IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 94-10777

___________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

YSIDRO CASTILLO, JR, aka Curly,

aka Big Un, GARY RHUDY, THOMAS

CHARLES BROWN, aka Big One,

THOMAS CHARLES BROWN, JR, aka

Little One, CHARLES DUANE BROWN,

MICHAEL CASTILLO and DAVID CASTILLO,

Defendants-Appellants,

________________________________________________

Appeals from the United States District Court for the

Northern District of Texas

________________________________________________

March 11, 1996

Before GARWOOD, E. GARZA and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendants-appellants (defendants) were convicted of one count

of conspiring to possess with the intent to distribute marihuana in

violation of 21 U.S.C. § 846. Defendant-appellant David Castillo

was additionally found guilty of a second count of possession with

intent to distribute approximately thirty-two pounds of marihuana

in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D) and 18 U.S.C.

§ 2. Defendants now appeal their respective convictions and

sentences. We affirm.1 B allard testified that he transported less than this amount of

marihuana on his first two trips, and that he remembered

transporting as much as two hundred eighty pounds on another trip.

2 Facts and Proceedings Below

I. Charles Ballard’s Testimony

On March 13, 1993, Charles Ballard (Ballard) was arrested for

possession of a box containing marihuana in the trunk of his car.

Ballard thereafter agreed to c ooperate with law enforcement

officials in an effort to apprehend the persons for whom Ballard

was allegedly transporting the marihuana. Seven persons were

subsequently arrested, and, in the ensuing trial, Ballard testified

to the following facts.

From approximately Februa ry 1992 until March 1993, Ballard

transported marihuana by automobile from Dallas, Texas, to Dayton,

Ohio. During this period, Ballard made between twenty and thirty

such trips, transporting some two hundred to two hundred fifty

pounds of marihuana each trip. 1 Generally, Ballard’s routine was

to contact someone from the “Castillo group”

—— comprised of

defendants Ysidro Castillo, Jr., David Castillo, Michael Castillo

and Gary Rhudy

—— upon his arrival in the Dallas area; after meeting

with one of these defendants, usually David Castillo, Ballard would

wait in a motel for someone to contact him and let him know that a

marihuana shipment was ready for tran sport back to Dayton, Ohio.

After returning to Dayton with the marihuana, Ballard would contact

someone from the “Brown group”

— — consisting of defendants Thomas

Brown, Sr., Thomas Brown, Jr., and Dua ne Brown

— — and arrange for a2 T he 1979 Plymouth Volare driven by Ballard originally belonged

to Thomas Brown, Sr., but was transferred from the name of Thomas

Brown, Sr.’s girlfriend, Diana Markunes, to Ballard’s name.

3 pick-up of the marihuana. Thomas Brown, Jr. usually gave Ballard

instructions to make the trips to Dallas, and Duane Brown was most

often the defendant who picked up the shipments upon Ballard’s

arrival in the Dayton area.

The marihuana was packaged in garbage bags. Often it was

weighed in Ballard’s presence by David and Ysidro Castillo, who

would thereafter instruct Ballard to inform Thomas Brown, Sr. and

Thomas Brown, Jr. of the weights.

On his first trip from Dayton to Dallas in February 1992,

Ballard was accompanied by Thomas Brow n, Jr. 2 Upon their arrival

in Dallas, Brown contacted David Castillo. Ballard and Brown

subse quently went to David Castillo’s residence, where the three

men loaded three or four bags of ma rihuana

— — a total of 144

pounds

—— into the trunk of Ballard’s car. Ballard and Brown then

returned to Dayton, where they unloaded these bags of marihuana and

placed them in the room a t the Holiday Air Motel where Ballard

lived. Thomas Brown, Sr. then arrived at the motel to check the

quality of the marihuana. During the following week, Ballard

weighed the marihuana and packaged it in one-pound bags. Ballard

stored the bags in his room at the motel, and the “Brown group”

picked up bags as they needed them, usually by sending Duane Brown.

Ballard learned from discussions with members of the “Brown group”

that these one-po und bags were sold in Ohio for $1,350, and that3 O n at least one occasion, Ballard received assistance from

Michael Castillo in loading marihuana at David Castillo’s residence

in Hutchins, Texas.

4 the “Castillo group” was paid $750 per pound.

Ballard was sent to Dallas for a second shipment roughly one

w eek following his return to Dayton from the first trip. During

this second trip, David Castillo helped Ballard load approximately

two hundred pounds of marihuana into Ballard’s car. On his return,

Ballard settled into the pattern that would c ome to characterize

his return to Dayton from these trips, calling someone in the

“Brown group”

—— in this case, Thomas Brown, Sr.

—— and then packaging

and storing the marihuana in his Dayton motel room for the Browns

to pick up as needed.

In addition to picking up marihuana f rom David Castillo’s

home, 3 Ballard also loaded marihuana into his car for transport to

Ohio in the garage of the home of d efendant Gary Rhudy and his

wife, Silvia, who was the sister of David, Michael, and Ysidro

Castillo. At the Rhudys’ home, marihuana was weighed and packaged

in twenty-pound parcels. At least once, Ballard received

assistance loading his car at the Rhudy home from David and Ysidro

Ca stillo. Ballard also picked up marihuana at David Castillo’s

place of work, and at Ysidro Castillo’s home, both in Arlington,

Texas.

On at least six occasions, Ballard transported sums of money

from the “Brown group” to the “Castillo group.” Usually, Thomas

B rown, Jr. gave Ballard the money

—— bundled with rubber bands in4 L aw enforcement officials had discovered this connection between

David Castillo and the “Brown group” prior to this March meeting.

Off icers with the Drug Interdiction Unit at the Dayton, Ohio

airport had “profiled” David Castillo on February 17, 1993, after

Castillo had purchased a one-way ticket to Dallas using cash.

Castillo had been sitting in the Dayton airport with two persons who left the airport in a Camaro registered to Duane Brown. After

leaving the airport, one of these persons got out of the Camaro and

into a pickup truck registered to Thomas Brown, Jr.

5 $5,000 quantities

—— but Ballard received payment for the “Castillo

group” at least once from Thomas Brown, Sr. Thomas Brown, Sr. also

g ave Ballard money on one occasion so that Ballard might pay his

rent. However, it was usually David Castillo who paid Ballard for

making these trips, giving Ballard as much as $2,000 to $3,000.

In March 1992 , Ballard was visited by David Castillo and

Thomas Brown, Jr. At a bar, the three men discussed Ballard’s

trips. 4

On December 30, 1 992, Thomas Brown, Jr. took Ballard’s 1987

Mercury Marquis and gave him a 1985 Mercury Marquis to take on a

trip to Dallas the following day. During this trip, Ballard

witne ssed Michael Castillo driving the 1987 Mercury Marquis near

West Memphis, Arkansas. After reaching Duncanville, Texas

— — in the

Dallas area

—— David Castillo instructed Ballard to fly back to Dayton

and leave the 1985 Mercury Marquis in Texas.

In mid-January 1993, after meeting in Dayton with Thomas

Brown, Jr. and Michael and David Castillo, Ballard and Michael

Castillo drove to Dallas. Ballard had been instructed to make a

pick-up, which Thomas Brown, Sr. coordinated.

Ballard returned to Dallas on January 14, 1993, and followed5 I n early 1993, law enforcement officials combined their efforts

to apprehend the defendants. In February 1993, officials

identified the telephone number of David Castillo’s mobile

telephone. On March 8, 1993, officials observed Ballard talking

with Ysidro, David, and Michael Castillo at the Lace Club in

Arlington, Texas; while at the Lace Club, they also observed Ysidro

Castillo hand to Ballard a large stack of currency. Continuing

their surveillance of Ballard, officials witnessed and photographed

a meeting between Ballard and David Castillo the following day.

