United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-1162

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Justin Gabriel Hernandez, *

also known as Jay, *

also known as Manuel Hernandez, * 

also known as Joshua Thomas Romero, *

also known as Patrick Joseph *

Campanella, also known as Justin West, *

also known as Michael Jerry Garcia, *

also known as Phillip S. Varela, *

*

Appellant. *

___________

Submitted: June 12, 2002

Filed: August 22, 2002

___________

Before RILEY, BEAM, and MELLOY, Circuit Judges.

___________

BEAM, Circuit Judge.

Justin Gabriel Hernandez was convicted by a jury of conspiracy to distribute and

possess with intent to distribute methamphetamine, cocaine, and marijuana, in

violation of 21 U.S.C. § 846, and of distribution and possession with intent to
1

The Honorable Richard G. Kopf, United States District Judge for the District

of Nebraska.

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distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The district court1

sentenced him to 360 months' imprisonment. Hernandez appeals his conviction and

sentence, claiming a variety of errors. We affirm.

I. SUFFICIENCY OF THE EVIDENCE

Hernandez first argues that the evidence was insufficient to support his

conviction for conspiracy to distribute methamphetamine. Reviewing a jury verdict

for sufficiency of the evidence requires us to review the evidence in the light most

favorable to the verdict, accepting all reasonable inferences as established. United

States v. Jimenez-Villasenor, 270 F.3d 554, 558 (8th Cir. 2001). A conviction by a

jury is reversed only if no reasonable jury could have concluded that the defendant was

guilty beyond a reasonable doubt on each essential element of the charge. Id. "This

standard is a strict one, and a jury verdict should not be overturned lightly." Id.

To prove that a defendant was a member of a conspiracy to distribute controlled

substances, the government must demonstrate that there was a conspiracy (or

agreement) to distribute controlled substances, that the defendant knew of the

conspiracy, and that he intentionally joined the conspiracy. Id. A defendant's mere

presence and knowledge that someone else who was present intended to sell drugs are

insufficient to establish membership in a conspiracy. Id. However, the government

may prove a conspiracy by circumstantial evidence or by inference from the parties'

actions. Id. Once a conspiracy's existence has been established, slight evidence

connecting a defendant to it may be sufficient to prove the defendant's involvement.

Id. 
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At trial, Melanie Tucker and Hoyt Matthew Hedgecock, also known as "Matt,"

testified against Hernandez pursuant to agreements to cooperate with the government

in exchange for motions to reduce their sentences. Hernandez contends that:

the Government's case consisted of the testimony of two cooperating

witnesses – Mr. Hedgecock and Ms. Tucker – who made vague

statements as to the nature and extent of Mr. Hernandez's participation in

the alleged conspiracy. Their testimony was filled with assumptions and

speculation as to the identities of individuals in Colorado who were

allegedly supplying drugs and the reasons that Mr. Hernandez was

associating with them. There were also inconsistencies and statements

lacking credibility in their testimony.

Although Hernandez' argument may implicate the credibility of the government's

witnesses, assessments of credibility are the province of the fact-finder. United States

v. Davis, 103 F.3d 660, 674 (8th Cir. 1996). He fails to undermine the sufficiency of

the evidence. For instance, the government presented testimony by Hedgecock that

Hernandez owed a drug distributor from Denver, known as "Jeremy," "a lot of money"

and "so Jeremy sent [Hernandez] out to Nebraska so he could make a little money."

After Hernandez came to Nebraska, he moved in with Hedgecock. Hedgecock

testified that he and Hernandez started getting larger quantities of drugs from Jeremy

because Hernandez was "more trustworthy" than Hedgecock's previous co-distributor.

