IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-50778
_____________________
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
LUIS ARMANDO RAMIREZ
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-95-CR-41)
_________________________________________________________________
January 14, 1997
Before KING, JOLLY, and DENNIS, Circuit Judges.
PER CURIAM:*
Luis Ramirez appeals his conviction for conspiracy with
intent to distribute in excess of 500 grams of cocaine and
possession with intent to distribute approximately two kilograms
of cocaine. Although the district court erred in refusing to
allow testimony from Ramirez going to the motive or bias of two
of the principal witnesses against him, we find that the error
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
1
was harmless. Therefore, we affirm.
I. BACKGROUND
A. Procedural History
Luis Ramirez was indicted by a grand jury on February 15,
1995. The indictment charged him, together with Juan Ayala,
Kenex Morales, and Gerardo Romero, with two counts: 1) conspiring
to distribute and possess with intent to distribute more than 500
grams of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1);
and 2) possessing with intent to distribute approximately two
kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2. Ayala, Morales, and Romero pleaded guilty, but
Ramirez proceeded to trial. Ramirez moved to suppress evidence
and statements obtained from the stop and search of his pickup
truck. The district court denied the motion after an evidentiary
hearing. After a jury trial, Ramirez was found guilty of both
counts of the indictment and was sentenced to 135 months
imprisonment, supervised release for five years, fines totaling
$500, and mandatory assessments totaling $100. Ramirez filed a
timely notice of appeal.
B. Statement of Facts
1. Testimony at the Pre-Trial Suppression Hearing
Drug Enforcement Agency (“DEA”) Special Agent Scott Holcomb
2
testified at the pre-trial suppression hearing that he received
information from a confidential informant that a person the
informant knew as “Juan” was trafficking in cocaine; that “Juan”
was going to secrete kilos of cocaine in a “prepared” vehicle and
deliver it to San Antonio; and that “Juan” would be traveling
with someone. The informant had seen “Juan” traffick in cocaine
on previous occasions, but did not know his last name or where he
lived. Based on this information, telephone information, and
utility checks, Houston DEA agents discovered the full name and
address of Juan Ayala.
On January 18, 1995, agents set up surveillance at Ayala’s
apartment. They observed Ayala, Ramirez, and Romero at the
apartment and then followed Ayala and Ramirez as the two drove
off in Ramirez’s truck. Holcomb testified that the Houston DEA
agents observed Ramirez using evasive driving techniques
“utilized to detect and try to lose any type of surveillance that
might be on them.” Ramirez drove to his house, but soon left
again, leaving Ayala at the house. Agents did not see either man
again until approximately 4:00 a.m. on January 19, when they
drove by Ramirez’s house and saw his truck.
Around 10:45 a.m. on January 19, agents observed Ramirez’s
truck at Ayala’s apartment, but the truck left before the agents
could set up proper surveillance or follow it. Around noon, the
informant notified the agents that Ayala was on his way to San
Antonio with the cocaine. Based on this information, agents in
3
San Antonio set up surveillance on the I-10 direct route from
Houston to San Antonio.
In the meantime, the Houston agents conducted a search of
the trash that Ayala had placed outside his door before he left.
The agents found what they believed to be evidence of cocaine:
two cocaine brick wrappings which contained what they believed to
be cocaine residue; four baking powder boxes containing some
baking powder, which is commonly used as a cutting agent in
cocaine; and instructions to a digital O Haus scale, commonly
used to measure out quantities of cocaine.
Sometime between 3:30 and 4:00 p.m., the San Antonio agents
spotted Ramirez’s truck coming into San Antonio. Around 5:00
p.m., the agents stopped the truck with the assistance of a San
Antonio marked police unit. The uniformed officers, along with
Special Agent Holcomb, his partner Arabit, and approximately
eight other officers and agents, approached the truck cautiously,
with their hands on their guns. Holcomb testified that they did
not threaten, harass, or use any physical force against either
Ramirez or Ayala. Agent Arabit asked the police officers to
handcuff both Ramirez and Ayala and take them into custody.
