UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 92-2425

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCISCA CASTILLO CASTRO, REMIDIOS MENDEZ,

JOHNNY LEE CAREY, CARMINE OSUNA,

LIONEL HORTIO BUITRON,

Defendants-Appellants.

_________________________________________________________________

Appeals from the United States District Court

for the Southern District of Texas

_________________________________________________________________ (February 21, 1994)

Before WISDOM, HIGGINBOTHAM, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellants Francisca Castillo Castro ("Francisca"),

Remidios Mendez ("Mendez"), Johnny Lee Carey ("Carey"), Carmine

Osuna ("Osuna"), and Lionel Buitron ("Buitron") were convicted by

a jury of conspiracy to possess with intent to distribute heroin in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846 and/or

aiding and abetting the distribution of heroin in violation of 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and 18 U.S.C. § 2. They

appeal their convictions on various grounds. Finding no reversible

error, we affirm.2 DISCUSSION

Reynaldo Cantu-Castro ("Ray Castro" or "Ray") owned and

operated, with the assistance of several family members, the Castro

Body Shop in Bryan/College Station, Texas. Ray Castro lived in an

apartment located above t he body shop. His ex-wife, Francisca,

lived in a trailer a few doors away. They had been married for 47

years before getting divorced. In addition to doing legitimate

body shop work, Ray Castro ran a heroin distribution operation. He

had several peopl e -- family members and non-family members

alike -- assisting him with the operation of his heroin business.

Several individuals, including Ray, his son Angel Castro

("Angel"), and the appellants, were arrested and charged with

various offenses relating to the heroin operation. In exchange for

more lenient sentences, Ray and Angel pled guilty and testified at

the joint trial of s ix of their co-indictees. At their joint

trial, one of the defendants was found not guilty by the jury. The

other five defendants, the appellants in this appeal, wer e found

guilty of conspiracy to posse ss with intent to distribute heroin

and/or aiding and abetting the distribution of heroin.

A. Sufficiency of Evidence

Francisca, Mendez, Osuna, and Buitron cla im that there

was insufficient ev idence to support their convictions. In

reviewing challenges to sufficiency of the evidence, this court

views the evidence in the light most favorable to the jury verdict

and affirms if a rational trier of fact could have found that the

government proved all essential elements of the crime beyond a3

rea sonable doubt. S ee United States v. Ruiz

, 987 F.2d 243, 259

(5th Cir. 1993). All inferences and credibility determinations are

to be resolved in favor of the jury's verdict. S ee id. To support

a conviction of conspiracy with inten t to distribute heroin, the

prosecution must show beyond a reasonable doubt that (1) a

conspiracy existed, (2) the defendant knew of the conspiracy, and

(3) the defendant voluntarily joined the conspiracy. S ee United

States v. Sagaribay , 982 F.2d 906, 911-12 (5th Cir. 1993).

Francisca Castro

The jury convicted Francisca of conspiracy with intent to

distribute heroin. The prosecution presented testimony by Della

Espinoza, a co-indictee who pled guilty. She testified that she

would purchase heroin from Ray and Angel Castro. Oftentimes, when

she did not have money with which to purchase the heroin, she would

trade clothes and other property for the drug. She testified that

a lot of the property that she traded for heroin was for Francisca.

(R. 14:15-17). On at least one occasion, Francisca asked Espinoza

to get her some things and specifically asked her for pantyhose in

a specific size and color. After Espinoza delivered the pantyhose

to Francisca and with Francisca still present, Espinoza received

the heroi n in exchange for the clothes. On a separate occasion,

Francisca looked through items that Espinoza had brought and picked

out some earrings that were exchanged for heroin. (R 14:17-18)

Rosemary Salazar also pled guilty in connection with this

case and testified for the prosecution. She often would call Ray

on the phone to arrange a drug purchase and sometimes Francisca4

would answer. (R 15:72) If Ray was not there, Francisca would

tell Salazar that Francisca would send Ray to wherever Salazar

wanted him to be sent. Francisca would sometimes be present when

Salazar would purchase heroin from Ray, and Francisca would watch

the trans action. (R. 15:88) Francisca could see what was going

on, and she could hear what Salazar was asking for from Ray. (R.

15:89) On one occasion in particular, Salazar was trying to

convince Ray to give her some heroin, but instead of paying with

money, she promised Ray that he could go shopping for Francisca by

using Salazar's department store credit card. Salazar directed the

conversation to Francisca who tol d Salazar what items she wanted

from the department store. Francisca then authorized Ray to go

ahead and give the heroin to Salazar. Salazar testified that

Francisca the n told Salazar that she better be sure to bring her

the things that she wanted from the store.

This activity by Francisca constitutes more than mere

presence at a location where criminal activity is taking place.

This evidence, when viewed in the light favorable to the verdict,

e stablishes the existence of a conspiracy of which Francisca was

knowledgeable and in which she voluntarily participated. Viewing

this evidence in the light most favorable to the verdict, there was

evide nce to support Francisca's conviction for conspiracy with

intent to distribute heroin.