Subsequently, officials observed Ballard, together with Michael and

Ysidro Castillo in a jeep, doing “heat runs” in the automobile in

an effort to detect if they were being followed. The next morning,

officials observed Ballard and David Castillo drive to the home of

Enrique Castillo and place a box into their automobile.

6 Dav id Castillo to Ysidro Castillo’s home in Arlington, where he

picked up another shipment.

Ballard made his last trip (driving from Dayton to Dallas, and

then carrying marihuana from Dallas back to Dayton) in March 1995.

During that t rip, Ballard met with Ysidro, David and Michael

Castillo at the Lace Club in Arlington, Texas, where Ballard was

given one hundred one dollar bills. Later during that trip, while

riding in a jeep, Ballard agreed to continue working for Michael

and Ysidro Castillo, both of whom apparently had some reservations

about David Castillo. On the morning of March 10, 1993, Ballard

and David Castillo picked up a box containing approximately thirty

pounds of marihuana at the home of Enrique Castillo. David

Castillo informed Ballard that the small size of this shipment was

meant to refl ect the “Castillo group’s” dissatisfaction with the

“Brown group’s” delinquency in making their payments. 5

Ballard left the Dallas area bound for Dayton on March 12,

1993. He was arrested that day.

Subsequent to his arrest, and in accordance with his agreement6 I n his conversation with Thomas Brown, Sr., Ballard

—— using the

agreed-to “code”

—— informed Thomas Brown, Sr. that he had arrived in

Dayton with a shipment, and asked when they should meet: “Lets play

. . . What time do you want to tee off?” Thomas Brown, Sr.

responded, “Just stay there.” In a subsequent conversation,

Ballard told Duane Brown that he had “[b]rought back about thirty

dozen golf balls.

. . . Thought we’d play.” Duane Brown’s response

indicated to Ballard that Duane and Thomas Brown, Jr. wished to

keep the n ews of Ballard’s possession of marihuana from their

father: after asking Ballard if he had talked to “Dad,” Duane Brown

said, “Tell him you misunderstood him.

. . . no balls at all

. . . Tommy will call you.” Duane called Ballard back and told Ballard

not to say anything about their conversation and indicated that

Ballard was going to receive two pounds of marih uana. Not long

there after, Thomas Brown, Jr. called Ballard and asked if his

father knew that Ballard was in possession of marihuana; he then

stated, “I just wanted to know what Dad knew cause I was just going

to keep that for,

. . . and do it myself

. . . I’ll send Duane over

t here and take care of you. . . . I’m supposed to give you

something.”

7 to cooperate with law enforcement officials, Ballard proceeded to

Dayton with the box of marihuana and acted upon his instructions

from officials to make a “controlled delivery.” Ballard telephoned

Thomas Brown, Sr., Thomas Brown, Jr., Duane Brown, and David

Castillo on the day he arrived in Dayton, and each of these

conversations was recorded. 6

Following these conversations, Thomas Brown, Sr. visited

Ballard at his motel room. After learning that Ballard was in

possession of only thirty pounds of marihuana, Brown stated that it

was not enough to “mess with” and left.

Later tha t evening, Duane Brown arrived at Ballard’s motel

room and the two men moved the box of marihuana from Ballard’s car

to B rown’s. Brown then gave Ballard $500 and left with the7 L aw enforcement officials conducting surveillance of Ballard’s

motel observed (1) Duane Brown’s arrival at the motel, (2) a short

conversation between Ballard and Duane Brown, and (3) the transfer

of the box containing marihuana from Ballard’s car to Brown’s car.

Officials arrested Duane Brown later that evening after Brown

attempted to open the box. One pound of marihuana was in the box,

along with the telephone books that officials had used to replace

twenty-nine pounds of the marihuana when Ballard agreed to perform

the “controlled delivery.”

8 D avid Castillo responded, “Well, that’s all right. Well, we’ll

take care of Big One come this week.”

9 D avid Castillo’s response was, “I’ll talk to him today and tell

him to give you another five . . . I told him to give you one.”

8 marihuana. 7

Also later on the night of March 13, 1993, Ballard called

David Castillo and told him that the amount of marihuana in the box

had not been enough for “Big One”, but that “Little One” had taken

it. 8 Ballard understood Castillo’s response to mean that a load of

marihuana would need to be picked up for Thom as Brown, Sr. later

that week. Additionally, when Ballard informed Castillo that he

had received only $500 for his role in the most recen t shipment,

Castillo responded in a way that indicated to Ballard that Castillo

planned to contact Thomas Brown, Jr. and instruct Brown to give

Ballard another $500. 9

On March 14, 1993, Tho mas Brown, Sr. telephoned Ballard and

asked Ballard to come to his home. When Ballard arrived, Brown

spoke about D uane Brown’s arrest and advised Ballard that, since

Ballard might also be under surveillance, he should leave town for

a while. After leaving Brown’s home, Ballard followed instructions

from law enforcement officials and te l ephoned David Castillo,10 I n response, David Castillo told Ballard to stay in his room and

to quit telephoning him; Castillo also advised Ballard that he

would travel to Dayton soon, and that he would tell “him” (Thomas

Brown, Jr.) to give Ballard “about five” ($500).

11 O n May 10, 1993, David Castillo had an intercepted conversation

with Ballard in which Castillo asked Ballard, “You ready to go to

work?” After indicating a reluctance to deal with Thomas Brown,

Jr., Castillo stated that he was willing to work with “Big One”

(Thomas Brown, Sr.), that “He (Ysidro Castillo) wants you to come

down,” and that he would find out “when he (Ysidro Castillo) wants

you here.” In a later conversation on the same day, Castillo told

Ballard that “I’m gonna h ear from him in the morning. . . . Just

sit tight

. . . I’ll call you.” On May 13, 1993, Castillo and

Ballard continued their discussion concerning this anticipated

shipment.

9 informing him about Duane Brown’s arrest. 10

On March 17, 1993, Ballard went to Dallas at the direction of

law enforcement authorities. During the week he stayed in Dallas,

Ballard had telephone conversations with David Castillo and Thomas

Brown, Sr ., telling both that he was in Georgia. David Castillo

discussed his intentions of getting the money from the “Brown

group” that he believed was overdue. Thomas Brown, Sr. revealed to

Ballard that the “Brown group” harbored certain suspicions

regarding Ballard in ligh t of the fact that Ballard had not been

arrested and that the police had a videotape of certain events.

On March 29, 1993, Ballard met with David Castillo and Gary

Rhudy at a restaurant parking lot in Ohio. During this meeting,

Ballar d gave David Castillo general directions to Thomas Brown,

Jr.’s lake house in Russells Point, Ohio; Castillo wanted to speak

with Brown about his overdue debts. Also, Castillo agreed to set

up a delivery for Ballard

—— who claimed that he needed work

—— t o an

unspecified third party. 1112 L aw enforcement officials conducted surveillance of this

meeting. Additionally, on May 23, 1993, agents intercepted a

telephone conversation between Thomas Brown, Jr. and David Castillo

in which Brown warned Castillo that, “We just found out [Ballard

is] working for the narcotics squad in Dallas.” Brown explained

that blank cassette tapes issued by the Department of Public Safety

had been uncovered under Ballard’s bed with a recorder. Castillo

responded, “I’m gonna get hold of Big’un today . . . I’ll let him

know about that [sic] what you just told me.”

13 F ollowing this conversation between the Castillos and Ballard,

law enforcement officials observed Ysidro and Michael Castillo in

a car registered to Silvia Rhudy at the motel where Ballard was

staying.

