IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-20637

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ENRIQUE GONZALES, JR.; ENRIQUE GONZALES, SR.;

and WILSON OLIVARES, a/k/a Olivares Wilson,

Defendants-Appellants.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

_______________

No. 96-20954

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ENRIQUE GONZALES, JR.,

Defendant-Appellant.

_________________________

Appeals from the United States District Court

for the Southern District of Texas

_________________________

August 26, 19972

Before POLITZ, Chief Judge, HIGGINBOTHAM and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Enrique Gonzales, Sr., Enrique Gonzal e s, Jr., and Wilson

Olivares challenge their convictions of participation in a drug

trafficking conspiracy. We affirm.

I.

A.

A drug trafficking task force, including officers of the

Department of Public Safety, the Bureau of Alcohol, Tobacco and

Firea rms (“ATF”), and the Houston Police Department learned of a

potential drug dealer from a confidential informant, Jose

Benvides, who advised officers that a man named “Doni” had offered

to sell him a large quantity of cocaine. Relying on this information, the task force planned a sting. Benvides was instructed to

arrange the transaction, advising Doni that his “cousin” wished to

purchase a large quantity of cocaine. An undercover officer, Oscar

Garcia, posed as Benvides's cousin. Benvides and Doni agreed that

Garcia would purchase two kilograms of cocaine from Doni for

$44,000, and Doni instructed Benvides and Garcia to meet him at a

bar to execute the transaction.

After Benvides and Garcia arrived at the designated location,

Doni introduced himself to Garcia and asked to see the money.

Garcia displayed $42,000 in “show money” that he had obtained for

the sting. After satisfying himself that the money was sufficient,3

Doni placed a phone call to his associates and confirmed the deal.

Doni's associates returned the call approximately one hour later,

and Doni directed Garcia to the location of the final transaction.

Garcia convinced Doni to ride with Benvides, then notified the task

force of their destination.

When the three men arrived at their destination, a warehouse,

Benvides was taken inside to verify that the cocaine was present.

Meanwhile, Garcia remained outside and met the surveillance team,

arranging a final “bust signal” and handing off the “show money.”

Shortly thereafter, Benvides called to confirm the presence of the

cocaine, and Garcia approached the warehouse.

Before Garcia could enter, Doni asked to see the money again.

Having already handed off the money, Garcia stalled and demanded to

see the drugs first. Doni was adamant, however, and eventually

Garcia instructed Benvides to retrieve the money from his car,

knowing Benvides would find nothing. The situation grew volatile.

During this exchange, Doni realized that Garcia was carrying a

pistol and became highly agitated, despite Garcia's reassurances.

Finally, when Doni realized that Benvides could not find the money,

he began to retreat into the warehouse. Garcia followed Doni,

giving the “bust signal” as he approached the warehouse door.

As Garcia entered the warehouse, he observed Doni gesturing to

someone inside, and he saw Olivares standing beside a pool table.

Olivares immediately reached down beside the pool table and Garcia,

fearful that Olivares was reaching for a weapon, drew his revolver,

and identified himself as a police officer. Olivares did draw a1 An ATF expert testified that the rifle was initially manufactured between

1980 and 1982 as a semi-automatic weapon but had been modified to perform as a

machinegun. Furthermore, the home-made machinegun was not registered in the

National Firearms Registration and Transfer Records.

4 weapon, but replaced it inside the table when confronted by Garcia.

Simultaneously, the surveillance team entered the warehouse

and secured the premises, handcuffing everyone inside. While

securing the premises, one member of the surveillance team, Officer

Hans Meisel, discovered a loaded machinegun jutting out from a

missing panel in the pool table. 1

The officers learned that Olivares was living in the warehouse

and requested permission to search. Olivares signed a consent

form, and the officers proceeded to search the warehouse for the

drugs. Benvides explained that Gonzales, Sr., had escorted him

upstairs to view the cocaine, and he directed the officers to the

location. The drugs had been moved, however, and a na rcotics

detection dog was called in to locate the drugs, which were found

inside a brown paper bag that had been placed inside a bag of

concrete. Fingerprint testing subsequently revealed that a palm

print on the brown pa per bag matched those of Gonzales, Jr. The

officers confiscated 1,998.4 grams of cocaine.

As Meisel was leaving with the cocaine, Gonzales, Jr., mocked

h im, saying “we made you work for that s---, you all thought you

weren't going to find it,” and claiming “all of that is mine.” In

response to a query by Meisel, Gonzales, Jr., explained that he was

referring to “the coke and the gun.”5 B.

The appellants indicted on charges of possession with intent

t o distribute in excess of 500 grams of cocaine, in violation of

21 U.S.C. §§ 841(1)(1) and 841(b)(1)(B); conspiracy to possess with

intent to distribute cocaine, in violation of 21 U.S.C. § 846;

using and carrying a firearm during and in relation to a drug

trafficking crime, in violation of 18 U.S.C. § 924(c); and unlawful

possession of a machinegun, in violation of 18 U.S.C. § 922( o ).

They filed motions to suppress the cocaine, and Gonzales, Jr.,

moved to suppress his incriminating statements. At the suppression

hearing, Meisel testified that Gonzales, Jr., had made his

incriminating statements voluntarily and without interrogation, and

Garcia corroborated Meisel's account. The district court denied

the motions to suppress.

The jury convicted on all counts. The district court denied

motions for judgments of acquittal. The government gave notice

that it intended to seek the thirty-year sentence enhancement for

using and carrying a machineg un during and in relation to a drug

trafficking offense, in violation of 18 U.S.C. § 924(c). The

defendants objected, claiming that this aggravating factor had not

been included in the indictment and could not be considered in the

sentencing decision. The defendants claimed they were informed at

arraignment that the maximum penalty under § 924(c) was five years

in prison, thus the sentence enhancement would offend due process.

The district court overr uled the objections and adopted the

presentence reports, sentencing e ach defendant to 78 months on6

counts one, two, and four, to be served concurrently, and

360 months on count three, to be served consecutively, for a total

sentence of 438 months' imprisonment.

II.

Defendants argue that the evidence was insufficient to support

their convictions for conspiracy, possession with int ent to

distribute, and the firearms offenses. We disagree.

A.

In a sufficiency challenge, we view the evidence in the light

most favorable to the verdict and afford the government the benefit

of all reasonable inferences. See United States v. Dean , 59 F.3d

1479, 1484 (5th Cir. 1995), cert. denied , 116 S. Ct. 794 (1996).

