* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in 5 TH C IR . R. 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-11153

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JUAN FRANCISCO TREVINO,also known as Kiko Ozuna;

ARMANDO MARTIN TREVINO, also known as Gordo;

PEDRO SANCHEZ, also known as Sanchez;

PABLO DELUNA, also known as Picho;

JORGE ESPINOSA, also known as El Pato;

Defendants-Appellants.

Appeals from the United States District Court

For the Northern District of Texas

(3:95-CR-189-R)

June 30, 1997

Before JONES, STEWART, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge: *

Defendants-appellants, Juan Francisco Trevino, Pablo DeLuna,

Armando Martin Trevino, Jorge Espinoz a, and Pedro Sanchez, were

convicted of conspiracy to possess with intent to distribute and to

distribute more than 1000 kilograms of marijuana, 21 U.S.C. §§

841(a)(1) & 846, and sentenced to imprisonment.2

The issues presented on appeal are (1) whether th e district

court erred in failing to dismiss the original indictment with

prejudice based on the denial of statutory speedy trial rights; (2)

whether there was sufficient evidence to support the convictions of

Juan Trevino, Armando Trevino, and Pedro Sanchez; (3) whether the

district court erred by admitting evidence of an extraneous offense

committed by Pa blo DeLuna; (4) whether there was prejudicial

prosecutorial misconduct; (5) whether the district court erred in

giving an Allen charge to the jury; (6) whether the district court

erred in sentencing Juan Trevino, Pedro Sanchez, Jorge Espinoza,

and Armando Trevino. Finding no reversible error, we affirm the

appellants’ convictions and sentences, except that Jorge Espinoza’s

sentence is vacated and his case is remanded for resentencing.

BACKGROUND

Appellants were originally indicted on October 13, 1994, along

with 8 others, Abraham “Benny” Padilla, Abel Lopez, Sr., Abel

Lopez, Jr., Francisco Isaac, Fernando “Vanna” Quiroz, Hipolito

“Polo” Ortiz, Oscar “Pelon” DeLeon, and Edel Isaac, for conspiracy

to possess with intent to distribute and distribution of more than

one thousand kilogra ms of marijuana and related offenses. On

October 18, 1994, Juan Trevino, Armando Trevino, and Pedro Sanchez

appeared before a judicial officer. On November 18, 1994, the case

was set for trial in January 1995. On January 4, 1995, the case3

was reset for trial for April 3, 1995. On March 29, 1995, the

court granted Pedro Sanchez’s motion for continuance and the case

was reset f or trial in May 1995. On May 16, 1995, the court

granted Armando Trevino’s m otion for continuance and reset the

t rial for June 16, 1995. On May 26, 1995, Juan Trevino filed a

motion to dismiss for violation of the Speedy Trial Act, 18 U.S.C.

§ 316(c)(1), which provides for trial to be held within 70 days of

the date the defendant first appeared before a judicial officer or

the date of the indictment, whichever is later. On June 15, 1995,

the trial court held a hearing on Juan Trevino’s speedy trial

motion, granted the motion, and dismissed the October 13, 1994

indictment without prejudice stating that it was the court’s fault

that the speedy trial act had not been complied with.

On June 7, 1995, the Government obtained a second indictment

charging that the appellants herein conspired to possess with

intent to distribute and to distribute more than 1,000 kilograms of

marijuana. The indictment alleged that the conspirators acquired

large sums of marijuana from Mexico and transported the marijuana

from Laredo to Dallas, Texas.

At trial, several co-conspirators testified regarding the

operati ons of the conspiracy. Everado Ramirez, the Government’s

first witness, testified that Tovar Ozuna introdu ced him to Juan

Trevino who offered him a job of transporting marijuana to Dallas.

Ramirez’s first duty was to store marijuana at his house for

several days and then bring it to Pablo DeLuna’s house, who was to4

t r ansport it to Dallas. Ramirez was paid $10 per pound of

marijuana that he stored and transported.

The following month, at Tovar Ozuna’s request, Ramirez agreed

to store and deliver marijuana that was to be transported to

Dallas. Tovar’s job for Juan Trevino was to bring marijuana across

the river from Mexico to Ramirez. Tovar delivered about 250 pounds

and Ramirez brought it to Pablo DeLuna’s house where it was to be

stored and later transported to a Border Freight Company 18

wheeler.

Ramirez testified that he participated in similar marijuana

deliveries from Laredo to Dallas about three times a month during

a 12 to 18 month period and that the largest load of marijuana he

had stored was about 600 pounds. After a few months, Ramirez began

to travel with Fernando Quiroz, Pablo DeLuna, and Joe Chavez, to

Dallas to obtai n earlier payments. He said he made 15-20 such

trips to Dallas. Ramirez testified that he would check into a

Dallas motel, and page Juan Trevino’s brother, Jose, who would

bring him his payment.

Ramirez testified that on some occasions the marijuan a was

unloaded in San Antonio into a car that he followed to Dallas as

instructed by Pablo DeLuna. Ramirez recalled that on one occasion

a Border Freight truck was unloaded at a house. Later, he said,

the conspirators used Suburbans to haul marijuana on private roads

through a large r anch to bypass law enforcement checkpoints.

Ramirez testified that his association with the conspiracy5

terminated when Juan Trevino told him not to come around anymore

because he thought they were being watched.

