UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 92-7134

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MIGUEL BOTELLO,

Defendant-Appellant.

__________________________________________________

Appeal from the United States District Court

For the Southern District of Texas

__________________________________________________ (May 10, 1993)

Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant, Mi guel Botello, was convicted by a jury of

murdering Gerardo Luis Quintanilla while working in furtherance of

a continuing criminal enterprise , in violation of 21 U.S.C.

§ 848(e) (1988), and of money laundering, in violation of 18 U.S.C.

§ 1956(a)(1)(A)(i) (1988). Botello appeals, arguing that the

district court erred by (a) i nstructing the jury on the law of

aiding and abetting as to the murder charge, (b) denying his motion

to dismiss on account of double jeopardy, (c) denying his motion

for continuance, and (d) denying his motion to suppre ss evidence

seized during a search of his vehicle. We affirm.-2- I

Botello was an assassin f or the cocaine dealer Juan GarciaAbrego, one of the largest drug dealers in Mexico. Quintanilla was

a member of a rival drug organization. Quintanilla was driving his

Ford Bronco in Brownsville when the occupants of a Mercury Grand

Marquis opened fire on his vehicle. Six shots hit Quintanilla, and

he died. Botello was identified as the purchaser of the Mercury

and the driver at the time of the shooting. After the murder, he

returned to the auto dealership and said, "It's done with

Quintani lla." There was conflicting testimony at trial as to

whether Botello was the "trigger man." Botello was arrested after

a routine traffic stop which resulted in the discovery of $148,000

in his car.

Botello was indicted for killing Quintanilla while working in

furtherance of a continuing criminal enterprise, in violation of 21

U.S.C. § 848(e) (1988). Botello was also charged with money

laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) (1988), in

connection with the $148,000 found in his car. Botello's first

trial ended in a mistrial. At the second trial Botello was found

guilty on both counts, and was sentenced to life imprisonment for

the murder, and 20 years imprisonment for the money laundering

charge, to run concurrently with the life sentence.1 See Brief for Botello at 9; see also 18 U.S.C. § 2

(1988); United States v. Neal

, 951 F. 2d 630, 633 (5th Cir. 1992)

("Aiding and abetting is not a separate offense, but it is an

alternative charge in every indictmen t, whether explicit or

implicit."); United States v. Gordon

, 812 F.2d 965, 969 (5th Cir.)

(holding that aiding and abetting instruction was not erroneous,

because "[t]he words `aid' and `abet' need not appear in the

indictment in order to sustain a conviction as an aider and

abettor," and because evidence introduced by the go vernment

indicated that the defendant acted as an aider and abettor), cert.

denied, 483 U.S. 1009, 107 S. Ct. 3238, 97 L. Ed. 2d 743 (1987).

2 See N

eal

, 951 F.2d at 633 ("Absent a showing of unfair

surprise, it is not an abuse of discretion to give an aiding and

abetting instruction.").

-3- II

A

Botello argues that the district court erred by instructing

the jury on the law of aiding and abetting as to the murder count

of the indictment. Botello contends that the instruction violated

his right to be convicted only of t he offenses charged in the

indictment, becau se he was indicted as a principal and not as an

aider and abettor. Botello concedes that, as a general rule, an

aiding and abetting instruction may be given to the jury even

though the indictment does not specifically m ention aiding and

abetting, so long as evidence is introduced to support an aiding

and abetting conviction. 1 Botello argues, however, that he was

unfairly surprised 2 by the aiding and abetting instruction because

the indictment explicitly alleged that he was the principal and not

an aider and abettor. According to Botello, "the Government . . .

allege[d] in the indictment that [he] committed the murder in

question by actually shooting the victim." Brief for Botello at 7.

Botello contends that, "where it is clear that the Government makes3 Botello p roperly preserved this issue by raising it at

trial. The district court concluded that Botello was not unfairly

surprised by the instruction and overruled Bot ello's objection.

See Record on Appeal, vol. 26, at 7-26.