The verdict must be affirmed if a rational trier of fact could have

found the essential elements of the offense beyond a r easonable

doubt. See United States v. Walters

, 87 F.3d 663, 667 (5th Cir.),

cert. denied , 117 S. Ct. 498 (1996); Dean , 59 F.3d at 1484.

B.

Olivares argues that the evidence was insufficient to prove

that he participated in the conspiracy to distribute cocaine, nor

did it prove that he aided and abetted the substantive offense of

possession with intent to distribute cocaine. We disagree.7 1.

In order to sustain a conviction for conspiracy to possess

with intent to distribute cocaine, in violation of 21 U.S.C. § 846,

the government must prove three essential elements: (1) that an

agreement existed to violate federal narcotics laws; (2) that the

defendant knew of the existence of the agreement; and (3) that the

defendant voluntarily participated in the conspiracy. See United

States v. Garcia , 86 F.3d 394, 398 (5th Cir. 1996), cert. denied

,

117 S. Ct. 752 (1997); United States v. Cardenas

, 9 F.3d 1139, 1157

(5th Cir. 1993); U nited States v. Maltos

, 985 F.2d 743, 746 ( 5th

Cir. 1992).

The essential elements of conspiracy may be establi shed by

circum stantial evidence. S ee United States v. Casilla

, 20 F.3d

600, 603 (5th Cir. 1994); Cardenas , 9 F.3d at 1157. “The government need not prove the essential elements by direct evidence

alone. The agreement, a defendant’s guilty knowledge and a

defendant’s participation in the conspiracy all may be inferred

from the 'development and collocation of circumstances.'” Maltos

,

985 F.2d at 746 (citations omitted); Ayala

, 887 F.2d at 67.

Therefore, we have consistently held that the jury may infer the

existence of a conspiracy from the presence, association, and

concerted action of the defendant with others. S ee Cardenas

, 9

F.3d at 1157; Ayala , 887 F.2d at 67.

Nevertheless, Olivares claims that the evidence established

only his “mere presence” at the crime scene, not his participation

in the narcotics conspiracy. This argument is unavailing.2 Accord Casilla , 20 F.3d at 603; Maltos , 985 F.2d at 746.

8 Granted, “it is well established that mere presence at the

crime scene or close association with conspirators, standing alone

,

will not support an inference of participation in the conspiracy.”

Maltos , 985 F.2d at 746 (emphasis added). It is equally settled,

however, that “presence or association is a factor that, along with

other evidence

, may be relied upon to find conspiratorial activity

by the defendant.” C ardenas

, 9 F.3d at 1157 (emphasis added). 2

Olivares's presence at the crime scene, corroborated by physical

evidence discovered there and the testimony of the ar resting

officers, was sufficient to support the inference that he was a

member of the conspiracy.

Garcia testified that when h e entered the warehouse, he

observed Doni make a hand gesture to someone inside. Moreover,

immediately upon entering the warehouse, Garcia observed Olivares

reaching down beside the pool table as if reachin g for a weapon.

In response, Garcia identified himself and drew his own revolver,

at which time Olivares replaced his weapon inside the pool table.

Finally, Meisel testified that he discovered a machinegun jutting

out from a missing panel in the pool table. This evidence supports

an inference that Olivares was a member of the conspiracy,

responding to the hand signals of a co-conspirator in an attempt to

protect the conspiracy by force. Given this testimony, the jury

reasonably could conclude that “this was a case of culpable

presence as opposed to mere presence.” United States v. Echeverri

,

982 F.2d 675, 678 (1st Cir. 1993).9 2.

Likewise, a defendant may be convicted of aiding and abetting

a criminal offense when he associates with the criminal activity,

participates in it, and acts to help it succeed. S ee United States

v. Pedroza , 78 F.3d 179, 183-84 (5th Cir. 1996); United States v.

Vaden

, 912 F.2d 780, 783 (5th Cir. 1990); see also 18 U.S.C. § 2

(prohibiting aiding and abetting a criminal offense). A defendant

may be convicted of aiding and abetting the offense of possession

with intent to distribute a controlled substance even if he did not

h ave actual or constructive possession of the substance. U ni ted

States v. Pena , 949 F.2d 751, 755 (5th Cir. 1991).

In order to sustain a conviction for possession with intent to

distribute under 21 U.S.C. § 841(a)(1), the government must prove

three essential elements: (1) knowing (2) possession of a controlled substance (3) with intent to distribute it. S ee United

States v. Brown

, 29 F.3d 953, 958 (5th Cir. 1994). The elements of

possession with intent to dis tribute may be established by

circumstantial evidence. C ardenas

, 9 F.3d at 1158; Ayala

, 887 F.2d

a t 68. Furthermore, intent to distribute may be inferred from a

large quantity of illegal narcotics and the value and quality of

the drugs. C asilla

, 20 F.3d at 603; C ardenas

, 9 F.3d at 1158;

Ayala

, 887 F.2d at 68. In the instant case, it is undisputed that

the defendants knowingly possessed the cocaine with the intent to

distribute it. Therefore, the elements of the predicate possession

offense are established.

Likewise, the evidence was sufficient to prove that Olivares10

aided and abetted the possession offense. The evidence supporting

a conspiracy conviction is generally sufficient to support an

aiding and abetting conviction as well. Casilla , 20 F.3d at 603;

United States v. Salazar

, 958 F.2d 1285, 1292 (5th Cir. 1992).

The instant case is no ex ception. Olivares attempted to draw a

machinegun to protect the conspiracy, which certainly constitutes

an affirmative act designed to help the criminal activity succeed.

See

, e.g.

, United States v. Polk

, 56 F.3d 613, 620 (5th Cir. 1995);

United States v. Jaramillo

, 42 F.3d 920, 923 (5th Cir.), cert.

denied , 514 U.S. 1134 (1995). Viewing the evidence in the light

most favorable to the verdict, the jury was entitled to conclude

that Olivares had aided and abetted the possession offense.

C.

Gonzales, Jr., argues that the evidence was insufficient to

support his convictions for unlawful possession of a machinegun and

aiding and abetting the use of a firearm during and in relation to

a drug trafficking crime. We disagree.

1.

Gonzales, Jr., claims that the eviden ce was insufficient to

support his conviction for unlawful possession of a machinegun, in

violation of 18 U.S.C. § 922( o ), because the government failed to

prove beyond a reasonable doubt that Gonzales did not possess the3 Gonzales, Sr., raises the same argument.