10 Sometime thereafter, Ballard met with D avid and Ysidro

Castillo at the Lace Club in Arlington, Texas, to discuss a trip to

Ohio. Ysidro Castillo told Ballard that he would probably agree to

wor k with the “Brown group” if a deal could be arranged to his

satisfaction. On May 20, 1993, Ballard and Ysidro Castillo drove

around and continued this discussion. 12

In his next meeting with Ysidro and Michael Castillo, Ballard

was able to persuade the Castillos that Duane Brown had asked him

to keep the DPS tapes. Apparently believing this story, the

Castillo s discussed their anticipated marihuana deal with the

“Brown group” and gave Ballard approximately $120. 13

On May 27, 1993, Ballard and David Castillo met at a

restaurant in Arlington, Texas, and discussed Castillo’s suspicions

of Ballard. The two men were joined by Ysidro Castillo in the

parking lot and the three continued this conversation. The

Castillos noted that they had observed police officers all around14 O n June 2, 1993, David Castillo called Thomas Brown, Jr. In

this intercepted conversation, Castillo told Brown, “And Brother

said, ‘Well, I don’t need him.’ I said, ‘Whatever, we don’t need

him.’ . . . He told me to howler at you, see what y’all wanted to

do. Y’all want to fish we can go or I can go up there and we’ll

talk about it.”

11 Ballard. 14 The Castillos voiced their concern that Ballard was, at

the very least, being followed by law enforcement officials.

II. Evidence Seized

In a search of the home of Thomas Brown, Sr., law enforcement

officials seized two telephone books and a cassette tape with a

Texas Department of Public Safety label that was identical to the

five or six tapes that had been issued to Ballard. It was the

discovery of these tapes in Ballard ’s room that purportedly

compromised Ballard’s role as an informant.

In a search of the home of Thomas Brown, Jr., officials seized

the certificate of title to a 1979 Plymouth Volare registered to

Charles Ballard and showing Dian a Markunes, Thomas Brown, Sr.’s

girlfriend, as the previous owner. A handwritten letter was also

seized, which letter stated:

“What’s up Tommy? Just a few lines to let you know to

get in touch with me. I talked to Ralph and he told me

to reach you. I thought you might want to look me up.

Call me at Donna, Texas, 512-464-3620 or Dave Castillo’s,

214-225-4406 or write me back at Curly [Ysidro] Castillo,

Route 1, Box 316-M, Donna Texas 78537.”

Writt en on the back of this letter was “214-296-9230," the

telephone number of the Royal Inn in Duncanville, Texas. “Room

209" was also written on the back of this letter. This was the

room that Ballard checked into on March 19, 1992. Officials15 A gent Tramel testified that these markings m atched the “drug

notes” seized at the home of Michael Castillo.

12 additionally seized a letter to which were attached ads for kits

used to detect wiretaps, and a piece of paper on which was written

“214-698-1452, Dave, 5:30."

In a search of the home of Ysidro Castillo, officials seized

an electr onic and a manual scale, both of the type used to weigh

drugs. Subsequent analysis of these scales uncovered trace amounts

of cocaine on both. Officials also seized rubber bands of the type

used to band money and $2,301 in currency.

In a search of the home of Michael Castillo, officials seized

a gray suitcase that held fourteen clear plastic bags containing a

total of 18.10 pounds of marihuana. One of Ysidro Castillo’s

fingerprints was later discovered on one of these bags. Officials

also found in the home a .357 revolver and ammunition, an address

book, and documents containing suspected drug notes.

In a search of the home of Gary Rhudy, officials seized a tote

bag containing 10.06 ounces of marihuana and pieces of cardboard on

which handwritten notat ions had been made in black and red ink. 1 5

Discovered on these pieces of cardboard were .22 grams of

marihuana. Ysidro Castillo and Gary Rhudy were present at Rhudy’s

home at the time of this search.

Finally, at the time of his arrest, David Castillo was in

possession of a briefcase that contained the telephone numbers of

Thomas Brown, Sr., Thomas Brown, Jr., and Ballard, as well as

receipts and appraisals for a $4,848 Rolex watch, a $1,100 pendant,16 I n relevant part, the transcript of Agent Tramel’s testimony on

this point reads:

13 and a $3,525 ring.

III. DEA Special Agent Doug Tramel’s Testimony

Agent Tramel was call ed as a government witness to testify

regarding evidence compiled through the use of: (1) a wiretap of

David Castillo’s home and mobile telephones, and (2) pen registers

authorized for the telephones of other defendants. Agent Tramel,

together with other agents, construc ted “summary charts” of the

evidence so obtained; these charts included telephone numbers, pen

register numbers, dates, and times. Agent Tramel testified that

t he records from which the “summary chart” information was ta ken

were also in evidence.

The government created these “summary charts” in an effort to

supple ment the testimonial evidence against the defendants with

documented telephone calls, dates, and times. As the (DEA)

administrative agent in charge of the wiretap and author of these

charts, Agent Tramel was called to testify re garding these

summaries of the voluminous records already in evidence. In the

course of this “summarization,” however, Agent Tramel offered

considerable testimony that did not directly bear on these “summary

charts.” In fact, Agent Tramel “summarized” portions of the live

testimony previously introduced in the government’s case, doing so

in the context of discussing, among other topics, the activities of

Ballard and Ysidro Castillo

—— following the placement of a telephone

call

—— in loading approximately 250 pounds of marihuana. 16“Q: He calls the same one?

A: Calls the same number.

Q: And then what happens later that day, sir?

A: Charles Ballard goes to Ysidro Castillo, Jr.’s house and

he, David

—— he and David and Ysidro load approximately

250 pounds of marijuana.

Ms. Hewins: Your Honor, I object. This is hearsay.

This gentleman was not present, and he ha s no personal

knowledge.

Ms. Romero: Your Honor, this is summary testimony.

The Court: All right. Su stained

—— I mean, overrule

the objection. He may answer that.

Q: All right. Now, Charles Ballard and Ysidro Castillo and

David Castillo load up a load of marijuana, approximately

250 pounds; is that correct?

A: Yes, ma’am, that is correct.

Q: And this is on 11/25/92?

A: Yes, ma’am, that is correct.”

Later in the course of Agent Tramel’s testimony, counsel for Ysidro

Castillo made the following objection:

“Ms. Hewins: Your Honor, I renew my objection at this

time under Rule 1006. The purpose of the chart and

purpose of summary testimony is to summarize voluminous

documents. It is not to permit or to summarize the

testimony of another individual.”

Joining in this contention, counsel for Thomas Brown, Jr. clarified

that his objection was to Agent Tramel’s testimony as to how Thomas

Brown, Jr. obtained possession of Ballard’s Mercury Marquis:

“Q: On 12/30/92, what happened, sir?

A: As Ballard

—— Mr. Ballard testified, Tom, Jr. picked up

his vehicle at the Holiday Motel in Ohio.

Q: Picked up whose vehicle?

A: Picked up Mr. Ballard’s ‘87 Lincoln Marquis.”

14 IV. Jim Spencer’s Testimony17 B allard testified that, on May 14, 1993, at Thomas Brown, Sr.’s

direction, he went to Houston, Texas, to pick up a shipme nt of

marihuana. In Houston, Ballard met with Sherill Raper. However,

because Raper’s suppliers would not agree on a price, Ballard left

Houston without picking up any marihuana.

15 Navarro County Sheriffs’ Captain Jim Spence r also testified

regarding certain “summary ch arts” of telephone company toll and

subscriber records already admitted into evidence. Specifically,

Captain Spencer detailed (1) telephone calls charged to David

Castillo

—— made to Ohio, (2) calls charged to Michael Castillo

—— made

to and from Ohio, and (3) calls charged to Gary and Sylvia

Rhudy

—— made from Kentucky, Arkansas, and Ohio.

