UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 94-50290

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DOUGLAS WILLIAM KROUT, a/k/a Mark

William Danford, a/k/a Doug Kraus,

a/k/a Doug Lopez, CYNTHIA ANN VARGAS,

SOLIS HUERTA, SOFIA AGUIRE NANEZ,

ROGELIO ROGER PEREZ ZAMORA, HERIBERTO

HERBERT HUERTA, ROGELIO ROY MEDINA

ARCE, and HECTOR CAMPOS ALVAREZ,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________

(October 6, 1995)

Before POLITZ, Chief Judge, JONES, and PARKER, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This is a consolidated appeal arising from the conviction

of seven defendants for participating in a continuing enterprise of

murder, drug distribution, and firearm offenses as memb ers and

conspirators in a Texas prison gang referred to as the "Mexican

Mafia." The principal offenses proved at trial involved an

elaborate cocaine and heroin dist r ibution scheme within state

prisons and on the streets of San Antonio. Most of the inevitable

differences among the confederates were resolved by murders either1 I ndeed, the gang's "constitution", introduced into evidence, states in

its preamble: "Being a criminal organization . . . [w]e shall deal in drugs,

contract killings, prostitution, large scale robbery [etc.]"

2 D efendants A rce, Solis Huerta and Nanez also expressly adopted this

argument.

2 approved or executed by some of these defendants. Although the

evidence adduced at trial was overwhelming, 1 the defendants have

raised multiple grounds for reversing their convictions. Of these

grounds, the challenges to jury anonymity and the i mposition of

consecutive s entencing are the most significant. We find no

reversible error and affirm.

I. Evidentiary Challenges

A. Wiretap Evidence

The assorted defendants begin their attack with

challenges to the evi dence-gathering techniques employed by the

government. Specifically, they present three objections to the

evidence seized pursuant to court authorized electronic

surveillance. Defendants Huerta and Zamora argue that because the

terms of the initial wiretap order, entered on September 17, 1992,

limited the period of surveillance to ten days, interceptions

recorded after these first ten days must be suppressed (as well as

the fruits of these conversations). 2 Solis Huerta, Nanez and

Alvarez argue that the wiretap applications and affidavits failed

to make the required showing that normal investigative procedures

were tried and failed or reasonably appeared unlikely to succeed or

too dange rous. Finally, Alvarez argues that the interception of3 The order provided that monitoring

shall terminate upon attainment of the authorized

objectives as listed above, or, in any event, at the end

of thirty (30) days from the earlier of the day on which

investigative or law enforcement officers first begin to

conduct an interception under this Order or ten (10) days

after the Order is entered, whichever is earlier.

3 the conversations between Huerta and his wife Solis Huerta violated

their expectation of privacy.

The first order entered by the district court is slightly

awkward in syntax. 3 Nonetheless, the most plausible reading of the

order authorizes interception until either the authorized

objectives were obtained or for a period of thirty days, whichever

event occurs firs t. The thirty days, in turn, are measured from

"the earlier of the day on which investigative or law enforcement

officers first begin to conduct an interception under this Order or

ten (10) days after the Order is entered." To read the language of

the order otherwise (i.e., with a strict limit of ten days), as the

defendants suggest, would impermissibly fail to effectuate the

thirty-day period referred to in the termination provision because

there are no circumstances in which interception may extend beyond

ten days. Moreover, the defendants' argument ignores the intent of

the issuing judge who obviously anticipated some significance to

the thirty day period since he required ten, twenty, and thirty day

progress reports to be filed, and authorized continued interception

on any changed phone number occur ring within this thirty day

window.

Title 18 U.S.C. § 2518(1)(c) and (3)(c) require the

applicant for a wiretap order to verify

-- and the issuing judge to4 Alvarez lacks standing to challenge the interception of the Huertas'

conversations; he has no co nstitutionally recognized interest in asserting their

privacy rights. S ee Alderman v. United States , 394 U.S. 165, 171-72, 176 (1969);

United States v. Ruggiero

, 928 F.2d 1289, 1303 (2d. Cir.), cert. denied

, 112 S.Ct.

372 (1991).

4 find -- that "normal investigative procedures have been tried and

have failed or reasonably appear to be unlikely to succeed if tried

o r to be too dangerous." "What is required is a showing that in

the particular investigation normal investigative techniques

employing a normal amount of resources have failed to make the case

within a reasonable period of time." U nited States v. Alfonso

, 552

F.2d 605, 612 (5th Cir.), cert. denied

, 434 U.S. 857 (1977)

(quotation om itted). Here the affidavits contained detailed

accounts of the investigative techniques that were used by the

agencies investigating the Mexican Mafia.

Specifically, the affidavits asserted that informants or

undercover agents could not infiltrate the conspiracy at high

enough levels to obtain sufficient evidence to prosecute managers

of the organi zation. This court has previously affirmed wiretap

orders based upon similar affidavits. S ee United States v. GuerraMares

, 928 F.2d 665, 671 (5th Cir.), c ert. denied

, 112 S.Ct. 322

(1991); United States v. Webster , 734 F.2d 1048, 1055 (5th Cir.),

cert. denied

, 469 U.S. 1073 (1984). These affidavits amply

established an inability to fully develop a case from informants'

knowledge, inability to infiltrate with undercover agents, lack of

access to primary targets, the limited value of searches in proving

these offenses, and informants' fear and unwillingness to testify. 45

B. Evidence of Murders

Huert a, Zamora, Solis Huerta and Nanez challenge the

admission of evidence about the murders of Rangel, "Chepo"

Her nandez, "Pancho" Canales, and the attempted murder of "Tye"

Morales. Huerta and Zamora argue that the evidence was offered to

prove bad character in violation of Rule 404(b); a ll four

defendants argue that the evidence was unduly prejudicial.

