* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-50150

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JASINDA WHITTINGTON; JOSE CRISTOBAL CARDONA; KELLY

CARDONA

Defendants-Appellants

Appeals from the United States District Court for the 

Western District of Texas, Del Rio Division

USDC No. 2:01-CR-251-6

Before JONES, Chief Judge, and WIENER and CLEMENT, Circuit Judges.

PER CURIAM:*

Jasinda Whittington and Jose Cardona appeal their convictions and

sentences. Kelly Cardona appeals her convictions. We AFFIRM as to Jose

Cardona and Kelly Cardona. We AFFIRM Whittington’s conviction, but

VACATE her sentence and REMAND for resentencing.

United States Court of Appeals

Fifth Circuit

F I L E D

March 10, 2008

Charles R. Fulbruge III

Clerk
No. 03-50150

1 Hereinafter, Jose Cardona will be referred to as “Cardona” and Kelly Cardona will be

referred to as “Kelly Cardona.” Both defendants together will be referred to as “the Cardonas.”

2 Serrano’s conviction and sentencing are not at issue in this appeal.

2

I. FACTS AND PROCEEDINGS

On September 5, 2001, Whittington, Jose Cardona, Kelly Cardona, Lionel

Serrano, Manuel Cerda, and Marina Hernandez Garcia were indicted for various

drug charges. Whittington, Jose Cardona, and Kelly Cardona were charged with

one count of conspiracy to possess with intent to distribute over 100 kilograms

of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), & 846. The

Cardonas1 were also charged with one count of conspiring to possess with intent

to distribute less then 100 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(C), & 846, one count of possession with intent to distribute over 100

kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(B), and

one count of possession with intent to distribute over 100 grams of heroin, in

violation of 21 U.S.C. §§ 841(a)(1) &, 841(b)(1)(C). Whittington, Serrano, and the

Cardonas were tried together on March 26, 2002. 

During pretrial motions, Cardona’s second court-appointed attorney

withdrew and a third court-appointed attorney was provided. Cardona

subsequently made a motion to represent himself which was granted. Cardona

moved for access to a law library, and visitation and correspondence with family

and friends. These motions were denied. Serrano filed a motion for severance

pursuant to Federal Rules of Criminal Procedure 8 and 14.2 On the day of trial,

Whittington adopted the motions of her codefendants. The court denied the

motions to sever.

A. Cardona’s Trial and Sentencing

At trial, the evidence against Cardona was as follows. Three witnesses,

Fuentes, Benevides, and Guerra, who had been incarcerated with Cardona,

testified pursuant to plea agreements. All three testified that Cardona was a
No. 03-50150

3

member of the Mexican Mafia. They further testified that Cardona had told

them details of his drug-trafficking and that Cardona also gave them names of

other individuals involved in his trafficking. One testified that Cardona used

the term “chickens” as code for drugs. Conversations between Cardona and his

wife that were recorded while Cardona was incarcerated indicated that they

used the term “chickens” regularly in discussing various transactions. A U.S.

Customs agent who had been involved in the investigation testified that when

the Cardonas differentiated between black and regular chickens in their

discussions, the “ones in black” referred to heroin. He also testified to methods

by which drug-trafficking organizations operated. 

Cooperating codefendant Marina Garcia testified that she had been

arrested in possession of heroin after Cardona had asked her to hold the drugs

for him when they were pulled over by police. Del Rio Police officers testified to

arresting Garcia and the Cardonas during April 2001. Garcia had heroin in her

possession. Cardona was unlawfully carrying a weapon and Kelly Cardona had

an outstanding warrant. When officers found heroin hidden in Garcia’s pants,

she began shouting, “He made me do it. . . . Joe.” Testimony throughout trial

indicated that Cardona was referred to as “Joe.” The heroin seized from Garcia

weighed 30.24 grams. 

Cooperating codefendant Manuel Cerda testified that he was arrested

while receiving a load of marijuana at a brown trailer that belonged to the

Cardonas. He said he had been recruited by Serrano who told him that he

received the shipments of marijuana for Cardona. Cerda testified that he was

a low-ranking member of the Mexican Mafia, specifically that he was one of

Cardona’s “prospects” in the Mexican Mafia. Two Border Patrol agents testified

about the April 2001 arrest of Cerda and Serrano receiving marijuana at the

Cardona’s trailer. The marijuana seized during the arrest weighed 259.08

pounds. 
No. 03-50150

4

Three U.S. Border Patrol agents testified to an operation where they

captured Cardona in the vicinity of several individuals bringing a load of

marijuana into the United States from Mexico during January 1999. A U.S.

Customs agent testified that he conducted a search of the Cardonas’ trailer in

February 2001 and found a shotgun.

At the close of the government’s evidence, Cardona moved for a judgment

of acquittal which was denied. He did not renew the motion at the close of all

evidence. The jury convicted him on all counts. On October 9, 2002, Cardona

moved to proceed pro se and for access to a law library to prepare for sentencing.

He renewed his motion for visitation and correspondence with friends and family

members. The court determined that Cardona was already representing himself

and would not remove his standby counsel. His motions were denied. Cardona

later moved to continue sentencing from December 16, 2002 because he received

his presentence report late on December 9, 2002. His motion was granted and

his sentencing continued. On December 16, 2002, Cardona filed objections to his

presentence report, specifically the drug quantity, the four-point

leader/organizer enhancement, the obstruction of justice enhancement, the use

of a weapon enhancement, and the career offender enhancement.

Cardona raises eighteen issues on appeal. 

B. Kelly Cardona’s Trial and Sentencing

The evidence against Kelly Cardona was as follows. All three witnesses

who had been incarcerated with Cardona testified that he told them that Kelly

Cardona was involved in operating his drug-trafficking organization. Cerda

testified that he had seen Kelly Cardona present at the Cardonas’ trailer when

shipments of marijuana were being loaded. Garcia testified that Kelly Cardona

was in the car when Jose Cardona asked her to concealthe heroin for him. Kelly

Cardona later visited Garcia in custody and threatened to kill Garcia’s children

if she said anything against Kelly Cardona or others. Also, the tape-recorded
No. 03-50150

5

conversations showed her involvement in Cardona’s drug-trafficking. During

one conversation, Cardona told his wife to go see Garcia in custody. He also

expressed his concern about Garcia testifying. Kelly Cardona was recorded

acknowledging Cardona’s statements about the couple continuing to make

mistakes. A U.S. Customs agent testified that he arrested Juan Kinisky on

August 9, 2001 for smuggling 225 pounds of marijuana in a vehicle that was

registered to Kelly Cardona. Later testimony showed that Kelly Cardona

reported the vehicle stolen two days later. When searching the Cardonas’

trailer, agents found a small amount of marijuana which Kelly Cardona

admitted was hers. 

