United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-3037

___________

United States of America, *

*

Plaintiff - Appellee, *

* 

v. * 

* 

Jose Alberto Mora-Higuera, also known *

as Mario Ruiz-Armenta, *

*

Defendant - Appellant. *

___________

Appeals from the United States

No. 00-3254 District Court for the

__________ District of Minnesota.

United States of America, *

*

Plaintiff - Appellee, *

*

v. *

*

Antonio Botello, also known as *

Antonio Benitez Botello, *

*

Defendant - Appellant. *

___________
1

 The Honorable Richard H. Kyle, United States District Judge for the District

of Minnesota, presided over the trial of Botello and the sentencing of Botello and

Mora-Higuera. The Honorable Donovan W. Frank, United States District Judge for

the District of Minnesota, ruled on Botello’s pretrial motions.

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Submitted: May 14, 2001

Filed: October 11, 2001

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Before LOKEN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

___________

JOHN R. GIBSON, Circuit Judge.

Antonio Botello and Jose Mora-Higuera were indicted on multiple counts,

including conspiracy to distribute methamphetamine. 21 U.S.C. §§ 841(a)(1), 846

(1994). Botello went to trial and was convicted on the conspiracy charge. He now

appeals his conviction, arguing that he was the subject of an illegal vehicle stop, that

there was insufficient evidence to convict him, that the issue of drug quantity should

have been submitted to the jury, and that the district court1

 erred when it allowed the

government to comment on his ability to speak English and use leading questions in

examining its own witness. Mora-Higuera pled guilty and now appeals his sentence,

arguing that the district court erred in counting his involvement in the distribution of

twenty pounds of methamphetamine and cocaine as relevant conduct in determining

his sentence. See U.S. Sentencing Guidelines Manual § 1B1.3. We affirm in both

cases.

On December 20, 1999, law enforcement officers arranged for an informant to

purchase one pound of methamphetamine from Robert Alicea. The transaction was

to take place at the Oasis Market in Inver Grove Heights, Minnesota, where Alicea

worked. The informant was en route to the Inver Grove Heights location,
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accompanied by Special Agent Billings, when he received a phone call from MoraHiguera, a known associate of Alicea. Mora-Higuera advised the informant to go to

the Oasis Market in South St. Paul instead. Before arriving at the South St. Paul

Oasis Market the informant received another call from Mora-Higuera, telling the

informant to hurry because Mora-Higuera had to leave.

A police surveillance team at the South St. Paul Oasis Market observed MoraHiguera and Botello drive up to the store, enter it, and leave a few minutes later, all

before the informant and Billings arrived at the scene. The informant then arrived,

went inside, and gave the store manager, Jamie Joseph (who also happened to be

Mora-Higuera’s girlfriend), $4,000 in police drug buy money in exchange for one

pound of methamphetamine. Shortly after the informant left the area, Mora-Higuera

and Botello returned in the same vehicle in which they had earlier departed. They

went inside, were joined by a third individual, and drove away. Their car was stopped

shortly thereafter by officers from the South St. Paul Police Department. As a result

of the stop the police identified the driver as Botello, and one of the passengers as

Mora-Higuera. All three of the car’s occupants provided the same residence address,

372 Lawson, St. Paul, Minnesota. The police then followed the car to the residence,

where all three men went inside. The residence ultimately turned out to be owned by

Botello.

On December 28, 1999, a second controlled buy was attempted. The informant

met Alicea at the Oasis Market in Inver Grove. Botello and Mora-Higuera then

arrived in Botello’s car. Alicea got in the car with them and told the informant to

follow. Less than a mile from the store, Alicea got out of the car and collected $2,000

in buy money from the informant. The informant drove off and Alicea, Botello, and

Mora-Higuera were arrested. A search of the car and passengers produced $5,000

cash: $3,000 in the glove compartment and $2,000 on Mora-Higuera. A search of

Botello’s residence produced $14,150 in cash, $2,450 of which was police buy

money. The money was found in various places throughout Botello’s residence:
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$2,000 in a check box, $1,100 in a coat, $10,900 in a pair of his shoes ($2,300 of

which was buy money), and $150 in a child’s shirt (also buy money).

