REVISED - August 9, 1999



## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 98-20438

_______________



### UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS



### JORGE GUSTAVO MUNERA-URIBE; SAMUEL MORENO-RAMOS;

MELQUECEDEC HURTADO MORENO; CARLOS A. RODRIGUEZESTUPINAN; SAMUEL VALOIS, a/k/a GERALD EDWIN JAMES,

Defendants-Appellants.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

August 5, 1999

Before SMITH, WIENER, and

BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge: *

A jury found Jorge Munera-U ribe

(“Munera”), Samuel Moreno-Ramos

(“Ramos”), Melquecedec Moreno

(“Moreno”), Carlos Rodriguez-Est u pinan

(“Rodriguez”), and Samuel Valois (“Valois”)

guilty of possession with intent to distribute

co caine, in violation of 21 U.S.C. § 841, and

of co nspiracy to do the same, in violation of

21 U. S.C. § 846. Defendants appeal their

convictions an d sentences on a variety of

grounds, including sufficiency of the evidence,

admissibilit

y of the evidence, alleged

government misconduct, and i ncorrect application of the sentencing gu idelines. We affirm.

I.

On August 11, 1997, at the directi on of

Special Agent Michael Dubet of the DE A

, confidential informant “Sonny” met with

Rosina Vinulla Russo, a codefendant not party to this appeal, at a Benningan’s Restaurant in

Houston, Texas. The purpose of this meeting

was to discuss the purchase of one kilogram of

cocaine. It was agreed that Russo would sell

Sonny the cocaine for $18,0 0 0. The

transaction would take place on August 13 at

the Westwood Mall.

On August 13, Dubet drove Sonny to the

Westward Mall. A meeting was held in

Russo’s gold Acura sedan among Sonny,

Russo, and Russo’s boyfriend Valois. At this

meeting, a follow-up meeting was arranged, to

be held at a Bennigan’s restaurant. Because of

police presence, this follow-up meeting was

move d to an adjacent Pappas Barbecue

restaurant. * Pursuant to 5 T H C IR. R. 47.5, the court ha sdetermined that this opinion should not be published a nd is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.2

At Pappas, Dubet, acting undercover, met

with Sonny, Russo, and Valois. A

codefendant not party to this suit took Dubet

into the restroom and showed h im t he

kilogram of cocaine that was for sale. Saying

he did not presently have enough money on

him, Dubet postponed the t ransaction’s

culmination, and the parties dispersed.

Shortl y t hereafter, Sonny called Valois,

indicating that he had the money. He met

Valois in the Pa ppas parking lot. This time,

Valois was the passenger of a silver Ford

Taurus, which was being driven by his brother,

Juan Valois. 1 In return for the money, Sonny

received one kilogram of cocaine. Juan Valois

left the s cene in his Taurus, Samuel Valois in

the Acura.

Deputy Sheriff William Tipps followed the

Taurus to an apartment complex at 4545 Cook

Road, where Juan Valois left the car and

entered apartment 712. Tipps kept an eye on

the apartment throughout the day. Eventually,

he saw Samuel and Juan Valois leave the

apartment complex together in the Taurus.

They drove to a Fiesta Food Mart, where they

met with Ramos. After a ten-minute

conversation, t hey shook hands and departed

their separate ways.

In September, Dubet directed Sonny to

contact Russo to set up another cocai ne purchase. Sonny and Russo arranged to meet

on September 18 at Houston’s Restaurant to discuss the potential drug transaction. Sonny

arrived at the r est aurant first, followed by

Valois and Russo. Russo and Valois agreed to

sell Sonny seven kilograms of cocai ne for

$119,000. After Sonny had shown Russo the

money, he was told that he would receive a phone call from them later in the day with

details on how to complete the transaction.

T his subsequent phone call informed Son n y that the drug transaction would be completed

at an Academy Sporting Goods store. When Russo and Valois had left Houston’s

Restaurant (in the Acura), surveillance units

followed them to Barne y’s Billiards, where

Russo was dropped off. Valois continued on

to the Hong Kong Food Market.

There, Officer Craig Thomas of the sheriff's

department saw a bla ck Isuzu Rodeo pull up

to the Acura. The driver of the Rodeo was a Hispanic male who appeared to be in his midthirties (later identified as Juan HernandezColon (“Hernandez”), a defendant not party to

this appeal). The passenger of the Rodeo,

Ramos, left the Rodeo and entered the Acura,

carrying a blue gym bag with him, later found

t o contain five kilograms of cocaine. The

Rodeo and the Acura then went their separate ways from the parking lot.

The Acura was followed back to Barney’s

Billiards, where Ram

o s left the vehicle and

was replaced by Russo. At a Southwestern

Bell Telephone training center, Russo exited

the Acura and entered a van, which went to

the Academy parking lot, to meet with Sonny

to complete the drug tran saction arranged

earlier in the day. Valo is remained in the

Acura and followed Russo to Academy. On

arriving there, they were arrested.

A search of the Acura revea led two blue

gy m bags in the trunk: one containing five

kilograms of cocaine, another containing two.

After reading them their rights in Spanish,

Dubet interrogated Russo and Valois. He was

tol d that two of the kilograms were from one

source (a Colombian known as “Fecho,” later

identified as Mo r eno), and five from another

(“Sammy” or “El N egro ,” later identified as

Ramos).

Russo agreed to page Moreno and Ramos

to her cellular phone and allowed agents to

record th e subsequent conversations. Russo

told Moren o t hat she had his money and

wanted to purchase an additional four

kilogram s o f cocaine from him. 2 Moreno

1 Juan Valois is not a party to this appeal. He

will be referred to as “Juan Valois” throughout this

opini on; appellant Samuel Valois will be referred

to as “Samuel Valois” or simply as “Valois.” 2 As would be expected in a telephone conversation between drug traf

f ickers, the word “cocaine”

(continued...)3

agreed to meet Russo at a Fiesta Supermarket

to pick up his money. Moreno arri ved at the

Fiesta in a brown pickup truck. After he was

identified by Russo, Moreno was arrested. His

pager was seized, and it contained Russo’s cell

phone number.

