United States v. Sotelo

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-10755

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

EDWARD RUBEN SOTELO, ERNEST CASTRO QUINTANA, HENRY ARGUIJO, GARY
ARTIAGA, LAWRENCE ANTHONY FLORES, and JOE ANGELO SOTELO, JR.,

Defendants-Appellants.

Appeals from the United States District Court
for the Northern District of Texas
October 8, 1996

Before REYNALDO G. GARZA, DeMOSS and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Defendants-Appellants challenge their convictions and

sentences relating to a drug trafficking conspiracy. Finding no

reversible error, we affirm.

I. BACKGROUND

a. Proceedings in the district court

Appellants were charged in a twelve-count indictment involving

a marijuana and cocaine distribution conspiracy in the Fort Worth,

Texas area that began in 1990 and continued through January 19,

1
1995. A jury returned guilty verdicts as to all six appellants on

the conspiracy count (Count 1). Henry Arguijo, (“Arguijo”) who was

named only in the conspiracy count, received a 160 month prison

term for his conviction on Court 1.

In addition to the conspiracy conviction, Edward Sotelo was

found guilty of continuing criminal enterprise (Count 2),

possession of cocaine with intent to distribute (Counts 6 & 10),

use of a communication facility to commit a felony (Counts 7, 8 &

9), possession of marijuana with intent to distribute (Count 11)

and distribution of cocaine (count 12).1 He was sentenced to life

in prison2 and given a $50,000 fine.

Joe Sotelo was found guilty of possession of cocaine with

intent to distribute (Count 6) as well as the conspiracy

conviction. He was also sentenced to life in prison.

Ernest Quintana (“Quintana”) was found guilty of possession of

cocaine and marijuana with intent to distribute (Counts 10 & 11) in

addition to the conspiracy count. He received 151 months in

prison.

Lawrence Flores (“Flores”) was found guilty of distribution of

cocaine (Count 12) and conspiracy. He was sentenced to 235 months

1
Edward Sotelo was acquitted on two counts of distribution of
cocaine (Counts 3 & 4) and the district court granted the
Government’s motion to dismiss one count of possession of cocaine
with intent to distribute (count 5).
2
Concurrent sentences, periods of supervised release and
mandatory special assessments were also part of the sentences
imposed by the district court. However, because they add
unnecessary complexity to the recitation of facts and are not
relevant to the issues before this Court, they are not referenced
here.

2
in prison.

Gary Artiaga (“Artiaga”) was convicted for using a

communication facility to commit a felony (Count 9) and conspiracy.

The district court sentenced him to 270 months in prison and a

$25,000 fine.

b. Facts

From 1988 to 1992 Edward Sotelo worked for Arguijo, delivering

cocaine purchases ordered from Arguijo. Beginning in early 1992,

purchasers begin ordering cocaine directly from Edward Sotelo.

Although Edward Sotelo still did drug business with Arguijo, it

appears that they were peers or that Arguijo began working for

Edward Sotelo after 1992. Twelve narcotics offenders and numerous

law enforcement officers testified at trial about the general

operation of the Sotelo drug business and the following specific

incidents.

Video surveillance on a warehouse leased by Artiaga revealed

little traffic, but included visits by Edward Sotelo, Artiaga,

Flores. A video tape was introduced at trial showing Edward

Sotelo, Flores and Government witness Troy Williams at the

warehouse. Williams, who purchased 60-70 kilograms from the Sotelo

organization between 1991 and 1994, testified that he sometimes

picked up his cocaine from the warehouse. Williams also testified

concerning drug deals with Artiaga, Flores and Joe Sotelo.

Appellants’ codefendant Eric Bryant pleaded guilty to drug

charges and testified at trial about his eight-year history as a

drug customer of the Sotelo drug organization. He normally

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purchased cocaine in kilogram quantities, cooked it into crack and

sold the crack. On June 2, 1994, police intercepted telephone

conversations from Edward Sotelo’s residence in which Edward Sotelo

set up a two-kilogram cocaine transaction. Joe Sotelo then

delivered approximately a kilogram of cocaine to Eric Bryant in a

cereal box. Police, who had been watching the transaction, stopped

Bryant shortly after the transaction and recovered the box of

cocaine.

Kevin Blevins, another Government witness, began purchasing

drugs from Edward Sotelo and Quintana in 1993. At first he bought

large amounts of marijuana and small amounts of cocaine, but later

increased his cocaine purchases to kilogram quantities. In August

1994, Blevins was arrested. During the arrest Edward Sotelo paged

him several times. Blevins agreed to answer the page and set up a

drug buy from Edward Sotelo. An undercover policeman went with

Blevins to the buy. Edward Sotelo, who was driving the car, and

Quintana, the passenger, were spooked by the undercover officer’s

presence and fled the scene. During the subsequent high-speed

chase, a bag containing ten pounds of marijuana and a kilogram of

cocaine was thrown from the car.

On June 18, 1993, Juan Robles, one of Sotelo’s suppliers, sold

five kilograms of cocaine to Joe Sotelo, received payment but

delivered flour instead of cocaine. To make Robles return the

money, Joe Sotelo, Edward Sotelo, Flores and another man, kidnapped

Robles’s fourteen-year-old brother, Gilberto Robles. Gilberto was

threatened and hit, but sustained no injury except and small bump

4
on the head. The police got involved, but were hindered because

Gilberto was too scared of the Sotelos to cooperate with the

police. He was eventually returned home by the police.

Arthur Franklin, another Government witness, was arrested for

a drug offense and had agreed to cooperate with the DEA before he

became involved with the Sotelo organization. He set up a 5-

kilogram cocaine deal with Edward Sotelo. When the cocaine was

delivered, the police monitored the transaction and Edward Sotelo

and Flores were arrested.

