IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 91-8383

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UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

TOMAS BARKSDALE-CONTRERAS, LUIS MANUEL GONZALES-COPADO, FELIPE

CONTRERAS, JR., SALVADOR COPADO, JR., OSCAR GONZALEZ-MARCELINO,

ARTURO GONZALEZ, JR. AND ARMANDO BAEZA-DE ALBA,

DEFENDANTS-APPELLANTS.

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APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

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(September 1, 1992)

Before REYNALDO G. GARZA, DAVIS and BARKSDALE, Circuit Judges.

GARZA, REYNALDO G., Circuit Judge:

Defendants appeal their convictions from the Western District

of Texas on kidnapping, conspiracy and misprision charges. Finding

no error, we affirm.

On December 9, 1990, Jose Gaona ( Gaona) was intercepted at

gunpoint near his home in Acuna, Mexico by defendants Luis Manuel

Gonzalez-Copado (Gonzalez-Copado) and Armando Baeza-De Alba

(Baeza). After being struck, Gaona was driven to the International2

bridge at Del Rio, Texas. Still at gunpoint, Gaona was told to

keep quiet as they all crossed the border. Upon transporting Gaona

into Texas, the codefendants demanded $100,000 in ransom and then

proceeded to codefendant Tomas Barksdale-Contreras' (Barksdale)

home. Barksdale joined the group and they all proceeded to Lake

Amistad, Texas. On the way to the lake, Gonzalez-Copado slashed

Gaona's back fi ve or six times with a knife. At the lake,

Gonzalez-Copado threatened to kill Gaona while holding a pistol to

his head. Gaona was then driven to a one room apartment at a used

car lot and placed in a closet. Gonzalez-Copado again struck and

kicked Gaona. Appellant Felipe Contreras, Jr. (Contreras) had

joined the group by this time and had also struck Gaona. The

ransom demand was then raised to $400,000. Gonzalez-Copado phoned

Gaona's home and, at gunpoint, the victim was forced to relay the

demands to his wife repeatedly throughout the day. In the interim,

appellants Arturo Gonzale z, Jr. (Gonzalez) and Oscar GonzalezMarcelino (Marcelino) had joined the others. On two occasions

Gonzalez kicked the victim and Marcelino stated that Gaona should

be killed if his wife did not come up with the ransom. At around

6:00 P.M., Gaona was taken out to a shed at a nearby ranch and was

hung by t he neck for about seven seconds. The last codefendant,

Salvador Copado, Jr. (Copado) and Gonzalez arrived and stood guard

over Gaona. Copado, armed with a gun, beat the victim with a rope,

threatened him with a stone and removed his shoes to prevent

escape.

In the evening the kidnappers called Gaona's home and told a1 18 U.S.C. § 1201 provides in relevant part:

(a) Whoever unlawfully seizes, confines, inveigles

decoys, kidnaps, abducts, or carries away and holds for

ransom or reward or otherwise any person, except in the case

of a minor by the parent thereof, when:

(1) the person is willfully transported in

interstate or foreign commerce;

3 friend of his wife that they would kill Gaona if the money was not

forthcoming. Another ransom demand and death threat were made to

the victim's uncle later that evening. Gaona was taken to a motel

for the evening and present were Gonzalez-Copado, Barksdale, Baeza

and Contreras. Baeza and Contreras, armed, stood guard through the

night.

On the morning of December 10, Gaona was transferred to a

house in Del Rio, Texas. He was subsequently transferred to

various other locations. This continued through the next day,

u ntil federal officers located Gaona being guarded by Baeza j ust

off the lake. Gaona was held captive for fifty-five hours.

Analysis

Appellant Baeza now questions federal jurisdiction because the

indictment failed to track the kidnapping statute exactly. 18

U.S.C. § 1201(a). 1 The wording in the indictment charged that the

appellants "did knowi ngly and unlawfully seize, confine, kidnap,

abduct, and carry away and hold for ransom a person

... a fter he

was willfully transported in foreign commerce ...." The indictment

mistakenly asserted that the kidnapping took place after the victim

was transported in foreign commerce. Baeza does not explain why he

failed to raise this claim at the district level nor does he point2 We note that the jury charge did include instructions

that the kidnapping charge required the finding that it

preceded the transportation of Gaona in foreign commerce.

4 to any prejudice because of the wording of the indictment. The

test of the sufficiency of an indictment is whether it charges all

of the elements of the offense so that an accused may prepare his

defense and be pro tected against double jeopardy. H amling v.

United States

, 418 U.S. 87, 117 (1974). When the sufficiency of an

indictment is first challenged at the appellate level, the language

is liberally construed and reversible error will not be found

unless the wording cannot by reasonable construction charge a

crime. U nited States v. De La Rosa

, 911 F.2d 985, 985-89 (5th Cir.