When Ramos returned the page, Russo told

h im t hat his money (for the five kilograms of

cocain e he had provided) 3 was available.

Ramos too was told to meet Russo at the

Fiesta to collect his mone y. When Ramos

arrived at the Fiesta, he was id ent ified by

Russo and subse q uently arrested. As with

Moreno, Ramos’s pager was found to contain

Russo’s phone number.

Meanwhile, Thomas had followed the

Rodeo, seen driv en by Hernandez, to an

apartment complex at 8300 Sandspoint Drive.

At the apartment parking lot, Thomas lo st sight of Hernandez but did locate the Rodeo

and surveyed it for approximately three hours

until other law enforcement officers arrived.

Someti me after 9:00 p.m., when the other

officers arrived, Thomas observed a Hispanic

male (late r co nfirmed to be Hernandez)

descend the sta irs o f the apartment complex

from a second floor landing. As Hernandez

passed the officers, greetings were exchanged

in English. When Hernandez went to the

R odeo and unlocked its door, Th omas approached him and identified himself as a deputy sheriff. Thomas info rmed Hernandez

that he had been seen present at a drug

transaction earlier in the day and was therefore

suspected of drug trafficking. Hernandez was

read his rights, and Hernandez acknowledged

them in English.

After some init

ial denials, Hernandez

confessed to his involvement in the drug deal.

He told the officers that he had delivered drugs

for his friends “Carlos” and “Jorge,” who lived in the apartment complex. He then pointed to

the second floor landing, from which he had

descended, as the location of their apartment.

(...continued)

was never explicitly used by either Russo or

Moreno.

3 Again, the word “cocaine” was never used.4

While Hernandez was still being

questioned, DEA Agent Marty Fanning

observed another Hispanic male (l a ter

identified as Munera) descend the same stairs

as Hernandez had. They noticed Munera

make eye contact with t he handcuffed

H ernandez and saw him become visibly

nervous. They also noticed that Munera was

speaking on a cellular phone as he passed by,

in English. Fanning asked Hernandez whether

Munera was one of his two friends; Hernandez

replied “no.”

Nevertheless, Fanning approached Munera

and asked whet her his name was “Jorge.”

Munera replied “no” and told Fanning that his

n ame was “Gustavo.” When asked for

identification, Munera produced a driver’s

license with the name “Jorge Gustavo MuneraUribe.” When asked why he had lied, Munera

looked down at the ground and procla imed

“no hablo ingles.” This despite the fact that all

prior communicat i ons between the DEA and

Munera had been in English, along with

Munera’s conversation on his telephone.

A pat down o f Munera revealed a pager

and two cellular phones. At that poi nt,

Munera was handcuffed and informed that “he

was being det ained for narcotics

investigation.”

To determine the apartment from which

Munera and Hernandez had come, Fanning

asked Munera “which apartment his friend was

in.” Munera again responded: “no hablo

ingles.” Fanning pressed Munera to show the

officers his friend’s apartment, and he nodded

his head approvi ngly . He took them to the

second floor landing from which he and

Hernandez had descended.

Once t h ere, the officers were presented

with a choice of two apartm ents to search:

apartments 1714 and 1716. Munera indicated

(by pointing with his nose) th at apartm ent

1716 was the apart ment of his friends. The

agents knocked on that door, but no one

an swered. They opened the door via a key

they had found on Munera. No one was in the

apartment. Subsequent invest igation would

reveal that this s ame key opened the door to apartment 1714 as well.

Thomas noticed that the lights were on in

apartment 1714. Peering into its window, he

saw a man seated on a couch (later identi f ied

t o be Carlos Rodriguez). When the officers

knocked on the door, Rodri guez jumped up

and ran out of view. A woman, Ms. Hurtado,

opened the door, a nd t he officers identified

themselves. When asked whether anyone else

was inside the apartment, Hurtado said “no,”

immediately heightening the suspicions of the

officer s. The government contends that the

officers then asked for and received permission

(from Hurtado) to go inside the apartment and

have a look around.

T he officers entered with weapons drawn

and “announced” their presence . Not

receiving any response, they began to “clear”

the apartment, searching rooms, hallways, and

closets for hidden persons.

In one closet, an officer noticed a clear bag

on a shelf conta ining what appeared to be

cocaine, and a gym bag on t he floor. The

officer made a mental note of this observation

and proceeded with his search. Upon coming

to the apartment’s bedroom, the officers found

Rodriguez hiding under a bed.

The officers seized Rodriguez and returned

him to the living room

. Thereafter, they asked

for and received permission (from Hurtado) to

conduct a more thorough search, during which

they ret rieved the clear plastic bag and duffle

bag from the cl oset 

### S

S both were found to contain several kilograms of cocaine.

A DEA agent fluent in Spanish was

summoned to th e scene. He advised

H ernandez, the first of the three Sandsp oint

defendants to be arrested, of his rights.

Hernandez admi

t t ed his role in the cocaine

conspiracy: He had helped a Colombian deliver

cocaine in the Rodeo.

The same agent then advised Rodriguez and

Munera of their rights. Both of them init ially

denied k no wledge of the cocaine. The agent

told Munera tha t t hings would be easier for

him if he co operated and tol d the truth. He5

added t hat if Munera helped “bring in some

other people,” he might get a break. Munera

continued, however, to deny everything.

Munera and Rodriguez were taken to DEA

headquarters for processing.

While there, Munera asked to speak to the

DEA agent who had questioned him

previously, because he “want ed to tel l the

truth.” Munera confessed that he and

Rodriguez had been paid by a Colombian to

guard the cocaine in the apartment. Munera

then offered to talk to Rodriguez an d to

convince him to confess. Munera did this, and

Rodriguez finally admitted that he too had

been paid to guard cocaine in apartment 1714.

II.

