IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 90-4746

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICKY RAMIREZ, JOSÉ GARCIA, 

and JOSÉ CANTU-CANTU,

Defendants-Appellants.

 

No. 91-4022

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFREDO GARCIA,

Defendant-Appellant.

 

Appeals from the United States District Court

for the Eastern District of Texas

 

 (June 5, 1992)

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

This is an appeal of convictions for possessing marijuana with

intent to distribute and conspiring to do so. Ricky Ramirez and

José Garcia appeal their convictions but not their sentences. José

Cantu-Cantu appeals from both his conviction and his sentence. The
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fourth appellant, Alfredo Garcia, appeals only from his sentence.

The points of error include insufficiency of evidence, admission of

evidence, prosecutorial misconduct, failure to strike a venire

panel, and improper sentencing. The district court's findings

concerning José Cantu-Cantu's objections to the Pre-Sentence

Investigation report are not in the record. We must therefore

vacate José Cantu-Cantu's sentence and remand his case to the

district court for entry of factfindings. In all other respects,

we affirm.

I.

The appellants were indicted along with ten others in July of

1990 for one count of conspiracy to possess 2,000 kilograms of

marijuana with intent to distribute and three counts of the

substantive offense. Count One of the four-count superseding

indictment alleged that defendants had conspired to possess 1,000

kilograms of marijuana with intent to distribute between January

1990 and March 23, 1990. The remaining counts alleged three

separate substantive violations of 21 U.S.C. § 841, stating that

defendants had possessed one hundred kilograms of marijuana with

intent to distribute in January, February, and March of 1990

respectively. 

On October 3, 1990, the jury returned a verdict finding José

Garcia guilty of all counts. The jury found José Cantu-Cantu

guilty of the conspiracy count and substantive possession during

February and March. The government had dismissed the count against

Cantu-Cantu alleging a substantive violation in January. The jury
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found Ricky Ramirez guilty of the conspiracy count and the

substantive count of possession of marijuana in March, but

acquitted him of possession offenses in January or February.

Alfredo Garcia had earlier pled guilty to the fourth count only,

possession of marijuana with intent to distribute in March of 1990.

The government charged the transport of about 2,000 kilos of

marijuana by an eighteen-wheel semi-tractor trailer from Alfredo

Garcia's house in South Texas to Noel Ramirez's house in Dayton,

Texas. The government argued that the marijuana was transported in

monthly shipments in January, February, and March of 1990. Each

time the tractor-trailer rig was unloaded at Alfredo Garcia's

house, and the marijuana was hidden in a shed for several days.

The conspirators loaded the marijuana on to the rig, camouflaging

it with purchased cabbage and ice. The conspirators would then

drive the rig to Noel Ramirez's home near Dayton where the

marijuana was unloaded and taken away by smaller vehicles.

Noel Ramirez, testifying for the government, described the

operation after it arrived at his house but could not identify any

appellant as being present except José Cantu-Cantu. Several

conspirators unloaded the marijuana in his garage. The rig then

drove away and, after a short interval, pickup trucks or vans

arrived at Noel Ramirez's house to pick up the marijuana. Noel

Ramirez received $5,000.00 for the use of his garage. 

The government's case depended heavily on the testimony of

witnesses with whom plea agreements had been negotiated. Rene

Vela-Garcia was the key witness. Vela-Garcia testified that he
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worked with Ricky Ramirez and José Garcia, among others, unloading

and loading marijuana and covering the marijuana with cabbages at

Alfredo Garcia's house in January, February, and March, 1990.

Vela-Garcia also testified that José Garcia and Ricky Ramirez had

driven with Vela-Garcia to Dayton to deliver the marijuana on

several occasions.

Vela-Garcia detailed Ricky Ramirez's and José Garcia's

participation in the "March load" of marijuana. According to VelaGarcia, José Garcia and Ricky Ramirez helped load the marijuana at

Alfredo Garcia's house and drove from Alfredo Garcia's house to

Dayton in a blue pick-up truck owned by José Garcia's father,

accompanying the March load of marijuana. After delivering the

marijuana at Noel Ramirez's house, some of the conspirators rented

a room at an EconoLodge.

The government also relied on the testimony of agents from the

Federal Drug Enforcement Agency, the Federal Bureau of

Investigation, and officers from the Texas Department of Public

Safety who participated in the surveillance and arrests of the

conspirators and who presented at trial photographs and documents

obtained during the operation. With the cooperation of Noel

Ramirez, the government began surveillance of his house on March

23, 1990. The agents testified that a tractor-trailer rig arrived

at Noel Ramirez's house, and marijuana was unloaded at the house.

The agents then followed the rig to an EconoLodge where they saw

several people leave the rig and enter Room 132 of the motel. 
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After placing the EconoLodge under additional surveillance,

the agents photographed people entering and leaving the EconoLodge.

They saw Ricky Ramirez and a companion leave the motel in a blue

car that they had seen arrive earlier. The agents also testified

that they saw José Garcia drive up to the EconoLodge in a yellow

pick-up truck, park in the EconoLodge parking lot, enter Room 132

of the motel, exit Room 132 with two other alleged conspirators,

enter his pick-up truck, and prepare to leave the motel. The

agents arrested José Garcia and his two companions as they were

about to drive away. After these arrests, they entered Room 132

and arrested two other alleged conspirators. The agents searched

the pockets of the arrestees and discovered several documents that

were later introduced at trial, including a business card carried

by José Garcia with telephone numbers of several of the

conspirators.