-4- a specific decision to allege that one Defendant is the shooter and

a co-defendant is the one who aids and abets,

. . . they should not

be allowed to change their theory at the end of the trial." 3 S ee

id. at 8. We review the district court's decision to give the

aiding and abetting instruction for abuse of discretion. See

United States v. Neal , 591 F.2d 630, 633 (5th Cir. 1992) (holding

that "it was not an abuse of discretion for the trial c ourt to

instruct the jury on aiding and abetting").

We reject the argument that Botello was unfairly surprised by

the aiding and abetting instruction, chiefly because the language

of the indictment did not limit Botello's conduct to that of a

principal. The superseding indictment stated:

Defendant MIG UEL LUCIO BOTELLO, aided and abetted by

Defendant ARCADIO PEREZ, did intentionally kill Gerardo

Luis Quintanilla while working in furtherance of a

continuing criminal enterprise

. . . . [Violation:

Title 21, United States Code, Section 848(e) and Title

18, United States Code, Section 2].

Record on Appeal, vol. 4, at 439 (bracketed material in original).

Botello argues that, because the indictment contained the phrase

"aided and abetted by Defen dant ARCADIO PEREZ," the indictment

specifically charged that Perez was the aid er and abettor and

Botello was the principal. Botello reads too much into the phrase

"aided and abetted by Defendant ARCADIO PEREZ." That language

describes Perez's role in the offense, not Botello's. With respect

to Botello's conduct, the indictment merely stat es that he "did4 Botello does not dispute that evidence presented by the

government supported a conviction for aiding and abetting. The

evidence showed that Botell o acquired the vehicle used in the

murder, see Record on Appeal, vol. 23, at 4-165 to 4-168, 4-174 to

4-179, and helped to search for Quintanilla before he was killed.

See id. vol. 24 at 5-42. Certain testimony tended to show that

Botello was the gunman, see id. ; id. at 5-180 to 5-190, but other

evidence indicated that he was not. S ee id. at 5-182; id. vol. 25,

at 6-4 to 6-9. Therefore, the jury could have found Botello guilty

as an aider and abettor, rather than as the principal.

-5- intentionally kill Gerardo Luis Q uintanilla while working in

furtherance of a continuing c riminal enterprise." That language

c harged Botello both as a principal and as an aider and abettor.

See Neal , 951 F.2d at 633 ("Aiding and abetting is not a separate

offense, but it is an alternative charge in every indictm ent,

whether explicit or implicit.").

We also disagree with Botello's contention th at he was

unfairly surprised by the aiding and abetting instruction because

the prosecution's theory of the case identified him strictly as the

principal in the offe nse. According to Botello, the prosecutor

alleged in his opening statement that Botello personally fired the

shots that killed Quint anilla. However, because evidence

introduced by the government tended to prove that Botello acted as

an aider and abettor, 4 and because the indictment did not foreclose

the possibility of conviction as an aider and abe ttor, Botello's

counsel should have realized that an instruction on aiding and

abetting was available to the prosecution. S ee United States v.

Gordon , 812 F.2d 965, 969 (5th Cir.) ("Any early suggestion . . .

that the government expected to prove that Woodcock was the actual

gunman rather than only an aider and abettor did not unfairly-6-

prejudice his defense."), cert. denied, 483 U.S. 1009, 107 S. Ct.

3238, 97 L. Ed. 2d 743 (1987). We agree with the district court's

c onclusion that Botello was not unfairly surprised by the aiding

and abetting instruction, and therefo re find no abuse of

discretion.

B

Botello argues that the district court, at his second trial,

erred by denying his motion for dismissal, which was premised on a

claim of double jeopardy. We review de novo the district court's

denial of a motion to dismiss on the ground of double jeopardy.

United States v. Vasquez-Rodriguez, 978 F.2d 867, 870 (5th Cir.

1992); United States v. Deshaw, 974 F.2d 667, 669 (5th Cir. 1992).

At Botello's first trial, a court officer suspected that one

of the jurors was smoking marijuana during recesses. The district

court ordered the U.S. Marshal to observe the juror, but the

Marshal confronted the juror with the suspicion that he had been

smoking marijuana. Later it was learned that the suspected juror

had told other jurors of his encounter with the U.S. Marshal.

Botello moved for a mistrial, and the district court granted the

motion. Prior to the second trial, Botello moved for dismissal on

the grounds of double jeopardy, and the district court denied the

motion.