Ramos, Mo reno, and Rodriguez claim

in sufficient evidence to convict. If a rational

jury could have found them guilty beyond a

reasonable dou bt based, then the evidence in

question was s ufficient. U nited States v. Gourley

, 168 F.3d 165, 168 (5th Ci r. 1999).

In undertaking this analysis, we view the

evidence and all reasona b le inferences

t herefrom in the light most favorable to the

verdict. Id. at 168-69.

“There are three el ements to possession

with the intent to distribute cocaine base:

(1 ) knowing (2) possession of the drugs in

question (3) with intent to distribute them.”

United States v. Suarez

, 155 F.3d 521, 524-25

(5th Cir. 1998). To affirm on this charge, we

must find that the evidence was sufficient to

show that each of

t hese elements has been

satisfied. U

nited States v. Miller

, 146 F.3d

274, 280 (5th Cir. 1998).

For a conviction of conspiracy under § 846,

the evidence must be sufficient show that

(1) at least two people had an agreement to

traffic in drugs; (2) the defendants were aware

of this agreement; and (3) the defendants

knowin gly and voluntarily participated in the

implementation of this ag reement. U nited

States v. Medina

, 161 F.3d 867, 872 (5th Cir.

1998)

. Mere presence at a crime scene, or

close association with con spirators, standing

alone, cannot rise to knowing participation in

a conspiracy as a matter of law. U nited States v. Maltos

, 985 F.2d 743, 746 (5th Cir. 1992).

Because defendants do not challenge the

existence of an agreement, a finding that the

e vidence was sufficient to convict o f

possession of cocaine with intent to distribute

goes a l o ng way in affirming the conspiracy

convictions: A guilty state of mind, combined

with incriminat ing activity on t he cocaine

distribution charge, pro xies for the knowing

an d voluntary participation element of the

conspiracy charge. Thus, if the subst antive

charge of possession with intent to distribute

cocaine survives challenge, the defendants can

escape a conspiracy conviction only if they are able to demonstrate that they thought they

acted alone, pur suant to no particular

agreement with anyone else.6 A.

The evidence was eas i ly sufficient to

support Ramos’s convictions. He was the one

who placed in Valois’s Acura the blue sports bag later found t o contain five kilograms

cocain e. Although there was no direct proof

that Ramos knew cocaine was in the bag, such

an inference is reasonably drawn, especially in

light of the large quantity of cocaine in

question.

Additionally, Ramos responded to a page

from codefendant R u sso t elling him to meet

her to pick up his porti on of the proceeds from

the sale of his cocaine. Of course, as would be

expected in a transaction among drug dealers,

the word “cocaine” was never explicitly used,

but Russo explained to the police that cocaine

was the subject of the c all. The jury had

be f ore it only the transcript of this phone call

an d evidence regarding its context (namely,

that the call was made by Russo for the

purpose of t elling Ramos that his proceeds

from that day’s cocaine deal we re available).

Under these circumstances, the jury had no

reason to believe that the call concerned

anything other than cocaine.

L a stly, Ramos was seen cavorting with

Valois. This constitutes further evidence that

Ramos and Valois were drug-dealing partners,

ad d ing to the reasonableness of the jury’s

verdict of guilty.

Ramos unsuccessfully attem pts to compare

his situ a tion to that in United States v.

Sacerio

, 952 F.2d 860 (5th Cir. 1992), in

which we held that two defendants associated

with a automobil e co ntaining cocaine could

not be considered drug deal i ng coconspirators. S ee id. at 864. But in

Sacerio, p olice officers needed to condu c t

three searches of the vehicle in question

before they were able to find the cocaine. Id.

During one such search , rather than appear

nervous or concerned, one defendant actually

fell asleep

. Id. Given that there was scant

reason to believe that defendants in Sacerio

knew that there were drugs in t heir car, we

could not find that their behavio r (namely,

driving an automobile that happened to contain

a hidden stash of cocaine) constituted knowing participation in a drug conspiracy. Id.

The instan t case is different. Ramos

personally carried a bag conta ining several

kilograms of cocaine from one car to another

. While not everyone can be expected to know

everything that is hidden in a car he happens to

be driving, it is reasonable to expect an

individual to know the contents of a gym bag

he is carrying 

### SS

especially when it is weighed

down by several pounds of contraband..

B.

Although admittedly creating a closer case,

the evidence is sufficient to sustain the verdicts

against Moreno as well. The government’s

main evidence against Moreno is the fact that

he too responded t o Russo’s page regarding

the pick up o f drug money. The ensuing

telephone conversation between Moreno and

Russo was, however, more incriminat ing than

that between Ramos and Russo, for Moreno’s

phone call discus sed the possibility of

providing additional amounts of cocaine fo r

sale. Moreno indicated to Russo that he could

not provide any more cocaine until he received

his money from t h e day’s earlier transaction.

Again, the transcript of thi s call is devoid of

any sp ecific mention of cocaine by name, but

it does cons t itute quite damning evidence in

light of Russo’s character i zation of the

purpose of the call. The t ranscript of this

recorded conversation, in conjunction with its

attendant circumstances, is by itself sufficient

to support the jury’s verdicts against Moreno

beyond a reasonable doubt.7 C.

The evidence is sufficient to sustain the

verdi ct rendered against Rodriguez. He was

found in one of the two apartments from

which Munera and Hernandez had exited.

When police knocked on the apartment door,

Rodriguez ran from view and hid under a bed.

The apartment in question contai ned over

eleven kilograms of cocaine, and eventually,

Rodriguez a dmit t ed that he had been paid to

guard it. All of this is sufficient to establish

Ro driguez’s guilt in the substantive offense

and in the conspiracy beyond a reasonable

doubt.

III.

Rodriguez and Munera claim a long list of

Fourth and Fifth

Amendment violations. We

review the district court’s find ings of fact on

th e se issues for clear error and its

interpretation and application of law de novo

. United States v. Carrillo-Morales

, 27 F.3d

1054, 1060 (5th Cir. 1994).

A.

