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-Uribe

(“Munera”), Samuel Moreno-Ramos

(“Ramos”), Melquecedec Moreno

(“Moreno”), Carlos Rodriguez-Estupinan

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

guilty of possession with intent to distribute

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

of conspiracy to do the same, in violation of

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

convictions and sentences on a variety of

grounds, including sufficiency ofthe evidence,

admissibility of the evidence, alleged

government misconduct, and incorrect

application of the sentencing guidelines. We

affirm.

I.

On August 11, 1997, at the direction of

Special Agent Michael Dubet of the DEA,

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

wasto discussthe purchase of one kilogramof

cocaine. It was agreed that Russo would sell

Sonny the cocaine for $18,000. 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’srestaurant. Because of

police presence, this follow-up meeting was

moved to an adjacent Pappas Barbecue

restaurant.

 

*

 Pursuant to 5TH CIR. R. 47.5, the court has

determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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 him the

kilogram of cocaine that was for sale. Saying

he did not presently have enough money on

him, Dubet postponed the transaction’s

culmination, and the parties dispersed.

Shortly thereafter, Sonny called Valois,

indicating that he had the money. He met

Valois in the Pappas parking lot. This time,

Valois was the passenger of a silver Ford

Taurus, which was being driven byhis brother,

Juan Valois.1 In return for the money, Sonny

received one kilogramof cocaine. Juan Valois

left the scene in his Taurus, Samuel Valois in

the Acura. 

Deputy Sheriff William Tipps followed the

Taurusto an apartment complex at 4545Cook

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, they shook hands and departed

their separate ways.

In September, Dubet directed Sonny to

contact Russo to set up another cocaine

purchase. Sonny and Russo arranged to meet

on September 18 at Houston’s Restaurant to

discuss the potential drug transaction. Sonny

arrived at the restaurant first, followed by

Valois and Russo. Russo and Valois agreed to

sell Sonny seven kilograms of cocaine 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.

This subsequent phone call informed Sonny

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 Barney’s Billiards, where

Russo was dropped off. Valois continued on

to the Hong Kong Food Market. 

There, OfficerCraig Thomas ofthe sheriff's

department saw a black 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 partyto

this appeal). The passenger of the Rodeo,

Ramos, left the Rodeo and entered the Acura,

carrying a blue gym bag with him, later found

to 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 Ramos 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 transaction arranged

earlier in the day. Valois remained in the

Acura and followed Russo to Academy. On

arriving there, they were arrested.

A search of the Acura revealed two blue

gym 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

told that two of the kilograms were from one

source (a Colombian known as “Fecho,” later

identified as Moreno), and five from another

(“Sammy” or “El Negro,” later identified as

Ramos). 

Russo agreed to page Moreno and Ramos

to her cellular phone and allowed agents to

record the subsequent conversations. Russo

told Moreno that she had his money and

wanted to purchase an additional four

kilograms of 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

opinion; 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 traffickers, the word “cocaine”

(continued...)
3

agreed to meet Russo at a Fiesta Supermarket

to pick up his money. Moreno arrived at the

Fiesta in a brown pickup truck. After he was

identified byRusso, Moreno was arrested. His

pager wasseized, and it contained Russo’s cell

phone number.

WhenRamosreturned the page, Russo told

him that his money (for the five kilograms of

cocaine he had provided)3 was available.

Ramos too was told to meet Russo at the

Fiesta to collect his money. When Ramos

arrived at the Fiesta, he was identified by

Russo and subsequently arrested. As with

Moreno, Ramos’s pager was found to contain

Russo’s phone number.

Meanwhile, Thomas had followed the

Rodeo, seen driven by Hernandez, to an

apartment complex at 8300 Sandspoint Drive.

At the apartment parking lot, Thomas lost

sight of Hernandez but did locate the Rodeo

and surveyed it for approximately three hours

until other law enforcement officers arrived.

Sometime after 9:00 p.m., when the other

officers arrived, Thomas observed a Hispanic

male (later confirmed to be Hernandez)

descend the stairs of the apartment complex

from a second floor landing. As Hernandez

passed the officers, greetings were exchanged

in English. When Hernandez went to the

Rodeo and unlocked its door, Thomas

approached him and identified himself as a

deputy sheriff. Thomas informed Hernandez

that he had been seen present at a drug

transaction earlier in the day and wastherefore

suspected of drug trafficking. Hernandez was

read his rights, and Hernandez acknowledged

them in English. 

