1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________________

No. 90-2660

______________________________

UNITED STATES of AMERICA

Plaintiff-Appellee,

v.

MARIO V. MENESSES, Jr., DANNY PINEDA BARRETO and HAROLD BRATOVICH

Defendants-Appellants.

_________________________________________________________ Appeals from the United States District Court

for the Southern District of Texas

_________________________________________________________ (May 22, 1992)

Before POLITZ, Chief Judge, GARZA, Reynaldo G., and WIENER, Circuit

Judges.

GARZA, Reynaldo G., Circuit Judge:

PROCEDURAL HISTORY

On November 29, 1989, an indictment was filed in the United

States District Court for the Southern District of Texas charging

six individuals with violations of federal narcotics laws. The

indictment alleged that Soto Ange l Andrade, a/k/a Julian Rivera1 Danny Barreto is Frank Barreto's wife.

2 ("Andrade"), Mario Menesses, Harold Bratovich, Carlos Alberto

Alegria-Moreno ("Alegria"), Danny Pineda Barreto ("Barreto"), and

F rank David Barreto ("Frank Barreto"), 1 conspired with intent to

distribute in excess of five kilograms of cocaine (Count One) and

aided and abetted one another in the possession with intent to

distribute in excess of five kilograms of cocaine (Count Two), in

violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B), and 846. The Appellants pleaded not guilty to all

charges. Trial by jury commenced on April 24, 1990 and concluded

two days later with verdicts of guilty on all counts.

On July 13, 1 990, the district court imposed sentence.

Barreto was remanded to the custody of the Attorney General for

concurrent 235 month terms of confinement which were to be followed

by concurrent five year terms of supervised release. Bratovich was

sen tenced to concurrent 200 month terms of confinement and

concurrent five year terms of supervised release. The district

court sentenced Menesses to serve concurrent 420 month terms of

confinement to be followed by five year terms of supervised

release. All were ordered to pay the mandatory special assessment

of $100.

These appeals followed.

FACTS

We review the facts in the light most favo rable to the jury

verdict. G lasser v. Unit ed States , 315 U.S. 60, 80 (1942). The3

indictment returned against Appellants was the end result of a

sting operation in which agents of the Federal Bureau of

Investigation ("FBI") attempted to infiltrate and target Colombian

suppliers of large quantities of coca ine. Specifically, Ishmael

Beltran was viewed as being in charge of a major Colombian cocaine

exporting organization. FBI agent Enrique Mercadal testified that

a "cooperating witness," Raphael Gonzales, introduced h im as a

cocaine smuggler to Beltran via telephone sometime in June, 1989.

They led Beltran to believe that Mercadal and Gonzales were

partners.

On August 1, 1989, Mercadal received a telephone call from codefendant Alegria who stated that he was calling on behalf of

Beltran in regards to a 500 kilo shipment. Mercadal, however,

failed to deliver the cocaine to Alegria; instead telling him that

his smuggling ope ration had encountered difficulties. Although

Alegria n ever received the cocaine, he continued to contact

Mercadal. Beltran made arrangements for Mercadal's organization to

transport a load of cocaine from Colombia to Houston. Beltran and

Alegria were un der the impression that Mercadal's organization

handled the cocaine from the moment that it left Colo mbia. In

fact, the FBI used a Mexican smuggling ring that was unaware that

this was a sting operation. The Mexican smugglers were to bring

the cocaine to El Paso, where Mercadal would take control of it.

The smugglers, however, were late in arriving.

Mercadal stalled Alegria until October 3, 1989, when he

received a telephone call from an individual who identified himself4

as "Julian Rivera," later identified as Andrade. Andrade related

that he was Beltran's personal envoy and that he had been

dispatched to Miami to look into the delays affecting the shipment

fromEl Paso. Mercadal told him that the watchword of his

organization was caution and that if he wanted the job done right,

Beltran would have to be patient. Alegria and Andrade telephoned

Mercadal daily until October 17, 1989, when a conference was called

at a Miami restaurant where Andrade told Mercadal that if the

delivery did not occur shortly, "blood would flow."

Finally, Mercadal heard that delivery in El Paso was imminent.

He informed Andrade and reserved a room for him at a Ramada Inn in

Houston. Mercadal then learned that there would be another delay.