4 See also United States v. Green , 962 F.2d 938, 941 (9th Cir. 1992)

(noting that “a defendant who relies on an exception to a st atute made by a

proviso or distinct clause, whether in the same section of the statute or

elsewhere, has the burden of establishing and showing that he comes within the

exception”) (quoting United States v. Guess

, 629 F.2d 573, 576 (9th Cir. 1980)).

11 machinegun prior to May 19, 1986. His claim is meritless. 3

The statute provides that it shall be unlawful for any person

to transfer or possess a machinegun, but there is an exception for

“any lawful transfer or lawful possession of a machinegun that was

lawfully possessed before the date this subsection takes effect.”

18 U.S.C. § 922( o )(2)(B). Gonzales, Jr., argues that the statute

requires the government to demonstrate, beyond a reasonable doubt,

that the defendant did not lawfully possess the machinegun before

the effective date of the statute. We disagree.

The Due Process Clause requires the government to prove only

the essential elements of the off ense beyond a reasonable doubt.

See In re Winship

, 397 U.S. 358, 361-64 (1970). The exception for

lawfully possessed machineguns is an affirmative defense, however,

not an element of the offense. Therefore, the government is under

no duty to disprove this affirmative defense; on the contrary, the

burden was on Gonzales, Jr., to establish this affirmative defense.

See United States v. Just

, 74 F.3d 902, 904 (8th Cir. 1996). 4

Having failed to prove that h e lawfully possessed the machinegun

prior to May 19, 1986, Gonzales, Jr., has failed to establish his

affirmative defense, and the government is under no obligation to

prove the negative.12 2.

Gonzales, Jr., next argues that the evidence was insufficient

to support the machinegun conviction because the government did not

prove that Gonzales knew the weapon had been modified to fire as an

automatic weapon. To obtain a conviction under 18 U.S.C. § 922( o ),

the government must prove that the defendant knew the firearm was

a machinegun. S ee Staples v. United States

, 114 S. Ct. 1793, 1804

(1994); United States v. Brantley

, 68 F.3d 1283, 1289 (5th Cir.

1995), cert. denied

, 116 S. Ct. 964 (1996), and cert. denied

,

116 S. Ct. 1334 (1996).

The jury reasonably could infer that the firearm intentionally

had been converted into an automatic weapon and that Gonzales, Jr.,

was aware of the modification. Indeed, Gonzales, Jr., brashly

claimed to be the owner of the machinegun. It defies credibility

to suggest that the owner of a machinegun SS albeit a modified semiautomatic rifle converted into a machinegun SS did not realize that

the rifle was an automatic weapon.

3.

Gonzales, Jr., next claims that the evidence was insufficient

to prove that he aided and abetted the use of a firearm during and

in relation to a drug trafficking crime. Gonzales bootstraps

himself to the argument rai sed by Olivares, claiming that the

evidence was insufficient to prove that Olivares was a voluntary

participant in the drug trafficki ng conspiracy. I pso facto

,

although Olivares “used” the mach inegun by brandishing it when13

Garcia entered the warehouse, Gonzales argues that this use of the

machinegun was not an act “in relation to” the conspiracy, because

Olivares was not a member of the conspiracy. We disagree.

Given that the evidence was sufficient to demonstrate that

Olivares was a member of the conspiracy, this claim must also fail.

Olivares plainly brandished the weapon to protect the conspiracy,

and this act obvi ously “facilitates or furthers the drug crime.”

Smith v. United States , 508 U.S. 223, 232 (1993).

D.

Gonzales, Sr., argues that the evidence was insufficient to

support his convictions for aiding and abetting the possession of

a machinegun and aiding and abetting the use of a firearm during

and in relation to a drug trafficking crim e. On both issues,

Gonzales claims that the government failed to produce even a shred

of evidence suggesting that he either knew of or used the firearms,

precluding his conviction as an aider and abettor.

We need not rely upon aider and abettor liability, however,

because Gonzales, Sr., is also liable for the foreseeable acts of

his co-conspi rators, in accordance with the P inkerton doctrine.

Under the rule of Pinkerton v. United States

, 328 U.S. 640 (1946),

“a party to a conspiracy may be held responsible for a substantive

offense committed by a coconspirator in furtherance of a conspiracy

even if the party does not participate in or have any knowledge of

the substantive offense.” U nited States v. Jensen

, 41 F.3d 946,

955-56 (5th Cir. 1994) (citations omitted); Dean

, 59 F.3d at 1489.14

Accordingly, a defendant may be convicted under § 924(c) based on

a co-conspirator's possession of a weapon during a drug trafficking

crime, even if the defendant was unaware of the firearm possession.

Dean

, 59 F.3d at 1489; accord United States v. Mendoza-Burciaga

,

981 F.2d 192, 198 (5th Cir. 1992). Based on the same principle,

the Pinkerton doctrine also imposes vicarious criminal liability on

defendants for co-conspirators' violations of § 922( o ).

There is no question that Gonzales, Sr., was a “father figure”

in the drug trafficking conspiracy. Benvides stated that when he

entered the warehouse to inspect the cocaine, Gonzales, Sr.,

escorted him upstairs and showed him the cocaine. Based on this

damning testimony and the circumstantial evidence, the jury

reasonably could conclude that Gonzales, Sr., was a member of the

drug conspira cy. Accordingly, under the P inkerton doctrine,

Gonzales, Sr., is vicariously responsible for the use of a firearm

during and in relation to a drug trafficking crime and for the

possession of an unlawful machinegun.

III.

Defendants filed motions to suppress in the district court,

and all three motions were denied following a suppression hearing.

Gonzales, Sr., and Olivares argue that the warehouse was searched

without a warrant or effective consent, and Gonzales, Jr., claims

that the incriminating statements he made incident to arrest were

the fruits of an unconsti tutional custodial interrogation. Both

claims are meritless.15 A.

We review findings of fact rendered in a suppression hearing

only for clear error, but conclusions of law are reviewed de novo

.

See United States v. Cardenas , 9 F.3d 1139, 1147 (5th Cir. 1993).

In reviewing a ruling on a motion to suppress, we view the evidence

in the light most favorable to the party that prevailed in the

district court, considering the evidence offered at the suppression

hearing as well as the evidence admitted at trial. Id.

B.

A search conducted without a warrant is unreasonable p er se

and therefore unconstitutional under the Fourth Amendment, unless

it is conducted pursuant to consent or under exigent circumstances.

See United St ates v. Richard , 994 F.2d 244, 247 (5th Cir. 1993).

The Supreme Court has long held that “one of the specifically

established exception s to the requirements of both a warrant and

probable cause is a search that is conducted pursuant to consent.”

