United States v. Pena-Rodriguez

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-50077
__________________

United States of America,
Plaintiff-Appellee,

versus

Arturo Pena-Rodriguez, E. Wallace, Lloyd Maestas, Bob Alan
Dickinson, a/k/a “Fred”, a/k/a Robert Alan Dickinson, Leonard Gene
Lied, Avelino Gil-Terrazas, Ruben Gallegos, Hector Mendoza-Garcia,
and William Hobert Russell, a/k/a “El Indio”, a/k/a William Hobart
Russell,

Defendants-Appellants.

______________________________________________

Appeal from the United States District Court for the
Western District of Texas
______________________________________________

April 10, 1997

Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This case involves an appeal by eight appellants from

convictions for various narcotics offenses related to their roles

in an international narcotics-distribution organization. The

superseding grand jury indictment charged thirty-two defendants

with eight counts and resulted in a three-week trial involving

eighteen defendants. At trial, the government called over 100

witnesses and entered more than 800 exhibits into evidence. Each

of the appellants was convicted on the first count of the
indictment, which alleged a conspiracy to possess with the intent

to distribute marijuana and cocaine in violation of 21 U.S.C. §§

841(a)(1) & 846. In addition, appellants William Hobart Russell

and Leonard Gene Lied were convicted of count eight of the

indictment, which alleged a conspiracy to launder money in

violation of 18 U.S.C. § 1956(a)(1)(A)(I).

The convictions at issue were the result of an investigation

by law enforcement agencies that established the existence of a

large-scale drug conspiracy. The leaders of the organization were

Eduardo Gonzalez-Quirarte (“Gonzalez”) and Avelino Gil-Terrazas

(“Gil”). The organization imported marijuana and cocaine into El

Paso, Texas, and distributed the narcotics to various states

throughout the country, including California, Oklahoma, Indiana,

Florida, Colorado, and New Mexico. The organization transported

its contraband in pickup trucks, horse trailers, and semi-tractors

that contained hidden compartments.

Appellants contest their convictions on various grounds. In

addition, a number of the appellants challenge the district court’s

calculation of their sentences under the applicable Sentencing

Guidelines. For the reasons that follow, we AFFIRM the judgment of

the district court in all respects.

I. Sufficiency of the Evidence

Appellants Leonard Gene Lied, William Hobart Russell, Bob Alan

Dickinson, Ruben Gallegos, Maxwell Gene Wallace, and Arturo Pena-

Rodriguez argue that there is insufficient evidence to support

their convictions for conspiring to possess marijuana or cocaine

2
with the intent to distribute under count one. In addition, Lied

and Russell contend that the evidence was insufficient to support

their convictions under count eight for conspiring to launder

money. In conducting a sufficiency review, we must view the

evidence and the inferences therefrom in the light most favorable

to the jury’s verdict and determine whether “a rational trier of

fact could have found these defendants guilty beyond a reasonable

doubt.” United States v. Velgar-Vivero, 8 F.3d 236, 239 (5th Cir.

1993), cert. denied, — U.S. —, 114 S. Ct. 1865, 128 L.Ed.2d 486

(1994).

The elements of a drug conspiracy are: “(1) the existence of

an agreement between two or more persons to violate narcotics law;

(2) the defendant’s knowledge of the agreement; and (3) the

defendant’s voluntary participation in the agreement.” United

States v. Gonzalez, 76 F.3d 1339, 1346 (5th Cir. 1996). Similarly,

a conspiracy to launder money under § 1956(a)(1)(A)(I) requires

proof that “(1) there is a conspiratorial agreement, (2) one

conspirator knowingly commits an overt act by participating in a

financial transaction, (3) the financial transaction involves the

proceeds of an unlawful activity, (4) the conspirator participating

in the transaction had the intent to promote or further that

unlawful activity, and (5) the transaction affected interstate or

foreign commerce.” United States v. Fierro, 38 F.3d 761, 768 (5th

Cir. 1994), cert. denied, — U.S. —, 115 S. Ct. 1431, 131 L.Ed.2d

312 (1995).