He telephoned Andrade, who had already left and had returned to

Miami. Mercadal then called Andrade in Miami. Andrade said that

he had spotted surveillance in Houston and had le ft so as not to

jeopardize the operation.

Finally, the shipment reached El Paso. Mercadal led Andrade

and Alegria to believe that Mercadal was transporting it overland

to Houston. Actually, the FBI flew it there. Andrade was staying

at the Grand Hotel, and Mercadal telephoned him on November 15th to

tell him that the delivery would take place the next day. That

night, at dinner, Mercadal told Andrade that he would need $250,000

to pay his people. Despite the fact that the cocaine had a street

value of $3,000,000, Andrade hesitated and said that only Beltran

could authorize such a disbursement.

The following morning, Mercadal, Andrade and Alegria spoke via5

telephone. They argued further about the money. Andrade said he

was there solely to receive the merchandise and that Alegria was

r esponsible for paying for the transportation. Mercadal pressed

for an answer on how soon he would be paid. Andrade said that he

would have to examine the cocaine and that would take at least an

hour, and that Alegria would pay Mercadal shortly thereafter.

At 11:55 a.m., Mercadal called Andrade and told him that the

delivery would take place in one hour at the Two Pesos Restaurant.

Meanwhile, FBI agents were loading the cocaine into a rented PENSKE

truck. Between 1:30 and 2:00 p.m., Andrade entered the restaurant

where Mercadal and his FBI associate Mark Suarez were waiting.

Menesses, who was previou s ly unknown to Mercadal, accompanied

Andrade. After engaging in shop talk regarding the pitfalls of

transporting cocaine across the border, Mercadal handed the keys to

the PENSKE to Andrade.

Mercadal made one more phone call to Alegria, asking when he

would be paid. Alegria answered that once the shipment was

verified, he would call Mercadal.

Meanwhile, FBI agent Dale Rivett had been circling the area in

a Cessna aircraft. He had observed two men exit the Two Pesos and

get into a white compact pickup truck. The truck drove across the

street to where the PENSKE was parked. The truck drove past the

PENSKE and ci rcled the parking lot. The truck then left the

parking lot and drove to a nearby Circle K, where one man exited

the truck, returned to the PENSKE, walked around it, and returned

to the truck. Another FBI observer identified this man as Andrade.6

A Mustang automobile then pulled up behind the truck and the man

who had just surveyed the PENSKE walked to the passenger side and

a ppeared to speak with someone in the car. Both Andrade and

Menesses then walked back to the PENSKE and drove off in it,

followed by the Mustang. The Mustang continued to follow the

PENSKE until it came to a subdivision where the PENSKE turned. The

Mustang continued past the subdivision.

About 2:39 p.m., the PENSKE came to a stop at a house which

FBI agent Douglas John Hanson identified as 9015 Brookwolf as he

walked past it. Menesses and Andrade drove off in the PENSKE an

hour and twenty minutes later and stopped at a transmission shop

off Highway 290 where they unloaded the cocaine. The PENSKE then

drove off to a small shopping center where the FBI arrested Andrade

and Menesses.

FBI agents had continued to observe the Mustang, which drove

over to 1819 Bingle. Special Agent Phil Armand observed Bratovich

exit on the driver's side and Alegria exit on the passenger's side.

The two walked over to a transmission s hop on the property. A

Nissan automobile pulled up some two hours later. Alegria came

from the shop and got in the Nissan. The Nissan proceeded on

Bingle to where it became Voss and turned onto Wes theimer. The

Nissan driver suddenly moved from the middle lane into the left

lane, made a sharp U-turn, and started back toward Voss.

Travelling quickly through heavy traffic, the Nissan cut past a bus

on Westheimer and turned sharply onto Voss.

On Voss, the Nissan became entangled in traffic and the FBI7

chase vehicle, which had by now flashed warning lights, o vertook

the suspect vehicle and pulle d it over. The agents arrested its

passenger, Alegria, and the driver, Ettore Bratovich, Harold

Bratovich's brother. A pager was found on the passenger

floorboard. The number to the pager corresponded to the one used

by Mercadal to contact Alegria.

