1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT 

___________________

No. 90-8739

___________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FILEMON SOTELO SANCHEZ,

JOSE ANGEL NAEGELE, and

REBECA PORTILLO BRITO,

Defendants-Appellants.

_____________________

No. 91-8023

______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

RICARDO PORTILLO BRITO,

Defendant-Appellee.

___________________________________________________

Appeals from the United States District Court

for the Western District of Texas

___________________________________________________

Before POLITZ, Chief Judge, REYNALDO G. GARZA and WIENER,

Circuit Judges:

GARZA, REYNALDO G., Circuit Judge:
 

1 Appellee Ricardo Portillo Brito is the brother

of appellant Rebeca Portillo Brito.

 

2 Naegele was named only as a defendant in Count One of

the indictment, the central conspiracy count, while Rebeca and

Ricardo were named in Count One as well as Count Twenty-Seven, an

illegal use of the telephone count. The district court granted a

judgment of acquittal as to Count Twenty-Seven, finding that

because the conversation occurred after the overt acts of the

conspiracy, it was not a conversation in furtherance of the

conspiracy.

2

This is a consolidated appeal from a rather large

marijuana conspiracy trial. Appellants Rebeca Portillo

Brito (Rebeca), Filemon Sotelo Sanchez (Filemon), and Jose

Angel Naegele (Naegele), and appellee Ricardo Portillo Brito

(Ricardo)1, were all named in a 27 count indictment

alleging, inter alia, violations of 21 U.S.C. §§ 841(a)(1)

and 846, possession with intent to distribute and conspiracy

to possess with intent to distribute more than 100 kilograms

of marijuana, and 21 U.S.C. § 843, use of a telephone to

facilitate the commission of a felony. After a jury trial,

Filemon was convicted of the conspiracy, possession and

telephone counts and Naegele, Rebeca and Ricardo were each

convicted of one conspiracy count.2 Ricardo's post-verdict

motion for acquittal was granted by the district court. 

Filemon, Rebeca and Naegele all appeal their convictions,

while the United States appeals the post-verdict judgment of

acquittal granted to Ricardo.

I. FACTS
 

3 Juan Sanchez was named in the 27 count indictment along

with the appellants and appellee in this appeal. His separate

convictions for conspiracy and illegal use of the telephone were

challenged in this court on sufficiency of the evidence grounds. 

In an unpublished opinion on the summary calendar, a panel of this

court affirmed his convictions. See United States v. Juan Sotelo

Sanchez, 953 F.2d 642 (5th Cir. 1992) (unpublished).

3

On December 7, 1988, Naegele was arrested in New Mexico

as he drove a pickup laden with approximately 100 pounds of

marijuana. Accompanying Naegele was Juan Aron Sotelo

Sanchez (Juan), a named co-conspirator and brother of

Filemon, who drove a Pontiac Fiero with a CB radio identical

to that in Naegele's truck and tuned to the same channel.3

Naegele told police he had transported marijuana on one

other occasion. He stated he had known Juan Sanchez for

three months. Naegele pled guilty to state charges under

New Mexico law; charges were never formally brought against

Juan.

On June 1, 1989, Border Patrol agents at the Sierra

Blanca check point near El Paso, Texas, found 94 pounds of

marijuana in a pickup truck they had pulled over for

secondary inspection. The name "Juan Sanchez" was found

next to two phone numbers, one for "Sanchez Brothers

Builders, Inc." at 492 Mockingbird, the El Paso residence of

Filemon, and the other for the El Paso residence of Rebeca

and her common law husband Juan Aron Sotelo Sanchez. 

Wiretaps of the two phones were authorized. During the

60 days the phones were tapped, the FBI intercepted
 

4 This figure includes wrong numbers and busy signals.

 

5 The Flores brothers, Ivan and Abel, were named

co-conspirators who resided in Dallas, Texas.

 

6 A pinata is a decorated clay jar filled with candy and

struck with a stick by children to release the candy. It is a

traditional aspect of Mexican celebrations of childrens' birthdays

and is common at Christmas. See Webster's Third New International

Dictionary 1717 (3rd ed. 1981).

 

7 The record indicates witnesses for the government

admitted they had no knowledge that any drug related

activities were discussed at the pinata party.