At the close of the government’s evidence, Kelly Cardona moved for a

judgment of acquittal which was denied. She did not renew the motion at the

close of all evidence. The jury convicted Kelly Cardona on all counts. On August

20, 2003, she was sentenced to 120 months of imprisonment. She appeals the

admission of hearsay statements in furtherance ofthe conspiracy,the admission

of evidence regarding Cardona’s membership in the Mexican Mafia, and the

sufficiency of evidence of her convictions. 

C. Whittington’s Trial and Sentencing

The evidence against Whittington was as follows. Cerda testified that

Whittington had been present when loading drug shipments. Benevides testified

that Cardona told him that Whittington was involved in smuggling heroin into

prison because she knew one of the guards. Guerra testified that Cardona told

him he once gave control of his drug-trafficking to Whittington because Kelly

Cardona was spending too much money. A U.S. Customs agent interviewed

Whittington after searching the Cardonas’ trailer. Whittington told him that

she owned the shotgun found at the trailer, but had left it behind after

subletting the trailer to the Cardonas. A member of the DEA’s task force

testified that during his investigation of an individual named Jerry Wade, a
No. 03-50150

6

license plate registered to Whittington was found on a vehicle carrying 101

kilograms of marijuana on February 21, 2001. Whittington did not own the

vehicle. An analyst from U.S. Customs testified about a recorded conversation

in Spanish between Cardona and a female, whom Whittington later admitted

was her. During the conversation, Cardona discussed his concerns about an

individual testifying against him. 

At the close of the government’s evidence, Whittington moved for a

judgment of acquittal which was denied. She did not renew the motion at the

close of all evidence.

The jury convicted Whittington of the one count with which she was

charged. On December 16, 2002, Whittington’s sentencing hearing was held.

She was sentenced to 121 months of imprisonment. Whittington appeals the

denial of her motion to sever, the district court’s factual determination in the

calculation of drug quantity for her Sentencing Guidelines,the constitutionality

of her sentence under United States v. Booker, 543 U.S. 220 (2005), and raises

an ineffective assistance of counsel claim on direct appeal. 

II. DISCUSSION

A. Admission of Hearsay Statements

Kelly Cardona appeals the admission of statements implicating her that

Cardona made to other inmates. Because Kelly Cardona concedes that she failed

to object to the admission of the hearsay statements that she now raises on

appeal, the admission is reviewed for plain error. United States v. Olano, 507

U.S. 725, 731–32 (1993); United States v. Cuellar, 478 F.3d 282, 294 (5th Cir.

2007) (en banc). “Under that standard, we do not correct an error raised for the

first time on appeal unless there is (1) error, (2) that is plain, and (3) that affects

substantial rights.” Cuellar, 478 F.3d at 294 (citing Olano, 507 U.S. at 731–37).

“If these factors are established, the decision to correct the forfeited error is

within the court’s sound discretion, which will not be exercised unless the error
No. 03-50150

7

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (citing Olano, 507 U.S. at 736). 

Hearsay is “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” FED. R. EVID. 801(c). A statement is not hearsay if it is made

“by a coconspirator of a party during the course and in furtherance of the

conspiracy.” FED. R. EVID. 801(d)(2)(E). “[T]he ‘in furtherance’ requirement is

not to be construed too strictly lest the purpose of the exception be defeated.”

United States v. Cornett, 195 F.3d 776, 782 (5th Cir. 1999). “This rule is not

without its limits, however; a statement is not in furtherance of the conspiracy

unless it advances the ultimate objects ofthe conspiracy.” Id. “Efforts to conceal

an ongoing conspiracy obviously can further the conspiracy by assuring that the

conspirators will not be revealed and the conspiracy brought to an end.” United

States v. Phillips, 219 F.3d 404, 419 (5th Cir. 2000). “[S]tatements which are

puffing or boasts, but which are used to obtain the confidence of the person

toward whom the statementis directed, are properly considered to be statements

in furtherance of the conspiracy.” United States v. Johnson, 872 F.2d 612, 623

(5th Cir. 1989). This Court has held that “statements [made] in order to

encourage loyalty and obedience among the conspirators [is] a purpose clearly

in furtherance of the conspiracy.” United States v. Flores, 63 F.3d 1342, 1377

(5th Cir. 1995). Situations “where the person acting as a connection informed

his source of the identity of the ultimate purchaser” have also been held to be

situations in furtherance of a conspiracy. United States v. Patton, 594 F.2d 444,

447 (5th Cir. 1979). 

Kelly Cardona argues that Cardona’s statements about her to Fuentes,

Benevides, and Guerra, which were admitted at trial were not in furtherance of

the conspiracy. Under the plain error standard, this Court cannot make that

conclusion. Benevides testified that Cardona explained the details of the drug
No. 03-50150

8

charges against him because Cardona asked him for “legal advice” regarding his

case. Cardona also asked Benevides to join in his drug-smuggling operation.

Cardona’s statements to Benevides were in furtherance of the conspiracy to

conceal the conspiracy by obtaining legal advice from a drug trafficker.

Cardona’s statements were also intended to obtain Benevides’s confidence to join

him in the conspiracy. Guerra was a fellow member of the Mexican Mafia and

Cardona’s statements to him were in furtherance of the conspiracy to gain his

confidence as a member of the same gang. Fuentes testified that he was the

head of a drug-trafficking organization and knew of Cardona’s membership in

the Mexican Mafia. The district court did not clearly err in admitting those

statements that could have been designed by Cardona to gain the confidence of

a fellow head of a drug-trafficking organization. 

Assuming for the purpose of argument that these statements were

admitted in error, the error was not plain, clear, or obvious. See Olano, 507 U.S.

at 734. “The purpose of the plain error rule is to enforce the requirement that

parties object to errors at trial in a timely manner so as to provide the trial judge

an opportunity to avoid or correct any error, and thus avoid the costs of

reversal.” United States v. Chaney, 662 F.2d 1148, 1151 n.4 (5th Cir. Unit B Dec.

1981). From the testimony in the record, it is not clear that Cardona’s

statements were not made in furtherance of the conspiracy. 

In support of her claim, Kelly Cardona relies on United States v. El-Zoubi,

where “[t]he statement in question was not made to a coconspirator [and] the

record [did] not allow the inference that [the defendant] thought the conspiracy

would be more likely to succeed if [the listener] knew of [the defendant’s] intent

to [commit the crime].” 993 F.2d 442, 446 (5th Cir. 1993). That case, however,

is inapplicable. Fuentes was the leader of his own drug-trafficking organization,

Benevides was asked to participate in Cardona’s drug-trafficking, and Guerra

was a fellow Mexican Mafia member. Substantial evidence existed in the record
No. 03-50150

9

to infer that Cardona’s drug-trafficking business would be more likely to succeed

and expand if these individuals knew of his operation. 

B. Sufficiency of the Evidence

The Cardonas each challenge the sufficiency of the evidence of their

convictions. A review of the trial transcript and docket sheet indicates that both

moved for a judgment of acquittal at the close of the government’s case, but did

not renew their motions at the close of all evidence.