This court has recognized that “[a] jury may infer the

3
elements of a conspiracy conviction from circumstantial

evidence....” United States v. Leal, 74 F.3d 600, 606 (5th Cir.

1996). We have also held that “a guilty verdict may be sustained

if supported only by the uncorroborated testimony of a

coconspirator, even if the witness is interested due to a plea

bargain or promise of leniency, unless the testimony is incredible

or insubstantial on its face.” United States v. Bermea, 30 F.3d

1539, 1552 (5th Cir. 1994), cert. denied, — U.S. —, 115 S. Ct.

1825, 131 L.Ed.2d 746 (1995). “Testimony is incredible as a matter

of law only if it relates to facts that the witness could not

possibly have observed or to events which could not have occurred

under the laws of nature.” Id.

With these principles in mind, we find that the following

evidence presented by the government was sufficient to sustain each

of the convictions against the appellants.

A. The Dallas Appellants

The evidence against Lied, Russell, and Dickinson

(collectively “the Dallas Appellants”) consisted primarily of the

testimony of Felipe Madrid, Jr., a co-conspirator, governmental

informant, and owner of United Freight Service (“UFS”), the

corporation through which the Dallas Appellants conducted their

drug-trafficking activities. Madrid testified that in the summer

of 1990 he met with Gonzalez, Gil, and Lied to plan what they were

going to do with “the proceeds of marijuana.” According to Madrid,

he served as an interpreter and middle man for the drug

organization, wherein Gonzalez was the supplier and Lied was

4
Gonzalez’s original distributor in the Dallas area. Madrid

testified that this organization began operating in the fall of

1990.

Madrid described the organization’s standard procedure for

handling a load of marijuana. The process began when Gonzalez

arranged for Madrid to pick up marijuana from various locations in

El Paso with his van. Madrid then took the marijuana to a “stash

house” located on Dale Douglas Street in El Paso where it was

weighed and repackaged in small boxes. The small boxes of

marijuana were then placed in the van and transported to a

warehouse on Rojas Street in El Paso. At the warehouse, Madrid

placed the small boxes of marijuana inside larger boxes, filled the

larger boxes with Styrofoam, and loaded an 18-wheeler with the

larger boxes. Madrid then drove the 18-wheeler to one of two

warehouses rented by the organization in the Dallas area.

More specifically, Madrid testified that on one occasion Gil

gave him a three- to five-pound sample of marijuana that he took to

Lied.1 Madrid also testified that it was standard procedure for

him to give a copy of the recorded weights of shipments of

marijuana to Lied. Those weights were used to determine how much

the particular load of marijuana was worth. In addition, the

weights were relevant because Lied paid Madrid for his work at the

rate of $15 per pound of marijuana that he hauled. Madrid

testified that he had an ongoing discussion with Lied regarding the

1
Samples are used in the drug trade to demonstrate the general
quality of the merchandise, which, in turn, affects the price that
the distributor must pay for the goods.

5
delivery of money to Gonzalez for marijuana. On at least a few

occasions, Lied gave Madrid drug money that he subsequently

delivered to Gonzalez. Moreover, on one occasion in which drug

money was transferred, Madrid testified that he, Gonzalez,

Gallegos, and Lied were all present. The amounts of these drug

payments ranged from $150,000 to $700,000.

Dickinson was the freight manager for UFS. While it is

undisputed that Dickinson handled a sizable amount of legitimate

cargo hauled by UFS, Madrid testified that Dickinson also

participated in the organization’s drug-trafficking activities.

For example, the organization’s stash house on Dale Douglas was

rented in Dickinson’s name. Moreover, Madrid testified that

Dickinson sometimes helped him weigh and repackage the marijuana at

the stash house. Finally, Madrid testified that it was “his

belief” that on several occasions Dickinson drove trucks that he

knew were full of marijuana and picked up drug money. Finally,

Madrid testified that Dickinson sometimes helped him count the

money that they received for marijuana. 2 In this regard, in the

fall of 1991, Dickinson and Madrid complained to each other about

the infrequency and insufficient amounts of Lied’s most recent

payments.