Schneckloth v. Bustamonte , 412 U.S. 218, 219 (1973).

In order to satisfy the consent exception, the government must

establish that consent to search was freely and voluntarily given

and that the individual who gave consent had authority to do so.

See United States v. Jen kins , 46 F.3d 447, 451 (5th Cir. 1995).

The government must prove by a preponderance of the evidence that

consent was voluntary and effective. S ee United States v. Hurtado

,

905 F.2d 74, 75 (5th Cir. 1990).

G onzales, Sr., and Olivares argue that the search of the16

warehouse was unconstitutional for two reasons: first, Olivares did

not have authority to consent to the search; and second, Olivares'

consent was not voluntary. We disagree.

1.

When the government seeks to justify a warrantless search on

the theory that consent was lawfully obtained from a third party,

rather than from the person whose property was searched or seized,

the government bears the burden of proving that the third party

had either actual or apparent authority to consent. To establish

that a third party had actual authority to consent, the government

must demonstrate “mutual use of the property by persons generally

having joint access or control for most purposes.” United States

v. Matlock

, 415 U.S. 164, 171 n.7 (1974). To establish that a

third party had apparent au thority to consent, however, the

government need demonstrate only that the officers reasonab l y

believed that the third party was authorized to consent. S ee

Illinois v. Rodriguez , 497 U.S. 177, 188 (1990).

At the suppression hearing, Meisel testified that the

surveillance team entered the warehouse and secured the premises,

then immediately asked to speak to the owner of the warehouse.

When the defendants explained that the owner was not present, the

officers asked whether anyone was in the “care, custody and

control” of the warehouse. Olivares volunteered, explaining that

he lived on the premises and was in control of the warehouse.

Accordingly, Meisel requested consent to search, and Olivares5 Olivares testified that he actually lived in a small brown house adjacent

to the warehouse, rather than in the warehouse itself. This claim is irrelevant.

First, Jesse Garcia testified that Olivares occasionally lived in the warehouse,

worked in it, and enjo y ed unlimited access to it. More importantly, Olivares

represented himself as a resident of the warehouse and claimed that he possessed

“care, custody and control” over it.

17 signed a consent form authorizing the officers to search the

warehouse.

The owner of the ware house, Jesse Garcia, testified at the

suppression hearing and confirmed that Olivares had been living in

the wareh ouse for about two or three months prior to the arrest.

Garcia also testified that Olivares was employed at the warehouse

and enjoyed complete access to the w arehouse. Accordingly, the

government contends that Olivares p ossessed both actual and

apparent authority to consent to the search.

Viewing the evidence introduced at the suppression hearing in

the light most favorable to the government, the record supports the

conclusion that Olivares possessed “joint access or control” of the

warehouse, by virtue of the authority delegated to him by Garcia,

and thus had actual authority to consent to the search. At a

minimum, however, Olivares had apparent authority, as the officers

reasonably believed that he had authority. Police officers are

entitled to rely on the representations of persons regarding their

authority to consent when the circumstances do not render such

reliance unreasonable. See Rodriguez , 497 U.S. at 188. 5

2.

Olivares contends that his consent was involuntary. The18

ultimate determination whether consent was voluntary is a question

of fact to be determined from the totality of the circumstances; no

single factor is dispositive. S chneckloth v. Bustamonte

, 412 U.S.

218, 227 (1973). The evidence introduced at the suppression

hearing, when viewed in the light most favorable to the government,

adequately demonstrates that the officers did not coerce Olivares

into giving his consent.

C.

Gonzales, Jr., argues that the district court erred in failing

to suppress the incriminating statements he made during the arrest,

claiming that they were the product of a custodial interrogation.

We disagree.

As Meisel was leaving with the cocaine, Gon zales, Jr.,

voluntarily said, “we made you work for that s---, you all thought

you weren't going to find it,” and claimed “all of that is mine.”

Gonzales concedes that this statement was voluntary, and he does

not contest its admissibility. In response to a question by

Meisel, however, Gonzales further explained that he had been

referring to “the coke and the gun.” Because this incriminating

statement was offered in response to a question by a police officer

without the benefit of M iranda warnings, Gonzales claims it was

inadmissible.

It is axiomatic that “the Fifth Amendment privilege against

self-incrimination prohibits admitting statements given by a

suspect during 'custodial interrogation' without a prior warning.”6 A suspect is “in custody” for purposes of Miranda when he is placed under

formal arrest or when a reasonable person in the position of the suspect would

understand the situation to constitute a restraint on freedom of movement to the

degree that the law associates with formal arrest. United States v. Galberth

, 846 F.2d 983, 986 n.1 (5th Cir. 1988); United States v. Bengivenga

, 845 F.2d 593,

596 (5th Cir. 1988) (en banc).

7 The term “interrogation” refers to “[a] practice that the police should

(continued...)

19 Illinois v. Perkins , 496 U.S. 292, 296 (1990). The Supreme Court

has defined “custodial interrogation” as “' questioning initiated by

law enforcement officers after a person has been taken into custody

. . . .'” I d

. (qu oting M iranda v. Arizona

, 384 U.S. 436, 444

(1966) (emphasis added)). Gonzales, Jr., was in custody when he

made the incriminating statements concerning the cocaine and the

firearm, 6 but his comments were not a response to “ques tioning

initiated by law enforcement officers.” To the contrary, Gonzales

voluntarily initiated the coll o quy, eliciting a response from

Meisel. Accordingly, Meisel's request for clarification was not a

“custodial interrogation” for purposes of the Miranda doctrine.

Meisel did not coerce Gonzales into his confession; instead,

Gonzales freely and voluntarily boasted about his crimes, and

Meisel simply requested that Gonzales clarify his statement. This

spontaneous colloquy does not constitute an “interrogation.”

“'Interrogation,' as conc eptualized in M iranda

, must reflect a

measure of compulsion above and beyond that inherent in custody

itself.” R hode Island v. Innis

, 446 U.S. 291, 300 (1980). No such

coercion is evident in the instant case. To the contrary, Gonzales

spontaneously initiated the dialogue with Meisel, thereby waiving

his right to remain silent. 7(...continued)

know is reasonably likely to evoke an incriminating response from a suspect.”

Innis , 446 U.S. at 301; Gladden v. Roach , 864 F.2d 1196, 1198 (5th Cir. 1989).

Meisel took no affirmative steps to “evoke an incriminating response,” but merely

asked the suspect to clarif y his spontaneous incriminating statement. This

request for clarification does not rise to the level of an “interrogation” for

purposes of the Miranda doctrine.

