IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 91-4607

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BALDEMAR SAMBRANO VILLARREAL and

REYNALDO SAMBRANO VILLARREAL,

Defendant-Appellants.

_________________ _________________________________________________

Appeals from the United States District Court for the

Eastern District of Texas

__________________________________________________________________ ( June 8, 1992 )

Before WILLIAMS, JOLLY, and HIGGINBOTHAM, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Baldemar Sambrano Villarreal and his brother Reynaldo Sambrano

Villarreal app eal their convictions for the murder of Texas

Constable Darrell Lunsford on January 23, 1991. They assert a

number of reasons for reversal. Each is without merit. We AFFIRM.

I

On January 22, 1991, the Villarreals and Jesus Zambrano left

Houston, Texas, in a 1982 Oldsmobile Cutlass in which was loaded

approximately 31 pounds of marihuana that they planned to sell in

Chicago. At about 1:23 A.M. on January 23, 1991, Darrell Lunsford,

a Constable, stopped the car driven by Reynaldo Villarreal in-2-

Garrison, Nac ogdoches County, Texas. Before Lunsford left his

patrol car, he activated a dash mounted video camera. The events

that followed were recorded by that camera and a microphone worn by

Lunsford.

Lunsford asked Reynaldo to step out of the car and, after

inquiry, learned that Reynaldo had no driver's license. On

questioning Reynaldo and the others, Lunsford received conflicting

stories about where the three were traveling and who owned the car.

Lunsford then requested permission to look in the trunk of the car.

Baldemar then exited the vehicle, ignoring Lunsford's request that

he stay in the car. As Lunsford was standing by the open trunk,

Baldemar approached Reynaldo, said something in Spanish, and then

lunged at Lunsford, grabbing his legs and wrestling him to the side

of the road. As soon as Baldemar grabbed Lunsford, Reynaldo also

attacked Lunsford and Zambrano got out of the car and joined the

attack. The government asserts that Baldemar got control of

Lunsford's pistol and shot Lunsford once in the back of the neck.

The shot severe d Lunsford's spinal cord and caused his almost

instant death. Although the Villarreals aver that once the

struggle began, "the facts becom e less clear," neither of the

Villarrea ls denies the government's version of Lunsford's death.

Accordingly, we accept that version.

Following the shooting, the three made a search for Baldemar's

identification card, took Lunsford's flashlight, gun, and wallet

and drove off. Soon, they were spotted by a Nacogdoches County-3-

deputy sheriff who had passed the stopped cars while Lunsford had

been speaking with Reynaldo. Deputy Sheriff Don Welch drove back

to the scene of the stop and there found Lunsford's body. He

radio ed for help, then went in pursuit of the Oldsmobile's

occupants. In the meantime, Zambrano and the Villarreals had

abandoned the Olds and, taking the marihuana with the m, were

fleeing on foot. The three, at some point, abandoned the marihuana

(later recovered by search teams). Ultimately, they were

apprehended after an extensive manhunt.

II

The Villarreals were indicted on three counts: Count One, for

violation of 21 U.S.C. § 848(e)(1)(B) and 18 U.S.C. § 2 (murder of

a law enforcement official while attempting to avoid apprehension

for a drug trafficking offense; one aiding and abetting punishable

as principal); Count Two, for violation of 21 U.S.C. 846

(conspiracy to possess marihuana with intent to distribute it); and

Count Three, for violation of 21 U.S.C. 841(a)(1) (posses sion of

marihuana with intent to distribute it). Counts Two and Three were

dismissed before trial on the government's motion. After a trial

in which Jesus Zambrano testified as a government witness, the jury

convicted both Villarreals. Although the government had sought the

death penalty for both defendants, the jury recommended against it

and the court sentenced Baldemar Sambrano Villarreal to life

imprisonment and Reynaldo Sambrano Villarreal to 40 years

imprisonment. This appeal followed.-4- III

On appeal, the Villarreal s raise two issues jointly and two

issues individually. We first address the issues presented jointly

and then turn to examine those presented individually.