4

approximately 5000 phone calls.4 Numerous calls concerned

conversations in which elaborate codes were used to conceal

drug related matters. Rebeca was recorded making plane

reservations for her husband Juan and co-defendant Rafael

Ramirez Valdez (Ramirez), for a trip to Midland-Odessa in

Texas. Named co-conspirator Bivian Madrid Villalobos phoned

Juan at his residence and discussed a marijuana deal in

code. Filemon, two days after the Villalobos conversation

with Juan, spoke with the Flores brothers5 in Dallas and

stated he had "340 wooden boards." Two days later, the

Flores brothers arrived in El Paso. The day after their

arrival, a pinata6 party was held for the child of Rebeca

and Juan. Numerous defendants were present at the party as

well as friends and family members of Rebeca and Juan.7 On

September 11, 1989, the day after the party, Ivan Flores was

arrested outside El Paso on Interstate Highway 10. He was
 

8 "Chico" was an alias determined to belong to Juan Aron

Sotelo Sanchez.

 

9 The fact that this conversation concerned the marijuana

seizure involving the Flores brother was admitted to by Rebeca.

5

driving a semi-truck with trailer, the gas tank of which was

found to contain 330.5 pounds of marijuana. Intercepted

phone calls involving Filemon and Juan indicated their

extensive knowledge of and participation in this particular

seized shipment. Inside the driver's wallet was found a

business card for Sanchez Brothers Builders, Inc., with the

same phone number on it, and another card with the name

"Chico"8 and the notation "Home 858-8528", the home phone of

Rebeca and Juan. The day after this seizure, a coded phone

conversation between Ramirez and Juan relating the fact of

the bust was intercepted. Later the same day, a

conversation between Rebeca and her brother, Ricardo, was

intercepted in which Rebeca related the facts of the Flores

brothers' bust and in which both she and Ricardo expressed

remorse and concern over the seizure.9

Six days after this last phone call, the FBI

intercepted a call from Ramirez to Juan in which a 10 pound

load of marijuana was discussed. The next day, the Border

Patrol at the Sierra Blanca checkpoint intercepted a car

with 10 pounds of marijuana in the gas tank.

II. DISCUSSION

A. FILEMON SOTELO SANCHEZ
6

1. Sufficiency of the Evidence

In his first point of error, Filemon contends the

evidence was insufficient to support his convictions. He

claims the government failed to establish that he joined the

conspiracy, had knowledge of the conspiracy, and that he

voluntarily participated in the conspiracy. The sole basis

of this claim is that the testimony of the government's main

witness, F.B.I. case agent William J. May (agent May), as to

the meaning of certain code words could just as easily have

been disbelieved as believed by the jury. Because the

testimony of agent May was the sole inculpatory evidence

against Filemon, its susceptibility to equally different

interpretations requires the reversal of the possession and

telephone use convictions as well.

The well established standard in this circuit for

reviewing a conviction allegedly based on insufficient

evidence is whether a reasonable jury could find that the

evidence establishes the guilt of the defendant beyond a

reasonable doubt. United States v. Gonzales, 886 F.2d 781,

783 (5th Cir.), cert. denied, 490 U.s. 1093 (1989). The

evidence adduced at trial, whether it be direct or

circumstantial, together with all inferences reasonably

drawn from it, is viewed in the light most favorable to the

verdict. United States v. Pigrum, 922 F.2d 249, 253 (5th

Cir.), cert. denied, 111 S.Ct. 2064 (1991). The assessment

of the weight of the evidence and the determination of the

credibility of the witnesses is solely within the province
7

of the jury. United States v. Martin, 790 F.2d 1215, 1219

(5th Cir.), cert. denied, 479 U.S. 868 (1986). If the

"evidence viewed in the light most favorable to the

prosecution gives equal or nearly equal circumstantial

support to a theory of guilt and a theory of innocence of

the crime charged," this court must reverse the convictions.

Clark v. Procunier, 755 F.2d 394, 396 (5th Cir. 1985)

(quoting Cosby v. Jones, 682 F.2d 1373, 1383 (11th Cir.

1982) (as quoted in United States v. Fortenberry, 919 F.2d

923, 926 (5th Cir. 1990)). This is so because, as was

observed by the late Judge Alvin B. Rubin, where an equal or

nearly equal theory of guilt and a theory of innocence is

supported by the evidence viewed in the light most favorable

to the verdict, "a reasonable jury must necessarily

entertain a reasonable doubt. Id. (quoting Cosby at id.). 