Madrid testified that on one occasion in late December of

1991, he saw Russell at the organization’s warehouse in Forney,

Texas. Russell was talking to several of the organization’s

2
Dickinson was acquitted of money laundering, however, when the
jury failed to reach a verdict on that count. See FED. R. CRIM. P.
29.

6
Dallas-based employees and was aware that Madrid was unloading

marijuana. According to Madrid, Russell’s appearance at the

warehouse coincided with a change in management in the organization

whereby Lied broke off his ties to the organization and Russell

took over Lied’s role as distributor in the Dallas area. Madrid

testified that Russell paid him approximately $20,000 or $30,000

for transporting marijuana on one occasion.

Madrid’s active participation in the organization involving

the Dallas Appellants concluded in April 1992 when he was arrested

and later convicted on an unrelated charge. Madrid testified that

the organization owed him approximately $250,000 in “back pay” at

the time of his arrest. Madrid told his ex-wife, Gloria Stitt,

that any money that he was owed would come from Russell and that

she could keep whatever she could procure for their children.

Stitt, a paid governmental informant, enlisted the aid of her

brother, Henry Garcia, to procure some of the money owed Madrid by

the organization. Garcia wrote Madrid a letter in which Garcia

stated that “El Indio wants me to ask what you want done with your

cake....” Madrid testified that “El Indio” was Russell’s nickname

and that “cake” was code for “money” in the organization. Madrid

subsequently sent Stitt to pick up the money from Garcia. Garcia

gave Stitt a box containing large denominations of cash totaling

$60,000. Stitt turned the box and the money over to the

government, and at trial she testified consistently with Madrid

about these events.

From such evidence, the jury could rationally have concluded

7
beyond a reasonable doubt that each of the Dallas Appellants

knowingly and voluntarily participated in a conspiracy to possess

with the intent to distribute marijuana. The foregoing evidence

was also sufficient to sustain the convictions of Lied and Russell

for engaging in a conspiracy to launder money. Specifically,

Madrid testified that he received large sums of drug money from

Lied and delivered those proceeds to Gonzalez. Furthermore,

significant evidence was presented that Russell transferred $60,000

in drug proceeds to Garcia as “backpay” for the work Madrid had

done on behalf of the organization. See United States v. Flores,

63 F.3d 1342, 1361 (5th Cir. 1995), cert. denied, — U.S. —, 117 S.

Ct. 87, 136 L.Ed.2d 43 (1996); United States v. Puig-Infante, 19

F.3d 929, 937-42 (5th Cir.), cert. denied, — U.S. —, 115 S. Ct.

180, 130 L.Ed.2d 115 (1994).

B. The Oklahoma Appellants

The evidence to sustain convictions presented against

Appellants Wallace and Pena-Rodriguez (collectively “the Oklahoma

Appellants”) came primarily from the testimony of two co-

conspirators and governmental informants, Clifford W. Mengers and

Randall Bowers. Mengers testified that he was a professional truck

driver and small-time drug dealer in Oklahoma. On one occasion,

Wallace called Mengers and asked for his help in backing up a horse

trailer near Wallace’s garage. The horse trailer, which Mengers

understood had come from El Paso, had Texas license plates and a

hidden compartment that contained marijuana. Mengers testified

that he observed Wallace and Jose Gomez remove marijuana from the

8
trailer’s hidden compartment.3

Mengers also testified that Wallace told him on several

occasions that Wallace was expecting to receive cocaine from a man

named Arthur. Mengers testified that it was his understanding that

“Arthur” was Appellant Pena-Rodriguez because Pena-Rodriguez was

the only Arthur that Mengers knew. On one occasion, in fact,

Mengers found several kilograms of cocaine in the trunk of

Wallace’s car, which was being stored in Mengers’s garage.