The agents then returned to the Bingle property and arrested

Harold Bratovich, who did not resist arrest. The agents found no

drugs, weapons, beepers or drug paraphernalia on Bratovich or,

apparently, at the Bingle locatio n. The agents then secured

warrants for a search of the Brookwolf premises, which proved more

successful. The house was the residence of Frank and Danny

Barreto. Frank owned the aforementioned transmission shop, Texas

Transmission, where the agent s had located the specially

constructed pallet in which the cocaine had been secreted on board

the PENSKE. The agents found the cocaine, which had been removed

by the time the agents found the pallet, at the Barreto residence.

Also at the B arreto residence, the agents found laboratory

equipment of the type used in making "crack" cocaine, weapons and

large sums of cash. The agents arrested the Barretos.

The FBI had summoned Special Agent James R. Garcia to its

Houston office to interview Danny Barreto and Menesses in Spanish.

Garcia informed Barreto of her rights according to M iranda v.

A rizona

, 384 U.S. 436 (1964), using a special form. She was

apparently distraught and refused to sign it and thus indicate in

written form that she understood her rights. She nonetheless2 The FBI agents had secreted 163 kilograms of cocaine in

the PENSKE.

8 indicated that she did understand them and agreed to talk to

Garcia.

Barreto told Garcia, who had not previously been involved in

the investigation and was unaware of the facts, that agents had

arrested her in her home and had seized 160 kilograms 2 of cocaine.

She said that she had met someone at a nightclub frequented by

Colombians and that she had offered her house to him as a drop

site. She stressed that she, and she alone, was responsible for

the presence of the cocaine at her house, and that her husband was

n ot involved. Barreto stated that she desperately needed money,

a nd that the $72,000 in cash seized at her home represente d the

proceeds of a four-kilo sale. Barreto observed that the cocaine

had been brought to her house in a truck remarkably similar to the

one parked outside the FBI's offices.

Garcia interviewed Menesses , who had initiated contact with

his captors, at the Harris County jail. Garcia first advised

Menesses of his constitutional rights and verified his de sire to

waive them and to submit to an interview. Menesses related that he

had joined the operation in June of 1989. In late October, he was

instructed to procure transportation, hotel rooms, and a storage

site. He was also told to acquire a pager. A person that he met

offer ed a house as a storage site. On November 16th, Menesses

received the drug s from some "Mexicans." The contraband's owner

told Menesses that the Mexicans had stolen some of the shipment.9

The government concluded its testimony by offering evidence of

two extrinsic offenses, one against Bratovich and the other against

Alegria. Over Bratovich's objection, Drug Enforcement

Administration Agent D.A. Norton testified that on July 7, 1988, he

consummated a one kilogram cocaine purchase wit h one Daren

Hightower at a parking lot of the Houston Intercontinental Airport.

Bratovich was with Hightower when Norton exited his flight and

walked with the two while they discussed the sale. According to

Norton, Bratovich appeared nervous and stated "Daren, let's don't

talk about it here." Norton explained that after Hightower

expressed a desire not to close the transaction at the airport,

Bratovich said "Daren, let's quit talking about it. Everything's

fine. Let's do it as we'd planned. Let's go ahead with it.

Everything's O.K." Hightower and Norton ultimately went to the

parking lot where Norton was given the opportunity to see the

kilogram in the trunk of a vehicle. Hightower was then placed

under arrest. Bratovich had remained inside the airport where he

wa s subsequently arrested. At the time of trial the charge was

still pending against Bratovich. Norton acknowledged outside the

presence of the jury that he never made arrangements or negotiated

for the purchase of the contraband with Bratovich.

While Bratovich objected to the introduction of this evidence

at trial, he does not now raise it as a point of error. Whether

this extrinsic act occured as related by Norton and was in fact a

crime is for another tribunal to decide. We note, as did the trial

judge in the case under review in his jury instruction, that the10

jury could use this act only to judge intent and knowledge. It

would be impermissible for th e jury to use it for the purpose of

deciding that Bratovich is possessed of a bad character and could

be expected to behave in conformity t herewith. S ee Fed.R.Civ.P.

404(b). We note also that no other alleged coconspirator in the

case under review was implicated in the extrinsic offense.