After some initial denials, Hernandez

confessed to his involvement in the drug deal.

He told the officersthat he had delivered drugs

for hisfriends “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 (later

identified as Munera) descend the same stairs

as Hernandez had. They noticed Munera

make eye contact with the handcuffed

Hernandez 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 histwo friends; Hernandez

replied “no.”

Nevertheless, Fanning approached Munera

and asked whether his name was “Jorge.”

Munera replied “no” and told Fanning that his

name was “Gustavo.” When asked for

identification, Munera produced a driver’s

licensewiththe name “Jorge Gustavo MuneraUribe.” When asked why he had lied, Munera

looked down at the ground and proclaimed

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

prior communications between the DEA and

Munera had been in English, along with

Munera’s conversation on his telephone. 

A pat down of Munera revealed a pager

and two cellular phones. At that point,

Munera was handcuffed and informed that “he

was being detained for narcotics

investigation.”

To determine the apartment from which

Munera and Hernandez had come, Fanning

asked Munera “which apartment hisfriend was

in.” Munera again responded: “no hablo

ingles.” Fanning pressed Munera to show the

officers his friend’s apartment, and he nodded

his head approvingly. He took them to the

second floor landing from which he and

Hernandez had descended. 

Once there, the officers were presented

with a choice of two apartments to search:

apartments 1714 and 1716. Munera indicated

(by pointing with his nose) that apartment

1716 was the apartment of his friends. The

agents knocked on that door, but no one

answered. They opened the door via a key

they had found on Munera. No one was in the

apartment. Subsequent investigation would

reveal that this same 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 identified

to be Carlos Rodriguez). When the officers

knocked on the door, Rodriguez jumped up

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

opened the door, and the officers identified

themselves. When asked whether anyone else

was inside the apartment, Hurtado said “no,”

immediately heightening the suspicions of the

officers. The government contends that the

officersthen asked for and received permission

(fromHurtado) to go inside the apartment and

have a look around.

The 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 containing what appeared to be

cocaine, and a gym bag on the floor. The

officer made a mental note of this observation

and proceeded with his search. Upon coming

to the apartment’s bedroom, the officersfound

Rodriguez hiding under a bed.

The officersseized 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 retrieved the clear plastic bag and duffle

bag from the closetSSboth were found to

contain several kilograms of cocaine.

A DEA agent fluent in Spanish was

summoned to the scene. He advised

Hernandez, the first of the three Sandspoint

defendants to be arrested, of his rights.

Hernandez admitted his role in the cocaine

conspiracy:He had helped aColombiandeliver

cocaine in the Rodeo. 

The same agent then advisedRodriguez and

Munera of their rights. Both of them initially

denied knowledge of the cocaine. The agent

told Munera that things would be easier for

him if he cooperated and told the truth. He
5

added that 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 “wanted to tell 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 and 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, Moreno, and Rodriguez claim

insufficient evidence to convict. If a rational

jury could have found them guilty beyond a

reasonable doubt based, then the evidence in

question was sufficient. United States v.

Gourley, 168 F.3d 165, 168 (5th Cir. 1999).

In undertaking this analysis, we view the

evidence and all reasonable inferences

therefrom in the light most favorable to the

verdict. Id. at 168-69.

“There are three elements 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 these elements has been

satisfied. United States v. Miller, 146 F.3d

274, 280 (5th Cir. 1998). 

For a conviction of conspiracyunder § 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

knowingly and voluntarily participated in the

implementation of this agreement. United

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

1998). Mere presence at a crime scene, or

close association with conspirators, standing

alone, cannot rise to knowing participation in

a conspiracy as a matter of law. United 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

evidence was sufficient to convict of

possession of cocaine with intent to distribute

goes a long way in affirming the conspiracy

convictions: A guilty state of mind, combined

with incriminating activity on the cocaine

distribution charge, proxies for the knowing

and voluntary participation element of the

conspiracy charge. Thus, if the substantive

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, pursuant to no particular

agreement with anyone else.
6

A.