Hipolito “Polo” Ortiz testified that he became involved in the

conspiracy when Benny Padilla offered to pay him $4,000 to drive a

Suburban from Laredo to Dallas with a load of marijuana . Ortiz

worked with Joe Sanchez, Pabl o DeLuna, Jorge Espinoza, Fred

Tejeda, Everado Ramirez, Fernando Q uiroz, Joe Chavez, and Juan

Trevino in picking up, loading, driving, and delivering marijuana.

He said that some of the marijuana was transported in Border

Freight trucks, especially when the weather was good, because they

made it through checkpoints easier. Ortiz identified two

Government exhibits as photographs of marijuana packages belonging

to Juan Trevino and Abel Lopez.

In May of 1993, Ortiz, Fernando Quiroz, and Abel Lopez, Jr.,

were arrested at a motel in Mesquite, Texas for possessing 300

pounds of marijuana that had been brought up Dallas from Laredo,

Texas. Ortiz testified that this offense was the subject of a

pending state charge against him as well as being part of the basis

for the federal conspiracy indictment in the case at bar to which

he had pleaded guilty.

Juan Barraza testified that he worked for Able Lopez, Sr. and

Abel Lopez, Jr. transporting marijuana and delivering money in the

Dallas area. After about six months, Barraza was sent to Laredo to

deliver $5,000 to Abel Lopez, Sr. Barraza “escorted” 18 wheelers

hauling mar ijuana from Laredo to Dallas. He identified Jorge6

Espinoza as one of the truck drivers. Barraza testified that he

knew of 12 or 13 instances when marijuana loads averaging about 500

pounds each were delivered to Dallas by trucks. Barraza admitted

he personally drove trucks loaded with marijuana on two occasions,

for which he was paid $45,000 per trip. Otherwise, Barraza was

paid approximately $3,000 per week for assisting in the operation.

Barraza testified that on one occasion, he Pablo DeLuna, and Selso

Pena were sent to Laredo by Abel Lopez, Jr. to search for marijuana

that Pablo DeLu na left in a field. He said Pablo DeLuna started

out with 500 pounds in Laredo but arrived in Dallas with only half

of the load.

Joe Chavez testified that in or about March of 1993, he became

involved in the conspiracy through Benny Padilla. His initial job

involved loading more than 1000 pounds of marijuana into a Suburban

at a house in Laredo. Chavez said he and Padilla’s brother “Chuko”

took the marijuana to Jorge Espinoza’s mother’s house where they

and Jorge Espinoza’s brother placed the marijuana in a room

containin g marijuana-stuffed duffel bags. At Padilla’s request,

Chavez returned to the house and, with “Chuko” and Jorge Espinoza,

loaded the marijuana into a Border Freight truck. The following

morning the truck was driven to Dallas.

Cha vez’s next job was to escort Suburbans loaded with

marijuana. Chavez explained that “escorting” called upon him to

drive his car behind or in front of the Suburban, and to interfere

with any law enforcement officer’ s attempt to pull the Suburban7

over. Chavez admitted to passing a state trooper on the shoulder

of the road to divert the officer’s attention from a Suburban

loaded with marijuana. Chavez escorted about 13 loads of marijuana

from Laredo to Dallas, and was paid $600 per load.

Chavez detailed the route the conspirators took and how they

evaded checkpoints: A conspirator w ould drive a Suburban out of

Laredo on Highway 359. Before reaching Bruni, Texas, the Suburban

driver would take a private road thro ugh a ranch and reenter the

public highway after bypassing a checkpoint. Chavez, as “escort”

would drive through the highway checkpoint and wait for the

Suburban at a restaurant in Bruni. Chavez testified that on one

occasion while waiting at the restaurant in Bruni, Armando Trevino

approached and told h im to catch up with the Suburban which had

already gone by.

After escorting a marijuana load to Dallas, he would stay with

it at a Dallas area motel where the Suburban would be picked up and

later brought back empty. Chavez testified that he subsequently

learned that the marijuana was being delivered to Juan Trevino in

Dallas. Chavez testified that beginning in July of 1993, he

drove Suburbans rathe r than escorting them. Chavez made

approxi mately 13 trips and was paid $6,000 per trip. Before his

first trip, Chavez was shown by Armando Trevino h ow to drive the

Suburban through the Staggs ranch. Armando Trevino drove Chavez in

his pickup from the exit of the ranch at Highway 2050 through the

ranch to th e entrance at Highway 359, a distance of 35 miles.8

Armando Trevino gave Chavez keys and combinations to get through

cattle guard gates; according to Chavez, Armando Trevino was paid

$35 per pound for p ermitting use of the ranch. Chavez then made

trips two or three times per week, using the combinations and keys,

and driving loads through the ranch. Chavez testified that he

would drive through the ranch at 6:30-7:00 A.M. in order to avoid

running into the Border Patrol on the road; a Border Patrol shift

change occurred at this time.

In December of 1993, Joe Chavez first met with DEA Special

Agent Armando Ramirez at the DEA office in Laredo to find out how

to recover money that had been seized; Chavez had been stopped for

a traffic violation and $4,000 cash and jewelry had been seized.

Chavez returned to the DEA office later that month, however, and

beca me a confidential informant. He did so because “he had a

feeling that this thing . . . was going to be going down.”