II. SUFFICIENCY OF THE EVIDENCE

a. Standard of review

A conviction must be allowed to stand if, after viewing the

evidence in the light most favorable to the prosecution, the

reviewing court finds that a rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.

Ed. 2d 570 (1979).

b. Edward Sotelo

Edward Sotelo challenges the sufficiency of the evidence to

support his convictions on Count 2, Continuing Criminal Enterprise

and Count 12, Distribution of Cocaine.

A conviction for Continuing Criminal Enterprise (CCE) requires

proof that a defendant organized, supervised or managed five or

more persons in a continuing series of drug violations from which

the defendant obtained substantial income. See 21 U.S.C. § 848.

“Such relationships need not have existed at the same moment in

5
time. It is sufficient if there exist separate, individual

relations of control with at least five persons. Furthermore, the

requisite five persons need not act in concert at the same time.

Additionally, the same type of superior-subordinate relationship

need not exist between the supervisor and each of the five other

persons involved.” United States v. Phillips, 664 F.2d 971, 1013

(5th Cir. 1981) (citations omitted), cert. denied, 457 U.S. 1136,

102 S. Ct. 2965, 73 L. Ed. 2d 1354 (1982). The Government need not

prove that the defendant is the “single ringleader.” Id. at 1034.

Edward Sotelo argues that the evidence proved separate

multiple conspiracies rather than a single conspiracy. He contends

that he was acting independently from other individuals, as

evidenced by referrals to Sotelo from other drug sellers when they

did not have enough cocaine to fill an order. In determining

whether single or multiple conspiracies exist, this Court looks at

three factors: (1) the existence of a common goal; (2) the nature

of the scheme; and (3) overlap of the participants. United States

v. Maceo, 947 F.2d 1191, 1196 (5th Cir. 1991), cert. denied, 504

U.S. 949, 112 S. Ct. 1510, 117 L. Ed. 2d 647 (1992). First, the

common goal was the sale of cocaine and marijuana; second, the

nature of the scheme, to sell large quantities of drugs to others

who were responsible for retailing it, is consistent throughout the

evidence; and third, all of the indicted codefendants and

cooperating Government witnesses were interrelated except witness

Arthur Franklin, who came in at the end as an undercover informant.

The evidence in the record is sufficient to establish Edward

6
Sotelo’s criminal liability for a CCE under the criteria set out in

Phillips. Edward Sotelo’s attack on his Continuing Criminal

Enterprise conviction is without merit.

In order to prove that a defendant distributed a controlled

substance, the Government must prove that the defendant

(1)knowingly (2) distributed (3) the controlled substance. See 21

U.S.C. § 841(a)(1). Count 12 charged Edward Sotelo and Flores with

distribution of cocaine in connection with the drug buy set up by

Franklin, after which Edward Sotelo and Flores were arrested.

Sotelo contends that his conviction in Count 12 rests solely on the

perjured testimony of Arthur Franklin. There is no basis in the

record before this Court for labeling Franklin’s testimony

perjured. Although his credibility was damaged because he

continued to sell drugs after he agreed to work for the Government,

his testimony about the specifics of the drug buy underlying Count

12 are corroborated by a taped phone conversation and by the

testimony of the police officer that was posted outside the

apartment during the buy. Viewing this evidence in the light most

favorable to the prosecution, a rational trier of fact could well

have found all the elements of distribution of cocaine beyond a

reasonable doubt.

c. Gary Artiaga

Artiaga challenges the sufficiency of the evidence to support

his conviction for conspiracy. Artiaga does not challenge the

existence of a conspiracy, but claims that he did not know about it

or participate in it. The lease for the group’s drug storehouse

7
was in Artiaga’s name and videotaped surveillance showed that he

visited the warehouse. The evidence in the record also includes

testimony that Peter Edwards purchased one kilogram of cocaine for

$20,000 from Artiaga and Edward Sotelo in 1993; that Artiaga

accompanied Edward Sotelo while Sotelo delivered drugs; and that

Artiaga advised a potential purchaser to call Edward Sotelo in

order to purchase drugs. The transcripts of two telephone

conversations between Artiaga and Edward Sotelo in which they

discussed drug negotiations, supply and prices to charge clients

were before the jury as well. Based on our review of the record,

we have concluded that the evidence was sufficient to support

Artiaga’s conviction for conspiracy.

d. Lawrence Flores

Flores argues that the evidence was insufficient to sustain

his convictions for Count 1 - conspiracy and Count 12 -

distribution of cocaine. Flores’s position on the conspiracy count

is that all the testimony implicating him in the conspiracy lacked

credibility. Testimony established that Flores accompanied Edward

Sotelo on a number of drug transactions, sometimes handed the drugs

to the customer and was present at the drug warehouse, all in

addition to his participation in the drug buy that resulted in his

arrest. Further, Flores contends that the evidence on Count 12 is

insufficient because it simply shows his presence at the drug buy.

However, the officer’s testimony established that Flores left the

apartment where Franklin’s drug buy was supposed to take place,

retrieved the drugs from a car and returned to the apartment,

8
indicating that Flores was not just innocently present at the scene

of the crime. The evidence is sufficient to sustain Flores’s

convictions on Counts 1 and 12.

e. Ernesto Quintana

Quintana contends that the Government failed to prove the

“knowledge” element of Counts 1, 10 & 11 as to Quintana. He

characterizes the evidence as showing that he was merely present

during some drug transactions. He contends that he did not even

know drug transactions were taking place. He also claims that the

evidence did not show that he agreed to commit any crime, as

required for the conspiracy conviction. The Government’s evidence

against Quintana included testimony that: Quintana accompanied

Edward Sotelo on a vast number of cocaine and marijuana deliveries,

Blevins purchased drugs from Edward Sotelo and Ernest Quintana on

a number of occasions, Quintana was present when the purchase price

was paid during these transactions, Quintana delivered marihuana to

Blevins by himself in one transaction and to Peter Edward on

another occasion, and Quintana was with Edward Sotelo during the

Blevins sting transaction in which they fled the scene. This

evidence is adequate to support the jury’s verdict.