The agents released José Garcia after his initial arrest

outside the EconoLodge but arrested him again later in McAllen, on

June 11, 1990. In the interview following his second arrest,

Garcia stated that "he was not responsible, that Jesus Garcia was

responsible for the transportation of the marijuana." When Shelton

asked how much money he received for loading and unloading

marijuana, Garcia stated that "he did not receive any money for

loading or unloading the marijuana." Garcia also expressed fear

that "Daniel Bautista [a co-conspirator] would have people come up

from Mexico and do harm to him and his family." 
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The government also presented documents obtained in a search

of Cantu-Cantu's motel room at the EconoLodge. Cantu-Cantu was

arrested while driving a marijuana-laden truck from Noel Ramirez's

house. Agent Shelton read him his Miranda rights and drove him to

a Justice of the Peace where Cantu-Cantu signed a consent form

purportedly authorizing the government to search Cantu-Cantu's

motel room at the EconoLodge. The government searched the room and

discovered various motel and airline receipts that tended to

confirm Vela-Garcia's testimony about the travels of the members of

the conspiracy. 

II.

A. Admission of José Garcia's Inculpatory Statements

José Garcia contends that the district court erred in

admitting into evidence his statements made to Agent Shelton,

because those statements were elicited in violation of his Fifth

Amendment rights. We need not reach the substantive merits of this

contention, however, because we find that the admission of the

challenged statements was harmless beyond a reasonable doubt. 

After advising him of his Miranda rights, Shelton asked José

Garcia to sign a form waiving his rights. Garcia refused to sign

the form but told Agent Shelton that he would answer questions.

Shelton testified both in a suppression hearing and at trial that

Garcia was reluctant to speak because he feared his co-conspirators

would kill him. Shelton therefore terminated the interview,

writing on the waiver form that "Garcia did not wish to say any

more because he was afraid for his life." Shelton returned about
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an hour and a half later to renew his conversations with José

Garcia accompanied by Agent Humphries from the Drug Enforcement

Agency. According to Shelton's testimony at trial, Garcia added

nothing to his earlier statements.

José Garcia objects only to the admission of testimony

regarding his second interview with Shelton. However, Shelton

testified that Garcia made no new statements in the second

interview. The mention of the second interview was harmless beyond

a reasonable doubt. Arizona v. Fulminante, 111 S. Ct. 1246, 1266

(1991).

B. Admission of José Garcia's Business Card

José Garcia also contends that the business card seized from

him after his arrest outside the EconoLodge should have been

excluded from evidence because he was arrested without probable

cause.

Probable cause exists when the facts and circumstances known

to the arresting officer are sufficient to cause a person of

reasonable caution to believe that an offense has been or is being

committed and the arrested person is the guilty person. United

States v. Rocha, 916 F.2d 219, 238 (5th Cir. 1990); United States

v. Raborn, 872 F.2d 589, 593 (5th Cir. 1989). Mere association

with a known criminal does not, by itself, create probable cause

for arrest. Sibron v. New York, 392 U.S. 40 (1968); United States

v. Di Re, 332 U.S. at 593; United States v. Ingrao, 897 F.2d 860,

864 (7th Cir. 1990); Raborn, 872 F.2d at 594; Hillison, 733 F.2d at

697; United States v. Everoad, 704 F.2d 403, 406 (7th Cir. 1983).
-8-

"[I]n order to find probable cause based on association with

persons engaging in criminal activity, some additional

circumstances from which it is reasonable to infer participation in

criminal enterprise must be shown." Hillison, 733 F.2d at 697.

We find such additional circumstances. José Garcia was not

only seen in the company of suspected drug traffickers. He was

seen meeting with these suspects while they were engaged in an

ongoing conspiracy. Noel Ramirez had told officers in charge of

the surveillance that the conspirators "were going to get some

vehicles to take the marijuana from my house." This information

was consistent with Noel Ramirez's accounts of the two earlier

marijuana deliveries, in which a semi-tractor-trailer delivered

marijuana to Noel Ramirez's house and vans and pick-up trucks took

the marijuana to Houston for distribution. 

The officers, therefore, had reason to believe that, after the

occupants of the semi-tractor-trailer unloaded the marijuana, other

conspirators would arrive at Noel Ramirez's house in smaller

vehicles to pick up the marijuana. The officers could reasonably

believe that José Garcia was meeting with the occupants of the rig

before driving his pick-up truck to Ricky Ramirez's house to help

there.

José Garcia's behavior was consistent with such an inference.

Although the testimony is ambiguous, B.J. Lawrence, the officer

observing the motel, testified that he saw several "Latin males"

coming out of Room 132 and "coming in and out of" various vehicles,

including "the eighteen-wheeler parked on the end." At trial,
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Lawrence identified José Garcia as one of the people who entered

and exited the different vehicles. DEA Agent Humphries, the

arresting officer, also testified that Lawrence told him before the

arrest that "Mr. Garcia had been seen around the eighteen-wheeler."

A reasonable officer might then conclude that José Garcia was

connected not only to the occupants of Room 132 but also to the rig

that had transported the marijuana to Noel Ramirez's house

immediately before it arrived at the EconoLodge. The officers also

knew that others would soon return to Noel Ramirez's house in

smaller vehicles such as pick-up trucks to take the marijuana to

Houston. It was then reasonable to infer that José Garcia was a

knowing member of the conspiracy involving the rig and was leaving

the parking lot in a pick-up truck as part of the ongoing

conspiracy. See United States v. Raborn, 872 F.2d 589, 594 (5th

Cir. 1989). The district court's determination that the officers

had reason to believe, more probably than not, that José Garcia was

implicated in the conspiracy was not clearly erroneous. We hold

that evidence obtained incident to José Garcia's arrest was

admissible. 

