*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this opinion should not be published and is not precedent except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.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 96-21066

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GENARO AGUILAR MARIN, also known as Marin

Genaro Aguilar; JESUS ALFONSO CORTES-GRANJA,

also known as Jesus Alfonso Cortes; CESAR VALDEZ

RODRIGUEZ; FABIO GUESO ROMERO, also known as

Fabio Romero,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-96-CR-70-3)

_________________________________________________________________

September 25, 1998

Before POLITZ, Chief Judge, JONES, and DUHÉ, Circuit Judges.

PER CURIAM:*

Appellants Marin, Cortes, Rodriguez, and Romero raise

numerous issues in connection with their convictions, after a jury

trial, for conspiracy and aiding and abetting possession with

intent to distribute more than five kilograms of cocaine. Finding
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no error in the pretrial, trial, or sentencing proceedings, we

affirm.

In March 1996, narcotics officers investigated suspicious

activities at a warehouse at 8464 Market Street in Houston and two

residences at 3824 Necomen and 10246 Palestine. They conducted

careful surveillance of the appellants or their compatriots. They

were given permission to search at each of the residences. Their

investigation uncovered 369 kilos of cocaine, which had recently

been imported from Mexico. 

The issues raised by appellants may be discussed one by

one. First, the evidence was sufficient to support Romero’s,

Cortes’s, and Rodriguez’s convictions. Viewed in the light most

favorable to the convictions, “typically, the same evidence will

support both a conspiracy and an aiding and abetting conviction.”

United States v. Salazar, 958 F.2d 1285, 1292 (5th Cir. 1992)

(internal citation omitted). To summarize just a bit of the

relevant evidence, after apparently participating in a “heat run”

to elude law enforcement, Romero arrived at the Newcomen residence

and backed the blue van into the garage. More than one person

unloaded something from the back of the van and took it inside the

house. Romero admitted he was the resident of the house and signed

a consent to search form. Officers found false identification for

Romero, and they found money wrapped in bundles and a Beretta hand

gun in his bedroom. Three hundred bricks of cocaine were found in

the house. In Cortes’s bedroom the officers found a box containing

101 bricks of the cocaine, a machete, a Colombian passport, and an
 

1 In some cases, more than one of the defendants raises the

arguments we address. It is unnecessary to be more specific here

about the proponent of each issue on appeal.

3

airline ticket for travel coinciding with the illegal activity.

Rodriguez participated in a suspicious car-swap and wound up at the

garage apartment on Palestine, where he motioned the investigating

officers toward a bedroom closet containing a stash of five kilos

of cocaine. Rodriguez’s fingerprints were lifted from the tractor

and trailer, found in the warehouse, that had a concealed

compartment for transporting the narcotics. From this and other

evidence, the jury could infer the defendants’ guilt of the charged

offenses.

Second, both motions to suppress were correctly denied.1

Gonzalez had authority as both tenant and resident of his garage

apartment on Palestine to consent to agents’ searching the bedroom

closet. He gave both verbal and written consent. Marin and

Rodriguez, who were guests at the apartment and shared the bedroom

with Gonzalez, assumed the risk that Gonzalez might permit the

search. United States v. Smith, 930 F.2d 1081, 1085 (5th Cir.

1991). Melendez invited the officers into the Newcomen house, and

Romero, who said it was his house, gave verbal and written

permission to search in Spanish and English. The officers had no

reason to question Melendez’s authority to invite them inside, and

Romero affirmed his consent to their entry by permitting them to

stay. United States v. Thomas, 120 F.3d 564, 572 (5th Cir. 1997).

Nothing casts doubt on the voluntariness of Romero’s consent.

United States v. Asibor, 109 F.3d 1023, 1039 (5th Cir. 1997). The
4

district court did not err in finding that valid permission to

enter and search both residences was given.

The district court did not abuse its discretion by

altering the composition of the jury panel after it was impanelled

and opening statements were presented. In fact, the district court

made exactly the change in the composition of the jury panel that

the defendants requested. No reversible error and no

constitutional error is identified in this train of events.

Contrary to appellants’ contention, this circuit has held

that the double jeopardy clause is not violated by prosecution for

both a conspiracy and aiding and abetting the underlying

substantive offense. See United States v. Payan, 992 F.2d 1387,

1392 (5th Cir. 1993).

Likewise, the district court’s admission of testimony

from DEA Agent Pior about “heat runs” and the method of

transporting cocaine from Colombia to the United States was not an

abuse of discretion. United States v. Buchanan, 70 F.3d 818, 832

(5th Cir. 1996). Rather than constituting improper drug profile

evidence, Agent Pior’s opinion testimony explained to the jury the

conduct and methods used by Colombians to import and distribute

cocaine, and he was well qualified to do so.

Rodriguez asserts two sentencing issues: the

determination of the amount of cocaine that constituted conduct,

and his alleged lesser role in the offense. Rodriguez contends he

should only have been sentenced for the five kilos found in the

bedroom closet of the garage apartment. The court attributed to
5

him the entire 369 kilos found in the course of the warehouse

activities. The court’s finding was not clearly erroneous, because

the court could properly conclude that Rodriguez was responsible

for the entire amount of cocaine transported to Houston. United

States v. Garcia, 86 F.3d 394, 401 (5th Cir. 1996). Rodriguez was

accountable for sentencing purposes for all quantities with which

he was directly involved and all foreseeable quantities within the

scope of the jointly undertaken criminal activity. The same

evidence also dooms Rodriguez’s attempt to claim a role reduction

for minor participation in the offense.

Cortes challenges the district court’s sentence

enhancement based on the possession of a dangerous weapon pursuant

to U.S.S.G. § 2D1.1(b)(1). A knife has been construed to be a

dangerous weapon. United States v. Scott, 91 F.3d 1058, 1063-64

(8th Cir. 1996). Further, the evidence shows that it was not

“clearly improbable that the weapon was connected with the

offense.” United States v. Griffith, 118 F.3d 318, 326 (5th Cir.

1997); see also United States v. McDonald, 121 F.3d 7, 10 (1st Cir.

1997) (placing “clearly improbable” burden on defendant); United

States v. Ortiz-Granados, 12 F.3d 39, 41 (5th Cir. 1994) (rejecting

argument that “clearly improbable” burden should be placed on

government). Indeed, the evidence clearly showed that the machete

was concealed beneath the pillow on the bed in the same bedroom in

which 101 kilos of cocaine were stored in a closet along with

Cortes’s clothes.
6

For the foregoing reasons, the judgments of all

appellants and sentences of Rodriguez and Cortes are AFFIRMED.