Randall Bowers testified that in 1990, Jose Gomez and he drove

a horse trailer containing 350 pounds of marijuana to Wallace’s

house. Bowers noted that both Wallace and Pena-Rodriguez helped

Gomez and him unload the trailer. Bowers also testified that he

delivered a load of marijuana to Pena-Rodriguez in early 1991. As

compensation for his work, Pena-Rodriguez gave Bowers use of a

fancy Chevrolet pickup truck known as “the Boss.”

The foregoing evidence was sufficient for a rational jury to

conclude beyond a reasonable doubt that Wallace and Pena-Rodriguez

knowingly and voluntarily participated in a conspiracy to possess

with the intent to distribute marijuana and cocaine.

C. Ruben Gallegos

Appellant Gallegos was a part owner of the Truck Center of El

Paso along with his brother, Art Gallegos, and Eduardo Gonzalez.

3
Evidence that the horse trailer came from El Paso and contained
a hidden compartment indicates that this marijuana was part of the
larger conspiracy charged in the indictment. Moreover, a variety
of evidence in the record ties Jose Gomez, a charged co-
conspirator, to other participants in the conspiracy, including
Randall Bowers.

9
According to the government’s theory of the case, Gallegos’s role

in the organization consisted primarily of providing vehicles for

the shipment of marijuana and cocaine, as well as constructing

false fuel tanks that were used to store contraband during its

transportation. Gallegos had the distinction of being the only

appellant who was the subject of testimony by both of the

government’s star witnesses, Felipe Madrid, Jr. and Randall Bowers.

Bowers testified that he transported some false fuel tanks

that were constructed in California to El Paso and gave them to

Gallegos. When Bowers delivered the tanks, Gallegos told him that

some of the other tanks used by the organization for smuggling had

leaks in them. Gallegos knew this to be the case because he had

tested the tanks with water and the tanks leaked. Gallegos

expressed concern both that diesel fuel was leaking from the tanks

onto the pavement and that fuel was entering into the compartment

that stored contraband. Despite this quality control concern,

Gallegos accepted the tanks from Bowers.

On another occasion, Bowers picked up a load of cocaine from

Avelino Gil’s house. Bowers met with Avelino and Norma Gil while

waiting for his truck to be loaded. During the ensuing discussion,

Gallegos entered the room and announced that “it was ready.”

Bowers testified that he understood this statement to mean that the

altered fuel tanks were ready. Bowers also testified that when

Gallegos entered, he was covered with “bondo” dust. Other

testimony in the record established that bondo was used to seal the

false fuel tanks used by the organization after the tanks were

10
filled with contraband.

Madrid testified that on one or two occasions, when Gonzalez

was not available, Gallegos coordinated the pick up of a load of

marijuana. Moreover, Gallegos was present when Madrid (on Lied’s

behalf) transferred $700,000 in drug money to Gonzalez, and

Gallegos saw the suitcase that contained the money. Finally, on

the day that Madrid was arrested, he had a number of calling cards

in his possession. The names and numbers on these cards were in

code, presumably to protect the subjects’ identities. Madrid

testified that one of these cards contained the coded names and

phone numbers corresponding to Gallegos, Gil, and Gonzalez.

Again, this evidence was sufficient for a rational jury to

conclude beyond a reasonable doubt that Gallegos knowingly and

voluntarily participated in a conspiracy to possess with the intent

to distribute narcotics.

II. Multiple Conspiracies

Appellants Lied, Dickinson, Russell, Wallace, and Gallegos

argue that a fatal variance existed between the indictment, which

alleged a single conspiracy, and the proof at trial, which

established the existence of two or more separate and independent

conspiracies. Appellants claim that they were prejudiced by the

transference of guilt created by voluminous evidence of illegal

activity implicating unrelated defendants with whom they were

tried. See Kotteakos v. United States, 328 U.S. 750, 774, 66 S.

