1 Chief Judge of the Southern District of Texas, sitting by

designation. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________________

No. 92-7596

______________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

SERGIO ORNELAS-RODRIGUEZ,

EDUARDO LOPEZ-GUTIERREZ,

ROGELIO ALEJANDRO GARCIA, and

GERALDO ANTONIO URREGO,

Defendants-Appellants.

_______________________________________________

Appeals from the United States District Court

for the Southern District of Texas

________________________________________________

(January 19, 1994)

Before DUHE, EMILIO M. GARZA, Circuit Judges, and BLACK, District

Judge. 1

BLACK, District Judge:

Defendants , Sergio Ornelas-Rodriguez ("Ornelas"), Eduardo

Lopez-Gutierrez ("Lopez"), Rogelio Alejandro Garcia ("Garcia") and

Geraldo Antonio Urrego ("Urrego"), were tried jointly before a jury

and convicted of possession with intent to distribute approximately

47 kilograms of cocaine and with conspiracy to possess with intent

to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A) and 846. All four defendants now appeal their

convictions. We AFFIRM the district court in all respects.-2- I.

Cynthia Cruz met co-defendant Urr ego at a party on

October 31, 19 91 and they became romantically involved. Urrego

introduced her to co-defendants Garcia and Lopez. Urrego told Cruz

he was in the real estate business and asked her to go to Guatemala

to pick up some important papers from his brother. She agreed to

go and was accompanied by her friend McKinney and her two children.

The women were taken to the airport by Urrego and Lopez.

Af ter picking up the papers in Guatemala, Oscar Lopez

told Cruz he had purchased a Chevrolet from U rrego that he was

unhappy with and asked her to drive it back to Texas. Cruz spoke

with Urrego on the telephone and he told her to make the return

trip in the automobile. The car was allegedly in need of repair,

and Urrego sent Cruz money so this could be done.

The women left for Houston and in Tapachula they were met

by Garcia and Ornelas who informed them that they would be

following them through Mexico in a red Mustang. All evidence

showing Cruz and McKinney had been in Guatemala was taken from them

including the papers Cruz was sent to r etrieve. When the women

arrived in Ma tamoros they were told to wait one more day before

entering the United States. Cruz called Urrego and informed him

she was coming home. He accepted her decision.

When Cruz arrived at the Sarita Border Patrol Checkpoint,

Agent Guillen asked if he could inspect the trunk. Cruz consented.

When Guillen opened the trunk he detected a strong odor of

mothballs and glue and noticed that the trunk was not as deep as it-3-

should have been. Cruz was directed to t he secondary inspection

area where the car was inspected by a canine unit. The dog alerted

a s it was brought toward the trunk of the vehicle. Guillen then

drilled holes into the trunk and a white powder was extracted which

tested positive for cocaine. Agents discovered a total of 49

bundles of cocaine in the car.

Cruz and McKinney were interrogated b y Guillen in an

office overlooking the primary inspection area. Three hours after

the women were detained the Mustang arrived at the checkpoint.

McKinney began screaming "It's them!" and dove for the floor. The

driver was Ornelas and Garcia was his passenger. The vehicle and

its occupants were detained at the primary checkpoint . When

Ornelas was told to turn off the ca r and get out he hesitated.

Agents believed he was contemplating an escape and physically

removed Ornelas from the car. Both men were very nervous.

Agents search ed the Mustang and found a tourist entry

document for entry into Mexico in the names of Garcia and Ornelas,

a page with three phone numbe rs and two duffle bags. One of the

bags contained a set of keys to the Chevrolet driven by Cruz.

Ornelas admitted these were his bags but during the interrogation

Garcia sa id the keys belonged to him. On the way to the holding

cell Agent McGuire overheard Garcia tell Ornelas that if they had

waited one more day (until Thanksgiving) they would not have been

caught.