A

Both Villarreals argue that their convictions should be

reversed because the statute under which they were convicted does

not state a crime. They argue that 21 U.S.C. § 848(e)(1)(B) is a

sentencing provision that fails to state a substantive violation.

The statute provides:

[A]ny person, during the commission of, in furtherance

of, or while attempting to avoid apprehension,

prosecution or service of a prison sentence for, a felony

violation of this subchap ter or subchapter II of this

chapter who intentionally kills or counsels, commands,

induces, procures, or causes the intentional killing of

any Federal, State, or local law enforcement officer

engaged in, o r on account of, the performance of such

officer's official duties and such killing results, shall

be sentenced to any term of imprisonment, which shall not

be less than 20 years, and which may be up to life

imprisonment, or may be sentenced to death.

In order to determine whether the provisions of § 848(e)(1)(b)

set out a substantive crime, we may look for assistance to Garrett

v. United States

, 471 U.S. 773 (1985). In that case, Garrett

argued that 28 U.S.C. § 848 (which at that time dealt only with a

continuing criminal enterprise) punished conduct as a conti nuing

criminal enterprise or as a predicate offense, but not both. The

Court, however, said that "[t]he language, structure, and

legislative history

. . . show in the p lainest way that Congress-5-

intended the CCE provision to be a separate criminal offense which

was punishable in addition to, and not a s a substitute for, the

predicate offe nses." G arrett

, 471 U.S. at 779 (emphasis ours).

The Court focused on several poin ts in its analysis: 1) The

statute did not mention other offenses and set out a separate

penalty "rather than a multiplier of the pena lty established for

some other offense." I d

. at 781. 2) The statute referred to

"convictions

. . . under this section." I d

. 3) The statute

referred, in later subsections, to anyone "who is convicted under

paragraph (1)." Id . 4) The statute "define[d] the conduct that

constitute[d] being `engaged in a continuing criminal enterprise,'"

and was "carefully crafted" in such a way that it was designed to

reach a certain class of criminal. Id

. 5) The legislative history

referred to " conviction for [the] offense" provided for in §

848(a). Id . at 782. In applying Garrett to fathom the nature of

§ 848(e)(1)(B), we find t hat many of the same points are to be

made.

This statutory section sets fort h the elements of the crime

(during commission of predicate drug felonies or avoidance of

penalty for them/ killing/ a law enfo rcement officer, engaged in

official d uties or on account thereof), the m ens rea required

(inte nt), and a separate penalty therefor (imprisonment for 20

years to life, or the death penalty). Subsection 848(g) provides

that the death penalty may be applied "for any offense under this

section" only after a hearing. Subsection 848(h) requires notice-6-

"[w]henever the Government intends to seek the death penalty for an

offense under this section for which one of the sentences provided

is death." Subsections 848(i), (j), (n), and (p) refer to "an

offense under subsection (e) of this section." The statute

"carefully craft[s]" a definition of the crime it seeks to punish,

which stands alone. The crime is based upon predicate offenses,

but is clearly separate from and in addition to those offenses.

Congress provided special procedural mechanisms to govern

imposition of the penalties provided. Finally, the history of the

statute illustrates a Congressional intent to establish a separate

offense. Before 1988, § 848 embodied only a single statutory

prohibition--it punished offenders who engaged in a continuing

criminal enterprise. After amendment by the Anti-Drug Abuse Act of

1988, Pub. L. 100-690, 102 Stat. 4382, 4387-88, § 848(e) had added

a death penalty provision, not for CCE offenses, but for an

entirely new group of offenses--intentional murders committed

during certain specified felonies.