With the scope of our review thus defined, we proceed to the

merits of Filemon's claims on appeal.

To establish guilt of a drug conspiracy, it must be

proven that an agreement with intent to distribute existed,

that the defendant had knowledge of the agreement, and that

the defendant voluntarily participated in the conspiracy.

United Sates v. Lewis, 902 F.2d 1176, 1180 (5th Cir. 1990). 

An agreement may be inferred from concert of action,

participation from a "collocation of circumstances," and

knowledge from surrounding circumstances. United States v.

Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir. 1988). Mere

presence at the scene and close association with those
8

involved are insufficient factors alone; nevertheless, they

are relevant factors for the jury. United States v. Simmons,

918 F.2d 476, 484 (5th Cir. 1990).

The United States introduced into evidence several

taped phone conversations involving Filemon and other named

co-conspirators. The substance of the conversations and the

meaning thereof was elaborated upon by agent May. Agent May

testified that Filemon's use of certain terminology, in the

context of the conversations, demonstrated Filemon's role as

a principal in a large marijuana conspiracy. This testimony

was predicated on agent May's characterization of specific

terminology as coded terminology. These coded terms,

testified agent May, represented variously marijuana,

methods of transportation, the receipt of large quantities

of marijuana and money to be paid for marijuana. For

example, the government introduced a phone conversation

between Filemon and named co-conspirator Abel Flores,

intercepted on September 7, 1989. During the conversation,

Filemon informs Abel Flores "I've got 340 wooden boards." 

Two hours later, another phone conversation was intercepted

between Filemon and named co-conspirator Victor Manuel

Ramirez (Victor). This conversation, in part, was as

follows:

Filemon: ...pick up [a van] because I am going to need

it. It already rained...it already rained on me.

Victor: Already?
9

Filemon: Yes, a lot.

Victor: That's good.

Filemon: A lot.

Victor: Don't leave me out.

Filemon: No.

Victor: OK.

Filemon: Three forty...

Victor: Uyyy.

Filemon: ...fell on me.

Victor: Yeah?

Filemon: Yeah.

Victor: That's good. And it is already here?

Filemon: Already...I already have it in my hands.

On September 9, 1989, two days after Filemon's

conversation with Victor, Ivan Flores phoned Juan to inform

Juan that Ivan and his brother, Abel Flores, were in El Paso

at the Comfort Inn. Later that same day, Ivan Flores phoned

Filemon to inform him of the presence of the Flores brothers

at the Comfort Inn. On September 11, 1989, Ivan Flores was

arrested at the Sierra Blanca checkpoint driving a semitruck laden with 330.5 pounds of marijuana. On September

14, 1989, Filemon spoke with Ivan Flores' father who had

called Filemon to seek assistance in the selection of an

attorney for Ivan. During this conversation, Filemon

mentioned that Ivan Flores was with Filemon in El Paso. 

That same day, a conversation between Filemon and an
 

10 Omega was also referred to by Filemon as "Prima", the

Spanish word for "cousin". See Vox Compact Spanish and English

Dictionary 200 (Softcover ed. 1989)

10

unidentified woman named Omega10 revealed Filemon's

frustration with the arrest of Ivan Flores at the "mountain"

and his surprise that the Border Patrol agents appeared to

have been waiting for him. This conversation, in part, was

as follows:

Filemon: A really bad incident (percance) that

happened to us, "PRIMA."

Omega: Yeah. Oh, my God.

Filemon: Yes, can you believe that? What I sent over

there....

Omega: Eh?

Filemon: ...what I sent over there.

Omega: Uh huh.

Filemon: ...to hell.

Omega: Oh, my God.

.....

Filemon: And the worst part of it is that they were

already waiting for him.

.....

Omega: And was it when he was just leaving?

Filemon: No, over there in ... in uh... you know

where.

Omega: Yeah?

Filemon: Over there on the mountain.
 

11 At oral argument, it was brought to our attention that

the weight of the marijuana seized on September 11, 1989, when

finally weighed by government chemists, was actually 285 pounds. 

This is indeed supported by the record. Appellants in this case

suggested that this discrepancy tended to undermine the

credibility of agent May's assertion that the reference to "340

wooden boards" was a code for 340 pounds of marijuana. Additional

testimony as to the weight of the marijuana, however, indicated

that as much as a 10 pound discrepancy could be attributable to

the drying of the marijuana and a discrepancy of between 10 to 20

pounds of weight was attributable to the packaging of the

marijuana. These amounts, coupled with the testimony regarding

the frequent variations in weights of shipments of between 10 to

20 pounds, provided the jury with more than an adequate basis to

accept agent May's interpretation of the phraseology.