Both Garcia and Ornelas claimed they did not know Cruz or

McKinney and that they had come down from Houston to visit family-4-

in San Juan de los Lagos. When Garcia was shown a photograph of

him embracing Cruz he admitted he had met her at a club in Houston

and loaned her his car.

Warren, a Corpus Christi police officer assigned to the

DEA Task Force, interviewed Cruz. The conversation digressed and

according to Cruz he made sexual advances toward her. He told her

that if she cooperated he would help her and she complied.

Afterwards, Warren told Cruz she had been used by Urrego and that

if she did not help them apprehend him the brunt of the offense

would fall on her. Cruz was told to call Urrego and lure him to

Corpus Christi. She called Urrego and told him the car had broken

down and he agreed to come and help her.

The DEA arranged for video and audio surveillance at the

Marriott Hotel and Cruz was given a "bug". When Urrego and Lopez

arrived at Cruz' room McKinney was allegedly out with the car.

Cruz told them the car had been stopped and searched outside Vera

Cruz by Mexican officials and that after the search she said

"Pancho" had told her everything. Lopez got up and suggested they

wait for McKinney in the lobby. As they were leaving the room,

three officers emerged from an adjace nt room and told the men to

stop. Lopez appeared to reach for his beltline so the officers

drew their guns and forced Urrego and Lopez into the elevator.

Lopez, who did not have a weapon, was restrained. Urrego was hit

several times in the head and kicked in the stomach. His vehicle

was seized and the suspects were taken to DEA headquarters.2 When Cruz came to Corpus Christi to help the government

prepare for trial Agent Warren came to her hotel room and forced

her to have sex with him a second time. She had told no one of the

first incident but this time the act was done in McKinney's

presence. McKinney reported the incident to agent Irr.

3 Afte r Cruz testified at trial the charges against her and

McKinney were dismissed on the government's motion.

-5- Urrego, who gave a false name, was interviewed by Agent

Irr; however, t he interview stopped when Urrego asked for an

attorney. Urrego's briefcase was found in his car and it contained

telephone records for a Lilia Colmenares of Houston. Several calls

from Guatemala and Matamoros were on the statement. Urrego claimed

he lived at the Houston address on the Colmenares bill. It was

also discovered that the three phone numbers on the paper found in

the Mustang all belonged to Urrego.

Agent O'Brien interviewed Lopez who told him he had been

staying in a LaQuinta Inn in Houston "waiting for a load" which he

thought was a load of cocaine. He knew two women would be bringing

it into the country because he had taken them to the airport.

Cruz, McKinney, Ornelas, Garcia, Urrego and Lopez w ere

indicted on December 11, 1991 and charged with possession with

intent to distribute approximately 47 kilograms of cocaine and with

conspiracy to possess with intent to distribu te cocaine in

v iolation of 21 U.S.C. §§ 8 41(a)(1) & (b)(1)(A) and 846. Cruz

decided to plead guilty and cooperate with the government. 2 Lopez,

Ornelas, Garcia and Urrego pled not guilty and all four were

convicted by a jury. 3-6- The district court sentenced Rodriguez and Garcia to 169

months each. Lopez received a term of 121 months. Their sentences

were to be fol lowed by concurrent five-year terms of supervised

release. Urrego was sentenced to a 292 month term of confinement

to be followed by concurrent 10-year terms of supervised release.

Rodriguez, Garcia and Lopez were each ordered to pay a fine of

$1000.00 and Urrego's fine was assessed at $25,000.00. All four

defendants were ordered to pay the mandatory special assessment of

$100.00 each.

II.

All four defendants first raise t he claim that the

evidence was insufficient to sustain their convictions. In

reviewing the sufficiency of the evidence, this Court vi ews all

evidence, whether direct or circumstantial, and all inferences

drawn from this evidence, in the light most favorable to the

verdict. U nited States v. Madison

, 990 F .2d 178, 181 (5th Cir.

