*Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-50778

_____________________

UNITED STATES OF AMERICA

Plaintiff-Appellee,

v.

LUIS ARMANDO RAMIREZ

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

(SA-95-CR-41)

_________________________________________________________________

January 14, 1997

Before KING, JOLLY, and DENNIS, Circuit Judges.

PER CURIAM:*

Luis Ramirez appeals his conviction for conspiracy with

intent to distribute in excess of 500 grams of cocaine and

possession with intent to distribute approximately two kilograms

of cocaine. Although the district court erred in refusing to

allow testimony from Ramirez going to the motive or bias of two

of the principal witnesses against him, we find that the error
2

was harmless. Therefore, we affirm.

I. BACKGROUND

A. Procedural History

Luis Ramirez was indicted by a grand jury on February 15,

1995. The indictment charged him, together with Juan Ayala,

Kenex Morales, and Gerardo Romero, with two counts: 1) conspiring

to distribute and possess with intent to distribute more than 500

grams of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1);

and 2) possessing with intent to distribute approximately two

kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) and

18 U.S.C. § 2. Ayala, Morales, and Romero pleaded guilty, but

Ramirez proceeded to trial. Ramirez moved to suppress evidence

and statements obtained from the stop and search of his pickup

truck. The district court denied the motion after an evidentiary

hearing. After a jury trial, Ramirez was found guilty of both

counts of the indictment and was sentenced to 135 months

imprisonment, supervised release for five years, fines totaling

$500, and mandatory assessments totaling $100. Ramirez filed a

timely notice of appeal.

B. Statement of Facts

1. Testimony at the Pre-Trial Suppression Hearing

Drug Enforcement Agency (“DEA”) Special Agent Scott Holcomb
3

testified at the pre-trial suppression hearing that he received

information from a confidential informant that a person the

informant knew as “Juan” was trafficking in cocaine; that “Juan”

was going to secrete kilos of cocaine in a “prepared” vehicle and

deliver it to San Antonio; and that “Juan” would be traveling

with someone. The informant had seen “Juan” traffick in cocaine

on previous occasions, but did not know his last name or where he

lived. Based on this information, telephone information, and

utility checks, Houston DEA agents discovered the full name and

address of Juan Ayala.

On January 18, 1995, agents set up surveillance at Ayala’s

apartment. They observed Ayala, Ramirez, and Romero at the

apartment and then followed Ayala and Ramirez as the two drove

off in Ramirez’s truck. Holcomb testified that the Houston DEA

agents observed Ramirez using evasive driving techniques

“utilized to detect and try to lose any type of surveillance that

might be on them.” Ramirez drove to his house, but soon left

again, leaving Ayala at the house. Agents did not see either man

again until approximately 4:00 a.m. on January 19, when they

drove by Ramirez’s house and saw his truck.

Around 10:45 a.m. on January 19, agents observed Ramirez’s

truck at Ayala’s apartment, but the truck left before the agents

could set up proper surveillance or follow it. Around noon, the

informant notified the agents that Ayala was on his way to San

Antonio with the cocaine. Based on this information, agents in
4

San Antonio set up surveillance on the I-10 direct route from

Houston to San Antonio.

In the meantime, the Houston agents conducted a search of

the trash that Ayala had placed outside his door before he left. 

The agents found what they believed to be evidence of cocaine:

two cocaine brick wrappings which contained what they believed to

be cocaine residue; four baking powder boxes containing some

baking powder, which is commonly used as a cutting agent in

cocaine; and instructions to a digital O Haus scale, commonly

used to measure out quantities of cocaine.

Sometime between 3:30 and 4:00 p.m., the San Antonio agents

spotted Ramirez’s truck coming into San Antonio. Around 5:00

p.m., the agents stopped the truck with the assistance of a San

Antonio marked police unit. The uniformed officers, along with

Special Agent Holcomb, his partner Arabit, and approximately

eight other officers and agents, approached the truck cautiously,

with their hands on their guns. Holcomb testified that they did

not threaten, harass, or use any physical force against either

Ramirez or Ayala. Agent Arabit asked the police officers to

handcuff both Ramirez and Ayala and take them into custody. 