Yet "[e]vidence of an uncharged offen se arising out of

the same transactions as the offense charged in the indictment is

not extrinsic evidence within the meaning of Rule 404(b)." U nited

States v. Maceo

, 947 F.2d 1191, 1199 (5th Cir. 1991), cert. denied

,

112 S.Ct. 1510 (1992). Huerta, Zamora, Arce and Alvarez were

charged in the superseding indictment with a RICO offense and RICO

conspiracy. That indictment specifically alleged that members and

associates of the criminal enterprise engaged in the actual and

threatened use of violence, inclu ding murder, to further the

objectives of the enterprise, to obtain money, and protect the

organization from law enforce ment investigations. These murders

and attempted murder were not introduced as character evidence but

as acts committed by members of the Texas Mafia in furtherance of

the RICO offenses.

The gov ernment is not limited in its proof of a

conspiracy or racketeering enterprise to the overt or racketeering

acts alleged in the indictment. U nited States v. Wilson

, 657 F.2d

755, 763 (5th Cir. 1981), cert. denied

, 455 U.S. 951 (1982).

Morales, Rangel, Hernandez and Canales had all served as "generals"6

in the Texas Mexican Ma fia, commanding the members outside of

prison in San Antonio. Evidence of how disputes were settled with

these members or how they were treated if believed to be

cooperating with law enforcement was properly admitted to prove the

allegation in the indictment that murder and extreme violence were

part of the organization's pattern of racketeering activities. S ee

United States v. Firestone

, 816 F.2d 583, 587 (11th Cir.), cert.

denied

, 484 U.S. 948 (1987); United States v. Hawkins

, 681 F.2d

1343, 1346 (11th Cir.), cert. denied , 459 U.S. 994 (1992).

C. Coconspirator Testimony

Zamora challenges the district court's admission of two

recor ded conversations between Rangel's wife, Emily Mendoza, and

her son, Edward, in which Mendoza discusses the efforts to kill a

bookie, Ramirez, to whom Rangel and Zamora owed money. Zamora

argues that because Mendoza was not a conspirator and the

statements were not m ade in furtherance of the conspiracy, these

statements were inadmissible hearsay. This court reviews the

district court's admission of evidence under Rule 801(d)(2)(E) for

abuse of discretion. U nited States v. Triplett

, 922 F.2d 1174,

1181 (5th Cir.), cert. denied , 500 U.S. 945 (1991). The district

court's determinations that the statement was ma de by a

coconspirator and in furtherance of the conspiracy are findings of

fact reversib le only if clearly erroneous. U nited States v.

Stephens , 964 F.2d 424, 434 (5th Cir. 1992).

Although debatable, the district court's decision that

Mendoza's comments were made by a coconspirator and in furtherance7

of that conspiracy were not clearly erroneous. First, Mendoza was

w ith Rangel when he explained the details of the plan to kill

Ramirez, and she suggested an improvement to the plan. ("You

should have paid Edward instead.") Second, she also attempted to

get the job of murdering Ramirez assigned to her son as part of an

effort to recruit someone to actually commit the murder that was

initially bungl ed. Although this could be explained as an

independent endeavor to find work for her son, "[w]here there are

two per missible views of the evidence, the factfinder's choice

b etween them cannot be clearly erroneous." A nderson v. Besse mer

City , 470 U.S. 564, 574 (1985).

In any event, these conversations were merely cumulative

of rec orded conversations among Rangel, Arce, Zamora and others

that indubitably established a conspiracy to murder Ramirez.

II. Jury Challenges

A. Jury Anonymity

We next address the appellants' challenge to the

procedure employed by the district court in deciding to empanel an

anonymous jury, and the substance of the decision that such a

device was warranted. The appellants complain that the district

court abused its discretion in ordering an anonymous jury by: (1)

failing to conduct a hearing; (2) failing to afford appellants an

opportunity to re fute the allegations in the government's motion

for anonymous jury; (3) deciding to select an anonymous jury based

solely on the unsworn allegations contained in the government's

motion; (4) failing to advise the jury of a neutral or5 T he court found that anonymity would dispel possible fear by jurors for

their safety and promote impartial verdicts. To this end, the court ordered a U.S.

Deputy Marshal to accompany jurors at recesses and to pick up and drop off jurors

8 nonprejudicial reason for their anonymous selection; (5) failing to

preserve the safeguards of a fair and im partial jury selection;

and, (6) because the unusual circumstances that might justify

empaneling an anonymous jury were not present in this case.

Anonymous jury empanelment is an issue of first

impression in this circuit, but our analysis is guided by the

standards developed in other circuits, all of which hold that a

lower court's decision to empanel an anonymous jury is entitled to

deference and is subject to abuse of discretion review. U nited

States v. Paccione

, 949 F.2d 1183, 1192 (2nd Cir. 1991); United

States v. Thornton , 1 F.3d 149, 154 (3rd Cir.), cert. denied , 114

S.Ct. 483 (1993); United States v. Crockett

, 979 F.2d 1204, 1215-16

(7th Cir.), cert. denied , 113 S.Ct. 1617 (1993); United States v.

Daniels

, 986 F.2d 451, 454 (11th Cir. 1993) (district court has

wide discretion in determining which questions will be asked during

voir dire). Accordingly, this court adopts the same abuse of

discretion st andard of review and will afford deference to a

district court's empanelment of anonymous juries.

Keeping this standard in mind, we first reject the

appellants' objections to the procedu ral aspects of the district

court's decision. The court provided ample opportunities for the

various defendants to state their objections and to develop their

arguments. That the court did not follow the exact procedures

urged by the defendants on appeal is insignificant. 5 Indeed, onlyat an undisclosed location at the beginning and end of each day. To attain such

anonymity, the court ordered simply that the names, addresses, and places of

employment of jurors and sp ouses would not be disclosed to the parties. The

district court also stated that it would provide a neutral explanation for the

anonymous status, explaining th at it was not the result of any threat by any

defendant. While the anonymous status endured throughout the trial, the court did,

however, deviate from its intention s in several respects. First, it did not

i mplement the proposed method of transporting jurors, instead allowing them to

report directly to the courthouse each day during trial. Second, the court did

not explain to the jury their anonymous status. Similarly, the court did not

impl ement a sequestration order entered during trial until the jury began its

deliberations.