1993). The conviction should be affirmed "if the evidence so

viewed would permit a rational jury to find all elem ents of the

crime proven beyond a reasonable doubt.

. . ." U ni ted States v.

Roberson

, 6 F.3d 1088, 1093 (5th Cir. 1993). "It is not necessary

that the evidence exclude every rational hypothesis of innocence or

be wholly inconsistent with every conclusion except quilt, provided

a reasonable trier of fact could find the evidence establishes

guilt beyond a reasonable doubt." U nited S tates v. PrunedaGonzalez , 953 F.2d 190, 193 (5th Cir.), c ert. denied

, ___ U.S.

___, 112 S.Ct. 2952 ( 1992). The Court must not concentrate on-7-

"whether the trier of fact made the correct guilt or innocence

determination, but rather whe ther it made a rational decision to

c onvict or acquit." H errera v. Collins

,

___ U.S.

___, 113 S.Ct.

853, 861 (1993).

To prevail in a drug conspiracy prosecution brought

pursuant to 21 U.S.C. §§ 841(a)(1) and 846, the government must

prove beyond a reasonable doubt that 1) there existed an agreement

between two or more individuals to violate the narcotic laws, 2)

defendant was aware of the agreement and 3) defendant was a

v oluntary participant in the agreement. U nited States v. Gal lo

,

927 F.2d 815, 820 (5th Cir. 1991) . All of these elements may be

inferred from the "development and collocation of circumstances."

United States v. Vergara , 687 F.2d 57, 61 (5th Cir. 1982).

The jury may rely on presence or association in

conjunction with other evidence but mere presence at the scene or

a close association with the conspirators, without more, is an

insufficient basis for inferring participation. United States v.

Maltos

, 985 F.2d 743 (5th Cir. 1992). Furthermore, placing a

defendant in a "climate of activity that reeks of something foul"

is not enough to support a conspiracy conviction. U nited States v.

Galvan , 693 F.2d 417, 419 (5th Cir. 1982).

In order to convict these defendants of possession with

intent to distribute narcotics, the governm ent was required to

prove beyond reasonable doubt that a conspiracy exist ed and that

each defendant voluntarily participated therein. U nited States v.

Rodriguez-Mireles , 896 F.2d 890 (5th Cir. 1990). "No evidence of-8-

overt conduct is required." United States v. Hernandez-Palacios

,

838 F.2d 1346, 1348 (5th Cir. 1988).

All four defendants contend there was insufficient

evidence to support their convictions and believe the government

failed to show they were knowingly involved in a conspiracy to

possess with intent to distribute cocaine. However, direct

evidence of an agreement to deal in drugs rarely exists. "A

conspiracy agreement may be tacit, and the trier of fact may infer

agreement from circumstantial evidence." Id

. An abundance of

evidence was presente d by the prosecution which established the

existence of the conspiracy and the knowledge of the voluntary

participation in the conspiracy by all four defendants.

Urrego

Defendant Urrego asserts the evidence shows only that he

caused Cruz to go to Guatemala and that this was done for the sole

purpose of obtaining the real estate papers. He purchased roundtrip airline tickets for both Cruz and McKi nney. The reason the

women returned by car was because his friend in Guatemala wanted

them to drive the car back. When his co-defendants insisted that

Cruz stay an extra day he told her she could c ome home. He

believes that the fact that he used an assumed name when arrested

and had the title to the car in his briefcase is inadequate.

Testimony reflects th at everyone Cruz met in Guatemala

was associated with Urrego and the jury rejected the argument that

it was a coincidence that Garcia and Lopez were in Guatemala at the

same time. The evidence showed that Urrego was the one the others-9-

contacted whenever a problem arose and he sent money when it was

needed. It was Urrego who ultimately convinced Cruz to drive the

car back to Texas. Both Ornelas and Garcia had telephone numbers

linking them to Urrego. Urrego was unconcerned with the real

estate papers Cruz had been sent to retrieve. When he arrived in

Corpus Christi his primary concern was the car and whether McKinney

would contact the police.