V. Disposition in Court Below

On August 8, 1994, a jury found Ysidro Castillo, Jr., David

Castillo , Michael Castillo, Thomas Charles Brown, Sr., Thomas

Charles Brown, Jr., Charles Duane Brown, and Gary Rhudy guilty of

conspiring

—— together with Charle s Ballard, Sherill Raper, 1 7 and

Enr ique Castillo

— — to distribute and to possess with intent to

distribute (1 ,000 kilograms or more of) marihuana. The jury

additionally found David Castillo guilty of possession with intent

to distribute approximately thirty-two pounds of marihuana.

Accordingly, the district court sentenced the defe ndants as

follows: (1) Ysidro Castillo, Jr.

— — 216 months; (2) David Castillo

—— 188 months on count one of the indict ment and sixty months on

count two, to run concurrently; (3) Michael Castillo

— — 168 month s ;

(4) Thomas Brown, Sr.

— — 216 months; (5) Thomas Brown, Jr.

—— 230

months; (6) Duane Brown

—— 136 months; and (7) Gary Rhudy

—— 121 months.18 W hile Thomas Brown, Sr., Thomas Brown, Jr., and Duane Brown have

jointly filed a single brief on appeal, Ysidro Castillo, David

Castillo, Michael Castillo, and Gary Rhudy have filed in dividual

briefs. However, each defendant specifically adopts all of the

applicable points of error raised by the other defendants.

19 Thomas Brown, Jr. and Duane Brown filed pretrial motions for

severance, and Thomas Brown, Sr. joined in the oral motions for

severance presented after the government rested. As Thomas Brown,

Sr.’s failure to move for severance before trial resulted in a

waiver of that request, we consid er only the district court’s

denial of Thomas Brown, Jr.’s and Duane Brown’s motions for

severance. See Fed. R. Crim. P. 12(b)(5) and (f).

16 The sentences of Thomas Brown, Sr., Ysidro Castillo, and David

Castillo were enhanced, pursuant to U.S.S.G. § 3B1.1(a), based on

t heir roles as organizational leaders. Additionally, the court

imposed five-year terms of supervised release against each of the

defendants.

All seven defendants gave timely notice of appeal.

Discussion

I. Denial of Motions for Severance

Defendants 18 argu e that the district court prejudiced their

rights by denying the Browns’ 19 pretrial motions for severance. We

review the district court’s denial of these motions for an abuse of

discretion. United States v. Thomas

, 12 F.3d 1350, 1363 (5th

Cir.), cert. denied , 114 S.Ct. 1861 (1994).

Citing United States v. Prewitt

, 34 F.3d 436, 440 (7th Cir.

1994), the defend ants contend that their conflicting and

irreconcilable differences, the massive amount of complex evidence

(impossible for the jury to separ ate by defendant), the

incriminating statements made by a co-d efendant, and the gross20 T here is no merit to the defenda nts’ suggestions that the

piecemeal nature of the government’s presentation of its case and

the shared surnames of the defend ants would render the jury’s

e fforts to “compartmentalize” the evidence

— — as required by

Prewitt

—— “impossible.”

17 disparity of evidence between defendants necessitated severance in

this case, and the district court’s failure to grant the Browns’

pretrial motions therefore constituted reversible error.

We need not address the Seventh Circuit’s decision in Prewitt

,

however, as it is clear that those criteria have not been

established i n the present case. First, the defendants’

conflicting and irreconcilable differences, if any, existed in the

operation of their drug scheme, and not within the context of their

defense. Second, while the defendants do assert that the

considerable amount of complex evidence presented at trial would

“blur” in the minds of the jurors, they articulate no reasonable

support for this assertion; 20 moreover, in Thomas

, we observed that

“the mere presence of a spillover effect does not ordinarily

warrant severance.” 12 F.3d at 1363 (citation omitted). Third,

there was no incriminating statement by a co-defendant admitted at

trial that would not have been admissible in (post-severance)

separate trials, and Ballard’s testimony would have been available

in any event. Finally, this Court has clarified that “a

quantitative disparity in the evidence ‘is clearly insufficient in

itself to justify severance.’” Id. (citation omitted).

Furthermore, while there does not appear to have been any such

conflict in the present case, we held in Thomas that severance is18

not automatically required merely because co-defendants present

mutually antagonistic defenses. I d. Determinations concerning the

risk of prejud ice in this context must generally be left to the

sound discretion of the district court if we are to give any weight

to the rule that “persons indicted together should be tried

together, especially in conspiracy cases.” I d. (quoting Unite d

States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir.), cert. denied

, 114

S.Ct. 266 (1993)).

Finally, even if some not overwhelming risk of prejudice had

resulted from the district court’ s denial of the motions for

severance, the court properly instructed the jury that: (1) the

verdict as to each defendant should be based solely on the evidence

about that defendant; and (2) membership in a conspiracy must be

shown by a defendant’s own acts and stateme nts. These

ins tructions, which the jury is generally presumed to have

followed, reduced any such risk of prejudice. Id.

II. Fatal Variance

Defendants contend that, while the indictment alleged a single

conspiracy, the evidence presente d at trial demonstrated the

existence of multiple conspiracies. More specifically, defendants

argue that the government’s evidence proved the exist ence of

several conspiracies, but did not prove that each defendant agreed

with one or more of his co-defendants to pa rticipate in all of

these conspiracies; therefore, a fatal variance existed between the

indictment (and jury charge)——which contemplated a single

conspiracy

—— and the evidence adduced at trial.19

The district court expressly instructed the jury that:

“. . . Multiple Conspiracies

You must determine whether the conspiracy charged in the

indictment existed, and, if it did, whether the defendant

was a member of it. If you find that the conspiracy

charged did not exist, then you must return a not guilty

verdict, even though you find that some other conspiracy

existed. If you find that a defendant was not a member

of the conspir acy charged in the indictment, then you

must find t hat defendant not guilty, even though that

defendant may have been a member of some other

conspiracy.”

“[J]uries are presumed to follow their instructions.” United

States v. Thomas

, 12 F.3d 1350, 1363 (5th Cir.) (citation omitted),

cert. denied

, 114 S.Ct. 1861 (1994). Furthermore, a jury’s finding

that the government proved a single conspiracy must be affirmed

unless the evidence——and all rea sonable inferences which may be

drawn

—— examined in the light most favorable to the government would

preclude a finding by reasonable jurors of a single conspiracy

beyond a reasonable doubt. U nited States v. DeVarona

, 872 F.2d

114, 118 (5th Cir. 1989).

This Court has previously held that, in determining the number

of conspiracies proved at trial, the principal factors to consider

are: (1) the ex istence of a common goal, (2) the nature of the

scheme, and (3) overlapping participants in the various dealings.

United States v. Richerson

, 833 F.2d 1147, 1153 (5th Cir. 1987).

In the present case, there was sufficient evidence to support the

jury’s finding of the single conspiracy alleged in the indictment.

Between February 1992 and March 1993, Ballard made ap proximately

twenty to thirty trips b etween Texas and Ohio, transporting

shipments of marihuana and currency. Thomas Brown, Sr. and Thomas20

Brown, Jr. took primary responsibility for instructing Ballard when

to make trips to Texas. Duane Brown was most often the person from

the “Brown group” who would pick up the marihuana from Ballard once

a trip from Texas had been completed, occasionally helping Ballard

with the unloading as well. David Castillo was Ballard’s principal

contact in Dallas , often relaying information and instructions

between Ballard and Ysidro Castillo. Ysidro Castillo, together

with David and Michael Castillo, assisted in the various functions

related to the weighing and loading of marihuana for Ballard’s

trips back to Ohio. Gary Rhudy permitted marihuana to be stored,

weighed, packaged, and loaded into Ballard’s vehicle in the garage

of his home.

