* The Hon orable R ichard M ills, United States D i strict Judge for the Central Distri ct of Ill inois, s itti ng by designation.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0234P (6th C ir.) File Name: 04a02 34p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

ANNA T RUJILLO , Defenda nt-Appel

lant. X - - - -
> , - - N No. 02-1521

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 00-80676—Paul D. Borman, District Judge.

Argued: March 9, 2004 Decided and Filed: July 22, 2004

Befor e: MARTI

N and CL AY, Circu

it Judges; M IL

LS, District Judge. *

_________________ COUNSEL

ARGUED: John F. Royal, Detroit, Michigan, for Appe llant. Wayne F. Pratt, UNITED STATES ATTORNE Y, Detroit, 2 United Sta tes v. Truj illo No. 02-1521

1 The name on th e re ntal agreement was Nancy Nichols, and the agreement was signed by Shawn Speckman. Michigan, for Appellee. ON BRI EF: John F. Roy al, Detr oit, Michigan, for Ap pellant. Karen M. Gibbs, UNITE D STATES ATTORNEY, Detroit, Michigan, for Appellee.

_________________ OPINION

_________________ RICHA RD MIL LS, Di strict Judg e. I

n this a ppeal, Anna Trujillo asks this Co

urt to vac ate her

conviction and sentence and to dismiss the indictment against her, to grant her a new trial , or to remand her cas e for re -sent encin g. Trujillo contends that she is entitled to the relief which she seeks because

the distri ct court

commi tted several substantive and procedural errors which, taken either individually or as a whole, entitle her to a vacation of her c onviction and sentence.

For the following reasons, we AFFIRM the judgment

and the sente nce impos ed upon Tr

ujillo by the distri ct court

. I. BACKGROUND

OnNovembe

r 14, 1998 , Colorad

o St a te Police Trooper StevenOrtiz stopped a vehicle driven by Norma Jean Campos
nearPu eblo, Colorado, for speeding and for impeding the normal flow of traffic. Beth Ann Rogensue s was a passenger in the vehicle. Trooper

Ortizbecame suspicious of Campos and Rogensues because neither individual was listed on the rental agreemen

t provided

to Troope

r Ortiz by

Campos, 1 because neith er Cam pos no r Roge nsu es could identify whoNo. 02-1521 United Sta tes v. Truj illo 3

2 Campos told Trooper Orti z that she a n d R oge nsues w ere o n their way back to Detroit, Michigan, from Phoenix, Arizona, (where t hey had been stay ing wi th her

aunt) because her

mother had suffe red a medical emerg ency. On th e othe r hand , Rog ensue s inform ed T roo per O rtiz th a t they had been i n Phoen ix in order to rel ocate a business there, although she coul d not spec ify what type of bu sin ess, and that she w as un aware of any medical emergency suff ered by Camp os’ mother. had rented the vehicle, and because Campo s and Rogensues related inconsiste

nt stories regar ding the ir trave l plans. 2

Thereafte r, Trooper Ortiz asked for, and received, permission from Campos to searc h the vehicle. Upon conducting his search, Trooper Ortiz discovered 123 pounds of marijuana hidden

in du ff le ba gs in th e t ru nk . A cc or di ng ly, Trooper Ortiz arrested Campos and Rogensues and trans port ed

the two women to the Drug Enforcement Administration (“DEA”) office.

Once at the DEA’ s office , DEA task force a gents interviewed

Campos and Roge nsues separately regarding their transportation of marijuana. DEA Task Force A gent Ronald Thurston i

n ter viewed Campos. Initially , Campos denied a ny kno wledge about the marijuana. Howeve r, Campos eventually admitted that this was approximately her fifth or sixt h trip tr an sp or ti ng ma ri ju an a. Sp ec if

ic al ly, Campos stated tha

t Anna an d Julio Trujillo had contacted her about driving to Arizona in order to meet with some people, pick up loads of marijua

na , transport it back

to Detroi

t, Michiga n, and de liver the

marijuana to them. Meanwhile, DEA Task Force Age nt Perry Powell was interviewingRogensues. I nitially, Rogensues told Ag ent Powell that she and Campo s h ad been approached by a man at a bus station who had asked them to transp ort the duffle bags for him. However, af te r hearing Campos cry

ing in the

n ext room, Rogensues confessed that the story was a l i e whichshe and C ampos had made up when they were in the back of Trooper Ortiz’s squad car. Rogensues then admitted 4 United Sta tes v. Truj illo No. 02-1521

3 Rogensues testified tha t she nev er loo ked in any of the duffl e bags but assumed marijuana w as c ontain ed th erei n base d upon wha t Campos had told her and the amount of money which they were recei ving for the tri p. that they were tr ansport ing the marijuana to Detroit for the Trujillos. 3

Aft er co nfessing to transporting the marijuana for the Trujillos, Campos and Rogens ues provi ded vari ous detai ls regarding their pa st marijua

na trips f

or th e Tru

jillos (including providing identifying information which allowed DEA agents

inDetroit to confirm

the provided information), and they ag reed to act

as coopera

ting witnesses an

d to particip ate in a controlled delivery of the marijuana to the Trujillo s. Thereafter, DE A Task F orce Ag ent Powel l telephoned

DEA Agent Debra L

ynch in Detroi t in order to set up a controlled delivery . Based upon the infor m ation provided by DEA Tas kForce Agent Powell, DEA Ag ent Ly nchsought and obtained a search war rant from United States Magistrate Judge Donal d Sche er for the Trujillo’s home.

OnNovember 15, 1998, Campos and Rogensues returned, under escort, to Detroit. Once inDetroit, Campos told DEA Agent Ly nch that she h ad been

introduc ed to Anna

Trujillo throu gh a mutual friend who had made a lot o f money transpor ting m arijuana for Anna Trujillo prior to 1998. Campos a lso informed DEA Agent L ynch that she and Roge nsues had drive

n to and fr

om Arizona

in order to transport marijuana for the Trujillos on five prior oc casions. Moreover, Campos stated that Shawn Speckman had r ented
cars for their use on the instant trip an d als o on two or three prior tri ps.
Inaddition, Campos informed the DEA agent s t hat Anna Truji llo had p aid her $ 250.00 to ti tle two ca

rs in her name and, then, to transfer the title back to Truj illo after the cars had been purchased. Finally, Camposand Rogensues advisedNo. 02-1521 United Sta tes v. Truj illo 5

4 This c onver sat ion w as not tape recor ded. DEA Agent Ly

nch that th ey would either pag e or cal l Julio Trujillo on his cellular telep hone wh en they got back to Detroit and that, freque

ntly , they would meet at the Trujillo’s residence in order to deliver the marijuana. Campos, Rogensues, and DEA A gent L ync h then we nt to the Rexford

Police Department

which is in

close pr oximity to the Trujillo’s residence. From there, the Trujillos were pa ged several tim es, but no r

espo nse w as ev er re ceiv ed. T he ne xt da y, Anna Tru

jillo telep honicall y sp oke wit

h both Campos and Rogensu es on four occasions whi ch were tape recorded by DEA agents. During the sec ond of these four
convers ations, Anna

Trujillo instructed

Campos to “bring the babies in from the cold so that they won’ t get cold,” which Campos understood

as an instruction to get

the marijuana out of the car and place it inside Campos ’ ho me. In the third of thesefour telephone conversations, Rogensues advised A nna Trujillo that they

had brou ght the b abies in s o that

they would not get cold.

Inthe four

th conver sati o n, Anna Trujillo told Rogensues that she (Rog ensues) and Campos had cost her $250,000.00

an d that every

one in the

house wou

ld have to

pay for it. Rogensues testified that she understood the comme

nt to mean that Campos and she would hav e to pa y for the mar ijuana. 4 Ul ti ma te ly, the D EA age nts were unsucce ssful in the ir attemptsto establish a controlled delivery of the marijuana

to the Truji llos.