Urrego used an alias on two occasions, once when he tried

to send Cruz money and again when he was booked. In addition, the

phone numbers in the possession of Garcia and Ornelas in

conjunction with the calls from Guatemala and Matamoros tie him to

the cocaine.

Resolving all inferences and credibility determinations

in favor of the jury's verdict as required by U nited States v.

Santisteban

, 833 F.2d 513, 516 (5th Cir. 1987), a rational trier of

fact could have found that defendant Urrego voluntarily agreed to

and participated in a conspiracy to possess cocaine with the intent

to distribute and knowingly possessed cocaine.

Lopez

Defendant Lopez contends that there is only scant

circumstantial evidence against him and that the government relied

heavily upon his confession. Whether the confession should have

been suppressed is addressed in Section III, infra

. He believes

that he was not a target of the investigation and that the

government did not know of his existence until he appeared at the-10-

hotel in Corpus Christi with Urrego to arrange for the repair of

the car.

The circumstantial evidence shows Lopez was associated

with some of the other defendants, he went with Urrego when he took

Cruz and McKinney to the airport and he repeated the assertion by

Cruz that someone "told her everyth ing". Furthermore, a week

before his arrest he went to the Department of Transportation to

pick up the title to the car driven by a co-defendant at the time

of his arrest. The address he gave when the title was issued did

not exist.

Lopez believes that since he was not found to be in

actual possession of the cocaine his conviction must be reversed.

Possession may be constructive if the evidence indicated the

defendants ownership, dominion and control over the [narcotic].

United States v. Richardson

, 848 F.2d 509, 512 (5th Cir. 1988). In

addition, even if the issues of Lopez's constructive p ossession

with intent to distribute were not clearly present, a conspirator

is liable for the substantive offenses of his co-conspirators while

he is a member of the conspiracy. U nited States v. Garcia

, 917

F.2d 1370, 1377 (5th Cir. 1990) (quoting United States v. Basey

,

816 F.2d 980, 997 (5th Cir. 1987).

Although much of the government's evidence regarding the

participation by Lopez in the conspiracy may have been

circumstantial, it was more than sufficient to support the jury's

verdict. See United States v. Martinez

, 975 F.2d 159, 162 (5th

Cir. 1992), cert. denied

,

___ U.S.

___, 113 S.Ct. 1346 (1993).-11-

The refore, we find there was sufficient evidence to support the

jury verdict.

Garcia

According to defendant Garcia, it was a coincidence that

he arrived at the Sarita checkpoint sho rtly after Cruz and

McKinney. He contends he did not know the car driven by Cruz

contained cocaine and he was not involved in a conspiracy to bring

the drugs across the border.

The testimony shows that Garcia knew Cruz and they had

their picture taken together, he owned the car she was driving, was

in possession of an extra set of keys to the car and was with her

in Tapachula and Matamoros. He also commented to Ornelas that they

should have waited another day and the Mustang contained a page of

phone numbers linking him to Urrego and Lopez.

Like Lopez, he contends that his conviction must be

reversed because he had no actual possession of the cocaine.

However, he too had constructive possession because some of his codefendants had actual or constructive possession and they were his

co-conspirators.

The jury refused to accept the premise that all of these

events were purely accidental. While each piece of evidence,

viewed independently may have been susceptible of innocent

interpretation, we are convinced that the jury r easonably could

have concluded that when examined in th e aggregate, the evidence

sufficed to establish Garcia's guilt.-12- Ornelas

Defendant Ornelas first appears on the scene in Mexico

driving the red Mustang. This is the vehicle which contained

Urrego's telephone numbers and the keys to the load-vehicle. He,

along with Garcia, was responsible for the security of the load.

