*

The Honorable Richard Mills, United States District Judge for the

Central District of Illinois, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0234P (6th Cir.)

File Name: 04a0234p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANNA TRUJILLO,

Defendant-Appellant.

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No. 02-1521

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 00-80676—Paul D. Borman, District Judge.

Argued: March 9, 2004

Decided and Filed: July 22, 2004 

Before: MARTIN and CLAY, Circuit Judges; MILLS,

District Judge.*

_________________

COUNSEL

ARGUED: John F. Royal, Detroit, Michigan, for Appellant.

Wayne F. Pratt, UNITED STATES ATTORNEY, Detroit,

2 United States v. Trujillo No. 02-1521

1

The name on the rental agreement was Nancy Nichols, and the

agreement was signed by Shawn Speckman.

Michigan, for Appellee. ON BRIEF: John F. Royal, Detroit,

Michigan, for Appellant. Karen M. Gibbs, UNITED

STATES ATTORNEY, Detroit, Michigan, for Appellee.

_________________

OPINION

_________________

RICHARD MILLS, District Judge. In this appeal, Anna

Trujillo asks this Court to vacate her conviction and sentence

and to dismiss the indictment against her, to grant her a new

trial, or to remand her case for re-sentencing.

Trujillo contends that she is entitled to the relief which she

seeks because the district court committed several substantive

and procedural errors which, taken either individually or as a

whole, entitle her to a vacation of her conviction and

sentence.

For the following reasons, we AFFIRM the judgment and

the sentence imposed upon Trujillo by the district court.

I. BACKGROUND

On November 14, 1998, Colorado State Police Trooper

Steven Ortiz stopped a vehicle driven by Norma Jean Campos

near Pueblo, Colorado, for speeding and for impeding the

normal flow of traffic. Beth Ann Rogensues was a passenger

in the vehicle. Trooper Ortiz became suspicious of Campos

and Rogensues because neither individual was listed on the

rental agreement provided to Trooper Ortiz by Campos,1

because neither Campos nor Rogensues could identify who
No. 02-1521 United States v. Trujillo 3

2

Campos told Trooper Ortiz that she and Rogensues were on their

way back to Detroit, Michigan, from Phoenix, Arizona, (where they had

been staying with her aunt) because her mother had suffered a medical

emergency. On the other hand, Rogensues informed Trooper Ortiz that

they had been in Phoenix in order to relocate a business there, although

she could not specify what type of business, and that she was unaware of

any medical emergency suffered by Campos’ mother.

had rented the vehicle, and because Campos and Rogensues

related inconsistent stories regarding their travel plans.2

Thereafter, Trooper Ortiz asked for, and received,

permission from Campos to search the vehicle. Upon

conducting his search, Trooper Ortiz discovered 123 pounds

of marijuana hidden in duffle bags in the trunk. Accordingly,

Trooper Ortiz arrested Campos and Rogensues and

transported the two women to the Drug Enforcement

Administration (“DEA”) office. 

Once at the DEA’s office, DEA task force agents

interviewed Campos and Rogensues separately regarding

their transportation of marijuana. DEA Task Force Agent

Ronald Thurston interviewed Campos. Initially, Campos

denied any knowledge about the marijuana. However,

Campos eventually admitted that this was approximately her

fifth or sixth trip transporting marijuana. Specifically,

Campos stated that Anna and Julio Trujillo had contacted her

about driving to Arizona in order to meet with some people,

pick up loads of marijuana, transport it back to Detroit,

Michigan, and deliver the marijuana to them.

Meanwhile, DEA Task Force Agent Perry Powell was

interviewing Rogensues. Initially, Rogensues told Agent

Powell that she and Campos had been approached by a man

at a bus station who had asked them to transport the duffle

bags for him. However, after hearing Campos crying in the

next room, Rogensues confessed that the story was a lie

which she and Campos had made up when they were in the

back of Trooper Ortiz’s squad car. Rogensues then admitted

4 United States v. Trujillo No. 02-1521

3

Rogensues testified that she never looked in any of the duffle bags

but assumed marijuana was contained therein based upon what Campos

had told her and the amount of money which they were receiving for the

trip.

that they were transporting the marijuana to Detroit for the

Trujillos.3 

After confessing to transporting the marijuana for the

Trujillos, Campos and Rogensues provided various details

regarding their past marijuana trips for the Trujillos

(including providing identifying information which allowed

DEA agents in Detroit to confirm the provided information),

and they agreed to act as cooperating witnesses and to

participate in a controlled delivery of the marijuana to the

Trujillos. Thereafter, DEA Task Force Agent Powell

telephoned DEA Agent Debra Lynch in Detroit in order to set

up a controlled delivery. Based upon the information

provided by DEA Task Force Agent Powell, DEA Agent

Lynch sought and obtained a search warrant from United

States Magistrate Judge Donald Scheer for the Trujillo’s

home. 

On November 15, 1998, Campos and Rogensues returned,

under escort, to Detroit. Once in Detroit, Campos told DEA

Agent Lynch that she had been introduced to Anna Trujillo

through a mutual friend who had made a lot of money

transporting marijuana for Anna Trujillo prior to 1998.

Campos also informed DEA Agent Lynch that she and

Rogensues had driven to and from Arizona in order to

transport marijuana for the Trujillos on five prior occasions.

Moreover, Campos stated that Shawn Speckman had rented

cars for their use on the instant trip and also on two or three

prior trips.

In addition, Campos informed the DEA agents that Anna

Trujillo had paid her $250.00 to title two cars in her name

and, then, to transfer the title back to Trujillo after the cars

had been purchased. Finally, Campos and Rogensues advised
No. 02-1521 United States v. Trujillo 5

4

This conversation was not tape recorded.

DEA Agent Lynch that they would either page or call Julio

Trujillo on his cellular telephone when they got back to

Detroit and that, frequently, they would meet at the Trujillo’s

residence in order to deliver the marijuana.

Campos, Rogensues, and DEA Agent Lynch then went to

the Rexford Police Department which is in close proximity to

the Trujillo’s residence. From there, the Trujillos were paged

several times, but no response was ever received. The next

day, Anna Trujillo telephonically spoke with both Campos

and Rogensues on four occasions which were tape recorded

by DEA agents. During the second of these four

conversations, 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’ home. In the third of

these four telephone conversations, Rogensues advised Anna

Trujillo that they had brought the babies in so that they would

not get cold. 

In the fourth conversation, Anna Trujillo told Rogensues

that she (Rogensues) and Campos had cost her $250,000.00

and that everyone in the house would have to pay for it.

