tried or to be too dangerous.

5 Section 2518(3)(c) provides:

Upon such application the judge may enter an ex parte order, as

requested or as modified, authorizing or approving the

interception of wire, oral, or electronic communications . . . if the

judge determines on the basis of the facts submitted by the

applicant that --

(c)normalinvestigative procedureshave been tried

and have failed or reasonably appear to be unlikely

to succeed or to be too dangerous.

5

information concerning his other drug dealings that Plaintiff-Appellee

(“Government”) provided in breach of its two proffer agreements with Rios.

A

The firstissue is whether the District Court erred in denying Rios’s motion

to suppress evidence obtained from wire intercepts on his telephones during the

period of May 28, 2005, through June 28, 2005. The wire intercepts previously

had been authorized by a District Court order on May 27, 2005. The

Government and Rios agree that 18 U.S.C. §§ 2518(1)(c)4 and (3)(c)5comprise the

relevant prerequisites for obtaining a District Court order authorizing the

wiretap in this case. Rios argues that the affidavit offered by the Government

in support of its request for a District Court order authorizing the wiretap was

insufficient to establish its necessity as required under Sections 2518(1)(c) and

(3)(c). The Government argues that the affidavit was sufficient. We agree that

the affidavit was sufficient.
No. 07-20503

6

We “review factual findings of a ruling on a motion to suppress for clear

error and legal conclusions de novo.” United States v. Moore, 452 F.3d 382, 386

(5th Cir. 2006). Because Rios only argues that “the affidavit submitted to obtain

authorization to monitor [his] phone conversations was deficient,” we review the

District Court order authorizing the wiretap “for clear error.” United States v.

Tomblin, 46 F.3d 1369, 1376 (5th Cir. 1995).

We previously have interpreted Sections 2518(1)(c) and (3)(c) as only

requiring a “showing that in the particular investigation normal investigative

techniques employing a normal amount of resources have failed to make the case

within a reasonable period of time.” United States v. Krout, 66 F.3d 1420, 1424-

25 (5th Cir. 1995) (quoting United States v. Alfonso, 552 F.2d 605, 612 (5th Cir.

1977). We held the affidavits in Krout to be adequate because they “asserted

that informants or undercover agents could not infiltrate the conspiracy at high

enough levels to obtain sufficient evidence to prosecute managers of the

organization.” 66 F.3d at 1425. In upholding the wiretaps at issue in Krout, we

noted that we previously had affirmed wiretap orders based on similar affidavits.

See id. (citing United States v. Guerra-Marez, 928 F.2d 665, 671 (5th Cir. 1991);

United States v. Webster, 734 F.2d 1048, 1055 (5th Cir. 1984)). The affidavit at

issue here is adequate under these cases: it describes a three-year DEA

investigation of “an extensive network of drug traffickers” that had not yet

“identified allthe sources of supply” or “all ofthe individuals involved” or all“the

locations used,” despite the use of normal investigative techniques including

physical surveillance, undercover agents, cooperating individuals, garbage

extractions, subpoenas and search warrants, interviews, pen register analyses,

financial investigations, and other wiretaps; it discusses the difficulties and

dangers of using additional alternative investigative techniques, such as

undercover agents,to infiltrate the upper levels ofthe organization; and it states

that the DEA believes wiretapping Rios’s telephone may yield this information
No. 07-20503

6 Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in

conformity therewith. It may, however, be admissible for other

purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident, provided that upon the request of the accused, the

prosecution in a criminal case shall provide reasonable notice in

advance oftrial, or during trial ifthe court excuses pretrial notice

on good cause shown, of the general nature of any such evidence

it intends to introduce at trial.

7

because he “appear[s] to have direct access to the sources of supply for the

[meth].” Accordingly, we find no clear error in the District Court order

authorizing the wiretaps in this case. See id.

B

The second issue is whether the District Court erred in allowing the

Government to elicit testimony from SA Large on redirect, pursuant to Fed. R.

Evid. 404(b),6relating to wiretapped conversations in which Rios discussed

possible drug transactions that were unrelated to the instant meth conspiracy.

Rios argues that the testimony was inadmissible because it was offered solely to

prove his bad character, namely that he was the type of person who gets

involved in drug conspiracies. Rios also contends that the jury relied on this

testimony, and therefore its admission substantially prejudiced his rights. The

Government counters that the District Court properly allowed this testimony to

prove Rios’s motive, intent, or knowledge at the time he picked up and delivered

$34K in proceeds from certain drug sales. We agree with the Government.

We review the District Court’s evidentiary ruling allowing this testimony

for abuse of discretion, subject to a harmless error analysis. United States v.

Morgan, 505 F.3d 332, 339 (5th Cir. 2007). The District Court ruling constitutes

reversible error only if the admission of the testimony in question substantially

prejudiced Rios’s rights. See id. Thus, reversal is not required unless the
No. 07-20503

8

testimony was improperly admitted, and there is a reasonable probability that

the improper testimony contributed to Rios’s conviction. See United States v.

Mendoza-Medina, 346 F.3d 121, 127 (5th Cir. 2003).

We “employ[] a two-prong test to examine the admissibility of extrinsic

evidence under Rule 404(b).” United States v. Morgan, 505 F.3d 332, 339 (5th

Cir. 2007). First, we determine whether the extrinsic evidence is relevant to an

issue other than the defendant’s character. Id. Second, we determine whether

the evidence possesses a probative value that outweighs its prejudicial effect.

