United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

 No. 03-3364

___________

United States of America, * 

* 

Plaintiff/Appellee, * 

* 

v. * 

* 

Jaime Eleazar Bustos-Torres, * 

* 

Defendant/Appellant. * 

___________

Appeals from the United States

 No. 03-3365 District Court for the

___________ District of Minnesota.

United States of America, * 

* 

Plaintiff/Appellee, * 

* 

v. * 

* 

Armando Magallan-Alfaro, *

* 

Defendant/Appellant. *

 ___________

Submitted: May 13, 2004

Filed: February 2, 2005

___________
1

The Honorable Clyde H. Hamilton, United States Circuit Judge for the Fourth

Circuit, sitting by designation.

2

The Honorable Paul A. Magnuson, United States District Judge for the District

of Minnesota. 

2

Before WOLLMAN, HAMILTON,1

 and BYE, Circuit Judges.

___________

BYE, Circuit Judge.

A jury convicted Jaime Eleazar Bustos-Torres and Armando Magallan-Alfaro

of one count of conspiracy to distribute and possess with intent to distribute more

than 500 grams of methamphetamine, in violation of 21 U.S.C. §§ 846 and

841(b)(1)(A), and one count of aiding and abetting possession with intent to

distribute more than 500 grams of methamphetamine, in violation of 21 U.S.C.

§§ 846 and 841(a)(1) and 18 U.S.C. § 2.

On appeal, each defendant challenges the legality of the vehicle stop leading

to their arrest and appeals the district court's2

 denial of their motion to suppress the

fruits of the allegedly illegal stop. Mr. Alfaro also argues the district court erred

when it granted Mr. Torres's motion to be absent from the trial, admitted testimony

to the effect Mr. Alfaro asked the witness to sell drugs, denied Mr. Alfaro's motion

for judgment of acquittal based on insufficiency of the evidence, made extraneous

comments prejudicial to his defense, and refused to give him a minor-role reduction.

The legality of the initial stop and subsequent seizure of $10,000 from Mr.

Alfaro's pockets represents a close issue in this case. After carefully examining the

arguments and facts, we affirm on all grounds.
3

I

In 2002, Ramsey County (Minnesota) Deputy Sheriff Eric Bradt was a sevenyear veteran in the special-investigations unit. As such, he had received training in

narcotics recognition, detection, and enforcement.

A. Déjà Vu

On October 16, 2002, Deputy Bradt sat in an unmarked vehicle in the parking

lot of Awada's Lounge in West St. Paul, Minnesota. He was conducting surveillance

to execute an arrest warrant on a dangerous fugitive in an unrelated case. Though

Deputy Bradt was not personally familiar with Awada's, he knew other officers

considered it to be in an area of high drug traffic. Shortly after five in the afternoon,

as evening invaded the city, two separate scenes unfolded while he waited for his

suspect. 

First, a vehicle occupied by two Hispanic males pulled into a nearby parking

space. The driver emerged and made his way along one side of the establishment.

From around a corner, a stocky Hispanic male in a white cap, later identified as

Antonio Thelen, appeared and met briefly with the driver. As the driver and Mr.

Thelen conversed in front of the vehicle, Deputy Bradt observed the driver hand Mr.

Thelen money in exchange for a plastic “baggie.” Deputy Bradt could discern neither

the amount of the money nor the contents of the baggie, but he was certain, based on

his knowledge and experience, he had just witnessed a narcotics transaction. Because

he was on surveillance, however, he did not interfere with the transaction, but rather

observed Mr. Thelen disappear behind a corner toward Awada's door and the vehicle

drive off into the night.

In the few minutes that followed, Deputy Bradt received information that the

fugitive would not be appearing in the vicinity of Awada's. As Deputy Bradt then
3

In his rebuttal at oral argument, Mr. Alfaro argued for the first time that the

arrest preceded the pat-down search which uncovered the $10,000. We find no

evidence in the record to support this argument. Both at the suppression hearing and

at trial, officers testified they first stopped the vehicle, then searched the occupants,

then placed them under arrest, and finally conducted the vehicle search. See

Suppression Hearing Transcript at 42-44; Trial Transcript at 114-15, 148, 157-58,

165-66. 