Ct. 1239, 90 L.Ed 1557 (1946); United States v. Sutherland, 656

F.2d 1181, 1196 (5th Cir. 1981), cert. denied, 455 U.S. 949, 102 S.

11
Ct. 1451, 71 L.Ed.2d 663 (1982). In other words, the appellants

argue that the prosecution violated “the[ir] right not to be tried

en masse for the conglomeration of distinct and separate offenses

committed by others.” Kotteakos, 328 U.S. at 775.

To prevail on this claim, the appellants must prove that (1)

a variance existed between the indictment and the proof at trial,

and (2) the variance affected their substantial rights. United

States v. Morris, 46 F.3d 410, 414 (5th Cir.), cert. denied, — U.S.

—, 115 S. Ct. 2595, 132 L.Ed.2d 842 (1995). “To determine whether

a variance existed between the indictment and the proof at trial,

the number of conspiracies proved at trial must be counted.” Id.

at 415. Whether the evidence shows one or multiple conspiracies is

a question of fact for the jury. United States v. Guerra-Marez,

928 F.2d 665, 671 (5th Cir.), cert. denied, 502 U.S. 917, 112 S.

Ct. 322, 116 L.Ed.2d 461 (1991). “The principal considerations in

counting conspiracies are (1) the existence of a common goal, (2)

the nature of the scheme, and (3) the overlapping of participants

in the various dealings.”4 Morris, 46 F.3d at 415. A jury’s

finding that the government proved a single conspiracy must be

affirmed unless the evidence viewed in the light most favorable to

the government would preclude reasonable jurors from finding a

4
This circuit has also looked to a different set of factors to
count the number of conspiracies proven at trial. These factors
include: “(1) the time period involved, (2) the persons acting as
co-conspirators, (3) the statutory offenses charged in the
indictment, (4) the nature and scope of the criminal activity, and
(5) the places where the events alleged as the conspiracy took
place.” United States v. Thomas, 12 F.3d 1350, 1357 (5th Cir.),
cert. denied, 511 U.S. 1095, 114 S. Ct. 1861, 128 L.Ed.2d 483
(1994).

12
single conspiracy beyond a reasonable doubt. Id.

Appellants argue that a functional analysis of the proof at

trial establishes the existence of at least two separate and

independent conspiracies.5 These conspiracies were purportedly

identified and described by the government’s two star witnesses,

Bowers and Madrid, neither of whom mentioned the other in his

testimony. According to the appellants, the following factors

indicate that Bowers and Madrid described two separate and

independent conspiracies: (1) the “Bowers conspiracy” distributed

both cocaine and marijuana, whereas the “Madrid conspiracy”

distributed only marijuana; (2) the Bowers conspiracy packaged its

narcotics at “stash houses” located on Thunder Road and Gage Road

in El Paso, whereas the Madrid conspiracy packaged its drugs on

Dale Douglas and Rojas Streets in El Paso; (3) the Bowers

conspiracy transported its drugs in vehicles with false

compartments, whereas the Madrid conspiracy transported its

vehicles in unaltered vans and semi-trailers; (4) the Bowers

conspiracy distributed its drugs to Indiana, New Mexico, Oklahoma,

and California, whereas the Madrid conspiracy distributed its drugs

to Dallas; and (5) the Bowers conspiracy operated from May 1987

through 1993, whereas the Madrid conspiracy operated only from the

summer of 1991 until April 1992. In sum, the appellants argue that

the two conspiracies packaged different drugs at different places

5
See Morris, 46 F.3d at 415 & n.2 (noting that this court has
moved away from a structural and formal examination of the criminal
enterprise toward a more functional and substantive analysis).

13
and distributed them to different locations at different times.

In contrast, the government argues that the proof at trial,

viewed in the light most favorable to the verdict, was sufficient

for a rational jury to find a single conspiracy beyond a reasonable

doubt. The government contends that this court’s past application

of each of the factors it has deemed relevant to counting

conspiracies supports the government’s position in this case.