Where . . . the defendant moves for a judgment of acquittal at the

close of the government’s case, but fails to renew the motion at the

close of all evidence, the court applies a stricter standard to a

sufficiency of the evidence challenge. In such cases, the court

reviews the evidence only to determine whether there has been a

manifest miscarriage of justice, which occurs only when the record

is devoid of evidence of guilt.

United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007) (internal citations

omitted). 

“The elements of a drug conspiracy are: (1) the existence of an agreement

to import or to possess with intent to distribute; (2) knowledge of the agreement;

and (3) voluntary participation in the agreement.” United States v. RodriguezMireles, 896 F.2d 890, 892 (5th Cir. 1990). 

A possession conviction requires proof that a defendant had

knowing possession of marijuana with the intent to distribute it. . . .

Possession may be actual or constructive, and may be proved by

circumstantial evidence. One who owns or exercises control over a

motor vehicle in which contraband is concealed may be deemed to

possess the contraband. Intent to distribute may be inferred from

the possession of a large quantity of contraband.

United States v. Hernandez-Palacios, 838 F.2d 1346, 1349 (5th Cir. 1988).

“Constructive possession is found if the defendant knowingly has ownership,

dominion or control over the contraband itself or over the premises in which the

contraband is concealed.” United States v. Arnold, 467 F.3d 880, 883 (5th Cir.

2006) (internal quotations omitted). 
No. 03-50150

10

Reviewing the evidence presented at trial under the strict standard of

review, there was ample evidence to support the Cardonas’ convictions on all

four counts. As to Count 1 of the superseding indictment, the evidence indicated

that there was an agreement between the Cardonas and others to possess

marijuana with intent to distribute it. There was evidence that the Cardonas

knew of the agreement and voluntarily participated in it. Besides the

statements of Cardona to fellow inmates, Kelly Cardona’s recorded conversations

with Cardona while he was in prison that were played for the jury and her own

testimony acknowledging these conversations indicated her knowledge and

participation in the conspiracy. Furthermore, her involvement in reporting a

vehicle stolen two days after it was seized when being was used to haul 255

pounds of marijuana was evidence of her conspiring to possess marijuana with

the intent to distribute it. 

The evidence against the Cardonas was sufficient to prove their guilt as

to Count 3, the marijuana possession count. Serrano and Cerda were caught in

the act of receiving 259 pounds of marijuana at a trailer that was the Cardonas’

residence. Cerda testified that Kelly Cardona was present when other loads of

marijuana were placed on a truck at the residence and he testified that Serrano

told him that he received marijuana for Cardona. This Court cannot say that

the record was devoid of evidence proving that the Cardonas had constructive

possession over the marijuana with intent to distribute the large amount of

marijuana delivered to their residence.

There was sufficient evidence to prove Counts 2 and 4. Garcia testified

that Cardona had given her the thirty grams of heroin that was found in her

possession when she and the Cardonas were in the same car. Cardona’s

statements about smuggling heroin into Leavenworth indicate that intent to

distribute the heroin existed. Recorded conversations were played for the jury

in which the Cardonas discussed the possibility of Garcia testifying against
No. 03-50150

11

Cardona and Cardona recommended that Kelly Cardona visit Garcia. Garcia

testified that Kelly Cardona threatened to kill her children if Garcia implicated

Kelly Cardona. Kelly Cardona’s threats against Garcia and her conversations

with her husband indicate their constructive possession of the heroin, an

agreementto possess it with the intentto distribute it, and that both voluntarily

participated in the agreement. 

C. Admission of Cardona’s Membership in Mexican Mafia as

Evidence Against Kelly Cardona

Kelly Cardona appeals the admission of evidence that her husband was a

member of the Mexican Mafia. The record indicates that Kelly Cardona did not

object to the admission of Cardona’s membership in the Mexican Mafia or

possible retaliation by Cardona against witnesses. Thus, the appropriate

standard of review is plain error. Olano, 507 U.S. 725 at 731–32; Cuellar, 478

F.3d at 294.

“This Court has previously established and upheld the rule that a

defendant’s guilt may not be proven by showing that he is related to an

‘unsavory’ person.” United States v. Parada-Talamantes, 32 F.3d 168, 170 (5th

Cir. 1994) (quoting United States v. Singleterry, 646 F.2d 1014, 1018 (5th Cir.

1981)). However, in Parada-Talamantes, the defendant’s relative was not a

codefendant in the same trial. Id. at 169. Because Kelly Cardona and her

husband were codefendants in the same trial, the admission of his Mexican

Mafia membership for its relevancy or prejudice to Kelly Cardona would be

reviewed under the Federal Rules of Evidence. “Evidence which is not relevant

is not admissible.” FED. R. EVID. 402. “Although relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of

unfair prejudice . . . .” FED. R. EVID. 403. This Court has held that undue

prejudice toward one defendant from the admission of evidence that is relevant

against a codefendant may be alleviated by a district court’s instructions. United
No. 03-50150

12

States v. Ramos Rodriguez, 926 F.2d 418, 421 (5th Cir. 1991). Instructions that

the defendant was “on trial only for conduct alleged in the indictment, that the

jury was not to be concerned with the guilt of any other person, and that

evidence pertaining to each person in each count of the indictment was to be

considered separately” has been held as sufficient. Id. 

The evidence of Cardona’s membership in the Mexican Mafia was relevant.

With regard to the possession of heroin countin the indictment, the government

alleged that Cardona attempted to smuggle the drugs to incarcerated Mexican

Mafia members. The witnesses’ fear of retaliation against them was relevant to

prove Cardona’s membership in the organization and involvement in narcoticstrafficking. 

Kelly Cardona does not challenge the jury instructions. The jury was

instructed that the defendants were on trial for conduct alleged in the

indictment, that they were not to be concerned with the guilt of others, and that

they were to consider the evidence against each person in each count separately.

“This Court recognizes that a jury is generally capable of properly applying

evidence only against whom it is offered.” Id. 

Even ifthe admission of Cardona’s Mexican Mafia membership were plain

error as to Kelly Cardona, she has failed to show that her substantial rights

were affected or that the admission “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” UnitedStates v. Cuellar, 478F.3d 282,

294 (5th Cir. 2007) (en banc) (citing United States v. Olano, 507 U.S. 725, 736

(1993)). As discussed above, there was sufficient evidence other than her

husband’s Mexican Mafia membership to prove that Kelly Cardona was guilty

ofthe crimes charged, which is more than necessary to show that her substantial

rights were not affected by the admission.
No. 03-50150

13

D. Severance

Whittington appeals the denial of her motion to sever and Cardona

appeals the denial of severance (although he made no motion to sever).