The evidence was easily sufficient to

support Ramos’s convictions. He was the one

who placed in Valois’s Acura the blue sports

bag later found to contain five kilograms

cocaine. Although there was no direct proof

that Ramos knew cocaine wasin 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 Russo telling him to meet

her to pick up his portion of the proceedsfrom

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 call. The jury had

before it only the transcript of this phone call

and evidence regarding its context (namely,

that the call was made by Russo for the

purpose of telling Ramos that his proceeds

from that day’s cocaine deal were available).

Under these circumstances, the jury had no

reason to believe that the call concerned

anything other than cocaine. 

Lastly, Ramos was seen cavorting with

Valois. This constitutes further evidence that

Ramos and Valois were drug-dealing partners,

adding to the reasonableness of the jury’s

verdict of guilty.

Ramos unsuccessfully attemptsto compare

his situation to that in United States v.

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

which we held that two defendants associated

with a automobile containing cocaine could

not be considered drug deal ing

coconspirators. See id. at 864. But in

Sacerio, police officers needed to conduct

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 their car, we

could not find that their behavior (namely,

driving anautomobile that happened to contain

a hidden stash of cocaine) constituted knowing

participation in a drug conspiracy. Id. 

The instant case is different. Ramos

personally carried a bag containing 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 happensto

be driving, it is reasonable to expect an

individual to know the contents of a gym bag

he is carryingSSespecially when it is weighed

down by several pounds of contraband..

B.

Although admittedly creating a closer case,

the evidence issufficient to sustain the verdicts

against Moreno as well. The government’s

main evidence against Moreno is the fact that

he too responded to Russo’s page regarding

the pick up of drug money. The ensuing

telephone conversation between Moreno and

Russo was, however, more incriminating than

that between Ramos and Russo, for Moreno’s

phone call discussed the possibility of

providing additional amounts of cocaine for

sale. Moreno indicated to Russo that he could

not provide anymore cocaine until he received

his money from the day’s earlier transaction.

Again, the transcript of this call is devoid of

any specific mention of cocaine by name, but

it does constitute quite damning evidence in

light of Russo’s characterization of the

purpose of the call. The transcript 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

verdict 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 contained over

eleven kilograms of cocaine, and eventually,

Rodriguez admitted that he had been paid to

guard it. All of this is sufficient to establish

Rodriguez’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 findings of fact on

these 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 his arrest at the

Sandspoint apartment parking lot was

unconstitutional because it lacked probable

cause. Absent an exception, the fruits of an

arrest lacking probable cause must be

suppressed, which in this case would include

Munera’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). United States v. Webster,

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

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

(No. 98-9212).

Probable cause existsif “the totality offacts

and circumstances within a police officer’s

knowledge at the moment of the arrest are

sufficient for a reasonable person to conclude

that the suspect had committed or was

committing an offense.” United States v. Ho,

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

Additionally, imputed to the arresting officer’s

knowledge are all the facts and circumstances

known to all law enforcement officials.

Webster, 162 F.3d at 331.

The following were the facts and

circumstances of Munera’s arrest: The police

had just followed the Rodeo, involved in a

drug transaction, to an apartment complex.

The driverSSHernandezSShad just been

arrested and had told police that he had been

delivering drugs for his friends Carlos and

Jorge, who lived in the complex. Hernandez

pointed to a second-floor landing as the

location of his friends’ 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

the friends he had spoken of; Hernandez

answered in the negative.

When asked by Fanning whether his name

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

asked to produce identification,Munera turned

over his driver’s license, which portrayed his

name to be “Jorge Gustavo Munera-Uribe.”

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

speaking in English on a cellular phone as he

passed them 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 constitute tools of the drug trade.

United States v. Cleveland, 106 F.3d 1056,

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

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

circumstances, the police had probable cause

to believe that Munera was involved in the

drug conspiracy with Hernandez, and thus

their arrest of Munera at that point was

entirely lawful.

B.

Regardless of the lawfulness of his arrest,

Munera asserts that the “statement” he made

to police at the Sandspoint apartment should

have been suppressed. It is undisputed that

Munera was not informed of his rights under
8

Miranda v. Arizona, 384 U.S. 436 (1966),

until well after the search of apartment 1714.