Rogensues testified that she understood the comment to mean

that Campos and she would have to pay for the marijuana.4

Ultimately, the DEA agents were unsuccessful in their

attempts to establish a controlled delivery of the marijuana to

the Trujillos.

On November 16, 1998, DEA agentssearched the Trujillo’s

home pursuant to the warrant issued by Magistrate Judge

Scheer. As a result of the search, DEA agents discovered

personal telephone books, titles to two vehicles in Campos’

name which had previously been used to transport marijuana,

two digital scales, cellular telephones and pagers, and a fax

machine. However, no narcotics were discovered.

6 United States v. Trujillo No. 02-1521

5

Julio Trujillo has filed a separate appeal with this Court challenging

the sentence imposed upon him by the district court.

Campos and Rogensues ultimately pleaded guilty to

conspiracy to deliver marijuana pursuant to a plea agreement

which required them to cooperate with the Government. As

a result of their pleas and cooperation, the district court

sentenced Campos and Rogensues to three months in a halfway house, to three months on electronic tether, and to two

years of supervised release.

On September 19, 2000, a federal grand jury indicted Anna

and Julio Trujillo for conspiracy to possess with the intent to

distribute in excess of one hundred kilograms of marijuana in

violation of 21 U.S.C. §§ 841(a)(1) and 846. Julio Trujillo

pleaded guilty, pursuant to a written plea agreement, to

conspiracy to possess with the intent to distribute in excess of

one hundred kilograms of marijuana. In addition, pursuant to

the terms of the plea agreement, Trujillo agreed to provide

truthful and complete information, in good faith, concerning

all of his knowledge about the marijuana trafficking.

Thereafter, the district court sentenced Julio Trujillo to

eighty-three months of imprisonment.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 evidence obtained as a result

of the search of her residence. Trujillo argued that the

affidavit in support of the search warrant application filed by

DEA Agent Lynch was defective, and therefore, the search

warrant was invalid. On September 6, 2001, after conducting

an evidentiary hearing, the district court denied Trujillo’s

motion to suppress. Specifically, the district court found that

the information contained within DEA Agent Lynch’s

affidavit was sufficient to establish probable cause and also

found that, even if the affidavit had included the information

regarding Campos’ and Rogensues’ prior inconsistent

statements to DEA Task Force Agents Thurston and Powell,
No. 02-1521 United States v. Trujillo 7

6

Attorney Royal represents Trujillo in this appeal.

probable cause would have still existed to issue the search

warrant.

Furthermore, atthe final pretrial conference which occurred

five days prior to the start of trial, Trujillo represented to the

district court that there had been a break-down in her

relationship with her attorneys. As such, Trujillo asked the

district court to allow attorney John Royal’s motion to

substitute his representation for that of her present counsel

and, thereafter, to allow her motion to continue the trial so

that attorney Royal could have adequate time to prepare for

trial.6 At the hearing, attorney Royal informed the district

court that he desired to represent Trujillo in this matter but

only if he had sufficient time to prepare for trial, i.e., sixty

days. The Government objected to a continuance, asserting

that it would be prejudiced by any delay in the start of the

trial. The district court then stated that jury selection would

proceed as scheduled on November 6, 2001, but that the

presentation of the evidence could be delayed until November

8, 2001. Given the district court’s denial of the motion to

continue, Attorney Royal did not believe that he had

sufficient time in which to prepare for trial, and thus, he

declined to take the case.

Finally, on the day prior to the start of the trial, the district

court heard oral arguments on Trujillo’s motion in limine to

exclude certain evidence, pursuant to Federal Rule of

Evidence 404(b), which the Government sought to introduce

at trial. Thereafter, the district court excluded some of the

Government’s evidence but authorized the admission of the

rest. Specifically, the district court allowed the Government

to introduce: (1) Campos’ testimony that, atTrujillo’s request,

she traveled to Arizona and transported marijuana back to

Detroit on several occasions prior to the beginning of the

charged conspiracy; (2) Campos’ testimony that Trujillo paid

her to title several cars in her name and, then, transfer the title

8 United States v. Trujillo No. 02-1521

back to Trujillo; and (3) evidence of an alleged threat by

Trujillo toward Rogensues.

On November 8, 2001, a jury found Trujillo guilty of the

one count charged in the indictment. On April 8, 2002, the

district court sentenced Trujillo to seventy-eight months of

imprisonment. In so doing, the district court denied Trujillo’s

objection to the amount of marijuana for which she was being

held accountable as relevant conduct and also denied

Trujillo’s objection to a two-level enhancement, pursuant to

U.S.S.G. § 3B1.1(c), for being an organizer or leader in the

conspiracy. On April 18, 2002, Trujillo filed a timely notice

of appeal challenging her conviction and sentence.

II. ANALYSIS

On appeal, Trujillo has raised seven grounds in support of

her argument that we should vacate her conviction and either

outright dismiss the indictment against her or grant her a new

trial, and she has raised one ground in support of her

argument that, at a minimum, we should remand her case for

re-sentencing. We will address her arguments seriatim.

A. MOTION TO SUPPRESS

Trujillo argues that the search warrant issued by Magistrate

Judge Scheer was invalid because the affidavit filed by DEA

Agent Lynch in support of the application for the warrant

omitted the fact that Campos and Rogensues had given

numerous inconsistent versions of the facts surrounding their

marijuana trafficking before naming her and her husband as

the ultimate recipients of the narcotics. Trujillo asserts that

the omission of this critical information regarding the

credibility and reliability of Campos and Rogensues rendered

the affidavit fatally defective. Trujillo claims that the omitted

evidence regarding Campos’ and Rogensues’ lying to law

enforcement agents before settling on a story incriminating

her should have triggered an evidentiary hearing where she

would have been able to show that DEA Agent Lynch acted
No. 02-1521 United States v. Trujillo 9

with reckless disregard for the truth in presenting the warrant

application to Magistrate Judge Scheer. In short, Trujillo

contends that the affidavit presented by DEA Agent Lynch

was so condensed that it misled Magistrate Judge Scheer and

rendered him unable to determine whether probable cause

existed to issue the warrant.

The Government argues that the district court correctly

denied Trujillo’s motion to suppress because DEA Agent

Lynch’s affidavit was not facially defective and probable

cause existed for the issuance of the warrant. Specifically, the

Government asserts that the affidavit informed Magistrate

Judge Scheer that Campos and Rogensues had been

interviewed separately and provided corroborating details

(details which were verified by DEA agents) as to Trujillo’s

residence and informed Magistrate Judge Scheer of the fact

that Julio Trujillo had just been released from prison after

serving a sentence for a drug conviction. 