Munera claims that hi s arrest at the

Sandspoint apartment parking lot was

unconsti t ut ional because it lacked probable

cause. Absent an exception, the fruits of an

arrest lacking probable cause must be

suppressed, which in thi s case would include

Mu nera’s statements, the personal property

found on him (the telephones, pager, and keys

to apartments 1714 and 1716), and arguably

even the cocaine seized in apartment 1714 (to

the extent Munera can show that it would not

have been uncovered but for his purportedly

illegal arrest). U

nited States v. Webster

, 162 F.3d 308, 324 (5th Cir. 1998), petition for

cert. filed (U.S. Apr. 29, 1999)

(No. 98-9212).

Probable cause exists if “the totality of facts

and circumstances within a police o fficer’s

knowled ge at the moment of the arrest are

sufficient for a reasonable person to conclude

that the susp ect had committed or was

committing an offense.” United States v. Ho

, 94 F.3d 932, 935-36 (5th Ci r. 1996).

Additionally, imputed to the arresting officer’s

knowledge are all the facts and circumstances

known to all law enforcemen t o fficials. Webster, 162 F.3d at 331.

The following were the fac ts and

circumstances of Munera’s arrest: The police

h ad just followed the Rodeo, involved in a

drug transaction, to an apartment complex.

The dr iver 

### S

S Hernandez 

### SS

had just been

arrested an d had told police that he had been

delivering drugs for h is friends Carlos and

Jorge, who lived in the complex. Hernandez

pointed to a second-floor landing as the

location of his friend s’ apartment. This

landing was also the location whence

Hernandez came prior to his arrest.

Munera was observed descending from the

landing. Police watched him make eye contact

with Hernandez, who was then in handcuffs,

and thereafter become visibly nervous. Police

asked Hernandez whether Munera was one of

t he friends he had spoken of; Hern andez

answered in the negative.

When asked by Fanning wh et her his name

was “Jorge,” Munera replied “no.” When

asked to produce identification, Muner a turned

over his driver’s license, which portray ed his

n ame to be “Jorge Gustavo Munera-Uri be.”

When asked why he had lied , Munera

proclaimed “no hablo ingles,” despite the fact

that all previous communication had been in

English and that police had overheard Munera

s peaking in English on a cellular phone as he

passed t hem by. A pat down of Munera

revealed a pager and a second cellular phone.

Pagers and cell phones have been held by other

circuits to consti tute tool s of the drug trade.

United S tates v. Cleveland , 106 F.3d 1056,

1061 (1st Cir. 1997); United States v. Sasson

, 62 F.3d 874, 886 (7th Cir. 1995). Under these

circumstances, the police had prob a ble cause

to believe that Munera was involved in t h e drug conspiracy with Herna ndez, and thus

their arrest of Munera at that point was entirely lawful.

B.

Regardless of the lawfulness of his a rrest,

Munera asserts that the “statement” he made

t o police at the Sandspoint apartment should

have b een suppressed. It is undisputed that

Munera was not informed of his rights under8

Miranda v. Arizona

, 384 U.S. 436 (1966),

until well after the search of apartment 1 7 14.

Nevertheless, the poli c e asked him to show

them where his “friends’” apartm ent was, prompting Munera to lead the officers to the

second floor landing, and there aft er pointing

with his nose to apartment 1716.

Munera is correct in noting that his gestures

constitute “statements” for Miranda purposes.

See United States v. Doe , 465 U.S. 605, 612

(1984); Fisher v. United States, 425 U.S. 391,

410 (1976). There are at l east two reasons,

however, why the acquisition of these

statements in the absence of Miranda warnings

does not undermine the jury’s verdicts against

Munera.

Firstly, as the gov e rnment notes, any

Miranda error is harmless in that the evidence

gathered therefrom was not necessary to

findi n g Munera guilty beyond a reasonable

doubt. S ee Unit ed States v. Paul , 142 F.3d

836, 843 (5th Cir. 1998). In additi on to the

circumstances of his arrest (his recognition of

Hernandez, his lying about his name, his lying

a bo ut his ability to speak English, and his

possession of instrumentalities of the drug

trade), there i s Munera’s subsequent

confession, made after he had been read his

rights.

Additionally, the “fruits” of his purportedly

unlawf u lly acquired statement would have

been inevitably

discovered by the police

anyway: The officers were already aware of

the landing from which Munera had

descende d, and they would most likely have

searched apartment 1 714 regardless of

Munera’s gestures (which were misleadingly

directed toward apartment 1716). See Nix v.

Williams , 467 U.S. 431, 448 (1983); U nit e d

States v. Lamas, 930 F.2d 1099 , 1102 (5th

Cir. 1991).

Secondly, poli c e may dispense with

Miranda warnings when necessary for their

protecti on. N

ew York v. Quarles

, 467 U.S.

649, 655 (1984); W

ebster

, 162 F.3d at 332.

The dangers t hat law enforcement officials

face f ro m drug dealers and the like are well

known, and it was important for the officers to identify precisely the apartm ent in which Munera’s cohorts could be found. 4 The facts

of the instant case call for the application of

this “safety exception” to Miranda, and thus it

is of no consequence that the officers failed to apprise Munera of his rights.

C.

4 As mentioned, in this case, Munera originally

led police to the wrong apartment number. This

could have had disastrous consequences for the

officers, should crim

inal occupants of 1714 have

decided to ambush the officers as they searched the

wrong apartment. It was precisely to guard against

such risks that the officers needed to know what

room Munera’s comrades were in.9

Munera challenges the legality of the search

of apa rt ment 1714 on the ground that the

officers lacked a warrant. S ee United States v.

Richard

, 994 F.2d 244, 248 (5th Cir. 1993).

We find the lack of a warrant unproblematic in

this case, as it fits squarely within th e wellestablished “exigent circumstances” exception

to the warrant requirement. 5 S ee Kirkpatrick

v. Butler , 870 F.2d 276, 281 (5th Cir. 1989).