OnNovember 16, 1998, DEA agents sear ched the Trujillo’s home pursuant to the warrant issued by Magist rate J udge Scheer. As a result of the search, DEA a ge nts discovered personal telephone books, ti tles to two

vehicle s in

Camp os’
name whichhad prev

iously been use d to transport marijuana, two digital scales, cellular telephones and p agers, and a fax machine. However, no narcotics wer e discovered. 6 United Sta tes v. Truj illo No. 02-1521

5 Julio Tru jillo has filed a sep arate appeal with thi s Court challenging the sente nce im pos ed up on him by the d istrict cou rt. Campos an d Rogensu

es ultimat

ely pleaded guilty to conspiracy

to deliver marijuana pursuant to a plea agreement which re quired th em to coopera te with the Government. As
a result of their pleas and cooperation, the district court sentenced Campos and

Rogensu es to thre e months in

a halfway house, to three months on electronic tether, and to two years of supervised release.

OnSeptember 19, 2000, a federal grand

jury indicted Anna and Julio Trujillo

for cons piracy to possess with the inte

nt to distribute in excess of one hundred kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) a nd 8 46. Julio Tru

jillo pleade d g uilty , pursuan

t to a writt

en plea a

greement, to conspiracy

to possess

with the in

tent to dist

ribute in e xcess of
one hundred

kilogra ms of marijuana. In addition, pursuant to the term s of the plea agreement, Trujillo ag reed to provide truthful and compl ete info rmation, i n good faith, concerning all of his knowledge a bout t he mari juana traffi cking. Th ereaf ter, the distri ct court

sentenc ed Julio Tru

jillo to eighty -three months of im

prisonme nt. 5

Anna Trujillo, however, exercised her constitutional right to a jury trial. Prior to the start of her trial, Trujillo filed a motion to suppress the physical evide nce obtained

as a res ult of the search of her re si dence. Trujillo argued that the affida vit insupport

of the search warrant application filed by DEA Agent Ly

nch was defective, and therefore , the search warrant was invalid. On September 6, 2001, after conducting
ane v identiary hea

ring, the district court denied Trujillo’s motion to suppress. Specifically, the district c ourt found that the information contained wi thin DEA Agent Ly nch’s af fid avit was suff icient to e stablish pr

obable c ause and

also found that, eve n if the affidavit had

included the information regarding Campo s’ and Roge nsu es’ prior inconsistent statemen ts to DEA Task For

ce Age nts Thurst

on and Pow ell,No. 02-1521 United Sta tes v. Truj illo 7

6 Attor ney R oyal re prese nts T rujillo in this a ppe al. probable cause w ould have

still exist ed to issue the search
warran t.
Further mo re, at the fin al pretrial conference which oc curred five day s prior to

the start of trial, Trujillo represented to the districtcourt that there had been a break-d own in her relation ship with her attorney s. As such, Trujillo asked the districtcourt to allow attorney John Royal ’ s motion to
s u bstitute his representation for that of her present counse l and, thereafter, to a

llow her motion to co

ntinue the

trial so that attorney Roy

al could have ad equa te time to prepare for trial. 6 At the hea

ring, a ttorney Roy al informed the dis tric t court th at he desired to represent Trujillo in this matter but only if he had sufficie n t time to prepare for trial, i.e. , sixty day s. The Gov ernment objected to a continuance, asserting that it would be prej udice d by any delay in the start of the trial. The district c ourt then stated tha

t jury selection would proceed as scheduled on November 6, 2001, but that the presentation

of the evidence could be delayed until November 8, 20 01. Given the

district c ourt’s de

nial of the

motion to
co ntinue, Attorney Roy al did not believe that he had sufficient time in whic

h to prepare for trial, and thus, he declined to take the case.

Fi na ll y, on the day prior to the star t of the trial, the district
c ou rt heard oral arguments on Trujillo’s motion in limine to exclud e cert ain evidence, pursuant to Federal Rule of Evidence 404(b), which the Government sought to introduce at trial. Thereafter, the district court excluded some o f the Government’s evidence bu t authorized the admission of the rest. Sp ec if

ic al ly, the district

court allowed the Government to introduce: (1) Campos’ testimony tha t, at Trujil lo’s req

uest, she travele d to Arizona

and tran sported marijuana back to Detro it on se veral occasions prior to the beginning of the charged conspira cy ; (2) Camp os’ testimony that Truj illo paid her to title se veral c ars in he

r name a nd, then, transfe

r the title 8 United Sta tes v. Truj illo No. 02-1521

ba ck to Trujillo ; and (3)evidenc e of an a lleged th reat b y Trujillo toward Rog ensues.
OnNovembe

r 8, 2001, a jury

found Tr ujillo gu ilty of the
one count cha

rged in the indictment. On April 8, 2002, the districtcourt se

ntenced Trujil lo t o seventy-e ight months of imprisonme

nt. In so doing, the

district court denied Trujillo’s objectionto the amount

of marijuana for

which she was being held accou ntable as relevant conduct and also denied Trujillo’s objection to a two-level enhanc ement, pu rsuant to U. S.S.G. § 3B1.1( c), for

being a n orga nizer or le ader in

th e co ns pi ra cy. On April 18, 2002, Trujillo filed a timely notice of appeal challenging he

r conviction and sentence.

II. ANALY SIS

Onappeal, Trujillo ha s raised seven g rounds in support of her argument that we should vacate her conviction and either outright dismiss the indictment against her or grant her a ne w trial, and sh e has ra ised o ne gr ou nd in support of her argument that, at a minimum, we should remand her case for
re-sen tencing . We will ad

dress he r argu ments seriatim

. A. MOTION TO SUPPRESS Trujillo argues that the search wa rrant issued by Magistr ate Judge Scheer was invalid because the affidavit filed by DEA Agent Lyn ch in

support of the application for the warrant omittedthe factthat Campos and Rogensues had given
numerous inconsistentversions of the facts su rroundin g their marijuana tr affick ing before naming her a nd her husband as the ultimate recipients of the narcotics. Trujill o asserts that the omission of this critical information regarding th e credibi lity

and reliability of Campos and Rogensues rendered the affidavit fatally

defective. Trujillo claims that the omitted evidenc e rega rding Campos’ and Rogensues’ ly ing to law enforcement

agent s be fore settling on a story incriminating her should have trigger

ed an evidentiary he aring where she would have been able to show that DEA Age nt Ly nch ac t edNo. 02-1521 United Sta tes v. Truj illo 9

with reckless disregard

for the tr uth in presenting the warrant applicationto Magis trate J udge Scheer. I n short, Tr

ujillo contends that the a ff

idavit presented by D EA Agent Ly nch
was so condensed that it misled Magistrate Judge Scheer and rendered him unable to det erm ine whether proba ble caus e existed to is sue the w arrant

. The Government argues that the district cou rt c orrect ly denied Trujillo’s motion to suppress because DEA Agent Ly nch’ s affida

vit was not

faciall y de fective

and prob able
cause existed for

the issuance of the warrant. Specifically , the Government

asserts t hat the affidavit

info rmed Mag

istrate Judge Scheer that Cam pos an d Rogensues had been interviewed separa

tely and provided cor

roborat ing deta ils (details which

were verified by

DEA agents) as to Trujillo’s
re sidence and informed Magistrate Judge Scheer of the fac t th at J ulio Trujillo had just been released from prison after serving a sentence for a dr ug conviction. Furthermore, the Government contend s t hat the affidavit clearly indicate d that t

he i nformation provided by Campos and Rogensu e s was reliable and corroborated. F inally, the Government claims that, even had DEA Agent L ynch informed Magistrate Judge Scheer of the fa ct that Campos and Rogensues had pro vided incons istent stor ies to DEA

Task For ce Agents

Thurston a

nd Powell, the aff

idavit a n d applicationwo uld

not have b een wea

kened a nd still wou

ld have been supported

by probable c ause sufficient to issue the search warran t. We have previously e

xplained:

This court r eviews the suffic iency of an af fidavit to determine “whether the magistrate had a s ubstantia l basis for finding that the affi dav it establi shed prob able ca use to believe that the evidence would be found at the place cited.” United States v. Davidson , 936 F.2d 856, 859 ( 6th Cir. 1991)(qu

otation omi

tted). Th e affid

avit shoul d

b e reviewed in a commonsense–rather than a 10 United Sta tes v. Truj illo No. 02-1521

hyp ertech nical– manner, and the court should consider whether the totali

ty o f the cir

cumstanc es suppor

ts a finding o f p robable

cause, r ather th an eng aging

in line-by-line

scrutiny. United Sta tes v . G reene , 250 F.3d 471, 479 (6th Cir. 2001). The magistrate’s determination of probable cause is afforded g reat deference, and t

ha t determination

should be r

everse d only

if th e mag istrate arbitrarily e

xercised his discretion. Id

. United States v. Woosley
, 361 F.3d 924, 926 (6th Cir. 2004).

