*

 Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published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 Local Rule 47.5.4.

 

1

21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846.

 

2

18 U.S.C. § 2, 21 U.S.C. §§ 952, 960(a)(1), 960(b)(1)(B), 963.

 

3

21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii)(II).

 

4

18 U.S.C. § 2, 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(1)(B)(ii).

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-40093

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MANUEL VALDEZ-ANGUIANO,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

June 12, 1996

Before POLITZ, Chief Judge, WIENER and BARKSDALE, Circuit Judges.

POLITZ, Chief Judge:*

Manuel Valdez-Anguiano appeals his convictions for conspiracy to possess with intent to

distribute cocaine;1conspiracy to import cocaine;2possession with intent to distribute cocaine;3

importation of cocaine;4and using and carrying a firearm during and in relation to a drug trafficking
 

5

18 U.S.C. §§ 2, 924(c)(1), 21 U.S.C. § 952(a).

 

6Two unidentified vehicles assisted in the escape by running interference.

 

7He also gave Fernandez a Ford Bronco to compensate for his complicity in the proposed scheme.

2

offense.5 For the reasons assigned we affirm.

BACKGROUND

While on surveillance near Stinton, Texas in August of 1986, law enforcement authorities

observed a Piper Aztec aircraft land at the San Patricio County Airport and several men unload its

cargo of heavy crates into the bed of a pickup truck. The authorities unsuccessfully sought to stop

the truck as it left the airport.6 The men who unloaded the cargo, Valdez-Anguiano, Alberto Cruz

Alaniz, Gerardo Guerra and Ricardo Leveck, were arrested. A search of a vehicle on the scene

revealed a two-way radio, an electronic transponder detector, and a loaded .45 caliber automatic

pistol. Each of the suspects denied ownership of the vehicle, the property confiscated, and the

aircraft. 

In March 1987, a trained canine alerted on Valdez-Anguiano’sluggage at DFWInternational

Airport. After securing Valdez-Anguiano’s consent, the luggage was opened and the authorities

discovered $289,000 in $20 bills. Valdez-Anguiano explained to the authorities that while in

California he was contacted by three strangers who asked him to transport the money to an

acquaintance in McAllen, Texas.

In the summer of 1987 a paid informant, Jose Fernandez, met Valdez-Anguiano in McAllen,

Texas to discuss the importation of cocaine from Mexico. Fernandez agreed to participate and

Valdez-Anguiano gave him approximately $32,000 to purchase a Piper Aztec aircraft in which to

smuggle the cocaine.7 Fernandez discussed the planned scheme on numerous occasions with ValdezAnguiano and several of his associates, including Clemente Caceres and Oscar Garcia-Rodriguez.

During these discussions Valdez-Anguiano disclosed that the cocaine to be shipped into the United

States would come from his supplier in Colombia via his ranch near Ciudad Victoria, Mexico.

OnOctober 2, 1987, Fernandez flewaBeechcraft QueenAir aircraftfromValdez-Anguiano’s
 

8The Piper Aztec bought by Valdez-Anguiano had been disabled previously by Fernandez.

 

9Rodrigo Olivares-Prado's dead body was found clutching a .12 gauge shotgun.

3

ranch with a load of cocaine for delivery in the United States.8 Fernandez was accompanied by a

passenger, Oscar Garcia-Rodriguez, who was armed with a Colt AR-15 assault rifle to protect the

shipment. 

Meanwhile a pickup truck registered to Valdez-Anguiano and a Chevrolet Suburban entered

the Nordheim airstrip near Yorktown, Texas. After a meeting in the middle of the airstrip, the truck

drove to the north end and the Suburban drove to the south end. At approximately 2:30 a.m. some

of the men present began to light the airstrip with flares while Valdez-Anguiano directed the aircraft

to its landing by way of radio. As the aircraft landed both vehicles approached and the cargo was

unloaded quickly into the Suburban and the plane departed. 

The truck then drove to the north end ofthe airstrip and the Suburban proceeded to the south

end. At this point the authorities made their presence known and identified themselves to the driver

and passenger of the Suburban. Two shotgun blasts were fired from the Suburban; the authorities

returned fire. Caceres, the driver, was wounded in the leg and the passenger, Rodrigo OlivaresPrado, was killed.9

 The Suburban contained more than 1,000 pounds of cocaine with a street value

of approximately $146 million.

At the north end of the airstrip the occupants fled the truck and proceeded into the brush on

foot. The authorities arrested Ramiro Olivares-Prado and Garcia-Rodriguez several miles north of

the airstrip thatsame day. Valdez-Anguiano alluded detection. On October 4, 1987 a Karnes County

Deputy Sheriff unsuccessfully attempted to arrest Valdez-Anguiano near a farm approximately 25

miles north of the Nordheim airstrip. Valdez-Anguiano remained a fugitive for approximately seven

years until he was arrested at the Hidalgo port of entry in Hidalgo, Texas. He was tried to a jury,

convicted on all counts, and sentenced to a total of fifty years in prison. He timely appeals.