Exigent circumstances justify an exception

to the warrant requiremen t if officers have

“cause to believe eit her t hat evidence in the

house may be destroyed or rem oved, or that

the lives of police officers or other persons

may be endangered by persons inside of the

house.” K

irkpatrick

, 870 F.2d at 281

( fo otnote omitted). Each of these exigencies

was present.

Based on their surveillanc e and the

confes sio ns of Hernandez and Munera, the

officers had strong reason to believe that drugs

and drug dealers were located i n either

apartment 1714 or 1716. The officers testified

that they “fear[ed] for their safety when

R o driguez bolted” from the living room, and

they feared that “ Ro driguez may have been

armed or was t rying to flee.” Additionally,

they feared that Rodr i guez might be

attempting to destroy evidence.

Moreover, whe t her exigent circumstances

exist is a question of fact for the district court,

whose findings we review for clear error. Id.

Given that the officers needed to protect against both the destruction of contraband and

potential harm to themselves, the court was not clearly erroneous in finding exigency. 6 Exigent circumstances do not, however,

enable the polic e to conduct a full-fledged

search. Instead, they are permitted to conduct

only a “protective sweep,” limit ed to searching

those areas where a suspect might be h iding.

See Kirkpatrick

, 870 F.2d at 282. The record

reflects that this is exactly what they did.

Munera argues next that any exigency was

created by the officers, and this precludes them

from engaging in a warrantless search on this

basis. In support of this, Munera refers us to

United States v. Richard , 994 F.2d 244, 248

(5t h Cir. 1993). The facts of R ichard d o

p arallel, to some extent, those here: Police

h ad announced their presence outside of an

apartment door and thereafter feared what the

apartment’s occupants might be doing. Id. at

246-47, 248. We did not find police-created

exigency as a

mat t er of law in R ichard

, but

rather we merely affirmed the finding of

police-created exigency under the clear-error

standard of review. Id. at 248-50.

In the instant case, the court held precisely

the opposite, and did so without error in light

of t he particular facts and circumstances.

Un like the situation in R ichardson

, where

“[t]he agents had secured [the room ] from the

outside, successfully and covertly,” i d. at 249,

in this case the police were trying to figure out

which of two apa rt ments was the one

5 Although there is evidence that Hurtado may

have consented to the

initial search of apartment

1714, we decline to resolve this issue on such a disputed factual ground.

6 Rodriguez asserts that the distric t court did

not make a factual finding of exigency. This

contention is incorrect, as the district court explicitly noted that “[t]he officers eng a ged in a

p r oper protective sweep to look for and to locate

(continued...) (...continued)

Rodriguez-Estupinan, who they believed was stil l

in the apartment and co uld pose a threat to the

officers’ safety.”

Rodriguez also asserts that a finding of

exigency under these circumstance s (that is,

following the arrests of Munera and Hernandez) is

incorrect as a matter of law, relying on Maryland

v. Buie

, 494 U.S. 325 (1990). Rodriguez

misconstrues when the exigenc y attached: It did

not attach when the

arrests of Munera and

Hernandez were made, but rather when officers

witne ssed Rodriguez flee from the living room.

Had Rodrigu ez not fled, but instead remained in

plain view, an d if the officers had secured

apartment 1714, then a warrantless arrest (absent

consent) might have been inappropriate. But those

are not the facts of this case.10

containing contraband and coconspirators.

Additional ly, we have no evidence

regardi ng how well secured the apartments

were or what their means of ingress and egress

were. Further still, the events of R ichardson

transpired in the morning, whereas the events

of the matter before us transpired in the more

t r eacherous setting of nighttime. Lastly, in

Richardson the police at least knew that the

apartment’s occupants were not attempting to

flee, i d. ; in the case before us, the poli c e

witnessed Hernandez’s attempted escape. Thus, if the creation of exigency can be

attributed to any particul ar person,

respon s ibilit

y would lie with Rodriguez, whose

suspicious act of

bo lting from view alarmed

the officers. In sum, the district court did not

commit clear error in reaching its

determination that exigent circumstances

justified the wa r rantless search of apartment

1714.

D.

Rodriguez independently challenges the

s eizure of a clear plastic bag containing

cocaine found in the closet of apartment 1714.

He rej e cts the government’s assertion of the

doctrine of “plain view,” arguing that Thomas,

who ca me upon the cocaine, “could not be

sure that the white powder residue found was

cocaine.” Rodriguez cites U nited St ates v.

Buchanan, 70 F.3d 818, 826 n.6 (5th Cir.

1995), in which we noted that “the mere

presence of white powder residue in a pla s tic

bag, by itself, will [not] always give r ise to

probable cause.”

T he white powder was easily in Thomas’s

plain view; the only question is whether he had

probable cause to believe that i t consti tuted

cocaine. S ee id. at 826. As we explained in

Buchanan, whether such probable cause exists

depends on the “totality of the circumstances.”

Id

. This was not a case of the “mere presence

of white powder in a plastic bag, by itself,” id.,

but rather o f white powder found in an

apartment already suspected of con t aining

drugs and under suspicious circumsta nces (namely, Ro d riguez's flight and Hurtado's

deception). For these reasons, Thomas had

probable cause to believe t hat the white powder was indeed cocaine.

Secondly, the doctrine o f inevitable

discovery dispenses with Rodriguez’s

argument in that the off icers obtained

voluntary co nsent to search the apartment

(from Hurtado) following Rodriguez’s arrest.

See Nix, 467 U.S. at 448; Lamas, 930 F.2d at

1102. Thus, even if Thomas did not have

probable cause t o believe that the white

powder was co caine, he validly seized and

examined it following his receipt of permission

to search the apartment. See United States v.

Kirk , 111 F.3d 390, 392 (5th Cir. 1997).

E.

Rodriguez denies that the officers received

v alid consent to search apartment 1714.

Because the plain view d o ctrine allows the

introduction into evidence of the cocaine in the

clear plastic bag, the only evidence that could

be exclu d ed via this argument is the cocaine

contained in the closet’s gym bag.