“The task of the issuing magistrate is simply to mak e a practic al, common-sense decision whether, g iven all the circumstances set

forth in the affid

avit before him, including the ‘veracity ’ and ‘basis of knowledge’ of persons supplying hearsay informat ion, ther e is a fair probabilit

y that contraband
or evidence of a crime will be found in a particula r p lace.” Illinois v. Gates , 462 U. S. 213, 238 ( 1983). “ The prob able
cause r equirem ent . . . is satisfied if the facts and circumstances are such that a r easo n ably prudent per

son would be warranted i n belie ving that an offense had been committed

and that evidence thereof would be found on the premises to be searched.” Greene v. Reeves , 80 F.3d 1101, 1106 (6th C ir. 19 96)(ci ting United States v. Besase , 521 F.2d 1306, 1307 (6th Cir. 1975)). Thus, “only the pr obability, and nota prima facie

showing, of criminal activity is the standard of probable cause . . . .” United States v. Davidson , 936 F.2d 856, 860 (6th Cir. 1991).

In t he in st an t c as e, we fi nd th at th e t ot al it y of th e circumst a nce s present

ed in DEA

Agent L ync h’s aff idavit provided Magistrate Judge Scheer

with a substantial basis for f inding probable

cause to

search Trujillo’ s resid ence

. Massachu

setts v. Upton , 466 U.S . 727, 733 (1984). Ac co rd in gl y, the distri ct court did not err in denying Trujillo’ s motion to su

ppress.
As the dist

rict cou rt corre ctly

noted, in her affidavit, DEA Agent Lync h s pe ci fi ca ll y advis ed Magistrate Judge ScheerNo. 02-1521 United Sta tes v. Truj illo 11

that, after being int erv iewed separately , Campos and Rogensues provided

detai led fac ts of a conspiracy to distribute marijuana. Specifically , the affidavit represented that Campos an d Rogens

ues wer e transp orting money

to Arizonain exchang e for ma ri juana which they

would then return to Julio Trujillo whom they contacted via his cellular teleph one or pag er and w ho instructed them to

deliver th e marijuana to his residence. Moreover, the affidavit stated that Campos and Rogensues had planned to make five or six more trips to Arizona

for the T rujillos in order to obtain marijuana. Fi na ll y, DEA Agent Ly

nch’s affidavit contained the fact that
a controlle d deliv ery

was planned for the same day upon whichshe sou ght the search warrant. Thus, we believe that DEA Ag ent Ly

nch’s affidavit provided probable cause f or Magistr ate Judge Sch eer to issue the search warrant at issue.

As for Truj illo’s cha

llenge to the relia

bility and cre dibility of Campos and Rogensues and the necessity of an evidentiary hearing prior t o the i ssuance

of the wa

rrant, the affid

avit clearly indicated that the information provided by Campos and Rogensues was reliable and corrobor a ted. Sp ec if

ic al ly, DEA Task Force Agents Thurston an d P owell we

re able to verify with law enforcement authorities inMichigan that the Trujillos lived at the addre ss provid ed by Campos and Rogensues and that

Julio Trujillo

had rec ently

been released fromprison after

serving a sentence on a drug charge as stated by Campos and Ro gen sues. Franks v . Delaware , 438 U.S. 154, 165 (1978 )(noting

that “pr obable c ause may

be founded upon . . . inf

ormation . . . that sometimes must be garnered hastily.”).

Fi na ll y, as for Trujillo’s claim that DEA Agent Ly nch acted with reckless disregard for

the truth i

n omitting

certain facts fromher affidavit, a defendant is entitled to a Franks hearing “if and only if : (1) ther

e is a substantial preliminary showing that specified portions of the af fian t’s averments are deli berate ly

or recklessly

false and (2) a finding of prob abl e cause would notbe supported by the re maining content of the affida vit when the allege dly falsematerial is set

to one side.” 12 United Sta tes v. Truj illo No. 02-1521

United States v. Atkin , 107 F.3d 1213, 1217 (6th Cir. 1997). Thus, “it is clear

that Franks v

. Delaware

requires that, even insuch an instance of

perjury , the war

rant will b e voided i f t h e false statement is necessary to establish probable cause. The defendant must prove by a preponderance of the evidenc e that the affiant’s remaining content is insufficient to establi sh probable cause.” United States v. Barone , 584 F.2d 118, 121 (6th Cir. 1978).
Here, Trujillo has failed to make a strong showing that DEA Agent L

ync h excluded

certain facts fr om her aff

idavit with an intention to mislead Magistrate Judge Sch eer. Mays

v. City of Dayton
, 13 4 F. 3d 8 09, 816 (6t h C ir. 199 8). In addition, we agr

ee with the district court tha t, even had

DEA Agen t Ly nch included in her affidavit the fact that Campos and Rogensues had

given prior inconsistent statements before pointing to Trujillo

as a co- conspira

tor, thes e facts

would not have negated a finding

of probable cause. Atkins
, 107 F.3d at 1216-17 (denying

the defendant’s mo tion for a Franks hearing because alleged materia

l omissions were not

essential to a probab le cause

finding); Un ited State

s v. Martin , 920 F.2d 393, 398 (6th Cir. 199 0) (rejecting the defendant’s request for a Franks hearing because the alleg ed material omission bearing

on the ver

acity of the pr in cipal informant
was not essential to a finding of probable cause). Thus, we affirm the di strict court’s

denial of

Trujillo’ s motion to suppress

. B. RULE 404(

B) EVI DENCE

Prior to the start of trial, the Governm ent filed a notice regarding its intent to

use cer tain evide nce, pursuant to FederalRule of Evidence 404(b), at trial. The Government’s notice engendered a motion in limine by Trujillo seeking a n order from the district court barring the introduction of the Government’s Rule 404(b) evidence. At the conclusion of a hearing on the motion, the district court allowed in part and denied in part Tr

ujil l o’s motion, allowing the admission atNo. 02-1521 United Sta tes v. Truj illo 13

tri al of six of the

ten ty pes of ev idence p roffer ed by th e Governm ent.
Onappeal, Trujillo has challenged the district court’s order with regard to three ty

pes of the Government ’ s Rule 404(b) evidence. First , Trujillo a rgues t hat the di strict co

urt erre d in allowing the Gove

rnment to introduce evidence that

Campos had traveled to Arizona in order to transport

marijuana back to Detroit for Trujillo on several occasions prior to the start of the charged conspiracy

. Se c ond , Trujillo asserts that the districtcourt erred in allowing the Government to intro du ce evidence that Truj illo h ad paid Campos to title two automobiles in Campos’ n ame and, then , transf er the tit le back to her becaus e th ese alle ged acts also oc curred prior to the start of the charged conspiracy

. Third, Trujillo contends that the distri ct court

erred i n allowing

the Gove

rnment to introduce evidence that Trujillo had threatened Rogensue s that, because Campos and Rogensues had cost her $250,000.00, th ey wer

e going to have to pay for the marijuana. Trujillo argue s that th e d istrict court erred in allowing the Govern ment

to introduce these three pieces of Rule 404( b ) evidence because the district court failed to make any fa

ctual de term ination that any

of the al leged a

ctions actually
occu r red. In addition, Trujillo claims that the district court erred in admitting this Rule 404(b) evidence because the evidence did notassist the jury, beca use the Government

did notintroduce the evide

nce for a legit imate purpose (she never placed her inte nt at issue ), and because the evidence wa s simply propens it y evidence

masquerading as Rule 404(b) evidence which wa s unfair ly prejudic ial to her . Fin ally
, Trujillo asserts that the district court erred in failing to give a proper limiting instruction t o the jury when it admitted the Government’s Rule 404(b) evidence.