C. Failure to Declare a Mistrial After Hermani's Testimony

Ricky Ramirez contends that the district court erred in

failing to declare a mistrial after Marisole Hermani, Ricky

Ramirez's sister and a witness for the prosecution, raised her

Fifth Amendment privilege while testifying. We review the ruling

on a request for mistrial for abuse of discretion. United States

v. Merida, 765 F.2d 1205, 1220-21 (5th Cir. 1985). We ask if the
-10-

stricken evidence, viewed in the context of the whole trial, is so

highly prejudicial that it would have had a substantial impact on

the jurors' verdict. United States v. Baresh, 790 F.2d 393, 402

(5th Cir. 1986).

Hermani testified regarding the uniform that she wore at work,

the condition of her car, and her impressions of a photograph of a

car in front of the EconoLodge that the government had introduced

into evidence. Hermani stated that the car in the photograph was

not her car. On the suggestion of defense counsel, the district

court advised Hermani as to her Fifth Amendment privilege and later

appointed counsel to represent her. After consulting with counsel,

Hermani raised her Fifth Amendment privilege and refused to testify

further. 

The district court was well within its discretion not to

declare a mistrial. Hermani's testimony had little impact on Ricky

Ramirez. The district court instructed the jury to disregard the

testimony.

Ricky Ramirez also contends that the district court abused its

discretion by failing to declare a mistrial after the prosecutor

referred to Hermani's testimony in his closing argument. At trial,

Ricky Ramirez's counsel objected to the prosecutor's remark but did

not request a mistrial. The district court again cautioned the

jury to disregard Hermani's stricken testimony. There was no abuse

of discretion. 

D. Admission of Photograph of Hermani's Car
-11-

Ricky Ramirez contends that the district court erred in not

excluding a photograph of Hermani's car from evidence. According

to Ricky Ramirez, this photograph was irrelevant and therefore

should have been excluded under Fed. R. Evid. 402. The decision to

admit evidence is within the sound discretion of the trial court.

Jon-T Chem., Inc. v. Freeport Chem. Co., 704 F.2d 1421, 1417 (5th

Cir. 1983). The photograph of Hermani's car was admitted to

corroborate Vela-Garcia's testimony that the car that arrived at

the EconoLodge to pick up Ricky Ramirez was driven by Ricky

Ramirez's sister. It was relevant for this purpose.

E. Prosecutor's Reference to Lack of Evidence Supporting Ricky

Ramirez's Alibi 

During trial and during his closing argument, Ricky Ramirez

relied on the alibi that he had attended a party during the events

of March. In his rebuttal argument, the prosecutor attacked Ricky

Ramirez's alibi by pointing to the lack of any evidence to support

such a defense, stating

"But you see, if there were forty or fifty people at this

party that all saw Ricky Ramirez, wouldn't you think they

would have called on [someone] that wasn't related to

[Ramirez]? If there really was such a party, where kegs

of beer were purchased, don't you think there would be

just one receipt, one cancelled check, just one piece of

hard evidence to show you that party ever existed to

begin with, and if so, Ricky Ramirez was there?"

Ricky Ramirez's counsel objected, on the grounds that, with this

remark, the prosecution was shifting the burden of proof to

defendant. The district court overruled the objection.

Ricky Ramirez contends on appeal that the prosecutor's comment

on Ricky Ramirez's failure to produce evidence to rebut the
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government's case constituted misconduct. We disagree. The

prosecution may "comment on the failure of the defense to counter

or explain the evidence presented." United States v. Iredia, 866

F.2d 114, 118 (5th Cir. 1989). The prosecutor did no more.

F. Failure to Declare a Mistrial After Dismissal of Six

Defendants from Case

After the trial started, six of the remaining nine defendants,

including appellant Alfredo Garcia, pled guilty and were dismissed

from the case on September 26, 27, and 28. On each occasion, the

district court gave cautionary instructions to the jury, telling

them to disregard the dismissal of defendants. The district court

did not tell the jury that the dismissed defendants had pled guilty

but only that they had been dismissed from the case. Defendants

moved repeatedly for mistrial, urging that dismissing the six codefendants would prejudice them. The district court denied the

motions for mistrial, finding that cautionary instructions would

protect defendants. The district court again instructed the jury

to disregard the dismissal of the six defendants before the jury's

deliberations.

All defendants except Alfredo Garcia contend that the district

court erred in failing to declare a mistrial when six co-defendants

pled guilty and were dismissed from the case during trial.

Defendants concede that the district court gave "carefully worded"

instructions to the jury to disregard the "dismissal" of the codefendants and the jury was never told that co-defendants had pled

guilty. Nevertheless, defendants contend that curative

instructions were insufficient to cure the prejudice.
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Failure to grant a mistrial is reviewed for abuse of

discretion only. United States v. Merida, 765 F.2d 1205, 1220-21

(5th Cir. 1985). Curative instructions are usually sufficient to

protect remaining defendants from prejudice arising out of the

guilty pleas of co-defendants. United States v. DeLucca, 630 F.2d

294, 298 (5th Cir. 1980). 

We find no abuse of discretion. There is no indication that

the jury ever learned of the guilty pleas. They were told only

that the co-defendants were dismissed from the case. The district

court instructed the jury both during the trial and in its final

instructions to disregard the dismissals, stating that "you should

not consider the fact that six of defendants are no longer part of

this trial." Under the circumstances, these instructions were

sufficient to cure any prejudicial impact from the successive

dismissals of defendants.