In addition to the testimony of the conspirators, the

Government also introduced evidence of the arrests of the

conspirat ors and the seizures of marijuana and other inculpatory

contraband from them. First, DEA Special Agent Victor Routh, the

lead case agent, testified that in May 1993 Fernando Quiroz, Abel

Lopez, and Hipolito Ortiz were arrested at a hotel in Mesquite,

Texas and that 300 pounds of marijuana in their possession was

seized.

Evidence of the September 8, 1993 arrest of Jose and Javier

Sanchez was also introduced. Laredo Police Officer Jesus9

Montemayor testified that on September 7, 1993, he received a phone

call from an anonymous tipster who stated that two individuals

would be leaving Laredo the following day in a particular vehicle

and that it was highly probable that the vehicle would be carrying

marijuana. Officer Montemayor responded by setting up surveillance

on a maroon Subur ban parked near a mobile home. On September 8,

1993 the Suburban occupied by Jose and Javier Sanchez was stopped

shortly after it departed and 622 pounds of marijuana was found in

it. The Suburban was specially equipped with air shocks on the

rear axle in order to disguise the heavy load. This arrest and

seizure tended to corroborate Joe Chavez’s testimony that he loaded

the marijuana from a pickup truck into the Suburban the night

before the arrest, that he left the keys with the Sanchez, and

that he planned to “escort” the load to Dallas.

Border Patrol agent Darren Matthews testified that on October

5, 1993, appellants Jorge Espinoza and Pete Sanchez were arrested

while driving a Border Freight 18 wheeler on Interstate 35

approximately 15 miles north of Laredo. Two hundred eighty-two

pounds of marijuana stuffed in duffle bags was found inside the

trailer of the truck. Both Sanchez and Espinoza told Border Patrol

agent Matthews that they were not aware of the marijuana. In

testifying about the arrest of Sanchez and Espinoza, Joe Chavez

stated that Benny Padilla had told him to load up the Suburban and

take it down to the Border Freight terminal. Chavez further

testified that he, Espinoza, and Sanchez transported the marijuana10

from the Suburban to the Border Freight 18 wheeler on the night of

the arrest.

DEA agents Jackson and Ramirez testified as to the second

arrest of Jose and Javier Sanchez that occurred on December 7,

1993. Pursuant to a tip from Joe Chavez that a Suburban containing

marijuana would e xit from the Staggs ranch heading toward Bruni,

Texas, Jackson and Ramirez intercepted the vehicle occupied by Jose

and Javier Sanchez and seized 309 pounds of marijuana, a key, and

a piece of paper on which gate lock combinations were written.

On December 29, 1993, pursuant to a random check by the U.S.

Customs Service, a vehicle driven by Juan Trevino was stopped and

$47,984 was found. When the vehicle was stopped, Juan Trevino

twice denied that he had more than $10,000 in currency. Trevino

pleaded guilty to a cu rrency violation, and the money was

forfeited.

On January 24, 1994, Joe Chavez informed DEA Special Agent

Armando Ramirez about a delivery of marijuana to be made in Dallas

on January 26. Agent Ramirez, acting undercover, assisted Chavez

in loading approximately 463 pounds of marijuana in to a Suburban

from a mobile home in Laredo. Upon arrival in Dallas, agents

arrested Ricky Trevino and Abel Lopez, Jr. when they attempted to

pick up the marijuana from Joe Chavez. Chavez testified that some

of the confiscated marijuana was destined for or “belonged to” Juan

Trevino.

Pursuant to this arrest, the Government seized an11

address/phone book belonging to Joe Chavez that was left on a table

in a bar at the Holiday Inn where the arrest took place. The book

contained the Staggs ranch phone number and a cellular phone number

assigned to Armando Trevino. The book also contained a phone

number listed next to the name “Kiko,” Juan Trevino’s alias. The

number was assigned to “Sanwana Trevino” at an address that the

lien abstracts showed to be in the name of Juan Trevino. Other

conspirators’ names, addresses and phone numbers also appeared in

the book.

Louisiana State Trooper Jim Stephens testified that on March

27, 1994, while patrolling Interstate 20, he witnessed suspicious

activity of the occupants of a vehicle with Texas license plates at

a rest area in Lincoln Parish, Louisiana. Trooper Stephens also

saw an empty car with Kentucky license plates. After exiting the

rest area, Stephens set up a stationary radar on the shoulder of

Interstate 20. Shortly thereafter, the car with the Kentucky

license plates exited the rest area and passed Stephens, which was

followed within a mile by the car with the Texas license plates he

had observed at the rest area. Stephens followed and eventually

stopped the Texas vehicle beca use of the odd way it was being

driven. Pablo DeLuna was a passenger in this car. Stephens,

suspecting something was amiss, radioed to have t he Kentucky car

stopped. Stephens’ suspicion was further aroused by the discovery

of a spare tire in the trunk that did not match the car and a cap

on the back seat of the car that was imprinted with the words12

“Stone’s Garage Dixon, Kentucky.” Stephens requested a K-9 unit.

The K-9 dog arrived and alerted to a jacket on the backseat of the

car.

Meanwhile, the Kentucky car w as stopped by Louisiana State

Trooper Brown about 21 miles east of where Trooper Stephens stopped

the Texas car. Brown found a bale of marijuana in the spare tire

well of the car. The spare tire found in the Texas car matched the

Kentucky car stopped by Brown.