The defendants all rested behind the government save

Bratovich. Ettore Bratovich testified in his brother's behalf and

explained the circumstances that led to his arrest on Voss while

chauffeuring Alegria. Bratovich also testified and disavowed any

knowledge of the cocaine conspira cy. He explained that he was a

victim of circumstance merely doing a favor for Alegria, a friend

of his brother's, whom he thought was moving his belongings to

Houston. According to Bratovich, every move that he made on

November 16, 1989, was at Alegria's request and on his

instructions.

ANALYSIS

I. The Evidence did not Suffice to Convict Bratovich.

At oral argument, the government argued for the first time

that Bratovich failed to object to the sufficiency of the evidence

at the trial level. Were this the case, and were the government to

properly raise the issue, our review would be "limited to the

determination of whether there was a manifest miscarr iage of

justice. Such a miscarriage would exist only if the record is

devoid of evidence pointing to guilt." U nited States v. Hinojosa

,11

No.91-2260, slip op. 3924, 3928 (5th Cir. April 3, 1992)( quoting

United States v. Robles-Pantoja

, 887 F.2d 1250, 1254 (5th Cir.

1989)). Bratovich's counsel responded at oral argument by claiming

that he implicitly adopted Barreto's motion to acquit for lack of

evidence at the close of the government's case. Fed.R.Crim.P. 29,

however, requires that the defendant renew his motion at the close

of all the evidence in order to preserve the issue for appeal.

"Where a defendant fails to renew his motion at the c lose of all

the evidence, after defense evidence has been presented, he waives

his objection to the earlier denial of his motion." U nited States

v

. Daniel

, No. 91-1739, slip op. 3556, 3559 (5th Cir. Marc h 19,

1992)( citing United States v. Robles-Pantoja , 887 F.2d 1250, 1254

(5th Cir. 1989)). In answer to the government's contention at oral

argument, Bratovich's counsel responded tha t he effectively did

renew his motion. While we have doubts that this is so, we

recognize, as defense counsel stated at oral argument, that various

district court judges run their courtrooms in various ways. We do

not believe that we can limit our review to a search for manifest

injustice when the government raises su ch an argument, which in

fairness to the defendant should have been briefed, for the first

t ime in oral argument. This is especially true in this case

because the government, in its brief, described the standard of

review as we do immediately below, i.e.

, as an examination of

whether, regarding the facts and inferences to be drawn therefrom

in the light most favorable to the verdict, any trier of fact could

have reasonably found Bratovich guilty beyond a reasonable doubt.12

The government did not describe the standard of review as an

examination of whether the record is devoid of evidence of guilt.

The government cannot, at this late date, alter its p roposed

standard of review.

The well established standard in this Circuit for reviewing a

conviction allegedly based on insufficient ev idence is whether a

reasonable jury could find that the evidence establishes the guilt

of the defendant beyond a reasonable doubt. U nited States v.

Gonzales

, 866 F.2d 781, 783 (5th Cir.), cert. denied

, 490 U.S. 1093

(1989). The evidence adduced at trial, whether it be direct,

circumstantial or both, together with all inferences reaso nably

drawn from it, is view ed in the light most favorable to the

verdict. U nited States v. Pigrum

, 922 F. 2d 249, 253 (5th Cir.),

cert. denied

, 479 U.S. 868 (1991). If the "evidence viewed in the

light most favorable to the prosecution gives equal or nearly equal

circumstantial support to a theory of guilt and a theory of

innocence of the crime charged," this court must reverse the

convictions. C lark v. Procunier

, 755 F.2d 394, 396 (5th Cir.

1985)( quoting Cosby v. Jones

, 682 F.2d 1373, 1383 (11th Cir.

1982)( as quoted in United States v. Fortenberry

, 919 F.2d 923, 926

(5th Cir. 1990))). The appellate court does not sit as a de novo

jury, and therefore "it is not necessary that the evidence exclude

every reasonable hypothesis of innocence," United States v. Stone

,

No. 91-2193, slip op. 4417, 4421-22 (5th Cir. April 2 9, 1992); a

jury is, after all, "free to choose among reasonable constructions

of the evidence." U nited States v. Bell

, 678 F.2d 547, 549 ( 5th13

Cir. 1982), aff'd

, 462 U.S. 356 (1983). Our task is, rather, to

determine whether "a reasonable trier of fact could find that the

evidence establishes guilt beyond a reasonable doubt." U nited

States v. Jackson , 700 F.2d 181, 185 (5th Cir.)( quoting Bell , 678

F.2d at 549), cert. denied , 464 U.S. 842 (1983).