G. Sufficiency of the Evidence Supporting Ricky Ramirez's and

José Garcia's Conviction

Ricky Ramirez and José Garcia challenge the sufficiency of the

evidence to support their convictions for conspiracy and also the

substantive offense of possession of marijuana with intent to

distribute in March, 1990. These contentions have no merit. 

To prove possession of a controlled substance with intent to

distribute, the government must show beyond reasonable doubt that

defendant (1) possessed the illegal substance (2) knowingly (3)

with intent to distribute it. United States v. Olivier-Becerril,

861 F.2d 424, 426 (5th Cir. 1988). To prove conspiracy to possess

with intent to distribute, the government must show that (1) there
 

1On direct examination by the prosecution, Vela-Garcia

testified concerning the February load as follows:

Q: Who helped you dig and move the cabbage . . . put the

marijuana in the trucks?

A: Me, Ricky Ramirez . . . Jose Garcia helped.

 

2On direct examination by the prosecution, Vela-Garcia

testified as follows: 

Q: Were you present when the third load of marijuana

arrived at Alfredo Garcia's house?

A: Yes, I was.

Q: Who else was present with you?

A: Me, . . . Jose Garcia, Ricky Ramirez, . . . .

Q: After the marijuana was re-wrapped, when was the next 

time that you had any contact with it?

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was an agreement to violate federal narcotics laws; (2) Ricky

Ramirez and José Garcia knew of the agreement; and (3) Ricky

Ramirez and José Garcia voluntarily participated in the agreement.

United States v. Gallo, 927 F.2d 815, 820 (5th Cir. 1991). We view

the evidence in the light most favorable to the jury's verdict and

affirm if a reasonable trier of fact could have found that these

elements were proven beyond a reasonable doubt. Glasser v. United

States, 315 U.S. 60 (1942); United States v. Palella, 846 F.2d 977

(5th Cir. 1988). 

Vela-Garcia testified at trial that he saw José Garcia at the

February unloading and loading of marijuana at Alfredo Garcia's

house.1 He also testified that he saw both Ricky Ramirez and José

Garcia help load the marijuana on to the rig and cover it with ice

and cabbage in March, 1990.2 According to Vela-Garcia, Ricky
A: Loading it.

Q: When did that take place?

A: Around March the 21st.

Q: All right. Who was present when it was re-loaded?

A: All of us. Me, Jesus Garcia, Juan Garcia, Alfredo

Garcia, Ricky Ramirez, Ruben de los Santos, Jesus

Alvarez were present.

. . .

Q: Now, did you use the same method again and got get

[sic] cabbage?

A: We went to Teddy Bertuca's, me and Mencho Garcia sought

the cabbage, bring it back, me and Ricky and Mencho dig

it and again loaded the marijuana, covered it up again.

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Ramirez joined the other conspirators in the haul of marijuana to

Dayton, following the rig laden with marijuana in a blue pick-up

truck. Vela-Garcia also testified that Ricky Ramirez had rewrapped marijuana for Jesus Garcia. Finally, Vela-Garcia testified

about the remarks made by Jesus Garcia that "me, Ricky Ramirez, and

José Garcia . . . all of us were going to work together smuggling

the marijuana."

If the jury believed this testimony, it was entitled to

conclude that Ricky Ramirez and José Garcia knowingly possessed the

marijuana, and from its large quantities, infer their intent to

distribute it. United States v. Moreno-Hinojosa, 804 F.2d 845, 847

n.2 (5th Cir. 1986). This testimony, if believed, would also

support an inference that they knowingly participated in an

agreement to assist in the transportation of marijuana by loading

and unloading that marijuana at Alfredo Garcia's house. 
-16-

Ricky Ramirez and Garcia contend that Vela-Garcia's testimony

implicating them in the conspiracy was inadmissible hearsay. They

did not so object at trial, and we review for plain error only.

Fed. R. Evid. 51; United States v. Blankenship, 746 F.2d 233, 238

n.1 (5th Cir. 1984).

According to Vela-Garcia's testimony, Jesus Garcia told VelaGarcia that he had hired Ricky Ramirez and José Garcia to help

smuggle marijuana as part of Jesus Garcia's general description of

the conspiracy. The existence of this conspiracy was amply

corroborated by independent evidence--Vela-Garcia's other testimony

concerning his personal knowledge of Ricky Ramirez's and José

Garcia's participation in the conspiracy. See Bourjailly v. United

States, 482 U.S. 171, 180, 181, 107 S. Ct. 2775, 2781 (1987).

Vela-Garcia's testimony about Jesus Garcia's statements was,

therefore, admissible as a co-conspirators' statement made in the

course of and in furtherance of the conspiracy. Fed. R. Evid.

801(d)(2)(E). United States v. Miliet, 804 F.2d 853, 856 (5th Cir.

1986). There was ample admissible evidence to support the

convictions for both conspiracy and possession of marijuana with

intent to distribute.

The arguments are little more than attacks on Vela-Garcia's

credibility. The district court properly instructed the jury that

the jury could consider Vela-Garcia's status as a government

informant in evaluating his credibility. The evidence is

sufficient to sustain the conviction of Ricky Ramirez and José

Garcia.
-17-
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H. Defense Counsel's Remark at Voir Dire that Five Defendants Had

Pled Guilty

In voir dire, Jesus Garcia's counsel, Mark Steven Byrne,

stated that five of the original fourteen indicted defendants had

pled guilty before trial. This statement does not appear in the

record because defendants did not include any transcript of the

voir dire proceedings as part of the record on appeal. 