They relieved Cruz and McKinney of all evidence that they had been

to Guatemala and controlled the keys to the vehicle. This,

together with the fact that he was driving the Mustang, his conduct

in Matamoros and his hesitancy to comply with instructions at the

checkpoint make it reasonable for the jury to conclude he was

involved in the consp iracy. The district court did not err in

accepting the jury's verdict.

III.

Lopez also argues that the distri ct court erred by

denying his motion to suppress his confession. He claims that

because he was close to Urrego when Urrego was beaten by Officer

Warren in the elevator, his later confessio n at DEA headquarters

was coerced and admitted in violation of his due process rights.

When reviewing a ruling from a supp r ession hearing,

"[t]his Court must give credence to the credibility choices and

findings of fact of the district court unless clearly erroneous."

United States v. Raymer

, 876 F.2d 383, 386 (5th Cir.), cert. denied

,

493 U.S. 870 (1989) (citing United States v. Watson

, 591 F.2d 1058,

1061 (5th Cir.), cert. denied

, 441 U.S. 965 (1979)). A finding is

clearly erroneous only when the reviewing court is left with the

"definite and firm conviction that a mistake has been committed."-13-

Anderson v. City of Bessemer City

, 470 U.S. 564 (1985) (quoting

United States v. United States Gypsum Co.

, 333 U.S. 364 (1948)).

The ultimate issue of voluntariness, however, is a legal question

requiring the reviewing court to make an independent determination.

Raymer , 876 F.2d at 386 (citations omitted).

The trial c ourt held a four day hearing on pretrial

motions. With respect to the motion to suppress of defendant Lopez

it found:

It is at this point where the credibility of

these witnesses is t he most important. The

court does not find that what occurred at the

time of the arrest was influential in what

occurred that night later at the DEA when the

defendant gave his statement. The court

recalls t hat the burden of proof placed upon

the government has been recently established

and stated in this circuit to be by a

preponderance of the evidence, which means

whether or not the government has proven that

its version of the facts is probably correct,

n ot clear and convincing. Were this a clear

and convincing case, the government's burden

would not be met. The question is whether or

not it is probably true that the defendant was

extended his warnings and knowledgeably and

voluntarily waived them. And again, in

viewing that testimony between O'Brien and

Lopez, the court finds that it is probably

tru e that O'Brien is telling the truth and

Lopez is no t. Not only are the motivational

factors different, the court believes that the

defendant Lopez convicts his own credibility

by the exaggeration of his testimony. He was

not to the court a credible witness . On the

contrary O'Brien was. He remembered generally

wh at happened, he was not sure of other

things, and that itself brings a certain

degree of credibility to the court. He

remembered the most important matters, and

that is that the defendant was in no

circumstances of physical d istress, no

circumstances of physically being bound, that

he was given the warnings, and that there were basically two separate events of-14- interrogation, the second occurring after the

defendant was confronted with information that

Urrego himself gave during an illegal inquiry.

That type of information is th e type of

information that would inspire a co-defendant

to say, according to the government's theory,

"The boss has talked, there's no reason for me

to be quiet any longer." And the boss had

talked. That, to the court is much more

credibl e than a scenario that a DEA officer

had threatened to beat, had screamed, had

cursed a defendant. It is clearly true the

DEA officers and O'Brien included probably

pointed out to the defendant the advantages of

cooperation. That does not remove free will.

The court did not hear circumstances that

convinced it that the defendant's free will

was jeopardized.

This Court's independent review of the suppression hearing evidence

confirms the trial court's findings of fact and must determine what

legal conclusions are to be derived from these facts.

The standar d for determining whether a confession is

voluntary is whether, taking into consideration the "totality of

the circumstances," the statement is the product of the accused's

"free and rational" choice. M artinez v. Estelle

, 612 F.2d 173, 177

(5th Cir. 1980) (quoting Greewald v. Wisconsin , 390 U.S. 519, 521

(1968)). If a person "voluntarily, knowingly and intelligently"

waives his constitutional privilege a statement is not considered

compelled within the meaning of the Fifth Amendment. U nited States

v. Rogers

, 906 F.2d 189, 191 (5th Cir . 1990) (citing M iranda v.