11

Filemon appears to argue that because he was involved

in the construction business, the reference to "340 wooden

boards" was just that, a reference to 340 actual wooden

boards. Agent May testified that Filemon's use of the

phrase "340 wooden boards" was a reference to 340 pounds of

marijuana. Additionally, he testified that Filemon's use of

the phrase "it rained on me" was a reference to the receipt

of marijuana and that the phrase "three forty...fell on me"

was a further reference to receipt of the specific amount of

340 pounds of marijuana. Further evidence, as noted above,

disclosed the seizure of 330.5 pounds of marijuana being

transported by Ivan Flores. Government witnesses testified

that it is not uncommon for amounts of marijuana to vary by

as much as 10-20 pounds, thus explaining the discrepancy of

the weight of the marijuana actually seized from that

discussed in the Filemon/Victor phone conversation of

September 7, 1989.11 Moreover, the "Sanchez Brother's
12

Builders. Inc., F. S. Sanchez, President" business card was

found in Ivan Flores wallet. The term "mountain" was

identified as a term commonly used to describe the area

where the Sierra Blanca checkpoint was located. Finally,

testimony at trial revealed that the semi-trailer pulled by

the truck driven by Ivan Flores was a refrigerator trailer,

not the type of trailer normally used for the transportation

of construction materials; no evidence of the presence of

any construction materials on the trailer was presented at

trial.

We find the above recited facts would permit a

reasonable jury to find Filemon guilty beyond a reasonable

doubt of the conspiracy charges against him. It appears the

jury in this case simply chose to believe the testimony of

agent May. Moreover, the opposing theory of innocence put

forth on appeal by Filemon does not fall into the realm of

what an appellate court could reasonably conclude is a

theory of innocence equally or nearly equally supported by

the evidence as the theory of guilt. Because agent May's

testimony regarding the code words was believed by the jury,

Filemon's challenge to the conviction for the violation of

21 U.S.C. §843, illegal use of the telephone, must also

fail. In addition, his challenge to the possession charge

lacks merit because the essential elements thereof were

proven at trial. The necessary elements to sustain a

conviction for possession of marijuana with intent to

distribute are that the defendant (1) knowingly (2)
 

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

1982).

13

possessed the marijuana (3) with intent to distribute it.

United States v. Villasenor, 894 F.2d 1422, 1426 (5th Cir.

1990). Accepting agent May's testimony, the only colorable

issues available to Filemon would be that of possession and

intent to distribute. Possession may be constructive12 if

evidence indicates the defendant's ownership, dominion and

control over the marijuana. United States v. Richardson, 848

F.2d 509, 512 (5th Cir. 1988). Here, the evidence shows

Filemon's assertion that the marijuana belongs to him,

either individually or as a member of the conspiracy. 

Intent to distribute is typically inferred from the fact

that an amount is too large for any purpose other than

distribution. United States v. Romero-Reyna, 867 F.2d 834,

836 (5th Cir. 1989). Again, here the amount was in excess

of 300 pounds. The jury could easily have determined this

amount was not for personal use and thus that Filemon

intended to distribute it. Even were the issues of

Filemon's constructive possession and intention to

distribute not so clearly present, we would nevertheless

affirm. A conspirator is liable for the substantive

offenses of his co-conspirators while he is a member of the

conspiracy. United States v. Garcia, 917 F.2d 1370, 1377

(5th Cir. 1990) (quoting United States v. Basey, 816 F.2d

980, 997 (5th Cir. 1987)); See also United States v.
14

Sullivan, 578 F.2d 121, 122-23 (5th Cir. 1978) (once

conspiracy and knowing participation therein established,

conspirator deemed guilty of crimes committed in furtherance

of conspiracy by other conspirators). Nothing in the record

indicates that the guilt of Ivan Flores for the substantive

offense of possession with intent to distribute or his

membership in the conspiracy was ever questioned.

