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 a

t least 78 ounces of methamphetamine attributable to Meraz. 2-2-

After adjusting his base offense level upward two levels for possess ion of a firearm, the court sentenced him to 235 months imprisonment. Meraz appeals both his conviction and sent ence, contending that (1) the district court erred in admitting Rule 404(b ) evidence that Meraz p ossessed and distributed cocaine along with methamphetamine; (2) the government’s prosecutor committed prosecutorial misconduct by makin g impr oper comments during opening statements, using improper witnesses, an d vouching for the credibility of a government witness; (3) the cumulative effect of trial errors and prosecutorial misconduct substantially pre judiced his right to a fair trial; and (4) the c ourt erred in calculating the amount of methamphetamine attributable to him. We affirm.
I.
Law enf orcement officers received information from Antonio Moreno, a n in dividual arrested on drug charges, that Carlos Benitez-Meraz had been one of hi s met hamphetamine suppliers. Acting on that information, the officers mad e arran gements with a government informant, Erin Quintana, to have her purchas e methamphetamine from Meraz. Meraz sold Quintana 6.72grams 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 met hamphetamine 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 await ing sentence on federal drug charges at the time of trial. In addition, they called Davi d Greigo, another individual involved in the drug trade, and E rin Quintana, both of whom had non-prosecution agreements with the government. Moreno testified that he purchased one pou nd of methamphetamine and cocaine from Meraz. Moreno also testified that he had seen Meraz with a gun during one of-3-

Meraz’ methamphetamine deliveries. Moreno identified the gun at trial as one of the guns seized during Meraz’ arrest. Quint ana testified that Meraz delivered four ounces of methamphetamine t o 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 pound s of methamphetamine from an individual named Jaringas who li ved at a trailer park in Lexington, Nebraska. He also testified that Meraz delivered four ounces of methamphetamine to an individual named Conn ie Emery, and attempted to deliver one-half kilogram of methamphetamine an d one kilogra m of cocaine to an individual named Rhonda Morrow. It was late r discovered that Greigo was in the United States il legally 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 conduct ed hearings outside the presence of the jury before allowing the cocain e 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 theEvidence 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 eviden ce; (3) higher in probative value than i n prejudicial effect; and (4) similar in kind and close in time to crim e charged. United States v. Logan , 121 F.3d 1172, 1178 (8 th Cir. 1997). -4- time of Moreno’s and Greigo’s testimony and again at the close of trial about th e limited purposes for which they could use the evidence. Meraz argues that the district cour t 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 tha n probative because it was uncorroborated and the witnesses were merely seeking t o 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 f ind no error in the district court’s admission of the evidence regarding Meraz ’ possession and distribu tion of cocaine. The court applied the appropriate standard by consider ing the four factors for admissibility when deciding whether to admit th e 3 evidence. Because the testimony connected Meraz to possession and distribution o f 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) (reco gnizing that evidence of prior drug possession “is admissible to show such thin gs as knowledge and intent of a defendant charged with a crime in whic h intent to distribute drugs is an element”). The cocaine transactions took place during th e same time period as the alleged methamphetamine transactions, and tw o indepen dent 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 othe r 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.-5-

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 distric t cou rt’s instructions to the jury that it could consider the cocaine testimony only t o 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 prosec utor committed prosecutorial misconduct by making improper statements during opening statement, misleading the jury, an d vouching for the credibility of a government witness. He claims that each error requires re versal individually, and that the cumulative effect of the prosecutorial misconduc t combined with the admi ssion 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 conduc t constitutes reversible prosecutorial misconduct: (1) the prosecutor’s rema rks or conduct musthav e been improper, and (2) such remarks or conduct must have prejudiciall y affected the defendant’s subs tantial rights so as to deprive the defendant of a fair trial. Unite d States v. Johnson , 968 F.2d 768, 770 (8th Cir. 1992). Courts consider thre e fact ors to determine the prejudicial effect of prosecutorial misconduct: (1) th e cumulativ e effect of such misconduct; (2) the strength of the properly admitte d evidence; and (3) the curative actions taken by the trial court. United States v

. Herna ndez , 779 F.2d 456, 460 (8th Cir. 1985). Applying these factors, we conclude the government’s prosecutor did not commit prosecutorial misconduct that warrant s reversal.