"A defendant may

. . . waive double jeopardy protection by

consenting to a mistrial before a verdict is rendered . . . . [A]

motion by the defendant for mistrial is ordi narily assumed to

remove any barrier to reprosecution, even if the defendant's motion5 The district court recognized that the prosecutor had no

knowledge of the inciden t until it was disclosed in court. S ee

Record on Appeal, vol. 15, at 41-42. The record reveals that the

incident was the result of a misunderstanding between the district

cou rt and the Marshal, and not of any effort to goad the defense

into moving for mistrial. See id. at 45.

6 Botello argues that his convictions for murder and money

laundering should both be reverse d on account of this alleged

error. S ee Brief for Botello at 14. However, it appears that the

continuance issue is relevant only to the murder conviction, since

-7- is necessitated by prosecutorial or judicial error." U nited States

v. Bauman , 887 F.2d 546, 549 (5th Cir. 1989) (citations omitted),

quoted in Unit ed States v. Nichols , 977 F.2d 972, 974 (5th Cir.

1992). "[O]nly where the governmental conduct in question is

intended to `goad' the defendant into moving for a mistrial may a

defendant raise the bar of double jeopardy to a second trial after

having succeeded in aborting the first on his own motion." U nited

States v. Weeks

, 870 F.2d 267, 269 (5th Cir.) (quotin g Oregon v.

Kennedy

, 456 U.S. 667, 676, 102 S. Ct. 2083, 2088-89, 72 L. Ed. 2d

416 (1982)), cert. denied, 493 U.S. 827, 110 S. Ct. 92, 107 L. Ed.

2d 57 (1989). Botello does not allege, and nothing in the record

suggests, that the Marshal confronted the juror, or was directed to

do so by any representative of the government, in order to provoke

a defense m otion for mistrial. 5 As a result, Botello's double

jeopardy argument is without merit.

C

Botello argues that the district court committed r eversible

error by denying his motion for a continuance to locate and

interrogate Eric Linares, who was suspected of committing the

murder for which Botello was indicted. 6 Dr. Victor Leal, a memberthe exculpatory evidence which Botello hoped to acquire during the

continuance was pertinent to the murder charge only.

-8- of the Garcia-Abrego organization, reported to the government that

Eric Linares, another member of the organization, h ad admitted

killing Quintanilla. Dr. Leal also informed the government that he

was unwilling to testify in court, and that he woul d invoke the

Fifth Amendment if called to do so. Upon learning of Linares's

alleged confession, Botello filed a motion for continuance, to gain

additional time to locate Linares and investigate his statements.

The motion stated that Linares's whereabouts were unknown.

Apparently Linares resided in Mexico )) beyond the subpoena power of

the district court )) but occasionally traveled to Brownsville. The

district court denied Botello's motion for continuance.

The denial of a motion for a continuance is reviewed for abuse

of dis cretion. U nited States v. Walker

, 621 F.2d 163, 168 (5th

Cir. 1980), cert. denied, 450 U.S. 1000, 101 S. Ct. 1707, 68 L. Ed.

2d 202 (1981); see also United States v. Khan

, 72 8 F.2d 676, 681

(5th Cir. 1984) (reviewing denial of motion for contin uance for

abuse of discretion). When moving for a continuance on the grounds

of the unavailability of a witness, the movant must show:

[that] due diligence has been exercised to obtai n the

attendance of the witness, that substantial favorable

evidence would be tendered by the witness, that the

witness is available and willing to testify, and that the

denial of the continuance would materially prejudice the

defendant.

Walker

, 621 F.2d at 168 (quoting United States v. Miller

, 513 F.2d

791 , 793 (5th Cir. 1975)); s ee also United States v. Siegel

, 587

F.2d 721, 728 (5th Cir. 1979). There is no reason to believe that-9-

Linares would have testified that he killed Quintanilla, thereby

incriminating himself. S ee United States v. Sawyers

, 902 F.2d

1217, 1219 (6th Cir. 1990) (affirming denial of continuance partly

because "the defendant was unable to indicate whether the witness,

who would have incriminated himself by testifying, would have been

willing to testify"), cert. denied,

___ U.S.

___, 111 S. Ct. 2895,

115 L. Ed. 2d 1059 (1991); Khan

, 728 F.2d at 681 (In deciding

whether a continuance is required, "[t]he showing of willingness

[to testify] is essential to insure that judicial resources are not

wasted."). Botello failed to show that Linares was willing to

testify.