2. Improper Prosecutorial Argument

In his second point of error, Filemon suggests that

allegedly improper prosecutorial argumentation requires

reversal of his convictions. In closing argument, the

prosecutor argued to the jury:

No, there is another attack by Mr. Ramos [Filemon's

defense counsel] on the big bad Government, the agent,

the FBI agent. Well, ladies and gentlemen, you are the

sole judges of the credibility of the witnesses here. 

If you think Bill May is a liar, then you go ahead and

cut all those people loose. Okay?

This argumentation was objected to by defense counsel and

the trial court sustained the objection. The record

indicates counsel did not request that the district court

give a curative instruction to the jury. 

Courts will not lightly reverse a criminal conviction

on the basis of a prosecutor's arguments standing alone.

United States v. Young, 470 U.S. 1, 9 (1985). Reversible

error will result only where it is shown that the jury

argument is both improper and harmful. United States v.

Iredia, 866 F. 2d 114, 117 (5th Cir.), cert. denied 492 U.S.
15

921 (1989) (citing United States v. Lowenberg, 853 F.2d 295,

301 (5th Cir. 1988)). "The determinative question is

whether the prosecutor's remarks cast serious doubt on the

correctness of the jury's verdict." Id. (citing United

States v. Jones, 839 F.2d 1041, 1049 (5th Cir. 1988)). The

test that is employed in this circuit requires us to

consider "1) the magnitude of the prejudicial effect of the

statements; 2) the efficacy of any cautionary instruction;

and 3) the strength of the evidence of the defendant's

guilt." Id. (citing Lowenberg, 853 F.2d at 302).

We cannot say, viewing the record as a whole, that the

comments of the prosecutor in this case were "so pronounced

and persistent that [they] permeate[d] the entire atmosphere

of the trial." Iredia, 866 F.2d at 117 (quoting United

States v. Williams, 809 F.2d 1072, 1096 (5th Cir.), rev'd on

other grounds, 828 F.2d 1, cert. denied, 108 S.Ct. 228

(1987)). Thus, the argument did not carry the magnitude of

prejudicial effect necessary for the first element of the

test to weigh in Filemon's favor. As to the second element

of the test, it is clear there was no curative instruction

given by the district court. It is also clear, however,

that none was requested. Thus, the second element of our

test weighs neither in favor of nor against Filemon. 

Finally, as we have extensively related, there was more than

adequate evidence of Filemon's guilt and thus, the third

element of the test weighs against him. Having conducted

our analysis, we conclude Filemon has failed to demonstrate
 

13 Naegele's candid presentation is refreshing; his brief

is well written and concise. Unfortunately, it would appear that

no amount of legal reasoning could save the day for Naegele as the

16

the requisite inappropriateness and harm necessary for

reversal of his conviction solely on the grounds of improper

prosecutorial commentary.

B. JOSE ANGEL NAEGELE

In his sole point of error, Naegele asserts the

district court erred in finding sufficient evidence existed

to support his conviction because there is a fatal variance

between the indictment and the proof adduced at trial. 

Naegele does not contend the evidence is insufficient to

establish any one or more of the elements necessary to prove

the conspiracy. Rather, he contends the government proved

the existence of multiple conspiracies while the indictment

alleged only a single conspiracy. He asserts that his

membership in a single conspiracy is undermined because 1)

there is a six month lapse in time between his arrest in New

Mexico in 1988 and the next seizure of drugs at the Sierra

Blanca checkpoint in 1989, 2) the alleged acts of the

conspiracy took place in different states, and 3) there is

no evidence of his continued participation in the conspiracy

after his arrest in 1988. Naegele candidly recognizes that

a single conspiracy is not transformed into multiple

conspiracies simply by lapse of time, change in membership,

or change in geographical emphasis.13 United States v. De
record bears out that the facts of his conviction are insufficient

for reversal under the principles of conspiracy law as enunciated

by this circuit.

17

Varona, 872 F. 2d 114, 119 (5th Cir. 1989).

Were the principles of conspiracy law not weighed so

heavily in favor of the affirmance of Naegele's conviction,

we would be inclined to reject his contention nevertheless. 

In order for Naegele to succeed on his variance theory, he

must demonstrate that his substantial rights have been

prejudiced. United States v. Guerra-Marez, 928 F.2d 665, 671

(5th Cir.), cert. denied, 112 S.Ct. 322 and 112 S.Ct. 443

(1991) (quoting United States v. Richardson, 883 F.2d 1147,

1154-55 (5th Cir. 1987)). It is by now a well established

principle in this circuit that if the government proves the

existence of multiple conspiracies "and the defendant's

involvement in at least one of them, then clearly there is

no variance affecting the defendant's substantial rights." 