Arabit read the men their Miranda warnings and explained to them

that they had been stopped because there was reason to believe

that they were carrying cocaine. Ramirez acted very nervous, and

before the agents had a chance to ask for his permission to

search the truck he said, “There’s nothing in the truck. Go
5

ahead search.” The agents then specifically asked for Ramirez’s

permission to search the truck. Ramirez again said, “Go ahead

and search the truck. I don’t know what you’re talking about,

there’s nothing in the truck.” Ayala also gave his consent to

search the truck. After conducting a search of the truck, the

agents found two kilograms of cocaine inside a specially made

long rectangular speaker box behind the driver’s seat. 

2. Testimony at Trial

Codefendants Romero, Morales, and Ayala testified for the

government at Ramirez’s trial, and Ramirez testified in his own

defense. We set out the relevant testimony of each of the four

codefendants in turn.

(i) Romero’s Testimony

Romero testified on direct that he had known Ramirez since

September of 1994. On the afternoon of January 18, 1995, Romero 

went to Ayala’s apartment to pay him $500 for two ounces of

cocaine that he had received from Ayala and Ramirez the day

before. While he was at the apartment, he learned that Ayala and

Ramirez were going to make a shipment of about five kilograms of

cocaine to someone in San Antonio. Romero testified that Ramirez

arrived at the apartment, the men talked briefly, and Ayala and

Ramirez agreed to call him later, when everything was taken care

of. Ayala called Romero when Ayala was driving to San Antonio to
6

request that he find two additional kilograms of cocaine and

bring them to San Antonio. Ayala called Romero two more times

once he reached San Antonio. Romero was arrested because he was

bringing Ayala and Ramirez two of the four kilograms that were

involved in the transaction. 

Romero testified that Ramirez and Ayala had supplied him

with cocaine on three or four prior occasions. On crossexamination he stated that Ramirez had been present at only one

of the prior drug transactions; however, on re-direct, he stated

that Ramirez would come over before drug transactions to discuss

how much was needed, how long it would take to obtain that

amount, and the price. In essence, Romero testified that Ramirez

negotiated the prior drug transactions and Ayala delivered the

drugs. 

On cross-examination, Romero admitted that he thought Ayala

and Ramirez had set him up and snitched on him and that he was

unhappy with them. He denied, however, that he had ever made a

statement that he would pay them back. He also denied that

vengeance was one of his primary motives for testifying. 

(ii) Morales’ Testimony

Morales testified that he met Ramirez four or five years ago

and that they were friends. He testified that he had been

involved in four or five drug transactions with Ramirez, Ayala,

and Romero since September 1994. On cross-examination he
7

specified only three occasions and said that Ramirez was present

on only one of them. His testimony differed from Romero’s as to

the details of the transactions. Morales testified that in the

transaction involving Ramirez, Ramirez was the one with whom he

negotiated a price and quantity. Morales obtained the two

kilograms of cocaine that he and Romero brought to San Antonio

from a friend of his. On cross-examination, Morales admitted

that at the time he was arrested he thought Ramirez had snitched

on him and he was unhappy with Ramirez.

 

(iii) Ayala’s Testimony

Ayala began his involvement with Romero and Morales in

September 1994. Contrary to their testimony that he was selling

cocaine to them, Ayala testified that they were distributing

cocaine to him. Ayala testified that he never delivered cocaine

to Morales or Romero. He testified that he did not think Ramirez

ever talked to prospective buyers about the price or quantity of

drugs, although Ramirez did direct prospective buyers to Ayala. 

Ayala testified that Ramirez was one of his best friends. 

Ramirez introduced Ayala to people who wanted to buy cocaine, and

he was also involved with Ayala in distributing cocaine. 

On January 18, 1995, Romero came to Ayala’s apartment, and

they discussed Ayala’s plan to take five kilograms of cocaine to

San Antonio. Ayala needed a ride because he did not have a
8

driver’s license. Ayala had made arrangements to meet with

Ramirez that day to ask him for a ride to San Antonio. Once

Ramirez arrived, the three men agreed to meet later to determine

who was going to go with Ayala to San Antonio. Ayala left with

Ramirez to go pick up a car from the shop and then the two men

returned to Ayala’s apartment. The car was not working very

well, so Ayala asked Ramirez if they could take his truck to San

Antonio. It was not unusual for Ayala to ask Ramirez to give him

a ride to deliver cocaine somewhere or to borrow Ramirez’s truck. 