III. EXCLUSION OF MINORITY MEMBERS FROM THE VENIRE

Appellants contend that they were denied their right to a

petit jury drawn from a fair cross section of the community. The

trial court’s factual determination that there was no systematic

exclusion of minority members from the venire is reviewed for clear

error. United States v. McKinney, 53 F.3d 664 (5th Cir.), cert.

9
denied, 116 S. Ct. 261, 133 L. Ed. 2d 184 (1995).

The trial court denied a motion by Edward Sotelo to quash the

jury panel because there was only one Hispanic person among the

fifty venire persons. To establish a prima facie violation of the

fair cross section requirement, the defendant must show that: (1)

the group alleged to be excluded is a “distinctive” group in the

community; (2) the representation of this group in venires from

which juries are selected is not fair and reasonable in relation to

the number of such persons in the community; and (3) this under-

representation is due to systematic exclusion of the group in the

jury selection process. Duren v. Missouri, 439 U.S. 357, 99 S. Ct.

664, 58 L. Ed. 2d 579 (1979). Edward Sotelo asked the trial court

to assume factors 2 & 3 based on the fact that only one Hispanic

person was a member of a 50 person panel. It was not clear error

for the trial court to deny the motion to quash, as Edward Sotelo

failed to carry his burden to establish a prima facie violation.

IV. DISQUALIFICATION OF DEFENSE ATTORNEY

Edward Sotelo and Joe Sotelo contend that the district court

erred when it refused to permit the same attorney to represent four

of the nine indicted co-defendants. The district court’s

disqualification of a defense attorney for conflict of interest is

reviewed for abuse of discretion. United States v. Vasquez, 995

F.2d 40, 42 (5th Cir. 1993).

Joe Sotelo, Edward Sotelo, Flores and Artiaga were initially

represented by the same counsel, Denver McCarty. All four were

willing to waive any conflict of interest in order to allow McCarty

10
to represent them. Attorney McCarty told the district court that

he had discussed with each of his clients the possible effects of

plea offers and that he considered plea agreements unlikely for

these four defendants. The district court, after conducting a

hearing pursuant to Fed. R. Crim. P. 44(c)3, determined that there

was good cause to believe that a conflict would arise, particularly

in pretrial plea negotiations. He therefore ordered that each

defendant must have separate counsel. McCarty ultimately

represented only Artiaga. Edward Sotelo and Joe Sotelo appeal the

decision, arguing that they were deprived of their Sixth Amendment

right to choice of counsel.

The Sixth Amendment protects an accused person’s right to

select and be represented by his preferred attorney, although the

essential aim of the amendment is to guarantee an effective

advocate for each defendant rather than to ensure that a defendant

will inexorably be represented by the lawyer whom he prefers.

Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 1697,

100 L. Ed. 2d 140 (1988).

A defendant’s right to choice of counsel is limited “not only

by a demonstration of actual conflict, but by a showing of a

3
Rule 44(c) provides:
Whenever two or more defendants have been jointly charged
. . . and are represented by the same retained or
assigned counsel . . . the court shall promptly inquire
with respect to such joint representation and shall
personally advise each defendant of the right to the
effective assistance of counsel, including separate
representation. Unless it appears that there is good
cause to believe no conflict of interest is likely to
arise, the court shall take such measures as may be
appropriate to protect each defendant’s right to counsel.

11
serious potential conflict” even where a defendant expresses a

desire to waive the potential conflict. Wheat v. United States,

486 U.S. 153, 164, 108 S. Ct. 1692, 1700 (1988). Appellants

acknowledge the wide discretion this rule gives the district court,

but characterize the court’s plea agreement concerns as

”unsupported and dubious speculation as to a conflict.”

We disagree. Under the Supreme Court’s analysis in Wheat,

“[t]he evaluation of the facts and circumstances of each case . .

. must be left primarily to the informed judgment of the trial

court.” Id. 486 U.S. at 164, 108 S. Ct. at 1700. Here, the trial

court explicitly applied the Sixth Amendment, and Wheat’s analysis

to the facts developed at the hearing on this issue, and concluded

that the Sixth Amendment would be better served in this case by

separate representation for each defendant, particularly during

pretrial plea negotiations. This conclusion is well supported by

the record. We find no abuse of discretion in the district court’s

decision to disqualify attorney McCarty from representing Joe

Sotelo and Edward Sotelo on the basis of potential conflicts of

interest.

BRADY IMPEACHMENT EVIDENCE

All of the Appellants contend that the Government’s failure

to timely disclose evidence which could have been used to impeach

witness Arthur Franklin was a violation of Brady v. Maryland, 373

U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) and that the trial

court erred in denying a motion for new trial based on this

failure. The United States Constitution forbids the Government

12
from withholding evidence favorable to the accused or useful for

impeachment of a witness who testified against the accused. Id.

Suppression of evidence favorable to the accused requires reversal

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

disclosed to the defense, the result would have been different.

United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383,

87 L. Ed. 2d 481 (1985). A “reasonable probability” for the

purposes of this analysis is a probability sufficient to undermine

the confidence in the outcome. Id.

Four days after the jury returned its verdict, the Government

informed appellants that witness Arthur Franklin was still involved

in drug trafficking when he testified at trial. A Government agent

who testified at the trial received information about these

allegations on May 16, 1995, after Franklin had testified, but

before the close of evidence. He revealed the information

immediately to an Assistant United States Attorney not involved in

this case, but no one told the prosecutor in this case about the

information until after the verdict. The Government disclosed the

information to appellants on May 22, 1995.