4

terminated the surveillance, he observed a maroon Chevrolet Lumina occupied by

three Hispanic males enter the parking lot. Mr. Thelen reappeared from behind the

corner and approached the vehicle. This time, however, he joined the three men

inside the vehicle, so that Deputy Bradt could not discern what transpired between

them. Within a few minutes, Mr. Thelen reemerged and returned to Awada's, and the

vehicle again drove off into the streets. No longer committed by the surveillance and

suspecting another drug buy had taken place, Deputy Bradt followed the Lumina out

of the parking lot and called for backup. 

B. The Stop and Search

Backup joined Deputy Bradt within a mile of Awada's, and the officers made

an investigatory stop of the Lumina. Mr. Torres was the driver, Mr. Alfaro occupied

the front passenger's seat, and Jesus Sanchez sat in the back. The officers asked the

three men to come out of the car, conducted a pat-down search for weapons, and

discovered $10,000 in Mr. Alfaro's pockets. All three suspects were then arrested.3

With the assistance of Sergeant Craig Palmer, Sergeant Robert Pavlak conducted the

pat-down search of Mr. Alfaro. 

 

While conducting an inventory search of the Lumina, the officers discovered

a substance appearing to be cocaine in a film container on the front passenger's door

panel. During booking, officers also found, in Mr. Alfaro's possession, a key and a

receipt for room 320 of the Extended Stay America Hotel in Woodbury, Minnesota.
4

The parties' briefs reflect different amounts, but in every case the amount is

in the thousands of dollars. 

5

Deputy Bradt called the hotel and confirmed Mr. Alfaro was a registered guest.

Sergeant Roland Martinez then spoke with Mr. Alfaro in Spanish and received his

consent to search the room. 

The search of room 320 resulted in the seizure of a black gym bag containing

Mr. Torres's identification, a pair of pants in Mr. Torres's size, large amounts of cash,4

and twelve pounds of methamphetamine wrapped in cellophane packages. Officers

also discovered latent fingerprints on the drug packaging. One of these fingerprints

matched Mr. Torres's. 

The officers also discovered a zip-lock bag of cocaine hidden behind a dresser,

drug notes including a notation of $10,000, and a money-transfer receipt belonging

to Mr. Alfaro.

C. Unusual Pre-Trial and Trial Occurrences

Mr. Torres sought to enter a conditional guilty plea preserving the right to

appeal the denial of his pretrial motion to suppress. Pressing for an unconditional

plea, the government decided to try the case. Mr. Torres then preferred to stay in his

prison cell and entered a pretrial motion to be absent from the trial. The district court

granted the motion and directed from the bench that Mr. Torres receive a three-level

reduction for acceptance of responsibility pursuant to § 3E1.1 of the United States

Sentencing Guidelines (U.S.S.G.).

Pursuant to Federal Rule of Evidence 404(b), the government made a pretrial

motion to admit the testimony of Ramon Villanueva as evidence of Mr. Alfaro's prior

involvement in the drug trade. The district court denied the motion without prejudice.
6

At trial, the government made an offer of proof by putting Mr. Villanueva on the

stand outside the jury's presence. The court then permitted Mr. Villanueva to testify

about a conversation in which the defendants had hinted to him he could sell drugs

for them. 

As he was dismissing the jury for deliberations, the district court explained: 

Now members of the Jury, as you go to deliberations, the instructions

that have just been read to you will be provided to you along with the

original verdict forms, along with the indictment in the case. We will

inventory the exhibits, and the exhibits will be provided to you except

for the actual drugs that are involved in the matter. The drugs are

available for your examination, if you actually desire to do so, but we

would request that you make a special [sic] for that and we would

actually do the examination here in the courtroom. There are several

reasons for that, but one that leads them all, is frankly, they don't smell

very well in a small room. But you will have the rest of the exhibits

momentarily. 

Trial Transcript at 469 (emphasis added). 

D. Mr. Alfaro's Testimony

Mr. Alfaro testified as follows regarding his presence outside Awada's on the

evening of the arrest. He drove to Minnesota alone (apparently from California) to

buy two pick-up trucks; Mr. Torres, a friend from California, was to join him later.

Mr. Alfaro first stayed at another hotel for a week and then moved to the Extended

Stay in Woodbury. When Mr. Torres first arrived in Minnesota, he carried his

belongings in a small gym bag. About two days later, Mr. Torres brought to the hotel

room the black bag in which the authorities discovered the methamphetamine. Mr.