20 Consequently, when a suspect spontaneously makes a statement,

officers may request clarification of ambiguous statements without

running afoul of the Fifth Amendment. Under similar circumstances,

the Seventh Circuit has held that such requests for clarification

of enigmatic statements are not prohibited by Miranda

. S ee

Andersen v. Thieret

, 903 F.2d 526, 532 (7th Cir. 1990). Likewise,

in the instant case, “[t]he police officer's question was a neutral

response, intended to clarify [Gonzales's] puzzling declaration;

it was not coercive interrogation that Miranda seeks to prevent.”

Id . at 532. Meisel did not “interrogate” Gonzales, Jr., and did

not violate the Fifth Amendment.

Under these circumstances, the Miranda doctrine is inapposite.

“Fidelity to the doctrine announced in Miranda requires that it be

enforced strictly, but only in those types of situations in which

the concerns that powered the decision are implicated.” Berkemer

v. McCarty

, 468 U.S. 420, 437 (1984). This is not such a case, and

the district court did not err in denying the motion to suppress.

IV.

The defendants claim that the prohibition against possession

of an unlawful machinegun, 18 U.S.C. § 922( o ), is unconstitutional

under U

n ited States v. Lopez

, 514 U.S. 549 (1995). To the8 Section 924(c)(1) provides that any person who uses or carries a firearm

during or in relation to a drug trafficking crime shall be imprisoned for five

years, in addition to the punishment provided for the drug trafficking offense.

If the firearm is a machinegun, however, the defendant shall be sentenced to an additional 30 years' imprisonment. See 18 U.S.C. § 924(c)(1).

21 contrary, we recently held that § 922( o ) is constitutional. S ee

United States v. Knutson , 113 F.3d 27 (5th Cir. 1997).

V.

Gonzales, Jr., and Gonzales, Sr., urge us to hold that their

indictments were fatally defective because they did not expressly

charge the defendants with using a machinegun during and in

relation t o a drug trafficking crime. S ee 18 U.S.C. § 924(c). 8

Because the defendants we re not charged with using a machinegun,

they entreat this court to vacate their thirty-year sentences for

using a machinegun in violation o f § 924(c). In a similar vein,

Olivares claims the arraignment proceedings were unconstitutional

because he was not afforded fair notice of the charges against him.

Therefore, Olivares also urges us to vacate his sentence. We

decline these invitations.

A.

An indictment is constitutionally sufficient if it enumerates

each element of the offense, notifies the defendant of the charges,

and provides him with a double jeopardy defense against future

prosecutions. S ee Hamling v. United States

, 418 U.S. 87, 117

(1974); United States v. Nevers , 7 F.3d 59, 62 (5th Cir. 1993).

The defendants cl aim that the indictment did not enumerate every22

element of the offense as required by Hamling , because it did not

expressly charge them with using a machinegun. We recently held

that the thirty-year sentence for machinegun use is a sentence

enhancement, however, rather than a separate offense. See United

States v. Branch

, 91 F.3d 699, 738-40 (5th Cir. 1996), cert.

denied , 117 S. Ct. 1466-67 (1997). Accordingly, it need not be

charged in the indictment in order to be constitutional. I d

.

at 740.

In addition, the defendants argue that they were deprived of

fair notice of the charges against them, in violation of Hamling

,

because they were not expressly c harged with using a machinegun.

This claim is also meritless. An indictment provides fair notice

if it states the specific facts and circumstances surrounding the

offense in sufficient detail to inform a defendant of the charges.

See Hamling , 418 U.S. at 117-18; Nevers , 7 F.3d at 63. Moreover,

we will not invalidate an indictment for purely technical errors,

but only for errors that mislead the defendant to his prejudice.

See Nevers , 7 F.3d at 63.

The defendants were fully apprised that they had been charged

with using a firearm during and in relation to a drug trafficking

crime, in violation of § 924(c). Insofar as the indictment

included all the elements of the offense, it adequately notified

the defendants of the charges against them. Indeed, insofar as

they were charged under § 924(c)(1), they may be charged with

knowledge of the machine gun enhancement, which is expressly

mandated by the plain language of the statute. While a statutory23

citation in the indictment cannot substitute for a statement of the

elements of the offense, it may reinforce other references in the

indictment to establish notice of the charges. U nited States v.

Campos-Asencio , 822 F.2d 506, 508 (5th Cir. 1987).

Finally, the defendants simultaneously were charged with

possession of an unlawful machinegun in violation of § 922( o ).

Therefore, they cannot credibly claim that they were surprised by

the invocation of the machinegun sentence enhancement after trial,

and they have suffered no prejudice.

B.

Olivares contends that the failure to charge the defendants

with using a machinegun rendered the arraignment unconstitutional,

because he did not receive fair notice of the charges against him

at the arraignment. We find no merit in this claim.

An arraignment must be conducted in open co urt and must

consist of reading the indictment to the defendant or stating the

su bstance of the charge to him. S ee F ED

. R. C RIM

. P. 10. “The

interests at issue are the defendant's right to know of the charges

and the right to have adequate information from which to prepare a

defense.” U

nited States v. Correa-Venture

, 6 F.3d 1070, 1073 (5th

Cir. 1993). Because the machinegun enhancement is not an element

of the offense, and need not be included in the indictment, it is

not a necessary element of the arraignment under rule 10. Olivares

knew he was charged with violations of § 924(c), and he possessed

adequate information t o prepare his defense. The Due Process9 In Solem

, the Court explained that claims of disproportionate punishment

should be analyzed by considering three objective factors: (1) the gravity of the

offense and the severity of the punishment; (2) the sentences imposed on other

criminals in the same jurisdiction; and (3) the sentences imposed for commission

of the same offense in other jurisdictions. S ee Solem

, 463 U.S. at 290-92.

Although the Solem criteria were articulated in a challenge to a state sentence,

federal courts have applied a similar analysis in reviewing federal sentences.

See United States v. O'Banion , 943 F.2d 1422, 1432 (5th Cir. 1991).

24 Clause requires no more.

Indeed, since the thirty-year sentence for use of a machinegun

is merely a sentence enhancement, rather than a separate offense,

the Due Process Clause is satisfied if, as here, the defendant is

notified of the sentence enhancement prior to sentencing, rather

than trial. S ee United States v. Anderson

, 987 F.2d 251, 257 (5th

Cir. 1993).

VI.