The Government

argues that

the distri ct court

did not er r in admitting the Rule

404(b) evidence because the evidence was admitted for permissible purposes (to s how plan, inte nt, 14 United Sta tes v. Truj illo No. 02-1521

op po rt un it y, personal involveme nt, and unexplained wealth) and because the probative v alue of this evidence was not substantia lly outweighed by

any unfair

prejud ice. As for Campos ’ pr ior marijuana trips for Trujillo, the Government asserts that the evidence was hig

hly probativ e to demon strate Trujillo’s method of operation, plan, and preparation. Asfor the title evid

ence, the Gover

nment cla ims that th e e vidence esta bl ished Trujillo’s consciousness of guilt, unexplained wealth, motive, and actions in furtheranceof th e c on sp ir ac y. F in al ly, as for the evidence of a threat, the G ove rnmen t argues that the evidence was admissible t o prove Trujillo’s intent and conscio

usness of guilt.

FederalRule of

Evidence 404(b) pr

ovides in r

elevant part: “Evidence of other crime s, wrong s, or act s is not admissi ble to prove the character of a pe rson in order

to s how action in conform ity therewith. It may, howeve r, be admissible for other purposes, such as proof

of mo ti ve , o pp or tu ni ty, intent, preparation, plan, kn ow le dg e, id en ti ty, or absence of mistake
ora ccident . . . .” Id . In determining whe ther othe r act s evidence under Rul e 404(b)is admissib le, this Courtem pl oys a three -part te st:

First , the dist

r ict cour t must deci de wheth er ther e is sufficient evidence that

the other act in que stion actu

ally
o ccurred. Second , if so, the district c ourt must de cid e whether the e vidence of the other act is probative of a material issue other than character. Third, if the evidence is probative of a material issue other than chara cter, the districtcourt must decide whether the probative value of the evidence is substantially outweighed by its potential prejudic ial effe ct.
United States v. Jenkins , 3 45 F. 3d 928, 937 (6th Cir. 2003)(citing United S

tates v. Haywood , 280 F.3d 715, 719-20 (6th Cir. 2002)). “This court reviews a district court’s evidentiary

determinations under

Fed. R. Evid. 404(b) for ab u se of discretion. A district court is considered to have abused its discreti on when th is court is left with t

he defin iteNo. 02-1521 United Sta tes v. Truj illo 15

andfi rm conviction that the district court committed a cl ea r error of judgment in the conclusion it reached upon a weighing of the relevant

factors.” United States v. Copeland
, 321 F.3d 582, 596 (6th Cir. 2003) (int ernal ci tations and quotations omitted).
Here, we conc lude that

the distri ct court did

not abuse

its discretionin admittin

g the Go vernmen

t’s R ule 404(b) evidence

. A lthough Trujillo argues that the district court failed to make a factual determination that the allege d bad acts occurre d, a ju

ry could re asonably have concluded that Trujillo committed

the prior bad acts basedupon Campos’, Rog ensues’, and Speckman’s testimony and ba sed upon t h e evidence discovered at Trujillo’s home pursuant to the search
warran t. Huddleston v. United States , 485 U.S. 681, 690 (1988). Therefore, the first step in the Rule 404(b) a naly sis is satisfied. Likewise, the second step in the Rule 404(b) i nquiry is satisfied. Because Trujillo was charg ed with a specific intent crime, Rule 404(b) evidenc e wa s admissible to prove her intent. E.g. , United St ates v. Spikes , 158 F.3d 913, 930 ( 6th Cir

. 1998)(“ [T]his court

has held t

hat Rule 40 4(b) evi d enc e is admissible to prove intent if specific intent is a statutory element of the offense.”). Moreover, we agre e with

the districtcourt that

the Rule 404(b) evidence was admissible for proper purposes other than propensity , including plan, opportunity, motive, and unexplained wealth.

Fi na ll y, we also agree with the district court that the evidence of Trujillo’s pri orbad acts was not su

bstantial ly outweighed

by the dang er

o f any unfair prejudic ial effe ct. Fed. R. Evid. 403 ; United Sta tes v. My ers , 123 F. 3d 350, 362-63 (6th Cir. 1997). Accordingly , the district court did not 16 United Sta tes v. Truj illo No. 02-1521

7 In her appell at e brie f, Truji llo cont ends tha t, al though t he dist rict

cour t gave a limiting instruct ion to the jury prior to deliberati ons, the dist rict court erred in fai ling t o give the jur y an appropriate limiti ng ins tru cti on when t

he Rul e 404 (b) e vidence was presented. However, Tr ujillo did no t lodge a tim ely o bjec tion to the district co urt’s failure to inst ruct the jury contemporaneously wit h the admission of t

he Rule 404(b) evidence, and there is no plain e rror h ere. United States v. St ines , 313 F.3d 912, 919 (6th Cir. 20 02) (“W here a defen dan t fails to ma ke a tim ely objection, st ati ng the spe cif ic g rounds for

his ob ject ion , our re view is limi ted to plain error .”); United States v. Mil ler , 115 F. 3d 36 1, 36 6 (6 th Cir. 199 7) (d eclining to fi nd an abu se of dis cret ion where the distr ict court fail ed to pro vide a caut ionar y i nst ruct ion a t t

he t ime of

the admis sion

of the Rule 404(b) evidence but did so at the close of t he case). abusei ts di scretion

in admittin

g the Governmen

t’s Rule 404(b) evidence. 7

C. SUBSTITUTION OF COUNSEL Trujillo argues that the district court abused its discretion indenying

her motion to con tinu e the trial so that her new attorney could adequately

prepare for trial. Moreover, bec ause she could not obtain new counsel to represent her witho u tthe requested continuance, Trujillo asserts that the district court deprived her of her right to counsel of

her own choosing and forced h er to p roceed with the assistance of counsel in whom she had no confidence and who rendered her ineffec tive assistance. Accordingly, Trujillo co ntends that sh e is entitle d to a new

trial.

The Government argues that the district court made a ll of the proper a

nd appro priate in quiries o f Trujillo

as to he r dissatisfactionwith her

attorney and that t he distric t court did notabuse its discretion in denying her request for a continuance of the trial. The Government claim s that, due to the latenes s of her r

equest, i t would have been prejudiced by
a co ntinuance and that the basis for Trujillo’s request fo r a substitution of counse l w as inadequate. Accordingly , the Government

a sser ts that the

district c ourt did no t err in denying Trujillo’s motion to continue.No. 02-1521 United Sta tes v. Truj illo 17

“A motion for new cou

rt-ap pointed counsel based upon def endant’s dissatisfaction with his counsel previous l y app ointe d is addressed to the sound discretion of the trial court.” United Sta tes v. W hite , 451 F.2d