Ramirez came to Ayala’s apartment in the morning on January

19. Ayala told him that he was going to go pick up some cocaine. 

Ramirez and Ayala left in separate cars. Ramirez was going to

follow Ayala to pick up the cocaine, but they got separated and

met back at the apartment after Ayala obtained the cocaine. At

that point, Ramirez agreed to give Ayala a ride to deliver the

cocaine. Ayala testified that Ramirez saw the cocaine and knew

why they were making the trip to San Antonio. They discussed

where to put the cocaine, and Ayala decided to put it in the

speaker box. Ramirez was standing right next to the truck when

Ayala put the cocaine in the speaker box. Ayala believed Ramirez

was able to see what he was doing. On redirect Ayala testified

that even if Ramirez had not seen him putting the cocaine in the

truck, Ramirez knew he was delivering cocaine because they had

talked about it the day before.

They left for San Antonio around noon. They were going to
9

party in San Antonio, and Ramirez was going to see his aunt. 

Ayala’s wife accompanied them to San Antonio because she and

Ayala had a fight the night before and she had requested that

Ayala take her to her mother’s house in San Antonio. 

 Ayala called Romero on his cellular phone while they were

driving and asked him to bring more cocaine to San Antonio to

complete the five kilograms. Upon reaching San Antonio, they

dropped off Ayala’s wife and daughter at Ayala’s wife’s mother’s

house. From there Ayala and Ramirez intended to go deliver the

cocaine. The arrest ensued en route. After they were arrested,

at the request of the law enforcement officers involved, Ayala

telephoned Romero to arrange for the delivery of the additional

cocaine. 

On cross-examination, Ayala testified that Ramirez had no

ownership interest in the cocaine and was not going to receive

any of the profit from its delivery. On redirect, however, Ayala

testified that Ramirez did get some profit or personal gain from

the sale of cocaine because Ayala would sometimes give him a

piece of what he got or pay his bills. Ayala and Ramirez did not

need to have a formal agreement because it was understood that

Ramirez would receive some benefit from helping Ayala distribute

cocaine.

Also on cross-examination, Ayala testified that he had two

prior convictions for possession of cocaine, for which he had

gone to jail and been deported. He re-entered the country
10

illegally in January 1994. He expected the government to

recommend a downward departure based on his testimony in court.

(iv) Ramirez’s Testimony

Ramirez testified that he first became aware that Ayala was

dealing drugs when Ayala was arrested for possession of cocaine

in 1992. Ramirez said that he had no direct knowledge that Ayala

was dealing drugs after his return to Houston in 1994, but he

assumed that he was. He also testified, however, that he gave

Ayala’s beeper number to his friends at work who wanted to buy

drugs. He was never involved in fixing the price or quantity of

the drugs, and he never personally delivered cocaine. He had no

idea that Ayala was dealing in such large quantities of cocaine. 

Ramirez testified that he was working on the morning of

January 18, 1995, when Ayala called him and asked him to take him

to look at houses. When they were looking at houses that

afternoon, Ayala told Ramirez that he was probably going to go to

San Antonio the next day to take his wife to live at her mother’s

house. Ayala asked Ramirez to take him to San Antonio, and

Ramirez said if he gave Ayala a ride he would go and see his

aunt. 

When Ramirez was at Ayala’s apartment the next morning, he

saw Ayala fiddling with the speakers in the truck, but he just

assumed that the speakers had become disconnected. Ramirez

testified that he did not know Ayala was taking cocaine to San
11

Antonio, and he would not have driven to San Antonio if he had

known. Ramirez recalled that Ayala had made a phone call during

the drive but said he had been talking to Ayala’s wife at the

time and had not been paying attention. 

(v) Ramirez’s Proffer

The judge did not allow Ramirez to testify regarding threats

he had received from Romero and Morales when he was in a holding

cell with them. Ramirez made a proffer of the testimony he

wished to give outside the presence of the jury. Ramirez stated

that, after the detention hearing, he, Romero, and Morales were

all placed in the same holding cell. When it became apparent

that Ramirez was to be released on bail that day but Romero and

Morales were not, they tried to pick a fight with Ramirez,

asserting that he must have snitched on them. According to

Ramirez, they told him, “We’re going to testify against you. 