Id. at 671-72 (quoting United States v. L'Hoste, 609 F.2d

796, 801 (5th Cir.), cert. denied, 449 U.S. 833 (1980));

United States v. Martino, 648 F.2d 367, 382 (5th Cir. 1981),

cert. denied, 456 U.S. 943 (1982) (citations omitted). 

Viewing the evidence in the light most favorable to the

verdict and assuming arguendo multiple conspiracies were

proven by the evidence, Naegele's participation in at least

one conspiracy is amply supported. Testimony of the

arresting officers in New Mexico indicated Naegele stated he

was operating with Juan Aron Sotelo Sanchez and had done so
 

14 Naegele gave authorities in New Mexico at least two

different versions of his activities, one tending to be

exculpatory and the other inculpatory. Because our standard of

review requires us to view the evidence in the light most

favorable to the verdict, we accept, as apparently did the

jury, the version of Naegele's story tending to show his

involvement in the conspiracy.

18

before on at least one occasion.14 Both individuals had

identical C.B. radios in their vehicles and both radios were

tuned to the same channel. A substantial part of the

approximately 100 pounds of marijuana seized from Naegele's

truck was in plain view in the passenger compartment and it

was Naegele's own statements regarding the location of the

remainder of the haul that led the New Mexico officers to

remove it from concealed compartments in the truck. 

Moreover, Naegele informed the New Mexico authorities that

Juan Sanchez had placed the marijuana in the pickup in the

country of Mexico, that he met Juan Sanchez north of the

U.S.-Mexico border, and that he had driven the truck from

that point until the time of the arrest. With these facts

in evidence, Naegele's rights were not substantially

prejudiced even if there is a variance because these facts

are sufficient to support a finding that Naegele was guilty

of at least one conspiracy involving himself and Juan

Sanchez. 

C. REBECA PORTILLO BRITO

1) Sufficiency of the Evidence

Rebeca argues there was insufficient evidence to
 

15 The district court made this ruling because the

conversation occurred after the substantive acts

constituting the conspiracy had transpired. The government

has not challenged this decision on appeal.

 

16 Rebeca contends the district court erred in admitting

the conversation because it was inadmissible hearsay. This

contention is without merit. See United States v. Jones, 839 F.2d

1041, 1051-52 (5th Cir.), cert. denied, 486 U.S. 1024

(1988).(recorded telephone conversation between two defendants

not hearsay in conspiracy trial where used to show awareness of,

and participation in, conspiracy).

19

convict her as a co-conspirator. As indicated earlier,

Rebeca does not challenge her knowledge of the existence of

the conspiracy. This knowledge is plainly indicated from an

intercepted call between Rebeca and her brother, Ricardo,

placed the day after the arrest of Ivan Flores. Although

the district court ruled the conversation did not support

the substantive offense of use of a telephone in furtherance

of a conspiracy,15 the conversation was admissible as

relevant to Rebeca's role in the conspiracy.16 In the

conversation, Rebeca discussed the arrest of Ivan Flores and

expressed dismay and sadness over the loss of the "system",

later identified at trial as a code word for the method of

transporting the marijuana. Significantly, agent May agreed

with the characterization of Ms. Kurita, Rebeca's defense

counsel, that the conversation was nothing more than "two

individuals [] lamenting or discussing the occurrences of

the day before...." Record on Appeal, Vol. V, p. 405. Were

this the only evidence the jury could consider regarding
20

Rebeca's status as a co-conspirator, we would be loathe to

affirm her conviction. Indeed, we are somewhat skeptical of

the remaining evidence against her but find, after careful

review, that it is sufficient to permit a reasonable jury to

reach a verdict of guilty.

At the trial, the government introduced two intercepted

conversations of Rebeca making plane reservations for her

husband Juan, the principal conspirator, and named coconspirator Rafael Ramirez Valdez. In both conversations,

reservations were made for each individual on the same

flight to Midland, Texas. Furthermore, in the conversation

regarding reservations for Ramirez, Rebeca used an alias,

"Anna", to conceal her true identity. Testimony later

revealed the trip to Midland by Juan and Ramirez entailed a

rather lengthy visit with an unknown individual driving a

vehicle registered to named co-conspirator Bivian

Villalobos. The jury could infer from these facts, coupled

with the facts of Rebeca's knowledge of the conspiracy and

the fact that she lived in the same home with the principal

conspirator, Juan Sanchez, that her phone calls to Southwest

Airlines were voluntary acts on her part in furtherance of

the conspiracy. While we find this evidence to be far from

the quantity of evidence against Filemon and other

conspirators in this case, we conclude it is sufficient to

permit the jury to have reached its decision.