Other evidence was introduced at trial to corroborate the

unindicted co-conspirators’ testimony. Frank Staggs, the owner of

the ranch that the Suburbans passed through to evade border

checkpoints testified that in 1993 the caretaker of the ranch was

Armando Trevino. Staggs identified the numbers on Government’s

exhibit 29 (the paper seized from Jose Sanchez on December 7, 1993)

as the combinations to two gate locks on the east side of the

ranch. The Government, in addition to Joe Chavez’s address book

confiscated pursuant to the arrest of Abel Lopez, Jr. and Ricky

T r evino, introduced telephone and motel records involving the

conspirators.

Following their convictions, Armando Trevino was sentenced to

188 months imprisonment; Pablo DeLuna was sentenced to 405 months

imp r isonment; Pedro Sanchez was sentenced to 63 months

i m prisonment; Juan Trevino was sentenced to 264 months

imprisonment; Jorge Espinoza was sentenced to 120 months

imp risonment. Each appellant was sentenced to five years of13

supervised release following his prison term. The appellants

timely appealed their convictions and sentences.

DISCUSSION

A. SPEEDY TRIAL ACT

As a threshold issue, we must determine whether the district

court erred in failing to dismiss the original indictment with

prejudice based on denial of speedy trial rights. 18 U.S.C. §

3162(a)(2) provides:

In determining whether to dismiss the case with or without

prejudice, the court shall consi der, among others, each of

the following factor s: the seriousness of the offense; the

facts and circumstances of the case which led to the

dismissal; and the im pact of a reprosecution on the

administration of this chapter and on the a dministration of

justice.

In the present case, the charged offenses were obviously quite

grave. See United States v. Taylor

, 487 U.S. 326, 338

(1988)(controlled substance offenses are serious offenses); United

States v. Johnson

, 29 F.3d 940 (5th Cir. 1994) (conspiracy to

possess with intent to distribute 262 pounds of mariju ana was

serious). See also United States v. Melguizo , 824 F.2d 370, 371

(5th Cir.), cert. denied , 487 U.S. 1218 (1987)(potential 10 year

sentence is sufficient indication that offense was serious).

The facts and circumstances leading to the dismissal included14

the following: The trial judge stated that he was solely

responsible for not commencing a trial within the Speedy Trial

Act’s deadline. The record evidence does not describe the delay to

anyone other than the district judge. Under the circumstances of

thi s case, reprosecution did not seriously impact the

administration of the Speedy Trial Act in particular, or the

administration of justice in general. We conclude that the

district court did not commit reversi ble error in dismissing the

first indictment without prejudice.

B. SUFFICIENCY OF THE EVIDENCE

Appellants, Juan Trevino, Armando Trevino, and Pedro Sanchez,

challen ge the sufficiency of the evidence to sustain their

convictions for conspiracy to possess with intent to distribute and

to distribute marijuana. To establish a drug conspiracy under 21

U.S.C. §§ 841(a)(1) and 846, the Government must prove: 1) the

existence of an agreement between two or more persons to violate

federal drug laws; 2) the defendant's knowledge of the agreement;

and 3) the defendant's voluntary participation in the agreement.

United States v. Gallo

, 927 F.2d 815, 820 (5th Cir. 1991). See

also United States v. Gonzalez , 79 F.3d 413, 423 (5th Cir. 1996).

“The Government is not required to prove the existence of the

conspiracy and the agreement between the co-conspirators and the

defendant by direct evidence, but may prese nt circumstantial

ev idence, such as the co-conspirator's concerted actions, from15

which the jury can inf er that a conspiracy existed.” I d

. The

existence of the agreement, the defendant's knowledge of the

agreement, and the defendant's participation in the conspiracy may

be inferr ed from the "'development and collocation of

circumstances.'" I d

. (citing United States v. Lentz

, 823 F.2d

867, 868 (5th Cir.), cert. denied

, 484 U.S. 957, 108 S.Ct. 354, 98

L.Ed.2d 380 (1987) (quoting United States v. Vergara

, 687 F.2d 57,

61 (5th Cir. 1982)). The mere presence at the scene of the crime

or close association with co-conspirators will not alone support an

inference of conspiracy but are factors that the jury may consider

in finding conspiratorial activity. Id. (citing United States v.

Magee , 821 F.2d 234, 239 (5th Cir. 1987)).

In reviewing for sufficiency of the evidence, we must affirm

if a ra tional trier of fact could have found that the evidence

established t he essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct.

2781, 2789, 61 L.Ed.2d 560 (1979); U nited States v. Jaras

, 86 F.3d

383, 386 (5th Cir. 1996). We thus consider the evidence, all

reasonable inferences drawn therefrom, and all credibility

determinations in the light most fa vorable to the prosecution.

G lasser v. United States

, 315 U.S. 60, 80, 62 S.Ct. 457, 4 69, 86

L.Ed. 680 (1942); Jaras

, 86 F.3d at 387; United States v.