Olivares argues that the provision of § 924(c) mandating a

thirty-year sentence enhancement for using or carrying a machinegun

during and in relation to a drug trafficking crime is a cruel and

unusual punishment, prohibited by the Eighth Amendment. This is an

issue of first impression in this circuit.

A.

The Eighth Amendment prohibits sentences that are grossly

disproportionate to the crime

. See Solem v. Helm , 463 U.S. 277,

288 (1983). 9 This constitutional principle is tempered, however,

by the corollary proposition that the determination of prison

sentences is a legislative prerogative that is primarily within the

province of legislatures, not courts. S ee Rummel v. Estelle

,1 0 Compare Harmelin

, 501 U.S. at 962-94 (opinion of Scalia, J.) (arguing

that the Eighth Amendment does not permit proportionality review by the courts)

with id

. at 997-1005 (opinion of Kennedy, J.) (arguing that the Eighth Amendment

permits “narrow” proportionality review) and id. at 1009-27 (opinion of White,

J.) (arguing that prop ortionality review is central to the Eighth Amendment).

See also McGruder v. Puckett , 954 F.2d 313, 315-16 (5th Cir. 1992) (discussing

the evolution of the proportionality doctrine and its culmination in Harmelin ).

25 445 U.S. 263, 274-76 (1980). Indeed, in its most recent pronouncement concerning the proportionality doct rine, the Supreme Court

r econsidered the constitutional foundation of the principle that

disproportionate punishments are proh ibited by the Eighth Amendment. S ee Harmelin v. Michigan

, 501 U.S. 957 (1991). 1 0 It is

evident, therefore, that the contours of the proporti onality

principle are less than pellucid.

The Supreme Court has equivocated on the historical pedigree

and proper scope of the Eighth Amendment proportionality doctrine,

but it has never retreated from the fundamental principle that the

determination of sentences is primarily a legislative prerogative.

See Harmelin

, 501 U.S. at 998 (opinion of Kennedy, J.). Therefore,

the courts must grant “substantial deference to the broad authority

that legislatures necessarily possess in determining the types and

limits of punishments for crimes.” S olem

, 463 U.S. at 290; accord

Harmelin

, 501 U.S. at 999 (opinion of Kennedy, J.) (citing cases).

Accordingly, we may not substitute our own judgment concerning the

appropriateness of a particular sentence. See Solem , 463 U.S. at

290 n.16; accord United States v. O'Banion

, 943 F.2d 1422, 1433

(5th Cir. 1991).

Whatever the precise contours of the proportionality doctrine,

therefore, it is firmly established that successful challenges to11 See

, e.g.

, Smallwood v. Johnson

, 73 F.3d 1343, 1347 (5th Cir.), cert.

denied

, 117 S. Ct. 212 (1996) ; United States v. Fisher

, 22 F.3d 574, 579-80 (5th

Cir. 1994); Bradford v. Whitley

, 953 F.2d 1008, 1012 (5th Cir. 1992). While we

ha ve stated, on at least one occasion, that H armelin repudiated the

proportionality doctrine entirely, see United States v. Cooks

, 52 F.3d 101, 105

(5th Cir. 1995), that suggestion is contrary to M cGruder

, the governing

interpreta tion of H armelin in this circuit. S ee McGruder

, 954 F.2d at 316

(holding that the proportionality doctrine survived Harmelin ); Bradford

, 953 F.2d

at 1012 (observing that Harmelin preserved the proportiona lity doctrine but

substantially modified the analysis).

In McGruder

, we held that the plurality opinion authored by Justice Kennedy

constituted the least common denominator among a majority of the Harmelin Court,

and we adopted its methodology as the rule governing claims of disproportionate

punishment in this circuit. S ee McGruder

, 954 F.2d at 316. Under that analysis,

the essence of the inquiry is the nexus between the offense and the punishment,

and “intrajurisdictional and interjurisdictional analyses are appropriate only

in the rare case in which a threshold comparison of the crime committed and the

(continued...)

26 the proportionality of punishments should be “exceedingly rare.”

See

, e.g.

, Harmelin

, 501 U.S. at 1001 (opinion of Kennedy, J.);

Solem , 463 U.S. at 289; Hutto v. Davis , 454 U.S. 370, 374 (1982);

Rummel , 445 U.S. at 272. This is not such an extraordinary case.

B.

We have concluded that the proportionality principle survives,

in the aftermath of Harmelin

, only in a very circumscribed form.

When adjudicating an Eighth Amendment proportionality challenge,

we must first make a threshold comparison between the gravity of

the charged offense and the severity of the sentence. Only if we

conclude that the sentence is “g rossly disproportionate” to the

offense may we proceed to consider whether it offends the Eighth

Amendment, under the test announced in Solem

. If we conclude that

the sentence is not “grossly disproportionate,” o ur inquiry is

finished, and we must defer to the will of Congress. S ee McGruder

v. Puckett , 954 F.2d 313, 316 (5th Cir. 1992). 11(...continued)

sentence imposed leads to an inference of gross disproportionality.” H armelin

, 501 U.S. at 957 (opinion of Kennedy, J.).

1 2 We have observed that Rummel survived the subsequent decision in Solem

and controls in all cases that are not “clearly distinguishable” from Rummel

. See Smallwood

, 73 F.3d at 13 47; Burt v. Puckett , 933 F.2d 350, 352 (5th Cir.

1991).

27 To determine whether a sentence is “grossly disproportionate,”

we look to Rummel v. Estelle

, 445 U.S. 263 (1980), as a benchmark. 12

I n R ummel

, the defendant had been sentenced to life imprisonment

following his conviction for obtaining $120.75 by false pretenses,

pursuant to a “recidivist statute” providing a mandatory sentence

of life imprisonment for any defendant convicted of three felonies.

Noting that the line-drawing function inherent in the determination

of punishment is a matter within the discretion of the legislature,

the Court held that the life sentence was not so grossly disproportionate as to offend the Eighth Amendment. Id . at 284-85.

In McGruder

, we observed that Rummel pro vides a litmus test

for c laims that a particular sentence is “grossly disproportionate.” S ee McGruder

, 954 F.2d at 317. McGruder was convicted of

burglary and sentenced to life imprisonment without possibility of

parole under a habitual offender statute. We held that, when

measured against Rummel

, McGruder 's sentence was not grossly

disproportionate, observing that McGruder's convictions for armed

robbery, escape, and burglary were more severe than the forgery and

fraud offenses for which Rummel had been convicted. Insofar as the

Supreme Court had held Rummel's sentence constitutional under the

Eighth Amendment, we concluded that M cGruder's sentence was1 3 As Justice Scalia observed in criticizing the proportionality doctrine,

“the standards seem so inadequate that the proportionality principle becomes an

invitation to imposition of subjecti v e values.” H armelin

, 501 U.S. at 986

(opinion of Scalia, J.).