ANALYSIS

A. Double Jeopardy
 

10United States v. Arreola-Ramos, 60 F.3d 188 (5th Cir. 1995). 

 

11373 U.S. 83 (1963).

 

12See Kyles v. Whitley, 115 S.Ct. 1555 (1995). In Kyles, the Court held that to determine the

existence of a Brady violation we must inquire whether the government’s evidentiary suppression

undermines confidence in the outcome ofthe trial. Id. (citing United States v. Bagley, 473 U.S. 667

(1985).

 

13See United States v. Neal, 27 F.3d 1035 (5th Cir.), cert. denied, 115 S.Ct. 530 (1994); United

States v. McKinney, 758 F.2d 1036, 1050 (5th Cir. 1985) (“The courts have uniformly held that,

in such circumstances, the inquiry is whether the defendant was prejudiced by the tardy disclosure.”).

4

Valdez-Anguiano argues on appeal that the forfeiture of the $289,000 at DFW airport

constituted punishment underthe double jeopardy clause and that the subsequent prosecution violated

the fifth amendment. The government contends that Valdez-Anguiano waived this challenge because

he failed to raise it below. Valdez-Anguiano counters that even though he failed to raise this

challenge below we sho uld review for plain error. Were we to review for plain error, ValdezAnguiano’s challenge would fail; the record does not reflect that Valdez-Anguiano was a party to the

forfeiture proceedings.10

B. Tardy Disclosure of Brady Material

Valdez-Anguiano complainsthat the government’sfailure to disclose priorto trialthat its paid

informant, Jose Fernandez, had been convicted in Mexico for electronics smuggling violated Brady

v. Maryland11 because thistardydisclosure rendered histrialunfair when evaluated underthe totality

of the circumstances.12 Absent proof of prejudice and that the defendant was denied a fair trial, tardy

disclosure of Brady impeachment material is not reversible error.13

Valdez-Anguiano hasfailed to identify any prejudice. Defense counsel admitted that he knew

that Fernandez had been arrested on this charge and was not surprised to learn of the conviction.

Moreover, Fernandez was cross-examined regarding the conviction, and was made available to be

re-called as a witness, an offer Valdez-Anguiano declined. The defendant’s speculation that timely

receipt ofthisinformation would have permitted further investigation into that witness’s background

and would have enhanced impeachment is not sufficient to show the requisite prejudice. 
 

14Counts one and two ofthe indictment allege, respectively, that between August 7, 1986 (the time

of the Stinton incident) and October 2, 1987 (the time of the Nordheim incident) Valdez-Anguiano,

Clemente Caceres, Alberto Cruz Alaniz, Oscar Garcia-Rodriguez, Ramiro Olivares-Prado, Gerardo

Guerra, and Ricardo Leveck conspired to possess with intent to distribute cocaine and to import

cocaine. Alaniz, Guerra, and Leveck took part in the activities at Stinton; Caceres, Olivares-Prado,

and Oscar Garcia-Rodriguez took part in the activities surrounding Nordheim. 

 

15United States v. Jackson, 978 F.2d 903 (5th Cir.), cert. denied, 508 U.S. 945 (1993). 

 

16United States v. Ross, 58 F.3d 154 (5th Cir.), cert. denied, 116 S.Ct. 404 (1995). 

 

17United States v. Faulkner, 17 F.3d 745 (5th Cir.), cert. denied, 115 S.Ct. 193 (1994).

5

C. Material Variance

Valdez-Anguiano maintainsthat while the indictment alleged a single conspiracy the evidence

at trial established two separate conspiracies, i.e., the Stinton conspiracy and the Nordheim

conspiracy.14 He bases this argument in large part on the fact that none of the charged coconspirators overlap between the two incidents. This variance, he claims, requires reversal of his

conviction. Reversal is warranted only if the defendant proves a variance and that the variance

prejudiced Valdez’s substantial rights.15 In a conspiracy prosecution we examine three factors to

determine ifthe government proved the single conspiracyalleged in the indictment: (1) whether there

was a co mmon goal, (2) the nature of the scheme, and (3) whether the participants in the various

dealings overlapped.16 If the defendant failed to establish prejudice to his substantial rights we need

not determine whether there was a variance. Assuming arguendo a variance, Valdez-Anguiano’s

substantial rights were not affected because the government proved beyond a reasonable doubt that

he is guilty of one conspiracy.17

D. Sufficiency of the Evidence

Valdez-Anguiano contends that the evidence is insufficient as a matter of law to support his

convictions. He moved for a judgment of acquittal on the conspiracy offenses and the firearms

offense, but not on the possession with intent to distribute and importation counts. Accordingly, we

review the former to determine whether a reasonable trier-of-fact could have found the essential
 

18United States v. Crooks, 1996 WL 218850 (5th Cir. 1996).

 

19United States v. Hall, 845 F.2d 1281 (5th Cir.), cert. denied, 488 U.S. 860 (1988).