Resio-Trejo

, 45 F.3d 907, 910-11 (5th Cir. 1995). Our role does

not extend to weighing the evidence or assessing the credibility of16

witnesses. G lasser

, 315 U.S. at 80, 62 S.Ct. at 469; Jaras

, 86

F.3d at 387. The evidence need not exclude every reasonable

hypothesis of inn ocence or be wholly inconsistent with every

conclusion except that of guilt, and the jury is free to choose

among reasonable constructions of the evidence. J aras, 86 F.3d at

387; Salazar

, 66 F.3d at 728; R esio-Trejo

, 45 F.3d at 911

(quoting United States v. Bell , 678 F.2d 547, 549 (5th Cir. 1982)

(en banc), aff'd on other grounds

, 462 U.S. 356, 103 S.Ct. 2398,

76 L.Ed.2d 638 (1983)).

As for Juan Trevino, the record reflects sufficient testimony

and other evidence introduced at trial from which a jury could

infer that there was an agreement to traffic marijuana, that Juan

Trevino had knowledge of the agreement, and that J uan Trevino

voluntarily participated in the conspiracy: (1) Everado Ramirez

testified that he stored and delivered loads of marijuana from

Laredo to Dallas for Juan Trevino ; (2) Hipolito Ortiz testified

that he drove loads of marijuana for Benny Padilla from Laredo to

Dallas that Pablo DeLuna and Benny Padilla said were to be

delivered to Juan Trevino; (3) Joe Chavez testified that he made

numerous trips to Dallas escorting loads of marijuana or dr iving

loads himself that Benny Padilla told him were destined for Juan

Trevino and that the marijuana seized pursuant to the arrest of

Jose and Javier Sanchez was one of the cargoes that was intended

for Juan Trevino; (4) cash in the amount of $47,984 was seized from17

Juan Trevino on December 29, 1993 and became the subject of

Trevino’s guilty plea for currency violations; an d (5) the

appearance of Juan Trevino’s nickname in a conspirator’s address

book next to a phone number assigned to one of his residences.

By the same token, there is abundant evidence supporting

Armando Trevino’s conviction: (1) Frank Staggs testified that in

1993 Armando Trevino was the caretaker of the Staggs ranch; (2) Joe

Chavez testified that Armando Trevino s howed him how to evade

Border Patrol d etection while transporting loads of marijuana by

passing through the Staggs ranch; that Armando Trevino ga ve gate

keys and lock combinations to Chavez; and that on one occasion

Armando Trevino appeared in Hebronville, Texas and directed Chavez

to catch up with a drug cargo vehicle that he was e scorting to

Dallas; (3) Chavez also testified that Armando Trevino was paid

$35 per pound for the transit of marijuana through the ranch;

(4)Jose and Javier Sanchez were apprehended with a cargo of

marijuana on December 7, 1993 after passing through the Staggs

ranch; (5) telephone records indicated numerous calls made between

the fall of 1992 and the summer of 1994 from Benny Padilla to the

Staggs Ranch and to Armando Trevino’s cellular number; and (6)

Armando Trevino’s nickname was inscribed in Joe Chavez’s address

book beside Trevino’s cellular phone number and t he Staggs ranch

number.

The evidence introduced at trial inculpating Pedro Sanchez was

less extensive but nevertheless sufficient to require affirmance of18

his conviction. Border Patrol agents apprehended Sanchez on

October 5, 1993 as he was driving a Border Freight 18 wheeler with

282 pounds of marijuana in the trailer. Joe Chavez testified that

Pedro Sanchez assisted him and Jorge Espinoza in loading the cargo

of 282 pounds of marijuana into the trailer of the Border Freight

18 wheeler the night Sanchez was arrested.

Sanchez claims that the Government d id not adequately prove

the knowledge and voluntary participation elements of the offense.

He argues that Joe Chavez’s testimony was untruthful in general and

insufficient in particular to establish that Sanchez knowingly and

voluntary participated in loading marijuana into the Border Freight

18 wheeler.

Sanchez testified that on the night he was arrested he arrived

at the Border Freight terminal in Laredo at about midnight and that

while he was talking to Ernesto Castro, the security guard on duty,

Joe Chavez approached and asked him whether he knew anyone from

Carrizo Springs; that he responded that he did not; that that was

the extent of the conversation with Chavez; and that he had not met

Joe Chavez before. Sanchez further testified that when he got to

the terminal, the trailer was already loaded and that he did not

inspect the cargo. Sometime thereafter, Sanchez testified, Jorge

Espinoza arrived and for about 20 minutes Espinoz a inspected the

cargo inside the trailer while Sanchez remained inside the cab of

the 18 wheeler. After this inspection, Sanchez said Espinoza

entered the cab of the 18 wheeler and they immediately departed.19

Sanchez relies on the testimony of Ernestro Castro, the Border

Freight secur ity guard, who testified as a defense witness on

Sanchez’s behalf, to support his argument that the Government did

not prove that he had knowledge of the con spiracy, or that he

voluntarily participated in the conspiracy, and that the testimony

of Joe Chavez was untrustworthy.

Castro only testified, however, that he saw Sanchez and Chavez

conversing for three to five minutes but that he did not hear what

they were talking about. Castro testified that from his guard

shack where he was stationed he was relativ ely close to the 18

wheeler that Pete Sanchez drove (he described this distance to be

about the same as the length of the courtroom), and that he neither

saw anyone enter the trailer of Sanchez’s 18 wheeler nor did he

hear the trailer door being opened. He further testified, however,

that the yard was dark; that there was only one light and that he

remained in his guard shack during the time that Sanchez and Chavez

were present.

Sanchez argues that Chavez's testimony failed to demonstrate

that he had knowledge that marijuana was being transported on

October 5, 1993, or that he voluntarily participated in the

transport. Review of the record, however, clearly reveals

sufficient evidence for a reasona ble inference of Sanchez’s

knowledge and voluntary participation. Sanchez does not dispute

the facts that he met Chavez at the Border Freight terminal, that

he drove the truck away with Espinoza, or that the vehicle20

c ontained a cargo of marijuana. These facts plus Chavez’s

testimony that Sanchez helped load the marijuana were sufficient to

support a reasonable infer ence of knowing and voluntary

participation. A conviction may be based on the testimony of one

accomplice, even when uncorroborated, if the testimony is

substantial on its face. J aras

, 86 F.3d at 387; United States v.