The Villarrea ls argue that subsection (e) is headed "Death

penalty" and that the initial sentence in the subsection reads "In

addition to the other penalties set forth in this section." They

urge that this clearly indicates that Congress intended subsection

(e) as a sentencing provision to be applied to the specified drug

felonies as an additional penalty available when a law enforcement

officer is killed. They also argue that the structure of § 848

makes it clear that it is simply a penalty provision, that-7-

§ 848(e)(1)(B)'s language "commands, counsels, induces, procures,

or causes" is mere surplusage if the subsection sets out a

substantive offense, and that Garrett is both irrelev ant and

distinguishable. We are not persuaded. As the Villarreals point

out, "the Supreme Court has . . . often held the best evidence of

Congress' intent in passing any given statute is the language that

Congress uses in that statute. See

, e.g.

, Hallstrom v. Tillamook

County

, 110 S.Ct. 304, 308-10 (1989)." We are convinced that

Congress created a substantive offense in 21 U.S.C. § 848(e)(1)(B)

and that its "language, structure, and

. . . history

. . . show in

the plainest way that Congress intended [it] to be a separate

criminal offense which was punishable in addition to, and not as a

substitute for, the predicate offenses." G arrett

, 471 U.S. at 779.

B

The Villarreals next argue that "the prosecutor's use of

peremptory challenges to exclude all potential jurors who expressed

a general opposition to the death penalty violated those jurors'

right, under the Fifth Amendment's Equal Protection component and

under the First Amendment, not to be discriminatorily excluded from

jury participation on the basis of their expression of a political

belief." The essence of this argument is that potential jurors who

expressed unalterable opposition to the death penalty were

expressing a political opinion.

The defendants' argument projects an exten sion of B atson v.

Kentucky

, 476 U.S. 79 (19 86), and P owers v. Ohio

, 111 S.Ct. 1364-8-

(1991), which make clear that the government cannot exerc ise its

peremptory strikes in a racially discrim inatory manner. In the

p resent case, according to the Villarreals, jurors were excluded

"from a significant opportunity to participate in the

administration of justice on the basis of a cha racteristic

unrelated to juro r fitness"--the political belief that capital

punishment is never appropriate. Political belief, their argument

continues, is protected by the Constitution's First and Fifth

Amendments in much the same manner as race. The Villarreals,

therefore, were tried by a jury from which potential jurors were

"discriminatorily excluded" and, under Batson and Powers

, they are

entitled to a new trial before a proper jury.

We are not persuaded. Batson and Powers address only racial

discriminat ion. To hold that a venireperson's First Amendment

protected view cannot constitute a basis for exercising a

peremptory challenge is effectively to eliminate the p eremptory

challenge. We do not believe the Supreme Court intended this

result. In any event, we decline to extend the B atson line of

cases to apply to the circumstances presented here. S ee Palmore v.

Sidoti , 466 U.S. 429, 432-33 (1984) ( r acial classificat ions

"subject to most exacting scrutiny"). Political belief is not the

overt and immutable characteristic that race is, and we decline to

extend the Batson line of cases to this case.1 These arguments are adopted by Reynaldo Villareal by

reference in his brief in accordance with Fed. R. App. P. 28(i).

-9- C

We now turn to two issues raised by Baldemar Villarreal. 1

(1)

First, he argues that the prosecutor improperly commented on

his failure to testify. Baldemar quotes the prosecutor in closing

argument:

Watch as he moves to the back of the car as what in slow

motion almost looks like a da nce of death begins . . .

Baldemar Villarreal has formed his intent. Watch . . .

as he talks and says something to his brother. W e don't

know what he said. H e does but we don't

. He had turned

his head away from . . .." (Emphasis in original.)

At that point, Baldemar continues, "appellant o bjected that such

was an `improper comment on the Defendant's election not to take

the stand.' T he court sustained appellant's objection, instructed

the jury

, and overruled appellant's motion for a mistr ial."