And, if we don’t get you that way, we’re going to get you outside

the court.” When questioned by his attorney as to whether Romero

and Morales made threats against him to testify falsely, Ramirez

answered in the affirmative. Ramirez also wanted to introduce

evidence that Ayala’s wife told him that her uncle, who was in

the same prison cell as Romero and Morales, said they told him

they would get her, Ayala, their children, her mother, and

Ramirez.

II. DISCUSSION
12

A. Sixth Amendment Right to Confrontation

Ramirez argues that the district court abused its discretion

when it denied his attorney the opportunity to cross-examine

Romero and Ayala about threats made by Romero and Morales to

“get” Ramirez and Ayala and to testify falsely at Ramirez’s

trial. Ramirez contends that such cross-examination would have

shown Romero’s and Morales’ motive and bias to perjure their

testimony in favor of the government. Ramirez argues that the

district court’s ruling violated his Sixth Amendment right to

confrontation.

Cross-examination to expose a witness’ possible biases,

prejudices or motives for testifying is always relevant as

discrediting the witness and affecting the weight of his

testimony. Davis v. Alaska, 415 U.S. 308, 315 (1974); United

States v. Mizell, 88 F.3d 288, 292 (5th Cir. 1996). A defendant

states a violation of the Confrontation Clause by “showing that

he was prohibited from engaging in otherwise appropriate crossexamination designed to show a prototypical form of bias on the

part of the witness.” Mizell, 88 F.3d at 293. 

We review limitations on the scope of cross-examination for

clear abuse of discretion. United States v. Duncan, 919 F.2d

981, 988 (5th Cir. 1990), cert. denied, 500 U.S. 926 (1991). A

defendant’s Sixth Amendment rights do not “guarantee crossexamination that is effective in whatever way, and to whatever
13

extent, the defense might wish.” Delaware v. Fensterer, 474 U.S.

15,20 (1985). “Trial judges retain wide latitude insofar as the

Confrontation Clause is concerned to impose reasonable limits on

such cross-examination based on concerns about, among other

things, harassment, prejudice, confusion of the issues, the

witness’ safety, or interrogation that is repetitive or only

marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679

(1986). A restriction on cross examination does not rise to the

level of a Sixth Amendment violation if the jury is otherwise

provided with sufficient information to evaluate the bias and

motives of a witness. Mizell, 88 F.3d at 293. 

On cross-examination of Romero, Ramirez’s attorney

established that Romero had not known that Ayala was calling him

from jail and that if Romero had known Ayala was setting him up,

he never would have come to San Antonio. Romero admitted that

after he was arrested he thought Ayala and Ramirez had set him up

and snitched on him to get him arrested. However, when Ramirez’s 

attorney asked, “And, you also, made statements in the Bexar

County Jail to Alejandro Isaac that you would do anything to make

sure that they paid for what they done to you. Isn’t that

true?”, the government objected on the grounds of improper

impeachment. The court sustained the objection. In response to

further questioning, Romero stated that he did not know Alejandro

Isaac, he had never said that he would pay Ayala and Ramirez

back, and vengeance was not one of his primary motives for
14

testifying. Ramirez’s attorney then moved on to question Romero

about different matters. Likewise, during cross-examination of

Ayala, the government objected, citing hearsay and testimonial

questions, when Ramirez’s attorney asked Ayala whether he had

received threats from Romero and Morales when they were in a

holding cell together. The court sustained the objection, and

Ramirez’s attorney moved on to a different topic.

Our examination of the record shows that the crossexamination of Romero allowed by the district court in this case

was sufficient to allow a jury to appraise the co-conspirators’

biases and motives to testify against Ramirez. Furthermore, the

district court correctly sustained the government’s objections to

the cross-examination of Ayala regarding threats he had received. 

As the government correctly noted, threats made to Ayala are not

relevant to the motives of Romero and Morales to testify against

Ramirez.