Furthermore, the Government contends that the affidavit

clearly indicated that the information provided by Campos

and Rogensues was reliable and corroborated. Finally, the

Government claims that, even had DEA Agent Lynch

informed Magistrate Judge Scheer of the fact that Campos

and Rogensues had provided inconsistent stories to DEA Task

Force Agents Thurston and Powell, the affidavit and

application would not have been weakened and still would

have been supported by probable cause sufficient to issue the

search warrant.

We have previously explained:

This court reviews the sufficiency of an affidavit to

determine “whether the magistrate had a substantial basis

for finding that the affidavit established probable cause

to believe that the evidence would be found at the place

cited.” United States v. Davidson, 936 F.2d 856, 859 (6th

Cir. 1991)(quotation omitted). The affidavit should be

reviewed in a commonsense–rather than a

10 United States v. Trujillo No. 02-1521

hypertechnical– manner, and the court should consider

whether the totality of the circumstances supports a

finding of probable cause, rather than engaging in

line-by-line scrutiny. United States v. Greene, 250 F.3d

471, 479 (6th Cir. 2001). The magistrate’s determination

of probable cause is afforded great deference, and that

determination should be reversed only if the magistrate

arbitrarily exercised his discretion. Id.

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

“The task of the issuing magistrate is simply to make a

practical, common-sense decision whether, given all the

circumstances set forth in the affidavit before him, including

the ‘veracity’ and ‘basis of knowledge’ of persons supplying

hearsay information, there is a fair probability that contraband

or evidence of a crime will be found in a particular place.”

Illinois v. Gates, 462 U.S. 213, 238 (1983). “The probable

cause requirement . . . is satisfied if the facts and

circumstances are such that a reasonably prudent person

would be warranted in believing 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 Cir. 1996)(citing United States v. Besase, 521 F.2d

1306, 1307 (6th Cir. 1975)). Thus, “only the probability, and

not a 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 the instant case, we find that the totality of the

circumstances presented in DEA Agent Lynch’s affidavit

provided Magistrate Judge Scheer with a substantial basis for

finding probable cause to search Trujillo’s residence.

Massachusetts v. Upton, 466 U.S. 727, 733 (1984).

Accordingly, the district court did not err in denying

Trujillo’s motion to suppress.

As the district court correctly noted, in her affidavit, DEA

Agent Lynch specifically advised Magistrate Judge Scheer
No. 02-1521 United States v. Trujillo 11

that, after being interviewed separately, Campos and

Rogensues provided detailed facts of a conspiracy to

distribute marijuana. Specifically, the affidavit represented

that Campos and Rogensues were transporting money to

Arizona in exchange for marijuana which they would then

return to Julio Trujillo whom they contacted via his cellular

telephone or pager and who instructed them to deliver the

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 Trujillos in order to obtain marijuana.

Finally, DEA Agent Lynch’s affidavit contained the fact that

a controlled delivery was planned for the same day upon

which she sought the search warrant. Thus, we believe that

DEA Agent Lynch’s affidavit provided probable cause for

Magistrate Judge Scheer to issue the search warrant at issue.

As for Trujillo’s challenge to the reliability and credibility

of Campos and Rogensues and the necessity of an evidentiary

hearing prior to the issuance of the warrant, the affidavit

clearly indicated that the information provided by Campos

and Rogensues was reliable and corroborated. Specifically,

DEA Task Force Agents Thurston and Powell were able to

verify with law enforcement authorities in Michigan that the

Trujillos lived at the address provided by Campos and

Rogensues and that Julio Trujillo had recently been released

from prison after serving a sentence on a drug charge as stated

by Campos and Rogensues. Franks v. Delaware, 438 U.S.

154, 165 (1978)(noting that “probable cause may be founded

upon . . . information . . . that sometimes must be garnered

hastily.”).

Finally, as for Trujillo’s claim that DEA Agent Lynch acted

with reckless disregard for the truth in omitting certain facts

from her affidavit, a defendant is entitled to a Franks hearing

“if and only if : (1) there is a substantial preliminary showing

that specified portions of the affiant’s averments are

deliberately or recklessly false and (2) a finding of probable

cause would not be supported by the remaining content of the

affidavit when the allegedly false material is set to one side.”

12 United States v. Trujillo 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

in such an instance of perjury, the warrant will be voided if

the false statement is necessary to establish probable cause.

The defendant must prove by a preponderance of the evidence

that the affiant’s remaining content is insufficient to establish

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 Lynch excluded certain facts from her affidavit

with an intention to mislead Magistrate Judge Scheer. Mays

v. City of Dayton, 134 F.3d 809, 816 (6th Cir. 1998). In

addition, we agree with the district court that, even had DEA

Agent Lynch included in her affidavit the fact that Campos

and Rogensues had given prior inconsistent statements before

pointing to Trujillo as a co-conspirator, these facts would not

have negated a finding of probable cause. Atkins, 107 F.3d at

1216-17 (denying the defendant’s motion for a Franks

hearing because alleged material omissions were not essential

to a probable cause finding); United States v. Martin, 920

F.2d 393, 398 (6th Cir. 1990)(rejecting the defendant’s

request for a Franks hearing because the alleged material

omission bearing on the veracity of the principal informant

was not essential to a finding of probable cause). Thus, we

affirm the district court’s denial of Trujillo’s motion to

suppress.

B. RULE 404(B) EVIDENCE

Prior to the start of trial, the Government filed a notice

regarding its intent to use certain evidence, pursuant to

Federal Rule of Evidence 404(b), at trial. The Government’s

notice engendered a motion in limine by Trujillo seeking an

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 Trujillo’s motion, allowing the admission at
No. 02-1521 United States v. Trujillo 13

trial of six of the ten types of evidence proffered by the

Government.

On appeal, Trujillo has challenged the district court’s order

with regard to three types of the Government’s Rule 404(b)

evidence. First, Trujillo argues that the district court erred in

allowing the Government 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. Second, Trujillo asserts that the

district court erred in allowing the Government to introduce

evidence that Trujillo had paid Campos to title two

automobiles in Campos’ name and, then, transfer the title

back to her because these alleged acts also occurred prior to

the start of the charged conspiracy. Third, Trujillo contends

that the district court erred in allowing the Government to

introduce evidence that Trujillo had threatened Rogensues

that, because Campos and Rogensues had cost her

$250,000.00, they were going to have to pay for the

marijuana.