Alfaro testified he never looked inside the black bag and was unaware of its contents

until after the police search. 
7

He also testified regarding the $10,000 he had in his pockets the evening of the

arrest. He received $3,500 in Mexican pesos from a Mexican acquaintance as down

payment for one of the trucks he had come to buy. Another $5,000 was the payment

he had received from a woman in California who owed him the money and had just

refinanced her house.

Finally, Mr. Alfaro explained he and Mr. Torres left the hotel to look for trucks

at 9:00 a.m. the day of the arrest. At some point, Mr. Torres obtained the cocaine

later found in the car, and they picked up Mr. Sanchez, a friend of Mr. Torres's.

Because Mr. Torres received a call from someone inviting them to have a drink, they

stopped looking for trucks at about 5:00 p.m. and headed to Awada's. Mr. Alfaro did

not notice what, if anything, occurred in the back seat when Mr. Thelen boarded the

vehicle. 

E. Minor Role Reduction

Mr. Alfaro objected to the Pre-Sentence Report (PSR), arguing he was entitled

to a role reduction under U.S.S.G. § 3B1.2 for playing either a minor or minimal role

in the conspiracy. The district court found Mr. Alfaro was an average participant and

entered a sentence without the reduction.

II

The defendants' challenge to the stop and search poses an interesting analytic

problem and represents the closest issue in this case. After painstaking analysis, we

conclude Deputy Bradt and the other officers acted within the lawful confines of the

Fourth Amendment at each stage of their encounter with the defendants.

We review de novo a district court's legal conclusion that the authorities had

a reasonable suspicion justifying a Terry stop, and review for clear error a district
5

The government argues the defendants' encounter with Mr. Thelen created

probable cause. Perhaps the government is concerned about the legality of the

eventual search after the stop. If the defendants' conduct at Awada's raised probable

cause, then the officers could lawfully stop and search the defendants. A Terry stop

based on reasonable suspicion, on the other hand, justifies at most a stop and frisk.

Though we doubt the defendants' contact with Mr. Thelen gave rise to probable

cause, we do not reach the question. 

8

court's findings of fact, giving due weight to the inferences police drew from those

facts. United States v. Ramirez, 307 F.3d 713, 716 (8th Cir. 2002). Mr. Alfaro and

Mr. Torres challenge the legal conclusion Deputy Bradt possessed a reasonable

suspicion to stop the car.5

Law enforcement officers may make an investigatory stop if they have a

reasonable and articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1,

25-31 (1968). A reasonable suspicion is a “particularized and objective” basis for

suspecting the person who is stopped. United States v. Thomas, 249 F.3d 725, 729

(8th Cir. 2001). “Whether the particular facts known to the officer amount to an

objective and particularized basis for a reasonable suspicion of criminal activity is

determined in light of the totality of the circumstances.” United States v. Halls, 40

F.3d 275, 276 (8th Cir. 1994) (citation omitted). In short, the government must point

to specific, articulable facts that reasonably suggest a crime. Terry, 392 U.S. at 27.

In this case, the district court relied upon the following facts to arrive at the

conclusion Deputy Bradt had a reasonable suspicion to make the stop: (1) the

defendants and Mr. Thelen met in a location known to law enforcement as a hotbed

for drugs; (2) Deputy Bradt witnessed a vehicle pull into the parking lot, Mr. Thelen

emerge from Awada's and take part in an apparent drug deal with the occupants, and

the vehicle drive away, all within a few minutes; and (3) Deputy Bradt witnessed the

same sequence of events when the Lumina appeared, with the critical difference that
6

According to the government's brief, the defendants' “demeanor” also aroused

Deputy Bradt's suspicion. Because the word “demeanor” strikes us as vague, we

reach our conclusion without taking it into account. 

9

Mr. Thelen entered the car and Deputy Bradt could not see what took place there

between Mr. Thelen and the defendants.

The defendants argue the district court's reasoning transforms into a suspect

anyone who associated with Mr. Thelen after the first transaction. They ask whether

a person who happened to go into the men's room at the same time as he would also

come under reasonable suspicion. Perhaps more compelling is defendants' argument

Deputy Bradt absolutely would have lacked reasonable suspicion had the second

encounter not followed the first, even in a location known for drug sales.