Nevertheless, the police asked him to show

them where his “friends’” apartment was,

prompting Munera to lead the officers to the

second floor landing, and thereafter 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 least two reasons,

however, why the acquisition of these

statementsinthe absence ofMirandawarnings

does not undermine the jury’s verdicts against

Munera.

Firstly, as the government notes, any

Miranda error is harmless in that the evidence

gathered therefrom was not necessary to

finding Munera guilty beyond a reasonable

doubt. See United States v. Paul, 142 F.3d

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

circumstances of his arrest (his recognition of

Hernandez, his lying about his name, his lying

about his ability to speak English, and his

possession of instrumentalities of the drug

trade), there is Munera’s subsequent

confession, made after he had been read his

rights. 

Additionally, the “fruits” of his purportedly

unlawfully acquired statement would have

been inevitably discovered by the police

anyway: The officers were already aware of

the landing from which Munera had

descended, and they would most likely have

searched apartment 1714 regardless of

Munera’s gestures (which were misleadingly

directed toward apartment 1716). See Nix v.

Williams, 467 U.S. 431, 448 (1983); United

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

Cir. 1991). 

Secondly, police may dispense with

Miranda warnings when necessary for their

protection. New York v. Quarles, 467 U.S.

649, 655 (1984); Webster, 162 F.3d at 332.

The dangers that law enforcement officials

face from drug dealers and the like are well

known, and it wasimportant for the officersto

identify precisely the apartment 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 thusit

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 criminal 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 challengesthe legalityofthe search

of apartment 1714 on the ground that the

officerslacked a warrant. See 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 the wellestablished “exigent circumstances” exception

to the warrant requirement.5 See Kirkpatrick

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

Exigent circumstances justify an exception

to the warrant requirement if officers have

“cause to believe either that evidence in the

house may be destroyed or removed, or that

the lives of police officers or other persons

may be endangered by persons inside of the

house.” Kirkpatrick, 870 F.2d at 281

(footnote omitted). Each of these exigencies

was present. 

Based on their surveillance and the

confessions of Hernandez and Munera, the

officers had strong reason to believe that drugs

and drug dealers were located in either

apartment 1714 or 1716. The officers testified

that they “fear[ed] for their safety when

Rodriguez bolted” from the living room, and

they feared that “Rodriguez may have been

armed or was trying to flee.” Additionally,

they feared that Rodriguez might be

attempting to destroy evidence. 

Moreover, whether 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 police to conduct a full-fledged

search. Instead, they are permitted to conduct

onlya “protective sweep,” limited to searching

those areas where a suspect might be hiding.

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 bythe officers, and this precludesthem

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

(5th Cir. 1993). The facts of Richard do

parallel, to some extent, those here: Police

had 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 matter of law in Richard, 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 the particular facts and circumstances.

Unlike the situation in Richardson, where

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

outside,successfully and covertly,” id. at 249,

in this case the police were trying to figure out

which of two apartments 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 district court did

not make a factual finding of exigency. This

contention is incorrect, as the district court

explicitly noted that “[t]he officers engaged in a

proper protective sweep to look for and to locate

(continued...)

(...continued)

Rodriguez-Estupinan, who they believed was still

in the apartment and could pose a threat to the

officers’ safety.”

Rodriguez also asserts that a finding of

exigency under these circumstances (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 exigency attached: It did

not attach when the arrests of Munera and

Hernandez were made, but rather when officers

witnessed Rodriguez flee from the living room.

Had Rodriguez not fled, but instead remained in

plain view, and 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. 

Additionally, we have no evidence

regarding how well secured the apartments

were or what their means ofingress and egress

were. Further still, the events of Richardson

transpired in the morning, whereas the events

of the matter before us transpired in the more

treacherous setting of nighttime. Lastly, in

Richardson the police at least knew that the

apartment’s occupants were not attempting to

flee, id.; in the case before us, the police

witnessed Hernandez’s attempted escape.

Thus, if the creation of exigency can be

attributed to any particul ar person,

responsibilitywould liewithRodriguez, whose

suspicious act of bolting from view alarmed

the officers. In sum, the district court did not

commit clear error in reaching its

determination that exigent circumstances

justified the warrantless search of apartment

1714.