First, the government claims that each member of this conspiracy

had the common goal of deriving personal gain from the procurement

and distribution of controlled substances.6 Second, the government

contends that the nature of this conspiracy was such that its

success “depended on the continued willingness of each member to

perform his function.”7 Finally, the government contends that “[a]

single conspiracy exists where a ‘key man’ is involved in and

6
See id. (noting that this court has defined a common goal so
broadly that the requirement may have “become a mere matter of
semantics”) (quoting United States v. Richerson, 833 F.2d 1147,
1153 (5th Cir. 1987)).
7
Id. at 416 (quoting Richerson, 833 F.2d at 1154). In concluding
that the nature of a criminal scheme evidenced a single conspiracy,
the Morris court explained:

If the sellers discontinued selling, there would be no
cocaine for [the distributor] and the purchasers to buy.
The necessity of a steady cocaine supply to feed a
distribution effort is beyond question. Likewise, the
distribution effort is critical to the success of the
suppliers. If the purchasers ceased to buy, there would
be no reason for [the distributor] to buy from the
sellers, and hence no reason for the sellers to acquire
the cocaine. Thus, although the sellers and the
purchasers may not have had a direct relationship with
each other, each was necessary for the continued success
of the venture.

Id. (internal quotations and citations omitted).

14
directs illegal activities, while various combinations of other

participants exert individual efforts toward a common goal.”8

According to the government, Gonzalez and Gil, the organization’s

alleged kingpins, were the “key men” in this conspiracy.

A thorough review of the record establishes that Gonzalez and

Gil were, in fact, the leaders of an organization based in El Paso

that was supplying marijuana and cocaine to various distributors in

California, Oklahoma, Indiana, Florida, Colorado, New Mexico, and

Texas. The evidence also establishes that appellant Gallegos

helped Gonzalez and Gil in their efforts to supply narcotics to

other appellants on several occasions. Other than a common source

of supply, however, the evidence does not establish any

interdependence between Gonzalez’s and Gil’s various distributors.

Complicating our inquiry, moreover, is the fact that Gonzalez and

Gil, the “key men” allegedly tying the conspiracy together, were

fugitives from justice who were not present at trial. In any

event, we pretermit a finding on the existence of a variance

because even if one is assumed, we conclude that the appellants

cannot establish that any variance that existed affected their

substantial rights.

In Kotteakos v. United States, 328 U.S. at 766, the Supreme

Court found that a group of defendants had been sufficiently

prejudiced by a variance to justify reversal. In reaching its

decision, the Court emphasized the size and complexity of the

conspiracies involved. More important, however, the Court found

8
Id. (quoting Richerson, 833 F.2d at 1154).

15
that prejudice inhered in the trial because of “[t]he dangers of

transference of guilt from one to another across the line

separating conspiracies.” Id. at 774. The Court concluded that

“[i]n the final analysis judgment in each case must be influenced

by conviction resulting from examination of the proceedings in

their entirety, tempered but not governed in any rigid sense of

stare decisis by what has been done in similar situations.” Id. at

762.

This court has “long held that when the indictment alleges the

conspiracy count as a single conspiracy, but the government proves

multiple conspiracies and a defendant’s involvement in at least one

of them, then clearly there is no variance affecting that

defendant’s substantial rights.” United States v. Faulkner, 17

F.3d 745, 762 (5th Cir.), cert. denied, — U.S. —, 115 S. Ct. 193,

130 L.Ed.2d 125 (1994) (internal quotations and citations omitted).

We have also pointed out, however, that we have never held this

general rule to be absolute. Id. In this regard, we have

acknowledged that such an absolute rule would be hard to square

with Kotteakos. Id. at 762 n.20.

In United States v. Faulkner, we elaborated on the requisites

of establishing a fatal variance in this circuit:

[The] doctrine regarding variance between an indictment
alleging a single conspiracy and proof of separate
conspiracies is but one subset of the general concerns of
improper joinder and severance. We therefore conclude
that where the indictment alleges a single conspiracy and
the evidence establishes each defendant’s participation
in at least one conspiracy[,] a defendant’s substantial
rights are affected only if the defendant can establish
reversible error under general principles of joinder and
severance.