In order for the government to prove conspiracy, the

prosecution must prove beyond a reasonable doubt (1) the existence

of an agreement between two or more persons to violate the

narcotics laws, (2) that each alleged conspirator knew of the

conspiracy and intended to join it, and (3) that each alleged

conspirator did participate in the conspiracy. S tone

, No.91-2193,

slip op. at 4421. We conclude that a reasonable jury would have to

entertain a reasonable doubt as to Bratovich's guilt.

The government's evidence has shown that:

(1) Bratovich drove the Mustang that approached the white

truck occupied by co-defendants Andrade and Menesses near the location where the PENSKE was positioned.

(2) And rade then approached the passenger side of the

Mustang and appeared to speak with Alegria.

(3) Bratovich made two U-turns in an adjacent residential

area prior to following the PENSKE driven by Andrade and

Menesses.

(4) Bratovich followed the PENSKE for about f ive miles

and turned away when the PE NSKE reached a residential

area.

(5) Bratovich subsequently drove to his place of business

where his brother picked up Alegria.

The government argues that it is (a) reaso nable to conclude

that the conversation between Andrade and Alegria concerned the

PENSKE and its destination and that (b) Bratov ich overheard the14

conversation. This argument misses the point. Even if we accept

the government's inferences, it in no wa y addresses Bratovich's

contention that he thought that the PENSKE contained furniture that

his brother's friend, Alegria, wa s moving into his new home.

Simply because a conversation may have in fact been about drugs

does not mean that a jury can reasonably conclude that one who may

have overheard it actually knew that said conversation concerned

drugs. Simply because one associates with conspirators does not

mean that a jury can reasonably find that he is a member of the

conspiracy. Jackson , 700 F.2d at 185.

The government also a rgues that Bratovich's story is

incredible because one who is actually watching his furniture would

not veer off once it had reached his neighborhood. We are not sure

why this is incredible. Could not Bratovich have believed that

someone Alegria trusted was home to receive the furniture? Might

not have Alegria been unwilling to continue on to the unloading

point with Bratovich for fear that Bratovich would see that the

cargo was cocaine? In a similar vein, the government argues that

t he jury could have believed that it was unreasonable t hat

Bratovich would have believed that Alegria would have left his

furniture unattended in a parking lot. There is no evidence,

however , that Bratovich knew that the PENSKE had been left

unattended for any length of time. Even if we agreed that it did

not seem that Alegria was adequately watching over what Bratovich

claims to have believed was furniture, it would then be even harder

to believe that Alegria was adequately looking after three million15

dollars worth of cocaine.

Finally, the government argues that the jury's verdict

regarding Bratovich was rea sonable because the jury could have

credited testimony from FBI agents to the effect that the Mustang's

behavior was consistent with that of a countersurveillance vehicle.

Once again, this misses the point. The Mustang may have been a

countersurveillance vehicle, but the question is did Bratovich know

what he was surveying?

This trial was the end result of a lengthy sting investigation

which never unearthed any evidence of Bratovich's involvement until

the very last day of the operation. The record contains no

evidence of what Alegria and Andrade discussed in the parking lot.

The evidence of Bratovich' guilt is based on inference upon

inference. While one may suspect that Bratovich may have been

aware of the conspiracy, "[j]uries must not be allowed to convict

on mere suspicion and innuendo." Jackson , 700 F.2d at 185.

For similar reasons, we rever se Bratovich's conviction for

aiding and abetting. To sustain a conviction of aiding and

abetting under 18 U.S.C. § 2, the gover nment must show that the

def endant (1) associated with the criminal venture, (2)

participated in the venture, and (3) sought by action to make the

venture succeed. N ye & Nissen v. United States

, 336 U.S. 613

(1949). At most, the government may have proven that Bratovich

"participated" in the criminal venture, but "'[a]ssociation' means

that the defendant shared in the criminal intent of the principal."