However, after voir dire, the district court sua sponte noted

Mr. Byrne's statement, noted that there was "no . . . objection by

any of the defendants," and asked counsel whether "anybody wants me

to instruct the jury now or in closing in the final charge, or at

any time." None of the counsel for defendants made any suggestions

in response to the court's offer. Indeed, Mr. Byrne proceeded to

defend his remark regarding the five defendants' guilty pleas. 

The district court, therefore, concluded that "I will handle

it [in] the way [that] I deem appropriate in the final charge."

While suggesting that cautionary instructions to the jury might be

appropriate, the court stated that "I don't foresee what is going

to be included in the charge this early in the trial." Again, no

defendant raised any objection or demanded that special

instructions be included in the final charge to cure any taint

created by the opening statement of defense counsel. 

The district court did not refer in his final charge to the

five defendants who pled guilty before trial. The instructions

included only the charge that "[the jury] should not consider the

fact that six of the defendants [who pled guilty after trial

commenced] are no longer part of this trial when you are called
-19-

upon to [reach a verdict]." No defendant objected to this

omission.

José Cantu-Cantu now contends for the first time on appeal

that the opening statement of Mr. Byrne so tainted the jury that he

ought to receive a new trial. Because defendants failed to request

any cautionary instruction, we review the district court's failure

to give such instructions for plain error only.

We cannot find that the "substantive rights of the accused

were blatantly and severely jeopardized" by the district court's

failure to give curative instructions such that the failure

constituted plain error. United States v. DeLucca, 630 F.2d 294,

298 (5th Cir. 1980). The jury heard a reference to the guilty

pleas of the five defendants only once, when one of defendants'

attorneys referred to those pleas. Neither the government nor

defendants ever repeated this reference to the five guilty pleas.

The district court could well have concluded that any further

reference in the charge to the five defendants' guilty pleas could

only highlight a single remark made at the outset of the three-week

trial. The district court did not plainly err in failing to give

curative instructions or take other corrective action sua sponte.

United States v. Rothman, 463 F.2d 488, 490 (2nd Cir. 1972). 

I. District Court's Rulings concerning Jurors

Cantu-Cantu argues that a juror's failure to disclose that she

knew the prosecutor's wife from PTA prevented him from

intelligently striking the jury. The district court, however,

excused the juror in question before jury deliberations. Cantu-
-20-

Cantu's inability to challenge the juror peremptorily could not

have prejudiced him.

Cantu-Cantu also contends that the district court erred in

excusing another juror before deliberations, on the ground that the

juror had been napping during the trial. We review the district

court's decision to discharge jurors before the jury's deliberation

for abuse of discretion, and reverse only upon a showing that the

discharge prejudiced defendant. United States v. Dumas, 658 F.2d

411, 413 (5th Cir. 1981). Cantu-Cantu has shown no prejudice.

Finally, Ricky Ramirez contends that the district court erred

in failing to declare a mistrial after the jury broke into laughter

at a remark made by Vela-Garcia while he was testifying. In

describing how a fight was broken up, Vela-Garcia stated "the party

broke up." The jury apparently was amused by the reference to a

fight as a party and laughed. In response, the district court

admonished the jury that "this [trial] is a serious matter, and it

deserves all of our attention." The district court did not abuse

its discretion in refusing to declare a mistrial.

J. Violation of Fed. R. Evid. 615

During trial, F.B.I. Agent Shelton and D.E.A. Agent Humphries

remained in the courtroom. At the beginning of trial, Cantu-Cantu

invoked "the Rule"--Fed. R. Evid. 615--in order to exclude one of

these two government agents from the courtroom. The district

court ruled, over defense objection, that both agents could remain

in the courtroom as representatives of the government while other

witnesses were testifying but that Shelton must leave the courtroom
-21-

while Humphries testified and Humphries must leave the courtroom

while Shelton testified. The district court stated that given the

"scope and the length" of the investigation, "it is necessary to

have two people represent the government." Both government agents

in the courtroom eventually testified at trial.

José Cantu-Cantu now contends on appeal that, by failing to

exclude one of the two government agents from the courtroom, the

district court violated Fed. R. Evid. 615. Rule 615 provides that:

"At the request of a party, the court shall order

witnesses excluded so that they cannot hear the testimony

of other witnesses, and it may make the order of its own

motion. This rule does not authorize exclusion of (1) a

party who is a natural person, or (2) an officer or

employee of a party which is not a natural person

designated as its representative by its attorney, or (3)

a person whose presence is shown by a party to be

essential to the presentation of the party's cause."

Cantu-Cantu contends that Rule 615 gives the district court the

power to except only one person from the Rule's coverage as the

government's representative.

We will assume arguendo that the district court erred in

allowing the government to designate more than one witness as a

"representative" who was exempt from the Rule. See United States

v. Pulley, 922 F.2d 1283, 1286 (6th Cir. 1991); United States v.

Farnham, 791 F.2d 331, 335-36 (4th Cir. 1986); see also United

States v. Causey, 609 F.2d 777, 778 (5th Cir. 1980) ("from [Rule

615(2)'s] language, it would reasonably be argued that the rule

does not grant counsel for a party the right to designate more than

one representative of the party to be present during the

proceedings"). 
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Even so, Jose Cantu-Cantu has shown no prejudice from this

error. The district court sequestered Shelton and Humphries

whenever either was testifying, thus minimizing the opportunity

that each would have to tailor their testimony. Compare Farnham,

791 F.2d at 335 ("we hold that the district court erred in refusing

to sequester Agent Martin, if not during the entire trial, at least

during the testimony of his colleague [another government case

agent]") (emphasis added). 