Remidios Mendez

Mendez wa s also convicted of conspiracy with intent to

distribute heroin. As pointed out in Mendez' briefs to this court,5

Della Espinoza testified that Mendez had sold and delivered heroin

to her at least three times. (R. 14:26) Jennifer Kallus, an

investigator with the Brazos Valley Narcotics Task Force, testified

that she and a confidential informant were involved in a drug

transaction with Mendez. (R. 14:117-22) Kallus also testified

that on a later occasion, she and Sergeant Investigator Robert

Rhynsburger were involved in a drug transaction with Mendez. (R.

14:124) Rhynsburger testified that Mendez was present during

several heroin purchases. (R. 16:71, 77) Mendez also observed

Rhynsburger weighing the heroin before purchasing it. (R. 16:82-

83) Although Mendez argues that this evidence indicates that

Mendez was merely present at a place where drug activity was being

conducted, we find this contention to be unsupported in the

evidence when viewed in the light most favorable to the verdict.

This evidence is sufficient to affirm Mendez's conviction for

conspiracy with intent to distribute heroin.

Carmine Osuna

Osuna was convicted of aiding and abetting the

distribution of heroin as well as conspiracy to possess with intent

to distribute heroin. She complains only of the sufficiency of the

evidence regarding her conviction for conspiracy. As Osuna points

out in her brief to this court, Ray Castro, the admitted leader of

this conspiracy, testified that he was the leader of the heroin

operation and had o nce accepted delivery of at least a gram of

heroin from Osuna. (R. 13:52) Osuna was present on several

occasions when Ray bought heroin from Osuna's husband, Herminio.6

Moreover, Rose Salazar testified that she traveled to Houston with

an undercover agent to purchase heroin with government funds from

Osuna. Osuna had sold Salazar heroin that Osuna kept in her house

stashed in a coke can. (R. 15:67-68). Officer Jose Mora was the

officer who arrested Osuna. He testified that Osuna told him,

after being advised of her rights, that she was involved in the

distribution of heroin along with her husband. (R. 14:235).

This evidence, when taken in the light most favorable to

the prosecution, indicates that there was a conspiracy of which she

had knowledge and in which she voluntarily participated. Rational

jurors could have found beyond a reasonable doubt that Osuna was

involved in a conspiracy with intent to distribute heroin.

Lionel Buitron

Buitron was convicted of conspiracy to possess with

intent to distribute heroin. Ray Castro testified that on one

occasion, he purchased heroin from Buitron which Ray, in turn, sold

to others. (R.13:49) Additionally, Richard Stewart of the Texas

Department of Public Safety N arcotics Service testified that the

authorities had received information that an unknown man would be

at a particular location on a certain day to call and arrange a

meeting with Ray Castro. On August 8, 1991 while under

surveillance, Buitron, after making the call to Ray, was followed

to a trailer house in Bryan, Texas where he met Ray. (R. 14:224)

Shortly after leaving the meeting with Ray , the authorities

arrested Buitron and confiscated approximately $2,041 from him,

$1,900 of which was marked money that was traced to two heroin7

purchases that government authorities had made from Ray Castro in

June or July of 1991. (R. 14:222-23) This evidence, taken in the

light most fav orable to the verdict, is sufficient to establish

that Buitron was guilty of conspiracy to possess with intent to

distribute heroin.

B. Expert Psychiatric Testimony

Johnny Lee Carey complains that the district court erred

in denying his request to present expert testimony re garding his

state of mind at the time of the offense, and, as a result, he was

unable t o present expert psychiatric testimony concerning his

physiological impairment, brain damage, and the psychological and

physiological effects of drug addiction.

Fed. R. Crim. P. 12.2 requires that the defendant notify

the government in writing of any intention to introduce expert

testimony relating to a mental disease, defect, or any other mental

condition of the defe ndant bearing upon the issue of guilt. S ee

Fed. R. Crim. P. 12.2(b). If the defendant fails to comply with

this requiremen t, "the court may exclude the testimony of any

expert witness offered by the defendant on the issue of the

defendant's guilt." Fed. R. Crim. P. 12.2(d).

Carey concedes that he did not timely fil e his request

because he was unaware of the proposed testimony of a co-defendant

until after the deadline had passed. The district court denied his

motion based on Fed. R. Crim. P. 12.2(b). The district court did

not abuse its discretion in denying Carey's request to provide8

exp ert testimony because Carey failed to comply with the notice

requirements of the Federal Rules of Criminal Procedure.

C. Psychological Examination

Carey also complains that the district court abused its

discretion in denying his request for a psychological examination.

The Criminal Justice Act, 18 U.S.C. § 3006A(e), provides that a

"person who is financially unable to obtain investigative, expert,

or other services necessary for adequate representation" may obtain

such services after demon strating in an e x parte proceeding that

the services are necessary. See 18 U.S.C. § 3006A(e) (West Supp.

1993). The services of a psychiatric expert are necessary for

adequate representatio n within this provision only when the

defendant's sanity at the time of the off ense is truly at issue.