Although all of the appellants contend that they are entitled

to a reversal on this ground, only Edward Sotelo and Flores were

implicated in the drug transaction about which Franklin testified.

The other appellants’ Brady claims are frivolous.

Assuming that Franklin’s continued involvement in drug

trafficking would have undermined his credibility, it is unlikely

that such impeachment evidence would have changed the verdicts as

13
to Edward Sotelo or Flores. The drug transaction which Franklin

testified about was monitored by DEA agents, whose testimony

corroborated Franklin’s testimony, and a tape of a telephone

conversation setting up the deal was admitted into evidence. We

cannot say, based on this record, that there was a reasonable

probability that, had the Government timely disclosed the evidence

of Franklin’s continued involvement in drug trafficking, the

outcome of the trial would have been different.

WRITTEN JURY CHARGE

Edward Sotelo and Artiaga contend that the district court

erred in denying a request that a written copy of the charge be

given to the jury during their deliberations. Determining whether

the jury should be given a written copy of the court’s charge is

within a trial judge’s discretion. United States v. Acosta, 763

F.2d 671, 677 (5th Cir.), cert. denied, 474 U.S. 863, 106 S. Ct.

179, 88 L. Ed. 2d 148 (1985).

A written charge was prepared and read to the jury. The

district court denied Artiaga’s request that a written copy of the

charge be given to the jury. Edward Sotelo and Artiaga claim this

was error since the charges were very complex and the jury needed

the written instructions to help them in their deliberations.

Appellants point out that the jury asked that a portion of the

instructions be read back to them during deliberations. The

district court read the portion requested twice. The Appellants

complain that by reading the requested portion of the charge, but

not re-reading other portions containing definitions of words used

14
in the re-read portion, the charge became unbalanced and the jury

may have been confused.

This Court has disapproved of the practice of giving a copy of

the jury instructions to the jury. United States v. Perez, 648

F.2d 219, 222 (5th Cir. Unit B), cert. denied, 454 U.S. 1055, 102

S. Ct. 602, 70 L. Ed. 2d 592 (1981). In addition, the Government

contends that the jury’s request that the court re-read one portion

of the charge indicates that they would have made other such

requests if they were uncertain about any other portions of the

charge. Based on the record before us, the denial of the motion to

give the jury a copy of the written charge was not an abuse of

discretion.

PROSECUTOR’S CLOSING ARGUMENT

Flores argues that the district court erred when it overruled

his objection to the prosecutor’s closing argument concerning

Franklin’s testimony in which he referred to Flores as “the chubby

man.” To warrant reversal of a conviction on grounds of improper

jury argument, a reviewing court must determine whether a

prosecutor’s comments were both “inappropriate and harmful.” See

United States v. Campbell, 49 F.3d 1079, 1084 (5th Cir.), cert.

denied, 116 S. Ct. 201, 133 L. Ed. 2d 135 (1995). Because Flores’s

objection to the remark at trial was based on a different theory

than that presented on appeal, this Court applies the plain error

standard of review.

During the Government’s closing jury arguments, the Prosecutor

said,

15
 “. . . and then just forget about the fact, even though
Arthur Franklin didn’t lie to you, and he could have lied
to you and pointed at Larry Flores and said, “yeah, that
was the fat man or the chubby man - -”

Flores’ counsel objected to this comment as not being in

evidence. The district court first sustained the objection, then

changed the ruling and overruled the objection because “it’s a

logical inference from the evidence.” Flores contends on appeal

that the comment improperly vouched for the credibility of the

Government’s witness.

A criminal defendant bears a substantial burden when

attempting to demonstrate that improper prosecutorial comments

constitute reversible error. United States v. Diaz-Carreon, 915

F.2d 951, 956 (5th Cir. 1990). He must show that the comments

substantially affected his right to a fair trial. Id. Three

factors are probative to this showing: “the magnitude of the

prejudicial effect of the remarks, the efficacy of any cautionary

instruction, and the strength of the evidence of the defendant’s

guilt.” Id. The magnitude of prejudicial remark here was minimal.

The judge’s ruling that the remark was a logical inference from the

evidence was correct as a response to Flores’ objection that it

“not in evidence.” However, for the first time on appeal, Flores

contends that the remark was objectionable because it bolstered the

witness’s credibility. The remark did have a bolstering effect,

but only marginally so. There was no cautionary instruction.

However, the strength of Flores’ guilt was strong. Based on the

application of the three-factor test, Flores has not shown that the

district court reversibly erred in overruling his objection to the

16
prosecutor’s comment because he has failed to demonstrate anything

close to plain error.

TIME LIMITATIONS ON FINAL ARGUMENT

Edward Sotelo, Artiaga, and Quintana contend that the district

court erred in refusing to allow them additional time for final

argument. The length of time allocated to counsel for closing

argument rests with the discretion of the trial court. United

States v. Moye, 951 F.2d 59 (5th Cir. 1992).

Each defendant in a multiple-count, multiple-defendant case

must be given adequate time in closing argument to mete out the

evidence and issues particular to that defendant and to

individualize his defense. United States v. Okoronkwo, 46 F.3d

426, 437 (5th Cir.), cert. denied, 116 S. Ct. 107, 133 L. Ed. 2d 60

(1995).

The district court initially advised the attorneys that the

Government would be permitted 30 minutes and the appellants

collectively 45 minutes. One of the appellants objected that 45

minutes was insufficient, and asked for 15 minutes per defendant.

The district court then ruled that the Government would be

permitted 30 minutes and each appellant would have 10 minutes, for

a total of one hour.