1990), c ert. denied

, 114 L.Ed.2d 726 (1991); United States v.

Gaspard , 744 F.2d 438, 439 n.2 (5th Cir. 1984), cert. denied , 469

U.S. 1217 (1985); United States v. Cauble

, 706 F.2d 1322, 1333 n.25

(5th Cir. 1983), cert. denied

, 465 U.S. 1 005 (1984). 2 Moreover,

this court has held "that an indictment need not precisely track

the language of t he statute; it is sufficient if it informs the

defendant of every element of the offense charged." U nited States

v. Hernandez

, 891 F.2d 521, 524 (5th Cir. 1989), cert. denied

, 495

U.S. 909 (1990), ( citing United States v. Boyd , 885 F.2d 246 (5th

Cir. 1989)). We find the indictment sufficient.

Appellants challenge the sufficiency of evidence as well as

the admission of certain testimony. Deference to the district

court's admission of evidence is well settled. The verdict must be

affirmed if the court concludes that any reasonable trier of fact

could have found that the evidence established guilt beyond a5

reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979);

United States v. Anderson , 933 F.2d 1261, 1274 (5th Cir. 1991).

Gonzalez-Copado claims that there was insufficient evidence

against him. The record contradicts this and reveals overwhelming

evidence that the appellant was not only guilty of kidnapping but

was also the moving force behind the crime. First, he abducted

Gaona at gunpoint and forced Gaon a to communicate the ransom

demands. He personally beat and slashed him on several occasions

and assisted in temporarily hanging Gaona at the shed. This

evidence is plainly sufficient.

Appellants Barksdale and Contreras maintain that their

convictions cannot stand because their involvement began after

Gaona had been transported in foreign commerce. Barksdale adds

that there was no proof of his knowledge th at the abduction had

occurred in Mexico. The arguments lack merit. "[I]t is settled

law, however, that one who joins an ongoing conspiracy is deemed to

have adopted the prior acts and declarations of conspirators, made

after the formation and in furtherance of the conspiracy." U nited

States v. Cintolo

, 818 F.2d 980, (1st Cir.), cert. denied

, 484 U.S.

913 (1987). "[A] conspiracy is like a train[;] when a party

knowingly steps aboard he is part of the crew and accepts

responsibility for the existing freight [it is already carrying]."

United States v. Baines , 812 F.2d 41, 42 (1st Cir. 1987). "With

[a] conspiracy thus fully established, the declarations and acts of

the various members, even though made or done prior to the

adherence of some to the conspiracy become admissible against all6

as declarations or acts of co-conspirators in aid of the

conspiracy." United States v. United States Gypsum Co. , 333 U.S.

364, 393, 68 S. Ct. 525, 541, 92 L.Ed. 7461 (1948).

The entry into the conspiracy of Barksdale and Contreras after

the movement across the border does not bar holding them

responsible for the prior acts. Proof of transportation of a

kidnapped victim in interstate or foreign commerce is necessary to

establish federal jurisdiction. Knowledge by the kidnappers of the

crossing of boundaries is not a necessary element of the offense.

United States v. Bankston , 603 F.2d 528, 532 (5th Cir. 1979).

Gonzalez and Copado seek review of the credibility of evidence

regarding their entry into the United States with a gun without

detection. Determining the weight and credibility of evidence is

within the sole province of the jury. United States v. Pena , 949

F.2d 751, 756 (5th Cir. 199 1). An appellate court will not

supplant the jury's determination of credibility with that of its

own. U nited States v. Barron

, 707 F.2d 125, 127 (5th Cir. 1983).

A review of the record reveals that the findings of the jury were

not unreasonable.

Marcelino argues that he should not have been found guilty of

misprision after he was acquitted of kidnapping and conspiracy. He

contend s that hearsay allowed by the trial judge under the

coconspirator exception cannot be used if he is found innocent of

the conspiracy charges. An individual's acquittal of the

underlying crimes does not prevent him from being convicted of

misprision. S ee United States v. Davila

, 698 F.2d 715, 720 ( 5th7

Cir. 1983). Marcelino is still guilty of the affirmative act of

concealment o f the conspiracy. Federal Rule of Evidence 801

(d)(2)(A) provides that "a statement by a coconspirator of a party

during the course and in futherance of the conspiracy" is not

hearsay. The evidence does not become inadmissible because of the

acquittal of the defendant on the charge of conspiracy. The

standard used by the trial judge in determining the existence of a

conspiracy fo r purposes of admitting the statement of a

coconspirator is that of a preponderance of the evidence; the jury

must reach the higher standard of beyond a reasonable doubt.

