[833] Garwood

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 92-8438

__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFONSO MORA, JESUS MEDINA,

JUAN TORRES SOSA and RICARDO REYES LIRA,

Defendants-Appellants.

______________________________________________

Appeal from the United States District Court for the

Western District of Texas

______________________________________________

( )

Before GOLDBERG, GARWOOD and WIENER, Circuit Judges.

GARWOOD, Circuit Judge:

Challenging their convictions for drug-related offenses,

defendants-appellants Alfonso Mora (Mora), Jesus Medina (Medina),

Ricardo Reyes Lira (Lira), and Juan Torres Sosa (Sosa) raise issues

of, inter alia

, entrapment, discovery abuse, and sufficiency of the

evidence. Mora and Medina contest the district court's assessment

of their sentences, disputing its findings on the amount of

marihuana involved in the offense conduct. We affirm.1 On February 25, 1992, Geller met with Medina to arrange the

purchase of six hundred pounds of marihuana from Medina. This

exchange did not occur, however, because, according to Russell,

Medina was unable to acquire the marihuana from his source.

2 Facts and Proceedings Below

Defendants' convictions arise o ut of a sting operation

conducted by the Drug Enforcement Administration (DEA) in El Paso,

Texas, on March 5, 1992. Shortly before noon on that day, Special

Agent Jack Geller (Geller) of the DEA, acting in an undercover

capacity, met with Medina and Mora at a Carro ws Restaurant in El

Paso to negotiate the purchase and delivery of approximately five

hundred pounds of marihuana.

Geller arrived at the restaurant with Roger Russell (Russell),

a confidential informant for the DEA who had introduced him to

Medina in connection with an earl ier marihuana transaction which

had fallen through. 1 Medina was accompanied by Mora, whom Geller

had not met before. Upon his arrival, Medina took Geller to one

side to apologize for not carrying through with the earlier

transaction. Medina then introduced Geller to Mora. The four men,

Geller, Russell, Medina, and Mora, discussed the mechanics of the

anticipated delivery. Geller offered to provide a vehicle, a Ryder

van, to make the exchange: the defendants were to take the

vehicle, load it with marihuana, and return it to Geller at a

specified time and place. During this conversation, Medina told

Geller that he had seen three thousand pounds of marihuana at the

warehouse which was his source of supply. Medina arranged to meet

Geller again at the Carrows Restaurant at approximately 3:00 that

afternoon to exchange the vehicles; his people did not leave work3

until that time. Geller gave Medina his pager number in case of

delay.

As planned, Geller met Medina and Mora at the Carrows

Restaurant that afternoon; Russell was not present at this meeting.

Medina informed Geller that his people could not leave work yet.

When Geller hinted at backing out of the transaction, Mora insisted

that they continue with it. Geller gave Medina the keys to the

Ryder van, and Mora tried them out to ensure that they worked.

Geller and Medina, in Mora's presence, agreed upon the place for

the transfer of the marihuana and the money; Medina drew a map for

Geller, who was posing as a buyer from out of town.

Around 5:00 that aftern oon, Medina called Geller's pager,

lea ving the phone number of a pay phone at a Diamond Shamrock

station. When Geller returned his call, Medina told him that the

transaction was s till on, but that his people were experiencing

further delays.

At 7:00 that evening, Russell called Geller to ask him to call

Medina at the same number he had used earlier. When Geller reached

Medina, Medina ensured him that the arrangement was still on but

would be delayed still further. In addition, Medina wanted to

change the structure of the transaction. Medina stated that rather

than deliver the entire five hundred pounds of marihuana in a

single exchange, his people insisted that he deliver only fifty

pounds of marihuana at first; they would deliver the remaining four

hundred fifty pounds after Geller paid for the first fifty. Geller

was reluctant to split the delive ry in that manner, and he and

Medina agreed to discuss the problem in person at the Diamond4

Shamrock station.

Geller met Medina at the station. Medina informed him that

the Mexican Federal Judicial Police owned the three thousand pounds

of marihuana that he had mentioned at the first meeting at Carrows

and that the Mexican Police wanted to deliver the marihuana in two

parts. At Geller's suggestion, Medina attempted to contact his

source, but he was unable to reach them. Geller refused to pay for

fifty poun ds of marihuana separately, before receiving the full

five hundred pounds negotiated. Finally, they agreed that Medina's

people would deliver the fifty pounds, place it in Medina's

Corvette, then deliver the remaining four hundred fifty po unds,

whereupon Geller would pay for the entire shipment of five hundred

pounds with a single payment.

Medina paged Geller again shortly before 9:00 that evening;

when Geller returned the call, Medina instructed him to go to the

Stadium Bar, a bar located in a strip shopping center. When Geller

arrived, Medina took him ove r to the Ryder van which was parked

there and, indicating a box that was visible through the window of

the van, told Geller that the box contained marihuana. Medina

entered the Stadium Bar and returned with Mora, who opened the van.