B. Admissibility of Extrinsic Evidence of Bias

The district court’s refusal to let Ramirez’s attorney

question him as to the threats he received from Romero and

Morales while they were in the holding cell together does not

violate the constitutional right that Ramirez identified in his

brief. Ramirez addresses this issue not as a limitation on his

own right to testify but as a restriction of his right to put on
15

extrinsic evidence going to the motive and bias of his

codefendants who are testifying against him.

A restriction on the testimony of Ramirez designed to show

the motive and bias of his codefendants, even if erroneous, does

not violate the Sixth Amendment right to confrontation. Instead,

such a restriction is an evidentiary ruling, and it is reviewed

under the abuse of discretion standard applied to all evidentiary

rulings.

The district court sustained the government’s objection to

the proffered testimony on the ground that Rule 608(b) does not

allow the use of extrinsic evidence to attack the credibility of

a witness. As the government admitted in its brief to this

court, the district court’s ruling on the proffered testimony,

based on Rule 608(b), was erroneous. Although Rule 608(b)

generally prohibits extrinsic evidence on the issue of

credibility, it does not prohibit extrinsic evidence relevant to

a witness’ bias or motive for testifying. United States v. Abel,

469 U.S. 45, 56 (1984).

Ramirez argues that the district court abused its discretion

in not letting his attorney question him regarding the threats

Romero and Morales made against him in the holding cell. We

agree. If the evidence had been admitted, it would have had a

tendency to show the biases and motives of Romero and Morales in

testifying against Ramirez. However, the district court’s

erroneous evidentiary ruling does not justify reversal of the
 

1"Any error, defect, irregularity or variance which does not

affect substantial rights shall be disregarded.” FED. R. CRIM. P.

52(a).

16

case. 

Because this court is reviewing an erroneous evidentiary

ruling, and not the denial of a constitutional right, the court

must apply the harmless error standard of Federal Rule of

Criminal Procedure 52(a).1 United States v. Arroyo, 805 F.2d

589, 598 (5th Cir. 1986). The Supreme Court set out the correct

standard to use in evaluating error under Rule 52(a) in Kotteakos

v. United States, 328 U.S. 750 (1946). The test under Kotteakos

is whether the error “had substantial and injurious effect or

influence in determining the jury’s verdict.” Id. at 776. 

The district court’s erroneous evidentiary ruling did not

substantially influence the jury verdict for several reasons. 

Ramirez was convicted of participating in a conspiracy to sell

drugs “beginning on or before January 18, 1995 . . . and

continuing until January 20, 1995" and of possessing drugs on

January 19. Ayala testified that he had discussed the trip to

San Antonio with Ramirez and that Ramirez knew they were making a

drug delivery. Ramirez’s testimony as to the threats he received

would not have changed the jury’s evaluation of Ayala’s

testimony. 

Second, Ramirez’s testimony tending to show bias would have

been largely cumulative of the cross-examination of Romero and
17

Morales in which they admit that they thought that Ramirez had

snitched on them and that they were unhappy with him. The

additional contribution by Ramirez -- that Romero and Morales had

actually threatened to testify falsely against him -- would have

added little to the admitted evidence of their motives and bias. 

The extent of cross-examination permitted was sufficient to alert

the jury to any possible bias or motive that Romero or Morales

might have in testifying against Ramirez. Furthermore, reason

for bias or motive is plainly evident from the facts of the case

-- that Ayala called Romero after Ayala and Ramirez had already

been arrested and told him to bring the cocaine to San Antonio. 

In addition, jury instructions addressed the issue of bias and

motive, and Ramirez’s attorney argued it in his closing argument. 

The court instructed the jury to receive the testimony of alleged

accomplices “with caution” and weigh it “with great care.” The

court also supplemented the pattern instruction regarding

credibility with language about bias.

Finally, the prosecution’s case is very strong overall. The

information from the confidential informant, the surveillance by

DEA agents, circumstantial evidence, and the testimony at trial

by witnesses besides Romero and Morales all point strongly

towards Ramirez’s knowing involvement in the distribution of

cocaine. 

Thus, in light of the record as a whole, it cannot be said

that the error had a substantial influence on the judgment. See
18

Kotteakos, 328 U.S. at 765. Although the district court made an

erroneous evidentiary ruling, the error is harmless and does not

require reversal.