6 T he district court, nonetheless, deemed all defendants to have joined

any such objection.

9 Huerta, Zamora and Alvarez filed written objections t o the

government's motion to empane l an anonymous jury. 6 A conference

hearing was also held to discuss the motion, and no appellant

objected to the court's failure to pose questions to the venire

other than on the subject of their identities.

Moving to the merits of the decis ion to empanel an

anonymous jury, it must be emphasized that this is a drastic

measure, which should be undertaken only in limited and carefully

delineated circumstances. U nited States v. Ross

, 33 F.3d 1507

(11th Ci r. 1994). Courts that have upheld this form of juror

protection have reasoned that it is constitutional when needed to

ensure against a serious threat to juror safety, if the courts also

protect the defendants' interest in conducting effective voir dire

and maintaining the presumption of innocenc e. United States v.

Wong , 40 F.3d 1347, 1376 (2nd Cir. 1994); United States v. Amuso

,

21 F.3d 1251, 1264 (2nd Cir.), cert. denied

, 115 S.Ct. 326 (1994);

United States v. Paccione

, 949 F.2d at 1192. "These competing

individual and institutional interests are reasonably accommodated,

and the use of an anonymous jury is constitutional when, 'there is10

strong reason to believe the jury needs protection' and the

district court 'tak[es] reasonable precautions to m inimize any

prejudicial effects on the defendant and to ensure that his

fundamental rights are protected'". U nited States v. Wong

, 40 F.3d

at 1376 (internal citations omitted). U nited States v. Vario

, 943

F.2d 236, 239 (2nd Cir. 1991), cert. denied

, 112 S.Ct. 882

(1992)(when thi s balance is properly struck, the use of an

anonymous jury does not violate the defendant's constitutional

rights). Within these parameters, and, again noting the

seriousness of such a step, the decision whether or not to empanel

an anonymous jury is left to the district court's discretion.

Factors that may justify jury protect ion by anonymity

include: (1) the defendants' invo lvement in organized crime;

(2) the defendants' participation in a group with the capacity to

harm jurors; (3) the defendants' past attempts to interfere with

the judicial process or witnesses; (4) the potential that, if

convicted, the defendants will suffer a lengthy incarceration and

substantial monetary penalties; and, (5) extensive publicity that

could enhance the possibility that jurors' names would become

public and expose them to intimidation and harassment. U nited

States v. Paccione , 949 F.2d at 1192; U nited States v. Amuso

, 21

F.3d at 1264-65; United States v. Ross

, 33 F.3d at 1520.

Furthermore, as a caution that use of anonymous juries will remain

a device of last resort, it is necessary that the dis trict court

base its decision on more than mere allegations or inferences of7 A lesser showing might be adequate where specific evidence exists

linking the defendant to organized crime. Satisfaction of this element alone can,

in turn, translate into the requisite showing for the empanelment of an anonymous jury. U nited States v. Persico

, 832 F.2d 705 (2nd Cir. 1987), cert

. denied

, 486

U.S. 1022 (1988)(anonymous jury upheld where crime family's normal

course of business suggested risk of obstruction and harm).

11 potential risk. 7 In accordance with a holding by the Second

Circuit, however, the use of anonymous juries will be upheld where

evidence at trial supports the conclusion that anonym ity was

warranted. U nited States v. Wong

, 40 F.3d at 1376-77 (even if the

district court had relied only on the government's proffer, the

trial record supports the court's order of anonymity).

All of the above factors were present in this case, and

the district court did not abuse its discretion in empaneling an

anonymous jury. Evidence at trial and in wiretap affidavits

established that appellants were members and leaders of the Texas

Mexican Mafia. By its written constitution, the organization

defin ed itself as criminals dealing in drugs, contract killings,

pro s titution, large scale robbery, gambling, weapons, and "in

everything imaginable." One of the group's tenets was to interfere

with potential witnesses -- specifically, to murder or attempt to

murder members suspec ted of informing authorities; such acts did

occur. The gang had been linked to dozens of murders in San

Antonio from 1990-92. The organization also sought to corrupt law

enforcement authorities to further thei r goals. The appellants

faced substan tial penalties, as Huerta was sentenced to life in

prison, Alvarez, Zamora, and Arce received sentences of 300, 360,

and 420 months, respectively, and the shortest term of imprisonment

imposed on those tried was 120 months. Finally, prior to trial,8 At the close of oral argument in this appeal, a specific issue arose

as to whether or not the government during trial inadvertently obtained names and

telephone numbers for the jurors in this case. This court requested the parties to

submit further documentation of such allegations and, after careful review of the

record, we are convinced that such was not the case.

9 B atson v. Kentucky

, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 1723-24 (1986).

10 T he United States believes that eight other persons who might hav e

been Hispanic remained as prospective jurors, and three of them were seated on the

jury, while two others became alternate jurors. Defense counsel at oral argument

conceded that at least two seated jurors were of Hispanic origin.

11 See n.13 infra for a summary of the reasons given.

12 cou nsel for several defendants observed, and the district court

agreed, that the case had been the subject of much publicity which

would likely continue to the case's resolution. 8

B. Batson Claim 9

After objection, the United States stipulated that of the

11 prospective ju rors stricken peremptorily by the government,

seven appeared to be of Hispanic ethnicity. The district court

found a prima facie case of discrimination based upon the number of

strikes against presumably His panic veniremen. 1 0 Pursuant to

Batson

, the court asked the prosecutor to explain the reason for

each of the c hallenged peremptory strikes, and the court was

satisfied that there was no purposeful racial discrimination. 11

This court reviews that conclusion under the clearly erroneous

standard. Hernandez v. New York , 500 U.S. 352, 364-365, 369, 111

S.Ct. 1859, 1868-69, 1871 (1991).

The government suggests that this court should not

address the merits of the Batson claim. To be timely, a B atson

challenge must be raised before the venire has been dismissed.