16
Id. at 762 (footnote omitted). Thus, we look to the law of joinder

and severance to determine whether the appellants’ substantial

rights were affected in this case.

In this regard, Rule 14 of the Federal Rules of Criminal

Procedure provides that a court may order a severance “[i]f it

appears that a defendant or the government is prejudiced by a

joinder of offenses or of defendants in an indictment or

information or by such joinder for trial together....” FED. R.

CRIM. P. 14. A denial of a motion for severance is reviewed for an

abuse of discretion. Faulkner, 17 F.3d at 759. To satisfy this

standard of review, the defendant “bears the burden of showing

specific and compelling prejudice that resulted in an unfair trial

and such prejudice must be of a type against which the trial court

was unable to afford protection.” Id. (internal quotations and

citations omitted). Any possibility of prejudice, moreover, must

be balanced against the public’s interest in the efficient

administration of justice. United States v. Hernandez, 962 F.2d

1152, 1158 (5th Cir. 1992). “The rule, rather than the exception,

is that persons indicted together should be tried together,

especially in conspiracy cases.” United States v. Pofahl, 990 F.2d

1456, 1483 (5th Cir.), cert. denied, — U.S. —, 114 S. Ct. 266, 126

L.Ed.2d 218 (1993).

A number of factors lead us to conclude that the appellants

did not suffer specific and compelling prejudice resulting in a

fatal variance. First, the evidence was sufficient to prove each

appellant’s participation in at least one conspiracy. See Part I,

17
supra; Faulkner, 17 F.3d at 762. In addition, the district court’s

multiple conspiracy jury instruction safeguarded the appellants

against the possibility of guilt transference.9 This court has

found similar instructions sufficient to cure any possibility of

prejudice in other cases. See, e.g., Faulkner, 17 F.3d at 759;

Guerra-Marez, 928 F.2d at 672.

We are also persuaded that evidence exists that the jury was,

in fact, able to follow the evidence and reach a fair and impartial

verdict against each appellant. See United States v. Diaz-Munoz,

9
The district court’s instruction provided:

You are instructed that proof of several separate
conspiracies is not proof of a single, overall conspiracy
unless one of the several conspiracies which is proved is
the conspiracy charged in Count One of the indictment.
What you must do is determine whether the single
conspiracy charged in Count One existed between two or
more defendants. If you find no such conspiracy existed,
then you must acquit all of the defendants as to that
charge. However, if you are satisfied that the
conspiracy alleged in Count One existed, you must
determine who were the members of that conspiracy.
You are further instructed that proof of several
separate conspiracies is not proof of a single, overall
conspiracy unless one of the several conspiracies which
is proved is the conspiracy charged in Count Eight of the
indictment. What you must do is determine whether the
single conspiracy charged in Count Eight existed between
two or more defendants. If you find no such conspiracy
existed, then you must acquit all of the defendants as to
that charge. However, if you are satisfied that the
conspiracy alleged in Count Eight existed, you must
determine who were the members of that conspiracy.
If you find that a defendant was a member of another
conspiracy, but not the one charged in Count One or the
one charged in Count Eight of the indictment, then you
must acquit that defendant as to that count. In other
words, you must find that he or she was a member of the
conspiracy charged in the indictment and not some other
separate conspiracy.

18
632 F.2d 1330, 1337 (5th Cir. 1980) (recognizing that the inquiry

regarding prejudice involves whether the jury can “keep separate

the evidence that is relevant to each defendant and render a fair

and impartial verdict as to him?”). Although the jury did not

acquit any of the defendants at trial, it was unable to reach a

verdict on two counts, which were eventually dismissed pursuant to

Rule 29 of the Federal Rules of Criminal Procedure. Cf. Faulkner,

17 F.3d at 759. One of the charges on which the jury hung was the

money laundering charge against Gallegos under count eight of the

indictment. The relevant evidence on this count included Madrid’s

testimony that he transferred a suitcase containing approximately

$700,000 in drug proceeds to Gallegos in the presence of Gonzalez

and Lied. Madrid testified that Gallegos saw the suitcase but “not

necessarily” the money inside. Given this evidence, the jury’s

failure to reach a verdict on this count supports an inference that

it was able to consider each defendant and each charge separately.