B ourjaily v. United States

, 483 U.S. 171, 176 (1987). Thus the

trial judge only has to find that existence of the conspiracy was

more likely than not. Indeed, the admission of evidence is valid

even in the a bsence of a conspiracy charge, as long as the proof

showed a joint venture. U nited States v. Samientio-Rozo

, 676 F.2d

146, 149 (5th Cir. 1982). Additionally, the confrontation clause

of the Sixth Amendment is not violated here. The fact that the

coappellants chose not to testify does not negate the admissibility

of their out of court statements. B ourjaily

, 483 U.S. at 181-184;

Delaney v. United States , 263 U.S. 586, 590 (1924).

Gaona also testified th at he himself heard Marcelino state

that Gaona should be killed if the ransom was not paid. Gaona had

met Marcelino bef ore the kidnapping and could identify his voice

even though the victim was held in a closet. This is not hearsay

and is allowable as a pa rty-opponent admission. Fed.R.Evid.

801(d)(2)(A).8

The issues raised regarding misprision are also meritless. We

find evidence of concealment of the crime when the appellants made

false statements to police while participating in the kidnapping.

United States v. Hughes , 566 F.2d 674, 675 (9th Cir. 1977).

Baeza asserts that his misprision conviction was in violation

of his Fifth Amendment privilege against self -incrimination. He

did not, however, present any argument and has thus waived this

point. See Fed.R.App.P. 28(a)(4) (requiring argument of issue in

appellant's brief). Aside from presenting no argument, Baeza's

claim fails because of its untimeliness. The privilege is not

self-executing and the failure to assert it in a timely fashion

precludes seeking its protection for the first time on appeal.

Min nesota v. Murphy , 465 U.S. 420, 427-429 (1984); R oberts v.

United States , 445 U.S. 552, 559 (1980); Garner v. United States

,

424 U.S. 648, 653 (1976).

Appellants question the exclusion of impeachment testimony

regarding Gaona and drug trafficking. The trial judge granted the

government's motion in limine pr eventing discussion of drug

trafficking because it was seen as irre levant to the kidnapping

charge. The district court stated that if the defense intended to

bring the issue up later they should approach the bench so that

relevancy could be weighed at that time. The trial judge stated

that the defense could use any theory as long as there was evidence

to support it. Neither evidence nor witnesses were ever produced

to support this theory. "[T]rial judges retain wide latitude

i nsofar as the Confrontation Clause is concerned to impose9

rea sonable limits on cross-examination based on concerns about,

among other things, harassment, prejudice, confusion of the issues,

t he witness' safety, or interrogation that is repetitive or only

marginally relevant." Delaware v. Van Arsdall , 475 U.S. 673, 679

(1986). This court regards limits placed upon the scope or extent

of cross-examination to be a ma tter committed to the sound

discretion of the trial judge, and the decision is reviewed under

a standard of clear abuse of discretion. U nited States v. Duncan

,

919 F.2d 981, 988-989 (5th Cir. 1990), cert. denied

, 111 S.Ct. 2036

(1991). We find no abuse here.

Appellants also challenge two references to drug dealing made

by witnesses. The trial judge quickly addressed the jury and

stated that those allegations should not be considered. We find no

prejudice against the appellants. The jury was admonished swiftly

and firmly and the circumstances surrounding the kidnapping were

inflammatory on their own. The court presumes that a jury will

follow an instruction to dis regard inadmissible evidence unless

there is an overwhelming probability that the jury will be unable

to follow the instruction and there is a strong probability that

the effect is devastating. G reer v. Miller

, 483 U.S. 756, 766 n.8

(1987). We find no reversible error.

Appellants also allege error in the trial judge's instructions

to the jury that no inferences should be made regarding any

appellants' silence. The "no" was apparently missing from the

transcript. The government has assured us that "no" was actually

said and that the court stenographer has stated that indeed it was3 Counsel stated that he "tended to agree" that the

matter was merely the result of a typograpical error.

10 a t ypographical error. We observe that counsel for appellants,

when directly questioned abou t the matter, did not unequivocally

c ontradict the government's assertions that the error was merely

typographical. 3 Furthermore, there was no objection at the time

the instruction was given despite careful questioning as to the

presence of any objections by the district court. We are satisfied

that the matter was a typographical error and thus reject any

notions to the contrary.

Challenges to various sentencing calculations and several

other issues have been raised. After careful review of the law and

the record in this case, we conclude these matters are entirely

without merit.

For the reasons discussed above, the convictions and sentences

of appellants are in all respects

AFFIRMED.