Appellants argue that 10 minutes per appellant unreasonably

curtailed their argument. Appellants contend that the case was

legally and factually complex, covered six years of activity and

multiple conspiracies, involved 40 witnesses and 133 exhibits, a

twelve-count indictment, and a 22-page jury charge. The Government

17
responds that appellants make only conclusory assertions to support

their claim, and made no offer of proof as to what arguments they

were foreclosed from presenting at trial. Having reviewed the

record, we find no abuse of discretion; the appellants’ closing

arguments adequately summarized the evidence and arguments and

nothing in the record indicates what additional items would have

been covered during closing had the trial allowed additional time.

JURY MISCONDUCT

Edward Sotelo, Joe Sotelo, Quintana and Artiaga contend that

the district court abused its discretion by denying their motions

for mistrial based upon jury misconduct and by failing to properly

investigate the allegation. Artiaga also contend that the district

court abused its discretion by denying his motion for new trial,

filed subsequent to trial, which was based upon the same

allegation. He also claims that the court erred in denying his

motion to contact and interview the jurors post-trial.

The district court’s decisions in handling complaints of

outside influence on the jury are reviewed for abuse of discretion.

United States v. Ramos, 71 F.3d 1150, 1153-54 (5th Cir. 1995),

cert. denied, 116 S. Ct. 1864, 134 L. Ed. 2d 962 (1996). The

district court must balance the probable harm resulting from the

emphasis that a particular mode of inquiry would place upon the

misconduct and the disruption occasioned by such an inquiry against

the likely extent and gravity of the prejudice generated by the

misconduct. Id. Because we as an appellate tribunal are in a poor

position to evaluate these competing consideration while the trial

18
court can better judge the mood and predilections of the jury, we

accord broad discretion to the trial court in these matters. Id.

Likewise, the district court’s decision to deny a post-trial

interview pursuant to Local Rule 8.2(e) is reviewed for abuse of

discretion. Salinas v. Rodriguez, 963 F.2d 791, 794 (5th Cir.

1992), citing United States v. Sedigh, 658 F.2d 1010, 1014 (5th

Cir. Unit A 1981), cert. denied, 455 U.S. 921, 102 S. Ct. 1279, 71

L. Ed. 2d 462 (1982).

During jury deliberations, juror Gloria Ayala stepped out of

the jury room and informed the court security officer that some of

the other jurors were making racial remarks that upset her. Ayala

remained in the alternate jury room while the district court

conferred with the parties. The district court proposed to bring

the entire jury into the courtroom and question Ayala about her

allegations. The defendants objected that the proposed procedure

was intimidating and coercive. The objection was denied. The jury

was brought into the courtroom and the district court explained

that he had received a complaint from Ayala, and that he had

brought them back into the jury room so that Ayala could explain

what was bothering her. The district court instructed Ayala not to

disclose any information about the deliberation process. The

following dialogue ensued:

THE COURT: Can you tell us what has happened that has
caused you a concern, bearing in mind what I
just told you about what you should not
disclose without alerting me ahead of time
that you would have to. And I think everyone
is grown up, so be perfectly candid about what
you heard and the problems that’s causing it.

19
JUROR AYALA: Without hurting anybody’s feelings, no, I
can’t Judge. I can’t.

THE COURT: Well, like I say. I think everyone is grown
up. If it’s simply a matter of hurting
feelings, let’s go ahead and lay it on the
line. If it’s a matter of disclosing the
things I told you not to disclose, then we
need to discuss the matter further. But if
it’s simply a matter of hurting feelings,
let’s lay it on the line.

JUROR AYALA: Well, I just feel like -- I don’t know. I
just feel a lot of racial tension.

THE COURT: I’m sorry?

JUROR AYALA: Racial tension.

THE COURT: Well, is it because of specific things that
have been said?

JUROR AYALA: In a roundabout way, yes.

THE COURT: Can you give me an example of something that’s
been said that causes you to feel that way?

JUROR AYALA: Not in general, no. I mean, I thought I was a
strong person, but after four days of this,
I’m not.

THE COURT: You mean four days of trial?

JUROR AYALA: Well, yeah. Not so much the trial but
activities: listening, everything like that.

THE COURT: Are you saying that since the trial started,
you had a sense of -- Well, say to me what you
have had a sense of since the trial started so
I won’t put words in your mouth.

JUROR AYALA: You know, these are Mexican boys. I’m a
Mexican, okay. These people are looking at
them as Mexicans.

THE COURT: Looking at what?

JUROR AYALA: Looking at these boys as Mexican boys.
They’re not looking at them as just boys.

THE COURT: Is that something you’re saying that happened
through the trial or just in the discussions?

20
JUROR AYALA: Just in different things that I’ve seen.

THE COURT: You mean during the course of the trial?

JUROR AYALA: I don’t know how to explain it to you or
whether you understand me what I’m trying to
say. It’s just a --

THE COURT: I’m trying to.

JUROR AYALA: You know I just --

THE COURT: What I’m trying to find out now is your
problem, in part, because of what witnesses
said or what happened here during the trial?
Is that part of your problem?

JUROR AYALA: No.

THE COURT: Okay. It’s simply what other members of the
jury, their reaction --

JUROR AYALA: Correct.

THE COURT: -- to things that have happened. Has anyone
made any specific comment to you or to each
other where you heard it that would cause you
to think that any of them are making a racial
remark or racial innuendo or a national origin
remark or a national origin innuendo. And it
may be difficult for you to say it, but we’ve
got to find out what the problem is.

JUROR AYALA: What I would perceive as being offensive to
me, you may not perceive it as being
offensive, okay? That’s why what I might tell
you might sound silly.

THE COURT: Well, it might not. So tell me.

JUROR AYALA: To me it’s, you know, pretty serious, I think.

THE COURT: Is there anyway you can express it in words
what you’re talking about that you’ve heard or
you’ve seen by way of reaction of the other
jurors?