Stimulating as it may be, we would not entertain the hypothetical over the

actual. The defendants' arrival at Awada's did follow the scene of a probable drug

deal. By then, a reasonable officer witnessing the first scene would have had a

reasonable suspicion Mr. Thelen dealt drugs from Awada's and sold drugs to the

occupants of the first vehicle. The essential question then is whether the occupants

of the second vehicle also should have come under suspicion. 

We think they should. The defendants' arrival and Mr. Thelen's career not only

followed but also largely reenacted in parallel the events of the first scene. Mr.

Torres and Mr. Alfaro entered the parking lot in an automobile, Mr. Thelen emerged

from around a corner and walked along one side of Awada's, one of the vehicle's

occupants made contact with him, he interacted with the occupants, and the car drove

off without satisfying any purpose at Awada's other than to meet briefly with a thensuspected drug dealer. As with the first scene, these events occurred within a matter

of minutes in a location notorious for drug traffic.6
10

A more useful hypothetical would have us suppose Mr. Thelen engaged in, not

one, but several transactions before the defendants appeared. In such a case, it would

be unreasonable to argue Deputy Bradt was unjustified in stopping the Lumina, for

after observing a series of deals, any reasonable officer would sensibly infer the

occupants of the Lumina were also buyers. While the inference is attenuated in this

actual case, it seems to us not an “inchoate and unparticularized suspicion or hunch”

but rather a “specific reasonable inference[] which [Deputy Bradt] was entitled to

draw from the facts in light of his experience.” Terry, 392 U.S. at 21. Put simply, an

experienced narcotics officer reasonably would have believed the second car, like the

first, was likely on the scene to buy drugs. And he could point to the location and the

first transaction as the articulable facts giving rise to his suspicion. Accordingly, we

hold the officers properly made a Terry stop of the defendants' vehicle prior to their

arrest.

Mr. Torres and Mr. Alfaro also challenge their arrest, but they do so only in

conclusory terms without specifying which of the officers' actions were unlawful. We

hold the officers had probable cause to make the arrest once they discovered Mr.

Alfaro was carrying $10,000 in his pockets while leaving the scene of a suspected

drug deal. Thus, the search of the vehicle was legal and all the evidence discovered

therein was admissible. 

To take issue with the officers' conduct, rather, one must turn back to the

discovery and seizure of the cash itself. During a Terry stop, “[w]hen an officer is

justified in believing that the individual whose suspicious behavior he is investigating

at close range is armed and presently dangerous to the officer or to others,” the

officer may conduct a pat-down search “to determine whether the person is in fact

carrying a weapon.” Terry, 392 U.S. at 24. Because weapons and violence are

frequently associated with drug transactions, it is reasonable for an officer to believe

a person may be armed and dangerous when the person is suspected of being involved

in a drug transaction. United States v. Robinson, 119 F.3d 663, 667 (8th Cir. 1997).
11

In this case, not only did the officers suspect the defendants had been involved in a

drug transaction, the officers also had to confront three unknown men in the early

evening in a place known for its drug activity. After considering the totality of these

circumstances, we conclude the decision to conduct the pat-down search was proper

under the Fourth Amendment. This conclusion, however, does not end the inquiry.

Rather, the issue narrows to whether Sergeant Pavlak, the officer who

conducted the search, was justified in seizing the cash in Mr. Alfaro's pockets. While

the “purpose of a pat-down search is not to discover evidence of crime, but to allow

the officer to pursue his investigation without fear of violence,” and while the search

must therefore “be strictly limited to that which is necessary for the discovery of

weapons which might be used to harm the officer or others nearby,” Minnesota v.

Dickerson, 508 U.S. 366, 373 (1993) (internal citations and quotations omitted),

officers may lawfully seize contraband they incidentally discover in “plain touch”

during a Terry frisk. 