Gibson

, 55 F.3d 173, 181 (5th Cir. 1995); U nited States v.

Gadison

, 8 F.3d 186, 190 (5th Cir. 1993). Sanchez’s real complaint

is that the testimony of his co-conspirator was inheren tly

unreliable or "incredible," and thus cannot form the basis for

establishing knowledge and voluntary participation, because Chavez

demonstrably lied on the witness stand. At trial the jury assessed

the credibility of Sanchez, Chavez, and Castro; obviously, with

respect to any material conflicts, it placed more value on Chavez’s

testimony. We may not invade the jury's province by substituting

our own credibility determinations for those of the jury. J aras

,

id ; Un ited States v. Lopez , 74 F.3d 575, 578 (5th Cir. 1996).

Chavez's testimony does not rise to the level of "incredibility"

because of the introduction of contrary testimony. See J aras

, id

.

(cit ing United States v. Casel , 995 F.2d 1299, 1304 (5th Cir.),

cert. denied

, 510 U.S. 978, 114 S.Ct. 472, 126 L.Ed.2d 424 (1993))

("To be found 'incredible' as a m atter of law, the witness'

testimony must be factually impossible.") (citing United States v.

Lindell

, 881 F.2d 1313, 1322 (5th Cir. 1989), cert. denied

, 4962 Rule 404(b) provides in part: “Evidence of other crimes, wrongs,

or acts is not admissible to prove the character of a person in

order to show action in conformity therewith.”

21 U.S. 926, 110 S.Ct. 2621, 110 L.Ed.2d 642 (1990) and United States

v. Silva , 748 F.2d 262, 266 (5th Cir. 1984))). As the jury could

reasonably credit Chavez's testimony regarding Sanchez's

involvement in the offense notwithstanding Sanchez’s and Castro’s

testimony, we find that sufficient evidence was adduced at trial to

support the jury's finding that Sanchez was guilty of the crime

charged.

C. EXTRINSIC EVIDENCE

DeLuna asserts that the district court erred in admitting into

evidence his March 1994 arrest in Louisiana and the corresponding

seizure of 54 pounds of marijuana. DeLuna contends that the

evidence was extrinsic and its admission violated Federal Rule of

Evidence 404(b). 2

DeLuna’s contention lacks mer it. “An act is not extrinsic,

and Rule 404(b) is not implicated, where the evidence of that act

and the evidence of the crime cha rged are inextricably

intertwined.” U

nited States v. Garcia

, 27 F.3d 1009, 1014 (5th

Cir.), cert. denied

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

Torres , 685 F.2d 921, 924 (5th Cir. 1982)).

The evidence of DeLun a’s participation in the transit of a

bale of marijuana in Louisiana in March of 1994 was not extrinsic

evidence because it was inextricably intertwined with the evidence22

of the charged criminal conspiracy going on at that time and was

relevant to DeLuna’s knowledge and voluntary participation in the

conspiracy. S ee Garcia, id

. Under all of the circumstances of

record, it could reasonably be inferred that the 54-pound bale of

marijuana seized was part of a larger load of marijuana that was

transported from Laredo to Dallas. DeLuna does not contest the

evidence indicating that he assumed a central role throughout the

c harged conspiracy by driving, storing, loading, and delivering

loads of marijuana an d instructing others in connection with the

conspiracy. In fact, Joe Chavez indicated that DeLuna continued to

actively involve himself in the charged conspiracy by storing 200

pounds of marijuana at his house shortly preceding DeLuna’s

Louisiana arrest in March of 1994. Under the circumstances, a

reasonable inference may be drawn that DeLuna’s involvement in

transportation of marijuana in March 1994 was part of the ongoing

charged conspiracy. Prior to this DeLuna had been involved in

numerous shipments of marijuana from Laredo to Dallas. DeLuna was

arrested and the marijuana was seized 300 miles from Dallas on

Interstate 20, the primary east-west artery serving that city. The

driver of the vehicle that DeLuna occupied was identified at trial

by the Louisiana State Trooper as Selso Pena. Juan Barraza linked

Selso Pena to the conspiracy during Barraza’s testimony describing

his own extensive involvement in the charged conspiracy. Barraza

testified that Pena assisted him and Pablo DeLuna in searching for23

marijuana in a field near Laredo, Texas in late January 1994. The

method employed in transp orting the drugs in the March, 1994

episode was consistent with the manner used repeatedly during the

charged conspiracy, i.e.

, two vehicles were used, with one carrying

the drugs and the other serving as an escort or decoy. Louisiana

State Trooper Stephens testified that the vehicle in which DeLuna

was an occupant, the “escort” vehicle, was being operated in a

strange manner. He testified that before he stopped it, the

vehicle’s speed was erratic and it was swerving all over the road.

Considering all of these factors, we conclude that the evidence of

DeLuna’s acts in March, 1994 were not extrinsic, and Rule 404(b) is

not implicated, because that evidence and the other evidence of the

crime charged are so simila r and inextricably intertwined as to

form a part of the same ongoing conspiracy.