United States v. Maseratti

, 1 F.3d 330, 335 (5th Cir. 1993), cert.1 2 A fter the judge read the numbers of the sixteen jurors selected to

serve, the district court thanked the other veniremen and instructed them to hand

their "juror" buttons to somebody at the back door. He informed them they could be

on their way, and according to the record there was a pause as those excused left

the courtroom. Next, the district judge ordered the selected jurors to move into

the jury box. Only after they had moved into the box, and the court began

addressing the jury as selected did defense counsel apprise the court, "We may have

a Batson problem." Counsel acknowled ged that he needed to raise the issue

before losing jurors, but the district court observed, "it's too late to bring them

back." The court then proceeded to give preliminary instructions to the jury.

It is unclear whether the veniremen had physically left the courtroom when

defense counsel first offered a Batson -objection to the district court.

13 denied

, 114 S.Ct. 1096 (1994). An objection raised after the jury

is seated and the venire has been dismissed does not preserve the

claim. U nited States v. Collins , 972 F.2d 1385, 1402 (5th Cir.

1992), cert. denied

, 113 S.Ct. 1812 (1993). A proper objection

must be made before the venire is excused and leaves the courtroom.

Maseratti

, 1 F.3d at 335 n.1. The record here is ambiguous

concerning the exact sequence of events, 1 2 but we will assume t h e

objection was timely.

Resolution of the merits of the Batson challenge posed by

all defendants is muc h simpler in light of P urkett v. Elem

,

___

U.S. ___, 115 S.Ct. 1769 (1995). Reversing the court of appeals,

which had demanded that a race-neutral explanation be related to

the facts of the particular case, the Supreme Court held that all

that a prosecutor need offer is a facially valid explanation. Id

.

at 1771. "Unless a discriminatory intent is inherent in the

prosecutor's explanat ion, the reason offered will be deemed race

neutral." I d . (citing H ernandez

, 500 U.S. at 360 (plurality

opinion), 374 (O'Connor, concurring)). Accordingly, a "’legitimate

r eason' is not a reason that makes sense, but a reason that does

not deny equal protection." Id

.1 3 I n Purkett

, the reason proffered by the prosecution was that the juror

had a beard and long hair. These justifications, held sufficient in Purkett

, are the least trial-related explanations proffered in this case:

a. Jurors 1, 13, and 59 expressed difficulty reading the English

language, which prompted concern because of the voluminous

transcripts introduced into evidence. Juror 59 also had a

tattoo which could indicate prior affiliation with a gang.

b. Juror 10's demeanor appeared "lackadaisical," and he laughed at

inapp ropriate times. Juror 56 also was excused for failure to

exhibit an appropriate degree of seriousness.

c. Juror 94 indicated in his response that the Mexican Mafia sought

peace. Concerned with potential bias, the prosecutor was

further troubled by his long hair and a beard.

d. Juror 100 was excused because of her son's prev ious experience

with juvenile court, and her casual attitude.

14 The district court believed the reasons proffered by the

assistant United States attorney were genuine, and nothing in the

record has been identified to suggest this credibility evaluation

to have been clearly erroneous. 13

III. Procedural Challenges

A. Misjoinder, Rule 8

"Improper joinder under Rule 8 is considered to be inherently

prejudicial and this is reviewable on appeal as a matter of law."

United States v. Bright , 630 F.2d 804, 813 (5th Cir. 1980). This

criminal procedure rule authorizes joinder of defendants "if they

are alleged to have participated in the same act or transaction or

in the same series of acts or transactions constituting an offense

or offenses." Its requirement is satisfied by allegation of an

overarching conspiracy that encompasses the substantive offenses

charged. U nited States v. Faulkner

, 17 F.3d 745,758 (5th Cir.),

cert. denied

, 115 S.Ct. 193 (1994). If an indictment charges RICO

violations, offenses committed as part of the pat tern of15

rac keteering activity are properly joined even if the defendant

objecting is not named in the RICO count. U nited States v.

Manzella

, 782 F.2d 533,540 (5th Cir.), cert. denied

, 476 U.S. 1123

(1986).

Yet Krout notes that he was only indicted for

participating in the heroin conspiracy and with the substantive

offense of possessing with intent to distribute heroin on March 15,

1993. Citing United States v. Bova , 493 F.2d 33 (5th Cir. 1974),

and Uni ted States v. Gentile , 495 F.2d 626 (5th Cir. 1974), he

reasons that he falls within the rule requiring severance where all

of the defendants are charged with offenses arising out of the same

series of acts or transactions, but one defendant is additionally

charged with an offense which is not alleged to have arisen out of

the same series of acts or transactions.

Krout is only partially correct because he ignores United

States v. Welch

, 656 F.2d 1039, 1049-50 (5th Cir. 1981). This

court in Welch held that "the joinder of otherwise separate acts

may be allowed when the acts are proper ly linked by means of a

conspiracy charge." I d. at 1051. Significantly, this court

expressly decided that "[i]t is true that a RICO conspiracy count

can provide the connexity between two otherwise unrelated

conspiracies necessary to satisfy the requirements of Rule 8(b)."

Id. More importantly, the W elch court adopted the reasoning of the

Second Circuit in United States v. Weisman

, 624 F.2d 1118 (2d

Cir.), cert. denied , 449 U.S. 871 (1980).16 In Weisman , as in Krout's case, an individual

d efendant -- Cannatella -- was charged in the indictment with

bankruptcy fraud and not in either the securities fraud or any

unifying RICO count. Nevertheless, the Second Circuit held (with

this court later approving) that the joint trial of Cannatella with

the other RICO defendants did not violate Rul e 8(b). W elch

, 656

F.2d at 1052-1053. Similarly, no error was committed by Krout's

joinder in this case.

B. Severance, Rule 14

Krout, Nanez, and Solis Huerta all argue that the

district court abused its discretion in denying their motions for

relief from prejudicial joinder under Fed. R. Crim. P. 14.