Trujillo argues that the district court erred in allowing the

Government to introduce these three pieces of Rule 404(b)

evidence because the district court failed to make any factual

determination that any of the alleged actions actually

occurred. In addition, Trujillo claims that the district court

erred in admitting this Rule 404(b) evidence because the

evidence did not assist the jury, because the Government did

not introduce the evidence for a legitimate purpose (she never

placed her intent at issue), and because the evidence was

simply propensity evidence masquerading as Rule 404(b)

evidence which was unfairly prejudicial to her. Finally,

Trujillo asserts that the district court erred in failing to give a

proper limiting instruction to the jury when it admitted the

Government’s Rule 404(b) evidence.

The Government argues that the district court did not err in

admitting the Rule 404(b) evidence because the evidence was

admitted for permissible purposes (to show plan, intent,

14 United States v. Trujillo No. 02-1521

opportunity, personal involvement, and unexplained wealth)

and because the probative value of this evidence was not

substantially outweighed by any unfair prejudice. As for

Campos’ prior marijuana trips for Trujillo, the Government

asserts that the evidence was highly probative to demonstrate

Trujillo’s method of operation, plan, and preparation. As for

the title evidence, the Government claims that the evidence

established Trujillo’s consciousness of guilt, unexplained

wealth, motive, and actions in furtherance of the conspiracy.

Finally, as for the evidence of a threat, the Government

argues that the evidence was admissible to prove Trujillo’s

intent and consciousness of guilt.

Federal Rule of Evidence 404(b) provides in relevant part:

“Evidence of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show action in

conformity therewith. It may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake

or accident . . . .” Id. In determining whether other acts

evidence under Rule 404(b) is admissible, this Court employs

a three-part test:

First, the district court must decide whether there is

sufficient evidence that the other act in question actually

occurred. Second, if so, the district court must decide

whether the evidence 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 character, the

district court must decide whether the probative value of

the evidence is substantially outweighed by its potential

prejudicial effect.

United States v. Jenkins, 345 F.3d 928, 937 (6th Cir.

2003)(citing United States 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

abuse of discretion. A district court is considered to have

abused its discretion when this court is left with the definite
No. 02-1521 United States v. Trujillo 15

and firm conviction that the district court committed a clear

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) (internal citations and

quotations omitted).

Here, we conclude that the district court did not abuse its

discretion in admitting the Government’s Rule 404(b)

evidence. Although Trujillo argues that the district court

failed to make a factual determination that the alleged bad

acts occurred, a jury could reasonably have concluded that

Trujillo committed the prior bad acts based upon Campos’,

Rogensues’, and Speckman’s testimony and based upon the

evidence discovered at Trujillo’s home pursuant to the search

warrant. Huddleston v. United States, 485 U.S. 681, 690

(1988). Therefore, the first step in the Rule 404(b) analysis

is satisfied.

Likewise, the second step in the Rule 404(b) inquiry is

satisfied. Because Trujillo was charged with a specific intent

crime, Rule 404(b) evidence was admissible to prove her

intent. E.g., United States v. Spikes, 158 F.3d 913, 930 (6th

Cir. 1998)(“[T]his court has held that Rule 404(b) evidence

is admissible to prove intent if specific intent is a statutory

element of the offense.”). Moreover, we agree with the

district court that the Rule 404(b) evidence was admissible for

proper purposes other than propensity, including plan,

opportunity, motive, and unexplained wealth.

Finally, we also agree with the district court that the

evidence of Trujillo’s prior bad acts was not substantially

outweighed by the danger of any unfair prejudicial effect.

Fed. R. Evid. 403; United States v. Myers, 123 F.3d 350,

362-63 (6th Cir. 1997). Accordingly, the district court did not

16 United States v. Trujillo No. 02-1521

7

In her appellate brief, Trujillo contends that, although the district

court gave a limiting instruction to the jury prior to deliberations, the

district court erred in failing to give the jury an appropriate limiting

instruction when the Rule 404(b) evidence was presented. However,

Trujillo did not lodge a timely objection to the district court’s failure to

instruct the jury contemporaneously with the admission of the Rule 404(b)

evidence, and there is no plain error here. United States v. Stines, 313

F.3d 912, 919 (6th Cir. 2002)(“Where a defendant fails to make a timely

objection, stating the specific grounds for his objection, our review is

limited to plain error.”); United States v. Miller, 115 F.3d 361, 366 (6th

Cir. 1997) (declining to find an abuse of discretion where the district court

failed to provide a cautionary instruction at the time of the admission of

the Rule 404(b) evidence but did so at the close of the case).

abuse its discretion in admitting the Government’s Rule

404(b) evidence.7

C. SUBSTITUTION OF COUNSEL

Trujillo argues that the district court abused its discretion

in denying her motion to continue the trial so that her new

attorney could adequately prepare for trial. Moreover,

because she could not obtain new counsel to represent her

without the requested continuance, Trujillo asserts that the

district court deprived her of her right to counsel of her own

choosing and forced her to proceed with the assistance of

counsel in whom she had no confidence and who rendered her

ineffective assistance. Accordingly, Trujillo contendsthatshe

is entitled to a new trial.

The Government argues that the district court made all of

the proper and appropriate inquiries of Trujillo as to her

dissatisfaction with her attorney and that the district court did

not abuse its discretion in denying her request for a

continuance of the trial. The Government claims that, due to

the lateness of her request, it would have been prejudiced by

a continuance and that the basis for Trujillo’s request for a

substitution of counsel was inadequate. Accordingly, the

Government asserts that the district court did not err in

denying Trujillo’s motion to continue.
No. 02-1521 United States v. Trujillo 17

“A motion for new court-appointed counsel based upon

defendant’s dissatisfaction with his counsel previously

appointed is addressed to the sound discretion of the trial

court.” United States v. White, 451 F.2d 1225, 1226 (6th Cir.

1971). We review a district court’s denial of a motion for a

substitution of counsel for an abuse of discretion. United

States v. Williams, 176 F.3d 301, 314 (6th Cir. 1999). In

particular, we consider: “(1) the timeliness of the motion,

(2) the adequacy of the court’s inquiry into the matter, (3) the

extent of the conflict between the attorney and client and

whether it was so great that it resulted in a total lack of

communication preventing an adequate defense, and (4) the

balancing of these factors with the public’s interest in the

prompt and efficient administration of justice.” United States

v. Mack, 258 F.3d 548, 556 (6th Cir. 2001); Williams, 176

F.3d at 314; United States v. Jennings, 83 F.3d 145, 148 (6th

Cir. 1996).