Thus, between Febr uary 1992 and March 1993, each of the

defendants played some role in facilitating the transportation of

more than 1,000 kilograms of marihuana from Ohio to Texas for

distribution. Throughout this enterprise, the suppliers, the mode

of transport, and the purchasers remained constant. Therefore, the

jury could reasonably infer t he existence of a single conspiracy

involving all of the defendants. S ee United States v. PuigInfante , 19 F.3d 929, 936 (5th Cir.), cert. denied , 115 S.Ct. 180

(1994). Furthermore, in light of the court’s instruction regarding

“multiple conspiracies,” even if there had been some risk of

prejudice resulting from this alleged variance between the

indictment and some of the evidence adduced, the defe ndants were

adequately shielded from such risk.

III. Insufficiency of the Evidence21

A. A Single Conspiracy

As discussed, supra

, the government presented sufficient

evidence to support the jury’s reasonable inference t hat the

defendants participated in the single conspiracy charged. To

adduce sufficient evidence that each defe ndant engaged in this

single narcotics conspiracy, the government was required to prove

beyond a reasonable doubt: (1) th e existence of an agreement

between two or more of the defendants to violate narcotics laws,

(2) that each alleged conspirator knew of the conspir acy and

intentionally joined in it, and (3) that each alleged conspirator

voluntarily participated in the conspiracy. U nited States v.

Crain , 33 F.3d 480, 485 (5th Cir. 1994), c ert. denied

, 115 S.Ct.

1142 (1995). In this case, the evidence which supported the jury’s

finding of a single conspiracy——evidence of t he defendants’

repeated, coordinated, and extensive facilitation of large

shipments of marihuan a and currency between Ohio and Texas——also

sufficiently demonstrates that each defendant knowingly and

voluntarily joined in this ma rihuana trafficking with the common

goal of profiting therefrom by the continued necessary cooperation

of the parties to the ongoing scheme. Following the analytical

framework of United States v. Morris

, 46 F.3d 410, 415-17 (5th

Cir.), cert. denied

, 115 S.Ct. 2595 (1995), we conclude that the

evidence supports a finding of conspiracy as alleged.

B. Gary Rhudy Shown to Be a Co-conspirator

Rhudy argues that the evidence presented by the government

failed to demonstrate that he had knowledge of , and voluntarily21 B allard testified that marihuana was stored, weighed, packaged,

and loaded into his vehicle in the Rhudys’ garage.

22 participated in, the alleged conspiracy. Rhudy does, however,

concede that the government adduced evidence that: (1) Ballard was

in the garage at Rhudy’s home “on occasion”; 21 (2) Rh udy was with

David Castillo in Ohio at a meeting between Ballard and Castillo

concerning the conspiracy; (3) Rhudy’s wife, Silvia, was the sister

of Ysidro, David, and Michael Castillo; (4) a number of telephone

calls between members of the conspir acy were charged to Rhudy’s

home and credit card; (5) pieces of cardboard displaying

handwriting, matching the drug notes seized at Michael Castillo’s

home, were found in the Rhudys’ garage; and (6) marihuana was

seized in the Rhudys’ garage, Rhudy being present.

We review this contention to determine whether, after viewing

the evidence in the light most favorable to the verdict, a

reasonable jury could have found that Rhudy was a knowing and

voluntary conspirator beyond a reasonable doubt. U nited States v.

Triplett , 922 F.2d 1174, 1177 (5th Cir.), cert. denied , 111 S.Ct.

2245 (1991). The evidence adduced at trial was sufficient to

support the jury’s verdict that Rhudy was such a participant in the

alleged conspiracy. “A defendant need only have had a minor role

in the conspiracy, once it is shown that he voluntarily agreed to

participate.” U

nited States v. McKinney

, 53 F.3d 664, 672 (5th

Cir.), cert. denied , 116 S.Ct. 261 (1995).

IV. Findings and Conclusions at Sentencing

A. Adjustments for Defendants’ Roles in the Conspiracy23

Thomas Brown, Sr., Ysidro Castillo, and David Castillo argue

t hat the district court erred when it upwardly adjusted their

respective sentences to reflect their organizational or leadership

roles in the conspiracy. At sentencing, the court adopted the

recommendations made in the presentence investigation reports

(PSRs) prepared for Thomas Brown, S r. and Ysidro Castillo and

increased their respective base offense levels by four levels

pursuant to U.S.S.G. § 3B1.1(a); the court thereby concluded that

Thomas Brown, Sr. and Ysidro Castillo were——as stated in their

PSRs

—— “organizer[s] or leader[s] of a criminal activity that

involved five or more participants or [] otherwise extensive.”

Concluding, however, that David Castillo was a “man ager or

supervisor (but not an organizer or leader)” pursuant to § 3B1.1,

the court departed from the recommendation made in David Castillo’s

PSR and increased his base offense level by only three levels.

We review the district court’s findings in this context for

clear error. U

nited States v. Narvaez

, 38 F.3d 162, 166 (5th Cir.

1994), cert. denied

, 115 S.Ct. 1803 (1995). In addition to

Ballard’s testimony regarding the roles of these defendants, supra

,

the district court considered the fol lowing information from the

PSRs of these defendants: (1) Thomas Brown, Sr. participated in the

decision to hire Ballard, instructed Ballard regarding when to make

trips to Texas, served as Ballard’s principal con tact upon

Ballard’s return from Texas with marihuana, gave Ballard

instructi ons as to what to do with the marihuana, and funded an

attempt to purchase two hundred pounds of marihuana from a third22 I n relying on these PSRs, as well as the testimony at tr ial

concerning these defendants’ respective roles in the conspiracy,

the district court did not deny these defendants due process.

United States v. Montoya-Ortiz

, 7 F.3d 1171, 1180 (5th Cir. 1993).

24 party in Houston, Texas; (2) Ysidro Castillo was the leader of the

o rganization in Texas, also storing marihuana in his home and

assisting in the loading of marihuana; (3) David Castillo was one

of the leaders of the Dallas organization, relaying instructions to

Ballard, generally assisting Ysidro Castillo, and also

participating in the loading of mar ihuana. 2 2 In light of the

evidence before the district court, the court’s findings were not

clearly erroneous.

Michael Castillo argues that the district court’s refusal to

depart downwardly two levels from his base offense level——pursuant

to U.S.S.G. § 3B1.2(b)——in consideration of his professed minor

participation in the conspiracy constituted clear error. However,

in United States v. Tremelling , 43 F.3d 148 (5th Cir. 1995), this

Court held that a district court should not make an adjustment for

minor participation merely because the defendant’s participation is

somewhat less than the other participants’; to warrant such a

downward adjustment, the defendant’s participation must be “enough

less so that he at best was p eripheral to the advancement of the

i llicit activity.” I d. at 153. In T remelling

, we held that the

defendant’s actions in bringing the buyers and sellers together for

the transaction were not “peripheral” so as to merit a downward

departure. I d. Therefore, considering the evidence of Michael23 The evidence adduced at trial, together with the observations

in Michael Castillo’s PSR, presented the following details of his

participation: Michael Castillo (1 ) assisted in the loading of

marihuana on at least one occasion, (2) made at least one trip to

Ohio——in an automobile ordinarily used by Ballard to ship

marihuana, (3) was present at one meeting with Ballard, Ysidro

Castillo, and David Castillo and at another with only Ballard and

Ysidro Castillo, (4) purchased a 1993 Chevrolet Corvette for which

Ysidro Castillo made a ($18,000) cash deposit, and (5) was in

possession of approximately 18 pounds of marihuana and a firearm

when law enforcement officials searched his residence.