In Dickerson, the Supreme Court established the “plain touch” or “plain feel”

concept as an analogue to the plain-view doctrine. Id. at 375-76. It is settled that an

officer, without a warrant, may seize an object in plain view provided the officer is

lawfully in the position from which he or she views the object, the object's

incriminating character is immediately apparent, and the officer has a lawful right to

access the object. Id. at 375. The plain-view doctrine “has an obvious application by

analogy to cases in which an officer discovers contraband through the sense of touch

during an otherwise lawful search.” Id. The Court described this analogy as follows:

If a police officer lawfully pats down a suspect's outer clothing and feels

an object whose contour or mass makes its identity immediately

apparent, there has been no invasion of the suspect's privacy beyond that

already authorized by the officer's search for weapons; if the object is

contraband, its warrantless seizure would be justified by the same

practical considerations that inhere in the plain-view context.
7

Despite voicing qualms about concurring in the majority opinion in Dickerson,

Justice Scalia used the broader word “evidence” interchangeably with “contraband.”

508 U.S. at 379-82 (Scalia, J., concurring).

12

Id. at 375-76 (emphasis added).

While Dickerson's holding refers specifically to contraband, we do not doubt

the plain-touch doctrine extends to the lawful discovery of any incriminating

evidence, not just contraband such as drugs. See United States v. Hernandez-Rivas,

348 F.3d 595, 599 (7th Cir. 2003) (tacitly recognizing plain-touch doctrine would

justify seizure of $10,000 in cash); United States v. Miles, 247 F.3d 1009, 1013 (9th

Cir. 2001) (“[I]f an officer feels an item that he recognizes as contraband or evidence,

that touch may provide probable cause for the arrest of the person and seizure of the

evidence.” (emphasis added)). Indeed, in the footnote that follows the Dickerson

block quotation we have just cited, the Court explains “[t]he police officer in each

case [plain view or plain touch] would have had a prior justification for an intrusion

in the course of which he came inadvertently across a piece of evidence incriminating

the accused.” Id. at 376 n.3 (emphasis added).7

 

We have established the officers in this case lawfully stopped the Lumina and

conducted the pat-down search of its occupants. In the course of frisking Mr. Alfaro

for weapons, Sergeant Pavlak came across two wads of bills in Mr. Alfaro's pockets.

There is no evidence, nor do the defendants argue, that Sergeant Pavlak rummaged

through Mr. Alfaro's pockets or otherwise expanded the circumscribed protective

search beyond the scope authorized by Terry. Rather, in the course of properly

frisking Mr. Alfaro for weapons, the Sergeant came across the objects which turned

out to be the stash. The only question remaining, therefore, is whether he was

justified in seizing these objects as they came into “plain touch.”
13

Dickerson requires the officer conducting a pat-down search have probable

cause to believe the item in plain touch is incriminating evidence. Dickerson, 508

U.S. at 376 (“Regardless of whether the officer detects the contraband by sight or by

touch . . . the Fourth Amendment's requirement that the officer have probable cause

to believe that the item is contraband before seizing it ensures against excessively

speculative seizures.”). To give rise to probable cause, the incriminating character

of the object must be immediately identifiable. Id. at 376. That is to say, the object

must be one “whose contour or mass makes its identity immediately apparent.” Id.

We have now distilled the question to its very essence: Were the bills, by their

mass and contour, immediately identifiable to the Sergeant's touch as incriminating

evidence? Pondering the question with a dose of common sense, we believe they

were. Sergeant Pavlak testified he found $6,000 in one of Mr. Alfaro's pockets and

$4,000 in another. Officers also testified the cash consisted of twenty, fifty, and onehundred dollar bills. Supposing Sergeant Pavlak first discovered the $4,000 wad and

the money consisted entirely of one-hundred dollar bills, he would have come across

a collection of forty bills, all in one pocket. We now recall the circumstances which

justified the Terry stop in the first instance: The officers saw the defendants leave the

scene of a suspected drug buy in an area known for drug traffic. Under these

circumstances, Sergeant Pavlak had probable cause to believe the wad of papers he

came across with his hand was indeed cash, and was likely evidence of the drug trade.

As a result, we affirm the district court's denial of the defendants' motion to suppress

the evidence.

III

A. Mr. Torres's Absence From Trial

After plea negotiations between the government and Mr. Torres broke down,

the district court granted his motion to be absent from trial. Rule of Criminal
14

Procedure 43 permits a defendant to waive his continued attendance at trial once the

trial has started. However, the Rule does not authorize a pre-trial waiver. Mr. Alfaro,

who failed to object below, argues the district court committed plain error by granting

the motion. He argues he was prejudiced by Mr. Torres's absence because the jury

had only one face to associate with the inculpatory evidence presented at trial.