When Geller entered the van, he smelled marihuana and could see

that the box contained small, flat bricks of marihuana. Mora

insisted that he pay for the fifty pounds before they would

conti nue with the transaction. When Geller realized that the

remaining marihuana would not be delivered without prior payment2 Geller did not want to pay for the fifty pounds of marihuana

for security reasons: the agents would have had to maintain

surveillance over the money as well as continue to monitor the

defendants' activities and provide protection for Geller as the

undercover officer.

3 We note that the Justice Department has informed us (and

counsel for appellants), by letter dated April 23, 1993, that

Detective Marquez "was recently indicted" for conspiring to

possess a quantity of marihuana with the intent to distribute it,

contrary to 21 U.S.C. §§ 841 and 846. There is nothing to

demonstrate that his indictment affects resolution of the issues

raised in this appeal. The April 23 letter observes that "to the

extent that any of the defendants believe that the newly

discovered evidence affects the judgments below, it would be

appropriate for a motion to be brought in the first instance in

the district court under Federal Rule of Criminal Procedure 33."

None of the appellants have filed any response in this Court to

the Justice Department's April 23 letter.

4 Several times later in the day, the agents spotted the

Rabbit parked at Medina's residence at 11803 Prado Del Sol.

5 for the first fifty pounds, he gave the arrest signal. 2

Surveillance conducted throughout the day revealed defendants'

involvement in the transaction. El Paso Police Detectives Manuel

Figueroa (Figueroa) and Luis Marquez (Marquez), 3 both working with

the DEA Task Force, surveilled the meeting at Carrows and upon its

conclusion followed Medina and Mora, who were in a white Volkswagen

Rabbit. 4 Figueroa and Marquez dropped off their tail when Joe

Zimmerly (Zimmerly), a detective for the El Paso Police Department,

took over and followed Medina and Mora to the B est Buy Tortilla

Factory. Zimmerly observed Medina enter the factory and return

about five minutes later. Evidence at trial showed that Sosa and

Lira worked at that factory.

Figueroa and Marquez surveilled the 3:00 p.m. meeting at

Carrows. After the meeting ended, they followed the Ryder van,

which Mora was driving, to the shopping center where the Stadium6

Bar is located. Later in the afternoon, the agents saw Mora and

Medina near Medina's house on Prado Del Sol in the white Volkswagen

Rabbit.

Around 6:00 p.m., Figueroa and Marquez noticed a white Ford

pickup truck arrive at Me dina's house; two men got out and went

inside the house. The truck was registered to Lira's wife. The

men in the pickup truck left and came back after a shor t time.

Around 6:30 p.m., the men left again in the white Ford pickup

truck; the agents followed the truck to a Good Time store where

they observed a man later identified as defendant Sosa making a

telephone call. Around the same time, the detectives saw Medina

leaving his house in a blue Corvette; they followed him to the Good

Time store where Medina got out and met with Sosa.

About 7:10 that evening, Zimmerly, who had been watching the

Ryder van for about four hours that afternoon and evening, saw the

white Ford pickup park behind the van. He could not identify the

occupants. He observed a person get out of the pickup truck and

drive off in the van. Zimmerly followed the van until other agents

took over the surveillance. He later drove by the parked van and

observed a meeting of two men by the van about 7:35 p.m.

Ron Ayers, a Special Agent with the Immigration Service

attached to the DEA Task Force, began his involvement with the

surveillance of the defendants around 6:00 in the evening. At 8:30

p.m., Ayers relieved another surveillance team watchi ng the van.

He saw a gray pickup truck pull up behind the van. One defendant,

later identified by Ayers as Mora, was in the van; two other men

were in t he gray pickup truck. When Ayers had established his7

surveillance position, the three men were standing between the van

and the pickup truck. One man stood between the bumpers and looked

around, one opened the side door of the van, and the third went to

the pickup truck and took something from the front seat. The third

man walked to the van and put the object he was carrying inside the

van and closed its door. The men met once again between the

vehicles. One man got back in the van and drove off; the other two

men got into the pickup, waited for a few minutes, and then

followed the van.

Ayers followed the vehicl es, attempting to get the license

plate number of the gray pickup truck. At a stoplight, he was able

to identify Mora as the d river of the van. Agents maintained

constant surveillance of the vehi cles until they reached the

parking lot of the shopping center. Ayers briefly broke off

surveillance trying to set up in the parking lot. As he monitored

radio traffic, he saw Lir a and Sosa walking back to the pickup

truck and position themselves at an angle looking toward where Mora

had parked the van. Ayers testified that he knew the identities of

the men who met in the parking lot to load the box with marihuana

in the van, not because he could see them clearly at the time, but

because h e saw Mora at the stoplight and later saw Lira and Sosa

exit the pickup truck and because he and other agents maintained

continuous surveillance from the time the men met and loaded the

box into the van until the time they got to the shopping center.