Botello’s motion to suppress evidence obtained as a result of the vehicle stop

was denied, and a jury found him guilty of conspiracy to distribute methamphetamine.

Mora-Higuera pled guilty to multiple counts. The district court denied his request for

a downward departure, and sentenced him to 292 months in prison.

I.

Botello appeals the district court’s denial of his motion to suppress the

evidence obtained from the vehicle stop of December 20th. In particular he argues

that the stop violated the Fourth Amendment and that the subsequent use of his name

and address, obtained as a result of the stop, in obtaining a warrant to search his

residence was improper. We will disturb the district court’s findings of fact only if

we find them to be clearly erroneous. United States v. McMurray, 34 F.3d 1405,

1409 (8th Cir. 1994). We review its legal conclusions de novo. Id.

Under Terry v. Ohio, 392 U.S. 1 (1968), an investigative stop of a vehicle

“does not violate the Fourth Amendment if the police have reasonable suspicion that

the vehicle or its occupants are involved in criminal activity.” United States v. Bell,

183 F.3d 746, 749 (8th Cir. 1999). There is no requirement that there be a traffic

violation. See Alabama v. White, 496 U.S. 325 (1990) (upholding stop of vehicle in

absence of traffic violation). “In deciding whether to conduct a Terry stop, an officer

may rely on information provided by other officers as well as any information known

to the team of officers conducting the investigation.” United States v. Thomas, 249

F.3d 725, 728 (8th Cir. 2001).

“In evaluating the validity of a stop . . . we must consider ‘the totality of

circumstances--the whole picture.’” United States v. Sokolow, 490 U.S. 1, 8 (1989)
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(quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). Here, the officers knew

that Mora-Higuera was associated with Alicea, had called the informant regarding the

change in location of the drug deal, and was present at the new site immediately

before and after the buy took place. It was therefore reasonable for them to suspect

Mora-Higuera of criminal activity and thus legal for them to stop the vehicle in which

he left the transaction site.

Once the vehicle was stopped, the scope of the subsequent intrusion was

minimal. SeeTerry, 392 U.S at 20 (pointing out that reasonableness inquiry includes

examining both the justification for the stop and the scope of the subsequent

intrusion). The police simply asked the car’s occupants for identification. See United

States v. Quarles, 955 F.2d 498, 501 (8th Cir. 1992) (treating identification of driver

as part of justified vehicle stop); cf. United States v. Abokhai, 829 F.2d 666, 670 (8th

Cir. 1987) (concluding that investigative stop of pedestrian was minimally intrusive

where “the detention and inquiry were brief and did not involve questions beyond a

request for identification and an explanation of their presence”). The district court

did not err in denying Botello’s motion to suppress.

II.

Botello argues that there was insufficient evidence to convict him. Our

standard of review is familiar:

We review the sufficiency of the evidence to sustain a conviction de

novo. We must view the evidence in the light most favorable to the

government, resolve conflicts in the government’s favor, and accept all

reasonable inferences that support the verdict. We uphold a conviction

if substantial evidence supports it. Substantial evidence is that which

suffices to convince a reasonable jury of a defendant’s guilt beyond a

reasonable doubt, not that which rules out all reasonable hypotheses of

innocence.
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United States v. Grimaldo, 214 F.3d 967, 975 (8th Cir. 2000) (citations omitted), cert.

denied, 121 S. Ct. 330 (2000); 121 S. Ct. 784 (2001); see Glasser v. United States,

315 U.S. 60, 80 (1942).

“To convict a defendant of conspiracy, the government must prove beyond a

reasonable doubt that there was an agreement to achieve some illegal purpose, that

the defendant knew of the agreement, and that the defendant knowingly became a part

of the conspiracy.” United States v. Ivey, 915 F.2d 380, 383-84 (8th Cir. 1990). “A

conspiracy may be inferred from circumstantial evidence,” Grimaldo, 214 F.3d at

975, and “[o]nce a conspiracy has been established, only slight evidence is needed to

link a defendant to the conspiracy,” United States v. Pena, 67 F.3d 153, 155 (8th Cir.