JUROR AYALA: Okay, for instance, today, we all didn’t agree
on one subject, and because I was one that
didn’t agree on it -- and I wasn’t the only
one. When the question was asked, “Well, what
is it that you don’t understand about this

21
 subject,” it was directed at me. They turned
to me. They didn’t turn to the whole people
that had questioned it, okay?

THE COURT: Okay.

JUROR AYALA: Like I was singled out. “Why don’t you
believe this?”

THE COURT: And I do understand what you’re telling me.
Can you give me any other example of what
you’re talking about?

JUROR AYALA: No.

THE COURT: Is that particular thing you’re talking about
what prompted you to leave the jury room?

JUROR AYALA: Yes, sir.

THE COURT: I’m sorry?

JUROR AYALA: That’s why I’m telling you about the instance.

THE COURT: That’s what prompted you to leave the jury
room?

JUROR AYALA: Right.

THE COURT: Can you give me an example of any other
instance?

JUROR AYALA: No.

THE COURT: Okay, you can be seated, and I appreciate your
candor.

The district court concluded that nothing had occurred which

would reflect any racial bias or prejudice on the part of any other

juror. When Artiaga’s counsel pointed out that “there were a

couple two or three jurors that were nodding their heads in

agreement with her,” the district court stated:

Well, we can’t get involved with what the head nods are
supposed to mean. When I say there is a problem, we have
to resolve it. There were several of them nodding their
heads, and I did take some understanding of, “now we know

22
 why she’s upset, as if they didn’t know before.”

The district court then instructed the jury to continue

deliberating and to base their decision on the evidence, and not to

take into account the race or national origin of any party or any

witness in the case. The district court also instructed the jurors

that Ayala had done the right thing and asked them to inform the

court if any disparaging comments became a problem.

Appellants filed a motion for mistrial at that time and a

motion for new trial after the verdict was returned, arguing that

Ayala’s statements presented a prima facie showing of jury

misconduct. After the trial they also filed a motion pursuant to

Local Rule 8.2(e)4 to interview Ayala. All the motions were

denied.

“In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury. . . .”

U.S. CONST. amend. VI. All of the appellants contend that they were

denied their Sixth Amendment right to an impartial jury. The

Government does not dispute that open racial bias is unacceptable

during jury deliberations. Rather, it is the Government’s position

that, given the broad discretion afforded trial courts in

addressing alleged jury misconduct, the district court’s response

in this case was sufficient.

There is no Fifth Circuit precedent that prescribes a

4
Northern District of Texas, Local Rule 8.2(e) provides:
“Neither a party nor attorney in a case (or a representative of
either) shall, before or after trial, contact any juror, except
upon explicit leave of the Presiding Judge.”

23
procedure for investigating and resolving allegations of jury

racial bias made during the trial. Case law speaks in terms of

extrinsic influences such as trial publicity, United States v.

Herring, 568 F.2d 1099 (5th Cir. 1978) versus intrinsic influences

such as a juror announcing that he had determined the defendant was

guilty prior to the end of the trial. United States v. Webster,

750 F.2d 307 (5th Cir. 1984), cert. denied, 471 U.S. 1106, 105 S.

Ct. 2340, 85 L. Ed. 2d 855 (1985). This circuit has afforded trial

courts broader discretion in dealing with intrinsic influences due

to jury misconduct than it has afforded in cases of extrinsic

influences and has specifically declined to presume prejudice from

intrinsic influences because it would hamper the judge’s

discretion. Id. at 338.

Appellants attempt to characterize the problem of racial bias

as extrinsic, in order to require the district court to perform the

burden shifting analysis articulated most recently in United States

v. Ruggiero, 56 F.3d 647 (5th Cir.), cert. denied, 116 S. Ct. 486,

133 L. Ed. 2d 413 (1995). In that case a juror obtained

information during the trial about the defendant and one of the

Government witnesses that was not admitted into evidence. The

extrinsic influence analysis begins with an initial presumption of

jury impartiality. Id. at 652. When a colorable showing of

extrinsic influence appears, the trial court must investigate the

asserted impropriety. Id. Such a showing creates a rebuttable

presumption of prejudice to the defendant and the Government has

the burden of proving the harmlessness of the influence. Id.

24
 We reject appellant’s characterization of the incident in this

case as an extrinsic influence. We believe that it can more

accurately be described as an intrinsic influence. However,

regardless of the extrinsic/intrinsic classification, the trial

court has broad discretion and the ultimate inquiry is: “Did the

intrusion affect the jury’s deliberations and thereby its verdict?”

United States v. Ramos, 71 F.3d 1150, 1154 (5th Cir. 1995).

Appellants rely on United States v. Heller, 785 F.2d 1524

(11th Cir. 1986) where the Eleventh Circuit held that the trial

court erred in failing to grant a mistrial based on anti-Semitic

comments about the defendant made by jurors to other jurors. The

opinion noted that juror prejudice prevents the impartial decision-

making that the Sixth Amendment and fundamental fair play require.

Id. at 1527. In Heller, the trial judge questioned each juror

individually, apart from counsel for either party, in an attempt to

“get rid of the taint that we have seen here.” Id. at 1526. As a

result of the individual voir dire, it came to light that jurors

had made overt anti-Semitic slurs, had prejudged the defendant’s

guilt and “had all the appearance of a linch [sic] mob.” Id. The

Eleventh Circuit held that the trial court clearly abused his

discretion when he refused to declare a mistrial upon learning of

the misconduct of the jury. Although not controlling precedent, we

agree that Heller contains a helpful discussion of the appropriate

response to racial prejudice exhibited by a juror. However, the

alleged racial tension in this case is distinguishable from Heller

in both kind and degree. Juror Ayala’s testimony identified two

25
circumstances from which she inferred racial prejudice on the part

of other jurors against Hispanics, but no overtly racial remarks or

behavior.