Arabit read the men their Miranda warnings and explained to them
that they had been stopped because there was reason to believe
that they were carrying cocaine. Ramirez acted very nervous, and
before the agents had a chance to ask for his permission to
search the truck he said, “There’s nothing in the truck. Go
4
ahead search.” The agents then specifically asked for Ramirez’s
permission to search the truck. Ramirez again said, “Go ahead
and search the truck. I don’t know what you’re talking about,
there’s nothing in the truck.” Ayala also gave his consent to
search the truck. After conducting a search of the truck, the
agents found two kilograms of cocaine inside a specially made
long rectangular speaker box behind the driver’s seat.
2. Testimony at Trial
Codefendants Romero, Morales, and Ayala testified for the
government at Ramirez’s trial, and Ramirez testified in his own
defense. We set out the relevant testimony of each of the four
codefendants in turn.
(i) Romero’s Testimony
Romero testified on direct that he had known Ramirez since
September of 1994. On the afternoon of January 18, 1995, Romero
went to Ayala’s apartment to pay him $500 for two ounces of
cocaine that he had received from Ayala and Ramirez the day
before. While he was at the apartment, he learned that Ayala and
Ramirez were going to make a shipment of about five kilograms of
cocaine to someone in San Antonio. Romero testified that Ramirez
arrived at the apartment, the men talked briefly, and Ayala and
Ramirez agreed to call him later, when everything was taken care
of. Ayala called Romero when Ayala was driving to San Antonio to
5
request that he find two additional kilograms of cocaine and
bring them to San Antonio. Ayala called Romero two more times
once he reached San Antonio. Romero was arrested because he was
bringing Ayala and Ramirez two of the four kilograms that were
involved in the transaction.
Romero testified that Ramirez and Ayala had supplied him
with cocaine on three or four prior occasions. On cross-
examination he stated that Ramirez had been present at only one
of the prior drug transactions; however, on re-direct, he stated
that Ramirez would come over before drug transactions to discuss
how much was needed, how long it would take to obtain that
amount, and the price. In essence, Romero testified that Ramirez
negotiated the prior drug transactions and Ayala delivered the
drugs.
On cross-examination, Romero admitted that he thought Ayala
and Ramirez had set him up and snitched on him and that he was
unhappy with them. He denied, however, that he had ever made a
statement that he would pay them back. He also denied that
vengeance was one of his primary motives for testifying.
(ii) Morales’ Testimony
Morales testified that he met Ramirez four or five years ago
and that they were friends. He testified that he had been
involved in four or five drug transactions with Ramirez, Ayala,
and Romero since September 1994. On cross-examination he
6
specified only three occasions and said that Ramirez was present
on only one of them. His testimony differed from Romero’s as to
the details of the transactions. Morales testified that in the
transaction involving Ramirez, Ramirez was the one with whom he
negotiated a price and quantity. Morales obtained the two
kilograms of cocaine that he and Romero brought to San Antonio
from a friend of his. On cross-examination, Morales admitted
that at the time he was arrested he thought Ramirez had snitched
on him and he was unhappy with Ramirez.
(iii) Ayala’s Testimony
Ayala began his involvement with Romero and Morales in
September 1994. Contrary to their testimony that he was selling
cocaine to them, Ayala testified that they were distributing
cocaine to him. Ayala testified that he never delivered cocaine
to Morales or Romero. He testified that he did not think Ramirez
ever talked to prospective buyers about the price or quantity of
drugs, although Ramirez did direct prospective buyers to Ayala.
Ayala testified that Ramirez was one of his best friends.
Ramirez introduced Ayala to people who wanted to buy cocaine, and
he was also involved with Ayala in distributing cocaine.
On January 18, 1995, Romero came to Ayala’s apartment, and
they discussed Ayala’s plan to take five kilograms of cocaine to
San Antonio. Ayala needed a ride because he did not have a
7
driver’s license. Ayala had made arrangements to meet with
Ramirez that day to ask him for a ride to San Antonio. Once
Ramirez arrived, the three men agreed to meet later to determine
who was going to go with Ayala to San Antonio. Ayala left with
Ramirez to go pick up a car from the shop and then the two men
returned to Ayala’s apartment. The car was not working very
well, so Ayala asked Ramirez if they could take his truck to San
Antonio. It was not unusual for Ayala to ask Ramirez to give him
a ride to deliver cocaine somewhere or to borrow Ramirez’s truck.