1995).

Botello argues that there was insufficient evidence to conclude beyond a

reasonable doubt that he knowingly participated in any conspiracy to distribute

methamphetamine. We conclude that the evidence was more than sufficient. First,

Botello drove Mora-Higuera to and from the drug buy of December 20th and was

present at the second controlled buy on December 28th. Second, two of his alleged

co-conspirators testified that he was a knowing participant in the drug ring, allowing

his house to be used as part of the conspiracy and transporting money into Mexico.

Third, drug buy money was found in Botello’s residence, the majority in the soles of

shoes that belonged to him. Cf. United States v. Barrett, 74 F.3d 167, 168 (8th Cir.

1996) (holding that testimony of three alleged co-conspirators was enough to convict

defendant of conspiracy even where there was contradictory testimony and no

physical evidence).
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III.

Botello argues that the issue of drug quantity should have been submitted to

the jury rather than decided by the district court. Botello did not raise this issue

below, and thus we review only for plain errror. United States v. Butler, 238 F.3d

1001, 1005 (8th Cir. 2001).

The Supreme Court has recently held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury.” Apprendi v. New Jersey, 530 U.S.

466, 490 (2000). Because Botello’s sentence did not exceed the statutory maximum

for conspiracy to distribute methamphetamine independent of drug quantity, see 21

U.S.C. § 841(b)(1)(C) (1994 & Supp. V 1999), there is no error. United States v.

Ortiz, 236 F.3d 420, 422 (8th Cir. 2001). As long as the final sentence is less than the

maximum allowed by the jury verdict, neither the impact of the district court’s drug

quantity determination on application of the Sentencing Guidelines to defendant nor

its impact on mandatory minimums under the statute implicates Apprendi. United

States v. Lewis, 236 F.3d 948, 950 (8th Cir. 2001) (sentencing guidelines); United

States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir. 2000), cert. denied, 121

S. Ct. 600 (2000) (mandatory minimums).

The fact that drug quantity was specifically set out in the indictment, and that

the section of the statute referred to in the indictment, 21 U.S.C. § 841(b)(1)(A) (1994

& Supp. V 1999), specifically mentions drug quantity does not change the result.

In order to prevail in a claim of fatal variance between the proof offered

at trial and the wording of the indictment, [Botello] must establish not

only variance, but also that the variance affected his substantial rights.

The variance must go to the heart of the indictment with the proof

offered at trial failing to establish one of the crucial elements necessary
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for prosecution under sections of the United States Code charged in the

indictment.

United States v. Anderson, 618 F.2d 487, 490 (8th Cir. 1980) (citations omitted).

Since the sentence imposed here is less than the statutory maximum allowed by the

jury’s verdict, drug quantity under § 841(b)(1)(A) remains a sentencing factor that

may be determined by the district court, not an element that must be proved to the

jury. Aguayo-Delgado, 220 F.3d at 933. Thus, there is no fatal variance.

IV.

Botello challenges the prosecution’s conduct at trial. In his closing argument

the prosecutor stated that “when Mr. Botello is driving drug dealers around on

December 20th and again on December 28th, there is nothing to prevent him from

knowing what’s going on. He speaks English.” Botello argues these remarks about

his ability to speak English violated his due process and equal protection rights by

effectively penalizing him for using an interpreter at trial. Since Botello did not

object at trial, we review for plain error. “Under plain error, the question for

determination is whether the argument was so prejudicial as to have affected

substantial rights resulting in a miscarriage of justice.” United States v. Segal, 649

F.2d 599, 604 n.10 (8th Cir. 1981) (internal quotation marks omitted).

Botello used an interpreter at trial and was entitled to do so. See United States

v. Gallegos-Torres, 841 F.2d 240, 242 (8th Cir. 1988) (“A defendant who has

difficulty with the language has a right to an interpreter.”). However, one of the

issues before the jury was whether Botello knowingly participated in the conspiracy.

