The Honorable Rodney W. Sippel, United States District Judge for the Eastern 1

District of Missouri, sitting by designation.

The Honorable Lyle E. Strom, United States District Judge for the District of 2

Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-1530

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Carlos Benitez-Meraz, *

*

Appellant. *

___________

Submitted: November 17, 1998

Filed: December 7, 1998

___________

Before BEAM and LAY, Circuit Judges, and SIPPEL, District Judge. 1

___________

LAY, Circuit Judge.

Carlos Benitez-Meraz was convicted of conspiracy to distribute and possess with

intent to distribute methamphetamine in violation of 21 U.S.C. § 846. At sentencing,

the district court found at least 78 ounces of methamphetamine attributable to Meraz. 2
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After adjusting his base offense level upward two levels for possession of a firearm, the

court sentenced him to 235 months imprisonment. Meraz appeals both his conviction

and sentence, contending that (1) the district court erred in admitting Rule 404(b)

evidence that Meraz possessed and distributed cocaine along with methamphetamine;

(2) the government’s prosecutor committed prosecutorial misconduct by making

improper comments during opening statements, using improper witnesses, and

vouching for the credibility of a government witness; (3) the cumulative effect of trial

errors and prosecutorial misconduct substantially prejudiced his right to a fair trial; and

(4) the court erred in calculating the amount of methamphetamine attributable to him.

We affirm. 

I.

Law enforcement officers received information from Antonio Moreno, an

individual arrested on drug charges, that Carlos Benitez-Meraz had been one of his

methamphetamine suppliers. Acting on that information, the officers made

arrangements with a government informant, Erin Quintana, to have her purchase

methamphetamine from Meraz. Meraz sold Quintana 6.72 grams of methamphetamine

while law enforcement monitored the sale. Meraz was arrested three days later after

police stopped and searched a car in which he was a passenger and found 13.03 grams

of methamphetamine and guns under his seat, and $3,050 immersed in liquid inside a

beverage container located between the two front seats.

The government’s witnesses at trial included Antonio Moreno, who was awaiting

sentence on federal drug charges at the time of trial. In addition, they called David

Greigo, another individual involved in the drug trade, and Erin Quintana, both of whom

had non-prosecution agreements with the government.

Moreno testified that he purchased one pound of methamphetamine and cocaine

from Meraz. Moreno also testified that he had seen Meraz with a gun during one of
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Meraz’ methamphetamine deliveries. Moreno identified the gun at trial as one of the

guns seized during Meraz’ arrest.

Quintana testified that Meraz delivered four ounces of methamphetamine to

Moreno’s apartment. She also stated in her testimony that she accompanied Meraz to

a trailer park where he collected money while possessing a gun, and that Meraz asked

her to rent a trailer for him where he could store drugs. She further testified that Meraz

threatened her with a gun on one occasion, which she identified at trial as one of the

guns seized during Meraz’ arrest.

David Greigo testified that he was one of Moreno’s drug suppliers and had seen

Meraz purchase cocaine and approximately three pounds of methamphetamine from an

individual named Jaringas who lived at a trailer park in Lexington, Nebraska. He also

testified that Meraz delivered four ounces of methamphetamine to an individual named

Connie Emery, and attempted to deliver one-half kilogram of methamphetamine and

one kilogram of cocaine to an individual named Rhonda Morrow. It was later

discovered that Greigo was in the United States illegally at the time he testified at trial.

Based on these facts and other evidence presented at trial, the jury found Meraz

guilty. Meraz now appeals.

II. 

A. Admission of Rule 404(b) Evidence

During trial, the court admitted testimony from Greigo and Moreno that Meraz

possessed and distributed cocaine as well as methamphetamine. The district court

conducted hearings outside the presence of the jury before allowing the cocaine

testimony. The court found the cocaine evidence admissible as proper Rule 404(b)

evidence to prove Meraz’ intent and knowledge. The court instructed the jury at the
Evidence of other crimes or wrongful acts is admissible if it is: (1) relevant to 3

a material issue; (2) proved by a preponderance of the evidence; (3) higher in probative

value than in prejudicial effect; and (4) similar in kind and close in time to crime

charged. United States v. Logan, 121 F.3d 1172, 1178 (8th Cir. 1997).

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time of Moreno’s and Greigo’s testimony and again at the close of trial about the

limited purposes for which they could use the evidence.

Meraz argues that the district court abused its discretion by admitting testimony

from Greigo and Moreno that Meraz possessed and distributed cocaine. See Fed. R.

Evid. 404(b). Meraz claims the testimony was unreliable and more prejudicial than

probative because it was uncorroborated and the witnesses were merely seeking to

benefit themselves through their testimony.

We review the admissibility of other crimes or wrongful acts evidence under the

abuse of discretion standard. United States v. Smith, 49 F.3d 475, 478 (8th Cir. 1995).