Given his broad discretion to fashion an investigation, the

trial court’s choice of techniques was not so coercive that it

interfered with truth-seeking. This record does not contain

evidence from which we could conclude that the Appellants were

denied their Sixth Amendment rights to an impartial jury. Ayala’s

obvious reluctance to speak in front of her fellow jury members,

and the unexplained head nodding from other jurors are troublesome.

However, the trial court’s choice of investigative techniques that

are less than ideal does not support a holding that the trial court

abused its discretion by failing to adequately investigate the

allegation of racial prejudice among the jury.

Focus in the briefs on Rule 606(b) is misplaced. Rule 606(b)

concerns the competence of juror testimony during “an inquiry into

the validity of a verdict.” Since the problem was brought to the

court’s attention prior to verdict, 606(b) does not impact the

availability of juror testimony in resolving the factual issues

raised. The trial court relied on Tanner v. United States, 483

U.S. 107, 107 S. Ct. 2739, 97 L. Ed. 2d 90 (1987), a Rule 606(b)

case, in denying the Appellants post-trial motion to interview

jurors. While Tanner speaks to post-trial jury inquiries, neither

Tanner nor Rule 606(b) helps resolve the real issue in this case

which was brought to the trial court’s attention pre-verdict.

Because we hold that the trial court did not abuse his

26
discretion in dealing with the jury prejudice issue during trial,

the post trial denial of jury interviews is moot.

ERRONEOUS ADMISSION OF EVIDENCE

Flores contends that the district court abused its discretion

in denying his motion for mistrial after hearsay testimony came

into evidence implicating him in the Arthur Franklin drug buy.

FED. R. EVID. 103(a) precludes grounding a reversal on the erroneous

admission of evidence unless “a substantial right of a party is

affected.” If the defendant’s substantial rights were not

affected, the error is harmless, and this Court will not reverse.

See Fed. R. Crim. P. 52(a). When the evidence has been stricken

and the trial court has instructed the jury to disregard it, there

is less probability that the error substantially influenced the

jury’s decision. United States v. Drew, 894 F.2d 965, 973 (8th

Cir.) cert. denied, 494 U.S. 1089, 110 S. Ct. 1830, 108 L. Ed. 2d

959 (1990).

A police officer who was part of the surveillance outside of

the apartment during the Franklin drug buy testified that two

Hispanic males arrived at the apartment. He testified that he knew

one of the men to be Edward Sotelo and the other one was “later

identified as Lawrence Flores.” The district court sustained

Flores’ objection on the basis of hearsay and instructed the jury

to disregard the officer’s testimony concerning the identity of the

second Hispanic male.

On appeal, Flores does not address how this hearsay testimony

affected his substantial rights. Flores’ identity and role in the

27
Franklin drug buy was established through the testimony of two

other witnesses, whose testimony was not hearsay and to which

Flores did not object. Since the hearsay testimony of the police

officer was cumulative of other evidence admitted without

objection, its admission was harmless. Unites States v. Cavin, 39

F.3d 1299, 1311 (5th Cir. 1994).

Joe Sotelo likewise contends that the district court abused it

discretion by denying his motion for mistrial after a Government

witness gave a non-responsive answer indicating that Joe Sotelo had

been arrested for murder.

A Government witness, on direct examination, commented that

Edward Sotelo had told him “that the police had come and kicked in

his door and taken -- took his brother to jail for murder....” Joe

Sotelo’s objection based on hearsay was sustained, and the district

court gave a limiting instruction that the jury was not to consider

it as evidence against any of the other defendants. Joe Sotelo

requested a mistrial during the next recess after the witness’s

statement. The basis for the motion for mistrial was that the

statement was “so prejudicial I don’t think there is anyway the

jury could disregard that and . . .at bench conference earlier in

this trial [the court] had instructed the Government not to raise

any 404(b) material with regard to [Joe Sotelo] without coming up

to the bench first and getting a ruling on it.” The witness’s

stray comment was the only time the jury heard about Joe Sotelo’s

murder charge. The district court overruled the motion for

mistrial but invited Joe Sotelo, as well as any other appellant, to

28
write out any further instructions they wanted given to the jury

for his consideration.

The Government contends that because Sotelo has not

established that the comment was prejudicial and because the

evidence of Joe Sotelo’s guilt is so overwhelming, any error was

harmless. We agree that the error is harmless in light of the

remaining admissible evidence of Joe Sotelo’s guilt. See United

States v. Limones, 8 F.3d 1004, 1008 (5th Cir. 1993), cert. denied,

114 S. Ct. 1562, 128 L. Ed. 2d 209 (1994).

LIMITATION ON CROSS EXAMINATION OF GOVERNMENT WITNESS

Joe Sotelo contends that the district court abused its

discretion by limiting his cross-examination of Juan Robles

regarding five felony charges pending against him at the time of

trial. The trial court has the discretion to impose reasonable

limits on the extent of cross-examination. United States v. Cooks,

52 F.3d 101, 103 (5th Cir. 1995). However, the trial court’s

discretion is limited by the requirements of the Confrontation

Clause of the Sixth Amendment. Id.

Joe Sotelo argues that the trial court’s limitation on the

cross-examination of Juan Robles concerning five state felony

charges -- two for attempted murder -- pending against him at the

time of trial requires reversal.

Rule 608(b) provides for impeachment on cross-examination with

acts other than convictions if probative of the witness’s

credibility, particularly if the evidence tends to show bias or

motive for the witness to testify untruthfully. United States v.