Ramirez came to Ayala’s apartment in the morning on January
19. Ayala told him that he was going to go pick up some cocaine.
Ramirez and Ayala left in separate cars. Ramirez was going to
follow Ayala to pick up the cocaine, but they got separated and
met back at the apartment after Ayala obtained the cocaine. At
that point, Ramirez agreed to give Ayala a ride to deliver the
cocaine. Ayala testified that Ramirez saw the cocaine and knew
why they were making the trip to San Antonio. They discussed
where to put the cocaine, and Ayala decided to put it in the
speaker box. Ramirez was standing right next to the truck when
Ayala put the cocaine in the speaker box. Ayala believed Ramirez
was able to see what he was doing. On redirect Ayala testified
that even if Ramirez had not seen him putting the cocaine in the
truck, Ramirez knew he was delivering cocaine because they had
talked about it the day before.
They left for San Antonio around noon. They were going to
8
party in San Antonio, and Ramirez was going to see his aunt.
Ayala’s wife accompanied them to San Antonio because she and
Ayala had a fight the night before and she had requested that
Ayala take her to her mother’s house in San Antonio.
Ayala called Romero on his cellular phone while they were
driving and asked him to bring more cocaine to San Antonio to
complete the five kilograms. Upon reaching San Antonio, they
dropped off Ayala’s wife and daughter at Ayala’s wife’s mother’s
house. From there Ayala and Ramirez intended to go deliver the
cocaine. The arrest ensued en route. After they were arrested,
at the request of the law enforcement officers involved, Ayala
telephoned Romero to arrange for the delivery of the additional
cocaine.
On cross-examination, Ayala testified that Ramirez had no
ownership interest in the cocaine and was not going to receive
any of the profit from its delivery. On redirect, however, Ayala
testified that Ramirez did get some profit or personal gain from
the sale of cocaine because Ayala would sometimes give him a
piece of what he got or pay his bills. Ayala and Ramirez did not
need to have a formal agreement because it was understood that
Ramirez would receive some benefit from helping Ayala distribute
cocaine.
Also on cross-examination, Ayala testified that he had two
prior convictions for possession of cocaine, for which he had
gone to jail and been deported. He re-entered the country
9
illegally in January 1994. He expected the government to
recommend a downward departure based on his testimony in court.
(iv) Ramirez’s Testimony
Ramirez testified that he first became aware that Ayala was
dealing drugs when Ayala was arrested for possession of cocaine
in 1992. Ramirez said that he had no direct knowledge that Ayala
was dealing drugs after his return to Houston in 1994, but he
assumed that he was. He also testified, however, that he gave
Ayala’s beeper number to his friends at work who wanted to buy
drugs. He was never involved in fixing the price or quantity of
the drugs, and he never personally delivered cocaine. He had no
idea that Ayala was dealing in such large quantities of cocaine.
Ramirez testified that he was working on the morning of
January 18, 1995, when Ayala called him and asked him to take him
to look at houses. When they were looking at houses that
afternoon, Ayala told Ramirez that he was probably going to go to
San Antonio the next day to take his wife to live at her mother’s
house. Ayala asked Ramirez to take him to San Antonio, and
Ramirez said if he gave Ayala a ride he would go and see his
aunt.
When Ramirez was at Ayala’s apartment the next morning, he
saw Ayala fiddling with the speakers in the truck, but he just
assumed that the speakers had become disconnected. Ramirez
testified that he did not know Ayala was taking cocaine to San
10
Antonio, and he would not have driven to San Antonio if he had
known. Ramirez recalled that Ayala had made a phone call during
the drive but said he had been talking to Ayala’s wife at the
time and had not been paying attention.
(v) Ramirez’s Proffer
The judge did not allow Ramirez to testify regarding threats
he had received from Romero and Morales when he was in a holding
cell with them. Ramirez made a proffer of the testimony he
wished to give outside the presence of the jury. Ramirez stated
that, after the detention hearing, he, Romero, and Morales were
all placed in the same holding cell. When it became apparent
that Ramirez was to be released on bail that day but Romero and
Morales were not, they tried to pick a fight with Ramirez,
asserting that he must have snitched on them. According to
Ramirez, they told him, “We’re going to testify against you.