Cantu-Cantu has not shown how he was prejudiced by the extra

government agent in the courtroom when neither Shelton nor

Humphries were testifying. Absent a specific showing of prejudice,

there is no reversible error. United States v. Bobo, 586 F.2d 355,

366 (5th Cir. 1978) ("even if there were a violation of the rule

[615], 'the defendants must demonstrate that the [violation]

created sufficient prejudice to require reversal'") (quoting United

States v. Warren, 578 F.2d 1058, 1076 (5th Cir. 1978) (en banc));

William L. Comer Family Equity Pure Trust v. Commissioner of

Internal Revenue, 953 F.2d 140-41 (6th Cir. 1992).

K. Admission of documents seized in allegedly illegal search of

Cantu-Cantu's motel room

Agent Shelton followed a green pick-up truck and blue van

after another officer radioed instructions to him. Shelton

eventually pulled the truck over and arrested its occupants,

including José Cantu-Cantu. Bundles of marijuana were in the

truck. 

Shelton took Cantu-Cantu to the offices of a local justice of

the peace, and another government agent, Agent Kuykendall, read
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Cantu-Cantu his Miranda warnings in Spanish. Agent Kuykendall then

read a consent form to Cantu-Cantu in Spanish and asked him to

consent to a search. The consent form was a standard pre-printed

form authorizing search and seizures in residences. The agents,

however, crossed out the first reference to "residence" and

inserted in handwriting, "Room 227, Gateway Motel, Richey St.

Houston TX." The altered form read as follows, with the bracketed

portions added by hand:

"I, [José Cantu], having been informed of my

constitutional right not to have a search made of the

premises hereinafter mentioned without a search warrant

and of my right to consent to such a search, hereby

authorize [agents of the DEA and DPS] peace officers to

conduct a complete search of my [Room, Room 227, Gateway

Motel, Richey St. Houston, Texas]. These officers are

authorized by me to take from my residence, out houses,

and motor vehicles, if any, any letters, papers,

materials, or other property which they may desire. This

written permission is being given by me to the above

named officers voluntarily and without threats or

promises of any kind and is given with my full and free

consent." 

Both Kuykendall and Shelton explained the form in English and

Spanish, and both testified in a suppression hearing that CantuCantu's signing of the form was free from threats, coercion, or

pressure. After Cantu-Cantu signed the form, the agents searched

his motel room, finding receipts from airline trips and motels that

tended to corroborate Vela-Garcia's account of the conspiracy.

These receipts were introduced at trial over Cantu-Cantu's

objection, after the district court held a hearing to determine the

voluntariness of Cantu-Cantu's consent. 

Cantu-Cantu now challenges the finding of voluntary consent,

admitting these receipts. In support of this contention, Cantu-
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Cantu notes that he had been in confinement for about four hours

when he signed the consent form and that he had not used the

restroom or had anything to eat or drink. Cantu-Cantu also notes

that, while the form authorizes a search of his motel room, it

authorizes seizures only from Cantu-Cantu's residence, out houses,

and motor vehicles.

In reviewing the district court's denial of a motion to

suppress evidence, we review the district court's factfindings for

clear error only. United States v. Lopez, 911 F.2d 1006, 1008 (5th

Cir. 1990). All evidence is viewed in the light most favorable to

the prevailing party. United States v. Reed, 882 F.2d 147, 149

(5th Cir. 1989). To determine if the finding that the consent was

voluntary is supported by a preponderance of the evidence. United

States v. Hurtado, 905 F.2d 74, 76 (5th Cir. 1990) (en banc). 

The district court found on the basis of the evidence

presented in a suppression hearing that Cantu-Cantu consented to

the search of his hotel room without being "overreached, coerced,

or threatened." None of Cantu-Cantu's allegations indicate that

this finding was clearly erroneous. Cantu-Cantu does not contend

that any government agent used any coercive methods.

Cantu-Cantu's objections to the wording of the consent form

are equally meritless. Under the circumstances, the district court

could conclude that the second use of the word "residence" referred

to Cantu-Cantu's motel room, not his legal residence in McAllen,

Texas. The form signed by Cantu-Cantu was a pre-printed form. The

reference to "residence, outhouses, and motor vehicles, if any" was
-25-

boiler-plate language that, by oversight, was not altered as was

the first reference to "residence." 

It is undisputed that Cantu-Cantu signed the form free of

restraints. It is also undisputed that Agent Shelton read CantuCantu his Miranda rights before the signing, which were translated

into Spanish for Cantu-Cantu by Agent Kuykendall. According to the

uncontradicted testimony of Agent Kuykendall, Cantu-Cantu was "very

cooperative" and had "no problem" with the search of his motel

room, because there was "nothing in there that we couldn't see."

Under the totality of the circumstances, we find that the district

court did not err in finding that Cantu-Cantu voluntarily consented

to the search of the motel room. United States v. Yeagin, 927 F.2d

798, 800-801 (5th Cir. 1991).

L. Denial of Requested Jury Instructions

Cantu-Cantu contends that the district court erred in its

instructions to the jury. The district court's instructions stated

that the jury was entitled to "decide how much [of the testimony]

you believe" and that the jury did not have to "accept all of the

evidence as true or accurate." Cantu-Cantu contends that the

district court should have charged the jury that they were entitled

to decide how much of the testimony they believed "if any" and that

the jury did not have to accept all "or any" of the evidence. 