It was therefore proper for the prosecution to argue that Botello understood the drugrelated conversations he may have been privy to between Mora-Higuera and the

informant while he was driving Mora-Higuera around. Cf. Portillo v. United States,

609 A.2d 687, 691 (D.C. 1992) (“Given appellant’s denial that he understood
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English, the question whether he in fact understood and spoke enough English to

carry on the conversation which the government asserted he had had with Officer

Thomas was an issue in the case.”).

V.

At trial the district court granted the government’s request for permission to

cross-examine one of its own witnesses, Alejandro Mora. Botello argues this was

error. Since Botello did not object at trial, we review only for plain error. United

States v. Campa-Fabela, 210 F.3d 837, 840 (8th Cir. 2000).

While leading questions are generally not permitted during direct examination,

they “may be used where ‘necessary to develop the witness’ testimony.’” United

States v. Stelivan, 125 F.3d 603, 608 (8th Cir. 1997) (quoting Fed. R. Evid. 611(c)).

“When a party calls a hostile witness, an adverse party, or a witness identified with

an adverse party, interrogation may be by leading questions.” Fed. R. Evid. 611(c).

“The trial court is in the best position to evaluate the necessity of leading questions

during direct examination.” Stelivan, 125 F.3d at 608.

Here, the prosecution requested permission to use leading questions after its

witness, Alejandro Mora, became evasive and unclear about the types of drugs

involved in the conspiracy. An examination of the transcript reveals that after the

government received permission to cross, it asked at most eleven leading questions,

most of them foundational. Alejandro Mora was a relative of Botello, testifying as

part of a plea agreement. The district court judge had heard Alejandro Mora’s guilty

plea testimony just three days earlier. Cf. Stelivan, 125 F.3d at 608 (“The district

court judge had presided over Stelivan’s guilty plea proceeding and was therefore

familiar with his manner of testifying.”). We conclude there was no plain error in the

district court’s decision to permit leading questions for a brief period.
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VI.

Jose Mora-Higuera raises one argument on appeal. Mora-Higuera testified

during his guilty plea hearing that he and his co-conspirators distributed

approximately twenty pounds of methamphetamine and cocaine during the life of the

conspiracy. The pre-sentencing report incorporated this amount, triggering a base

offense level of thirty-six. Mora-Higuera then filed a position pleading requesting

a downward departure, in part because his estimate of twenty pounds had been “little

more than a rough estimate.” At the sentencing hearing he specifically stated he had

no objections to the pre-sentence report, instead repeating his request for a downward

departure. The district court acknowledged its authority to depart downwardly, but

declined to do so. Mora-Higuera now challenges the inclusion of the twenty pounds

as relevant conduct under U.S. Sentencing Guidelines Manual § 1B1.3.

Because the district court was aware of its authority to depart downwardly, its

decision not to depart is unappealable. United States v. Hawkins, 102 F.3d 973, 976

(8th Cir. 1996). Furthermore, because Mora-Higuera did not object to the inclusion

of the twenty pounds in the pre-sentencing report, and in fact affirmatively declined

to do so, he waived the issue. United States v. Elliott, 89 F.3d 1360, 1367 (8th Cir.

1996). Were we to reach the issue, we would not conclude that the inclusion of the

twenty pounds was clearly erroneous. The twenty pound amount was based on the

testimony of Mora-Higuera himself. Cf. United States v. Shonubi, 103 F.3d 1085,

1089 (2d Cir. 1997) (pointing out that even under the Second Circuit’s more rigorous

“specific evidence” standard, a defendant’s own admission is sufficient proof of drug

quantity for the purposes of sentencing). This admission is sufficient, particularly in

light of the fact that the government produced evidence in the trial of Mora-Higuera’s

co-conspirator, presided over by the same judge, that the conspiracy actually involved

over 100 pounds.
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VII.

For the foregoing reasons, we affirm Botello’s conviction and Mora-Higuera’s

sentence.

A true copy.

Attest:

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