28 lik ewise constitutional, holding that his life sentence was not

“grossly disproportionate” as a matter of law. Id

.

As our analysis in McGruder demonstrates, Rummel establishes

a benchmark for claims of disproportionate punishme nt under the

Eighth Amendment. S ee Smallwood v. Johnson

, 73 F.3d 1343, 1347-48

(5th Cir.), cert. denied

, 117 S. Ct. 212 (199 6). We acknowledge

that the distinction between constitutional sentences and grossly

disproportionate punishments is an inherently subjective judgment,

defying bright lines and neutral principles of law. 13 Nevertheless,

we can say with certainty that the life sentence approved in Rummel

falls on the constitutional side of the line, thereby providing a

litmus test for claims of disproportionate punishment in violation

of the Eighth Amendment.

C.

Measured against the Rummel benchmark, the thirty-year

sentence enhancement for using or carrying a machinegun during and

in relation to a drug offense is plainly constitutional. First,

the gravity of the offense is substantially greater than were the

crimes punished in Rummel

. We have recognized that machineguns are

uniquely associated with drug trafficking and crimes of violence,

posing a grave threat to the public. S ee Uni ted States v. Kirk

,

105 F.3d 997, 1000-02 (5th Cir. 1997) (opinion of Higginbotham, J.)1 4 The Supreme Court has observed that “[a]s the criminal laws make clear,

non-violent crimes are less serious than crimes marked by violence or the threat

of violence.” Solem , 463 U.S. at 292-93.

1 5 Proportionality review is particularly problematic when it is invoked

to draw quantitative SS rather than qualit ative S S distinctions among punishments.

For example, the Supreme Court has applied the proportionality doctrine to review

the con stitutionality of capital punishment, because “'[t]he penalty of death

differs from all other forms of criminal punishment.'” R ummel

, 445 U.S. at 272

(quoting Furman v. Georgia

, 408 U.S. 238, 306 (1972) (opinion of Stewart, J.)).

In contrast, the Court has been reluctant to apply the proportionality doctrine

(continued...)

29 (discussing the threat posed by machineguns and the drug trade),

petition for cert. filed

, 65 U.S.L.W. 3756 (U.S. May 5, 1997)

(No. 96-1759). Like the convictions for armed robbery in M cGruder

,

use of a machinegun during and in rel ation to a drug trafficking

offense is a crime of violence per se

, warranting severe penalties.

See McGruder

, 954 F.2d at 316-17. Measured against the convictions

for fraud and forgery that formed the basis of Rummel's sentence,

which pale in comparison to the violent crimes in the instant case,

we are satisfied that the gravity of the offense warrants a severe

punishment. 14

Furthermore, the severity of the punishment is not excessive,

as evidenced by a comparison to the Rummel benchmark. In Rummel

,

the Court upheld the constitutionality of a life sentence imposed

on a non-violent criminal pursuant to a recidivist statute. S ee

Rummel

, 445 U.S. at 285. Likewise, in M cGruder we upheld the

constitutionality of a life sentence without possibility of parole

under a habitual offender statute. S ee McGruder

, 954 F.2d at 317.

In contrast, the sentence enhancement at issue in the instant case

merely imposes a sentence of thirty years for using or carrying a

machinegun during and in relation to a drug trafficking offense. 15(...continued)

to prison terms, because “our decisions recognize that we lack clear objective

standards to distinguish between sentences for different terms of years.”

Harmelin

, 501 U.S. at 1001 (opinion of Kennedy, J.). Under these circumstances,

we must be particularly deferential to legislative determinations of sentences.

See Hutto v. Davis , 454 U.S. 370, 373-74 (1982) (per curiam).

1 6 See Solem

, 490 U.S. at 290 n.16 (“In view of the substantial deference

that must be accorded legislatures and sentencing courts, a reviewing court

rarely will be required to engage in extended analysis to determine that a

sentence is not constitutionally disproportionate.”); United States v. Martinez

, 967 F.2d 1343, 1 347-48 (9th Cir. 1992); s ee also United States v. Duerson

, 25 F.3d 376, 384 (6th Cir. 1994) (citing United States v. Elder , Nos. 91-5605,

91-5606, 1992 WL 42346 (6th Cir. Mar. 3, 1992) (unpublished) (holdi ng the

machinegun sentence enhancement constitutional)); United States v. S antos

, 64 F.3d 41, 45-47 (2nd Cir. 1995) (holding the silencer sentence enhancement

under § 924(c) constitutional), vacated on other grounds

, 116 S. Ct. 1038 (1996).

30 Accordingly, the thirty-year sentence enhancement for using or

carrying a machinegun during and in relation to a drug trafficking

crime is not “grossly disproportionate” to the gravity of the

offense, when it is measured against the Rummel benchmark. The

gravity of the offense is greater, and the penalty less severe,

than were the life sentences upheld against Eighth Am endment

challenges in Rummel and McGruder

. Consequently, our inquiry is at

an end. 16

VII.

Claiming that the machinegun was not admitted into evidence at

trial, Gonzales, Jr., argues tha t the district court reversibly

erred by allowing jurors to inspe ct it during deliberations.

Following the verdict, the district court denied Gonzales's motion

for judgment of acquittal.

A.

This court takes a dim view of permitting jurors to consider31

items that were not properly admitted into evidence. “It is firmly

established in this circuit that a defendant is entitled to a new

trial when extrinsic evidence is introduced into the jury room

'unless there is no reasonable probability that the jury's verdict

was influ enced by the material that improperly came before it.'”

United States v. Luffred

, 911 F.2d 1011, 1014 (5th Cir. 1990)

(citation omitted); accord United States v. Ruggiero

, 56 F.3d 647,

652 (5th C ir.), c ert. denied

, 116 S. Ct. 397, and cert. denied

,

1 16 S. Ct. 486 (1995). There is a rebuttable presumption of

prejudice; consequently, the conviction must be reversed unless the

government establishe s that the error was harmless. R uggiero

,

56 F.3d at 652; Luffred

, 911 F.2d at 1014. We need not reach this

issue, however, if the machinegun was properly admitted into

evidence.

B.

When the machinegun was first introduced by the go vernment,

defense counsel raised a chain of custody objection, and the court

reserved a ruling on the question pending the remaining testimony.