Hedgecock further testified that Hernandez traveled to Denver several times with either

himself or Tucker to bring drugs back to Nebraska, and that on one occasion, they

obtained from Jeremy approximately a pound of methamphetamine, a half-kilo of

cocaine, and ten pounds of marijuana. Tucker testified that she had accompanied

Hernandez to collect money on various occasions. She also testified that sometime

after she drove Hedgecock to deliver cocaine to a customer, Hernandez told

Hedgecock that he needed to go collect payment from that customer and instructed him

to take a gun. Tucker further testified that she had observed Hernandez getting a

"white powdery substance" out of a safe for Hedgecock. Hedgecock testified that he
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and Hernandez kept drugs and money in the safe, and that Hernandez kept larger

quantities of drugs in the attic. Tucker testified that, upon Hernandez' instruction she

had wired drug money from Hernandez to Jeremy in Denver. 

Law enforcement officers stopped Tucker and Hernandez in Nebraska after they

returned from Denver with a substantial quantity of methamphetamine they had

obtained from Jeremy. Tucker testified that just prior to being stopped, they delivered

methamphetamine to Dan Zeiger. Upon leaving Zeiger's residence, Hernandez put a

trash bag and scale in the trunk of the car driven by Tucker, and he rode as a passenger.

Hernandez told Tucker that they "needed to drive to Omaha . . . and see if [another

person] wants the rest of this." When officers searched the vehicle, they found

methamphetamine in the trunk.

The record generally suggests that Hernandez acted as an intermediary between

those who were higher than him in the drug operation and those who were beneath

him. A reasonable jury could have concluded that Hernandez was guilty of conspiring

to distribute controlled substances beyond a reasonable doubt.

II. DENIAL OF BILL OF PARTICULARS

Hernandez next argues that the district court erred when it overruled his motion

for a bill of particulars. Federal Rule of Criminal Procedure 7(f) states:

The court may direct the filing of a bill of particulars. A motion for a bill

of particulars may be made before arraignment or within ten days after

arraignment or at such later time as the court may permit. A bill of

particulars may be amended at any time subject to such conditions as

justice requires.

A bill of particulars serves to inform the defendant of the nature of the charge against

him with sufficient precision to enable him to prepare for trial, to avoid or minimize
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the danger of surprise at trial, and to enable him to plead his acquittal or conviction in

bar of another prosecution for the same offense when the indictment is too vague and

indefinite. United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976). "To establish

reversible error from the denial of a motion for a bill of particulars, a defendant must

show that he was actually surprised at trial and suffered prejudice from the denial."

United States v. Fleming, 8 F.3d 1264, 1265 (8th Cir. 1993). 

Here, the district court denied Hernandez' first motion for a bill of particulars

because Hernandez had failed to comply with the terms of the court's progression

order. However, upon Hernandez' counsel submitting to the government questions

covering essentially the same information requested in the bill of particulars, the

government provided counsel with detailed responses. In comparing the responses

submitted to Hernandez' counsel with the record, we find that the responses provided

counsel with information that precluded surprise, and that Hernandez fails to establish

that he was actually prejudiced by the denial.

III. ALLEGED GOVERNMENTAL SUPPRESSION OF FAVORABLE

EVIDENCE

Next, Hernandez argues that the government suppressed evidence favorable to

him in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that the trial court

erred when it determined no such violation had occurred. "To prove a Brady violation,

a defendant must show that the prosecution suppressed the evidence, the evidence was

favorable to the accused, and the evidence was material to the issue of guilt or

punishment." United States v. Duke, 50 F.3d 571, 577 (8th Cir. 1995). Evidence is

material if there is a reasonable probability that the outcome of the proceeding would

have been different if the evidence had been disclosed. Kyles v. Whitley, 514 U.S.

419, 433-34 (1995). A "reasonable probability" is one that is sufficient to undermine

confidence in the outcome of the proceeding. Clemmons v. Delo, 124 F.3d 944, 949

(8th Cir. 1997). 
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Hernandez contends that after the car driven by Tucker and registered in her

name was searched and drugs were located, Tucker advised the officer that Hernandez

had an ownership interest in the car. He therefore argues that when the government

opposed his motion to suppress based on Hernandez having no ownership interest in

the car and, therefore, no standing to challenge the search, the government improperly

withheld information as to the officer's knowledge of Hernandez' ownership interest.