United States v. Triplett

, 922 F.2d 1174, 1178 (5th Cir.), cert.16

denied , 111 S.Ct. 2245 (1991). A reasonable trier of fact would

have had to conclude that a reasonable doubt existed regarding

B ratovich's "association" with the criminal venture, and we will

not u phold a conviction for aiding and abetting unless the

government has proven all three elements. S ee United States v.

Martiarena , No. 90-8726, slip op. 3158 (5th Cir. March 11, 1992).

II. The District Court did not Err in Denying Barreto's Motion to

Suppress her Confession.

Barreto claims that she did not understand her Miranda rights

and could therefore not have volu ntarily waived them. Moreover,

she claims, even if she did understand them, the confession was

nevertheless involuntary because she felt that she had to confess

to clear her husband. We affirm the district court's denial of the

suppression motion.

When revi ewing a ruling from a suppression hearing, "[t]his

Court must give credence to the credibility choices and findings of

fact of the dis trict court unless clearly erroneous." U nited

States v. Raymer , 876 F.2d 383, 386 (5th Cir.), cert. denied , 493

U.S. 870 (1989)( citing United States v. Watson

, 591 F.2d 1058, 1061

(5th Cir.)

, cert. denied , 441 U.S. 965 (1979) )

. A finding is

clearly erroneous only when the reviewing court is left with the

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

Anderson v. City of Bessemer City

, 470 U.S. 564 (1985)( quoting

United States v. United States Gypsum Co.

, 333 U.S. 364 (1948)).

The ultimate issue of voluntariness, however, is a legal question17

requiring the reviewing court to make an independent determination.

Raymer , 876 F.2d at 386 (citations omitted).

At the suppression he aring, Special Agent Garcia testified

that he explained the Miranda rights to Barreto, stressing her

right to have an attorney present and her right not to speak with

h im. Garcia also testified that it is usually the case that

Hispanic foreigners will refuse to sign a waiver even if they wish

to waive their rights. Garcia stated that he even left the room so

that Barreto could contemplate whether or not she wished to waive

the rights that Garcia had conclu ded she understood. Garcia

testified further that he never promised Barreto that her

cooperation would lead to the exoneration of her husband.

Barreto testified at the suppression hearing that Garcia did

not frighten her or raise his voice, but that she could not

remember whether or not he explained her rights to her. She said

that she understood t hat her cooperation would help her husband,

but did not specifically testify that Garcia told her this.

The district court's crediting of Garcia's testimony that

Barreto understood her rights is not clearly erroneous. Moreover,

Barreto's own testimony does not necessarily imply that she was

acting under what she considered to be a promise that her husband

would go free if she cooperated. A reasonable reading of her

testimony is that she believed that by taking all the blame

herself, her husband would necess arily be helped. While a

confession made induced by an assurance that there will be no

prosecution is not voluntary, United States v. Rogers , 906 F.2d18

189, 192 (5th Cir. 1990), the district court justifiably found no

such promise here.

III. The District Court did not Err in Increasing Barreto's Base

Offense Level.

Barreto claims that the district court erred in increasing her

base offense le vel by two points according to Guidelines §

2D1.1(b)(1) which mandates a two point increase if the sentencing

court finds, by a preponderance of the evidence, United States v.

Casto , 889 F.2d 562, 570 (5th Cir. 1989), cert. denied , 110 S.Ct.

1164 (1990), that the defendant possessed firearms during the

commission of the offense. We review the district court's factual

findings for clear error. United States v. Rivera , 898 F.2d 442,

445 (5th Cir. 1990).

FBI agent Michael Sutton, who was involved in the arrest of

the Barretos and the search of their home, testified that he found

a pile of money behind a nightstand in the master bedroom. In the

drawer of the nightstand were several loaded automatic pistols. In

the closet of the bedroom was a coat, the pocket of which contained

cocaine. Also in the closet was a gun in the proximity of loaded

magazines.

Barreto argues that the guns belonged not to her, but to her

husband. This misses the point. What matters is not ownership,

but access. U nited States v. Villarreal

, 920 F.2d 1218, 1221 (5th

Cir. 1991 ). Moreover, it matters not that Barreto may not have

intended to use these automatic weapons in the offense, it suffices19

that they could have been so used. I d. Nor, due to amendments in

the Guidelines, is it even necessary for the district court to make

a finding of scienter if the arrest occurred subsequent to November

1, 1989. U nited States v. Suarez

, 91 1 F.2d 1016, 1020 (5th Cir.