As Rodriguez correctly explains, for

consent to be valid, it must be freely and

voluntarily given by someone with authority to

consent. I

llinois v. Rodriguez , 497 U.S. 177,

181 (1 990). Rodriguez concedes that the

consent by Hurta d o was given freely and

voluntarily; his dispute is over whether she had

authori ty to consent to a search of the

apartment.

Hurtado identified herself as a resi dent of

apartment 1714. Defendants have introduced

no evidence challenging this. So, the officers

came to the objectively reasonable conclusion

that Hurtado had the authority to consent to a

search. S ee United Stat es v. DeLeon-Reyna

, 9 30 F.2d 396, 399 (5th Cir. 1991) (per

curiam) (en banc) (holding that “officers' belief

that they had consent, in light of all the

circumstances,” com

ports with Fourth

Amendment if “objectively reasonable”).

The cour t did not commit clear error in

rat ifying the officers’ conclusions. The extent

of Hurtado’s kno wledge of Rodriguez’s

wrongdoing 

### SS

something Rodriguez cons i ders

important in ascertaining Hurtado’s authority

to con sent 

### S

S is irrelevant to this inquiry. S ee11

id.

F.

Munera ar g ues that the court erred in

failing to suppress a statement he made to a

DEA agent, because “no evidence was presented that defendant waived his Miranda

warning at the time he was questioned and that

he was not informed o f his right to

communicate with consular or dipl omati c

officers of

his country as required by Vienna

Convention treat y and INS regulation.” It is

black letter law that a defendant’s waiver of

his Miranda rights must be knowing,

intelligent, and voluntary. U n ited States v.

Collins

, 40 F.3d 95, 98 (5th Cir. 1994). This

is a question o f fact for the district court that

we r e view for clear error. Id. at 99.

Go vernment witnesses testified t hat

(1) Munera was read his rights, in Spanish, and

(2) Munera affirmatively requested to make a

statement to the DEA and was permitted to do

so. From this evidence, the district court

could and did properly conclude that Munera’s

statements did not run afoul of Miranda

.

Munera presses, however, that his Miranda

warnings were not repeate d at the DEA

holdover jail c ell where his confession was

tendered. But because the DEA agents did not

recommence questioning of Munera at the jail,

a seco nd set of warnings was not required;

instead, Munera voluntarily initiated the t elling

of his story. S ee Moore v. Dugger , 856 F.2d

129, 133 (11th Cir. 1988).

Mune ra’s Vienna Convention argument is

meritless in light of existing precedent.

Although his rights under the Convention may

have been violated, he has not adequately

explained how this may have prejudiced his

defens e 

### S S

a critical predicate were we to

fashion a remedy

fo r him under the

Convention. 7 We accordingly reject this argument.

IV.

Munera contends that Fa nning perjured

himself on the stand and that the gove r nment

k no wingly sponsored this perjury. If true,

such a finding on our part would merit a

reversal of Munera’s conviction. Munera

carrie s the burden of proof on this tall

accusation. S ee United States v. Lochmondy

, 890 F.2d 817, 822 (6th Cir. 1989).

To prevail, Munera must demonstrate that

(1) Fanning’s testimony was actually false, id.

at 822 ; and (2) that the government

“knowingly sponsored” it, U nited States v.

Harrison

, 103 F.3d 986, 989 (D.C. Cir. 1997).

Inconsistent testimony, by itself, does not meet

this burden. S ee United States v. Bortnovsky

, 879 F.2d 30, 33 (2d Cir. 1989).

Accord ing to Munera, at the suppression

hearing Fanning testified that he knew to head

for apartment 1714, because “Officer Thomas

had wa t ched Jorge Munera-Uribe walk from

his apartment complex, fr om the door, the

1714.” When pressed with the question “Is it

possible that you saw him come fr om the

landing where there were two apartments 1714

and 1716?”, Fanning responded: “It is

possible.” He then elaborated, stating:

We did no t know the apartm ent

door 

### SS I must correct myself. Officer

Thomas said he saw some, t he landing

up there, that we were 

### SS

that’s when we,

that was the reaso n for taking Jorge

Munera-Uribe up to the l anding, is for

him to knock on the door or show us

the door that his friend was in, Carlos.

When asked whether Munera did indeed show

him the door he had come o ut of, Fanning

testified: “No, he didn’t.”

7 See Faulder v. Johnson

, 81 F.3d 515, 520

(5th Cir. 1996); United States v. LomberaCamorlinga

, 170 F.3d 1241, 1244 (9th Cir. 1999)

(“Upon a showing that the Vienna Convention was

violated by a failure to inform the alien of his right

(continued...) (...continued)

to contact his consulate, the defendant in a criminal

proce eding has the initial burden of producing

evidence showin g prejudice from the violation of

the Convention.”).12

At trial, Fanning testified that “to determine

what apartment these two individuals [Munera

and Hernandez] had come from

. . . [he] asked

Mr. Munera-Uribe which apartment his friend

was in.” Fanning continued, explaining that

Munera pointed to apartment 1716 for them.

C ontrary to Munera’s characterizatio n

, Fanning’s suppression

hearing and trial

testimony are not “in direct conflict.” Munera

blazons the fact that in his suppression hearing

testimony, Fanning failed to mention t h at

Munera gestured to ward the landing for the

officers 

### SS indicating the apartment from which

he came. But Fanning was never specifically

asked that and was availab le to Munera’s

attorney for cross-examination. Instead,

Fanning was asked whether Munera accurately

identified apartmen t 1714 for him 

### S S Munera

did not (instead motioning with his no se to

a partment 1716), and Fanning testifie d as

such.

At trial, Fanning reiterated that he turned to

Mun era for help in locating the correct

apartment, and that Mune ra poi nted the

officers toward apartment 1716. This hardly

constitutes perjury: Fanning’s testimony at the

suppression hearing was at most incomplete 

### SS

it did not , however, contradict

anything he later told the court.

Secondly, even if Fanning can be sai d to

have perjured himself, Munera h as brought

nothing to our attenti on purporting to show

that t he government sancti oned such

t est imony, the second vital element of his

claim. For these reasons, there was no error

V.