Generally, however, persons indicted together should be

tried together. U nited States v. Arzola-Amaya

, 867 F.2d 1504, 1516

(5th Cir.), cert. denied

, 493 U.S. 933 (1989). A district court

should grant a Rule 14 severance "only if there is a serious risk

that a joint trial would compromise a specific trial right of one

of the defendants, or prevent the jury from making a reliable

judgment about guilt or innocence." Zafiro v. United States , 113

S.Ct. 933, 939 (1993). Indeed, neither a quantitative disparity in

the evidence nor the presence of a spillover effect requires a

severance." United States v. Neal , 27 F.3d 1035, 1045 (5th Cir.),

cert. denied

, 115 S.Ct. 530 (1994). Normally, limiting

instructions to the jury will cure any risk of prejudice. Z afiro

,

113 S.Ct. at 938.14 I n addition to the court's instruction to consider each defendant's

guilt individually, the care and attention of the jury was obvious from the specific

and focused notes it sent to the district court throughout its seven day period of

deliberations.

Initially, the jury requested an index for the volumes of wiretap transcripts.

Subsequently, the jury sent notes concentrating on Hector Alvarez, then about the

murder offense involving Arce and Zamora, proceeding to the shipment of heroin to

California (implicating Huerta, Solis Huerta, and Nanez), moving onto the testimony

of Morales, and culminating with Krout's March 15 transaction. This course of

events reflects careful sifting of the evidence, or as the district court observed,

they "studied this matter very carefully."

17 To reverse for abuse of discretio n thus requires a

showing of specific and compelling preju dice. U nited States v.

Thomas

, 12 F.3d 1350, 1363 (5th Cir.), cert. denied

, 114 S.Ct. 1861

(1994). These defendants cannot approach such a showing:

a. The evidence about Krout's illicit activity was

focused and compartmentalized. Presentation of evidence

related to his delivery of heroin to Sald ana and Munoz

was limited to the 11th, 12th and 14th days of trial.

Moreover, Krout's opening argument specifically directed

the jury's attention to the events of March 15, 1993 and

warned against "spillover." The actual disputed factual

issues concerning his gui lt were simple and limited:

whether the surveillance officers could see him deliver

a package to Saldana; and whether or not Erasmo

Gonzalez's testimony was credible.

b. The extent of Solis Huerta's involvement was also not difficult to separate from the larger universe

of evidence. She communicated with her husband Huerta,

packaged heroin, and conn ected Huerta with other gang

members by telephone. Nanez's role was similar but she

also actively participated in collecting the "dime," and

facilitating communications between her father Huerta and

other gang members. Both of these defendants also had

the testimony presented against them in a block on the

4th, 5th and 6th days of trial. 14

IV. Alvarez’s, Krout’s, and Arce’s Separate Challenges

A. Alvarez

1. Evidentiary Challenges

Alvarez challenges the district court's denia l of his

motion to suppress evidence obtained pursuant to a search warrant18

from the residence of Rosa Rubio in San Antonio. Regardless of the

m erits of his contention about the deficiency of the warrant,

Alvarez has no standing to challenge its constitutionality.

Alvarez has the burden of establishing that his own

constitutiona l rights were violated by an unlawful search or

seizure. U nited States v. Wilson

, 36 F.3d 1298, 1302 (5th Cir

.

1994). Alvarez neither alleged nor offered evidence at the

suppression hearing that he had any property or possessory interest

in the property searched at 6154 Bark Valley. "In general, a person

who is aggrieved by an illegal search and seizure only through the

introduction of damaging evidence secured by a search of a third

person's premises or property has not had any of his Fourth

Amendment rights infringed." W ilson

, 36 F.3d at 1302. The

government alerted Alvarez in its response to his motion to

suppress that he had the burden of establishing his expectation of

privacy in the premises searched. This court does not deem

standing to be waived where "no facts were adduced at the

[suppression] hearing from wh ich the government could reasonably

have inferred the existence of the defendant's standing." United

States v. Cardona

, 955 F.2d 976, 982 (5th Cir.), cert. denied

, 113

S.Ct. 381 (1992).

Alvarez also challenges, primaril y under Fed. R. Evid.

404(b), the admission of two of his prior traffic stops by police

officers. During the first stop, on June 11, 1992, Alvarez fled

the scene and discarded nine packets of heroin and a handgun. The

second stop, which occurred on March 12, 1993, was for driving19

while intoxicated. Contrary to his assertions, none of the

evidence admitted about these two stops was charact er evidence

within the meaning of Rule 404(b).

Rule 404(b) excludes most evidence of extrinsic offenses

offered to prove a defendant acted in conformity with his bad

character. Uncharged offenses arising from the same transaction or

series of transactions charged in the indictment, however, are not

barred by the rule. U nited States v. Maceo

, 947 F.2d 1191, 1999

(5th Cir. 1991), cert. denied

, 112 S.Ct. 1510 (1992). More

specifically, evidence of acts committed pursuant to a conspiracy

and offered to prove the defendant's membership or participation in

the conspiracy are not extrinsic evidence. U nited States v. Davis

,

19 F.3d 166, 171 (5th Cir. 1994).

Thus, to avoid the strict ures of Rule 404(b), all the

government need do is suggest a logical hypothesis of the relevance

of the evidence for a purpose other than to demonstrate his

propensity to act in a particular manner. Here, the prosecutor

proposed to introduce evidence of the first traffic stop because it

physically associated appellant Alvarez with Victor "Morro"

Alvarez, a member of the Texas Mexican Mafia conspiracy. Moreover,

it corroborated the testimony of uncharged conspirator Lisa Rubio

that these two men were engaged in a drug trafficking operation.

Finally, the evidence could also be admissible as an act "part and

parcel of the conspiracy itself." The June date of this traffic

stop fell within the time period of the offenses charged in the20

indictment and im plicated the same offense conduct and a

participant identified in wiretap recordings.

The 1993 stop for DWI was similarly admissible. The

evidence at trial was limited to the fact of the actual stop and

the reason was never provided the jury. The United States limited

its proof to the fact that Alvarez was stoppe d and identified as

the driver of a car registered to Li sa Rubio. Not only did the

evidence corroborate Rosa Rubio's testimony about the relationship

between Lisa Rubio and Victor Alvarez, it also linked Alvarez to

Rangel, one of the leaders of the alleged conspiracy, because the

same vehicle had been observed by a surveillance officer at

Rangel's residence in December, 1992.