And, if we don’t get you that way, we’re going to get you outside
the court.” When questioned by his attorney as to whether Romero
and Morales made threats against him to testify falsely, Ramirez
answered in the affirmative. Ramirez also wanted to introduce
evidence that Ayala’s wife told him that her uncle, who was in
the same prison cell as Romero and Morales, said they told him
they would get her, Ayala, their children, her mother, and
Ramirez.
II. DISCUSSION
11
A. Sixth Amendment Right to Confrontation
Ramirez argues that the district court abused its discretion
when it denied his attorney the opportunity to cross-examine
Romero and Ayala about threats made by Romero and Morales to
“get” Ramirez and Ayala and to testify falsely at Ramirez’s
trial. Ramirez contends that such cross-examination would have
shown Romero’s and Morales’ motive and bias to perjure their
testimony in favor of the government. Ramirez argues that the
district court’s ruling violated his Sixth Amendment right to
confrontation.
Cross-examination to expose a witness’ possible biases,
prejudices or motives for testifying is always relevant as
discrediting the witness and affecting the weight of his
testimony. Davis v. Alaska, 415 U.S. 308, 315 (1974); United
States v. Mizell, 88 F.3d 288, 292 (5th Cir. 1996). A defendant
states a violation of the Confrontation Clause by “showing that
he was prohibited from engaging in otherwise appropriate cross-
examination designed to show a prototypical form of bias on the
part of the witness.” Mizell, 88 F.3d at 293.
We review limitations on the scope of cross-examination for
clear abuse of discretion. United States v. Duncan, 919 F.2d
981, 988 (5th Cir. 1990), cert. denied, 500 U.S. 926 (1991). A
defendant’s Sixth Amendment rights do not “guarantee cross-
examination that is effective in whatever way, and to whatever
12
extent, the defense might wish.” Delaware v. Fensterer, 474 U.S.
15,20 (1985). “Trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on
such cross-examination based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only
marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986). A restriction on cross examination does not rise to the
level of a Sixth Amendment violation if the jury is otherwise
provided with sufficient information to evaluate the bias and
motives of a witness. Mizell, 88 F.3d at 293.
On cross-examination of Romero, Ramirez’s attorney
established that Romero had not known that Ayala was calling him
from jail and that if Romero had known Ayala was setting him up,
he never would have come to San Antonio. Romero admitted that
after he was arrested he thought Ayala and Ramirez had set him up
and snitched on him to get him arrested. However, when Ramirez’s
attorney asked, “And, you also, made statements in the Bexar
County Jail to Alejandro Isaac that you would do anything to make
sure that they paid for what they done to you. Isn’t that
true?”, the government objected on the grounds of improper
impeachment. The court sustained the objection. In response to
further questioning, Romero stated that he did not know Alejandro
Isaac, he had never said that he would pay Ayala and Ramirez
back, and vengeance was not one of his primary motives for
13
testifying. Ramirez’s attorney then moved on to question Romero
about different matters. Likewise, during cross-examination of
Ayala, the government objected, citing hearsay and testimonial
questions, when Ramirez’s attorney asked Ayala whether he had
received threats from Romero and Morales when they were in a
holding cell together. The court sustained the objection, and
Ramirez’s attorney moved on to a different topic.
Our examination of the record shows that the cross-
examination of Romero allowed by the district court in this case
was sufficient to allow a jury to appraise the co-conspirators’
biases and motives to testify against Ramirez. Furthermore, the
district court correctly sustained the government’s objections to
the cross-examination of Ayala regarding threats he had received.
As the government correctly noted, threats made to Ayala are not
relevant to the motives of Romero and Morales to testify against
Ramirez.
B. Admissibility of Extrinsic Evidence of Bias
The district court’s refusal to let Ramirez’s attorney
question him as to the threats he received from Romero and
Morales while they were in the holding cell together does not
violate the constitutional right that Ramirez identified in his
brief. Ramirez addresses this issue not as a limitation on his
own right to testify but as a restriction of his right to put on
14
extrinsic evidence going to the motive and bias of his
codefendants who are testifying against him.