Figueroa and Marquez were also present at the Stadium Bar to

provide support for the exchange. When Geller gave the arrest

signal, Figueroa and Marquez moved in and arrested the men who were8

in the gray pickup that had followed the van to the location; the

pickup truck was registered to Sosa's wife. Figueroa arrested

Sosa, who was in the driver's position in the pickup truck.

Marquez arrested Lira, the other occupant of the gray pickup truck.

Following the arrest, Figueroa glanced inside the pickup truck and

noticed a weapon underneath the edge of the seat, as though it had

fallen forward. The weapon was a loaded 22-caliber semiautomatic

hand gun. No fingerprints were lifted from the gun.

Approximately fifty-two pounds of marihuana were seized from

the van.

All four defendants were indicted on two co unts: (1)

consp iracy to possess, with intent to distribute, marihuana; and

(2) possession and aiding and abetting the possession of marihuana

with intent to distribute it. 21 U.S.C. §§ 841, 846. In addition,

Sosa was charged in count three with the use of a firearm during

and in relation to a dru g trafficking crime. 18 U.S.C. §

924(c)(1). The government gave notice of its intent to seek an

enhanced penalty for conspiracy to possess with intent to

distribute more than one hundred kilograms of marihuana.

The defendants were convicted of all counts, as charged, in a

two-day jury trial, which concluded July 2, 1992. A presentence

report (PSR) was prepared for eac h defendant. The probation

o fficers preparing the reports applied the enhanced penalty

provisions to Medina and Mora, on the grounds that those two

defendant s participated in the negotiations for the delivery of

five hundred pounds of marihuana. The probation officers

concluded, however, that Sosa and Lira could be held responsible5 No adjustments were made for either Medina or Mora; their

offense levels were 26, with criminal history categories of I.

Sosa's base offense level was lowered by two points for a minor

role in the offense, and by a further two levels for acceptance

of responsibility, yielding a base offense level of 14 and a

criminal history category of III. Lira's base offense level was

raised two levels due to the presence of the gun found in the

pickup; this increase was negated by a decrease of two levels for

a minor role in the offense. Lira's resulting offense level was

18, with a criminal history category of IV.

9 only for the fifty-two pounds actually delivered, as there was

insufficient evidence to demonstrate their active participation in

the negotiations for the larger amount. The resulting base offense

levels calculated under the United States Sentencin g Guidelines

were 26 for M edina and Mora, and 18 for Sosa and Lira. 5 The

district court denied defendants' objections to the P SRs and

sentenced them in accordance with the recommendations of the

probation officers.

Discussion

On appeal, Medina and Mora challenge their convictions on the

grounds that the government failed to provide them proper discovery

material. They also claim that they were deprived of a fair trial

by the government's failure to produce the confidential informant

for trial, that they were the victims of outrageous government

conduct, and that they were entrapped. Finally, they contend that

the district court erred in sentencing them based upon five hundred

pounds of marihuana rather than the fifty pounds which were

actually delivered.

Sosa and Lira contest the sufficiency of the evi dence

supporting their convictions for conspiracy and possession of

marihuana; in addition, Sosa challenges the sufficiency of the6 Medina testified that Russell told him he knew too much,

saying, "Look, Jessie, you better think about what I'm doing,

because if you don't things could get really nasty for you."

Other threats included: "Jesse, I can get you taken care of," and

"I will have you killed."

10 evi dence supporting his firearm conviction and joins Medina and

Mora in complaining of discovery abuse by the government.

I. The Confidential Informant

Because several of the defendants' claims on appeal stem from

the involvement in the investigation of Russell, the confidential

informant, some background information concerning Russell's

connections with the defendants and the DEA is appropriate.

Russell and Medina were acquainted prior to the onstart of the

DEA investigation. Medina worked for an insurance company and

established a business relationship with Russell, who ran a

business which provided medical r eports for insurance companies.

The two men later developed a social relationship.

According to Medina, who testified at trial, in return for

some help with veterans benefits, Russell asked Medina to help him

out with some financial problems by participating in some drug

transactions. Medina testified that Russell confronted him three

times in December 1991 and began to use threats to force him to

se ll drugs. 6 Russell told Medina about a millionaire friend in

Dallas who was a drug kingpin, who would send someone to kill

Medina if he did not cooperate. Medina asked Mora, who was his

roommate at that time, to listen in on the conversations when

Russell came by the house and threatened him. Medina also

testified that when he refused to answer the pager Russell had7 Detective Figueroa, who as the case agent in this

investigation was in charge of Russell, did not remember telling

Russell that he would receive a percentage of any property

seized, although he acknowledged that such an arrangement was

possible in some situations. Detective Marquez testified that he

never told Russell that he would be paid ten percent of anything

seized. According to Figueroa, as well as documents provided to

the district court by the government, Russell was paid a total of

$600 for his work with this investigation.