(Emphasis ours.) Although "the Fifth Amendment prohibits a trial

judge, a prosecutor or a witness from commenting upon a defendant's

failure to testify in a criminal trial," United States v. Rocha

,

916 F.2d 219, 232 (5th Cir. 1990) (citations omitted), "[a] comment

regarding defendant's Fifth Amendment rights must have a clear

effect on the jury before reversal is warranted." Id

.

In this case, the court's instruction to the jury was plain,

simple and strong:

Ladies and gentlemen, you will disregard the comment of

Mr. Rivers. You will recall the Court had instructed-10-

you, you may not consider for any purpose the fact that

Defendants did not testify in this cas e, and you will

completely disregard Counsel's comment.

There is an "almost invariable assumption of the law that jurors

follow their instructions." R ichardson v. Marsh

, 481 U.S. 200, 206

(1987). The defendant points to no other comment concerning the

fact he did not testify. We do not think that Mr. Rivers's

comment, especially in view of the court's clear instruction to the

jury, had suc h a "clear effect on the jury" that reversal is

warranted.

(2)

Second, Balde mar argues that the government failed "to

discl ose exculpatory and impeachment evidence [and] violated due

process." It appears to be his contention that such evidence might

show that the victim, Constable Darrell Lunsford, had been dealing

drugs. Consequently, the murdered officer may have been "acting

out of a desire to obtain drugs for his own dealing when he stopped

appellant," and not "in the performance of [his] official duties"

as required by the statute. Baldemar further contends that the

failure to disclose violated the requirement of Brady v. Maryland

,

373 U.S. 83 ( 1963). B rady requires that "evidence that is both

favorable to the accused and material either to guilt or

punishment" be disclosed to the d efendant. U nited States v.

Bagley , 473 U.S. 667, 674 (1985).

Following a pre-trial motion for such disclosure, the district

court made an in camera examination of material in the government's2 We p oint out that irrespective of the defendant's B rady

contentions, the facts remain that Lunsford stopped the Villareals

and Zambrano while in an official patrol car, while dressed in

uniform, and for investigation of a traffic violation. A t the time

of the fatal struggle

, Lunsford was acting as a law enforcement

official conducting an official investigation. Thus, even if

Lunsford's character and official conduct could be impeached, such

impeachment would not be material because at the time of the fatal

struggle , he was performing official duties.

-11- possession and concluded that the material "is not Brady material

and in my opinion it does not rise above the level of conjecture,

hearsay or speculation and does not reach the point that it would

place in question by admissible evidence whether Mr. Lunsford was

performing his official d uties on the occasion of his killing."

The Supreme Court in U nited States v. Bagley

, 473 U.S. 667, 68 2

(1985), stated that non-disclosed ev idence is material "only if

there is a reasonable probability that, had the evid ence been

disclosed to the defense, the result of the proceeding would have

been different. A `reasonable probability' is a probability

sufficient to undermine confidence in the outcome." Id . We have

revie wed the material inspected in camera by the district court.

Bearing in mind the standard set by B agley

, we cannot say that

"there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have

been different." 2

D

We next turn to two additional i ssues presented by Reynaldo

Villarreal.-12- (1)

He argues that "Congress intended Section 848(e)( 1)(B) to

apply only to `triggermen' and those `bosses' from whom the

triggermen get the ir orders; since there was no evidence that

Reynaldo Vill arreal was either the triggerman or ordered the

killing, the evidence was legally insufficient to convict him." By

i ts plain language, § 848(e)(1)(B) applies to anyone who

"intentionall y kills . . . [a] local law enforcement officer

engaged in . . . official duties." 18 U.S.C. § 2, part of the

indictment, has been held to apply generally to all federal

criminal statutes. U nited States v. Lennon

, 751 F.2d 737, 741 (5th

Cir.), cert. denied

, 471 U.S. 1100 (1985). It provides that

"[w]hoever

. . . aids, abets, cou nsels, commands, induces or

procures [the ] commission" of "an offense against the United

States" "is punishable as a principal." 18 U.S.C. § 2(a).