2. Jury Instruction

Alvarez requested the district court to give the jury a

lesser included offense instruction misdemeanor possession of

heroin or cocaine, in violation o f 21 U.S.C. § 844(a). To be

entitled to such an instruction, the elements of the lesser offense

must be a subset of the elements of the charged offense. S ee

United States v. Garcia

, 27 F.3d 1009, 1014 (5th Cir.), cert.

denied

, 115 S.Ct. 531 (1994); Schmuck v. United States

, 489 U.S.

705, 716 (1989). Indeed, e ach statutory element of the lesser

offense must also be present in the greater offense. U nited States

v. Browner , 937 F.2d 165, 168 (5th Cir. 1991).

The elements of simple possession of a con trolled

substance are (1) the knowing pos session (2) of a controlled

substance. Alvarez, however, was charged in Count I with a21

substantive RICO violation under 18 U.S.C. section 1962(c).

Racketeering activities are defined by statute to i nclude "the

felonious manufacture, importation, receiving, concealment, buying,

selling, or otherwise dealing in narcotic or other dangerous

drugs." 18 U.S.C. § 1961(1)(D)(emphasis added). Simple possession

of heroin or cocaine does not even constitute a RICO predicate

offense. Counts Two, Four and Five charged Alvarez with

conspiracies to commit the substantive offense, and to distribute

and possess with the intent to distribute heroin and cocaine.

Simple possession is not a lesser included offense of a drug

conspiracy, United States v. Rodriguez

, 948 F.2d 914, 917 (5th Cir.

1991), cert. denied

, 112 S.Ct. 2970 (1992), nor should it b e a

lesser offense for a RICO conspiracy.

Alvarez a lso urges that the district court committed

reversible error by failing to charge the jury that "mere agreement

to commit the predicate acts charged is not sufficient to find the

defendant guilty of conspiracy to violate the RICO statute." The

trial court's refusal is reviewed for abuse of discretion. U nited

S tates v. Jensen , 41 F.3d 946, 953 (5th Cir. 1994). Denial of a

requested instruction is not error when its substance is implicit

in the instructions actually given. U nited States v. Ramirez

, 963

F.2d 693, 705 (5th Cir.), cert. denied , 113 S.Ct. 388 (1992).

The district court's instructions separated the

enterprise from the pattern of rack eteering activity. And they

quite carefully explained each of the elements necessary for1 5 F irst, the judge directed the j ury that "[t]o prove a pattern of

racketeering activity, the government must prove

. . . that the acts are related to

each other a nd, two, they amount to or pose a threat of continuing criminal

activity." He then defined what the government must establish to prove the

racketeering acts are related to one another: "[T]he criminal conduct charged

embraces criminal acts that have the same or similar purposes, results,

participants, victims

. . . and are not isolated events." Next, the district court

carefully outlined that the defendant must be linked to the illegal endeavors of the

enterprise by participating or "conduct[ing] its affairs: To do so, the government

must additionally demonstrate a relationship among the defendant, the pattern of

racketeering activity and the enterprise." He cautioned the jury explicitly, "The

defendant and the enterprise cannot be the same." Finally, the court precisely

defined the elements of a RICO conspiracy.

22 predicate offenses, a "pattern," and conspiracy. 15 Considered as

a whole, these instructions did not permit the jury to find a RICO

conspiracy solely upon proof that Alvarez agreed to commit the

predicate crimes.

3. Statutory Challenge

Alvar ez argues that the elements of "pattern of

racketeering activity" and activities of an enterprise that "affect

interstate or foreign commerce" are both unconstitutionally vague

on thei r face and as applied to him. This circuit has already

specifically rejected the facial challenge to the vagueness of

"pattern of racketeering activity." Abell v. Potomac Ins. Co. of

Illinois

, 946 F.2d 1160, 1165-67 (5th Cir. 1991), cert. denied

, 112

S.C t. 1944 (1992). As applied, the statute itself enumerates

offenses th at qualify as "racketeering activity." The Supreme

Court defined the "pattern" component to require the prosecution to

"show that the racketeering predicates are related, and that they

amount to or pose a threat of continued criminal activity." H.J.

Inc. v. Northwestern Bell Telephone Co.

, 492 U.S. 229, 239 (1989).

Hence, Alvarez must argue that the scope of this pattern element

"was so unclear that a person of ordinary intelligence in [his]16 R ecall, the gang's self-avowed objective was to "deal in drugs,

contract killings, prostitution, large scale robbery, gambling, weapons . . ."

1 7 W e have also considered

-- and reject

-- Alvarez's argument that there

was insufficient evidence to convict him on all counts.

23 position would not have had adequ ate notice that his actions

constituted a pattern of racketeering activity." Abell , 946 F.2d

at 1167 (internal quotations omitted). Alvarez was shown to be a

member of the Mexican Mafia, an organization officially devoted to

criminal activities, 16 which dealt and distributed narcotics,

sanctioned murder, and organized an extortionate collection scheme

of a "street tax." RICO was certainly intended to encompass these

activities designed to further an organized crime enterprise.

Because Alvarez did not truly develop the interstate

commerce vagueness argument in his brief, the point is abandoned. 17

B. Krout

1. Replayed Testimony

The district court denied the jury's request dur i ng

deliberations to replay the testimony of the officers involved in

t he surveillance and stop of Krout on March 15. Generally,

rereading or replaying testimony is disfavored. United States v.

Nolan , 700 F.2d 479, 486 (9th Cir.), c ert. denied

, 462 U. S. 1123

(1983); U nited States v. Keys

, 899 F.2d 983, 98 (10th Cir.), cert.

d enied , 489 U.S. 858 (1990). Denial of such a request is proper

when the court finds that replaying the testimony would take an

inordinate amount of time or create a risk that the jury would

place an undue emphasis on that evidence. U nited States v.1 8 T he agent was permitted to explain the term "move around" money means

money laundering.

24 Schmitt

, 748 F.2d 249, 256 (5th Cir. 1984), cert. denied

, 471 U.S.