We ask "whether the court's charge, as a whole, is a correct

statement of the law and whether it clearly instructs the jurors as

to the principles of law applicable to the factual issues

confronting them." United States v. Stacey, 896 F.2d 75, 77 (5th
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Cir. 1990). We find that Cantu-Cantu's contention is meritless.

The instructions fairly told the jury that it could reject any of

the evidence. Cantu-Cantu's requested instructions were implicit

in the instructions given. 

M. Sentencing of José Cantu-Cantu and Alfredo Garcia

Both Alfredo Garcia and José Cantu-Cantu challenge their

sentences and the district court's sentencing procedures on appeal.

José Cantu-Cantu contends that the district court erred in refusing

to give him a two-point reduction of his sentence for acceptance of

responsibility and in increasing his sentencing range by three

points for being a marijuana broker or leader of the conspiracy. 

Alfredo Garcia contends that the district court erred in

attributing the January and February loads of marijuana in

calculating his sentence. Finally, both contend that the district

court violated Fed. R. Crim. P. 32(c)(3)(D) by failing to enter

factual findings concerning their challenges to their Pre-Sentence

Reports.

1. José Cantu-Cantu 

Fed. R. Crim P. 32(c)(3)(D) provides that:

"If the comments of the defendant and the defendants'

counsel or testimony or other information introduced by

them allege any factual inaccuracy in the presentence

report or the summary of the report or part thereof, the

court shall, as to each matter controverted, make (i) a

finding as to each allegation, or (ii) a determination

that no such finding is necessary because the matter

controverted will not be taken into account in

sentencing. A written record of such findings and

determinations shall be appended to and accompany any

copy of the presentence report thereafter made available

to the Bureau of Prisons." 
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Cantu-Cantu filed numerous written objections to the findings

and recommendations of his Pre-Sentence Investigation Report. He

disputed the PSI's finding that he owned the marijuana transported

in the February and March loads and the PSI's recommendation that

he be considered a "broker" of marijuana under the sentencing

guidelines. He also objected that Vela-Garcia, the witness the PSI

relied upon in making these assessments, was unreliable and that

the other undisputed facts indicated that Cantu-Cantu took orders

from his brother. 

We have no transcript of the sentencing hearing, and no other

record of the district court's findings. "Where there are disputed

facts material to the sentencing decision, the district court must

cause the record to reflect its resolution thereof, particularly

when the dispute is called to the court's attention." United

States v. Sherbak, 950 F.2d 1095, 1098 (5th Cir. 1992) (quoting

United States v. Warters, 885 F.2d 1266, 1271-72 (5th Cir. 1989)).

We vacate Cantu-Cantu's sentence and remand to allow the district

court to enter the findings of fact required by Fed. R. Crim. P.

32(c)(3)(D).

2. Alfredo Garcia

Alfredo Garcia raises three objections to his sentence.

First, Alfredo Garcia contends that the district court failed to

make a factual finding required by Fed. R. 32(c)(3)(D) concerning

one of his objections to the PSI report. Second, Garcia contends

that the district court did not comply with U.S. Sentencing

Guideline § 6A1.3(b) by failing to notify the parties of its
-28-

tentative findings before making final findings of fact. Finally,

Alfredo Garcia contends that the district court erred in basing

Garcia's sentence on his alleged participation in the January and

February shipments, with no credible evidence of his participation.

At the conclusion of the evidence at the sentencing hearing,

the district court orally made the following factual findings:

"the information contained in the presentence report,

paragraphs objected to, paragraphs 15 through 20, and 22,

is by a preponderance of the evidence correct, and I

believe it. I further find that your objections to

paragraphs 25, 30, 32, along with paragraph 46, and

paragraph 60 and 61, are not well taken. That it is

clear from all the evidence before me, and the

information furnished, and I find from a preponderance of

the evidence that the defendant was involved with all

three of the marijuana loads, and that the guidelines

were appropriately applied and correct offense level was

used in calculating the sentence guidelines range."

Garcia contends that these factual findings were inadequate,

because the district court failed to make a specific factual

findings in response to paragraph 17 of the PSI report, which

stated that Garcia had received $5,000.00 for his part in the

storage and loading of marijuana. Garcia objected to this

paragraph of the report and supported this objection with testimony

from his wife that her husband never suddenly acquired large sums

of money in March 1990. The district court found that her

testimony and that of Alfredo Garcia's daughter, Belinda Reyes, was

inconsistent and less than candid. 

The district court adopted all of the findings contained in

paragraphs 15 through 20 of the PSI report, stating that they were

"by a preponderance of the evidence correct and I believe it."

This adoption of the PSI's findings indicates that the court "at
-29-

least implicitly, weighed the positions of then probation

department and the defense and credited the probation department's

determination of the facts." United States v. Sherbak, 950 F.2d

1095, 1099 (5th Cir. 1992). "Rule 32 does not require a

catechismic regurgitation of each fact determined and each fact

rejected when they are determinable from a [Presentence Report]

that the court has adopted by reference." Id. Having adopted all

of the PSI report's findings on the record, the district court

adequately complied with Rule 32.

Alfredo Garcia also contends that the district court failed to

comply with U.S.S.G. § 6A1.3(b) by failing to provide Garcia with

tentative findings sufficient to allow objections. This contention

is frivolous. Garcia's counsel received the PSI report a month

before the sentencing hearing. Garcia raised numerous objections

to the PSI report at that hearing and presented the testimony of

two witnesses to support those objections. After cross-examination

of these witnesses, the court made specific oral findings rejecting

Garcia's objections to the PSI report and then asked Garcia and

Garcia's counsel if they had any further comments. Neither Garcia

nor his counsel made any further objections or requested a

continuance. These procedures amply satisfy the requirements of

§ 6A1.3. 