Botello also failed to show that Linares was available to

testify. Linares apparently lived beyond the subpoena power of the

court, and hi s whereabouts were unknown. Furthermore, Dr. Leal,

the person who su pposedly had information about Linares, stated

that he would not testify in court. As a result, Botello failed to

show that Linares could be l ocated or compelled to appear. S ee

Fitzpatrick v. Procunier

, 750 F.2d 473, 477 (5th Cir. 1985)

(upholding deni al of state prisoner's habeas petition, because

state prisoner, in moving for continuance, failed to show that he

knew where the prospective witness was, or that he could locate

that witness) (applying standard of review more stringent than

abuse of discretion); see also United States v. Costello

, 760 F.2d

1123, 1127 (11th Cir. 1985) (affirming denial of continuance partly

because "[n]o one knew [the] exact whereabouts [of the prospective-10-

wit ness]" and "there was no positive indication that [he] could

have been located and secured within a reasonable time").

Because Botello did not show either that Linares could be

located, or that his attendance could be procured, or that he would

be willing to testify if located, Botello failed to satisfy the

requirements for obtaining a continuance on account of the absence

of a witness. Therefore, the district court did not abuse its

discretion by denying Botello's motion for continuance.

D

Botello claims that the district court erred in denying his

motion to suppress the $148,000 in currency found in his car, which

led to his conviction for money laundering. Botello argues that he

did not consent to the search which revealed the currency, and

since there was no probable cause for the search, it violated his

rights under the Fourth Amendment.

Officer Eddie Perez cond ucted the search in question, and

testified regarding the circu mstances of the search at the

suppression hearing. Perez stopped Botello's vehicle for speeding.

Because Botello seemed very nervous, Perez asked him for permission

to search the car, and Botello said "yes." See Record on Appeal,

vol. 6, at 31. Botello also executed a written consent form after

Perez read it to hi m in Spanish. S ee id

. at 34-36. At the

suppression hearing Perez w as unable to produce the form, but

another officer testified that he saw it on the day of the search,

and that it had been signed by Botello. S ee id. at 62. Perez also

informed Botello that he did not have to consent to the search, to-11-

which Botello responded that he had nothing to hide. S ee id. at

32. Botello testified at the suppression hearing that he did not

give consent to search the car. S ee id. vol. 5, at 2. Perez

sea rched the car and found $148,000 in cash. Botello moved to

suppress the currency, and the district court denied the motion. In

a written order the district court found "by clear and convincing

evidence that the search of [Botello's] automobile was conducted

with [his] consent." See id. vol. 3, at 283.

"[A] finding of consent [to searc h] may be overturned on

appeal only if found to be clearly erroneous." U nited States v.

Coburn

, 876 F.2d 372, 374 (5th Cir. 1989). "We will reject the

trial court's finding only if, after giving due regard to the

opportunity of the trial court to judge the credibility of the

witnesses, we are left with the `definite and firm conviction that

a mistake has been committed.'" I d

. (quoting United States v.

Sutton , 850 F.2d 1083, 1085 (5th Cir. 1988)). In challenging the

district court's express finding of consent, Botello argu es only

that the written consent form was not produced at the suppression

hearing. Because the consent form was not produced at the

suppression hearing, the district court's finding of consent turned

on its assessment of Bo tello's credibility and that of the

officers, based on their in-court demeanor. We will not second

guess the district court's credibility judgment. S ee id.7 Botello also suggests that his consent was not voluntary

because it was given in acquiescence to a claim of lawful

authority. See Brief for Botello at 16. Botello does not allege

any specific facts to support this claim. Furthermore, this claim

is directly contradicted by Officer Perez's testimony that he told

Botello that he did not have to consent to the search.

-12- Therefore, the finding of consent was not clearly erroneo us, and

the district court properly denied Botello's motion to suppress. 7

III

For the foregoing reasons, we AFFIRM.