Because Mr. Alfaro did not object to the court's ruling below, we review the

ruling for plain error only. See In re Grand Jury Subpoena as to C97-216, 187 F.3d

996, 998 (8th Cir. 1999); Fed. R. Crim. P. 52(b). To establish an error was plain, a

defendant must show the error was clear, obvious, and affected his substantial rights.

See United States v. Olano, 507 U.S. 725, 731-37 (1993); United States v. Tulk, 171

F.3d 596, 599 (8th Cir. 1999). Once the defendant establishes such an error occurred,

the court of appeals may, in the exercise of its sound discretion, reverse or vacate the

district court's judgment if the error seriously affected the fairness, integrity, or public

reputation of the judicial proceeding below. Olano, 507 U.S. at 732; Fed. R. Crim.

P. 52(b).

Even assuming Rule 43 is somehow meant to protect Mr. Alfaro's right to be

accompanied by his co-defendant in the courtroom, we need not examine the alleged

error, for we cannot fathom how Mr. Torres's absence prejudiced Mr. Alfaro at all,

much less to the degree required for a finding of plain error. The co-defendants were

charged with conspiracy and aiding and abetting. Had Mr. Torres pled or fled, the

government could have properly introduced evidence of their joint illegal activities

against Mr. Alfaro alone, and the district court would have properly permitted the

trial to proceed with him sitting alone at the defendant's table. In essence, then, Mr.

Alfaro challenges the joinder itself of the co-defendants; yet he fails to develop any

arguments in support of this challenge. We conclude Mr. Alfaro was not prejudiced

by Mr. Torres's absence and the district court therefore did not commit plain error. 
15

B. Mr. Villanueva's Testimony

At trial, Mr. Villanueva testified regarding a casual conversation he had with

the defendants, during which they “were telling me that if I could sell drugs, but I said

that I couldn't because I did not know any body.” Trial Transcript at 193-94. He

added he permitted the defendants to park automobiles in his property and to register

vehicles under his address. Mr. Alfaro objected to this testimony and now appeals

its admission arguing it was unduly prejudicial and inflammatory.

We review for abuse of discretion a district court's admission of evidence of

prior bad acts under Federal Rule of Evidence 404(b). United States v. Shoffner, 71

F.3d 1429, 1432 (8th Cir. 1995). Rule 404(b) provides a court may admit “evidence

of other crimes, wrongs, or acts” for the purpose of proving “motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Though such evidence is not admissible to prove the character of a person in order

to show a propensity for criminality, id., we have held repeatedly Rule 404(b) is a rule

of inclusion. United States v. Butler, 56 F.3d 941, 944 (8th Cir. 1995). Thus, we

reverse “only when it is clear that the evidence has no bearing on the case.” Shoffner,

71 F.3d at 1432 (quotation and citation omitted).

In this case, an element of each charged offense was Mr. Alfaro's knowledge

or intent. Accordingly, the cornerstone of his defense was mere presence – a denial

that he knew anything about the drugs in Mr. Torres's bag or intended to engage in

drug trafficking. Evidence of Mr. Alfaro's familiarity with drug dealing, therefore,

became highly probative of his mental state, and evidence of his association with Mr.

Torres in the drug trade was strong circumstantial evidence of Mr. Alfaro's

knowledge of the contents of the black bag. We hold the district court acted within

its sound discretion when it admitted the testimony into evidence.
16

C. Sufficiency of the Evidence

In reviewing the sufficiency of the evidence, we view the evidence in the light

most favorable to the verdict, resolving evidentiary conflicts in favor of the

government, and accepting all reasonable inferences (drawn from the evidence)

supporting the verdict. United States v. Espino, 317 F.3d 788, 792 (8th Cir. 2003).

In a nutshell, we affirm if a reasonable juror could have found the defendant guilty

beyond a reasonable doubt. United States v. Harmon, 194 F.3d 890, 892 (8th Cir.

1999).

We hold the evidence supports the jury's verdict. First, the government argued

Mr. Alfaro had constructive possession of the drugs found in room 320, the room he

shared with Mr. Torres. The room was registered in Mr. Alfaro's sole name, and he

possessed the hotel receipt and room key at the time of his arrest. 