Arizona , 384 U.S. 436, 444 (1966)). Not only must the confession

be the result of a free and deliberate choice but also made with an

awareness of the right being abandoned and the consequences of that

decis ion. Moran v. Burbine , 475 U.S. 412, 421 (1986). A

con fession does not occur in a vacuum but is a response to a-15-

particular fact scenario. U nited States v. McCrary

, 643 F.2d 323,

329 (5th Cir. Unit B 1981). Therefore, the issue of whether a

confession was voluntary must be reviewed on a case-by-case basis.

Jurek v. Estelle

, 623 F.2d 929, 937 (5th Cir. 1980)(en banc), cert.

denied , 450 U.S. 1001 (1981).

The admission of the Lopez confes sion turns upon a

credibility choic e. The district court's decision to choose the

credibility of O'Brien was not clearly erroneous. It believed

O'Brien when he said Lopez had been told Urrego had talked and that

t here were advantages to cooperating. The confession took place

several hours after the incident in the elevator and there is

absol utely no evidence that Lopez was personally threatened with

physical violence if he failed to confess. As a result we affirm

the district court's denial of the suppression motion.

IV.

Garcia contends his Sixth Amendme nt right of cross

examination was violated when Officer Warren invoke d the Fifth

Amendment after being called to testify by Defendant Urrego. Cruz

had entered into a plea ag reement and testified against Urrego,

Lopez, Garcia and Ornel as. During cross-examination she alleged

sexual misconduct during her incarceration at the Sarita Checkpoint

by Officer Warren. Warren was faced with criminal charges stemming

from this incident. As a result, Warren was called as a witness by

the defense to test the credibility of Cruz he invoked the Fifth

Amendment. The defense then moved for a mistrial and a hearing was

held outside the presence of the jury. The motion was denied.-16- Garcia argues that the Sixth Amendment includes the right

of cross-examination of a witness as well as the right of

confrontation. U nited States v. Wilschn er , 624 F.2d 840 (8th

Cir.), cert. denied , 449 U.S. 994 (1980). He contends Cruz was a

questionable witness and Warren's invocation of the Fifth Amendment

added more weight to the government's case because the jury was

forced to rely on the testimony of a dubious witness.

The court must make two inquires when determining whether

reversible error occurred as a result of a witness' invocation of

his Fifth Amendment rights. First, error may occur due to

prosecutorial misconduct if the government makes a flagrant attempt

to build its case on inferences arising from the assertion of the

privilege. U nited States v. Victor

, 973 F.2d 975, 979 (1st Cir.

1992). Second, error may occur if the refusal to answer adds

considerable weight to the government's case. Id . Garcia relies

on United States v. Quinn

, 543 F.2d 640, 650 (8th Cir. 1976) which

deals with a government witness asserting the Fifth Amendment.

In the case at hand, Warren was not a government witness.

Therefore, neither the court nor the government violated Garcia's

right to cross-exam Warren. We decline to extend existing case law

to include rebuttal witnesses called by the defense. Since

Garcia's right to cross-examination was not violated by either the

government nor the court we find the district court did not err

when it refused to grant Garcia's motion for a mistrial.-17- V.

Urrego asserts that during voir dire, which occurred on

A pril 13, 1992, the court made a comment that could allegedly be

construed as improperly characterizing the burden of proof required

for a conviction which resulted in a denial due process.

The record shows that the court stressed during its

preliminary instructions to the jury that the burden of proof is

always on the government. However, the Court also made the

following comment which forms the basis of Urrego's complaint:

Today is a great week for the exercise of all

sorts of duties of citizenship, especially for

you. You have jury service on Monday, you can

vot e on Tuesday, and you can pay your income

taxes on Wednesday, and you can go to church

on Friday and S unday of Easter Holy Week and

pray that you made all the right decisions and

pray that you properly accounted for your

taxes.