1104 (1985).

This request from the jury encompassed four to six hours

of testimony. The parties themselves were unable to focus the

request into a more manageable segment of the testimony. Further,

because the testimony was audiotaped it would have required

redaction prior to playing before the jury. At this time, the jury

had already deliberated into the fifth day, and had previously

requested two other lengthy replays of testimony. No abuse of

discretion occurred in denying this request.

2. Expert Testimony

Detective Martinez testified during the playing of three

recorded conversations in which "Cowboy" Gonzalez was a participant

or was discussed. The district court denied Krout's objections to

questions soliciting the officer's opinion that references to "the

people" and the "driver of the truck" indicated that Gonzalez was

acting with others to bring heroin into the area. Although this

court has held that an undercover agent may interpret the "argot or

seemingly secret jargon of []alleged criminals," United States v.

Fuller

, 974 F.2d 1474,1482 (5th Cir. 1992), 18 expert testimony

regarding the meaning of ordinary words, which the jury is in as

good a position as the 'expert" to interpret, must be excluded.

United States v. Allibhai

, 939 F.2d 244, 250 (5th Cir. 1991). Here

the excerpts of conversation which Martinez was asked to comment on1 9 I ndeed, after Detective Martinez clarified that Krout was not involved

in the December 28 transaction Krout's attorney remarked that he "had no problem"

with the testimony that Gonzalez was not acting alone.

25 were not alleged by the United States to be code

-- as is often the

case in wiretapped conversations.

Nonetheless, erroneous admission of expert testimony is

subject to harmless error analysis. U nited States v. Weiner

, 3

F.3d 17,21-22 (1st Cir. 1993). The testimony objected to by

counsel did little to incriminate Krout. First, other evidence

introduced at tri al established that the "people" referred to in

this conversation about the December 28 transaction did not include

Krout. 19 Gonzalez's own testimony confirmed this fact. For the

exact opposite reason , testimony concerning the March 14

conversation was also harmless to Krout; it was cumulative of other

incri minating evidence: Gonzalez testified that Krout delivered

the heroin to a Mr. Saldana on Marc h 15. Significantly, this

testimony was corroborated by surveillance of the exchange of

packages between Krout's and Saldana's vehicles, the seizure of

heroin from a box of laundry detergent in Saldana's car, and 1-2

cupfuls of laundry detergent from Krout's Blazer.

3. Consecutive Sentencing

Krout's challenge to his sentence, however, merits

extended discussion. Krout complains that the district court

failed to apply the methodology provided by the commentary to

§ 5G1.3(c), a policy statement, and that if i t had, the district

court would have imposed the sentence to run concurrent with a

sentence imposed in the Southern District of Texas.20 The record reflects this exchange after the sentence was imposed:

KROUT: Your Honor, could I say one more thing?

COURT: Yes.

KROUT: C ould I just ask you to reconsider about running it concurrent

with the Corpus Christi? You know, its a very long time away

from my family, your Honor.

COURT: The Court will deny t hat request at this time, Mr. Krout, and

the Court will order that the hundred and sixty-eight months on

this case run consecutive to the ninety-seven months imposed in

the Corpus case. The Court, it will--

FAHLE (Counsel): Your Honor, I'm sorry. I've just two other

quick things. I want to make sure that our objection to that is

preserved. And, secondly, I would now orally file a notice of

appeal , and I'll follow it later with a written notice of

appeal.

26 At sentencing, the district court informed Krout that it

would impose the sentence for this offense consecutive to a 97-

month term imposed for a prior drug offense in the Southern

District of Texas. (Krout was a fugitive when he committed the

offenses involved in this case.) Both Krout and his attorney asked

the district judge to reconsider this decision, and n oted an

"objection" for the record. However, Krout's objection offered no

particular legal basis. 2 0 The government contends that Krout's

imprecise objection is insufficient to preserve the claimed error

for review. We agree.

Krout's objection was in the manner of a simple plea for

leniency. Indeed, nothing in Krout's objection gave any indication

of the sentencing error now claimed. "A party must raise a claim

of error with the district court in such a manner so that the

district court may correct itself and thus, obviate the need for

our review." U nited States v. Bullard

, 13 F.3d 154, 156 (5th Cir.

1994). By failing to properly object at sentencing, the defendant2 1 R ule 52(b) of the Federal Rules of Criminal Procedure provides: "Plain

errors or defects affecting substantial rights may be noticed although they were not

brought to the attention of the court."

27 waives his right to full appellate review. This Court will remedy

errors so forfeited only in the most exceptional case. U nited

States v. Torrez

, 40 F.3d 84, 86 (5th Cir. 1994). In other words,

we review only for plain error. 21

In order to show plain err or, the appellant must show

that there was an error, that it was plain (meaning "clear" or

"obvious") and that the error affect s substantial rights. This

Court lacks the authority to relieve an appellant of this burden.

United States v. Olano

, --U.S.--, 113 S. Ct. 1770, 1777-81, 123 L.

Ed. 2d 508 (1993). In addition, even when the appellant carries

this burden, this Court is not required to correct the error. The

Supreme Court has directed that such a forfeited error should be

corrected if the error "seriously affect[s] the fairness, integrity

or public reputation of judicial proceedings." Id. at --, 113 S.

Ct. at 1779 (quoting United States v. Atkinson

, 297 U.S. 157, 160,

56 S. Ct. 391, 392, 80 L. Ed. 555 (1936)).

In the written judgment of commitment the district court

explained its decision to impose consecutive sentences:

According to U.S.S.G. § 5G1.3, the sentence for the

instant offense should result in an appropriate

incremental punishment that most nearly approximates the

sentence that would have been imposed had both sentences

been imposed at the same time. Based upon the purity of

the heroin, the defendant's obstructive behavior, and the

fact that the defendant was not prosecuted for bond

jumping in the Southe rn District of Texas, the court

finds that the consecutive sentence in this case is

appropriate.2 2 S ubsection (a) applies where the defendant committed the instant offense

while serving an undischarged term of imprisonment and subsection (b) applies where

the conduct resulting in the undischarged term of imprisonment has been taken into

account under the relevant conduct provision in determining the offense level for

the instant offense. Appellant and appellee agree that subsections (a) and (b) did

not apply in the present case.