Figueroa instructed Russell in the basics of being a

confidential informant. He also told Russell he could not break

any laws, and Russell signed a document to this effect.

11 given him, Russell sent an employee to Medina's house to warn him

to answer the pages.

Medina and Mora attempted to establish at trial that, although

they were not predisposed to comm it any offense, Russell had

threatened them into participating in mar ihuana trafficking in

order to solve his financial problems. They alleged that Russell

was to be paid a percentage of the value of any property seized

during the investigations for which he was the confidential

informant, and that he pressured them into part icipating in the

transaction and tried to ensure that the transaction entailed a

large amount of marihuana in order to reap the largest profit

possible. 7

II. Entrapment

On the strength of the above evidence, adduced primarily

through their own testimony, Medina and Mora claim th at they

established the defense o f entrapment as a matter of law. The

g overnment did not attempt to directly counter the defendants'

testimony, and Russell was not present at trial to give his side of

the story. The jury, which was fully charged on entrapment,

rejected the defense and found defendants guilty.12

Because the jury did not accept their defense, we review this

claim under the same standard as that which applies to the

sufficiency of the evidence. S ee United States v. Morris

, 974 F.2d

587, 588 (5th Cir. 1992).

The entrapment defense involve s an analysis of two factors:

(1) inducement by the government; and (2) the defendants'

predispositio n

, before any contact with government agents, to

commit the crime charged. U nited States v. Arditti

, 955 F.2d 331,

342 (5th Cir.), cert. denied , 113 S.Ct. 597 (1992). Although the

governme nt has the burden of proving that the defendants were

predisposed to commit the offense, the defendants must first make

a prima facie showing of entrapm ent by presenting some evidence

that actions by the government created a substantial risk that an

offense would be committed by a person not ready to commit it. I d

.

(quoting United States v. Johnson

, 872 F.2d 612, 621 (5th Cir.

1989).

Generally speaking, a defendant's testimony cannot by itself

es tablish entrapment as a matter of law because, absent unusual

circumstances, the jury is almost alway s entitled to disbelieve

that testimony. M asciale v. United States

, 78 S.Ct. 827, 829

(1958) (jury was entitled to disbelieve defendant's uncontradicted

testimony as to his persuasion by informant who did not testify;

hence jury could reject entrapment defense even though raised by

defen dant's testimony). The jury was entitled to, and indeed

apparently did, disbelieve Medina's and Mora's descriptions of

Russell's behavior. Although the government did not introduce any

evidence directly contradicting their story about Russell's8 During one of the phone calls between Medina and Geller on

March 5, Medina told Geller:

"`Why are you so mad? Why are you so -- why are you so

pissed off at me?' I said, `I don't know what you're

talking about.' He said, `Roger' -- referring to Roger

Russell -- `called and said that you were all pissed at

me and you're all mad about something.' I said, `I

haven't even talked to him. I have no idea what you're

talking about. I'm not mad.' . . . I remember telling

him, `Why would I be mad? In fact, I'm happy that you

called because you're letting me know what's going on,

so I'm not mad at all at you. Just ignore what he says

to you.'"

13 threat s, there was other evidence which cast doubt on the

defendants' credibility. Medina denied ever having any discussions

w ith Agent Geller, which was contradicted by Geller's testimony.

And, Medina's testimony exculpating Sosa and Lira was contradicted

by a wealth of circumstantial evidence. Mora and Medina

contradicted each other as to whether Medina discussed delivery of

marihuana with Geller. Moreover, neither Medina nor Mora, who is

Medina's cousin, went to the police about the threats by Russell,

even though Medina's brot her is a chief of police in New Mexico.

The evidence revealed that Medina had the ability to procure

marihuana on his own from suppliers of considerable quantity. In

addition, Russell and Medina were acquainted prior to the onstart

of the investigation; Russell did not initiate their relationship

in connection with his role as a confidential informant. Further,

neither Medina nor Mora ever expressed any reservations to Geller

about the transaction or Russell. On one occasion when Medina was

under the impression that Geller was mad at him, Geller reassured

hi m that everything was fine. 8 When Geller mentioned not going

through with the transaction, Mora urged him to continue.14

The ac tive, enthusiastic participation on the part of the

defendants is enough to allow the jury to find predisposition. S ee

United States v. Hudson

, 982 F.2d 160, 162 (5th Cir. 1993),

petition for cert. filed

, (April 21, 1993) ("It is well established

that a defendant's enthusiasm for the crime can satisfy the

predisposition requirement."); Arditti

, 955 F .2d at 343 (willing

and active participation, with no overwhelming evidence of serious

resistance, sufficient to find predisposition); Unite d States v.