See United States v. Williams , 998 F.2d 258, 264 (1993); Williams

v. Collins

, 989 F.2d 841, 845 (1993). The defendant is required to

make a "showing that his sanity was likely to be a significant

factor at trial, such that the denial of a mental examination

am ounted to a denial of due process under A ke v. Oklahoma

, [470

U.S. 68, 105 S. Ct. 1087 (1985)], or an abuse of discretion under

18 U.S.C. § 3006A." W illiams

, 998 F.2d at 264 (footnotes omitted).

Carey argues that his defense of insanity would have been

based on his heroin addiction and the fact that he had previously

been confined to a mental institution. These reasons are

insufficient to put his sanity at the time of the offense into

issue at trial. Evidence of heroin addiction is insufficient to

show that a defendant's sanity would be a significant factor at9

trial. See Volanty v. Lynaugh , 874 F.2d 243, 247 (5th Cir. 1989)

(holding that drug addiction alone is insufficient to make the

defendant's sanity a significant factor at trial unde r Ake )

.

Moreover, evidence of drug addiction, even when coupled with past

confinement in a mental institution, is still insufficient to

establish the requisite factual showing necessary to give the trial

court reason to doubt the defendant' s sanity a t the time of the

offense

. S ee Pedrero v. Wainwright

, 590 F.2d 1383, 1391-92 (5th

Cir. 1979).

Carey never provided the district court with any

evidence, aside from his drug addiction, to support his request for

psychiatric evaluation. Even when asked by the court directly,

Carey's only support for putting his sanity into issue was the fact

that he was a drug addict. He did not use this opportunity before

the court to argue any evidence of prior institutionalization. (R.

17:7-8) Therefore, the district court did not abuse its discretion

in denying Carey's request for psychological examination, and such

denial did not violate Carey's due process rights under Ake

.

D. Motion to Sever

Francisca Castro claims that the district court a bused

its discretion in failing to grant her motion to s ever her case

from that of her co-defendants. As stated earlier, Francisca's exhusband, Ray Castro, and her son Angel pled guilty and testified at

the trial of Francisca and five oth er co-indictees. As part of

their ple a arrangement, neither was required to testify against

Francisca, and neither did so. Francisca now complains that she10

was prejudiced because the jury could have thought that Ray and

Angel were "protecting" her. She claims that she was prejudiced

b ecause having no duty to take the stand in her own defense, her

cou nsel was forced to ask questions of her relatives as to her

involvement.

Denial of a motion for severance is evaluated for an

abuse of discreti on. See Zafiro v. United States

,

___ U.S.

___,

113 S.Ct. 933, 937 (1993); United States v. Branch , 989 F.2d 752,

756 (5th Cir. 1993). Broad discretion is given to district courts

to examine motions for severance made by criminal defendants. S ee

Branch

, 989 F.2d at 756. Where defendants have been properly

joined for trial, "a severance is warranted only to avert 'serious

risk that a joint trial would compromise a specific trial right of

one of the defendants or prevent the jury from making reliable

judgments about guilt or innocence.'" I d. (quoting Z afiro

, 113

S.Ct. at 938.) Any prejudice that exists can generally be cured

through jury instructions. See id.

Francisca and the other defendants were indicted

t ogether. Not only did Ray and Angel testify at trial that they

had a deal with the government that they would not testify against

Francisca, but the district court instructed the jury:

[T]he case of each defendant should be considered

separately and individually. The fact that you may find

one or more of the defendants guilty or not guilty of any

of the crimes charged should not control your verdict as

to any other crime or any other defendant. You must give

separate consideration to the evidence as to each

defendant.

(R. 18:135)11 Francisca was not prejudiced by being tried with her codefendants. Moreover, any prejudice was cured by testimony and the

court's instruction to the jury. The district court did not abuse

its discretion in denying Francisca's motion for severance.

E. Motion for Continuance

Mendez argues that the district court abused its

discretion by den ying her motion for continuance. Mendez claims

that on the first day of trial, she was notified for the first time

that a witness who had earlier pled guilty to involvement in this

heroin operation planned to testify that Mendez had intentionally

and knowingly received stolen property in return for heroin.

Counsel for Mendez moved for continuance based on surprise and

undue delay in order to prepare for that testimony. Both parties

agree that the government was under no duty to disclose a summary

of this witness's probable testimony prior to or during trial.

This court will reverse a district court's decision

denying a defendant's motion for continuance only when the district

co urt has abused its discretion and the defendant can establish

that he suffered serious prejudice. S ee United States v. BritoH ernandez

, 996 F.2d 80, 83 (5th Cir. 1993). Mendez has not

indicated the ways in which she was seriously prejudiced by not

receiving a continuance, aside from claiming that she was surprised

and did not have the opportunity to adequately prepare her case.

We fail to see how the district court abused its discretion.

Moreover, a thorough review of th e record indicates that the

district court did not abuse its discretion in such a way as to12

cause serious prejudice to Mendez. We affirm the district court's

denial of continuance.

VII. Conclusion

Finding no reve rsible error, we A FFIRM the decision of

the district court.