24 The district court adopted the recommendations set out in the

defendants’ respective PSRs concerning the quantities of marihuana

attributable to each defendant for sentencing purposes: (1) Thomas

Brown, Sr.

—— 3,574 p ounds (included 200-pound transaction in

Houston); (2) Thomas Brown, Jr.

—— 3,374 pounds; (3) Duane

Brown

—— 3,374; (4) Ysidro Castillo

—— 4,974 pounds (included 200-pound

transactions in Arkansas and Michigan); (5) David Castillo

—— 4,574

pounds; (6) Michael Castillo

—— 4,592 pounds (included the 18 pounds

of marihuana seized during the search of his home); (7) Gary Rhudy

—— 4,574 pounds. These (PSR) recommendations were based on the

premise, stated in each PSR, that the Castillos as a whole were

responsible for 4,574 pounds of marihuana, and the Browns were collectively responsible for at least 3,374 pounds of marihuana.

25 Castillo’s participation in this conspiracy, 23 the district court’s

decision not to make a downward adjus tment was not clearly

erroneous.

B. Quantity of Drugs Attributable to Defendants

The defendants contend that the district court failed to make

the specific findings required to attribute to each defendant the

entirety of the 1,000 kilograms of marihuana alleged in the

indictment. 24 At the Browns’ sentencing hearing, counsel for Thomas

Brown, Jr. objected to the “findings of the Court,” but failed to

specify the grounds for his objection——assuming such an objection

was incorporated with in this general challenge

— — to the court’s

findings regarding the quantity of marihuana attributable to Thomas26

Brown, Jr.

In United States v. Clark

, 67 F.3d 1154 (5th Cir. 1995)

,

petition for cert. filed , No. 95-7511 (Jan. 16, 1996), this Court

observed that, under the sentencing guidelines, a d efendant who

participates in a drug conspiracy is accountable for the quantity

of drugs that is attributable to the conspiracy and reasonably

foreseeable to the individual defendant. I d. at 1164. The

district court must therefore make two findings: (1) the quantity

of drugs attributable to the entire conspiracy; and (2) the

quantity of drugs that each defendant knew or should have known was

involved in the conspiracy. S ee United States v. Quiroz-Hernandez

,

48 F.3d 858, 870 (5th Cir. 1995).

At the Browns’ sentencing hearing, the district court held

that:

“So based on all of the evidence th at I have before me

and the evidence that I heard at trial, particularly the

evidence that I heard at trial, and also the fact that it

is obviously clear the Castillos were moving large

amounts of marijuana based on the notes and the evidence

that was found, and a lot of it was going up to Dayton.

And so while we can’t determine a p recise amount, I

believe it is a finding that I can make by a

preponderance, based on all of the evidence that I heard,

including especially the evidence at trial, that at least

1,000 kilograms made their way up to Dayton and that

these defendants were involved in that amount of

marijuana trafficking.

So that will be the finding of the Court, that each

of these defendants jointed [sic] the conspiracy from the

beginning as al leged in the indictment, this February

1992 date; that they were members of the conspiracy from

that date through the end of the conspiracy as alleged in

the indictment; that the amounts of marijuana that they

were involved in was in excess of 1,000 kilograms.

That certainly their levels of involvement are

different

. . . But that the amounts were within the25 W ith regard to Gary Rhudy, the court determined that he joined

the conspiracy in July 1992, so only 2,400 pounds of the marihuana

involved in the greater conspiracy (commenced in February 1992)

were attributable to him.

27 scope, this 1,000 kilograms was within the scope of the

agreements that were entered into in the conspiracy that

were entered into by these defendants of which they were

a part, and that these amounts were also reasonably

foreseeable to these defendants without knowing the exact

amounts, as they don’t have to know, they knew what was

going on, that they were involved in marijuana

trafficking, and so the amounts were within the scope of

the agreement and reasonably foreseeable to each of the

defendants.”

Similarly, at the sentencing hearing for Ys idro Castillo,

David Castillo, and Gary Rhudy, the district court concluded that

the quantities of marihuana recommended in the PSRs were properly

attributable to these defendants as “within the scope of the

agreement” and “reasonably foreseeable” to them. 25

At Michael Castillo’s sentencing hearing, the district court

concluded that Michael Castillo had been involved throu ghout the

duration of the conspiracy, and that it was reasonably foreseeable

to him

— — and within the scope of his agreement with the other

defendants

—— ”that at least a thousand kilograms of marijuana would

be trafficked by [his] family.”

We review these findings by the district co urt for clear

error. S ee Uni ted States v. Puig-Infante , 19 F.3d 929, 942 (5th

Cir. 1994). In making these findings, the district court expressly

drew upon corroborated testimony that Ballard transported shipments

of marihuana on at least eighteen occasions. Ballard further26 T hese 18 corroborated marihuana shipments would not have to have

averaged much more than 120 pounds in order for the total amount of

marihuana to have exceeded 1,000 kilograms.

27 T homas Brown, Sr. and Thomas Brown, Jr. filed written objections

to the quantities of marihuana at tributed to them in their

respective PSRs; the dist rict court adopted these PSRs (as

clarified) in determining the defendants’ sentences; Michael

Castillo, G ary Rhudy, David Castillo, Ysidro Castillo, and Duane

B rown also objected to the quantities of marihuana attributed to

them in the addenda to their respective PSRs.

28 testified that these shipments averaged from 200 to 250 pounds. 2 6

Additionally, the government adduced considerable evidence

demonstrating that each defendant was a voluntary and knowing

participant in the conspiracy.

Furthermore, the district court’s findings in the defendants’

respective sentencing hearings were clearly adequate and

sufficiently specific to comply with U.S.S.G. § 1B1.3. 27 “Where

there is no drug seizure or the amount seized does not reflect the

scale of the offense

. . .” the sentencing guidelines recognize

that a district court must approximate the quantity of drugs at

issue. U.S.S.G. § 2D1.1 comment. (n.12). In the present case, the

district court set forward its computations in estimating the

quanti ties of marihuana attributed to the conspiracy and to the

individual defendants. Based on the evidence before the court, and

i n light of the fact that the vast majority of the ma rihuana

involved in this conspiracy was never seized, the district court’s

findings of fact

—— estimating the quantities of drugs attributable

to the individual defendants

—— were not clearly erroneous.

V. Instruction That Jury Need Not Determine Quantities28 We assume, arguendo , that there was adequate objection below.

29 The defendants contend that the district court erred by

instructing the jury that the evidence need not establish that the

quantity of marihuana was as alleged in the indictment, but only

that a measurable amount of marihuana was involved with regard to

the acts charged in the indictment. Specifically, the defendants

argue that the 1,000 kilogram quantity of marihuana alleged in the

indictment consti tuted an element of the offense, which the jury

would need to find beyond a reasonable doubt. The court’s

instruction was proper. 28 We have held that “[q]uantity is not an

element of the crimes proscribed by 21 U.S.C. § 841(a)(1) or 846,”

and only need be established for sentencing pur poses. U nited

States v. Valencia , 957 F.2d 1189, 1197 (5th Cir.), cert. denied

,

113 S.Ct. 254 (1992).

VI. Evidence of Solicitation of a False Statement

Ysidro Castillo contends that the dist rict court erred in

admitting evidence th at he solicited a false statement. Michael

Perryman test ified that he sold a 1993 Chevrolet Corvette to

Michael Castillo on July 27, 1993. While title to the Corvette was

taken in Michael Castillo’s name, it was Ysidro Castillo who gave

Perryman a shoe box containing $18,000 in currency as a down

payment against the ($33,698.11) purchase price of the vehicle.