The issue did not arise again until the jury requested the weapon,

at which time defense counsel renewed his objection, claiming that

the weapon had never been admitted into evidence. On the contrary,

the government responded that the chain of custody had been proven.

After considering these arguments, the court overruled the

objection and permitted the jury to inspect the machinegun.

This d ecision was tantamount to an implicit ruling that the1 7 Although we are satisfied that the weapon was admissible, we express no

opinion as to whether the district court abused its discretion by reserving its

ruling on the chain of custody objection until jury deliberations had commenced,

as Gonzales, Jr., does not raise this issue on appeal.

32 chain of custody had been proven and the evidence was admissible.

We review the admission of evidence only for abuse of discretion.

See United States v. Royal

, 972 F.2d 643, 648 (5th Cir. 1992).

After reviewing the record, we are sa tisfied that the government

introduced sufficient testimony to establish the chain of custody,

and the court did not abuse its discretion by admitting the

machinegun into evidence. 17

The instant case is distinguishable from Luffred , therefore,

because the machinegun was properly admitted into evidence before

it was submitted to the jury during deliberations. Consequently,

the weapon was not “extrinsic evidence,” and Luffred is inapposite.

Whereas the Luffred jury inadvertently obtained extrinsic evidence,

in the instant case the court expressly ordered that the machinegun

be submitted to the jury. Under these circumstances, the court did

not abuse its discretion in permitting the jury to inspect the

machinegun.

C.

Even assuming arguendo that the district court erred in

submitting the machinegun to the jury, the error was harmless. In

determining whether the intro duction of extrinsic evidence was

harmless, we must consider its content, the manner in which it came

before the jury, and the weight of the evidence offered against the1 8 Gonzales, Jr., cites Luffred for the proposition that the mere fact that

the jury requests to consider extrinsic evidence renders it per se prejudicial.

Luffred

, 911 F.2d at 1014. L uffred must be limited to its unique facts, however.

The extrinsic material at issue there was a chart that illustrated a series of

transactions, implying relationships that were not suppor ted by the evidence.

In contrast, the machinegun at issue in the instant case was physical evidence,

and its submission did not introduce any inherently inadmissible or prejudicial

material into the jury's deliberations.

33 defendant. Ruggiero , 56 F.3d at 653; Luffred , 911 F.2d at 1014.

The government introduced overwhelming evidence to prove that

the machinegun had been used during and in relation to the drug

tra fficking crime, including the testimony of Garcia, who confronted Olivares as he drew the machinegun, and Meisel, who

discovered the weapon in the pool table. Likewise, the government

introduced the statement of Gonzales, Jr., who claimed to be the

owner of the machinegun following his arrest.

Moreover, an ATF agent identified the wea pon and testified

that the semi-automatic rifle had been modified into an automatic

weapon. Finally, a photograph of the machinegun was submitted to

the jury. Under these circumstances, there is no reasonable

possibility that the introduction of the machinegun influenced the

verdict. 18

VII.

Gonzales, Jr., argues that the district court erred in denying

his motion for new trial on the basis of newly discovered evidence,

alleging that the government did not disclose exculpatory evidence

before trial, as required by Brady v. Maryland

, 373 U.S. 83 (1963).

We reject this argument.34 A.

We review Brady determinations de novo

. U nited States v.

Green , 46 F.3d 461, 464 (5th Cir.), cert. denied , 115 S. Ct. 2629

(1995). B rady violations require reversal only if there is a

“reasonable probability” that the outcome of the trial would have

been different if the evidence had been disclosed to the defendant.

See United States v. Bagley

, 473 U.S. 667, 682 (1985). A “reasonable probability” is established only when the failure to disclose

the evidence “could reaso nably be taken to put the whole case in

such a different light as to undermine confidence in the verdict.”

Kyles v. Whitley

, 514 U.S. 419, 435 (1995). Although this standard

does not require the defendant to establish that he would have been

acquitted had the evidence been disclosed, he must establish that

the suppression of exculpatory evidence by the government “'undermines confidence in the out come of the trial.'” I d. at 434

(quoting Bagley , 473 U.S. at 678).

B.

Donaciano Ortega (“Doni”), who pleaded guilty prior to trial,

allegedly told the police he did not believe that Gonzales, Jr.,

had been involved in the drug conspiracy. Based on this statement,

Gonzales, jr., claimed the government had sup pressed exculpatory

evidence.

Assuming arguendo that the alleged statement was exculpatory,

it does not merit a new trial, as Gonzales, Jr., suffered no1 9 At a hearing on the motion for new trial, the government hotly contested

the charge that it had concealed exculpatory information, insisting that Doni did

not exculpate Gonzales from the conspiracy. Furthermore, Doni admitted that his

opinion was not based on personal knowledge. The district court found that the

conflicting evidence was inconclusive, and it was not persuaded that Doni had

made exculpatory statements obligating the government to disclose the testimony.

Because we conclude that Gonzales has failed to demonstrate prejudice, however,

we need not consider whether the contested statements were subject to Brady

.

2 0 See also Westley v. Johnson

, 83 F.3d 714, 725 (5th Cir. 1996) (finding

no Brady violation where statements included in a suppressed offense report were

contained in other records and testimony), cert. denied

, 117 S. Ct. 773 (1997);

Allridge v. Scott

, 41 F.3d 213, 218 (5th Cir. 1994) (holding that the failure to

disclose cumulative evidence could not have affected the outcome of the trial).

35 prejudice. 19 First, the district court noted that other witnesses

testified that Gonzales, Jr., was not a member of the drug

trafficking conspiracy. We have consistently held that there is no

Brady violation where undisclosed evidence is merely cumulative.

See Spence v. Johnson , 80 F.3d 989, 995 (5th Cir.), cert. denied

,

117 S. Ct. 519 (1996). 20

Furthermore, th e evidence against Gonzales, Jr., was overwhelming. Fingerprints on the paper bag containing the cocaine

belonged to Gonza les, Jr. He made incriminating statements

following the arrest, claiming ownership of the cocaine and the

machinegun. Olivares testified that Gonzales, Jr., had owned the

machinegun. Given the weight of this evidence, the exclusion of

one equivocal statement by a co-con spirator does not undermine

confidence in the verdict, Kyles , 514 U.S. at 434-35, as there is

no reasonable probability that Gonzales would have been acquitted

if the exculpatory te stimony had been admitted, B agley

, 473 U.S.

at 682.

The judgments of conviction and sentence are AFFIRMED.