Johnson

, 872 F.2d 612, 621 (5th Cir. 1989) (initiation of scheme by

government did not preclude finding of predisposition where

defendant took active and enthusiastic part in the plan).

At no time during the day of March 5th did Medina and Mora

resist participating in the proposed tran saction. Although they

proposed changes in the mechanics of the delivery of the marihuana,

they did not express any reluctance to procure the marihuana for

Geller; indeed, Mora objected when the possibility arose that

Geller would not continue with the transaction. When Medina

contacted Geller concerning the delays he was experiencing with his

people, he apologized for the wait and arranged new meeting times

rather than taking advantage of the delays as an opportunity to

withdraw. Moreover, when Geller would not assent to the proposed

delivery of the marihuan a in two stages, Medina met with him in

person to try to reach an agreement, attempted to contact his

source to discuss the problem with them, and eventually agreed to

try a compromise proposed by Geller.

F aced with this evidence of participation, the jury cou l d

certainly reject the defendants' testimony (including that as to9 We also reject defendants' claims of outrageous government

conduct. In order to establish such a claim, defendants must

prove not only government overinvolvement in the charged crime,

but also that they were not active participants in the criminal

activity. Arditti , 955 F.2d at 343. Because there was

overwhelming evidence, including their own admissions, of

defendants' participation, the district court did not err in

dismissing this claim.

10 In its order denying defendants' motions for new trial,

etc., the district court stated that

"the Government complied with the discovery orders in

this case, although a more efficient and expeditious

compliance is encouraged. However, the Government's

conduct was not a `textbook example of outrageous

government conduct' as Defendant JESUS [MEDINA] opines.

Further, the Court reviewed, in camera , many materials

before and during the course of the jury trial.

Defendants received all essential discovery materials."

15 Rus sell's threats) and find beyond a reasonable doubt that they

were predisposed to commit the offenses. 9

III. Discovery Claims

Medina, Mora, and Sosa complain that the government failed to

comply with the discovery orders of the district court and disclose

notes taken by government agents during conversations with Russell.

The district court determined, after an in camera review, that the

notes were not discoverable. 10

The district court's decisions in oversee ing the discovery

process are entitled to great deference on appeal. Alleged errors

are subject to review under an abuse of discretion standard; we

will reverse only if the defendants establish prejudice to their

substantial rights. United States v. Singer , 970 F.2d 1414, 1418

(5th Cir. 1992).

At the beginning of the proceedings in the district court, the

court issued a standing discovery order directing the government to11 The only notes at issue were those taken by Detective

Figueroa, who stated that he made notations of names of people

16 disclose all material required under F ED

. R. C RIM

. P. 16, the Jencks

Act (18 U.S.C . § 3500), and B rady v. Maryland

, 83 S.Ct. 1194

(1963). Medina moved for additional discovery relating to Russell,

the confidential informant. The motion was heard by a magistrate

who granted defendant's request and ordered the government to

deliver to Medina any documents concerning Russell, as well as

information about law enforcement of ficers who had contact with

Russell and material on Russell's prior criminal history. The

government moved to modify the magistrate's order to restrict its

scope to information concerning Russell's inv olvement with the

instant case or with defendant Medina. The district court granted

the government's motio n and modified the magistrate's order

accordingly. In considering the government's motion, the district

court had inspected information provided by the government in

camera and determined that the information was not relevant to the

case and need not be revealed to the defendants.

Defendants continued to contend before and during trial that

the government had not complied with the district court's discovery

order. Again during trial the district court inspected materials

provided by the government in ca mera ; it orally provided some

information from those materials to t he defendants and then

informed them that the materials were not discoverable.

Specifically at issue in the defendants' requests were field

notes taken by some of the DEA agents concerning their contacts

with Russell. 11 Neither the district court's discovery orders norgiven him by Russell. Marquez testified at trial that he did not

take notes of his conversations with Russell.

17 the magistrate's order required disclosure of field notes per se

.

The documents relating to Russell listed in the magistrate's order

included "[a]ll memoranda, recordings, letters, receipts, vouchers,

transcripts, reports of investigation, statements, or any other

documents."

To fall within the scope of the magistrate's order, the notes

must be able to be categorized as "statements," as they do not fall

within any ot her described document. The Jencks Act defines

"statement" to mean "a written statement made by [a government

witness] and signed or otherwise adopted or approved by him;" or a

recording or transcription of an oral statement or grand jury

testimony. 18 U.S.C. § 3500(e) (emphasis added). The district

court agreed with the government that the notes did not constitute

a statement. This determination is subject to reversal only if

clearly erroneous. U nited States v. Roemer

, 703 F.2d 805, 807 (5th

Cir.), cert. denied , 104 S.Ct. 341 (1983).