Defense counsel expressed concern with this statement and discussed

the matter with the Court. The Court agreed with counsel that the

comment was inappropriate.

W hen the case went to the jury on April 22, 1992, the

jurors were given detailed instructions on the presumption of

innocence and the burden of proof. It is presumed jurors follow

their instructions. U nited States v. Villarreal

, 963 F.2d 725, 729

(5th Cir.), cert. denied

,

___ U.S.

___, 113 S.Ct. 353 (1992)(citing

Richardson v. Marsh , 481 U.S. 200, 206 (1987)).

Defendant contends this statement affected the jury's

consideration of the burd en of proof because although the jurors

were given a proper instruction concerning proof beyond a-18-

reasonable doubt, the invitation to pray set a different standard.

Urrego argues that this standard is based on the individual jurors'

concept of God and whatever expectations must be satisfied within

that context. An invitation to pray implies that the person in

authority in the courtroom believes there is a standard of judgment

outside the courtroom and outside the standard that is to be

applied by them according to the law.

The Court has carefully reviewed the record on this

issue. Eleven days passed from the time the preliminary statement

was made and the case went to the jury. Any error which may have

occurred as a result of this casual remark was cured by the passage

of time and the district court's detailed instruction on the

presumption of innocence and the bu rden of proof. There is no

evidence that the statement in question deprived Urrego of a fair

trial.

VI.

Finally, Urrego contends he was denied his right to due

process because the district court denied his motion to dismiss

based on outrageous government conduct. Urrego claims that after

Officer Warren had sex with Cruz during her interrogation he told

her that she had to contact Urrego because if the government could

not get anything on him the majority of the blame would fall on

her. Cruz called Urrego twice from the DEA office. Urrego agreed

to wire her $200 and meet her at the Marriott Hotel in Corpus

Christi. When Urrego arrived, Cruz was instructed by the DEA to

get him to talk about the drugs in the car. She was unsuccessful.-19-

Defendant arg ues that this Court should invoke its supervisory

powers and set aside the district court's order denying the motion

to dismiss.

The underlying purpose of these inherent supervisory

powers are to 1) implement a remedy for a violation of a recognized

right, 2) to preserve judicial inte grity by insuring that the

conviction rests on appropriate consideration validly before the

jury and 3) as a remedy designed to deter further illegal conduct.

United States v. Hasting

, 461 U.S. 499 (1983). Urrego contends

Warren took advantage of his position and abused the authority

intrusted to him. He believes that moments after the first sexual

act Warren set in motion activities which caused Urrego to travel

to Corpus Christi where he was arrested. Urrego argues that the

harm increased when the government used Cruz, the most detrimental

witness against him, as a witness when it had kno wledge of the

misconduct.

"Reversals of convictions under the court's supervisory

power must be approached "with some caution." U nited States v.

Payner

, 447 U.S. 727, 734 (1980). In addition, "[s]upervisory

power to reverse a conviction is not needed as a remedy when the

error to which it is addressed is harmless since, by definition,

the conviction woul d have been obtained notwithstanding the

asserted error." Hasting , 461 U.S. at 506.

Cruz testified that she would have assisted the

government without the sex and there is no evidence that either the

g overnment or the Court sanctioned Officer Warren's conduct. An-20-

official investigation was initiated to determine if criminal

charges were warranted and the Court chastised the DEA for allowing

the situation to occur. Furthermore, the evidence used against

Urrego was independent of the sexual activity. It included the

materials taken from his brief case, telephone records and toll

receipts. This Court concludes that this is not a case where it is

necessary for it to exercise its supervisory powers.

For the foregoing reasons, the judgment of the district

court is AFFIRMED in all respects.