We have held that the district court is not obliged to furnish

his tentative factual findings before a sentencing hearing where,

as here, the district court simply adopts the PSI report. United

States v. Mueller, 902 F.2d 336, 347 (5th Cir. 1990). Garcia had
-30-

the PSI report at least ten days before the sentencing hearing.

Fed. R. Crim. P. 32(c)(3)(A). Mueller, 902 F.2d at 347 ("because

the district court merely adopted the PSI's findings, the PSI

provided Mueller with adequate notice of all the issues that the

district court resolved at the sentencing hearing"). Moreover, the

district court provided Garcia and his counsel with an opportunity

to make further comment before sentence was imposed as required by

Fed. R. Crim. P. 32(a)(1)(c). Had Garcia or his counsel been

dissatisfied with the district court's findings, they could have

used their right of allocution to raise further objections or

request a continuance for further preparation. United States v.

Mills, Slip Op. No. 91-1841, at 4073 (5th Cir. April 14, 1992).

There was no violation of U.S.S.G. § 6A1.3(b).

Finally, Alfredo Garcia contends that the district court erred

in finding that he had assisted in the transportation of all three

loads of marijuana for the purpose of calculating his sentence. We

review the district court's factual findings made in sentencing for

clear error. United States v. Chavez, 947 F.2d 742, 746 (5th Cir.

1991). We find no clear error in the challenged finding.

Garcia's wife and daughter both testified at his sentencing

hearing that no marijuana was stored in the white shed behind

Garcia's house. Mrs. Garcia also testified that she did not

believe that her husband dealt in marijuana, despite her husband's

guilty plea to possessing marijuana with intent to distribute in

March 1990. The district court rejected the testimony of Garcia's

daughter and wife, on the basis of the witnesses' "demeanor and
-31-

candor, or lack thereof" and contradictions in the witnesses'

testimony. On the basis of testimony presented at trial, the

district court found that Garcia "was involved in all three of the

marijuana loads." 

The district court was entitled to disbelieve Garcia's

witnesses and credit the trial testimony and the information in the

PSI report that Garcia played a pivotal role in all three

deliveries by lending his residence as a storage site. At trial,

Ruiz Salas testified that Daniel Bautista told him that Alfredo

Garcia was a participant in the January load, and Vela-Garcia

testified that Alfredo Garcia helped unload marijuana in January.

Vela-Garcia also testified that the conspirators used a shed behind

Alfredo Garcia's house for all three loads, and that he helped with

the loading of the March load. This was ample support for

sentencing based on all three loads of marijuana.

Alfredo Garcia objects that Salas's testimony is unreliable

hearsay. A sentence can rest on hearsay that has sufficient

indicia of reliability. United States v. Marshall, 910 F.2d 1241,

1244 (5th Cir. 1990). Garcia simply contends that Salas was not

trustworthy. We cannot say, however, that the district court

clearly erred in crediting Salas. 

Alfredo Garcia also contends that the district court could not

consider Vela-Garcia's testimony in assessing his sentence, because

he was dismissed from the case before Vela-Garcia testified. For

support, Garcia cites United States v. Castellano, 882 F.2d 474

(11th Cir. 1989). However, the Castellano opinion cited by Garcia
-32-

was vacated on petition for rehearing, and a second opinion was

substituted. United States v. Castellano, 904 F.2d 1490 (11th Cir.

1990). The second Castellano opinion clarified its earlier

reasoning by stating that 

"It was never the position of this panel that a

sentencing court may not consider testimony from the

trial of a third party as a matter of law; rather, we

were of the view that a sentencing court must follow the

procedural safeguards incorporated in section 6A1.3 of

the guidelines--safeguards designed to protect the

defendant's right to respond to information offered

against him and to ensure reliability of the information

under consideration."

Castellano, 904 F.2d at 1496. In short, Castellano stands for no

more than the proposition that the sentencing court must comply

with the procedures contained in § 6A1.3, regardless of the source

of the information used to determine defendant's sentence.

Nothing in § 6A1.3 of the Sentencing Guidelines bars the use

of Vela-Garcia's testimony in sentencing Alfredo Garcia, as long as

that testimony had sufficient indicia of reliability. Garcia

contends that Vela-Garcia was an unreliable witness, referring to

evidence presented at trial that Vela-Garcia had told lies and

contradicted himself. Garcia also notes that Vela-Garcia testified

pursuant to a plea agreement and therefore had an incentive to

testify against his co-defendants. At best, this evidence creates

a credibility question for the district court to resolve. The

decision to credit Vela-Garcia's testimony is not clearly

erroneous. United States v. Alfaro, 919 F.2d 962, 967 (5th Cir.

1990).
-33-

In essence, Garcia contends that Vela-Garcia's information

concerning his participation in the January and February loads

cannot be used in assessing his sentence because he pled guilty

only to possession of marijuana in March. This contention has no

merit, because the district court is not limited in its

consideration to the charges of which Garcia was actually

convicted. United States v. Byrd, 898 F.2d 450, 452 (5th Cir.

1990); United States v. Taplette, 872 F.2d 101, 106 (5th Cir.

1989). 

The sentence imposed on José Cantu-Cantu is VACATED, and his

case is REMANDED for further findings of fact and resentencing

consistent with this opinion. The district court's judgment is

AFFIRMED in all other respects.