Here, these four factors weigh in favor of a conclusion that

the district court did not abuse its discretion in denying

Trujillo’s motion to continue. First, the motion for

substitution of counsel and the motion for a continuance were

untimely, coming only three days prior to the scheduled start

of the trial. Jennings, 83 F.3d at 148 (motion to continue

made the day before trial); Williams, 176 F.3d at 314 (motion

to continue made two weeks before trial). Second, the record

establishes that the district court made an adequate inquiry

into the crux of Trujillo’s dissatisfaction with her attorney.

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 result of the search

warrant. Because the district court was not going to allow her

to reopen the suppression issue, this factor weighs in favor of

a denial of the motion to continue. Fourth, given the

administrative hurdles and costs involved in ensuring the

attendance of the Government’s witnesses for the trial, the

public’s interest in the prompt and efficient administration of

justice weighed in favor of denying Trujillo’s motion to

18 United States v. Trujillo No. 02-1521

continue. Accordingly, the district court did not abuse its

discretion in denying Trujillo’s motion to continue.

D. IMPROPER BOLSTERING OR VOUCHING

Trujillo argues that she is entitled to a new trial because the

Government improperly vouched for and bolstered the

credibility of Campos and Rogensues. Specifically, Trujillo

asserts that, because the Government had both witnesses

highlight to the jury the fact that under the terms of their plea

agreements they had to truthfully cooperate or they would be

in breach of their agreements, the jury was improperly left

with the impression that the Government had some secret

method by which to determine whether Campos and

Rogensues were telling the truth. Trujillo also claims error

based upon Rogensues’ testimony that she agreed to submit

to a polygraph examination.

In addition, Trujillo contends that the Government’s error

in improperly vouching for and bolstering Campos’ and

Rogensues’ testimony was exacerbated by the prosecutor’s

rebuttal argument to the jury. Trujillo claims that the

prosecutor’s reference to the “truthful testimony” agreements

in which Campos and Rogensues had entered was improper

because the statement was intended to convey to the jury the

prosecutor’s opinion that the witnesses’ testimony was

truthful. Finally, Trujillo argues that the district court erred

in failing to give an appropriate cautionary instruction to the

jury.

The Government argues that it did not improperly bolster

or vouch for Campos’ or Rogensues’ credibility when the

prosecutor referred to the witnesses’ plea agreements. On the

contrary, the Government notes that the prosecutor limited the

questioning of Campos and Rogensues to the existence of

their plea agreements and did not suggest the prosecutor’s

personal assurance or belief as to the veracity or credibility of

either witness. Furthermore, the Government asserts that

Rogensues’ reference to her willingness to take a polygraph
No. 02-1521 United States v. Trujillo 19

examination was an unsolicited statement which the district

court properly determined to be a “non-issue” because

Rogensues never took a polygraph test. Finally, the

Government claims that the district court’s failure to give a

cautionary instruction does not constitute plain error,

especially in light of the overwhelming proof submitted at

trial establishing Trujillo’s guilt.

“‘Improper vouching occurswhen a prosecutor supports the

credibility 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 involves either blunt comments or comments that

imply that the prosecutor has special knowledge of facts not

in front of the jury . . . .’” United States v. Martinez, 253 F.3d

251, 253-54 (6th Cir. 2001)(quoting United States v. Francis,

170 F.3d 546, 550 (6th Cir. 1999)). On the other hand,

“‘[b]olstering occurs when the prosecutor implies that the

witness’s testimony is corroborated by evidence known to the

government but not known to the jury.’” Id. at 254 (quoting

Francis, 170 F.3d at 551). “Whether improper vouching

amounts to prosecutorial misconduct and whether it renders

the trial fundamentally unfair are mixed questions of law and

fact reviewable de novo.” United States v. Tocco, 200 F.3d

401, 422 (6th Cir. 2000); United States v. Clark, 982 F.2d

965, 968 (6th Cir. 1993).

In the present case, we find that the prosecutor did not

improperly vouch for or bolster Campos’ or Rogensues’

credibility. Accordingly, no prosecutorial error occurred

which entitles Trujillo to a new trial.

During her direct examination, the prosecutor asked

Campos the following questions, and Campos gave the

following answers:

Q. Did you plea pursuant to a plea agreement?

A. Yes.

20 United States v. Trujillo No. 02-1521

Q. Did you receive consideration from the government in

exchange for your plea?

A. Yes.

Q. Was there a consideration from the government in

exchange for truthful cooperation in the case?

A. Yes.

J.A. 280. Likewise, during her direct examination, the

prosecutor asked Rogensues the following questions, and

Rogensues gave the following answers:

Q. What were the charges against you in that case?

A. Conspiracy to deliver marijuana.

Q. How did you plead?

A. Guilty.

Q. Why was that?

A. Downward departure for testimony today.

* * * 

Q. Could you tell the jurors what your agreement was

with regard to cooperation?

A. That I would tell the truth. I would be here for pretrial,

trial, anything concerning this case, that I admit to a lie

detector test.

 * * *

A. I would submit to one – to one, which I will.
No. 02-1521 United States v. Trujillo 21

J.A. 452, 500-01. Finally, during the prosecutor’s rebuttal

argument, she made the following statement to the jury:

Beth Ann Rogensues and Norma Jean Campos are not

free. Three months halfway house away from the

children, three months on tether, two years probation,

and they didn’t – they told you during the direct

examination that they didn’t come here, and they didn’t

agree they would get on the stand and say whatever the

government wanted them to say. They promised to be

truthful and provide complete information. Truthful and

complete information concerning all individuals with

whom they conspired to distribute marijuana, but not

limited to Julio or Anna Trujillo. That’s what they told

you during their examination.

J.A. 203.

As the above citations to the record make clear, the

prosecutor did not offer any personal observations or opinions

as to the veracity of either Campos or Rogensues, nor did she

place the prestige of the Government behind their credibility.

Rather, the prosecutor’s questions and comments merely

encompassed the terms of Campos’ and Rogensues’ plea

agreements which this Court has held to be permissible.

Francis, 170 F.3d at 550. Thus, the Government did not

engage in any improper vouching.

Likewise, the Government did not engage in any improper

bolstering. Again, as the above citations to the record reveal,

the prosecutor did not imply that either Campos’ or

Rogensues’ testimony was corroborated by any evidence

known to the Government but not presented to the jury.

Martinez, 253 F.3d at 254. Thus, there was no improper

bolstering.