C. Requested Accomplice Instruction

Ramirez argues that the district court erred in denying his

requested instruction on accomplice testimony. We give the

district court wide latitude in formulating the jury instructions

and review a district court’s refusal to give a requested

instruction under an abuse of discretion standard. United States

v. Smithson, 49 F.3d 138, 142 (5th Cir. 1995). We reverse only

if the proposed instruction (1) is a correct statement of the

law, (2) was not substantially covered in the charge actually

delivered to the jury, and (3) concerns an important point in the

trial such that the failure to give it seriously impaired the

defendants’s ability to present an effective defense. United

States v. Gaytan, 74 F.3d 545, 553 (5th Cir. 1996). Denial of a

requested instruction is not error when its substance is implicit

in the instructions given. United States v. Ramirez, 963 F.2d

693, 705 (5th Cir.), cert. denied, 506 U.S. 944 (1992). 

In this case, Ramirez requested Fifth Circuit Pattern Jury

Charge No. 1.15. The court ruled that it was “given as modified”

and gave No. 1.16 instead. These instructions are substantially

similar. No. 1.15, addressing the testimony of alleged
19

accomplices, paid informers, and those testifying in return for

immunity or personal advantage, states:

The testimony of an alleged accomplice, and the testimony of

one who provides evidence against a defendant as an informer

of the government for pay, or for immunity from punishment,

or for personal advantage or vindication must always be

examined and weighed by the jury with greater care and

caution than the testimony of ordinary witnesses. You, the

jury, must decide whether the witness’ testimony has been

affected by any of those circumstances, or by his interest

in the outcome of the case, or by his prejudice against the

defendant, or by the benefits he has received either

financially, or as a result of being immunized from

prosecution. If you determine that the testimony of such a

witness was affected by any one or more of those factors,

you should keep in mind that such testimony is always to be

received with caution and weighed with great care.

You should never convict any defendant upon the unsupported

testimony of such a witness unless you believe that

testimony beyond a reasonable doubt.

The charge employed by the court addressed only alleged 

accomplices and stated: 

In this case the government called as three of its

witnesses, alleged accomplices, named as a codefendant in

the indictment, with whom the government has entered into a

plea agreement, in which the government recommends a lesser

sentence, subject to acceptance or rejection by the Court,

than the codefendants would otherwise be exposed to for the

offense to which the codefendants pled guilty -- pleaded

guilty. Such plea bargaining, as it is called, has been

approved as lawful and proper and is expressly provided for

in the rules of this Court. An alleged accomplice,

including one who has entered into a plea agreement with the

government, is not prohibited from testifying. On the

contrary, the testimony of such a witness may, alone, be of

sufficient weight to sustain a verdict of guilty.

You should keep in mind that such testimony is always to be

received with caution and weighed with great care. You

should never convict a defendant upon the unsupported

testimony of an alleged accomplice unless you believe that

testimony beyond a reasonable doubt. The fact that an

accomplice has entered a plea of guilty to the offense

charged is not evidence in and of itself of the guilt of any

other person.
20

The district court also gave the pattern instruction regarding

credibility of witnesses and supplemented it with language about

bias. The instructions given by the district court correctly

stated the law, and the proposed instruction was substantially

covered in the charge actually given. Thus, the district court

did not abuse its discretion in refusing the requested jury

charge.

D. Evidence of Prior Drug Deals

Ramirez argues that the district court abused its discretion

by admitting testimony about his involvement in cocaine

transactions prior to the one for which he was arrested. This

court reviews a district court’s evidentiary rulings for abuse of

discretion. United States v. Davis, 19 F.3d 166, 171 (5th Cir.

1994). 

Federal Rule of Evidence 404(b) excludes evidence of

extrinsic offenses to prove that a defendant acted in conformity

with his character. FED.R.EVID. 404(b). Such evidence may be

admitted, however, to prove motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident. Id. Furthermore, evidence of acts committed pursuant

to a conspiracy offered to prove a defendant’s participation in a

conspiracy is not extrinsic evidence and is therefore admissible. 