2. Wiretap Minimization

In her second point of error, Rebeca argues the
21

government violated 18 U.S.C. § 2501 et seq., which requires

the government to minimize its wiretapping activities. The

statute requires the government to make reasonable efforts

to reduce the possibility of intercepting non-criminally

related phone conversations. 

At trial, counsel for appellant argued that because all

of the named interceptees in the wiretapping order were

male, the government should have ceased listening to the

conversation as soon as it realized appellant was a female. 

This position is untenable. The court order authorizing the

interception of the calls indicated that the named

individuals as well as others not named were the basis for

the request. Those not named in the order included persons

who, through the interception of calls involving named

individuals, were determined to be part of the conspiracy.

In addition, this case is replete with the use of coded

drug terminology. Where drug jargon is used over the phone,

the government may engage in more extensive wiretapping and

the interception of innocent calls may be a more reasonable

activity. United States v. Macklin, 902 F.2d 1320, 1328 (8th

Cir. 1990), cert. denied, 111 S.Ct. 689 (1991). In Macklin,

the Eighth Circuit recognized that the government

essentially can listen long enough to determine the call is

not relevant to the investigation. See id. (government must

limit calls to pertinent investigation as much as possible). 

Here, government witnesses testified that calls were

initially listened to in order to determine the scope of the
22

conspiracy. Upon reaching the conclusion that a particular

call did not or would not lead to information pertaining to

the scope of the conspiracy, the interception ceased. This

testimony, combined with Rebeca's use of code words, leads

us to conclude her second point of error is without merit.

3. Ineffective Assistance of Counsel

In her third and final point of error, Rebeca argues

her conviction must be overturned because her counsel was

ineffective at trial. She contends that her counsel failed

to file any pre-trial motions, failed to file a written

motion to suppress the recorded conversations pursuant to

the wiretapping statute, failed to limit the evidence of the

recorded conversation with her brother, failed to request

the identity of the confidential FBI informants who

allegedly could have provided her with exculpatory

testimony, and failed to subpoena the same informants. 

We do not reach the merits of this point of error and

express no opinion thereon. An appellant's failure to

present the issue of ineffective assistance of counsel in

the district court precludes our review. United States v.

Higdon, 832 F.2d 312, 314 (5th Cir. 1987), cert. denied, 484

U.S. 1075 (1988) (general rule is that claim of ineffective

assistance of counsel should not be heard on direct appeal

where claim not first raised in district court). Because

Rebeca did not raise the claim below, we decline to hear the
 

17 Rebeca additionally argues that the trial court should

have granted her a new trial based on the judgment of acquittal

granted to her brother. This issue is not briefed at all and thus

has been abandoned. See United States v. Lindell, 881 F.2d 1313,

1325 (5th Cir. 1989), cert. denied, 110 S.Ct. 2621 (1990) (citing

F.R.App.P. 28(a)(4)). Even were this issue not abandoned, we

would reject it for, after an exhaustive search of the record, we

are unable to find any indication that Rebeca ever filed a motion

for new trial.

23

issue, but do so without impairing her future rights.17

D. RICARDO PORTILLO BRITO

After the jury returned a verdict of guilty against

Ricardo, he moved for a post-verdict judgment of acquittal. 

The district court granted the motion, reasoning that

although the evidence demonstrated Ricardo's knowledge of

the conspiracy, it was insufficient to establish beyond a

reasonable doubt that he intended to join or participate in

the conspiracy. In the words of Judge Hudspeth, "It is

possible that Ricardo Portillo Brito participated in the

conspiracy, but it is equally possible that he was merely a

knowing spectator. Considered as a whole, the evidence

fails to establish beyond a reasonable doubt that he was the

former rather than the latter."