According t o Rodriguez, the federal

prosecutor made improper comments at

closin g that deprived him of a fair trial.

Rodriguez bears the burden of establishing that

t hese comments did in fact deprive him of a

fair t r ial. U

nited States v. Bermea

, 30 F.3d

1539, 1562 ( 5t h Cir. 1994). In determining

whether he was depr ived o f a fair trial, we

consider whether the comments, taken as a

whole wi t hin the context of the trial,

p rejudicially affected substantive right s.

United States v. Rasco

, 123 F.3d 222, 229 (5th C ir. 1997). The offending comments

were as follows:

1. “Mr. Ash [Rodriguez’s attorney]

would have you think t hat the Gestapo

had showed up at the door to 1714 at 8300 Sandspoint, that it was this

massive show of force that caused poor [Rodriguez] to jump from the couch,

run to the back of the apartme nt, hi de

under a mattress.”

2. “If yo u recall the testimony,

[Rodriguez] was gone on the knock.”

3. “[T]he officers and agents had no

reason to get on the stand here and lie to

you.”

None of this deprived Rodriguez of a fair trial.

The first comment accurately captured

Rodriguez’s theor y o f the case: He had

argued that the pres ence of a large force of

armed police officers gathered on his balcony

alarmed him and caused him to flee. To

characterize the image con jured up by

Rodriguez’s explanation as a “gestapo” force

is not extraordinary. We do not find the word

“gestapo” to be so inflammatory as to destroy

the fairness of a trial. In fact, the term has

ta ken o n a generic meaning in modern usage

and no longer refers solely to the secret police

of Naz i Germany. S ee W EBSTER ’ S T HIRD

N EW I NTERNATIONAL D ICTIONARY 952

(1986).

Th e second comment is also an accurate

portray al of even t s: Rodriguez indeed fled

after the o fficers knocked on his door.

Although use of the expression “gone on the

knock” does not exactly help Rodriguez’s

cause, it is well within the prosecutor’s

prerogative to use such expressions in his role

as an advocate. The prosecutor need not

avoid honest, truthful characterizations of the

facts helpful to his argument.

Lastly, t elling the jurors that “the o fficers

and agents had no reason . . . to lie” does not

constitute the impermissible use of a prosecutor’s status to bolster the testimony of13

a witn e ss, but only presents a permissible

summary of the evidence. Rodriguez

suggested that the police were being untruthful

in their testimony; the prosecutor could fairly

r espond to this suggestion by making note of

the fact that there was nothing in the record

supporting this accusation. S ee United States

v. Vaccaro , 115 F.3d 1211, 1216 (5th Cir.

1997), cert. denied, 118 S. Ct. 689 (1998).

VI.

Section 3B1.2 of the Sentencing Guidelines

instructs the court to gran t a downward

adjustment for defendants whose roles in a

criminal offense are “minor.” Rodriguez and

Ramos challenge the decision not to grant

them such an adjustment. We review for clear

error. U nited States v. Valencia-Gonzalez

, 172 F.3d 344, 346 (5th Cir. 1999).

A.

Rodriguez was responsible for “guarding

16.52 kilograms o f cocaine (worth nearly

$200,000).” Sentencing Pro ceedings at 8

(May 15, 1998). Such a large responsibility

does not suggest a minor role. Indeed, under

our precedent, a defendant whose role is

“limit ed to holding or delivering drugs” is not ordinarily entitled to a minor role adjustment.

See United States v. Edwards , 65 F.3d 430,

434 (5th Cir. 1995). Rodriguez has furnished

us with no precedent suggesting that , under

the facts of this case, we o r any other circuit

has hel d that a minor role adjustment is in

order. B.

Ramos assisted in the delivery of cocaine

on August 13 and S eptember 18. On

August 13, he was observed car rying a blue

gym bag containing cocaine into Hernandez’s

car. Lat er that day , he came to Fiesta to

collec t money for the drugs he had provided.

Again, g iven E dwards

, we cannot say the

court committed clear error by failing to afford

Ramos minor role status in light of these facts.

As with Rodriguez, Ramos supplies us with no countervailing caselaw suggesting that a minor

role adjustment wo u ld be appropriate under

these circumstances.

VII.

Under the “safety valve” p ro vision of the

Sentencing Guidelines, a court must sentence defendants below statutory m andatory

minimums (and in accord with the lower

applicable Sentencing Guidelines range) if five

conditions are met. U.S.S.G. § 5C1.2. Valois

asserts that t he court improperly denied him

the benefit of this provision.

Valois bears the burden of establishing that

all five conditions are met. See United States

v. Vasquez

, 161 F.3d 909, 912 (5th Cir. 1998).

This is an issue of fact to be determined by the

court. U nited States v. Torres

, 114 F.3d 520,

527 (5th Cir.), ce rt. denied , 118 S. Ct. 316

( 1997). Accordingly, we review for clear

error. U nited States v. Wilson

, 105 F.3d 219,

222 (5th Cir. 1997).

Only satisfaction of the fift h conditio n is

b e fore us, with the government apparently

conceding that t he o t her four have been met.

The fift h condition requires that “the defendant

has truthfully provided to the Government all

information and evidence the def e ndant has

c oncerning the offense or offenses that were

part o f the same course of conduct or of a

common scheme or plan.” U.S.S.G. § 5C1.2.

A ccording to the government, Valois had

(1) failed to admit that he accompanied Russo

on the August 13 cocaine pickup; (2) lied

about the delivery of drug proceeds to Ramos

later that day; and (3) denied being with Russo

when s he met Moreno on September 18 to

obtain two of the seven kilograms involved in14

that day’s transaction. Valois counters by

arguing that he recited all the facts he knew to

the best of his recollection. He adds that none

of the government’s examples of

untruthful ness i

s “specific enough to

determine, even by a prep onderance of the

evidence, that Valois was not being honest

. . . .”