1. Opening StatementsThe prosecutor stated during her opening statement, “Ms. Po rter consents to the 4 search of her car an d found in the car are 13.03 grams of methamphetamine under the front p assenger seat. There are two guns, a .357 Smith & Wesson gun and a nin e millimeter Browning gun that I believe was stolen.” Tr. 53:22-54:1. -6- Mer az 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 fo und during Meraz’ arrest was stolen. We disagree. Even if this statement wa s 4 improper, it did not prejudicially effect Meraz’ right to a fair trial. No evidence o r testim ony 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 dis trict 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 itwas De cember of 1996, and at the time they talked to him he was in the stat e penitenti ary in Lincoln.” Tr. 55:12-14. Meraz claims this comment was imprope r because Greigo was an illegal alie n “allowed to remain without prosecution as long as he ‘assis ted’ law enforcement.” Appellant’s Br. at 11. We review the prosecutor’ s st atement for plain error because Meraz did not object at trial. United States v

. Abrams , 10 8 F.3d 953, 955 (8th Cir. 1997). We fail to see how this statement i s improper or plain error because th e 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 tha t Greigo was an illegal alien and by failing to correct Greigo’s testimony that he did not expec t to receive any benefit from his testimony through his non-prosecutio n agreement. We review for plain error because Meraz made no objection at trial

. Abrams , 108 F.3d at 955. We find no error. Meraz’ argumen ts are unavailing becauseMeraz complains about the following line of questioning: 5 Q. (P rosecutor) In Exhibit 5, conditional nonprosecution agree

ment, did you also promise in that agreement to truthfully disclose al l inf ormation with respect to the activities of yourself and all others and in all matters about which you ha ve 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 subpo enaed 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 -7- Greigo admitted during his testimony to si gning a non-prosecution agreement and later agreed with defense counsel’s characterization of his agreement as “a good thing.” Tr. 10 9:22-110:4. Furthermore, the prosecution was unaware during trial of his illega l alien status, and his non-prosecution agreement with law enforcement was unrelate d to his illegal alien status. 3. Vouching for Witness Credibility
Meraz cl aims that the prosecutor improperly vouched for Erin Quintana’ s credibility while questioning her about her non-prosecution agreement on re-direc t examination. After defense counsel cross-examined Quintana about the benefits she wou ld receive by signing the non-prosecution agreement, the prosecutor referre d Quintana to the agreement on re-direct exa mination and asked her whether it obligated her to testify trut

hfully. The prosecutor also asked Quintana whether she understood

5should it be judged by the United States Attorney’s Office in its sol e

discretion that you have given false, incomplete or misleading testimony or infor mation, or otherwise violated any provision of this agreement, yo u shall thereafter be subject to any prosecution for any federal crimina l vio lation of which this office has knowledge, including but not limited t o perjury and obstruction of justice? A. Yes. Tr. 380:20-381:16. -8- that she would be subject to prosecution if the United States Attorney’s Office, in its so le discretion, determined that she had provided false, misleading, or incomplet e information. Meraz claims that the prosecutor improperly vouched for Quintan a thro ugh this line of questioning because it implied to the jury that the prosecuto r believed Quintan a was testifying truthfully and placed the integrity of the government behind her. We disagree. Improper vo uching 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 una vailable 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 ag reement

that had been received into evidence by the district court and would b e 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)).-9-

C. Amount of Methamphetamine Attributable to Meraz
Meraz a sserts that the district court erred in calculating the quantity o f 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. W e reve rse the district court’s calculation “only if our examination of the entire recor d ‘de finitely and firmly convinces us that a mistake has been made.’” Id. (citation s omitted.) At sentencing, the trial court attributed 78 ounces of methamphetamine toMeraz. It then co nverted the 78 ounces of methamphetamine into marijuana using th e con version tables contained in the sentencing guidelines because multiple substances were involved, and arrived at 4422.6 kilograms of marijuana. This attribution meant that M eraz’ base offense level was set at level 34 under the federal sentencin g guidel ines. 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 upwardtwo levels for possession of a firearm. Id. § 2D1.1(b)(1). Meraz challenges the district court’s attribution, arguing that the district court’s findi ng was not supported by reliable evidence. We disagree. Meraz does not dispute tha t the 19.75 grams of cocaine seized during his arrest and sold to Quintana were properly attributable to him. However, he disputes th e di strict court’s reliance on trial testimony to find him accountable for a total of 7 8 ounces of methamphetamine. Meraz’ argument is meritless because the district court’s calculation was supported by the testimony of Greigo and Moreno. This court ha s clearly held that the district court is not limited to the actual amount of drugs seize d wh en imposing a sentence, but can consider witness testimony and determine it s credibility when calculating the total amount of drugs involved in the conspiracy

. United States v. Wesse ls , 12 F.3d 746, 753-54 (8th Cir. 1993), cert. denied , 513 U.S.-10-

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 (8 th Cir. 1994), cert. denied , 513 U.S. 11 56 (1995). In this case, the trial testimony attributed at least 78 ounces of methamphetamine to Meraz. Therefore, we conclude that the distric t 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.