D.

Rodriguez independently challenges the

seizure of a clear plastic bag containing

cocaine found in the closet of apartment 1714.

He rejects the government’s assertion of the

doctrine of “plain view,” arguing that Thomas,

who came upon the cocaine, “could not be

sure that the white powder residue found was

cocaine.” Rodriguez cites United States 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 plastic

bag, by itself, will [not] always give rise to

probable cause.”

The white powder was easily in Thomas’s

plain view; the only question is whether he had

probable cause to believe that it constituted

cocaine. See id. at 826. As we explained in

Buchanan, whethersuch probable cause exists

depends on the “totalityofthe circumstances.”

Id. This was not a case of the “mere presence

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

but rather of white powder found in an

apartment already suspected of containing

drugs and under suspicious circumstances

(namely, Rodriguez's flight and Hurtado's

deception). For these reasons, Thomas had

probable cause to believe that the white

powder was indeed cocaine.

Secondly, the doctrine of inevitable

discovery dispenses with Rodriguez’s

argument in that the officers obtained

voluntary consent 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 to believe that the white

powder was cocaine, he validly seized and

examined it following hisreceipt 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

valid consent to search apartment 1714.

Because the plain view doctrine allows the

introduction into evidence ofthe cocaine in the

clear plastic bag, the only evidence that could

be excluded 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

voluntarilygiven by someone with authorityto

consent. Illinois v. Rodriguez, 497 U.S. 177,

181 (1990). Rodriguez concedes that the

consent by Hurtado was given freely and

voluntarily; his dispute is over whethershe had

authority to consent to a search of the

apartment.

Hurtado identified herself as a resident 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. See United States v. DeLeon-Reyna,

930 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,” comports with Fourth

Amendment if “objectively reasonable”). 

The court did not commit clear error in

ratifying the officers’ conclusions. The extent

of Hurtado’s knowledge of Rodriguez’s

wrongdoingSSsomethingRodriguez considers

important in ascertaining Hurtado’s authority

to consentSSis irrelevant to this inquiry. See
11

id.

F.

Munera argues 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 of his right to

communicate with consular or diplomatic

officers of his country as required by Vienna

Convention treaty and INS regulation.” It is

black letter law that a defendant’s waiver of

his Miranda rights must be knowing,

intelligent, and voluntary. United States v.

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

is a question of fact for the district court that

we review for clear error. Id. at 99.

Government witnesses testified that

(1) Munera wasread hisrights, 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 properlyconclude that Munera’s

statements did not run afoul of Miranda.

Munera presses, however, that his Miranda

warnings were not repeated at the DEA

holdover jail cell where his confession was

tendered. But because the DEA agents did not

recommence questioning ofMunera at the jail,

a second set of warnings was not required;

instead, Munera voluntarilyinitiated the telling

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

129, 133 (11th Cir. 1988).

Munera’s Vienna Convention argument is

meritless in light of existing precedent.

Although hisrights under the Convention may

have been violated, he has not adequately

explained how this may have prejudiced his

defenseSSa critical predicate were we to

fashion a remedy for him under the

Convention.7 We accordingly reject this

argument.

IV.

Munera contends that Fanning perjured

himself on the stand and that the government

knowingly sponsored this perjury. If true,

such a finding on our part would merit a

reversal of Munera’s conviction. Munera

carries the burden of proof on this tall

accusation. See 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, United States v.

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

Inconsistent testimony, byitself, does not meet

this burden. See United States v. Bortnovsky,

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

According to Munera, at the suppression

hearing Fanning testified that he knew to head

for apartment 1714, because “Officer Thomas

had watched Jorge Munera-Uribe walk from

his apartment complex, from the door, the

1714.” When pressed with the question “Is it

possible that you saw him come from the

landingwhere therewere two apartments 1714

and 1716?”, Fanning responded: “It is

possible.” He then elaborated, stating:

We did not know the apartment

doorSSI must correct myself. Officer

Thomas said he saw some, the landing

up there, that we wereSSthat’s whenwe,

that was the reason for taking Jorge

Munera-Uribe up to the landing, 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 out 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

proceeding has the initial burden of producing

evidence showing 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.