In reviewing a contention that the evidence in a case was

insufficient to convict, we "must examine all the evidence and

reasonable inferences in the light most favorable to the government

and determine whether a reasonable trier of fact could find that

the evidence establishes guilt beyond a reasonable doubt.

(Citation omitted.)" U nited States v. Rocha

, 916 F.2d 219, 237

(5th Cir. 1990). A rational jury could have concluded that the

evidence in this case clearly showed that Reynaldo intentionally

joined in the struggle with Const able Lunsford and that he

substantially assisted in Baldemar's successful attempt to-13-

overpower and kill him. We have held that 18 U.S.C. § 2 imposes

criminal liability on anyone who associates in a criminal venture,

shares the principal's criminal intent, and engages in affirmative

conduct designed to make the venture succeed. S ee

, e.g.

, United

States v. Medina , 887 F.2d 528, 532 (5th Cir. 1989). Thus, under

the indictment and the applicable law, the evidence is sufficient

to convict Reynaldo of aiding and abetting the crime specified in

Section 848(e)(1)(B)--the murder of Constable Lunsford.

Rey naldo further argues, however, that by including the

wording "counsels, commands, induces, procures or causes" as part

of the statute, Congress clearly intended that only `bosses' or

those who led others to kill were subject to the statute and not

those who merely aided or abetted. We disagree. Although the

plain language of the statute clearly is intended to reach

"bosses" or "kingpins," as Reynaldo argues, it does not follow that

Congress intended aiders and abettors to be excused. To the

contrary, the language of the statute leads to the conclusion that

Congress intended that aiders and abettors would be held criminally

liable under the statute. Subsection (m) of the statute provides:

In determining whether a sentence of death is to be

imposed . . . the finder of fact shall consider

mitigating factors, including the following:

. . . (3) The defendant is punishable a s a principal (as

defined in section 2 of Title 18) in the offense, which

was committed by another

, but the defendant's

participation was relatively minor . . ..-14-

21 U.S.C. § 848(m)(3) ( emphasis ours). It is clear from this

wording that Congress had in mind 18 U.S .C. § 2 and its part in

criminal prosecutions, and that Congress did not intend to alter or

eliminate that role. We, therefore, reject Reynaldo's argument

that the statute does not reach his conduct in this matter.

(2)

Reynaldo argues that the trial court's denial of his motion

for severa nce violated his right to a fair trial and denied his

Sixth Amendment right to compulsory process because it precluded

h is co-defendant's exculpatory testimony in his behalf. In this

respect, he first argues that he met the criteria of Fed. R. Crim.

P. 14 regarding a severance and that the trial court abused its

discretion in refusing to grant his motion for severance. Second,

he contends that the district court's denial of his motion for

severance denied his right under the Sixth Amendment to compel the

attendance of witnesses.

In addressing his first argument, we point out that "[i]t is

the general rule that persons who are indicted together should be

tried together. (Citations omitted)." U nited States v. Harrelson

,

754 F.2d 1153, 1174 (5th Cir.), cert. denied

, 474 U.S. 908 (1985).

We note that Reynaldo correct ly acknowledges that the district

court's denial of a Rule 14 motion is reviewable only for an abuse

of discretion. "To demonstrate an abuse of discretion, a defendant

must show that he suffered specific and compelling pr ejudice

against which the distri ct court could not provide adequate-15-

protection, and that this prejudice resulted in an unfair trial."

Id

. "Exculpatory testimony [of co-defendants] in some cases may

p rovide the basis for a severance." U nited States v. Rocha

, 916

F.2d 219, 231-32 (5th Cir. 1990). In order to establish a prima

facie case warranting severance for the p urpose of introducing

exculpatory testimony of a co-defendant, the defendant must show:

(1) a bona fide need for the testimony;

(2) the substance of the testimony;

(3) its exculpatory nature and effect;

(4) that the co-defendant would in fact testify if severance

were granted.