1990).

According to Application Note 3 of the Commentary to Section

2D1.1:

The enhancement for weapon possession reflects the

increased danger of violence when drug traffickers

possess weapons. The adjustment should be applied if the

weapon was present, unless it is clearly improbable that

the weapon was connected with the offense. For example,

the e nhancement would not be applied if the defendant,

arrested at his residence, had an unloaded hunting rifle

in the closet.

The weapons in this case seem to be of the type envisioned by

the Sentencing Commission as triggering the enhancement. These

were not unloaded hunting rifles found only in the closet. These

were loaded automatic pistols by the bed. If a "dinky little gun"

which was probably not intended for use in the drug offense

sufficed to trigger the enhancement in United States v. Hewin

, 877

F.2d 3, 5 (5th Cir. 1989), these weapons will certainly do the

trick.

IV. The District Court did not Err in Refusing to Instruct the Jury

as to Menesses' Proposed Entrapment Defense.

Menesses proposed that the district court instruct the jury as

to a proposed defense of entrapment. As we have stated:

Entrapment is an affirmative defense designed to ensure

that persons not be held criminally liable for acts which

they were induced to commit, without prior predisposition20

to engage in such activity, by law enforcement officials.

In order to be entitled to rely on a defense of

entrapment, a defendant must present some evidence that

Government conduct created a sub stantial risk that an

offense would be committed by a person other than one

ready to commit it. Once this prima facie showing of

entra pment has been made, the burden falls on the

Government to prove beyond a reasonable doubt that the

defendant was predisposed to comm it the crime, and

therefore, was not entrapped.

United States v. Johnson

, 872 F.2d 612, 620 (5th Cir.

1989)(citations omitted).

Moreover,

[w]hen a court determines that no reasonable jury could

find, beyond a reasonable doubt, that the defendant was

predisposed to commit the crime, then the court may

determine that entrapment has been established as a matter of law. Where there is some evidence to support

a finding of predisposition, the issue is properly

presented to the jury.

Id. at 621.

However, "the mere assertion of entr apment does not require

the trial judge to automatically instruct the jury on it." U nited

States v. Andrew

, 666 F .2d 915, 922 (5th Cir. 1982). If the

defendant fails to demonstrate the existence of even a scintilla of

evidence that government agents entrapped him into c ommitting a

crime that he was not otherwise predisposed to commit, then he has

failed to make the required prima facie showing and is therefore

not entitled to such a jury instruction. Id. at 923-24.

The evidence in this case in no way suggests entrapment. The

record reveals that Menesses told Special Agent Garcia that he

became involved in the offense as early as June, 1989. He admitted

that he was responsible for securing rooms for his Miami associates

and a storage site for the contraband. The first contact Menesses21

had with government agents did not occur until he and Andrade

received the keys to the PENSKE at the Two Pesos Restaurant.

The government did no more than to advertise a service, to

wit, the ability to transport large q uantities of drugs. As the

Supreme Court has said, "[t]o determine whether entrapment has been

established, a line must be drawn between the trap for the unwary

innocent and the trap for the unwary criminal." S herman v. United

States

, 356 U.S. 369, 372 (1958). There is no evidence suggesting

anything but that Menesses was an unwary criminal. Therefore, the

district court did not err in refusing to give an instruction on

entrapment to the jury.

CONCLUSIONS

The record indicates that Danny Barreto understood her rights

and did not confess under the illusion that Special Agent Garcia

had promised that her husband would go free. Therefore, the

district court did not err in refusing to suppress her confession.

No r did the district court err in enhancing her sentence by two

p oints, as was required by the Guidelines due to the presence of

nonsporting weapons in the vicinity of her bed and bedstand in

which drug deal money was stashed. Finally, the district court did

not err in refusing to instruct the jury on entrapment because

Menesses has failed to point out evidence suggesting that he had

been entrapped. The district court did err, however, in sending

the counts relating to Bratovich to the jury . We reverse the

conviction as to Bratovich and remand to the district court for22

proceedings in accordance with our opinion.

This judgment of the district court is AFFIRMED in part,

REVERSED and REMANDED in part.