Whittington adopted the motions of her codefendants, which included Serrano’s

motion to sever. The government did not object to Whittington’s adoption of the

motions, nor did the court refuse to permit the adoption, nor are there

exceptional circumstances indicating the adoption materially misled the court

or opposing counsel. In these circumstances, this Court has held that a

defendant properly adopted the objection of a codefendant. United States v.

Bernal, 814 F.2d 175, 182 (5th Cir. 1987). Because Whittington properly

adopted her codefendant’s motion to sever, we review the denial of the motion

for abuse of discretion. United States v. Nguyen, 493 F.3d 613, 625 (5th Cir.

2007).

“If the joinder of offenses or defendants in an indictment . . . appears to

prejudice a defendant . . .the court may order separate trials of counts, sever the

defendants’trials, or provide any other reliefthatjustice requires.”FED.R.CRIM.

P. 14(a). 

As a general rule, defendants indicted together would hold a trial together.

A district court should grant severance only if a defendant is able to show

thatthere is serious risk that a jointtrial would compromise a specialtrial

right of one of the defendants, or prevent the jury from making a reliable

judgment about guilt or innocence. 

Nguyen, 493F.3d at 625 (internal citations and quotations omitted). “To prevail,

the defendant must show that: (1) the joint trial prejudiced him to such an

extent that the district court could not provide adequate protection; and (2) the

prejudice outweighed the government’s interest in economy of judicial

administration.” United States v. Peterson, 244 F.3d 385, 393 (5th Cir. 2001)

(internal quotations omitted). “[W]e have held that a quantitative disparity in

the evidence is clearly insufficient in itself to justify severance. . . . We have also
No. 03-50150

14

held that the mere presence of spillover effect does not ordinarily warrant

severance.” United States v.Pofahl, 990F.2d 1456, 1483 (5th Cir. 1993) (internal

citations and quotations omitted). 

Whittington argues that she was prejudiced by the denial of her adopted

motion to sever because of the disparity between evidence against her and her

codefendants and because of the admission of evidence regarding the heroin

conspiracy. The disparity in evidence between Whittington and her

codefendants alone is insufficient to warrant severance, as is the spillover effect

from the evidence of the heroin conspiracy. Although the disparity and spillover

together may be enough to warrant severance, Whittington concedes that the

jury was given proper instructions to consider the evidence against the

defendants separately. As noted above, undue prejudice from the admission of

evidence regarding a codefendant may be alleviated by proper jury instructions.

United States v. Ramos Rodriguez, 926 F.2d 418, 421 (5th Cir. 1991).

Whittington also argues that she was clearly prejudiced by denial of her

adopted motion to sever because there was insufficient evidence to convict her.

The record indicates otherwise. Cerda testified that Whittington was present

when marijuana was loaded onto a truck. She sublet the trailer to the Cardonas

which was used to receive a shipment of marijuana. She purchased a shotgun

and left it behind in the trailer where Cardona would have access to it, when, as

a convicted felon, he would not normally have legal access to a weapon.

Cardona’s statementto fellow inmates that Whittington had taken over his drug

operation was indicative of her involvementin a marijuana conspiracy. Also, the

presence of a license plate registered to Whittington on a car that did not belong

to her that was transporting marijuana indicates Whittington’s involvement.

The amount of evidence against Whittington, the limiting instructions given to

the jury, and this Circuit’s precedent indicate that she did not suffer prejudice
No. 03-50150

3 Cardona argues that misjoinder and denial of a motion to sever are the same issue.

We will discuss the two separately.

15

sufficient to outweigh the government’s interest in economy of judicial

administration. 

Cardona, on the other hand, made no motion to sever, nor did he adoptthe

motions of his codefendants.3“We have held that where, as here, appellants

have failed to show any cause for failing to move for severance prior to trial, we

need not even address the merits of their argument. Alternatively, we have

limited review to plain error in such circumstances.” United States v. Mann, 161

F.3d 840, 862 (5th Cir. 1998) (internal citations omitted). Thus, his claim is

reviewed for plain error. 

Cardona was not unduly prejudiced by the district court’s failure to grant

a severance that he never requested. Reviewing for plain error, the record

reveals no indication that his substantial rights were affected or that his trial

with codefendants “seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Cuellar, 478 F.3d 282, 294 (5th Cir.

2007) (en banc) (citing United States v. Olano, 507 U.S. 725, 736 (1993)).

Considering that Cardona was charged in each count and was the alleged

ringleader in each count, it is difficult to envision him suffering any prejudice.

The jointtrialfor heroin and marijuana charges appears to be of minor prejudice

that certainly does not outweigh the government’s interest in economy of judicial

administration. 

E. Improper Joinder

Cardona also challenges the joinder of the four counts of the indictment.

“The indictment . . . may charge a defendant in separate counts with 2 or more

offenses if the offenses charged . . . are of the same or similar character, or are

based on the same act or transaction, or are connected with or constitute parts

of a common scheme or plan.” FED. R. CRIM. P. 8(a). “The indictment . . . may
No. 03-50150

16

charge 2 or more defendants if they are alleged to have participated in the same

act or transaction, or in the same series of acts or transactions, constituting an

offense or offenses.” FED. R. CRIM. P. 8(b). “Improper joinder under Rule 8 is

considered to be inherently prejudicial and thus is reviewable on appeal as a

matter of law.” United States v. Bright, 630 F.2d 804, 812 (5th Cir. 1980).

“Although a claim of misjoinder under Rule 8(a) is completely reviewable on

appeal as a legal question, the rule is to be construed broadly in favor of initial

joinder.” United States v. Chagra, 754 F.2d 1186, 1188 (5th Cir. 1985).

“Generally, the propriety of joinder under Rule 8 is to be judged from the

allegations of the indictment, which for these purposes are assumed to be true.”

Id.

Cardona was charged in each count of the superseding indictment with

each of the defendants. He has no claim of misjoinder under Rule 8(b). His

reliance on cases interpreting joinder of defendants is misplaced. As to his claim

under Rule 8(a), Cardona argues that the heroin and marijuana conspiracies

occurred at different times, in different locations, and involved different drugs

and different participants. Cardona’s factual assertions are inaccurate, except

that the charges involve different drugs. All four counts involved two common

participants: Cardona and his wife. Counts Two, Three, and Four all occurred

within a four-day time period that was within the same time period as Count

One. All occurred within the same geographic area. The initial joinder of the

four counts was proper. 

F. Ineffective Assistance of Counsel

On direct appeal, Cardona claims that he received ineffective assistance

of counsel. “We do not entertain ineffective assistance of counsel claims on direct

appeal when they have not been raised before the trial court, as the trial court

is the proper place to develop the record necessary for their resolution.” United

States v. Palmer, 122 F.3d 215, 221 (5th Cir. 1997). “[T]he exception to our
No. 03-50150

17

general rule of non-review is typically satisfied only where the actual claim was

raised and developed in a post-trial motion to the district court.” United States

v. Stevens, 487 F.3d 232, 245 (5th Cir. 2007). Cardona did not raise his

ineffective assistance of counsel claim in the district court. There is no record

available to review Cardona’s counsel’s decisions, particularly no affidavits from

his counsel. Therefore, Cardona’s claim will not be reviewed on direct appeal.