29
Thorn, 917 F.2d 170, 176 (5th Cir. 1990). In Thorn, this Court

held that the trial court had not abused its discretion in refusing

impeachment with state indictments because the defendant “had

failed to offer any evidence that the Government could influence

the disposition of the state court proceedings. The existence of

a pending state court indictment on charges totally unrelated to

the testimony offered . . . was not shown to give [the witness] a

substantial reason to cooperate with the federal prosecution.”

Thorn, 917 F.2d at 176.

The only evidence concerning this question was in response to

Joe Sotelo’s question to Robles asking if his cooperation with the

Government and his testimony were motivated by a desire to gain

leniency for the charges currently pending against him. Robles

relied, “No.” No other evidence tended to show that Robles thought

that the Government could influence the disposition of the state

court charges or that the Government could in fact exert such

influence. The district court did not abuse its discretion in

limiting the cross-examination of Robles.

CUMULATIVE EFFECT OF ERRORS

Having found no error on the part of the trial court, we find

no merit in Artiaga’s contention that the cumulative effect of

trial errors denied him his Fifth Amendment right to due process of

law.

SENTENCING ISSUES

This Court shall accept the trial court’s findings of fact

during sentencing unless they are clearly erroneous and shall give

30
due deference to the district court’s application of the Sentencing

Guidelines to the facts. See 18 U.S.C. § 3742(e); United States v.

Otero, 868 F.2d 1412, 1414 (5th Cir. 1989). In making findings

pursuant to the Sentencing Guidelines, a district court need only

be convinced by a preponderance of the evidence. United States v.

McKinney, 53 F.3d 664, 677 (5th Cir.), cert. denied, 116 S. Ct. 261

(1995). Credibility determinations in sentencing hearings “are

peculiarly within the province of the trier-of-fact.” United States

v. Sarasti, 869 F.2d 805, 807 (5th Cir. 1989).

a. Quintana

Calculation of drug quantity: The Sentencing Guidelines allow the

sentencing court to hold a defendant accountable for all relevant

conduct. United States v. Smallwood, 920 F.2d 1231, 1237 (5th Cir.

1991). A co-conspirator is accountable for his own conduct and for

the foreseeable acts of his co-conspirators committed in

furtherance of the conspiracy. U.S.S.G. § 1B1.3(a)(1)(B). The

pre-sentence report, adopted by the district court, found Quintana

accountable for 9,638 kilograms of marijuana equivalency. Quintana

contends that the only drug quantities reasonably foreseeable to

him are the 1 kilogram of cocaine and ten pounds of marijuana

discarded from Edward Sotelo’s vehicle after the failed undercover

Blevins buy. The remaining disputed amounts are the drug

quantities sold to witnesses Bryant and Blevins by Sotelo.

Quintana contends that the evidence does not support a finding that

he knew about these transactions. The Government responds that

Blevins and Bryant testified that Quintana accompanied Sotelo to

31
the purchases, sometimes made drug deliveries by himself and saw

drug payments being made. Based on this testimony, the district

court did not clearly err in finding that those amounts were

foreseeable to Quintana and assigning him a Base Level Offense 34

(3000-10,000 kilograms of marijuana equivalent).

Minimal participation reduction: A defendant may receive a 2-level

reduction in total offense level if his role in the offense was

minor, and a 4-level reduction if his role was minimal. See

U.S.S.G. § 3B1.2. Quintana was awarded the 2-level reduction but

contends that the district court erred in not granting him a 4-

level reduction for minimal participation. The Application Notes

to § 3B1.2 provides that the nominal participant status

is intended to cover defendants who are plainly among the
least culpable of those involved in the conduct of a
group. Under this provision, the defendant’s lack of
knowledge or understanding of the scope and structure of
the enterprise and of the activities of others is
indicative of a role as minimal participant. . . . It
would be appropriate, for example, for someone who played
no other role in a very large drug smuggling operation
than to off-load part of a single marihuana shipment, or
in a case where an individual was recruited as a courier
for a single smuggling transaction involving a small
amount of drugs.

See U.S.S.G. § 3B1.2, comment. (n.1 & 2). Evidence of Quintana’s

long-term involvement and participation in more than twenty

deliveries supports the district court’s rejection of minimal

participation.

b. Artiaga

Calculation of drug quantity: Artiaga’s Pre-sentence Report stated

that based on the testimony of Bryant, Henton, Edwards, Hall and

32
Reed, Artiaga was accountable for 186 kilograms of cocaine. Like

Quintana, Artiaga contends that he was not directly involved in the

sale of 186 kilograms of cocaine nor was it foreseeable. At

sentencing, Artiaga agreed that he had distributed 130 - 140

kilograms of cocaine. It was not clear error to attribute the

other 46-56 kilograms to Artiaga based on the evidence of a lengthy

and close drug-related relationship with Edward Sotelo.

c. Flores

Flores contends that the district court erred in raising his

offense level 2 levels for the drug-related kidnapping of Gilberto

Robles, because the kidnapping was not reasonably foreseeable to or

jointly undertaken by Flores. Flores does not deny that he was

present during the kidnapping, but claims that Gilberto testified

that Flores was not armed, that Flores attempted to help him, that

he was as much a prisoner as Gilberto and was threatened by the

Sotelos for trying to help Gilberto.

The Government replies that because Flores was actually

involved in the kidnapping, foreseeability was not an issue. The

only issue is whether the court’s factual finding is plausible in

light of the record as a whole. Given Flores’ undisputed

involvement in the underlying drug deal and in the kidnapping, the

district court’s finding is plausible. Further, the district court

sentenced Flores at the bottom of the guideline range, specifically

noting that he was taking into account Flores’ undefined assistance

to Gilberto during the kidnapping in determining the sentence.

CONCLUSION

33
 Based on the foregoing, we AFFIRM the convictions and

sentences of all Appellants.

AFFIRMED.

34