Figueroa's notes consist of names of persons provided by

Russell; they are scattered j ottings, not a formal memorandum or

report. Figueroa did not sign them, and nowhere is there any

indication that he has adopted them as a statement. We hold that

these notes were not discoverable statements within the coverage of

the Jencks Act. S ee United States v. Ramirez

, 954 F.2d 1035, 1038

(5th Cir.), cert. denied , 112 S.Ct. 3010 (1992); Roemer , 703 F.2d

at 806-807.

Although the note s are not subject to disclosure under the12 The materials submitted by the government to the district

court, sealed in the record for review on appeal, consist

primarily of notebooks used by Detective Figueroa to record

information in the form of the names, addresses, and other

pertinent statistics of persons subject to investigation. Most

of the information concerns separate investigations and has no

bearing on the instant case. The information which is relevant

to this case is in the form of notes of the events of March 5,

1992, which are consistent with Figueroa's testimony.

18 Jencks Act, fundamentals of due process require the government to

produce them if the evidence they contain is exculpatory or would

be of value in impeaching government witnesses. Giglio v. United

States

, 92 S.Ct. 763 (1972); Brady v. Maryland

, 83 S.Ct. 1194

(1963). Uncertain whether the notes were exculpatory or of

impeachment value, the government properly su bmitted them to the

district court for in camera inspection. P ennsylvania v. Ritchie

,

107 S.Ct. 989, 1002-03 (1987).

The district court examined the documents i n camera and

concluded that nothing was discoverable. We have reviewed the

materials and determine that this decision was not clearly

erroneous. 12 In addition, the defendants were able to recall

Figueroa to questi on him regarding some of the apparent

discrepancies between his earlier testimony and the information

provided by the district court from the materials it had reviewed

in camera

. No reversible error has been demonstrated in this

connection.

IV. Production of Confidential Informant

Mora and Medina claim that the government's failure to produce

Russell at trial deprived them o f their confrontation and due

process rights. When the presence of a confidential informant is19

required at trial, the government must make a reasonable effort to

produce him. F itzpatrick v. Procunier

, 750 F.2d 473, 476 (5th Cir.

1985).

Although Mora suggests that the government was responsible for

Russell's disappearance, there is no evidence of this in the record

nor any indication that the government impeded attempts to locate

Russell. Figueroa testified that he looked for Russell at

Russell's home and place of business; there was no indication at

either place of Russell's whereabouts. Russell's former roommate

and lover did not know where he had gone. The district court

subpoenaed Russell, at the request of Medina, but even this measure

failed to secure his presence at trial.

This confidential informant was not unknown to the defendants.

Indeed, Russell's relationship with Medina pr edated the DEA

investigation. Medina may have known more about Russell than the

government did; Medin a's testimony at trial revealed that he had

Russell's home phone number, mobile number, and pager number. In

addition, defendants knew where Russell lived and were able to

locate his roommate to testify at trial on their behalf.

The government's attempts to find Russe ll at his house and

place of business were reasonable.

V. Cross-Examination of Agent Geller

Mora and Medina contend that the district court a bused its

discretion in not allowing them to cross-examine Geller on issues

concerning the enhanced penalty provisions, in an attempt to attack

G eller's credibility on the amount of marihuana to be deliver ed.

The district court retains a "wide latitude" to impose reasonable20

restrictions on cross-examination within th e context of the

confrontation clause. D elaware v. Van A rsdall , 106 S.Ct. 1431,

1435 (1986). In light of the fact that the amount of marihuana

involved is not an element of the offense, but only an issue

relevant to sentencing, there was no abuse of discretion.

VI. Sufficiency of the Evidence

Upon a claim of insufficient evidence to support a conviction,

this Court reviews the evidence, whether direct or circumstantial,

and all the inferences reasonably drawn from it, in the light most

favorable to the verdict. U nited States v. Salazar

, 958 F.2d 1285,

1290-1291 (5th Cir.), cert. filed , 113 S.Ct. 185 (1992).

A. Marihuana charges

Sosa and Lira argue that there was insufficient evidence to

convict them of the conspiracy and possession charges. They insist

that they were merely in the wrong place at the wrong time. Medina

testified that he met Sosa and Lira in connection with some

plumbing work that Sosa wanted Mora, Medina's roommate, to do for

him and that this was the reason the two men had come to his house

on March 5, 1992.