A restriction on the testimony of Ramirez designed to show
the motive and bias of his codefendants, even if erroneous, does
not violate the Sixth Amendment right to confrontation. Instead,
such a restriction is an evidentiary ruling, and it is reviewed
under the abuse of discretion standard applied to all evidentiary
rulings.
The district court sustained the government’s objection to
the proffered testimony on the ground that Rule 608(b) does not
allow the use of extrinsic evidence to attack the credibility of
a witness. As the government admitted in its brief to this
court, the district court’s ruling on the proffered testimony,
based on Rule 608(b), was erroneous. Although Rule 608(b)
generally prohibits extrinsic evidence on the issue of
credibility, it does not prohibit extrinsic evidence relevant to
a witness’ bias or motive for testifying. United States v. Abel,
469 U.S. 45, 56 (1984).
Ramirez argues that the district court abused its discretion
in not letting his attorney question him regarding the threats
Romero and Morales made against him in the holding cell. We
agree. If the evidence had been admitted, it would have had a
tendency to show the biases and motives of Romero and Morales in
testifying against Ramirez. However, the district court’s
erroneous evidentiary ruling does not justify reversal of the
15
case.
Because this court is reviewing an erroneous evidentiary
ruling, and not the denial of a constitutional right, the court
must apply the harmless error standard of Federal Rule of
Criminal Procedure 52(a).1 United States v. Arroyo, 805 F.2d
589, 598 (5th Cir. 1986). The Supreme Court set out the correct
standard to use in evaluating error under Rule 52(a) in Kotteakos
v. United States, 328 U.S. 750 (1946). The test under Kotteakos
is whether the error “had substantial and injurious effect or
influence in determining the jury’s verdict.” Id. at 776.
The district court’s erroneous evidentiary ruling did not
substantially influence the jury verdict for several reasons.
Ramirez was convicted of participating in a conspiracy to sell
drugs “beginning on or before January 18, 1995 . . . and
continuing until January 20, 1995" and of possessing drugs on
January 19. Ayala testified that he had discussed the trip to
San Antonio with Ramirez and that Ramirez knew they were making a
drug delivery. Ramirez’s testimony as to the threats he received
would not have changed the jury’s evaluation of Ayala’s
testimony.
Second, Ramirez’s testimony tending to show bias would have
been largely cumulative of the cross-examination of Romero and
1
"Any error, defect, irregularity or variance which does not
affect substantial rights shall be disregarded.” FED. R. CRIM. P.
52(a).
16
Morales in which they admit that they thought that Ramirez had
snitched on them and that they were unhappy with him. The
additional contribution by Ramirez -- that Romero and Morales had
actually threatened to testify falsely against him -- would have
added little to the admitted evidence of their motives and bias.
The extent of cross-examination permitted was sufficient to alert
the jury to any possible bias or motive that Romero or Morales
might have in testifying against Ramirez. Furthermore, reason
for bias or motive is plainly evident from the facts of the case
-- that Ayala called Romero after Ayala and Ramirez had already
been arrested and told him to bring the cocaine to San Antonio.
In addition, jury instructions addressed the issue of bias and
motive, and Ramirez’s attorney argued it in his closing argument.
The court instructed the jury to receive the testimony of alleged
accomplices “with caution” and weigh it “with great care.” The
court also supplemented the pattern instruction regarding
credibility with language about bias.
Finally, the prosecution’s case is very strong overall. The
information from the confidential informant, the surveillance by
DEA agents, circumstantial evidence, and the testimony at trial
by witnesses besides Romero and Morales all point strongly
towards Ramirez’s knowing involvement in the distribution of
cocaine.
Thus, in light of the record as a whole, it cannot be said
that the error had a substantial influence on the judgment. See
17
Kotteakos, 328 U.S. at 765. Although the district court made an
erroneous evidentiary ruling, the error is harmless and does not
require reversal.