Sometime after the indictment was returned (July 29, 1993) but

before the middle of August 1993, Ysidro Castillo asked Perryman

to: (1) contact a certain law enforcement official and inquire30

into what could be done to retrieve the Corvette, which had been

seized; and (2) state that Perryman had accompanied Ysidro Castillo

to the bank, where Castillo withdrew the $18,000 down payment.

At trial, but outside the presence of the jury, counsel for

Ysidro Castillo objected to Perryman’s testifying regarding Ysidro

Castillo’s re quest that Perryman fabricate a story about

accompanying Castillo to the bank to withdraw cash for the down

payment. The district court ruled this testimony to be relevant

and admissible. We review this evidentiary ruling for abuse of

discretion. U

nited States v. Lopez

, 979 F.2d 1024, 1032 (5th Cir.

1992), cert. denied , 113 S.Ct. 2349 (1993). Perryman’s testimony

was properly admitted as tending to show Ysidro Cas tillo’s

“knowledge of and membership in the conspiracy.” U nited States v.

Sullivan

, 578 F.2d 121, 123 (5th Cir. 1978). It is well-settled

that, “In developing proof of intent and motive, the prosecution

may offer all of the surrounding circumstances that were relevant.”

United States v. Dula

, 989 F.2d 772, 777 (5th Cir.), cert. denied

,

114 S.Ct. 172 (1993). Ysidro Castillo’s request that Perryman

fabricate this story about the bank demonstrated Castillo’s

con sciousness of guilt, and was clearly relevant to the

government’s contention that Ysidro Castillo knowingly participated

in this conspiracy. Id.

VII. Prejudicial Statements by a Juror

Defendants argue that the district court erred in failing to

dismiss the jury panel or declare a mistrial after one jury panel

member allegedly stated to another that all of the defendants were29 Michael Castillo maintained that he overheard this remark.

31 drug dealers

—— and that the defendants were also all guilt y

—— a t a

time when the entire panel was seated in the courtroom. 29 On the

same morning, this juror was later observed by defense counsel

speaking to other panel members and pointing towards the defendants

in the hall outside of the courtroom. Defense counsel brought this

information to the attention of the district court after voir dire

,

and the court questioned both the jury panel member who allegedly

had made the statement and a panel member who had been seated

nearby. Both testified that they had no knowledge of the alleged

statement, and the court concluded that no such statement had been

made.

Granting of a mistrial is largely within the discretion of the

trial judge, and t his discretion extends to the type of

investigation required. U nited States v. Khoury

, 539 F.2d 441, 443

(5th Cir. 1976) ( citations omitted), c ert. denied

, 97 S.Ct. 739

(1977). Here, the district court was faced with a credibility

determination , and, after questioning several of the persons

potentially involved, determined that t here was no evidence of

misconduct. S ee United States v. Marrero

, 904 F.2d 251 (5th Cir.),

cert. denied

, 111 S.Ct. 561 (1990). We find no error in denying

these motions.

VIII. Prosecutorial Misconduct

Defendants argue that the government, by elicitin g certain

testimony, engaged in misconduct so egregi ous as to require30 The testimony at issue was elicited as follows:

“Q: All right. Just very briefly, what is the Texas

Narcotics Officers Association?”

. . .

Q: And you give awards every year for Narcotics Officer of

the Year, Prosecutor of the Year, and things like that?

A: Yes, for those who have done outstanding performance and

accomplishments in the field.

Q: Those awards are going to be given out next week?

A: Yes, sir.

Q: Who is Prosecutor of the Year?

A: Ms. Rose Romero.”

A defense objection was immediately made, as wel l as a motion to

strike and to instruct the jury.

31 This testimony was the following:

“Q: Well, let me ask you this

. . . can yo u just walk

into the judge and get your wiretap signed?

A: . . . First of all, we must get approval for our

supervisors to begin to work on a wiretap. And after we

have the approval of our supervisor, we must go to the US

Attorney and talk to them and convince them that there

is a need for it and that we have probable cause . . .

Q: And then once you do this and you go to the US Attorney’s

32 reversal of the convictions. First, the government elicited

testimony from a law enforcement official that on e of the

prosecutors was to be named “Prosecutor of the Year” by the Texas

Narcotics Officers Association. 30 Second, the government elicited

testimony regarding the steps that must be taken to secure a

wiretap which allegedly suggested that the issuing judge endorsed

the government’s case. 31 Third, the government elicited testimonyoffice and get assigned a prosecutor, do you have to do

something else as far as the Department of Justice is

concerned?

A: Yes, ma’am, you do . . . I first have to send it to DEA

headquarters for their appro val in Washington, DC, and

after they have approved it and the US Attorney in the

district that I am t rying to work the wiretap approves

it, we have to send to it [sic] the Department of Justice

for their approval, and the Attorney General in

Washington has to approve . . .

Q: And then after all of these people have approved

proceeding with this, then what do you do with your

application and your affidavit for your wiretap?

A: I then take it to the judge for his approval.

Q: And for his signature?

A: For his signature ordering the wire intercept.

Defense counsel objected to this testimony concerning the steps for

obtaining authorization, but the district court overruled the

objection.

32 S pecifically, defendants objected to Ballard’s response to the

government’s question, “When did Sherill Raper start living there

at Cozy Lane?”——“After his release, I imagine.” Also, defendants

objected, and moved for mistrial, based on a government witness’

response to the question, “And do you know

—— did you know

—— I believe

Mr. Brannon also asked you if you knew where Tom Brown, Jr. was at

the time you ran the search warrants of August 6, 1993. Do you

know where he was?”

—— “Yes, ma’am, he was in jail.”

33 whi ch touched upon the incarceration of particular individuals,

thereby allegedly disregardin g the court’s ruling on a motion i n

limine not to discuss certain prior convictions. 32

In reviewing a claim that prosecutorial misconduct constituted

reversibl e error, we must determine whether the misconduct casts

serious doubt upon the correctness of the jury’s verdict. United33 A lso, regarding the district court’s refusal to grant

defendants’ motion for mistrial in this context, the district

court’s ruling will not be set aside absent an abuse of discretion.

United States v. Rocha

, 916 F.2d 219, 234 (5th Cir. 1990) (citation

omitted), cert. denied , 111 S.Ct. 2057 (1991).

34 States v. Tomblin

, 46 F.3d 1369, 1389 n. 54 (5th Cir. 1995). 33 For

prosecutorial misconduct in the form of improper comment or

questioning to represent reversible error, it generally “must be so

pronounced and persistent that it permeates the entire atmosphere

of the trial.” U nited States v. Iredia

, 866 F.2d 114, 117 (5th

Cir.), cert. denied , 109 S.Ct. 3250 (1989).

Beginning with the test imony elicited by the government

regarding Ms. Rose Romero’s distinction as “Prosecutor of the

Year”, this isolated comment

—— albeit obviously improper

—— plainly did

not permeate the entire atmosphere of the trial, particularly as on

the following day the court instructed the jury that this testimony

was not pertinent to any issue in the case and admonished the jury

to disregard it. The jury is presumed to have followed this

instruction. T omblin

, 46 F.3d at 1390. The testimony detailing

the numerous authorizations obtained by law enforcement officials

in securing a wiretap warrant, while more extensive than necessary

or desirable, clearly presents no reversible error. Regarding the

reference to Sherill Raper’s incarceration, it is cle ar that

Ballard had been instructed by the government not to make any such

reference; additionally, the court instructed the jury to disregard

this test imony, which plainly did not permeate the entire trial.

Final ly, the government’s more direct elicitation of testimony35

pertaining to Thomas Brown, Jr.’s incarceration followed an earlier

question in which defense counsel asked the same witness whether he

knew that Thomas Brown, Jr. was at work when the search warrant was

executed; if the “door” was thereby “opened,” then the prosecutor

arguably elicited this testimony in good faith. In any event, this

exchange cannot be seen to have permeated the entire atmosphere of

the trial, nor did the district court abuse its discretion in

refusing to grant a mistrial based on this testimony.