Id. SA Large’s testimony on redirect passes both tests. Indeed, we were faced

with a similar situation in United States v. Mortazavi, 702 F.2d 526, 528 (5th

Cir. 1983). In that case, we upheld the admissibility of extrinsic evidence

concerning the defendant’s previous drug dealings to rebut the defense that he

lacked intent to deal drugs in relation to the crime charged. See id. This case

is similar. Rios’s cross-examination of SA Large was intended to minimize his

role in the conspiracy and to make the jury doubt whether Rios was aware that

he was acting as a money courier in connection with a meth conspiracy. The

District Court allowed SA Large to testify on redirect about other drug

conspiracies in which Rios was involved to rebut this defense by showing that

Rios was an experienced drug dealer who knew what he was doing, i.e.

participating in a meth conspiracy. This extrinsic evidence was thus relevant

to issues other than Rios’s character))namely knowledge, intent, and absence

of mistake or accident))all of which are permissible under Rule 404(b). See id.

Considering that the District Court clearly instructed the jury as to the limited

purpose of this evidence, we also hold that its probative value outweighs any

possible prejudicial effect. Accordingly, we hold that the District Court did not

abuse its discretion in allowing SA Large to testify on redirect about wire

intercept recordings relating to other drug conspiracies in which Rios was

involved. See id.
No. 07-20503

7 USSG § 5C1.2 (2006) provides, in relevant part:

Except as provided in subsection (b), in the case of an offense

under 21 U.S.C. § 841, § 844, § 846, § 960, or § 963, the court

shall impose a sentence in accordance with the applicable

guidelines without regard to any statutory minimum sentence, if

the court finds that the defendant meets the criteria in 18 U.S.C.

§ 3553(f)(1)-(5) set forth below: . . . 

(5) not later than the time of the sentencing

hearing, the defendant has truthfully provided to

the Government all information and evidence the

defendant has concerning the offense or offenses

that were part of the same course of conduct or of

a common scheme or plan, but the fact that the

defendant has no relevant or useful other

information to provide or that the Government is

already aware ofthe informationshallnot preclude

a determination by the court that the defendant

has complied with this requirement.

8 USSG § 3E1.1 (2006) provides, in relevant part:“ifthe defendant clearly demonstrates

acceptance of responsibility for his offense, decrease the offense level by 2 levels.”

9

C

The third issue is whether the District Court erred at sentencing by

refusing to credit Rios under the safety valve provisions in USSG § 5C1.2,7or for

acceptance of responsibility under USSG § 3E1.1.8 Rios argues that the District

Court misinterpreted these provisions as being unavailable to Rios because he

pled “not guilty” and proceeded to jury verdict. Rios also points out that he

objected to the District Court’s refusal to credit him under these provisions.

Finally, Rios argues that he qualifies for a safety valve and for acceptance of

responsibility because he never denied any of the Government’s factual

allegations attrial; his defense was based solely on a “sufficiency ofthe evidence”

theory. The Government argues that the District Court properly denied Rios

credit based on its factual findings that Rios did not cooperate with the

government or accept responsibility for his criminal acts because Rios
No. 07-20503

10

consistently soughtto reduce his offense level by denying knowledge of the meth

conspiracy and claiming only that he thought he was facilitating marijuana

distribution or money laundering.

We review the District Court’s application of the Guidelines de novo.

United States v. Matias, 465 F.3d 169, 172 (2006). We review the District

Court’s findings of fact at sentencing for clear error. United States v. Huerta,

182 F.3d 361, 364 (5th Cir. 1999). Unless we conclude that the District Court’s

factual findings are implausible in light of the record as a whole, we will not hold

that they are clearly erroneous. Id.

The District Court never concluded that Rios was ineligible for a safety

valve or for acceptance of responsibility simply because he exercised his right to

a jury trial. Indeed, the District Court continually emphasized that Rios “had

a perfect right to plead not guilty” and “an absolute right to go to trial.”

Accordingly, we find no error in the sentencing decision of the District Court.

See Matias, 465 F.3d at 172.

D

The fourth issue is whether the District Court erred in considering certain

information at sentencing, which the Government allegedly offered in breach of

two proffer agreements with Rios; one was two weeks before trial, and the other

was two weeks before sentencing. Without ever introducing evidence of the

terms of either of these two proffer agreements and without ever describing the

specific information that he claims the Government improperly offered, Rios

contends that his sentence should be vacated and that he should be re-sentenced

before a different district judge. The Government counters that it agreed only

not to offer any information discussed during the first proffer at trial, not at

sentencing. Regardless, the Government argues that the District Court did not

consider any of the proffer-related information in deciding upon a sentence. 
No. 07-20503

11

We conduct a de novo review of the legal question: whether the

Government has breached its plea agreement with Rios. UnitedStates v. Brown,

328 F.3d 787, 790 (5th Cir. 2003). Here, we have no evidence before us

concerning the terms of either of the proffer agreements at issue except for the

Government’s assertion during sentencing that the first proffer agreement

provided only that proffer-related information could not be used as part of the

Government’s case-in-chief at trial. Therefore, Rios has not borne his burden of

“demonstrating the underlying facts that establish breach by a preponderance

of the evidence.” See United States v. Price, 95 F.3d 364, 367 (5th Cir. 1996).

Accordingly, we can reach no decision as to whether the Government breached

the proffer agreement and can find no error in the sentencing decision of the

District Court. See id.

III

For the foregoing reasons, we AFFIRM Rios’s conviction and sentence.

AFFIRMED.