G. Sentencing Factors

Whittington challenges the district court’s calculation of drug quantity in

determining her offense level for sentencing. She did not file a written challenge

to her presentence report(“PSR”), but Whittington personally, not her attorney,

objected to the drug quantity at her sentencing hearing. Thus, she properly

objected to the PSR’s calculated drug quantity. Cardona appeals the district

court’s calculation of his criminal history category and the application of the

leader/organizer, obstruction of justice, and dangerous weapon enhancements

to his offense level. Cardona properly objected to his PSR. “We review the

district court’s application and interpretation of the sentencing guidelines de

novo. We review the district court’s factual findings at the sentencing hearing

for clear error.” United States v. Gallardo-Trapero, 185 F.3d 307, 323 (5th Cir.

1999) (internal citations omitted). “A factual finding is not clearly erroneous if

it is plausible in light of the record read as a whole.” United States v. Valencia,

44 F.3d 269, 272 (5th Cir. 1995). 

1. Drug quantity

When determining the base offense level of a co-conspirator,

the Sentencing Guidelines’ ‘reasonable foreseeability’ requirement

necessitates a consideration of when the co-conspirator joined the

conspiracy, what drug quantities were within the scope of the

conspiratorial agreement, and of those drug quantities, the

quantities that were reasonably foreseeable, prospectively only, by

the defendant. 
No. 03-50150

4 Rodriguez, who had the alias “Lalo,” was proven to be associated with the Cardona

marijuana trafficking attrial and his trafficking would be reasonably foreseeable to occur even

after Whittington’s indictment.

18

United States v. Turner, 319 F.3d 716, 724 (5th Cir. 2003). “The base offense

level of a co-conspirator at sentencing should reflect only the quantity of drugs

he reasonably foresees it is the object of the conspiracy to distribute after he

joins the conspiracy.” Id. (internal quotations omitted). 

Evidence at trial proved that Whittington became involved in the

conspiracy as early as February 2001, when the Cardonas sublet the brown

trailer from her and when a license plate registered to her was found on a car

carrying marijuana. Whittington was held responsible for a total of 1062

kilograms of marijuana. Of that amount, 570 kilograms were from the following

sources: 102 kilograms seized in the Jerry Wade investigation, which was the

marijuana found in a car with her license plate; 117 kilograms seized at the

brown trailer during April 2001 when Serrano and Cerda were arrested; 103

kilograms seized during August 2001 as part of the investigation into Juan

Kinisky; and 148 kilograms of marijuana seized in the Abelardo Rodriguez

investigation on September 23, 2001.4

However, Whittington was also held responsible for the 592 kilograms of

marijuana smuggled by Rodriguez in four loads before his September 23, 2001

arrest. The district court’s finding that Rodriguez’s trafficking was reasonably

foreseeable was plausible in light of the record as a whole, as was the district

court’s calculation that those four loads weighed approximately 592 kilograms.

The district court’s factual findings holding Whittington responsible for

Rodriguez’s trafficking and for the calculation of the 592 kilograms were not

clearly erroneous. However, without additional information from the record that

Whittington entered the conspiracy earlier or that the four loads occurred after

February 2001, it was not plausible for the district court to find Whittington
No. 03-50150

19

responsible for those additional 592 kilograms smuggled by Rodriguez.

Therefore, Whittington’s sentence is vacated and remanded for resentencing. 

Because Whittington’s sentence has been vacated and remanded and her

ineffective assistance of counsel claim pertains only to sentencing, her claim of

ineffective assistance of counsel is moot.

2. Career offender/criminal history category

Cardona challenges the district court’s calculation of his criminal history

category. “Section [4A1.2(e)] establishes the time period within which prior

sentences are counted. As used in [§4A1.2(e)], the term ‘commencement of the

instant offense’ includes any relevant conduct.” U.S.S.G. § 4A1.2 cmt. n.7. 

What Cardona refers to as his career offender enhancement is really his

criminal history category. (His PSR indicates the career offender enhancement

was not applied to him because his base offense level was higher than the offense

level from the career offender table.) He argues that the indictment alleging his

conductin January 1999 was improperly contrived to allow his 1984 sentence for

burglary of a habitation to be included in his criminal history category. He also

argues that the heroin conspiracy did not commence until 2001 and his 1984

sentence should not be applied in computing his criminal history category for

computation of his Sentencing Guidelines as to the heroin charges.

Whether Cardona’s involvement in marijuana-trafficking in 1999 was

properly included in the indictment is immaterial. The district court’s finding

that the January 1999 arrest by Border Patrol agents was relevant to both the

marijuana and heroin charges of which Cardona was convicted was plausible in

light of the record as a whole. The district court’s interpretation of the

Guidelines that Cardona’s 1984 sentence for burglary of a habitation was within

fifteen years of the commencement of the instant offenses was correct.
No. 03-50150

20

3. Leader/organizer enhancement

Cardona appeals the district court’s application of the four-point

leader/organizer enhancement to his offense level. “If the defendant was an

organizer or leader of a criminal activity that involved five or more participants

or was otherwise extensive, increase by 4 levels.” U.S.S.G. § 3B1.1(a). In

deciding whether a defendant undertook an organizational or leadership role, a

court should consider

the exercise of decision making authority, the nature of

participation in the commission of the offense, the recruitment of

accomplices, the claimed right to a larger share of the fruits of the

crime, the degree of participation in planning or organizing the

offense, the nature and scope of the illegal activity, and the degree

of control and authority exercised over others. 

U.S.S.G. § 3B1.1 cmt. n.4. “At sentencing, the court . . . must—for any disputed

portion of the presentence report or other controverted matter—rule on the

dispute or determine that a ruling is unnecessary . . . .” FED. R. CRIM. P.

32(i)(3)(B). 

Cardona argues that the district court did not rule on the dispute over his

role as an organizer or leader. He also argues that he was not an organizer or

leader and that the criminal activity did not involve five or more participants or

was otherwise extensive. 

The transcript of Cardona’s sentencing hearing indicates the district court

specifically found that the testimony regarding Cardona’s leader/organizer role

was believable. The evidence offered at trial including Cardona’s statements, his

tape-recorded conversations with his wife and Whittington, and Garcia’s and

Cerda’s testimony all indicated that Cardona was the leader of his drugtrafficking organization. The same evidence proved that five or more individuals

were involved in Cardona’s organization. Therefore, the district court did not err

in applying the four-point leader/organizer enhancement to Cardona’s offense

level. 
No. 03-50150

21

4. Obstruction of justice enhancement

Cardona appeals the district court’s application ofthe obstruction of justice

enhancement to his offense level. He argues that there was no basis for the

district court to conclude that he had obstructed the administration of justice.