Viewing the trial as a whole, and particularly the strength of

the evidence against the defendants, we find that any misconduct by

the government identified in these claims does not

—— s ingly or

collectively

—— constitute reversible error. However, eliciting of

testimony before the jury that the lead prosecutor was to be named

“Prosecut or of the Year” was wholly unacceptable and

unprofessional. Should there be other instances of similarly

blatant unprofessionalism , active consideration may have to be

given as to whether some form of disciplinary proceeding is

appropriate.

IX. Possession of a Firearm in Connection with the Conspiracy

Michael Castillo contends that the dist rict court erred in

enhancing his base offense level by two levels, pursuant to

U.S.S.G. § 2D1.1(b)(1), for possession of a firearm in connection

with a drug offense. We review this decision by the district court

for clear error. S ee United States v. Buchanan

, 70 F.3d 818, 827-

28 (5th Cir. 1995).

T he district court had before it evidence that, during the36

search of Michael Castillo’s home, law enforcement officials seized

a .38-caliber Smith and Wesson revolver, handwritten notes that

referred to shipments of marihuana, and eighteen pounds of

marihuana. The district court concluded that Michael Castillo had

been involved throughout the duration of the conspiracy, and that

it was reasonably foreseeabl e to him

— — and within the scope of his

agreement with the other defendants

—— “that at least a thousand

kilograms of marijuana would be trafficked by [his] family.” At

sentencing, the court overruled defense counsel’s objection to this

two-level enhancement:

“As to the gu n, and I agree, Mr. Heiskell, if he had a

small amount of drugs and he just had a gun in the house

that ordinarily without more you wouldn’t give the twopoint——assess the two-level increase. But when we are

dealing with the amoun ts of drugs that we are dealing

with here, thousands of pounds and thousands and

thousands and maybe hundreds of thousands of dollars, I

just think the inference is too strong. And trips out of

state, that the gun had to have been at least somewhat

involved in the offense that’s alleged. So I will deny

that objection.”

In United States v. Mitchell

, 31 F.3d 271 (5th Cir.), cert.

denied

, 115 S.Ct. 455 (1994), this Court observed that Application

Note 3 to § 2D1.1 explains that enhance ment for possession of a

weapon “should be applied if the weapon was present, unless it is

clearly improbable that the weapon was connected with the offense.”

Id. at 277. Considering that law enforcement officials discovered

in Michael Castillo’s home not only the gun, but also eighteen

pound s of marihuana and notes relating to the conspiracy, the

district court’s finding——that the gun was “at least somewhat

involved in the offense”

—— was not clearly erro neous. The court34 Michael Castillo contends that the Supreme Court’s decision in

Bailey v. United States

, 116 S.Ct. 501 (1995), impacts the present

application of section 2D1.1(b)(1) because the Sup reme Court

construed the term “use” (of a weapon) to require the “active

employment” of the weapon by the defendant. I d. at 505. However,

section 2D1.1(b)(1) contemplates enhancement “[i]f a dangerous

weapon (including a firearm) was possess ed .” (Emphasis added).

Moreover, the Supreme Court took great pains in Bailey to limit its

ho lding to the construction of the term “use” as that term is

employed in 18 U.S.C. § 924(c)(1), the statute at issue in Bailey

. Therefore, Bailey does not control the present analysis.

35 T he investigation also made use of pen registers authorized for

the telephones of several of the other defendants.

37 cer tainly could have inferred that Michael Castillo was storing

marihuana in his home, in which case the connection between the gun

and the conspiracy was not “clearly improbable.” 34

X. Tramel’s Testimony

Defendants argue that the government, under the guise of

providing a summary of voluminous records, elicited d etailed

testimony from DEA Special Agent Tramel that essentially repeated

portions of Ballard’s previous testimony. Defendants contend that

this abuse of Fed. R. Evid. 1006, to which defense counsel objected

a t trial, provided the government with an opportunity to bols ter

Ballard’s testimony and to argue its case to the jury through

Tramel.

Agent Tramel was t he DEA’s administrative agent for the

wiretap investigation, which was based largely upon the “wire

intercepts” of David Castillo’s home and mobile telephones. 3 5

Having established Agent Tramel’s predominant role in the wiretap

investigation, the government turned to the primary purpose of his

testimony. After reviewing all of the audio tapes, monitor logs,38

transcripts of intercepted conversations, relevant telephone

company records, and pen registers——all of which were entered into

evidence

—— Tramel created “summary charts” for the government. These

charts, which purportedly culled out the relevant telephone calls,

dates, and times from the voluminous records amassed during the

wiretap investigation, were offered into evidence pursuant to Rule

1006. Tramel’s function was to provide the foundation for this

summary evidence.

Defendants contend that Tramel’s testimony exceeded this

limited function, and we are inclined to agree, although that alone

is not dispositive, as Tramel could testify in more than one

capacity. This Court has recognized that a witness may be called

as both an expert on a particular subject and as a fact witness of

the events leading to the defendants’ indi ctment. S ee United

States v. Moore

, 997 F.2d 55 (5th Cir. 1993). Furthermore, the

witness may also serve as “an expert summary witness”, in which

capacity the witness may testify regarding his analysis of the

subject matter of his expertise, “which may necessarily stem from

t he testimony of other witnesses.” I d. at 57-58. Finally, the

witness may testify to facts that were “personally experienced” by

him, even though this testimony “bolsters” the government’s other

evidence. Id. at 59.

Neither Moore nor Rule 1006, nor other recognized principles

of evide nce, justify all Tramel’s testimony. Some of it

— — such as

that concerning what Ball ard and Ysidro Castillo did following a

telephone cal l or that Thomas Brown, Jr. picked up Ballard’s36 Rule 1006 provides:

“The contents of voluminous writings, recordings, or

photographs which cannot conveniently be examined in

court may be presented in the form of a chart, summary,

or calculation. The originals, or duplicates, shall be

made available for examination or copying, or both, by

o ther parties at reasonable time and place. The court

may order that they be produced in court.”

Plainly, this rule does not contemplate summarization of live

testimony presented in court.

39 vehicle at the Holiday Motel (see note 16, supra ), had nothing to

do with summarizing any documents or records, 36 was not anything

observed or personally known by Tramel, and was not the basis for

any expert opinion expressed by him. Nor was the subject matter of

these asp ects of Tramel’s testimony

— — or, unlike the situation in

Moore

, of the case as a whole (apart from a few discrete aspects of

it)

—— of a technic al nature as to which specialized knowledge was

needed for proper understanding. We decline to put our stamp of

approval on this sort of practice, which, in a case of this

c haracter, without good reason or real need, unfairly allows one

prosecution witness merely to repeat or paraphrase the in- court

testimony of another as to ordinary, observable facts, and to do so

other than in the context of rendering or explaining the basis of

or matters considered in reaching an expert opinion.

Nevertheless, we are unable to conclude that the admission of

these portions of Tramel’s testimony constituted reversible error

here. Tramel did not misstate or put an unfair “spin” on the

testimony he repeated or para phrased, and it was uncontradicted.

It was always plain that Tramel was merely referring to what40

another witness had testified to, and was not suggesting any other

source of inf ormation. The government’s case was strong and

essentially un contradicted, the only defense evidence being two

witnesses as to the good character of Michael Castillo.

Accordingly, we reject defendants’ contentions on appeal that the

trial court’s overruling of their objections to specified aspects

of Tramel’s testimony requires that we order a new trial.

Conclusion

Defendants have demonstrated no r e versible error. Their

convictions and sentences are accordingly

AFFIRMED.