We need not parse this argument too deeply because Hernandez has shown no

reasonable probability that the outcome of the motion to suppress hearing would have

been different had the officer's knowledge been revealed. Tucker initially gave an

officer consent to search the passenger compartment and, given that she was driving

the vehicle and that it was registered in her name, the officer was justified in relying

upon her consent. During that search, the officer arguably obtained probable cause to

search the vehicle further when he located marijuana seeds and pieces of marijuana

leaves in the passenger compartment. See United States v. Payne, 119 F.3d 637, 642

(8th Cir. 1997) ("Police may search a car without a warrant if they have probable cause

to believe that the car contains contraband or evidence. In such circumstances, the

police may search every part of the car and its contents that may conceal the object of

the search."). Therefore, even if Hernandez had an ownership interest in the car, and

even if the government should have revealed that interest to defense counsel when

Hernandez failed to provide such information himself, thus giving him standing to

challenge the search, Hernandez has failed to demonstrate a reasonable probability that

the outcome of the motion to suppress hearing would have been different. 

IV. EXPERT TESTIMONY REGARDING FINGERPRINT ANALYSIS 

Hernandez also argues that the district court erred in allowing Robert Citta's

expert testimony that a latent fingerprint found on a battery confiscated as evidence

matched that of Hernandez. We review for abuse of discretion a court's decision to

admit expert testimony. United States v. Larry Reed & Sons P'ship, 280 F.3d 1212,

1215 (8th Cir. 2002). Expert scientific testimony is generally admissible when it is
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reliable and will assist the trier of fact. Daubert v. Merrell Dow Pharm., Inc., 509 U.S.

579, 592-93 (1993); Larry Reed & Sons P'ship, 280 F.3d at 1215 (citing Federal Rule

of Evidence 702). The Supreme Court has indicated that various factors bear on a trial

court's decisions as to admissibility of such expert testimony. Daubert, 509 U.S. at

593-94. Those factors include, whether a theory or technique can be and has been

tested, whether it has been subjected to peer review and publication, the known or

potential rate of error and existence and maintenance of standards controlling the

technique or theory's operation, and whether the technique or theory has been generally

accepted within a relevant scientific community. Id.

Hernandez, citing United States v. Llera Plaza, Nos. CR. 98-362-10, CR. 98-

362-11, 98-362-12, 2002 WL 27305, at *18 (E.D. Pa. Jan. 7, 2002), 179 F. Supp. 2d

492, vacated, withdrawn from publication, and superseded on reconsideration by 188

F. Supp. 2d 549 (E.D. Pa. 2002), contends that no evidence was presented that satisfied

Daubert's peer review factor. In Llera Plaza, the district court initially determined that,

because fingerprint identification does not satisfy Daubert, "expert witnesses [would]

not be permitted to . . . present 'evaluation' testimony as to their 'opinion' (Rule 702)

that a particular latent print is in fact the print of a particular person." 2002 WL 27305,

at *18. However, the court shortly thereafter vacated that decision and chose another

course. Llera Plaza, 188 F. Supp. 2d at 575-76. In its latter decision, the court

concluded expert testimony regarding fingerprint evidence should, subject to sufficient

trial court oversight, be regarded as satisfying Daubert and Kumho Tire Co. v.

Carmichael, 526 U.S. 137 (1999).

Moreover, given the posture of the testimony in this particular case and the

overall record, the expert testimony was not determinative to the outcome. We

therefore find the court did not abuse its discretion in admitting Citta's testimony.
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V. MOTION FOR CONTINUANCE

Hernandez next argues that the trial court erred when it overruled his motion to

continue. He indicates that the government notified defense counsel four days before

trial that it would be calling an expert witness to present testimony regarding the

common practices used by dealers at various levels of drug distribution organizations.