We find no error in the district court’s admission of the evidence regarding Meraz’

possession and distribution of cocaine. The court applied the appropriate standard by

considering the four factors for admissibility when deciding whether to admit the

3

evidence. Because the testimony connected Meraz to possession and distribution of

cocaine, it was directly relevant to the issue of his knowledge and intent to distribute

methamphetamine in this case. See United States v. Logan, 121 F.3d 1172, 1178 (8th

Cir. 1997) (recognizing that evidence of prior drug possession “is admissible to show

such things as knowledge and intent of a defendant charged with a crime in which

intent to distribute drugs is an element”). The cocaine transactions took place during

the same time period as the alleged methamphetamine transactions, and two

independent witnesses testified to witnessing cocaine transactions. The district court

could reasonably find that the probative value of the evidence substantially outweighed

its prejudicial effect. Balancing the probative value of evidence concerning other

crimes or wrongs against its potential prejudicial effect is within the broad discretion

of the district court. United States v. Perkins, 94 F.3d 429, 435 (8th Cir. 1996), cert.
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denied, ___ U.S. ___, 117 S. Ct. 1004 (1997); United States v. Brown, 956 F.2d 782,

786 (8th Cir. 1992). In this case, any such prejudice was minimized by the district

court’s instructions to the jury that it could consider the cocaine testimony only to

evaluate Meraz’ intent or knowledge and not to determine his guilt or innocence. Thus,

the district court did not abuse its discretion by admitting evidence of Meraz’

possession and distribution of cocaine.

B. Prosecutorial Misconduct

Meraz claims the government’s prosecutor committed prosecutorial misconduct

by making improper statements during opening statement, misleading the jury, and

vouching for the credibility of a government witness. He claims that each error requires

reversal individually, and that the cumulative effect of the prosecutorial misconduct

combined with the admission of the aforementioned Rule 404(b) evidence denied him

a fair trial. We find his arguments are without merit.

This court has established a two-part test for whether a prosecutor’s conduct

constitutes reversible prosecutorial misconduct: (1) the prosecutor’s remarks or conduct

must have been improper, and (2) such remarks or conduct must have prejudicially

affected the defendant’s substantial rights so as to deprive the defendant of a fair trial.

United States v. Johnson, 968 F.2d 768, 770 (8th Cir. 1992). Courts consider three

factors to determine the prejudicial effect of prosecutorial misconduct: (1) the

cumulative effect of such misconduct; (2) the strength of the properly admitted

evidence; and (3) the curative actions taken by the trial court. United States v.

Hernandez, 779 F.2d 456, 460 (8th Cir. 1985). Applying these factors, we conclude

the government’s prosecutor did not commit prosecutorial misconduct that warrants

reversal. 

1. Opening Statements
The prosecutor stated during her opening statement, “Ms. Porter consents to the 4

search of her car and found in the car are 13.03 grams of methamphetamine under the

front passenger seat. There are two guns, a .357 Smith & Wesson gun and a nine

millimeter Browning gun that I believe was stolen.” Tr. 53:22-54:1.

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Meraz claims the district court abused its discretion by denying his request for

a mistrial after the prosecutor stated in her opening statement that she believed a gun

found during Meraz’ arrest was stolen. We disagree. Even if this statement was

4

improper, it did not prejudicially effect Meraz’ right to a fair trial. No evidence or

testimony was presented during trial that Meraz stole the gun or knew it was stolen,

and no mention of a stolen gun was ever made again during trial. The district court also

instructed the government to make no further reference to whether the gun was stolen.

Likewise, the prosecutor did not commit prosecutorial misconduct by telling the

jury in her opening statement that “[l]aw enforcement found David Greigo, I believe

it was December of 1996, and at the time they talked to him he was in the state

penitentiary in Lincoln.” Tr. 55:12-14. Meraz claims this comment was improper

because Greigo was an illegal alien “allowed to remain without prosecution as long as

he ‘assisted’ law enforcement.” Appellant’s Br. at 11. We review the prosecutor’s

statement for plain error because Meraz did not object at trial. United States v.

Abrams, 108 F.3d 953, 955 (8th Cir. 1997). We fail to see how this statement is

improper or plain error because the prosecutor merely explained to the jury where and

when law enforcement contacted Greigo. 

2. Misleading the Jury

Meraz argues that the prosecutor misled the jury by failing to disclose that

Greigo was an illegal alien and by failing to correct Greigo’s testimony that he did not

expect to receive any benefit from his testimony through his non-prosecution

agreement. We review for plain error because Meraz made no objection at trial.

Abrams, 108 F.3d at 955. We find no error. Meraz’ arguments are unavailing because
Meraz complains about the following line of questioning: 5

Q. (Prosecutor) In Exhibit 5, conditional nonprosecution agreement, did you also promise in that agreement to truthfully disclose all

information with respect to the activities of yourself and all others and in

all matters about which you have knowledge relating to the distribution of

controlled substances in the federal District of Nebraska?

A. (Quintana) Yes.

Q. Did you also promise to truthfully testify if subpoenaed before the

grand jury, or any trial, or any other court proceeding?

A .Yes.