Contrary to Munera’s characterization,

Fanning’s suppression hearing and trial

testimony are not “in direct conflict.” Munera

blazonsthe fact that in hissuppression hearing

testimony, Fanning failed to mention that

Munera gestured toward the landing for the

officersSSindicating the apartment fromwhich

he came. But Fanning was never specifically

asked that and was available to Munera’s

attorney for cross-examination. Instead,

Fanning was askedwhetherMunera accurately

identified apartment 1714 for himSSMunera

did not (instead motioning with his nose to

apartment 1716), and Fanning testified as

such. 

At trial, Fanning reiterated that he turned to

Munera for help in locating the correct

apartment, and that Munera pointed the

officers toward apartment 1716. This hardly

constitutes perjury: Fanning’s testimony at the

suppression hearing was at most

incompleteSSit did not, however, contradict

anything he later told the court.

Secondly, even if Fanning can be said to

have perjured himself, Munera has brought

nothing to our attention purporting to show

that the government sanctioned such

testimony, the second vital element of his

claim. For these reasons, there was no error 

V.

According to Rodriguez, the federal

prosecutor made improper comments at

closing that deprived him of a fair trial.

Rodriguez bearsthe burdenofestablishing that

these comments did in fact deprive him of a

fair trial. United States v. Bermea, 30 F.3d

1539, 1562 (5th Cir. 1994). In determining

whether he was deprived of a fair trial, we

consider whether the comments, taken as a

whole within the context of the trial,

prejudicially affected substantive rights.

United States v. Rasco, 123 F.3d 222, 229

(5th Cir. 1997). The offending comments

were as follows:

1. “Mr. Ash [Rodriguez’s attorney]

would have you think that 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 apartment, hide

under a mattress.”

2. “If you 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 theory of the case: He had

argued that the presence of a large force of

armed police officers gathered on his balcony

alarmed him and caused him to flee. To

characterize the image conjured 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

taken on a generic meaning in modern usage

and no longer refers solely to the secret police

of Nazi Germany. See WEBSTER’S THIRD

NEW INTERNATIONAL DICTIONARY 952

(1986). 

The second comment is also an accurate

portrayal of events: Rodriguez indeed fled

after the officers 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, telling the jurors that “the officers

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

constitute the impermissible use of a

prosecutor’sstatus to bolster the testimony of
13

a witness, but only presents a permissible

summary of the evidence. Rodriguez

suggested that the police were being untruthful

in their testimony; the prosecutor could fairly

respond to this suggestion by making note of

the fact that there was nothing in the record

supporting this accusation. See United States

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

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

VI.

Section 3B1.2 ofthe Sentencing Guidelines

instructs the court to grant 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. United States v. Valencia-Gonzalez,

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

A.

Rodriguez was responsible for “guarding

16.52 kilograms of cocaine (worth nearly

$200,000).” Sentencing Proceedings at 8

(May 15, 1998). Such a large responsibility

does not suggest a minor role. Indeed, under

our precedent, a defendant whose role is

“limited 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 or any other circuit

has held that a minor role adjustment is in

order. 

B.

Ramos assisted in the delivery of cocaine

on August 13 and September 18. On

August 13, he was observed carrying a blue

gym bag containing cocaine into Hernandez’s

car. Later that day, he came to Fiesta to

collect money for the drugs he had provided.

Again, given Edwards, we cannot say the

court committed clear error by failing to afford

Ramos minor role statusin light of these facts.

As withRodriguez, Ramossupplies us with no

countervailing caselawsuggesting that a minor

role adjustment would be appropriate under

these circumstances.

VII.

Under the “safety valve” provision of the

Sentencing Guidelines, a court must sentence

defendants below statutory mandatory

minimums (and in accord with the lower

applicable Sentencing Guidelinesrange) if five

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

asserts that the 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 (5thCir. 1998).

This is an issue of fact to be determined by the

court. United States v. Torres, 114 F.3d 520,

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

(1997). Accordingly, we review for clear

error. United States v. Wilson, 105 F.3d 219,

222 (5th Cir. 1997).

Only satisfaction of the fifth condition is

before us, with the government apparently

conceding that the other four have been met.