Sosa's and Lira's argument ignores the testimony of Special

Agent Ayers, who observed two men from a pickup truck meet with the

driver of the Ryder van, load a box into the van, and then drive to

the Stadium Bar. By maintaining a constant surveillance of the two

vehicles, the DEA agents were able to identify Mora, Sosa, and Lira

as the three men who had met to load the marihuana. Once Sosa and

Lira reached the parking lot of the Stadium Bar, they moved their

pickup truck into a position where they had a good view of the van.21

A reasonable jury could infer that Sosa and Lira knew the contents

of the box they loaded into t he van, based upon the testimony of

Special Agent Geller who stated that the marihuana was unsealed and

that he could smell the marihuana in the van.

Based upon this evidence, a re asonable jury could find that

Sosa and Lira wer e part of the conspiracy to sell marihuana to

Geller and that they possessed marihuana with the intent to deliver

it.

B. Gun count

Sosa's conviction of use of a firearm during and in relation

to a drug trafficking offense, a violation of 18 U.S.C. section

924(c)(1), stems from Detective Figueroa's discovery of the 22-

caliber semi-automatic hand gun beneath Sosa's seat in the pickup.

The gun was loaded and functioning. Sosa contends that there is no

evidence that he had actual or constructive possession of the gun;

no fingerprints were discerned on the gun, and its ownership could

not be traced.

There was other evidence, however, which could link the gun to

Sosa. The gun was under his seat in the pickup truck, and it had

shifted in such a way as to be visible under the edge of the seat.

The jury could infer from the fact that the gun was sticking out

from under the seat that Sosa knew of its presence. The pickup

truck was registered in his wife's name, but she could not drive it

because it was a standard shift. When his wife had looked in the

truck a week before the arrests on March 5, she had not seen a gun

in it.

The government asserts that the evidence supports the jury's22

fin ding that Sosa "used" the gun in relation to the delivery of

m a rihuana under the broad interpretation given U.S.C. section

924(c)(1). Conviction under this section "'does not depend on

proof that the defendant had actual possession of the weapon or

used it in any affirmative manner [but only that] the firearm was

available to provide protection to the defendant in connection with

his engagement in drug trafficking.'" U nited States v. Ivy

, 973

F.2d 1184, 1189 (5th Cir. 1992), cert. denied

, 113 S.Ct. 1826

(1993) (quoting United States v. Raborn

, 872 F.2d 589, 595 (5th

Cir. 1989)). S ee also United States v. Caldwell

, 985 F.2d 763, 765

(5th Cir. 1993) ("a defendant can violate § 924 where the weapon

could have been used to protect, facilitate, or have the potential

to facilitate drug trafficking") (emphasis added).

It is clear that the law in this Circuit does not require that

the firearm be actually brandished or fired or even visibly present

in order for the evidence to sustain a section 924(c) conviction.

See, e.g

, United States v. Beverly

, 921 F.2d 559, 562-563 (5th

Cir.), cert. denied , 111 S.Ct. 2869 (1991) (revolvers found under

mattress in room containing cocaine sufficient); United States v.

Molinar-Apodaca

, 889 F.2d 1417, 1424 (5th Cir. 1989); United States

v. Coburn , 876 F.2d 372, 375 (5th Cir. 1989).

A jury could infer from the presence of the gun, loaded, at

the edge of the driver's seat, and from the position of the pickup

truck in a place to monitor the activity around the Ryder van

containing the marihuana, that Sosa knew of the presence of the gun

and that he was present at the si te of the delivery to provide

backup for Medina and Mora, an activity enhanced by the gun's13 Mora's testimony contradicts that of Medina, who claimed

that he never discussed anything concerning the delivery of

marihuana with Geller but only with Russell.

23 presence.

VII. Amount of Marihuana for Sentencing Purposes

We will uphold a senten ce imposed under the Sentencing

Guidelines so long as it is the result of a correct application of

the Guidelines to factual findings which are not clearly erroneous.

United States v. Alfaro , 919 F.2d 962, 964 (5th Cir. 1990).

Medina and Mora challenge the district court's determination

that their offenses involved five hundred pounds of marihuana

rather than only the fifty pounds which were actually delivered to

Agent Geller. Medina testified that his source for the marihuana

was someone he met in a bar, and that it was only fifty pounds. He

denied ever claiming to have seen three thousand pounds in a

warehouse or ever telling Russell he would get five hundred pounds

for him. Mora stated that Medina's discussions with Geller were

only for fifty po unds, not five hundred. 1 3 In contrast, Geller

testified that the ne gotiations were for five hundred pounds and

that a transaction involving only fifty pounds would not be enough

to justify the time and manpower required for such a sting

operation.

Mora and Medina contend that the district court did not make

f indings of facts, as required by F ED

. R. C RIM

. P. 32(c)(3) (D) and

U.S.S.G. section 6A1.3, to explain its resolution of disputed facts

regarding the amount of marihuana involved in the offense.

The district court may accept the facts set forth in the PSR14 The 1992 amendments to the Guidelines place the substance of

2D1.4 and its commentary in Application Note 12 to section 2D1.1.