In addition, there was strong circumstantial evidence Mr. Alfaro conspired with

Mr. Torres to distribute drugs. In room 320, officers found a bag of cocaine behind

a dresser, drug notes in Mr. Torres's gym bag, drug packaging (cellophane) on an

open counter, a money-transfer receipt belonging to Mr. Alfaro, and thousands of

dollars in cash – all this in addition to the twelve pounds of cellophane-wrapped

methamphetamine found in Mr. Torres's sports bag. At the time of his arrest, Mr.

Alfaro possessed $10,000 in cash and was sitting next to a canister of cocaine found

in the vehicle's door panel. One of the drug notes in Mr. Torres's sports bag reflected

a sum of $10,000. 

Finally, Mr. Alfaro's testimony must have seemed utterly incredible to the jury.

He testified he traveled to Minnesota to look for and purchase two trucks. Because

one of the purchases was to be for an acquaintance residing in Mexico, the jury must

have been bewildered, to say the least, by his decision to travel clear to the Canadian

border to buy two trucks with $10,000 in cash. Furthermore, at the time of his arrest,
17

he had already spent more than a week at hotels in Minnesota. The jury may have

wondered how he could have profitably purchased the trucks with the expenses he

must have already incurred.

Mr. Alfaro's account of the evening of his arrest seems just as implausible.

According to his testimony, Mr. Torres, Mr. Sanchez, and he went to Awada's

because someone telephoned Mr. Torres inviting him for drinks. When Mr. Thelen

joined them in the car, he sat in the back seat with Mr. Sanchez. Still, Mr. Alfaro did

not notice what transpired in the back. We suspect the jury may have doubted Mr.

Alfaro's explanation for the visit to the Awada's when the party did not enter the

establishment to have their drinks. The jury may have also wondered how he missed

what took place immediately behind him in the car. 

We conclude the government presented more than sufficient evidence to

support the conviction.

D. The District Court's Extraneous Comment

Because Mr. Alfaro did not object to the judge's comment at the time it was

made, we review the comment for plain error only. See Grand Jury Subpoena, 187

F.3d at 998; Fed. R. Crim. P. 52(b). 

The cornerstone of Mr. Alfaro's defense was his denial of any knowledge of the

methamphetamine in room 320. When the judge remarked that methamphetamine

would not “smell well” in a small room, the remark indirectly undermined this

defense. If the comment registered with the jurors, they may have thought, “How can

Mr. Alfaro deny knowledge of the drugs if their smell would have been noticeable in

the hotel room?” On appeal, Mr. Alfaro argues the judge introduced into the case

prejudicial evidence which had not been admitted at trial. 
18

While we believe the challenged comment would have been better left unsaid,

we cannot say it rises to the level of plain error. Mr. Alfaro does not advance, nor do

we detect, any direct, circumstantial, or even atmospheric evidence the district court

consciously sought to send a signal to the jury. Instead, the comment reads more like

an inadvertent slip made during the course of explaining why the drugs would not be

sent to the jury room, absent a special request by the jury. More importantly, the

government introduced more than sufficient credible evidence showing Mr. Alfaro

was a knowing participant in the conspiracy and therefore knew about the drugs.

Even if the judge's comment registered with the jury and thus constituted harmful

error, we cannot say the error seriously affected the fairness, integrity, or public

reputation of the trial. 

E. Role Reduction

A district court's factual determination of the defendant's role in the offense

may only be reversed if it is clearly erroneous. United States v. Lopez-Arce, 267 F.3d

775, 784 (8th Cir. 2001). It is the defendant's burden to prove that he warrants a role

reduction. Id. 

Mr. Alfaro argues he played a smaller role than Mr. Torres in the conspiracy

and therefore deserves a role reduction. Even a defendant decidedly less culpable

than his co-defendants, however, is not entitled to a reduction if he was deeply

involved in the offense of conviction. United States v. Alvarez, 235 F.3d 1086, 1090

(8th Cir. 2000). The evidence sustaining Mr. Alfaro's conviction clearly establishes

he was deeply involved in the conspiracy to distribute methamphetamine. Therefore,

the district court did not commit clear error when it denied Mr. Alfaro's motion for

a role reduction, and we affirm the sentence. 
19

IV

We affirm the district court's judgment in all respects. 

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