Id

. at 232. In this case, the district court, after examining

Baldemar under oath, stated that it was "not persuaded that the

witness would, in fact, testify; would, in fact, waive his Fifth

Amendment privileges." When reviewing rulings based on findings of

fact, we must accept the district court's findings of fact unless

they are clearly erroneous. S ee

, e.g.

, United States v. Fernandez

,

887 F.2d 564, 567 (5th Cir. 1989). When those findings are based

"primarily on oral testimony and the trial judge has viewed the

demeanor of the witnesses" "[t]he clearly erroneous standard is an

especially rigorous one. (Citation omitted.)" Id . In this case,

therefore, the trial court's finding is entitled to great

deference. We certainly cannot say that we are "left with the

`definite and firm conviction that a mistake has been committed.'"

Thus, the district court was not clearly erroneous and we affirm

the trial court's denial of Reynaldo's motion for severance based

on Fed. R. Crim. P. 14.-16-

We must, however, still deal with Reynaldo's contention that

the denial of the motion for severance deprived him of his Sixth

A mendment right to compel the attendance of witnesses--i.e., his

right to compel Baldemar's attendance at a separate trial.

Reynaldo argues that Baldemar would have testified that the three

men in the car were unarmed and had formed no plan to kill in the

event their marihuana load was discovered by authoritie s, that

during the stop by Lunsford, Reynaldo did not tell anyone to kill

the constable, that Reynaldo never touched the constable's gun, and

that the unintelligible conversation between him and Reynaldo at

the rear of the car before the at tack on Lunsford concerned only

Reynaldo's having failed to bring his driver's license. Reynaldo

points to the sentencing phase of t he trial where Baldemar

testified that his statement to Reynaldo at the rear of the car

concerned only Reynaldo's failure to bring his driver's license and

where, Reynaldo says, the jury "specifically found that Reynaldo

Villarreal did not intend to kill the officer." Thus, Reynaldo

ar gues, he suffered a disadvantage because of "his inability to

call Baldemar Villarreal, whose Fifth Amendment privilege included,

at the joint trial, the right not to take the stand."

We remain unconvinced. First of all, Reynaldo cannot

circumvent the district court's finding that Baldemar would not

have waived his Fifth Amendment right at a separate trial for

Reynaldo. Although Reynaldo argues that in the event of a separate

trial, Baldemar could not have refused to take the stand and, once-17-

there and having invoked the Fifth Amendment right, Reynaldo would

have been entitled to "all favorable inferences that the jury may

[have drawn] t herefrom," we find this argument unavailing. The

videotape in evidence shows Reynaldo attacking Constable Lunsford

as soon as he was tackled by Baldemar and that Reynaldo repeatedly

kicked Constable Lunsford in the head after he was wrestled down.

The tape also shows that Reynaldo took Constable Luns ford's

billfold after Lunsford was shot. No possible testimony by

Baldemar is sufficiently ameliorating of Reynaldo's conduct that

its absence establish es the "specific and compelling prejudice"

necessary to demonstrate a violation of Reynaldo's right, under the

Sixth Amendment, to a fair trial. Furthermore, the jury's failure,

at the sentencing phase of the trial, to find Reynaldo guilty of

the aggravating factor of "intentionally kill[ing]" Constable

Lunsford is irrelevant to Reynaldo's Sixth Amendm ent claim: the

jury was subject to completely different considerations at

sentencing from those at the guilt phase of the trial. It may well

have decided that Reynaldo aided and abetted the inte ntional

killing of Constable Lunsford, and so was guilty of the offense

charged, but that his conduct was not so morally culpable that it

warranted the death penalty.

IV

Having considered the grounds of appeal presented by the

appellants, Baldemar Sambrano Villarreal and Reynaldo Sambrano-18-

Villarreal, we find no merit in them. For that reason, the

judgments of conviction of the district court are

A F F I R M E D.