Finally, we conclude that the district court correctly

characterized Rogensues’ unsolicited testimonyregarding her

willingness to submit to a polygraph test as a non-issue which

22 United States v. Trujillo No. 02-1521

did not prejudice Trujillo, and we also conclude that Trujillo

has failed to satisfy the plain error standard with regard to the

district court’s failure to give the jury an appropriate limiting

instruction. Accordingly, Trujillo is not entitled to a new trial

based upon her claims of prosecutorial misconduct.

E. ADMISSION OF PRIOR INCONSISTENT

STATEMENTS

During the trial, both Campos and Rogensues testified that

they had given statements to DEA Task Force Agents

Thurston and Powell during their post-arrest interviews in

which they admitted transporting marijuana for Trujillo and

her husband. Campos and Rogensues also testified that they

provided details to DEA Task Force Agents Thurston and

Powell concerning where they delivered the marijuana upon

returning to Detroit, where the Trujillos lived, and the fact

that Rogensues kept a ledger detailing each trip that she and

Campos had made in order to transport marijuana for the

Trujillos.

On cross-examination, Trujillo’s counsel attacked the

truthfulness of Campos’ and Rogensues’ testimony and

attempted to impeach them with their prior inconsistent

statements which they gave to Trooper Ortiz and to DEA

Task Force Agents Thurston and Powell before settling on the

story which they testified to at trial implicating Trujillo.

The Government then called DEA Task Force Agents

Thurston and Powell in order to rehabilitate Campos and

Rogensues with the statements which Campos and Rogensues

had made to them during their post-arrest interviews which

were consistent with their trial testimony implicating Trujillo.

Trujillo’s counsel objected to DEA Task Force Agents

Thurston and Powell’s testimony regarding Campos’ and

Rogensues’ prior consistent statements on hearsay grounds.

Fed. R. Evid. 802. The Government responded that the

agents’ testimony was admissible because the agents’

testimony was offered to rebut Trujillo’s charge of recent
No. 02-1521 United States v. Trujillo 23

8

The district court also allowed DEA Agent Lynch to offer testimony

concerning the prior consistent statements given to her by Campos and

Rogensues.

fabrication by Campos and Rogensues, and thus, the

testimony did not constitute hearsay. Fed. R. Evid.

801(d)(1)(B). The Government cited three cases to the

district court in support of its position: United States v.

Hebeka, 25 F.3d 287 (6th Cir. 1994); United States v. Smith,

746 F.2d 1183 (6th Cir. 1984); and United States v. Hamilton,

689 F.2d 1262 (6th Cir. 1982). After reviewing the cases

cited by the Government, the district court overruled

Trujillo’s objection and allowed DEA Task Force Agents

Thurston and Powell to testify regarding Campos’ and

Rogensues’ statements which were consistent to the

testimony which Campos and Rogensues had given at trial.

Accordingly, DEA Task Force Agent Powell testified that,

during her interview, Rogensues stated that she was

delivering the marijuana which had been seized from the

rental vehicle to Julio Trujillo; that the Trujillos had delivered

the rental vehicle to Campos and her to be used in

transporting 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 because she kept a daytime ledger in

which she noted the states through which Campos and she

had driven, the miles logged, the hours each drove, and the

total time it took to complete the trips. Similarly, DEA Task

Force Agent Thurston testified that, during her interview,

Campos told him that she had completed seven trips to

Arizona in order to obtain marijuana which she then delivered

to the Trujillos in Detroit.8

On appeal, Trujillo reasserts her argument that DEA Task

Force Agents Thurston’ and Powell’s testimony constituted

inadmissible hearsay, and therefore, the district court

committed prejudicial error by allowing them to testify

24 United States v. Trujillo No. 02-1521

regarding Campos’ and Rogensues’ prior consistent

statements. Trujillo argues that the cases cited by the

Government and relied upon by the district court are no

longer good law in light of the United States Supreme Court’s

holding in Tome v. United States, 513 U.S. 150 (1995), and

this Court’s holding in United States v. Toney, 161 F.3d 404

(6th Cir. 1998). Trujillo contends that Campos’ and

Rogensues’ motive to lie arose when they were arrested by

Trooper Ortiz in Colorado, and thus, under the holdings of

Tome and Toney, the district court committed reversible error

in allowing the Government to rehabilitate Campos and

Rogensues via DEA Task Force Agents Thurston and

Powell’s testimony.

The Government claims that the district court did not err in

allowing DEA Agents Thurston and Powell to offertestimony

in an attempt to rehabilitate Campos and Rogensues because

the agents’ testimony was offered to rebut Trujillo’s charge of

recent fabrication. In essence, the Government contends that

Trujillo opened the door to this testimony by implying during

the cross-examination of Campos and Rogensues that they

were lying and that they had been improperly influenced by

their plea agreements with the Government.

Federal Rule of Evidence 801(d)(1)(B) provides: “A

statement is not hearsay if . . . [t]he declarant testifies at the

trial or hearing and is subject to cross-examination concerning

the statement, and the statement is . . . consistent with the

declarant’s testimony and is offered to rebut an express or

implied charge against the declarant of recent fabrication or

improper influence or motive . . . .” Id. “A district court’s

determination of whether evidence constitutes hearsay under

the Federal Rules of Evidence is a conclusion of law that is

reviewed de novo.” Cox v. Treadway, 75 F.3d 230, 238 (6th

Cir. 1996)(citing Hancock v. Dodson, 958 F.2d 1367, 1371

(6th Cir. 1992)).

In the instant case, the district court committed error when

it employed the wrong test in resolving Trujillo’s hearsay
No. 02-1521 United States v. Trujillo 25

9

“The district court’s determination of when the motive to lie arose

is a factual finding, which we review under the ‘clearly erroneous’

standard.” Toney, 161 F.3d at 408.

10The fact that the Government presented the evidence of Campos’

and Rogensues’ prior consistent statements through DEA Task Force

Agents Thurston and Powell’s testimony rather than from Campos and

Rogensues themselves is of no consequence. Hebeka, 25 F.3d at 293.

objection. As noted by Trujillo, the district court neither cited

to nor referenced Toney or Tome in reaching its decision to

overrule Trujillo’s hearsay objection. As such, the district

court never rendered a factual finding as to when Campos and

Rogensues formed a motive to lie.9 Thus, the question which

we must answer is whether the district court properly

admitted this evidence despite the district court’s flawed

reasoning. 