D. PROSECUTORIAL MISCONDUCT

Armando Trevino contends that the trial court committed plain

error in allowing the government to comment on his presumption of

innocence, to argue that it had secret knowledge of his guilt, to

argue that he victimized the jury by putting them through a twoweek trial, and to comment on his failure to testify. Juan Trevino

contends that the prosecutor improperly argued to the jury that the

attorney for a key defense witness did not believe the witness’s

statement that Juan Trevino was not involved in the conspiracy.

Armando Trevino’s contention is manifestly without merit. He24

asserts that the prosecutor’s statement at closing argument that

“we’re going to spend two years of investigation and two weeks of

trial to get these guys” constitutes plain error. A prosecutor’s

remarks to the jury constitute reversible error only when they are

so improper so as to effect the appellants’ substantial rights.

United States v. Lowenberg

, 853 F.2d 295, 301 (5th Cir. 1988). In

determining whether improper remarks affect a defendant's

substantial rights, the court should consider: (1) the magnitude

of the prejudicial effect of the statements; (2) the efficacy of

any cautionary instruction; and (3) the strength of the evidence

of the defendant's guilt. U nited States v. McPhee

, 731 F.2d 1150,

1152 (5th Cir. 1984). "A conviction should not be set aside if

the prosecutor's conduct . . . did not in fact contribute to the

guilty verdict and was, therefore, legally harmless." United

States v. Beckett

, 706 F.2d 519, 520 (5th Cir. 1983). S ee also

United States v. Rodriguez

, 43 F.3d 117, 124 (5th Cir.), cert.

denied

, 115 S.Ct. 2260 (1995) (“To warrant reversal of a

conviction, prosecutorial misconduct must be so pronounced and

persistent that it casts serious doubts upon the correctness of the

jury’s verdict.”)(citation omitted). Moreover, “the closing

argument must be analyzed in the context of the entire trial to

determine whether it affected substantial rights of the accused.”

Rodriguez

, id. (citing United States v. Young

, 470 U.S. 1, 11, 105

S.Ct. 1038, 1044, 84 L.Ed.2d 1 (1985)).25

Applying the above precepts to Armando Trevino’s contention,

w e find that the prosecutor’s remarks clearly do not rise to a

level that requires reversal. Abundant evidence was introduced at

trial demonstrating Armando Trevino’s role as an active participant

in an extensive drug conspiracy. Further, the prosecutor’s remarks

were not exceedingly prejudicial. Significantly more egregious

remarks have not formed the basis for reversal by this court. S ee

e.g., United States v. Frascone

, 747 F.2d 953, 957-58 (5th Cir.

1984)(where the prosecutor’s remarks at closing “[l]et me point out

something to you, Ladies and Gentleman. I take an oath to see that

jus tice is done. They take an oath to represent their client

zealously” did not form the basis for reversal).

Similarly , Juan Trevino’s argument is not persuasive. His

assignment of error is based on remarks made by the prosecutor

during her closing argument concern ing a letter from defense

witness Fernando Quiroz’s attorney to Quiroz that was introduced to

impeach Quiroz’s testimony that he had been offered a four-year

plea agreement for his cooperation. In admitting the letter into

evidence, the court re quired that the following sentence be

deleted: “Remember that at the last interview we had with

assistant U.S. attorney Simms [sic] that interview ended with you

lying to her about her questions regarding [Juan Trevino].” The

balance of the letter suggested that Quiroz would greatly benefit

by cooperating with the Government and that it was possible that26

his sentence could be reduced to four and one-half to six years.

The prosecutor’s remarks made in closing argument in reference to

the letter that Juan Trevino asserts constituted reversible error

were as follows:

[T]here’s a letter in evidence that I want you folks to read

from his lawyer trying to convince him to tell the truth. And

you know what the sticking point is? I may not be quoting

this verbatim, I don’t see that letter right now, he wants it

in writing that I’ll help him out and that I’ll get him out of

jail before he ha s to testify. That’s his problem. That’s

what Fernando Quiroz wants and we wouldn ’t agree to it.

That’s what he’s upset about. It doesn’t have anything to do

with loyalty to his buddies and just coming in here and

telling the truth. He could not get what he wanted and he’s

lied. And his attorney is trying to talk to him about do

something here [sic]. You are in trouble. Help yourself out.

Tell them the truth. Don’t insist on this conspiracy stuff

....

It is difficult to infer anything prejudicial or harmful to Juan

Trevino’s case from these remarks. In the context of the above

remarks Juan Trevino ’s name was not mentioned. The jury was not

shown or told of the deleted portion of the letter written by

Quiroz’s attorney. Consequently, we are not persuaded by Trevino’s

contention that the prosecutor’s remarks “effectively” communicated

to the jury that Quiroz’s attorney believed that Quiroz had lied to

the U.S. attorney about Juan Trevino. Moreover, as with respect to

Arm ando Trevino, copious evidence was introduced at trial

supporting Juan Trevino’s conviction.3 The term " Allen charge" refers to Allen v. Unit ed States , 164

U.S. 492 (1896). It is used in reference to supplemental

instructions urging a jury to forego their differences and come to

a unanimous decision.

27 E. THE ALLEN CHARGE

Armando Trevino and Pedro Sanchez con tend that the district

court erred in giving an “Allen” charge to the jury. 3 This

contention is meritless. The standard of review is abuse of

discretion. U

nited States v. Lindell

, 881 F.2d 1313, 1320-21 (5th

Cir. 1989); United States v. Nichols

, 750 F.2d 1260, 1266 (5th Cir.