If (A) the defendant willfully obstructed or impeded, or attempted

to obstruct or impede, the administration of justice during the

course ofthe investigation, prosecution, or sentencing of the instant

offense of conviction, and (B) the obstructive conduct related to (i)

the defendant’s offense of conviction and any relevant conduct; or (ii)

a closely related offense, increase the offense level by 2 levels.

U.S.S.G. § 3C1.1.

Garcia testified that Cardona’s wife threatened her children, arguably at

the direction of Cardona based upon the tape-recorded conversations admitted

at trial. Cardona even instructed his wife to visit Garcia. The district court did

not clearly err in finding that Cardona obstructed justice. 

5. Dangerous weapon enhancement

Cardona challenges the district court’s application of the dangerous

weapon enhancement to his offense level. He argues the government failed to

prove that the weapon was present during any drug-trafficking activity, because,

he claims, there was no such activity before April 20, 2001. “If a dangerous

weapon (including a firearm) was possessed, increase by 2 levels.” U.S.S.G. §

2D1.1(b)(1). 

The Government has the burden of proof under §2D1.1 of showing

by a preponderance of the evidence that a temporal and spatial

relation existed between the weapon, the drug trafficking activity,

and the defendant. Under this standard, the Government must

show that the weapon was found in the same location where drugs

or drug paraphernalia are stored or where part of the transaction

occurred.

United States v. Salado, 339 F.3d 285, 293–94 (5th Cir. 2003) (internal citations

omitted).
No. 03-50150

5 Because Whittington’s sentence is vacated and remanded for resentencing, there is no

need to address her claim of Booker error here. 

6 Although he cites Blakely v. Washington, 542 U.S. 296 (2004), in his pro se brief,

Cardona’s argument is properly made under Booker and we analyze the issue accordingly.

22

The government proved that Cardona was involved in a drug-trafficking

conspiracy beginning in January 1999. The government also proved that

Cardona used the brown trailer as a location to receive drugs from Mexico.

Although the weapon was found in the brown trailer before the April 20, 2001

load,the district court did not clearly err in finding thatthe weapon was present

in the trailer while drug transactions occurred there, particularly considering

the testimony of witnesses that the trailer was used for trafficking. 

H. Booker Error5

In order to preserve error under United States v. Booker, 543 U.S. 220

(2005), for a pre-Booker sentence, an objection “should be couched in terms that

facts used to enhance the sentence were not proven to a jury beyond a reasonable

doubt.” United States v. Rodarte-Vasquez, 488 F.3d 316, 320 (5th Cir. 2007).

Cardona made no such objection. Thus, his claim of Booker error for his preBooker sentences is reviewed for plain error. Id. at 321. 

In Booker, the Court followed its rationale in Blakely and concluded

that when the sentencing judge bound by mandatory Guidelines

increased the sentencing range under the Guidelines based on facts

not found by the jury or admitted by the defendant, the sentence

violated defendant Booker’s Sixth Amendment right to a jury trial.

United States v. Mares, 402 F.3d 511, 518 (5th Cir. 2005) (citing Blakely v.

Washington, 542 U.S. 296, 298–306 (2004); Booker, 543 U.S. at 228–29).

Cardona argues that the district court similarly erred because its factual

findings in determining his Sentencing Guidelines range, including the career

offender enhancement, were not authorized by a jury verdict.6
No. 03-50150

23

We find plain error when: (1) there was an error; (2) the error was clear

and obvious; and (3)the error affected the defendant’s substantial rights. United

States v. Olano, 507 U.S. 725, 732–37 (1993). Cardona satisfies “the first two

prongs of the plain-error test because the district court committed Sixth

Amendment Booker error and because that error is now plain after Booker.”

United States v. Infante, 404 F.3d 376, 394 (5th Cir. 2005). To satisfy the third

prong of the plain-error test, Cardona must show “with a probability sufficient

to undermine confidence in the outcome, that if the judge had sentenced him

under an advisory sentencing regime rather than a mandatory one, he would

have received a lesser sentence.” Id. at 395. 

Even after Booker, “[t]he sentencing judge is entitled to find by a

preponderance of the evidence all the facts relevant to the determination of a

Guideline sentencing range and all facts relevant to the determination of a nonGuidelines sentence.” United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).

Thus, the district court’s findings regarding Cardona’s sentence, including

findings of prior convictions for his criminal history category computation, were

not in error. 

Before this Court will vacate his sentence after Booker under a plain-error

standard of review, Cardona must show that the plain error affected his

substantial rights. Cardona’s Sentencing Guidelines calculation recommended

a range of 360 months to life imprisonment. The district court sentenced him to

480 months. Cardona’s sentence, which was ten years over the lower limit of his

Guidelines range, indicates that he would have received the same sentence

under an advisory sentencing regime. He has failed to show that he would have

received a lesser sentence under an advisory sentencing regime. Therefore, the

district court’s error did not affect his substantial rights and this Court will not

vacate his sentence. 

I. Law Library Access
No. 03-50150

7 The courtfound that there was not a full law library where Cardona was incarcerated,

nor was there a facility with a full law library to which Cardona could be moved. 

24

Cardona claims the district court erred in failing to provide him access to

a law library and visitation and correspondence with friends and family.

“[H]aving rejected the assistance of court-appointed counsel, [a defendant] ha[s]

no constitutional right to access a law library in preparing the pro se defense of

his criminal trial.” Degrate v. Godwin, 84 F.3d 768, 769 (5th Cir. 1996) (per

curiam). Cardona claims that his right to represent himself at trial was denied

by the district court and he was then prejudiced because communication with his

family and friends was restricted and he had no law library access. The record

indicates that Cardona chose to represent himself after the appointment of his

third court-appointed counsel. Cardona moved for access to a law library and

visitation and personal correspondence which was denied after a hearing.7 At

the hearing, Cardona’s third attorney, who acted as standby counsel, agreed to

assist him with legal materials. Soon thereafter, Cardona moved to cease

representing himself. His standby counsel was appointed to represent him and

represented him through trial. After trial, Cardona rejected his court-appointed

counsel again and represented himself at his sentencing hearing. 

There is no indication that Cardona was denied the right to represent

himself. He made his own motion to be represented at trial. During the period

when he did represent himself, both before trial and after, having fired his courtappointed attorney, he had no right to law library access. Cardona’s argument

that Degrate is not the law because it is a per curiam decision is meritless and

his case is not distinguishable from Degrate. Having rejected the assistance of

court-appointed attorneys, neither Degrate nor Cardona had a right to access a

law library. Cardona’s ability to visit with friends and family is not material to

his conviction, particularly because he was either represented by counsel or had

standby counsel who had the ability to communicate with potential witnesses for
No. 03-50150

25

him. Therefore, the district court did not err in denying Cardona’s pretrial

motions for access to a law library and visitation and correspondence with family

and friends. 