Although no substantive change occurred with this amendment, we

apply the prior version of the Guidelines which was in effect

both when the defendants committed the offense and when they were

sentenced.

24 even when these facts are disputed. U nited States v. Rodriguez

,

897 F.2d 1324, 1327-1328 (5th Cir.), cert. denied

, 111 S.Ct. 158

(1990). This Court has held that a defendant is generally provided

ade quate notice of the district court's resolution of disputed

facts when the court merely adopts the findings of the PSR. U nited

States v. Mueller , 902 F.2d 336, 347 (5th Cir. 1990).

The district court considered and expressly denied defendants'

objections to the PSR, including their argument that the offense

involved only fifty-two pounds of marihuana. In denying the

objections, the court implicitly relied upon the recommendation of

the PSR. In addition, in its judgment, the court made clear that

it adopted the findings of the PSR. This was a sufficient

determination that the object of the conspiracy was the delivery of

five hundred pounds of marihuana.

Def endants urge that we also consider the district court's

alleged failure to determine not only the amount of marihuana which

was the su bject of the negotiations, but also whether the

de fendants intended to deliver, and were capable of delivering,

that amount of marihuana. U.S.S.G. section 2D1.4 (1991) provides

that if a defendant is convicted of a conspiracy involving a

controlled substance, the offense level shall be the same as if the

objec t of the conspiracy had been completed. 1 4 The commentary

qualifies this language, however, by providing that25

"where the court finds that the defendant did not intend

to produce and was not reasonably capable of producing

the negotiated amount, the court shall exclude from the

guideline calculation the amount that it finds the

defendant did not intend to produce and was not

reasona bly capable of producing." Application Note 1,

U.S.S.G. § 2D1.4 (1991).

Neither Mora nor Medina raised this issue before the district

court. In their objections to the PSR, both written and at the

sentencing hearing, their focus i s entirely on the amount of

marihuana which was the subject of the negotiations; they do not

contend that they never intended to deliver the negotiated amount

nor that they were unable to do so.

Because t he defendants have failed to raise this objection

below, any failure of the district court to make explicit findings

on this issue must be reviewed for plain error. Plain error is

"'error so obvious that [this Court's] failure to notice it would

seriously affect the fairness, integrity, or public reputation of

[the] judicial proceedings and result in a miscarriage of

justice.'" U

nited States v. Surasky , 974 F.2d 19, 21 (5th Cir.

1992), cert. denied , 113 S.Ct. 1948 (1993) (quoting United States

v. Lopez

, 923 F.2d 47, 50 (5th Cir.), cert. denied

, 111 S.Ct. 2032

(1991)).

Where a defendant has d isputed his intent or capability to

deliver the amount of a controlled substance under negotiation, the

sentencing court should make a finding on that issue. U nited

States v. Stevens

, 985 F.2d 1175, 1183 (2d Cir. 1993). In the

absence of some objection by the defendant, either oral or written,

however, the district court is not required to anticipate a dispute15 In finding that the district court had no duty to foresee

the issues of intent and capability in this case, we place the

burden on the defendants to raise these issues below. This

burden is not a burden of proof. Because we find that the

defendants did not adequately meet their burden of raising these

issues in a timely manner, we do not reach the question of

whether the defense or the government would bear the burden of

proving (or disproving) intent and capability, a question which

has received disparate treatment among other circuits. Compare

United States v. Barnes , No. 91-50421, 1993 U.S. App. LEXIS 11153

(9th Cir. May 17, 1993) (defendant bears burden); United States

v. Candito , 892 F.2d 182, 186 (2d Cir. 1989) (same, implicit);

United States v. Christian , 942 F.2d 363, 368 (6th Cir. 1991),

cert. denied , 112 S.Ct. 905 (1992) (same); with United States v.

Bradley , 917 F.2d 601, 604-605 (1st Cir. 1990) (burden on

government); United States v. Richardson , 939 F.2d 135, 142-143

(4th Cir.), cert. denied , 112 S.Ct. 599 (1991) (same, implicit);

United States v. Ruiz , 932 F.2d 1174, 1183-1184 (7th Cir.), cert.

denied , 112 S.Ct. 151 (1991) (same).

16 Geller testified that the negotiations concerned five

hundred pounds of marihuana, that Medina claimed to have access

to three thousands pounds of marihuana, and that both Medina and

Mora made efforts to keep the transaction alive when he expressed

displeasure with delays and proposed changes in the delivery.

26 over intent or ability. 15 Moreover, there was sufficient evidence

at trial, primarily in the form of Agent Geller's testimony, to

support findings on amount, intent, and ability. 16

The district court did not commit plain error by not making a

finding on the issues of intent and ability.

Conclusion

For the reasons stated above, the convictions and sentences of

the defendants are

AFFIRMED.