C. Requested Accomplice Instruction
Ramirez argues that the district court erred in denying his
requested instruction on accomplice testimony. We give the
district court wide latitude in formulating the jury instructions
and review a district court’s refusal to give a requested
instruction under an abuse of discretion standard. United States
v. Smithson, 49 F.3d 138, 142 (5th Cir. 1995). We reverse only
if the proposed instruction (1) is a correct statement of the
law, (2) was not substantially covered in the charge actually
delivered to the jury, and (3) concerns an important point in the
trial such that the failure to give it seriously impaired the
defendants’s ability to present an effective defense. United
States v. Gaytan, 74 F.3d 545, 553 (5th Cir. 1996). Denial of a
requested instruction is not error when its substance is implicit
in the instructions given. United States v. Ramirez, 963 F.2d
693, 705 (5th Cir.), cert. denied, 506 U.S. 944 (1992).
In this case, Ramirez requested Fifth Circuit Pattern Jury
Charge No. 1.15. The court ruled that it was “given as modified”
and gave No. 1.16 instead. These instructions are substantially
similar. No. 1.15, addressing the testimony of alleged
18
accomplices, paid informers, and those testifying in return for
immunity or personal advantage, states:
The testimony of an alleged accomplice, and the testimony of
one who provides evidence against a defendant as an informer
of the government for pay, or for immunity from punishment,
or for personal advantage or vindication must always be
examined and weighed by the jury with greater care and
caution than the testimony of ordinary witnesses. You, the
jury, must decide whether the witness’ testimony has been
affected by any of those circumstances, or by his interest
in the outcome of the case, or by his prejudice against the
defendant, or by the benefits he has received either
financially, or as a result of being immunized from
prosecution. If you determine that the testimony of such a
witness was affected by any one or more of those factors,
you should keep in mind that such testimony is always to be
received with caution and weighed with great care.
You should never convict any defendant upon the unsupported
testimony of such a witness unless you believe that
testimony beyond a reasonable doubt.
The charge employed by the court addressed only alleged
accomplices and stated:
In this case the government called as three of its
witnesses, alleged accomplices, named as a codefendant in
the indictment, with whom the government has entered into a
plea agreement, in which the government recommends a lesser
sentence, subject to acceptance or rejection by the Court,
than the codefendants would otherwise be exposed to for the
offense to which the codefendants pled guilty -- pleaded
guilty. Such plea bargaining, as it is called, has been
approved as lawful and proper and is expressly provided for
in the rules of this Court. An alleged accomplice,
including one who has entered into a plea agreement with the
government, is not prohibited from testifying. On the
contrary, the testimony of such a witness may, alone, be of
sufficient weight to sustain a verdict of guilty.
You should keep in mind that such testimony is always to be
received with caution and weighed with great care. You
should never convict a defendant upon the unsupported
testimony of an alleged accomplice unless you believe that
testimony beyond a reasonable doubt. The fact that an
accomplice has entered a plea of guilty to the offense
charged is not evidence in and of itself of the guilt of any
other person.
19
The district court also gave the pattern instruction regarding
credibility of witnesses and supplemented it with language about
bias. The instructions given by the district court correctly
stated the law, and the proposed instruction was substantially
covered in the charge actually given. Thus, the district court
did not abuse its discretion in refusing the requested jury
charge.
D. Evidence of Prior Drug Deals
Ramirez argues that the district court abused its discretion
by admitting testimony about his involvement in cocaine
transactions prior to the one for which he was arrested. This
court reviews a district court’s evidentiary rulings for abuse of
discretion. United States v. Davis, 19 F.3d 166, 171 (5th Cir.
1994).
Federal Rule of Evidence 404(b) excludes evidence of
extrinsic offenses to prove that a defendant acted in conformity
with his character. FED.R.EVID. 404(b). Such evidence may be
admitted, however, to prove motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident. Id. Furthermore, evidence of acts committed pursuant
to a conspiracy offered to prove a defendant’s participation in a
conspiracy is not extrinsic evidence and is therefore admissible.
United States v. Royal, 972 F.2d 643, 647 (5th Cir. 1992).