Q. Did you also promise not to commit any crimes whatsoever?

A. Yes.

Q. Did you also understand that should you commit any crimes, or

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Greigo admitted during his testimony to signing a non-prosecution agreement and later

agreed with defense counsel’s characterization of his agreement as “a good thing.” Tr.

109:22-110:4. Furthermore, the prosecution was unaware during trial of his illegal

alien status, and his non-prosecution agreement with law enforcement was unrelated

to his illegal alien status. 

3. Vouching for Witness Credibility

Meraz claims that the prosecutor improperly vouched for Erin Quintana’s

credibility while questioning her about her non-prosecution agreement on re-direct

examination. After defense counsel cross-examined Quintana about the benefits she

would receive by signing the non-prosecution agreement, the prosecutor referred

Quintana to the agreement on re-direct examination and asked her whether it obligated

her to testify truthfully. The prosecutor also asked Quintana whether she understood 5
should it be judged by the United States Attorney’s Office in its sole

discretion that you have given false, incomplete or misleading testimony or

information, or otherwise violated any provision of this agreement, you

shall thereafter be subject to any prosecution for any federal criminal

violation of which this office has knowledge, including but not limited to

perjury and obstruction of justice?

A. Yes.

Tr. 380:20-381:16. 

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that she would be subject to prosecution if the United States Attorney’s Office, in its

sole discretion, determined that she had provided false, misleading, or incomplete

information. Meraz claims that the prosecutor improperly vouched for Quintana

through this line of questioning because it implied to the jury that the prosecutor

believed Quintana was testifying truthfully and placed the integrity of the government

behind her. We disagree.

Improper vouching may occur when the government: (1) refers to facts outside

the record or implies that the veracity of a witness is supported by outside facts that are

unavailable to the jury; (2) implies a guarantee of truthfulness; or (3) expresses a

personal opinion about the credibility of a witness. United States v. Santana, 150 F.3d

860, 863 (8th Cir.1998). In this case, however, the prosecutor merely asked about an

agreement that had been received into evidence by the district court and would be

available to the jury during deliberations. The prosecutor did not imply that Quintana

was telling the truth, but rather asked Quintana about the terms of the agreement and

if she understood the potential consequences if she failed to comply with them. As this

court recently stated, “‘[e]vidence of the existence, the terms, and the witness’s

understanding of a plea or witness immunity agreement is not vouching.’” Id. (quoting

United States v. Beasley, 102 F.3d 1440, 1450 (8th Cir. 1996), cert. denied, __ U.S.

__, 117 S. Ct. 1856 (1997)).
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C. Amount of Methamphetamine Attributable to Meraz

Meraz asserts that the district court erred in calculating the quantity of

methamphetamine attributable to Meraz for sentencing purposes. We review a district

court’s drug quantity calculations for clear error. Santana, 150 F.3d at 864. We

reverse the district court’s calculation “only if our examination of the entire record

‘definitely and firmly convinces us that a mistake has been made.’” Id. (citations

omitted.) 

At sentencing, the trial court attributed 78 ounces of methamphetamine to Meraz.

It then converted the 78 ounces of methamphetamine into marijuana using the

conversion tables contained in the sentencing guidelines because multiple substances

were involved, and arrived at 4422.6 kilograms of marijuana. This attribution meant

that Meraz’ base offense level was set at level 34 under the federal sentencing

guidelines. See United States Sentencing Commission, Guidelines Manual, §§

2D1.1(a)(3), 2D1.1(c)(3) (Nov. 1998). The court then adjusted his base offense level

upward two levels for possession of a firearm. Id. § 2D1.1(b)(1). Meraz challenges

the district court’s attribution, arguing that the district court’s finding was not supported

by reliable evidence. We disagree.

Meraz does not dispute that the 19.75 grams of cocaine seized during his arrest

and sold to Quintana were properly attributable to him. However, he disputes the

district court’s reliance on trial testimony to find him accountable for a total of 78

ounces of methamphetamine. Meraz’ argument is meritless because the district court’s

calculation was supported by the testimony of Greigo and Moreno. This court has

clearly held that the district court is not limited to the actual amount of drugs seized

when imposing a sentence, but can consider witness testimony and determine its

credibility when calculating the total amount of drugs involved in the conspiracy.

United States v. Wessels, 12 F.3d 746, 753-54 (8th Cir. 1993), cert. denied, 513 U.S.
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831 (1994); United States v. Duckworth, 945 F.2d 1052, 1054 (8th Cir. 1991).

Furthermore, witness credibility is an issue for the sentencing judge that is “virtually

unreviewable on appeal.” United States v. Karam, 37 F.3d 1280, 1286 (8th Cir. 1994),

cert. denied, 513 U.S. 1156 (1995). In this case, the trial testimony attributed at least

78 ounces of methamphetamine to Meraz. Therefore, we conclude that the district

court’s findings regarding the quantity of methamphetamine involved were reasonably

supported by the evidence and are not clearly erroneous.

III.

For the reasons stated above, we affirm Meraz’ conviction and sentence.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.