J. Continuance for Sentencing Hearing

Cardona appeals the denial of a second continuance for his sentencing

hearing. He also claims that he was wrongfully denied access to a law library

for that hearing. “To prevail on this appeal, he must demonstrate that the

district [court] abused its discretion and that he suffered prejudice.” United

States v. Peden, 891 F.2d 514, 519 (5th Cir. 1989) (internal citations omitted).

After his conviction, Cardona moved, on October 9, 2002, to proceed pro se and

have access to a law library. After a hearing by a magistrate judge, the district

court adopted the magistrate’s recommendations and allowed Cardona to

proceed pro se, but denied him access to a law library. He was provided a copy

of his PSR on December 9, 2002 and his sentencing hearing was scheduled for

December 16, 2002. Cardona filed objections to his PSR and moved for a

continuance. His motion for a continuance was granted and his sentencing was

continued to February 21, 2003. Cardona moved for a second continuance at the

hearing, citing his lack of access to a law library and his desire to subpoena the

state chemist who had weighed the drugs admitted against Cardona attrial, but

the district court denied his motion. 

There is no indication that the district court abused its discretion when it

denied Cardona’s second motion to continue. The district court had already

accepted that the PSR was not timely provided to Cardona and continued the

hearing. He suffered no prejudice because he had ample time to review the PSR

and consult with standby counsel appointed to assist him. The chemist he

requested to subpoena had already testified at trial. As discussed above,

Cardona had no right to access a law library after firing his court-appointed

attorney. 
No. 03-50150

26

K. Various Evidentiary Issues

Cardona appeals the admission of evidence of his membership in the

Mexican Mafia, a U.S. Customs agent’s lay opinion testimony as improper expert

testimony, testimony regarding an informant’s tip, and hearsay of codefendant

Serrano. This Court “review[s] a district court’s evidentiary rulings for abuse of

discretion” subject to harmless-error analysis. United States v. Cantu, 167 F.3d

198, 203 (5th Cir. 1999). “[F]or any of the evidentiary rulings to be reversible

error, the admission of the evidence in question must have substantially

prejudiced [the defendant’s] rights.” United States v. Sanders, 343 F.3d 511, 519

(5th Cir. 2003). 

1. Mexican Mafia membership

“Evidence of other acts is intrinsic when the evidence of the other act and

the evidence of the crime charged are inextricably intertwined or both acts are

part of a single criminal episode or other acts were necessary preliminaries to

the crime charged.” United States v. Miranda, 248 F.3d 434, 440 (5th Cir. 2001)

(internal quotations omitted).

Cardona objected to the admission of some of the testimony regarding his

membership in the Mexican Mafia. He claims that the evidence of his

membership in the Mexican Mafia was improperly admitted under Federal Rule

of Evidence 404(b). However, evidence of his Mexican Mafia membership was

inextricably intertwined with the two drug conspiracies with which he was

charged. The government alleged that the heroin was to be smuggled to

incarcerated Mexican Mafia members. A cooperating codefendant caught

trafficking in marijuana as part of the marijuana conspiracy and possession

charges was a member of the Mexican Mafia. Cardona’s membership and high

rank in the gang was a necessary prerequisite to prove his involvement as the

leader of a large narcotics-trafficking organization. Therefore, the district court
No. 03-50150

27

did not abuse its discretion in admitting evidence of Cardona’s membership in

the Mexican Mafia. 

2. Agent testimony

If the witness is not testifying as an expert, the witness’

testimony in the form of opinions or inferences is limited to those

opinions or inferences which are (a) rationally based on the

perception of the witness, (b) helpful to a clear understanding of the

witness’testimony or the determination of a factin issue, and (c) not

based on scientific, technical, or other specialized knowledge within

the scope of Rule 702.

FED. R. EVID. 701. 

[An investigator’s] extensive participation in the investigation of [a]

conspiracy, including surveillance, undercover purchases of drugs,

debriefings of cooperating witnesses familiar with the drug

negotiations of the defendants, and the monitoring and translating

of intercepted telephone conversations, allow[] him to form opinions

concerning the meaning of certain code words used in [a] drug ring

based on his personal perceptions.

Miranda, 248 F.3d at 441. An agent with such participation in an investigation

may testify to those opinions under Rule 701. Id.

Cardona objected to the admission of some of the testimony of U.S.

Customs Senior Special Agent McCarthy. He claims the testimony was

improperly admitted expert testimony. McCarthy participated extensively in the

Cardona investigation, including interviewing the defendants on various

occasions and reviewing and correcting the transcriptions of Cardona’s taperecorded conversations. Under Miranda, the district court did not abuse its

discretion in admitting McCarthy’s lay opinions regarding the conspiracy based

upon his personal perceptions. 

However, a review of the record supports our holding that McCarthy’s

testimony regarding drug-trafficking methods in general was improperly

admitted expert testimony. “The rule is well-established that an experienced

narcotics agent may testify about the significance of certain conduct or methods
No. 03-50150

28

of operation unique to the drug distribution business.” United States v.

Washington, 44 F.3d 1271, 1283 (5th Cir. 1995). While McCarthy’s experience

may have qualified him as an expert,the district court did not qualify him as one

at Cardona’s trial. He testified about drug traffickers’ use of cellular telephones,

vehicles, and cash that went beyond the proper scope of his lay opinion

testimony. Although the district court abused its discretion in admitting

McCarthy’s testimony regarding the use of those items by drug distribution

businesses in general without qualifying him as an expert, the error was

harmless. The testimony was of minimal assistance in the government’s case

compared to the direct evidence against Cardona, particularly his statements to

fellow inmates, the testimony of codefendants, and taped conversations with his

wife. The portions of McCarthy’s testimony that were improperly admitted did

not substantially prejudice Cardona’s rights. 

3. Informant’s tip

Cardona argues that the trial court erred when it allowed, over his

objection, a reference to an informant’s tip from Del Rio Police Detective Steve

Hughs which was elicited by Cardona’s counsel on cross-examination. The

testimony was as follows:

Q: Agent, there’s no serial number on this marijuana, is there?

A: No, sir, just a lab number.

Q: No. I mean, when you guys get it, it doesn’t have like

property of so and so?

A: A number is issued to it.

Q: You’re not following my question, sir. Does it say “property of

Jose Cardona” on any of that marijuana?

A: No, sir. No, sir, does not. [sic] 

Q: So, you have no evidence whatsoever as to whether or not this

is in any way connected to Mr. Cardona?

A: Justfrom the information we had from the initial informants.