1985). We examine the Allen charge for compliance with two

requirements: "(1) the semantic deviation from approved 'Allen'

charges cannot be so prejudicial to the defendant as to require

rever sal, and (2) the circumstances surrounding the giving of an

approved 'Allen' charge must not be coercive." L indell

, id.

(citing United States v. Bottom

, 638 F.2d 781, 787 (5th Cir. 1981)

(citing United States v. Bailey

, 468 F.2d 652 (5 th Cir. 1972),

aff'd en banc , 480 F.2d 518 (5th Cir.1973))).

The charge used by the trial court meets the first criteria;

it substantially comports with the pattern modified Allen charge

language repeatedly approved by this Court. See, e.g.

, United

States v. Nguyen , 28 F.3d 477, 485 (5th Cir. 1994); United States

v. Pace

, 10 F.3d 1106, 1122 (5th Cir . 1993); U nited States v.

Lindell

, 881 F.2d 1313, 1321 (5th Cir. 1989); United States v.

Kelly

, 783 F.2d 575, 576-77 (5th Cir.), cert. denied

, 479 U.S. 88928

(1986).

In evaluating the totality of the cir cumstances surrounding

the use of the charge, we proceed on a case by case basis.

Lindell

, 881 F.2d at 1321. In this case, the jury retired to

deliberate on a Thursday at 4:00 p.m. On the following day at 2:05

p.m. the jury sent a note stating that they were deadlocked. Over

t he objections of defense counsel, the modified Allen charge was

given to the jury. The jury returned its verdict finding all five

of the appellants guilty on the conspiracy count the following

Monday at 8:54 a.m. In the context of this case, we perceive no

e vidence of coercion to justify reversal. The district court

informed the jury that each juror should remain true to his or her

own conscience, that they could take as much time as they needed to

reach a verdict, and expressed no opinion a s to what kind of

verdict the court preferred. Moreover, contrary to appellants’

assertion, the fact that a verdict is rendered relatively soon

after an A llen charge is given is not necessarily evidence of a

coercive atmosphere. S ee United States v. Bottom

, 638 F.2d 781,

788 (5th Cir. 1981)(three hour time span between Allen charge and

verdict was not unduly short).

F. SENTENCING

Juan Trevino, Arm ando Trevino, Pedro Sanchez, and Jorge

Espinoza all assign po ints of error involving their sentencing.

Because we find no merit in Juan Trevino’s, Armando Trevino’s, and29

Pedro Sanchez’s sentencing arguments, w e reject them without

further comment.

With regard to Jorge Espinoza, the district court attributed

2100 pounds of marijuana in sentencing him. A district court’s

findings about the quantity of drugs attributed to a defendant are

factual findings subject to a clearly erroneous standard of review.

United States v. Rivera , 898 F.2d 442, 445 (5th Cir. 1990).

At Espinoza’s sentencing, the district court based its 2100

pound finding solely on DEA agent Routh’s re collection of trial

testimony that Espinoza transported 7 shipments of marijuana which

averaged 300 pounds. One of the seven loads counted against

Espinoza was the shipment of October 5, 1993, which resulted in the

arrest of Espinoza and Pedro Sanchez and the seizure of 282 pounds

of marijuana. Espinoza does not contest the estimated per load

weight of 300 pounds used to calculate the amount of drugs

attributable to him. He does assert, however, that in addition to

the load seized pursuant to his arrest on Octob er 5, 1993, the

record does not support that he participated in six other shipments

of drugs. Espinoza specifically attacks Routh’s recollection of

the trial testimony of Joe Chavez, J uan Barraza, and Hipolito

Ortiz.

As both Espinoza and the Government concede, the testimony of

Joe Chavez, Juan Barraza, and Hipolito Ortiz constitutes all of the

record evidence on this issue and is thus determinative of the30

quantity of drugs attributable to Espinoza. The record reveals

that Ortiz testified that, to his knowledge, there were only five

marijuana shipments involving Bo rder Freight trucks, that Ortiz

identified Espinoza as the driver on only two of those shipments,

and that on the three othe r trips the driver was Fred Tejeda.

Chavez knew of only two deliveries that Espinoza made using Border

Freight trucks. Juan Barraza testified that he knew of only one

Border Freight trip where Espinoza was involved. No evidence was

introduced as to whether Espinoza knew of or was acquainted with

Fred Tejeda, the other Border Freight truck driver, in any way.

Despite our defer ence to the district court, we agree with

Espinoza that Routh’s recollection of the evidence at Espinoza’s

sentencing hearing was inaccurate and the district court in relying

solely on Routh’s testimony clearly erred in attributing 2100

pounds of marijuana to Espinoza. The record contains only five

references to Espinoza as a transporter of drugs; the two occasions

each testified to by Ortiz and Chavez and the one time testified to

by Barraza. One of the incidents Chavez referred to was the

October 5 arrest and seizure of 282 pounds of marijuana.

Therefore, at maximum, the record supports the attribution of 1482

pounds of marijuana to Espinoza. Accordingly, the sentence must be

vacated and Espinoza’s case remanded for resentencing.

CONCLUSION

For the reasons assigned, each defendant-appellant’s

conviction is AFFIRMED, and each of their sente nces is AFFIRMED,31

except for Espinoza’s sentence, which is VACATED, and his case is

remanded for purposes of resentencing.