28 The actual sentence imposed for this offense was at the low end of

the guideline range of imprisonment: 168 months in a range of 168-

210 months.

Guideline section 5G1.3(c) provi des that, in any case

other than those covered under subsection s (a) and (b), 2 2 "the

sentence for the instant offense shall be imposed to run

consecutively to the prior undischarged term of imprisonment to the

extent necessary to achieve a reasonable incremental punishment for

the instant offense." U.S.S.G. § 5G1.3(c), p.s. The commentary to

this section, application note 3, provides that "to the extent

practicable, the court should consider a reasonable increm ental

penalty to be a sentence for the instant offense that results in a

com b ined sentence of imprisonment that approximates the total

punishment th at would have been imposed . . . had all of the

offenses been federal offenses for which sentences were being

imposed at the same time."

Although the district court has the ultimate discretion

to impose a sentence consecutively, see United States v. Bell , 46

F.3d 442, 446 (5th Cir. 1995), it is required to consider the

applicable se ntencing guidelines and policy statements. S ee 18

U.S.C. §§ 3584(a), (b); 18 U.S.C. §§ 3553(a)(4), (5); United States

v. Parks

, 924 F.2d 68, 72 (5th Ci r. 1991). In addition, the

Supreme Court has held that commentary that interprets or explains29

a guideline is authoritative. S tinson v. United States

, -- U.S.--,

113 S. Ct. 1913, 1915, 123 L. Ed. 2d 598 (1993). In U nited States

v. Hernandez

, -- F.3d --, 1 995 WL 509345 (5th Cir. 1995), this

Court held that a sentencing court is bound to consider § 5G1.3(c)

as well as the implications of the methodology suggested by

application note 3. "[T]he district court must consider the

suggested methodology before determining whether a sentence should

run consecutively or concurrently." I d. at *3. The judgment

entered by the district court, quoted above, clearly reflects that

it considered both § 5G1.3(c) and the commentary to that section.

Krout argues, however, that the district court's failure

to apply the methodology provided by the commentary to § 5G1.3(c)

was error. We cannot agree. As we noted in Torrez

,

the methodology proposed by note 3 is permi ssive only.

The specific formula . . . is conspicuously preceded by

the language "[t]o the extent practicable, the court

should consider

. . . ." This language denotes merely

one possible manner of determining the appropriate

incremental penalty. Thus, even if the district court

had considered this provision, it would have been free to

dec line to follow the suggested methodology. In other

words, the district court would not have violated this

provision if it had considered it and then determined

that imposing the sentence consecutively provided the

appropriate incremental punishment.

40 F.3d at 87 (internal citation omitted). In H ernandez

, this

Court held that the suggested methodology is advisory only. 1995

WL 509345 at *3. Therefore, failure to apply the methodology

provided cannot constitute error.

Krout also argues that the reasons given by the district

court for imposing the sentence consecutively were insufficient to

justify that decision in light of the policy concerns underlying §23 We are not saying that the reasons articula ted by the District Court

would not be proper justification for the imposition of a consecutive sentence under

the Hernandez mandated methodology.

30 5G1.3. In H ernandez

, we held that "[i]f the district court chooses

not to follow the methodology, it must explain why the calculated

sentence would be impracticable in that case or the reasons for

using an alternate method. Thereafter, the district court is left

with discretion to impose a sentence which it believes provides an

appropriate incremental punishment." I d. (internal citations

omitted).

Although it is not clear from the d istrict court's judgment

why it did not follow the recommended methodology or why it used an

a lternate method, it is clear that the district court conside red

the relevant commentary and, with reasons, deci ded on what it

believed to be an appropriate incremental penalty. We need not

decide whether under Hernandez the distri ct court's reasons were

insufficient because any error in the distr ict court's judgment

could not be cons idered so "clear" or "obvious" as to be deemed

"plain" error. 23

C. Arce

T his court reviews the court's denial of a motion for

severance or a motion for continuance for abuse of discretion.

United States v. Dilman

, 15 F.3d 384, 393-94 (5th Cir.), cert.

denied , 115 S.Ct. 183 (1994)(severance); United States v. Kelly

,

973 F.2d 1145, 1147-48 (5th Cir. 1992)(continuance). Denial of an

eleventh hour or mid-trial motion for a continuance

- even when an

attorney unfamiliar with the case must take over representation of31

a defendant- is not an abuse of discretion. S ee United States v.

Mitchell

, 777 F.2d 248, 255 (5th Cir. 1985), cert. denied

, 475 U.S.

1096 (1986). Arce seeks to establish the requisite "specific and

compelling" or "se r ious" prejudice based upon the ineffective

assistance of counsel he received from his first attorney Harrison

and based upon Ha rrison's absences from trial, which allegedly

denied him counsel altogether.

This court, however, will not address ineffective

assistance of counsel claims on direct appeal e xcept in unusual

cases. U nited States v. Higdon

, 832 F.2d 312, 313-314 (5th C ir.

1987), cert. denied

, 484 U.S. 1075 (1988). Only in that rare

instance where the details of the attorney's conduct are "well

developed" in the record is such a claim properly considered on

direct appeal." I d. at 314. Because the record is not definitive

about when Harrison's absences were covered by Langlois, we defer

to the usual vehicle for resolution of a Sixth Amendment claim, a

section 2255 motion.

Finally, to the extent that Arce attempts to find an

abuse of discretion in the district court's denial of his motion

that is not g rounded in effective assistance of counsel, the

district court's careful and extended reasoning easily suffices to

reject the attack.

V. Sentencing Challenges

We have specifically considered each appellant's

challenge to the sentence imposed and reject all of their attacks;32

eve ry appellant was properly sentenced or the error claimed was

harmless.

CONCLUSION

Having carefully reviewed the contentions advanced by the

appellants, we find no reversible error of fact or law.

AFFIRMED

.