1225, 1226

(6th Cir. 1971). We revie

w a distri ct court ’ s deni al of a motion for a substitution of counsel for an abuse of discr etion. United States v. Williams , 176 F .3d 301, 314 (6t h C ir. 199 9). In particular, we consi der: “( 1) the timelin ess of the motion, (2) the adequa

cy of the co urt’s inqu iry into the matter, (3) the extent of the co

nflict be tween the att or ne y and client and whether it was so great that it resulted in a tota l lack of communicationpreventing an adequate def ense, an d (4 ) the balancingof these factors wi th th e public’s interest in the promptand efficient administration of justice.” United States

v. Mack
, 258 F. 3d 548, 556

(6th Cir. 2 001); Williams , 176 F.3d at 314; United States v. Jennings , 83 F.3d 1 45, 148 (6 th Cir. 1996).
Here, these four fa ctors weigh infavor of a conclusion that the district court did not abuse its discretion in deny ing Trujillo’s motion to continue. First , the mot ion f or substitution of counsel and the motion for a continuance were
un ti me ly, coming only

three day s prior to the scheduled start of the trial. Jennings , 83 F.3d at 148 (motion to continue made the day bef

ore trial); Williams , 176 F.3d at 314 (motion to continue made two weeks before trial). Second , the record establishes that the d

istrict c ourt made

an adeq uate inqui ry in to th e c ru x o f T ru

ji ll o’ s d is sa ti sf

ac ti on wi th he r a tt or ne y.
Third, Trujillo admitted that her dissatisfaction was based upon her counsel’s failure to obtain a suppression of the evidence seized from her home as a re sult of the search
warran t. Because the district court was not going to allow her to reopen the suppression issue, this factor weighsin favor of
a denial of the motion to continue. Fourth , given the adm inistrative hurdles and costs involved in ensuring the attendance of the Go vernmen t’s witne sses for

the tria l, th e public’s interest in the prompt and efficient administration

of justice weighed in favor of deny ing Trujillo’s mot ion t o 18 United Sta tes v. Truj illo No. 02-1521

continue. Accord ingl y, t he distric t court did

not abuse

its discretion in denying

Trujillo’s motion to continue.

D. IMPROPE

R BOLSTERI

NG OR VOU

CHING Trujillo argues that she is entitled to a new trial because the Go ve rnment

improperly vouche d for and bolstered the credibi lity

of Campos a

nd Rogen sues. Spe cifical ly, Trujillo asserts that, bec ause th e G overnment had both witnesses highlight to the jury the fac

tthat unde

r the ter ms of their

plea agree ments they had to truthfully cooperate or they

would be inbreachof their agreements, the jury was improperly lef

t with the impression that the Government had some s ecret method by which to determine wheth er Campos and Rogensues were te lling the truth. Tr ujillo also

claim s error based upon Rog ensues’ test im ony that she a

greed to submit to a polygr

aph examination. In addition, Trujillo contends that the Government’s error inimproper

ly v ouching

for and b olstering

Ca mpo s’ and Rogensues ’ testimony was exacerba ted by the prosec

utor’s

r ebuttal argume

nt to the jur

y. T rujillo cl aims that t

h e prosecutor’s refer

ence toth e “ tr ut hf

ul te st im on y” agree

ments inwhich Campos and Rogensues had entered wa s improper because the statement was intended to convey to the jury

the prosecutor’s opinion that the witnesses’ testimony was truthful. Finally

, Trujil lo argues that the district court erred in failing to give an appropriate cautionary instruction to the ju ry.
T he Gov ernment argues that it did not improperly bolster
or vouch for Cam

pos’ o r Rogensues’ credibility when the prosecutor

referred to the witnesse s’ plea agreements. On the
con tr ar y, the Government notes that the prosecutor limited th e questioning of Campos and Rogensues to the e xist ence of their plea agreements and did not sugg est the prosecutor’s personal assurance or belief as to the verac ity or credibility of eith e r witness. Furthermore, the Government asserts that Rogensu es’ reference to her willingne ss to take a pol y graphNo. 02-1521 United Sta tes v. Truj illo 19

examination was an unsolicited statem e nt which the district court properly de

termined to be a “non-issue” bec ause Rogensues never

took a polyg

raph test. Finally, the Gove rnment

claims that the district court’s failure to g ive a cautionary

instruction doe s no t constitute plain error, especia lly in li ght of t he ove rwhel ming proof s ubmitted at trial est ablishing Trujillo’ s guilt. “‘Improper

vouch ing occurs when a pro secutor supports the credibi lity

of a witness by indicating a personal belief in the witness’s credibility thereby placing the prestige of the office of the United States Attorney behind that witness. [I]mproper vouching i nvolve s either blunt comments or comments that imply that the prosecutor has special knowledg e of facts not infront of the jury . . . .’” United States v. Martinez , 253 F.3d 251, 253-54 (6th Cir. 2001)(quoting United Sta tes v. Fra ncis , 170 F.3d 546, 550 (6th Cir. 1999)). On the other hand, “‘[b]olstering occurs w

hen the prosecutor implies that the witness’s testimony

is corro borated by e vidence known to the governm ent

but not known to the jury.’” Id . at 254 (q uoti n g Francis , 170 F.3d a

t 551). “Wh ether impr oper vouching amounts to prosecutor ial m isconduct and whether it renders the trial fundamentally unfa ir are mixed questions of law and fact reviewable de novo .” United States v. Tocco
, 200 F.3 d 401, 422 (6th Cir . 2000); United S tates v . Clark

, 982 F.2d 965, 968 (6th Cir. 1993).

In the pre sent case, we find that the prosecutor did not imp roperly

vouch for or bolster Campos’ or Rogens ues ’ credibi lit y. Accordingly , no prosecutorial error occurre d which en titles Tru jillo to a ne

w trial. During her direct examination, the prosecutor asked Campos the following questions, and Campos gave the following answer s: Q. Did y

ou plea pu

rsuant to a plea a greement?

A. Yes. 20 United Sta tes v. Truj illo No. 02-1521

Q. Did you rece ive consideration from the gov ernment

in exchange for y

our plea?

A. Yes. Q. Was there a

consider ation from the gov ernment in exchange for truthful cooperation in the case ?

A. Yes.

J.A. 280. L ikewise, during her dire ct e xa mination, the prosecutor

asked Rogensues the follo wing questions, and Rogensu es gav e the fol lowing a

nswers: Q. What were the charges ag ainst you in that case?

A. Conspiracy to deliver ma rijuana. Q. How did you plead?

A. Gu il ty. Q. Why w as that?

A. Do wn wa rd de pa rt ur e f or te st im on y to da y.
* * * Q. Could

you tell the jurors what y our agreement was with regard to cooperation?

A. That I would tell the truth. I

would be here for

pretria l, trial, anything c oncerning this case , that I

admit to a lie detector test.
* * *

A. I wou

ld submit to one – to one , which I will.No. 02-1521 United Sta tes v. Truj illo 21

J.A. 452, 500-01. Fina lly, during the pr osecutor’s rebuttal
ar gu me nt , s he ma de th e f ol lo wi ng st at em en t t o t he ju ry:
Beth Ann Rogensues an d No rma Jean Campos are not free. Three months halfway house away

from the children, three mon ths o n tether, two yea rs probation, and they didn ’t – th ey told you du ring t he dir ect examination that they didn’t come here, and

they didn’t
a gree they would g et on the stand and say whatever t

h e government

w anted t hem to say. They promised to be truthful and provide compl ete information. Truthful and complete inform at ion conce

rning a ll individua

ls with whom they co nspi red to distribute marijuana, but not limitedto Julio or Anna Trujillo. That’s what they told you during the ir examination.

J.A. 203.

As the above

citations to the re cord ma

ke c lear, the pros ec utor

did not offer any

personal observations or opinions
as to the veracity of

either Ca mpos or Rog ensues, nor did she place the prest ige of

th e G ov er nm en t b eh in d t he ir cr ed ib il it y. Rathe r, th e prosec

utor’s qu estions a nd commen

ts merely encompassed

the terms of

Cam pos’ and Rogensues’ plea agree ments which this Court has he ld to b e permissible. Francis , 170 F.3d at 550. Thu s, the Government did not engage in any impro per vo uchin g. Likewise, the Gove

rnment did

not engage in any

improper bols terin g. Again, as the above c itations to the rec ord reve al, the prosecu

tor did not imply

that either Campos’ or Rogensu es’ te stimo ny was cor

roborated by

any evidenc e knownto the Gov ernment but not p res en te d t o t he ju ry. M artinez , 253 F.3d at 254. Thus, there was no improp e r bols terin g.
Fi na ll y, we conclude that the district court cor rec tly characterized

Rogensu es’ unsol icited te st imony rega rding her willingness to submit

to apolygra

ph test as a non-issue which 22 United Sta tes v. Truj illo No. 02-1521

did notprejudice Trujillo, and we also conclude that Trujillo has failed to satisfy the plain e rror standard with regard to the districtcourt’s failure

to give the jury

an appropriate limiting instruction. Accord

ingly, Trujillo

is not entitled to a new trial based up on her cl aims of pr osecutor ial miscon

duct.