 

20Crooks.

 

21See United States v. Resio-Trejo, 45 F.3d 907 (5th Cir. 1995) (intent to distribute may be

inferred from the quantity and cost of the drugs). The evidence also abundantly supports a finding

that he constructively possessed the cocaine at various points in the operation.

6

elements beyond a reasonable doubt18 and the latter to discern whether affirmance of the conviction

would result in a manifest miscarriage of justice.19

The first two counts of the indictment allege, respectively, a conspiracy to possess cocaine

with intent to distribute and a conspiracy to import cocaine. To establish a conspiracy, the

government must prove beyond a reasonable doubt that (1) an agreement existed between two or

more persons to accomplish unlawful ends, (2) the defendant had knowledge of the agreement, and

(3) he voluntarily participated. Count three alleges possession with intent to distribute, which

requires proof beyond a reasonable doubt that the defendant knowingly possessed the contraband

with intent to distribute. Count four charges importation. To establish importation the government

must prove beyond a reasonable doubt that the defendant participated in bringing a quantity of a

controlled substance into the United States knowing that the substance was controlled and that it

would enter the United States. Alternatively, the indictment charges aiding and abetting the

commission of the above substantive offenses. To establish aiding and abetting the government must

prove that the defendant associated with a criminal venture, participated therein, and actively sought

its successful conclusion.20

The evidence overwhelmingly supports the drug convictions. The evidence established that

Valdez-Anguiano actually possessed an immense quantity of cocaine as it was off loaded from the

aircraft at the Nordheim airstrip.21 The evidence also established that Valdez-Anguiano supervised

and managed an operation in which several persons were involved; he engaged Fernandez to pilot the

shipment of cocaine from his ranch in Mexico into the United States, he purchased a Piper Aztec to

be used in such covert operation even though it was no t actually used, he and several of his co-
 

22Bailey v. United States, 116 S.Ct. 501 (1995).

 

23See United States v. Davis, 61 F.3d 291 (5th Cir. 1995), cert. denied, 116 S.Ct. 961 (1996).

 

24

“Use of a firearm” means “active employment” and that “active employment” obviously includes

firing a weapon. Bailey.

 

25See United States v. Dean, 59 F.3d 1479 (5th Cir. 1995), cert. denied, 116 S.Ct. 748 (1996).

 

26The evidence also supports a finding that Valdez-Anguiano is guilty of aiding and abetting this

substantive offense.

 

27United States v. Royal, 972 F.2d 643 (5th Cir. 1992), cert. denied, 507 U.S. 911 (1993).

7

conspiratorsmet with and discussed the schemewithFernandez, and he directed Fernandez via air-toground radio to the clandestine airstrip near Yorktown, Texas. 

Valdez-Anguiano also attacks his 18 U.S.C. § 924(c) conviction. To establish a violation of

section 924(c) the government must prove beyond a reasonable doubt that the defendant used or

carried a firearm during and in relation to a drug trafficking offense.22 To prove the alternative

charge, that he aided and abetted the same, the government must establish beyond a reasonable doubt

that during and in relation to a drug crime he aided and abetted the use or carrying of a firearm by

another.23 

Assuming that Valdez-Anguiano neither carried not used24 a firearm in relation to the drug

offenses, the government maintains that his conviction nevertheless is proper because his coconspirator fired on the authorities at the Nordheimairstrip while trying to escape. We agree. When

a Pinkerton instruction is given to the jury, a defendant may be convicted undersection 924(c) based

on a co-conspirator’s use of a weapon during a drug trafficking crime.25 One of Valdez-Anguiano’s

co-conspirators used a shotgun during and in furtherance of the drug trafficking conspiracy; ValdezAnguiano was properly convicted of this count.26

E. Evidentiary Ruling

Valdez-Anguiano challenges the district court’s ruling permitting the jury to hear evidence

of the $289,000 seized at DFW. We review for abuse of discretion.27 First, he alleges that this

evidence should have been excluded under Fed.R.Evid. 404(b). To decide the admissibility of
 

28United States v. Williams, 900 F.2d 823 (5th Cir. 1990).

 

29Fed.R.Evid. 403.

8

“similar acts” or “other acts” evidence we must determine whether the evidence is intrinsic or

extrinsic. Such evidence is intrinsic when the evidence of the other act and the evidence of the crime

charged are inextricably intertwined, both acts are part of a single criminal episode, or the other acts

were necessary preliminaries to the crime charged.28 Valdez-Anguiano’s possession of $289,000 in

$20 bills is intrinsic to the conspiracy; this large amount of cash was discovered a few months prior

to Valdez-Anguiano giving Fernandez approximately $32,000 in cash to purchase a Piper Aztec

airplane to be used in the importation. Additionally, Valdez-Anguiano contends that the district court

erred by ruling that the probative value of this evidence was not substantially outweighed by its

prejudicial effect.29 We perceive no abuse of discretion in either ruling. 

The convictions are AFFIRMED.