United States v. Royal, 972 F.2d 643, 647 (5th Cir. 1992). 
21

The district court found that evidence of cocaine

transactions among Ramirez, Ayala, Romero, and Morales in the

fall of 1994 was “intrinsic” evidence admissible to prove the

existence of a conspiracy. The district court found in the

alternative that the evidence of prior transactions was

admissible under Rule 404(b) to prove Ramirez’s knowledge of the

conspiracy and his intent to join it. Because the district court

found that the probative value of the evidence was not

substantially outweighed by undue prejudice and gave appropriate

limiting instructions regarding the evidence, the court’s

admission of the evidence was not an abuse of discretion.

 

E. Denial of Motion to Suppress

Ramirez argues that the district court erred in denying his

motion to suppress evidence. He challenges the vehicle stop,

detention, and the consensual search of his truck on the grounds

that the officers had neither reasonable suspicion nor probable

cause to stop his truck, he was placed under arrest without

probable cause, his consent to search was tainted by the unlawful

stop and arrest, and his consent to search was not voluntary. 

In reviewing a district court’s ruling on a motion to

suppress based on live testimony, this court reviews findings of

fact for clear error but reviews the determination of reasonable

suspicion or probable cause de novo. Ornelas v. United States,
22

116 S.Ct. 1657, 1663 (1996). We review the evidence in the light

most favorable to the prevailing party in the district court and

view not only the evidence taken at the suppression hearing, but

also the evidence taken at trial. United States v. Cardenas, 9

F.3d 1139, 1147 (5th Cir. 1993), cert. denied, 114 S.Ct. 2150

(1994).

In denying the motion to suppress, the district court made

specific findings: that the informant was reliable, that the

officers had reasonable suspicion to stop Ramirez’s truck, that

Ramirez and Ayala were not placed under arrest at the time they

were detained, that Ramirez’s consent to search was voluntarily

given, and that the preponderance of the evidence showed that

Ramirez knew of his right to refuse consent. 

DEA agent Holcomb testified at the suppression hearing about

the information he received from the confidential informant. 

Holcomb had worked with this informant for four or five months

and had received other reliable information from him. The

informant’s information was also corroborated independently by

surveillance and the search of the trash outside Ayala’s door,

thus enhancing its credibility. Based on this information, an

experienced drug agent could reasonably believe that Ramirez and

Ayala were transporting cocaine. 

The district court concluded that the agents had reasonable

suspicion to stop Ramirez’s truck. We think this conclusion was

correct. We would even suggest that the agents had probable
23

cause to stop the truck. We need not reach this conclusion,

however, because we agree with the district court that Ramirez’s

consent to search the truck was voluntarily given. 

A finding of fact is clearly erroneous when, although there

is enough evidence to support it, the reviewing court is left

with a firm and definite conviction that a mistake has been

committed. United States v. United States Gypsum Co., 333 U.S.

364, 395 (1948). If the district court’s account of the evidence

is plausible in light of the record viewed in its entirety, the

court of appeals may not reverse it even though convinced that,

had it been sitting as the trier of fact, it would have weighed

the evidence differently. Anderson v. Bessemer City, 470 U.S.

564, 573-74 (1985). Our review of the record does not reveal

clear error in this case. 

To be valid, consent to search must be knowing and

voluntary, based on the totality of circumstances. Schneckloth

v. Bustamonte, 412 U.S. 218, 227 (1973). The presence of

numerous officers and the fact that Ramirez was handcuffed at the

time he gave his consent to search the truck does not preclude

his consent from being voluntarily given. Ramirez volunteered

his consent to search the truck almost immediately after he was

stopped. 

The government must prove that consent was given voluntarily

only by a preponderance of the evidence. United States v.

Yeagin, 927 F.2d 798, 800 (5th Cir. 1991). Six factors are
24

relevant to a determination of the voluntariness of consent: “(1)

the voluntariness of the defendant’s custodial status; (2) the

presence of coercive police proceedings; (3) the extent and level

of the defendant’s cooperation with the police; (4) the

defendant’s awareness of his right to refuse consent; (5) the

defendant’s education and intelligence; and (6) the defendant’s

belief that no incriminating evidence will be found.” Id. 

Based on the totality of circumstances in this case, the district

court did not commit clear error in finding that Ramirez’s

consent was voluntarily given. 

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.