E. ADMISSION

OF PRIOR INCONSIST EN T STATEMENTS During the trial, both Campos and Rogensues testified

that they h ad given st

atements to DEA Ta sk Forc e Agen ts Thurstonand Powel l during their pos t-arre st intervi ews in whichthey admitted transporting marijuana f

o r Trujillo and her husband. Campos and

Rogensues also testified that they provided details to DEA Task F orce Agents Thurston and Powell concerning where they delivered the marijuana

upon returningto D etroit, where the Trujillos lived, and the fact that Rog ensues ke

pt a ledger detailing each tr

ip that she and Campos had made

in order to transp ort marij u ana for the Trujillos.

Oncross-e

xamination, Trujillo’ s c oun sel attacked the tr uthfulne ss of Campos’ and Rogensues’ testimony an d attempted to impeach them with their prior inconsistent st atements

which they g ave to Trooper Ortiz and to DE A Task Force Agents Thurston and Powell befor e settling onthe story which they

testified to at trial implicating Trujillo.

The Gov ern ment then

called D EA Task F orce Ag ents Thurstonand Powell in order to re ha bilitate Campos and R ogensue s with the statements which Campos and Rogensues had made to th em during their post-arrest interviews which
were consistent with their trial testimony implicating Trujillo. Trujillo ’s counsel o

bjected to DEA Ta sk Forc e Agen ts Thurstonand

Pow ell’s testimony reg arding Campos’ and Rogens ues’ prior consistent st atements on hears ay

ground s. Fe d. R . Evid. 802. The Government responded that the agents ’ testimony

was admis sible bec ause the agents ’ testimony was offer ed to rebut Trujillo’s charge of rece ntNo. 02-1521 United Sta tes v. Truj illo 23

8 The dist

rict cour t also allo wed DE A A gent L ynch to offer tes timony concerning the prio r con sis te nt stat ements given to her by Campos and Roge nsues. fabrication

by C a m pos and Rogensues, and thus, the testimony did not constitute hearsay. F ed. R. E vid. 801(d)(1)(B). The Government cited three cases to the districtcourt in s

upport of its position : Un ited St ates v. Hebeka
, 25 F.3d 287 ( 6th Cir. 199 4); United States v. Smith
, 746 F.2d 1183 (6th Cir. 1984); and United States v. Hamilton
, 689 F.2 d 1262 (6th

Cir. 1982) . After r

eviewing the case s cited by the Governme

nt, the district court overruled Trujillo’s objection and al low ed DEA Ta sk Forc e Agen ts Thurstonand Powell to testify reg arding Campo s ’ and Rogensu es’ statements whichw ere consistent to the testimony which Cam

pos and Rog ensues ha

d given at trial.

Ac co rd in gl y, DEA Task

Force Agent Powell testi fied tha t, during her inte

rvie w, R ogensues stated that she was deliveringthe marijuana which had been seized from the rental vehicle to Julio Trujillo; that the Trujillos had delivered the rental vehicle to C amp os and he r to be use d in transp orting the marijuana from Arizona to Detroit; that Campos and she had completed five prior marijuana trips for the Trujillos; and

that she was able to remember the dates of those marijuana trips becau se she ke pt a day time ledg er in whichshe noted

th e states through which Campos and she had driven, the miles logged, the hours eac h dro ve, and the total time it took to complete the trips. Simila rly , DEA Tas k Force Agent T

hursto n te stified that, during her interview, Campos told him th at she ha d complet

ed seven trips to Arizonainorder to obtain marijuana which she then delivered to the Tru jillos in De

troit. 8
On appea l, Trujillo reasserts her

argume nt that DEA

Task F orce Agents

Thurston’ and Powel l’s testimony c onsti tute d inadmissib le hearsa

y, a nd th ere fore, the district court committed

prejudici al error by

allowing them to testify 24 United Sta tes v. Truj illo No. 02-1521

regarding Campos’ and Rogensues’ prior consistent statemen ts. Truji llo ar gu es that the cases cited by the Government

and reli ed upon by

the distri ct c ou rt are no longer good la w in light of the Un ited State s Supreme

Court’s holding in Tome v. United States , 513 U.S. 150 (1 995), a nd this Court’s holding in United States v. Toney , 161 F.3d 404 (6th Cir. 1998). Trujillo contends that Campos’ and Rogensu es’ motive to lie arose when they were arrested by Trooper Ortiz in Colorado, and thus, under the holding s of Tome and Toney , the district court committed reversible error inallowing the Go vernment to rehabilitate Campos and Rogensues via DEA Task Force Age nts Thurston and Po we ll ’s te st im on y.
The Government claims that the district c ourt did no t err in allowing DEA Agents Thurston and Powell to offe r t estimony inan attempt

to rehab ilitateCampos an d Rogens ues beca use the agents’ testimony

was offered

to reb ut Tru

jill o’s ch arge of recent fabrication. In essenc e, the Government contends that Trujillo opened the door to this testimony by implying during the cross-examination of Campos and R ogensues that they
were lying and that the y had bee n improperly influence d by their ple a agre ements wi

th the Gov ernment

. FederalRule of Evid e nce 801(d)(1)(B) provides: “A statement is no t h ea rs ay i f . . . [t]he declarant testifies at the tri al or heari ng and is subject to cross-examination concerning the statemen

t, and the st ateme nt is . . . consistent with the declaran t’s tes timony and is offere d to rebut an express or impliedcharge aga

inst the declarant of rece nt f abrication or improper influenc e or mo tive . . . .” Id . “A district court’s determination

of whether evidence constitutes hearsay under the Federal Rules of Evidence is a conclusion of l aw that is reviewed de novo .” Cox v. Treadway , 75 F.3d 230, 238 (6th Cir. 1996) (citi ng Hancock v. Dodson , 958 F.2d 1367, 1371 (6th Cir. 1992)).

Inthe instant case, the district court committed error when it employ ed the wr ong test inresol ving Trujillo’s hearsayNo. 02-1521 United Sta tes v. Truj illo 25

9 “The distri ct court’s determination of w hen the mo tive to lie arose is a fact ual f indin g, whi ch we revi ew under t he ‘cl ea rly erro neous’ standar d.” Toney , 161 F. 3d at 408.

10 The fact that the Govern ment prese nted the evide nce of Ca mpo s’ and Rogensues’ prior cons ist ent st at em ents t hrough DEA Task Force Age nts Thurston and Powel l’s test imony rather tha n from Campo s and Ro gensu es them selves is o f no co nseq uenc e. Hebeka , 25 F. 3d at 293. objection. As noted by Trujillo, the district court neither cited to nor referenced To ney o r Tome in reaching its d ecision to overrul e Trujill o ’s hearsay objection. As such, the district court never rendered a fac

tual finding as to when Campos and Rogensues formed

a motive to lie. 9 Thus, the question which
we must answer is whether the dis trict cou rt prope rly admitted this evidence de spite the district court’s flawed reasoning.

Inorder fo r DEA Task Force Age nts Thurston’s and Powell’s tes t imony

not to be c onsidere d hearsa y un der Rule 801(d)(1)(B): (1) Campos and Rogensue s had to testify and been subject to cross-examination; (2) Tru jillo had to expressly or impliedly charg e recent fabrication or improper influence or motive by Ca mpos and Ro gensue s during their te st im on y; (3) the Government had to offer a prior consistent stat ement that was consistent with the Campos and Rogensue s challenged

in-co urt t estimony; and, (4) Campos’ and Rogensu es’ prior consistent statements must have been made prior to the time that their supposed motive to lie arose. 10 Toney , 161 F.3d a

t 407; Tome , 513 U.S . at 167. T he only factor which is at issue in the instant appeal is the last one, i.e. whether the state ments which Campos and Rogensues made to DEA Task For

ce Age nts Thurston and Powell which were consistent with their trial tes timony were made before they had formed a “motive to lie.”