The fifth condition requiresthat “the defendant

has truthfully provided to the Government all

information and evidence the defendant has

concerning the offense or offenses that were

part of the same course of conduct or of a

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

According 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 she met Moreno on September 18 to

obtain two of the seven kilograms involved in
14

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

untruthfulness is “specific enough to

determine, even by a preponderance 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 support for, the government’s

allegations 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 does not support

Valois’s position. There, the government

proffered no direct evidence tending to show

that the defendant in question was being

deceitful. Id. at 529. Instead, the government

asserted that the defendant must have known

more than he was revealing in light of the fact

that he “shared living quarters with other

codefendants.” Id. Such “mere conjecture”

cannot be the 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 statements from

Valois’s codefendants). The court held a

hearing on the matter specifically and came to

the conclusionSSafter considering all the

evidenceSSthat Valois was being untruthful.

Thus, the court did not engage in

“speculation” or “mere conjecture” in

concluding that Valois was undeserving of

§ 5C1.2. Id. More importantly, the court did

not commit clear error in sentencing Valois,

for Valois failed to carry his burden and

demonstrate the applicability of § 5C1.1 in

light of the government’s countervailing

evidence.

VIII.

Moreno complains that the court

improperly denied him a decrease in his

sentence for acceptance of responsibility.

Section 3E1.1(a) ofthe Sentencing Guidelines

instructs a court to decrease a defendant’s

offense level by two if “the Defendant clearly

demonstrates acceptance of responsibility for

his offense.” Moreno bears the burden of

establishing acceptance of responsibility.

United States v. Thomas, 120 F.3d 564, 575

(5th Cir. 1997), cert. denied, 118 S. Ct. 721

(1998). Our standard of review on this issue

is “more deferential than that of clear error.”

Id.

Although he participated 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

attempts to fit his litigation strategy into the

narrow exception to § 3E1.1 recognized for

those defendants who raise solely legal

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

The court did not err in holding that

Moreno hasfailed to carry his burden of proof

on this issue: There is absolutely no evidence

in the record indicating acceptance of

responsibility on the part of Moreno, who had

an opportunity to present such evidence

pretrial but passed it up, failing to distinguish

himself from his codefendants’ full-fledged

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

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

IX.

Ramos and Rodriguez challenge the

calculations regarding the amount of cocaine

for which they were individually responsible.

These calculations are important, because the

base offense level (and thus the length of

imprisonment) for non-violent drug offenders

is set in accordance with the quantity of drugs

involved. See United States v. Brito, 136 F.3d

397, 415 (5th Cir.), cert. denied, 118 S. Ct.

1817 (1998); U.S.S.G. § 2D1.1(c). We

review for clear error. Brito, 136 F.3d at 415.

“For a defendant involved in a drug

trafficking conspiracy, the quantity includes

both the drugs with which the defendant was

directly involved and the drugs that can be

attributable to him through the conspiracy.”
15

Id. 

The defendant will not necessarily be

held responsible for the full amount of

drugs involved in the conspiracy, rather

the defendant will only be held

accountable for those amounts of drugs

that he knew or reasonably could have

known or believed were involved in the

conspiracy. In order to calculate this

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

relationship to the other conspirators,

and any other information with

“sufficient indicia of reliability.”

Id. (citations omitted).

The court felt that it had sufficiently reliable

information tying Ramos and Rodriguez to

more than fifteen kilograms of cocaine each

and based the sentence on that quantity. Our

review of the record reveals no error.

Ramos disputes the attribution to him of

five kilograms 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

whichHernandez claimsthatRamos asked him

for a ride to the gas station 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 gas station. The court couldSSand

didSSproperly base its determination on this

uncontradicted evidence.8

Rodriguez disputesthe attribution to himof

five kilograms of cocaine from the

September 18 transaction. The government

introduced circumstantial evidence linking him

to these drugs: Hernandez testified that he

obtained the five kilograms from the

Sandspoint apartment, and Rodriguez admitted

to guarding the cocaine stored there. Putting

these two factstogether, the court couldSSand

didSSreasonably conclude that Rodriguez

should have known about this quantity of

drugs. The court did not commit clear error in

attributing them to Rodriguez for sentencing

purposes.

AFFIRMED.

 

8 As to the one kilogram of cocaine from

August 13, the agents 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 ten-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.

Thus, 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.