In order for DEA Task Force Agents Thurston’s and

Powell’s testimony not to be considered hearsay under Rule

801(d)(1)(B): (1) Campos and Rogensues had to testify and

been subject to cross-examination; (2) Trujillo had to

expressly or impliedly charge recent fabrication or improper

influence or motive by Campos and Rogensues during their

testimony; (3) the Government had to offer a prior consistent

statement that was consistent with the Campos and Rogensues

challenged in-court testimony; and, (4) Campos’ and

Rogensues’ prior consistent statements must have been made

prior to the time that their supposed motive to lie arose.10

Toney, 161 F.3d at 407; Tome, 513 U.S. at 167. The only

factor which is at issue in the instant appeal is the last one, i.e.

whether the statements which Campos and Rogensues made

to DEA Task Force Agents Thurston and Powell which were

consistent with their trial testimony were made before they

had formed a “motive to lie.” 

Based upon our review of the record, we conclude that

Campos’ and Rogensues’ prior consistent statements were

made after they had formed their motive to lie. It is simply

26 United States v. Trujillo No. 02-1521

11Within two days of being arrested and giving custodial statements,

Campos and Rogensues attempted to cooperate with the police in

arranging for the delivery of the marijuana to Trujillo and her husband in

a manner which would have incriminated both. E.g., J.A. at 331 (on crossexamination, Trujillo’s counsel asked, “And then you ended up coming

back here, and you were arraigned after you were unable to set up the

Trujillos, correct?,” to which Campos responded, “Yes.”).

not believable to suggest that, a day or two after Campos and

Rogensues were stopped with more than fifty kilograms of

marijuana in their car and were subsequently arrested, they

did not have a motive to lie, regarding the source of the

marijuana, in order to get lenient treatment.11 See United

States v. Esparza, 291 F.3d 1052, 1055 (6th Cir.

2002)(finding testimony made at the time of an arrest

inadmissible because “Esparza had the same motive to lie at

the time of his statement to the officer as he did at the trial,

and so his statement was not admissible to rebut a charge of

recent fabrication.”). 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 reversal. In order to merit a reversal, this error must be

shown not to have been harmless, i.e., that it was more

probable than not that the error materially affected the verdict.

United States 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 error was harmless because the inadmissible

hearsay testimony was effectively impeached. After DEA

Task Force Agent Thurston gave his testimony recounting the

hearsay statements made by Campos and Rogensues,

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 Task Force Agent

Thurson admitted that Campos and Rogensues were in the

room together at one point when the details of their stories
No. 02-1521 United States v. Trujillo 27

were clarified–which indicates that their stories differed

earlier–thereby, impeachingCampos’andRogensues’ stories.

In addition, DEA Task Force Agent Thurston was unable

to deny Trujillo’s attorney’s assertion that Campos had been

so distressed upon her arrest that she was crying when she

was in custody. Id. More importantly, DEA Task Force

Agent Thurston agreed that Campos’ and Rogensues’ stories

only implicated Trujillo in a very minor role when compared

to that of her husband, Julio. See J.A. at 573-74.

Second, the error was harmless because Trujillo’s counsel

effectively impeached the two witnesses whose testimonywas

buttressed by the inadmissible hearsay. Trujillo’s counsel

impugned the motives of Campos and Rogensues during his

examination of them and which the jury could have recalled

upon hearing DEA Task Force Agent Thurston’s testimony.

Third, the Government presented other significant

admissible evidence which confirmed Trujillo’s involvement

in marijuana trafficking activities. For example, Shawn

Speckman’s testimony indicated Trujillo’s involvement in

drug trafficking activities, and DEA Agent Lynch testified as

to having found, at 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.

Accordingly, in light of the other admissible evidence

presented by the Government during the trial and Trujillo’s

attorney’s effective impeachment of DEA Task Force Agent

Thurston, Campos, and Rogensues, it is not probable that,

even without the improper admission of the prior consistent

statements of Campos and Rogensues, Trujillo would have

been acquitted. As such, the district court’s improper

admission of DEA Task Force Agents Thurston’s and

Powell’s hearsay statements was harmless and does not

require a reversal of Trujillo’s conviction.

28 United States v. Trujillo No. 02-1521

F. MOTION FOR A MISTRIAL

Prior to the start of trial, the district court ruled that there

could be no mention of any marijuana found in the possession

of Thomas Hysell where the Government could not prove that

themarijuana recovered from him came from Trujillo’s home.

Because Hysell did not testify at trial, the district court’s

order resulted in the exclusion of any reference to the

marijuana obtained from him after he had met Speckman at

the Trujillo’s home on the night of November 16th.

During the trial, the prosecutor questioned Speckman about

what had transpired when Hysell visited Trujillo’s residence

just before DEA agents searched the residence pursuant to a

search warrant–allegedly trying to imply that Hysell had

purchased marijuana from Trujillo. After Trujillo’s counsel

objected, the district court cautioned the prosecutor not to let

the witness testify regarding the marijuana seized from

Hysell.

Subsequently, while DEA Agent Anthony Bryndza was

testifying, the prosecutor inadvertently tendered an exhibit

consisting of marijuana taken from Hysell the night that he

went to Trujillo’s home and met with Speckman. The

prosecutor’s reference to the exhibit caused Bryndza to refer

to the marijuana and attribute it to Hysell. Trujillo’s counsel

immediately moved for a mistrial, but the district court denied

the motion, admonished the witness, and instructed the jury

to disregard any references to the exhibit or testimony

regarding the marijuana attributed to Hysell.

Trujillo argues that the district court abused its discretion

in denying her motion for a mistrial based upon the

Government’switnesses’referencesto the marijuana obtained

from Hysell in violation of the district court’s order excluding

this evidence. Trujillo contends that the prosecutor’s

violation of the district court’s order was flagrant and highly

prejudicial. Accordingly,Trujilloasserts that the prosecutor’s

improper implication to the jury that she lived at a house
No. 02-1521 United States v. Trujillo 29

frequented by individuals who possessed marijuana entitled

her to a new trial, and therefore, the district court erred in

denying her motion for a mistrial.

The Government argues that, contrary to Trujillo’s

assertion otherwise, the complained of remarks were not

flagrant. In fact, the Government notes that the references to

the marijuana possessed by Hysell were made by a witness,

not the prosecutor, and therefore, the witness’ comments

should not be attributed to it. Accordingly, the Government

claims that the district court did not abuse its discretion in

denying Trujillo’s motion for a mistrial.