20
The district court found that evidence of cocaine
transactions among Ramirez, Ayala, Romero, and Morales in the
fall of 1994 was “intrinsic” evidence admissible to prove the
existence of a conspiracy. The district court found in the
alternative that the evidence of prior transactions was
admissible under Rule 404(b) to prove Ramirez’s knowledge of the
conspiracy and his intent to join it. Because the district court
found that the probative value of the evidence was not
substantially outweighed by undue prejudice and gave appropriate
limiting instructions regarding the evidence, the court’s
admission of the evidence was not an abuse of discretion.
E. Denial of Motion to Suppress
Ramirez argues that the district court erred in denying his
motion to suppress evidence. He challenges the vehicle stop,
detention, and the consensual search of his truck on the grounds
that the officers had neither reasonable suspicion nor probable
cause to stop his truck, he was placed under arrest without
probable cause, his consent to search was tainted by the unlawful
stop and arrest, and his consent to search was not voluntary.
In reviewing a district court’s ruling on a motion to
suppress based on live testimony, this court reviews findings of
fact for clear error but reviews the determination of reasonable
suspicion or probable cause de novo. Ornelas v. United States,
21
116 S.Ct. 1657, 1663 (1996). We review the evidence in the light
most favorable to the prevailing party in the district court and
view not only the evidence taken at the suppression hearing, but
also the evidence taken at trial. United States v. Cardenas, 9
F.3d 1139, 1147 (5th Cir. 1993), cert. denied, 114 S.Ct. 2150
(1994).
In denying the motion to suppress, the district court made
specific findings: that the informant was reliable, that the
officers had reasonable suspicion to stop Ramirez’s truck, that
Ramirez and Ayala were not placed under arrest at the time they
were detained, that Ramirez’s consent to search was voluntarily
given, and that the preponderance of the evidence showed that
Ramirez knew of his right to refuse consent.
DEA agent Holcomb testified at the suppression hearing about
the information he received from the confidential informant.
Holcomb had worked with this informant for four or five months
and had received other reliable information from him. The
informant’s information was also corroborated independently by
surveillance and the search of the trash outside Ayala’s door,
thus enhancing its credibility. Based on this information, an
experienced drug agent could reasonably believe that Ramirez and
Ayala were transporting cocaine.
The district court concluded that the agents had reasonable
suspicion to stop Ramirez’s truck. We think this conclusion was
correct. We would even suggest that the agents had probable
22
cause to stop the truck. We need not reach this conclusion,
however, because we agree with the district court that Ramirez’s
consent to search the truck was voluntarily given.
A finding of fact is clearly erroneous when, although there
is enough evidence to support it, the reviewing court is left
with a firm and definite conviction that a mistake has been
committed. United States v. United States Gypsum Co., 333 U.S.
364, 395 (1948). If the district court’s account of the evidence
is plausible in light of the record viewed in its entirety, the
court of appeals may not reverse it even though convinced that,
had it been sitting as the trier of fact, it would have weighed
the evidence differently. Anderson v. Bessemer City, 470 U.S.
564, 573-74 (1985). Our review of the record does not reveal
clear error in this case.
To be valid, consent to search must be knowing and
voluntary, based on the totality of circumstances. Schneckloth
v. Bustamonte, 412 U.S. 218, 227 (1973). The presence of
numerous officers and the fact that Ramirez was handcuffed at the
time he gave his consent to search the truck does not preclude
his consent from being voluntarily given. Ramirez volunteered
his consent to search the truck almost immediately after he was
stopped.
The government must prove that consent was given voluntarily
only by a preponderance of the evidence. United States v.
Yeagin, 927 F.2d 798, 800 (5th Cir. 1991). Six factors are
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relevant to a determination of the voluntariness of consent: “(1)
the voluntariness of the defendant’s custodial status; (2) the
presence of coercive police proceedings; (3) the extent and level
of the defendant’s cooperation with the police; (4) the
defendant’s awareness of his right to refuse consent; (5) the
defendant’s education and intelligence; and (6) the defendant’s
belief that no incriminating evidence will be found.” Id.
Based on the totality of circumstances in this case, the district
court did not commit clear error in finding that Ramirez’s
consent was voluntarily given.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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