The duty of a district court in ruling on a postverdict motion for acquittal is to determine, viewing the

evidence in the light most favorable to the government,

whether the evidence could be accepted by a jury as adequate

and sufficient to support the conclusion of the defendant's

guilt beyond a reasonable doubt. United States v. Varkonyi,
24

611 F.2d 84, 85 (5th Cir.), cert. denied, 446 U.S. 945

(1980). An appellate court reviews the trial court's

granting of a motion for acquittal de novo, applying the

same standard as the court below. Id. at 85-6. A court may

not simply substitute its own views of justice for those of

the jury. Id. at 86. Finally, the jury alone can assess the

weight of the evidence and the credibility of the witnesses.

United States v. Molinar-Apodaca, 889 F.2d 1417, 1423 (5th

Cir. 1989).

The sum of the evidence in this case is that Juan and

Filemon Sanchez were the principals of a conspiracy. They

lived in El Paso, Juan with his common law wife Rebeca. At

all times, Ricardo lived in Austin. On September 10, 1989,

Ricardo went to El Paso to attend his nephew's first

birthday party, a party which was attended by roughly 30

people. In addition to family members and friends, several

persons later identified as co-conspirators in this case

attended the party. Ricardo was driven by his cousin (a

student not implicated in any of the alleged wrongdoing

involved in this case) to the El Paso airport in the early

evening and he departed for Austin. He appeared at work in

Austin on the morning of September 12, 1989, a Monday.

In the latter part of September 12, 1989, a phone call,

discussed above, between Rebeca and Ricardo was intercepted

in which the two discussed the arrest of Ivan Flores and

commiserated over the same.

The United States contends the evidence is sufficient
 

18 This reasoning we find particularly disturbing. No

evidence suggests that Ricardo should have anything other than

a close relationship with his sister who, as far as the record

reflects, is his only sibling. 

25

to convict Ricardo. It points to a reference to the City of

Austin, along with references to other Texas cities, and

reasons "Austin" was a code word for Ricardo. It also

suggests that because Ricardo travelled to his nephew's

birthday party in El Paso, he can be viewed as having a

close family relationship with his sister and thus the

conspiracy.18 Finally, the government refers us to

statements made in the Rebeca/Ricardo phone conversation.

Initially, we note that Ricardo readily admits to

knowledge of the conspiracy. We have additionally discussed

agent May's agreement with the characterization of the

Rebeca/Ricardo phone conversation. Moreover, all of agent

May's testimony regarding the allegedly incriminating

aspects of the Rebeca/Ricardo conversation were directed at

establishing the conversation as being in furtherance of the

conspiracy. The district court rejected this analysis when

it granted a judgment of acquittal as to the illegal use of

the telephone charges against Rebeca and Ricardo. Thus, as

discussed previously, the jury could have used the

conversation only as evidence of knowledge of or

participation in the conspiracy. Again, however, agent

May's testimony regarding statements in the conversation

concerned acts in the future. Specifically, agent May
 

19 We observe, although our analysis does not turn upon,

the fact that Judge Hudspeth, the district court judge in this

case, has much more than his fair share of experience with the

adjudication of criminal drug conspiracies, sitting as he does in

El Paso in the Western District of Texas and on the border of

Mexico.

26

interpreted statements made by Rebeca as indicating that a

shipment of marijuana would be going to Ricardo in Austin. 

Moreover, his interpretation of Ricardo's lamentations was

that Ricardo would not be able to use the "system" in the

future. As to the pinata party, testimony from government

agents revealed that there was no basis upon which the jury

could conclude that Ricardo participated in any conspiracy

related activities while present. Quite simply, there was

no evidence presented upon which a reasonable jury could

conclude beyond a reasonable doubt that Ricardo participated

in the conspiracy. Finally, we note the uncontroverted

evidence that Ricardo has been employed as a supervisor of a

sealant business in Austin for approximately four years, has

an excellent work record, pays his bills regularly, and

lives a modest life in a modest home. As to Ricardo, the

evidence supports equally or nearly equally a theory of

guilt as a theory of innocence.19 See Clark, 755 F.2d at

396.

CONCLUSION

We have reviewed all of the contentions by the parties

who appear in the posture of appellants in this case and

deem them to be without merit. Therefore, finding no merit
27

to the complaints on appeal, the convictions of Filemon

Sotelo Sanchez, Jose Angel Naegele and Rebeca Portillo Brito

are in all respects AFFIRMED. Additionally, the postverdict judgment of acquittal granted as to appellee Ricardo

Portillo Brito is in all respects AFFIRMED.