B as ed upon our review of the record, we c onclude that Campos’ a nd Ro gensues’ prior consistent statements were made after they

had formed their

motiv e to lie. I

t is simply 26 United Sta tes v. Truj illo No. 02-1521

11 W ithin two days of being arrest ed and giving custodi al statements, Campos and R ogensue s att emp ted to coo pera te with the p olice in arranging for the deli very of the ma rijuana to T rujillo an d her husba nd in

a manner whi ch would have in crimin ated b oth. E.g. , J.A. at 331 (o n crossexamination, Tru jillo’s co unsel as ked , “And then yo u end ed up coming back here , an d y ou were arraigned after y ou were unable to set up the Trujillos, correct?,” to which Campos respond ed, “Yes.”). notbelievable to suggest that, a day or two after Campos and Rogensues were sto

pped wit h more than fifty kilog

rams of marij uana

in their car and were subsequently arrested, the y did not have a motive to lie, re ga rding the source of the marijuana, in order

to get le nient tre atment. 11 S

ee Unit ed States v. Esparz

a , 291 F.3d 10 52, 10 55 (6th Cir. 2002)(findingtestimony made at the tim e of an a

rrest inadmissible because “Esparza had thesame motive to lie at the time of h is statemen

t to the off

icer as he did at t

he trial, and so his statement

was no t admi ssib le to r ebut a charge of recent fa bri cation.”). Accordingly, we find that the district court erred in admitting the hearsay statements in question.

Nevertheless, we

also find that this error does not warrant
a r evers al. In order to merit a re versal, this error must be shownnot to have been har mles s, i.e. , that it was more probable than not that the e rror mat erially affec ted the ve

rdict. United S t ates v. Hernandez , 227 F.3d 686, 696 (6th Cir. 2000). We conclude that

the district court’s admission of the hearsay statements constituted harmless error.

First , the err

or was ha

rmless be cause the inadmiss ible hearsay testi mony was eff ectively impeac

hed. After DEA Task Force Agent Thurston

gave his testimony r

ecounting the hearsay sta tements ma

de by Campos and Rogens

ues, Trujillo’s counsel, at

length, impeached the credibility of the stories given by

Campos and Rogensues to DEA Task Force Agent Thurston. See J.A. at 569. DEA Tas k Forc e Agent Thursonadmitted that Campos and R ogensu es were in the
roomtogethe

r at one p oint when

the deta ils o f the ir storiesNo. 02-1521 United Sta tes v. Truj illo 27

were clarified–which indicates that their stories differe d
ea rl ie r– th er eb y, imp eaching Campos’ and Roge nsues’ st ories.

Inaddition, DEA Task For ce Agent T hurston w as unable to deny Trujillo’s attorney ’s assertion that Campos had been
so distresse d upon her

arrest that she was cry

ing when she
was in custody. Id . More importantly, DEA Ta sk Force Agent Thurston agreed

that Campos’ and

Rogensues’ stories only implicated Trujillo in a very minor role w hen compared to that of her husband, Julio. See J.A. at 573-74.

Second , the err

or was ha rmless because

Trujillo’s counsel effec tiv ely impeach ed the two

witnesse s whose te stimony wa s buttressed

by the inadmissible he arsay. Tr ujillo’s counsel impugned the motives of Campos and Roge nsues dur ing his examination of them and which the jury could have recalled up on he ar in g D EA Ta sk Fo rc e A ge nt Th ur st on ’s te st im on y.
Third
, the Gov ern ment presented other significant admissible

evidence which confirmed Trujillo’s involvement inmarijuana trafficking activities. For e xample, Shawn Sp eck man’s testimony

indicate d Trujillo’ s involvem ent in drug traffic

king activities, and DEA Agent L ynch testified

as to having found, a t Trujillo ’s residence, “phone books with names, . . . two scales, in addition to a cellular telephone and pager, fax machine, all have information and phone numbers linking to the crime.” J.A. at 356.

Accordi n gl y, in light of the other admissible evidence presented by t he Gover nment dur

in g t he trial and Trujillo’s attorney’s effec tive impea

chment of DEA Task

Force Agent Thurston, Campos, and Rogensues , it is not prob able tha t,
even without the

improper admission o f th e pri or consistent stat ements of Campos and Rogensues, Trujillo would ha v e been acquitted. As such, the district court ’s improper admission of DEA Task Force Age nts Thurston’s and Powell’s hearsa

y st atements was har mless and d oes not require a reversal of Trujillo’s conviction. 28 United Sta tes v. Truj illo No. 02-1521

F. MOTION FOR A MISTRIAL

Prior to the star

t of trial , the dis tr ict court ruled that there could be no mention of any mar ijuana found

in the possession of Thomas Hysell wher

e the Government

could not prove that the marijuana rec overed f

rom him ca

me from T

rujillo’s h ome

. Becau se Hy sell did no t testify at trial, the dist

rict court’s order resulted in the exclusion of any re fe re nce to the

m arijuana obtained from him after he had met Speck man a t the Trujillo’s home on the night of November 16th. During the trial, the prosecutor questioned Speckman about what had transpired when Hy sell visited Trujillo’s residence just before DEA agents searc hed the residence pursuant to a search warran t–alleg edly

try in g to imply that Hy

sell had purchased

marijuana from

Trujillo. After

Trujillo’s counsel objected, the district court cautioned the prosecutor not to let the witness testify reg arding the marijuana seized fr o m Hy sell.

Su bs eq ue nt ly, while DEA Agent Anthony B ryndza was testif yi ng, the prose cutor ina

dverten tly t endere d an exhibit consisting of marijuana taken from Hysel l th e night that he went to Trujillo’s home a n d met with Speckman. The prosecutor’s reference

to the exhibit caused

Bryndza to re fer to the marij uana and attribut e it to Hysell. Trujillo’s counsel immediate ly

moved for a mist rial, but the district court denied the motion, ad monis hed the witness, and instructed the jury to disreg ard any

refer ences to the exhibit or testimo n y regar ding the marijuana attribu

ted to Hy sell. Trujillo argues that the district court abused its discretion inden yi ng her motion for a mistrial based upon the Governm e nt’s witnesse s’ references to th e marijuana obtained fromHy sell in violation of the district court’s order excluding this evidenc e. Trujil lo conten ds t ha t the prosecutor’s violation of the district court’s order was flag rant and highly prejudic ial. Accord

in gl y, Trujillo as serts that the prosecutor’s improper implication to the jury

that she li

ved at a houseNo. 02-1521 United Sta tes v. Truj illo 29

frequented

by i ndividual s who posse ssed mar ijuana e ntitle d her to a new tri al, and th erefor e, the dis trict cou

rt erre d in deny ing her motion for

a mistria l.

The Government argues that, contrary to Trujillo’s assert ion otherwise, the complained of remarks were not flagr ant. Infact, th e Gover

nment note s that the r

efere nces to the marijuana possessed by Hysel l w ere mad

e by a witness
, n otthe prosecutor, and therefore, the witness’ c ommen t s should not be attributed

to it. Accordingly , the Government claims that the district court did not abuse i ts d iscretion in deny ing Tru jillo’s moti on for a m

istrial.