However, at trial, the government never actually called that individual to testify but

failed to notify defense counsel of its decision until late into the trial. We review a

district court's denial of a motion for continuance for abuse of discretion and reverse

only if the movant was prejudiced thereby. United States v. Velasquez, 141 F.3d 1280,

1282 (8th Cir. 1998). Although in the matter before us the witness was never actually

called to testify, Hernandez contends that he was prejudiced by having to sacrifice

defense counsel's valuable trial preparation time to prepare for that witness. While we

certainly appreciate the preciousness of time preceding trial and do not want to

promote failures to observe courtesy, Hernandez fails to demonstrate actual prejudice.

See id. In other words, he has not shown what would have been done but for the false

start, nor how such omission would have led to a different result. Thus, we find that

the court's denial of Hernandez' motion for continuance does not amount to an abuse

of discretion.

VI. APPRENDI ISSUES

Hernandez next argues that the indictment failed to specify an exact quantity of

methamphetamine and cocaine mixtures or any quantity of marijuana and therefore

violates Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Court held

that any fact, other than a prior conviction, that"increases the penalty for a crime

beyond the prescribed statutory maximum" must be included in the indictment and

proven to the jury beyond a reasonable doubt. Id. at 490. However, the indictment

need not allege an exact drug quantity but must merely set forth ranges of quantities

relevant to the varying statutory maximums. United States v. Hollingsworth, 257 F.3d
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871, 878 (8th Cir. 2001), overruled on other grounds by United States v. Diaz, Nos. 00-

2188, 00-2317, 2002WL 1477158, at *3 (8th Cir. July 11, 2002).

Here, the indictment charged Hernandez with conspiracy to distribute and

possess with intent to distribute 500 grams or more of a mixture or substance

containing a detectable amount of methamphetamine, 500 grams or more of a mixture

or substance containing a detectable amount of cocaine, and an unspecified amount of

marijuana. Because the indictment specified a drug quantity range set forth in 21

U.S.C. § 841(b) that allows a maximum sentence of life imprisonment, Hernandez was

not sentenced in violation of Apprendi.

Hernandez goes on to argue that the indictment was defective because it failed

to specifically cite 21 U.S.C. § 841(b). However,

[a]n indictment is legally sufficient on its face if it contains all of

the essential elements of the offense charged, fairly informs the defendant

of the charges against which he must defend, and alleges sufficient

information to allow a defendant to plead a conviction or acquittal as a

bar to a subsequent prosecution. An indictment will ordinarily be held

sufficient unless it is so defective that it cannot be said, by any reasonable

construction, to charge the offense for which the defendant was

convicted. 

Fleming, 8 F.3d at 1265 (citations omitted). Here, 21 U.S.C. § 841(b) is the penalty

provision for offenses set forth in section 841(a), and, by cross-reference, section 846.

As Hernandez acknowledges, the indictment alleges he violated 21 U.S.C. §§ 841(a)(1)

and 846, and, as we previously discussed, the indictment referenced drug quantity

ranges of methamphetamine and cocaine and some quantity of marijuana. Although

the indictment did not specifically cite section 841(b), the pertinent drug quantities

fulfilled the essential elements requirement necessary to satisfy Fleming and Apprendi.
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Finally, Hernandez argues that, because the indictment did not specify an exact

drug quantity, the maximum drug quantity he should have been held responsible for

at sentencing was 500 grams, and that the district court improperly enhanced his

sentence for possessing a dangerous weapon during the course of the conspiracy to

distribute controlled substances and for his role as a manager in the conspiracy.

However, "Apprendi does not forbid a district court from finding the existence of

sentencing factors, including drug quantity, by a preponderance of the evidence; rather,

it prevents courts from imposing sentences greater than the statutory maximum based

on such findings." Diaz, 2002 WL 1477158, at *2. Because the indictment charged

drug quantities that carried the potential of yielding a life sentence, and because the

drug quantities and enhancements were supported by the record, Hernandez' sentence

of thirty years' imprisonment did not violate Apprendi.

VII. CONCLUSION

For the reasons we have stated, we affirm.

A true copy.

Attest:

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