As a matter of law, Valois argues, he

cannot be denied relief under § 5C1.2, because

“the record does not contain specific findings

of, or suppo rt for, the government’s

a llegations of untruthfulness.” In support of

this proposition, he refers us to United States

v. Miranda-Santiago

, 96 F. 3d 517, 527-30

(1st Cir. 1996).

Miranda-Santiago d oes not support

Valois’s position. There, the government

proffere d no direct evidence tending to show

that t h e defendant in question was being

deceitful. I

d. at 529. Instead, the government

asserted that the defen d ant must have known

more than he was revealing in light of the fact

t hat he “shared living quarters with o ther

codefendants.” I

d. Such “mere conjecture”

cannot b e t he basis for denying the benefit of

§ 5C1.2. Id.

In Valois’s case , the government did not

offer up “mere conjecture,” but concrete evidence tending to show Valois’s

untruthfulness (such as st atements from

Valois’s codefendants). The court held a

hearing on the matter specifically and came to

the conclusion 

### SS

a ft er considering all the

evidence 

### SS

that Valois was being untruthful.

Thus, the court di d not engage in

“speculation” or “mere conjecture ” in

concluding t hat Valois was undeserving of

§ 5C1.2. I

d. More importantly, the court did

not comm

it clear error in sentencing Valois,

fo r Valois failed to carry his burden and

d emonstrate the applicability of § 5C1.1 in

light o f the government’s countervailing

evidence.

VIII.

Moreno complains that the court improperly denie d him a decrease in his

sentence for acceptance of responsib ilit y. Section 3E1.1(a) of the Sentencing Guidelines

instructs a cour t t o decrease a defendant’s

offense level by two if “the Defendant clearly

demonstrates acceptance of responsib ility for

his offense.” Moreno bears the burden of

esta b lishing acceptance of responsibility.

United State s v. Thomas, 1 20 F.3d 564, 575

(5th Cir. 1 997), c ert. denied

, 118 S. Ct. 721

(1998). Our standard of review on this issue

is “more deferential

t han that of clear error.”

Id.

Although he partic ipated in the same

defense as did his codefendants, Moreno

argues that he is entitled to the two-level

reduction of § 3E1.1 because “he did not testify at trial nor did he deny the allegations of

the indictment during the trial.” Moreno

attem pts to fit his litigation strategy in to th e

narrow exception to § 3E1.1 reco gnized for

those defendants who raise solely legal

defenses. See U.S.S.G. § 3E1.1, comment.

The court did not err in ho lding that

Moreno has failed to carry his burden of proof

on this issue: There is absolutely no evidence

in the record indicati ng acceptance of

responsibility on the part of Moreno, who had

an op po rtunity to present such evidence

pretrial but passed it up, failing to distinguish

hims e lf from his codefendants’ full-fledged

defense. See Thomas , 120 F.3d at 575. So,

Moreno cannot avail himself of § 3E1.1. Id.

IX.

Ramo s and Rodriguez challenge the

calculatio ns regarding the amount of cocaine

for which they were individually responsible.

These calculations are important, because the

base offense level (and t hus the length of

imprisonment) for non-violent drug offenders

is set in accordance with the quantity of drugs

involved. S ee United States v. Brito

, 136 F.3d

397, 415 (5 th Ci r.), c ert. denied

, 118 S. Ct.

1 8 17 (1998); U.S.S.G. § 2D1.1(c). We

review for clear error. B rito

, 136 F.3d at 415

.

“For a defe ndant involved in a drug

trafficking conspiracy, the quantity includes

both the drugs with which the defendant was

directly involv ed and the drugs that can be

attributable t o him through the conspiracy.”15

Id.

The defendant will not necessaril y be

held responsible for the full amount of

drugs involved in the conspiracy, rather

the defendant wi ll o nly be held

accountable for those amounts of drugs

that he kn ew o r reasonably could have

known or believed were involved in the

conspiracy. In o rder to calculate this

amount, a court may consider the coconspirator’s role in the conspiracy, his

relations hip to the other conspi rators, and any other information wit h

“sufficient indicia of reliability.”

Id. (citations omitted).

The court felt that it had sufficiently reliable

information t ying Ramos and Rodriguez to

mo re t han fifteen kilograms of cocaine each

and based the sentence on that quantity. Our

review of the record reveals no error. Ramos disputes t he attribution to him of

five kilogram s of cocaine from the

September 18 transaction and one kilogram

from the August 13 transaction. With regard

to the five kilograms, the government

introduced statements from Hernandez in

which Hernandez claims that Ramos asked him

for a ride to the gas stati on so he could deliver

the five kilograms. Hernandez also stated that

he helped Ramos put the five kilograms into a bag and thereafter did indeed drive Ramos to

the ga s stati on. The court coul d 

### S S and

did 

### SS properly base its determination on this

uncontradicted evidence. 8

Rodriguez disputes the attribution to him of

five kilograms of cocaine from the

September 18 transaction. The government

introduced circumstantial evidence linking him

t o these drugs: Hernandez testified that he

obtained the five kilograms from the

Sandspoi nt apartm

ent, and Rodriguez admitted

to guarding the cocaine stored there. Putting

these two facts together, the court could 

### SS and

did 

### S S reasonably conclude that Rodriguez

should have know n about this quantity of

drugs. The court did not commit clear error in

a ttributing them to Rodriguez for sentencing

purposes.

AFFIRMED.

8 As to the one kilogram of coc aine from

August 13, the agen ts seemed to testify in

conclusional fashion that the cocaine came from

Ramos. Such testimony is not specific enough to

contain “sufficient indicia of reliability.” Id. The

only thing in the record to bolster this assertion is

the t en-minute evening encounter between Ramos

and the Valois brothers. Although the onekilogram cocaine transaction of earlier that day

may very well have been the subject matter of this

meeting, the court could not properly come to such

a conclusion based on this meager evidence alone.

T hus, the court should have found Ramos

responsible for sixteen kilograms of cocaine, not

seventeen. This does not affect the sentence,

however, because the relevant threshold is fifteen

kilograms.