“We review for abuse of discretion the di strict court’s denial of a motion

for mistr ia l. ” United States v. Yang , 281 F.3d 534, 549 (6th Cir. 2002). “An abus e of discretion e xists when the reviewi ng cour t is firmly convinced tha

t a mistake has been made.” United

States v. Carroll , 26 F.3d 1380, 1383 (6th Cir. 1994 ). Deference is given to the district c ourt because “[t]he tria

l judge i s inthe best position to determine the natur e of the a lleged jury misconduct . . . [and] is a lso in the best position t o determine appropriate remedies for a ny demonstr atedmisconduct.” United States v. Copeland , 51 F.3d 611, 613 (6th Cir. 1995). As we have previously

explained:

When reviewi

ng clai ms of prosecutorial misconduct, we determine fi r st whether the statements were improper. See United States v. Krebs
, 788 F.2d 1166, 1177 (6th Cir. 1986). If th ey

appear improper , we then

look to see

if they were f lagrant and warrant re

versal. See United States v. Carroll

, 26 F.3d 1380, 1388 (6th Cir. 1994). To determine fl ag ra nc y, the stand ard set by th

is Court is: 1) whether the state me n ts tended to mislead the jury or prejudice the defendant; 2) whether thestatements were isolated or among

a serie s of i mproper statements; 3) whether the state ments wer

e delibe rately or acci dentally before the jury ; and

4) the total strength of the evidence 30 United Sta tes v. Truj illo No. 02-1521

ag ainst the accused. United States v. Monus , 128 F.3 d 376, 394 ( 6th C ir. 19 97)(ci ting United States v. Cobleigh
, 75 F.3d 242, 247 (6th Cir . 1996)); Carroll , 26 F.3d at 1385 (citi ng United States v. Leon , 5 34 F.2d 667, 679 (6th Cir. 1976)). To reverse a conviction beca use of an improper non-fla grant s tatement , a revie

wing co urt must determine that: 1) the proof of the defe ndant’s g uilt is not overwh elmi ng; 2) the defense counsel objected; and 3) the trial cou

rt faile d to cure

the improp

riety by f ailing to admonish the jury. Monus , 128 F.3d at 394; Carroll
, 26 F.3d at 1385 -86 (ci ting United Sta tes v. Be ss , 593 F.2d 749, 757 (6th Cir. 1979)).

Francis , 170 F.3d at 549-50.

Inthe case sub judice , we find that the district court did not abusei ts discretion in denying Trujillo’s motion for a mistrial. Although the reference t o the marijuana recovered fromHysell was improper because it violated

the d istrict court’s pre-trial order, we do not believe the re ferenc e was flagrant or requi res a re versal. Our review of the record leads
us to believe that ref

erence was accidental, did not mislead the jury or pre

judice Trujillo, and was an isolate d stateme nt. Moreover, immediate ly a fter the imp roper

statement by Bryndza, the district court properly admonished the jury, and
we cannot say that

the other evidenc e of Truj illo’s gu ilt is so insubstantial that a reversal is required in l ig ht of this improper reference. Ac cor dingly, the district cour t did not abuseits d iscretion in denying Trujillo’s motion for a mistrial.

G. CUMULATIVE ERROR Trujillo argues that, even if no single a ssignment of error is sufficient to warrant a new trial, the totality of errors deprived her of her c onst it ut io na l r ig ht to a f ai r t ri al . A cc or di ng ly, Trujillo asks us to grant her a new trial based upon a theory of cumulative error.No. 02-1521 United Sta tes v. Truj illo 31

The Government

argues that, because Trujillo hasfailed to demonstr ate that the district court committed any individual
errors , her claim of cumulative e rror f ails. In any

event, the Government

claims that Trujillo has failed to d emonstrate that Trujillo was deprived of her right to a fa ir trial as a resul t of any of the district cour

t’s rulings.

Inorder to

obtain a new trial based upon cumulative error,
a def endantmust show that the combined effect of individua lly ha rmless errors was so prejudicial as to render hi s trial fundamentally unfa ir. United States v. Parker
, 99 7 F.2d 219, 221 (6th Cir. 1993). This is so because “errors that might not be so prejudicial as to amount to a deprivation of due p rocess when considered alone . . . may cumulativel y prod uce a trial setting that is fundamentally unfair.” Uni te d States v. Hernandez , 227 F.3d 686, 697 (6th Cir. 2000)(citing Walker v. Engle , 703 F.2d 959, 963 (6th Cir. 1983))(internal quotation marks omitted).
However, the only error c ommitted by the district court was inadmitting

some hea

rsay statemen ts made by D EA Task Force Agents

Thurston and Powell. We have found this error to be ha rmless, and Trujillo has failed to identify a ny other
error committed by the district cou rt wh ich could be combined with this ha

rmless er ror in or der to s upport a finding of cumulative error and which would rise to the level of fundamental unfairness. United Sta tes v. Riv era , 900 F.2d 1462, 1471 (10th Cir. 1990)(holding that “a cumulative-error analy sis should eva

luate onl y the effect of matters determined to be error, not the cumulative effect of non -err ors .”) . In short, there is no showing in the record in this case that T rujillo was denied a fundamentally fair trial. United State s v. Ashworth , 836 F.2d

260, 267 (6th Cir. 1988). Ac co rd in gl y, Trujillo is not entitled to anew trial based upon her claim of cumulative error. 32 United Sta tes v. Truj illo No. 02-1521

H. ORGANIZE

R/LEADER E

NHANCEMENT

Fi na ll y, Trujillo argues that, at a minimum, she is entitled to a new sentencing

hearing because the district court e rred in enhancing

her offense level by

two levels, pursuan t to U.S.S.G. § 3B1.1(c), for being an organizer or leader in the
co ns pi ra cy. Trujillo asserts that the ev idence presented during her trial clea

rly es tablished that the leader of the conspiracy

was her husband, Julio, a nd that the only actions whichshe allegedly

took in furtherance of

the conspiracy

was to rent cars for

Ca mpos and Rogensues to be used in the transportation

of marijuana. Accordi n gly, Tr ujillo asks the Courtto remand this matter for re-sentencing with directions to the distri ct court

that she not rece iv e a two-level enhancement for being an organizer or leader.

The Government contends that the evidence presented at trial proved that Trujillo exercised control over Campos and Rogensu es. Accordingly , the Government clai ms that the districtcourt did

not err in enhanc ing Tru

jillo’s ba se offe

nse level by two pursuant to U.S.S.G. § 3B1.1( c).

Title 18 U.S.C. § 3742(e) provides that courts of appeals “sha ll a ccept th e finding s of fac t of the dis trict cou rt unless they are clearly

erroneous and

shall gi ve due de ferenc e to the districtcourt’s application of the guidelines to the facts.” Id .; United States v. Jack

son-Randolph , 282 F.3d 369, 389-90 (6th Cir. 2002 ). U.S.S.G. § 3B1.1(c) provides that “[i]f the defendant was an org anizer, le ader, ma nager , or super

visor in any criminal activity other than desc ribed in (a) or (b), increa se by 2 levels. ” Id . (emphasis in original). Thus, the Sentencing Guidelines provision“requir es a sentencing court to enhance a sentence [by ] two leve ls if the court finds that the accused served in a manag erial or supervis ory

role during the criminal activity.” Jones v. United States , 16 1 F.3d 3 97, 399 (6th Cir. 1998).

Inthe pres e nt case, the evidence presented by the Government

at trial clearly

established

that Trujillo exercisedNo. 02-1521 United Sta tes v. Truj illo 33

control, supervision, andmanagement over Campos and Rogensu es. Trujillo r e cruited Campos to transport the marijuana across t

h e country for he

r; she provided transportation

for Campos to do so; she provided instruction
as to who and w

here to m eet in or

der to obt ain the marijuana; and she instructed

Campos and Rogensues concer ning how to handle the marijuana up on their return to Detroit, i.e. , she instructed them to “bring in the babies from the cold so that they won’t get cold” which Campos understood as coded langua ge instructing her to bring the marijuana

into Campos ’ hous e

. Accordingly , based upon the evidence presented at trial, we find tha t the distr ict cour t did not cle arly

err in denying Trujillo’s objection to the two-level enhancement whichshe recei ved, pursuant to U.S.S.G. § 3B1.1(c), for be in g a n o rg an iz er or le ad er of th e c ha rg ed co ns pi ra cy.
III. CONCL USION

Ac co rd in gl y, for the reasons set forth above, we AFFIRM the judgment

and the sentence imposed upon Trujillo by the district c ourt.