“We review for abuse of discretion the district court’s

denial of a motion for mistrial.” United States v. Yang, 281

F.3d 534, 549 (6th Cir. 2002). “An abuse of discretion exists

when the reviewing court is firmly convinced that a mistake

has been made.” United States v. Carroll, 26 F.3d 1380, 1383

(6th Cir. 1994). Deference is given to the district court

because “[t]he trial judge is in the best position to determine

the nature of the alleged jury misconduct . . . [and] is also in

the best position to determine appropriate remedies for any

demonstrated misconduct.” United States v. Copeland, 51

F.3d 611, 613 (6th Cir. 1995).

As we have previously explained:

When reviewing claims of prosecutorial misconduct, we

determine first whether the statements were improper.

See United States v. Krebs, 788 F.2d 1166, 1177 (6th Cir.

1986). If they appear improper, we then look to see if

they were flagrant and warrant reversal. See United

States v. Carroll, 26 F.3d 1380, 1388 (6th Cir. 1994). To

determine flagrancy, the standard set by this Court is: 1)

whether the statements tended to mislead the jury or

prejudice the defendant; 2) whether the statements were

isolated or among a series of improper statements; 3)

whether the statements were deliberately or accidentally

before the jury; and 4) the total strength of the evidence

30 United States v. Trujillo No. 02-1521

against the accused. United States v. Monus, 128 F.3d

376, 394 (6thCir. 1997)(citing United States v. Cobleigh,

75 F.3d 242, 247 (6th Cir. 1996)); Carroll, 26 F.3d at

1385 (citing United States v. Leon, 534 F.2d 667, 679

(6th Cir. 1976)). To reverse a conviction because of an

improper non-flagrant statement, a reviewing court must

determine that: 1) the proof of the defendant’s guilt is not

overwhelming; 2) the defense counsel objected; and 3)

the trial court failed to cure the impropriety by failing to

admonish the jury. Monus, 128 F.3d at 394; Carroll, 26

F.3d at 1385-86 (citing United States v. Bess, 593 F.2d

749, 757 (6th Cir. 1979)).

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

In the case sub judice, we find that the district court did not

abuse its discretion in denying Trujillo’s motion for a

mistrial. Although the reference to the marijuana recovered

from Hysell was improper because it violated the district

court’s pre-trial order, we do not believe the reference was

flagrant or requires a reversal. Our review of the record leads

us to believe that reference was accidental, did not mislead

the jury or prejudice Trujillo, and was an isolated statement.

Moreover, immediately after the improper statement by

Bryndza, the district court properly admonished the jury, and

we cannot say that the other evidence of Trujillo’s guilt is so

insubstantial that a reversal is required in light of this

improper reference. Accordingly, the district court did not

abuse its discretion in denying Trujillo’s motion for a

mistrial.

G. CUMULATIVE ERROR

Trujillo argues that, even if no single assignment of error is

sufficient to warrant a new trial, the totality of errors deprived

her of her constitutional right to a fair trial. Accordingly,

Trujillo asks us to grant her a new trial based upon a theory of

cumulative error.
No. 02-1521 United States v. Trujillo 31

The Government argues that, because Trujillo has failed to

demonstrate that the district court committed any individual

errors, her claim of cumulative error fails. In any event, the

Government claims that Trujillo hasfailed to demonstrate that

Trujillo was deprived of her right to a fair trial as a result of

any of the district court’s rulings. 

In order to obtain a new trial based upon cumulative error,

a defendant must show that the combined effect of

individually harmless errors was so prejudicial as to render

his trial fundamentally unfair. United States v. Parker, 997

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 process when considered alone . . . may cumulatively

produce a trial setting that is fundamentally unfair.” United

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 committed by the district court was

in admitting some hearsay statements made by DEA Task

Force Agents Thurston and Powell. We have found this error

to be harmless, and Trujillo has failed to identify any other

error committed by the district court which could be

combined with this harmless error in order to support a

finding of cumulative error and which would rise to the level

of fundamental unfairness. United States v. Rivera, 900 F.2d

1462, 1471 (10th Cir. 1990)(holding that “a cumulative-error

analysis should evaluate only the effect of matters determined

to be error, not the cumulative effect of non-errors.”). In

short, there is no showing in the record in this case that

Trujillo was denied a fundamentally fair trial. United States

v. Ashworth, 836 F.2d 260, 267 (6th Cir. 1988). Accordingly,

Trujillo is not entitled to a new trial based upon her claim of

cumulative error.

32 United States v. Trujillo No. 02-1521

H. ORGANIZER/LEADER ENHANCEMENT

Finally, Trujillo argues that, at a minimum, she is entitled

to a new sentencing hearing because the district court erred in

enhancing her offense level by two levels, pursuant to

U.S.S.G. § 3B1.1(c), for being an organizer or leader in the

conspiracy. Trujillo asserts that the evidence presented

during her trial clearly established that the leader of the

conspiracy was her husband, Julio, and that the only actions

which she allegedly took in furtherance of the conspiracy was

to rent cars for Campos and Rogensues to be used in the

transportation of marijuana. Accordingly, Trujillo asks the

Court to remand this matter for re-sentencing with directions

to the district court that she not receive 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

Rogensues. Accordingly, the Government claims that the

district court did not err in enhancing Trujillo’s base offense

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

Title 18 U.S.C. § 3742(e) provides that courts of appeals

“shall accept the findings of fact of the district court unless

they are clearly erroneous and shall give due deference to the

district court’s application of the guidelines to the facts.” Id.;

United States v. Jackson-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 organizer, leader, manager, or supervisor in

any criminal activity other than described in (a) or (b),

increase by 2 levels.” Id. (emphasis in original). Thus, the

Sentencing Guidelines provision “requires a sentencing court

to enhance a sentence [by] two levels if the court finds that

the accused served in a managerial or supervisory role during

the criminal activity.” Jones v. United States, 161 F.3d 397,

399 (6th Cir. 1998).

In the present case, the evidence presented by the

Government at trial clearly established that Trujillo exercised
No. 02-1521 United States v. Trujillo 33

control, supervision, and management over Campos and

Rogensues. Trujillo recruited Campos to transport the

marijuana across the country for her; she provided

transportation for Campos to do so; she provided instruction

as to who and where to meet in order to obtain the marijuana;

and she instructed Campos and Rogensues concerning how to

handle the marijuana upon 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

language instructing her to bring the marijuana into Campos’

house. Accordingly, based upon the evidence presented at

trial, we find that the district court did not clearly err in

denying Trujillo’s objection to the two-level enhancement

which she received, pursuant to U.S.S.G. § 3B1.1(c), for

being an organizer or leader of the charged conspiracy.

III. CONCLUSION

Accordingly, for the reasons set forth above, we AFFIRM

the judgment and the sentence imposed upon Trujillo by the

district court.