Cardona claims this evidence was improper hearsay and violated his Sixth

Amendment confrontation rights. 
No. 03-50150

29

This Court reviews de novo a timely Confrontation Clause objection,

subject to harmless-error analysis. United States v. Acosta, 475 F.3d 677, 680

(5th Cir. 2007). In Crawford v. Washington, the Supreme Court held that

“[w]here testimonial statements are at issue, the only indicium of reliability

sufficient to satisfy constitutional demands is the one the [Sixth Amendment]

actually prescribes: confrontation.” 541 U.S. 36, 68–69 (2004). Even if the

admission of the testimony regarding an informant’s tip were a violation of

Crawford, the error was invited. “If a defendant injects otherwise inadmissible

evidence, the defense cannot later object to such invited error.” Acosta, 475 F.3d

at 683 (internal quotations omitted). This Court has held that cross-examination

that impeached a witness’s credibility opened the door for the government to

introduce testimony that otherwise violated Crawford to rebut the defendant’s

“insinuations.” Id. at 684–85. Detective Hughs’s testimony was not admitted

by the government on direct or redirect, but rather on cross-examination.

Cardona’s own counsel repeatedly asked questions implying that the detective

had no knowledge of Cardona’s interest in the marijuana. When accusing the

detective of having no information of Cardona’s connection to the marijuana,

Cardona invited the witness to provide testimony regarding the informant’s tip.

Because Cardona invited the error, he cannot complain of its admission on

appeal.

4. Serrano hearsay

Cardona claims the district court erred by admitting cooperating

codefendant Cerda’s testimony that codefendant Serrano told him that he

received marijuana for Cardona. He claims this was inadmissible hearsay and

a violation of his Sixth Amendment confrontation rights. 

In Crawford, the Supreme Court held that “[w]here testimonial evidence

is at issue . . . the Sixth Amendment demands what the common law required:

unavailability and a prior opportunity for cross-examination.” 541 U.S. at 68.
No. 03-50150

30

The Supreme Court declined to define “testimonial,” but it determined that “it

applies at a minimum to prior testimony at a preliminary hearing, before a

grand jury, or at a former trial; and to police interrogations.” Id. There is no

basis to conclude that Serrano’s statements to Cerda were in any way

testimonial. Therefore, Cardona’s Sixth Amendment rights are not at issue.

“The hearsay exception for statements against interest applies only where

(1)the declarant is unavailable; (2)the statementtends to subjectthe defendant

to criminal liability, such that a reasonable person in his position would not have

made the statement unless he believed it to be true; and (3) the statement is

corroborated by circumstances clearly indicating its trustworthiness.” United

States v. Dixon, 413 F.3d 520, 525 (5th Cir. 2005). Cardona objected when Cerda

was first asked for whom Serrano was working. The admission of the testimony

that Serrano received marijuana for Cardona is therefore reviewed for abuse of

discretion. 

Serrano was a codefendant and unavailable to testify, given the

incriminating nature of his statement that he received shipments of marijuana

for Cardona. The circumstances during which the statement was made clearly

indicated its trustworthiness. Serrano had recruited Cerda to assist him in

receiving shipments of marijuana at Cardona’s trailer. Under those

circumstances, this Court cannot hold that the district court abused its

discretion in admitting the statements. 

L. Jury Instructions

Cardona claims the district erred in failing to provide the accomplice jury

instruction with regard to four witnesses against him: Benevides, Fuentes,

Guerra, and Sparkman. All four had been in custody with Cardona, but none

were his accomplices. The record indicates the district court gave Fifth Circuit

Pattern Jury Instruction 1.08 regarding the credibility of witnesses and

Instruction 1.15 regarding codefendant accomplices who have entered a plea
No. 03-50150

31

agreement. There is no indication that the district court failed to provide the

proper instructions as Cardona claims. 

M. Improper Prosecutorial Remark

Cardona argues that he was denied a fair trial when the prosecutor was

allowed to refer to him as “the devil.” When a defendant fails to make a

contemporaneous objection to a prosecutor’s alleged improper remark, this Court

reviews any such remark for plain error. United States v. Mares, 402 F.3d 511,

515 (5th Cir. 2005). 

When reviewing a claim of an improper prosecutorial remark, this Court

first asks whether the prosecutor made an improper remark and then asks

whether the remark affected the substantive rights of the defendant. United

States v. Munoz, 150 F.3d 401, 414–15 (5th Cir. 1998). To determine whether

the remark affected substantive rights, this Court looks at “(1) the magnitude

of the statement’s prejudice, (2) the effect of any cautionary instructions given,

and (3) the strength of the evidence of the defendant’s guilt.” Id. at 415 (internal

quotation omitted).

During opening statements,the prosecutor told the jury thatit would hear

what some witnesses would expect the government to do in return for their

truthful testimony. The prosecutor concluded: “Throughout the trial you won’t

hear the United States apologizing for having to make those deals with the

sinners who are paying their penance so that we can convict the person that we

believe to be the devil here today.” There was no objection. During its rebuttal

at closing arguments, the prosecutor stated:

When I began this trial, I told you I wouldn’t make any apologies for

making the deals with the sinners that I made on behalf of the

United States to convict that man, the devil. And I’m not going to

start now. They’re bad people. And I certainly wouldn’t want to

invite them home to your houses, just like [defense counsel]

wouldn’t want to invite them home to his. They’ll be in jail for a

while.
No. 03-50150

32

There was no objection.

The prosecutor’s remarks cannot be characterized as simply a

colloquialism because he appeared to be referring to Cardona in each statement.

We assume without deciding that referring to a defendant as “the devil” is

improper. Under the high burden of plain error, however, we hold that such

references did not affect Cardona’s substantial rights. Although such a

statement, made during Easter week, as Cardona notes, would negatively

impact the jury, the specific wording of the statement was designed to explain

the plea agreements that the government made with unsavory characters that

testified against Cardona. The statements were minimized by the context in

which they were made and would be of little prejudice. Although no cautionary

instructions were given, Cardona did not object to the remarks. Most

importantly, the analysis of the sufficiency of the evidence of Cardona’s

convictions under the same plain-error standard of review indicates that

Cardona’s substantial rights were not affected by the prosecutor’s remarks.

N. Giglio/Brady

Cardona claims that he was not provided information regarding Garcia’s

indictment for a separate drug charge in violation of Giglio v. United States, 405

U.S. 150 (1972) and Brady v. Maryland, 373 U.S. 83 (1963). However, this claim

was not raised at the district court level and there is no record available to

review his claim. “Such Brady challenges present fact-based judgments that

cannot be adequately first made on appellate review. That is why Brady

challenges must be brought to the district court’s attention, winnowed by the

trial judge, and made part of the record through a motion for a new trial.” United

States v. Gonzales, 436 F.3d 560, 580 (5th Cir. 2006). Therefore, we will not

reverse Cardona’s conviction on the basis of his Brady/Giglio claim. 

III. CONCLUSION
No. 03-50150

33

Cardona’s convictions and sentence are AFFIRMED. Kelly Cardona’s

convictions are AFFIRMED. Whittington’s conviction is AFFIRMED.

Whittington’s sentence is VACATED and REMANDED for resentencing.