Finally, we note that the verdicts against the appellants in

this case did not turn on particularly complex evidence that was

likely to confuse the jury. The government implicated the

appellants by relying almost exclusively on the direct testimony of

co-conspirators and governmental informants. Such testimony was

precise in establishing that each of the appellants knew of and

participated in a drug conspiracy. While the appellants attempted

to discredit the reliability of these witnesses at every stage of

the proceedings, their strategy did not work. Instead, the jury

chose to believe the government’s witnesses and return guilty

19
verdicts. There was no danger that the criminal acts of some would

be carried over to the others because the culpability of each was

clearly and distinctly proved. In circumstances such as these,

when a pure credibility determination was at issue, we are not

inclined to disturb a decision that was quite properly and directly

within the jury’s province.

III. Fourth Amendment Search

At trial, appellant Lloyd Phillip Maestas moved to suppress

evidence attained during a February 27, 1994 search of his ranch in

New Mexico because the material facts alleged in the affidavit for

the search warrant were based on stale information. The district

court found that the information upon which the affidavit was based

indicated a long-standing, ongoing pattern of criminal activity.

The district court, therefore, concluded that the warrant was

supported by probable cause and denied Maestas’s suppression

motion. On appeal, Maestas contends that the district court’s

decision constituted reversible error.

This court engages in a two-step review of a district court’s

denial of a defendant’s motion to suppress. United States v.

Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992). The first step

requires the court to determine whether the good-faith exception to

the exclusionary rule applies. See United States v. Leon, 468 U.S.

897, 922-23, 104 S. Ct. 3405, 82 L.Ed.2d 677 (1984). The second

step requires the court “to ensure that the magistrate had a

substantial basis for ... concluding that probable cause existed.”

Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 76

20
L.Ed.2d 527 (1983) (internal quotation omitted). If the good-faith

exception applies, the court need not reach the question of

probable cause. Satterwhite, 980 F.2d at 320; see also United

States v. Craig, 861 F.2d 818, 820 (5th Cir. 1988) (“Principles of

judicial restraint and precedent dictate that, in most cases, we

should not reach the probable cause issue if a decision on the

admissibility of the evidence under the good-faith exception of

Leon will resolve the matter”).10

In Leon, the Supreme Court established the good-faith

exception, holding “that evidence obtained by law enforcement

officials acting in objectively reasonable good-faith reliance upon

a search warrant is admissible in the prosecution’s case-in-chief,

even though the affidavit on which the warrant was based was

insufficient to establish probable cause.” Craig, 861 F.2d at 821

(citing Leon, 468 U.S. at 922-23). “Issuance of a warrant by a

magistrate normally suffices to establish good faith on the part of

law enforcement officers who conduct a search pursuant to the

warrant.” Id. Law enforcement officers cannot establish objective

good faith, however, when the warrant is “based on an affidavit ‘so

lacking in indicia of probable cause as to render official belief

in its existence entirely unreasonable.’” Id. (quoting Leon, 468

10
We have indicated that “[t]he only instances in which this maxim
should not be followed are those in which the resolution of a
‘novel question of law ... is necessary to guide future action by
law enforcement officers and magistrates.’” Craig, 861 F.2d at 820-
21 (quoting Gates, 462 U.S. at 264 (White, J., concurring)).
Moreover, we recognized in Craig that “whether the facts alleged in
the affidavit were so dated that they failed to establish probable
cause at the time the warrant was issued” does not raise a novel
question of law. Id. at 821.

21
U.S. at 923). See, e.g., United States v. Jackson, 818 F.2d 345,

350 & n.8 (5th Cir. 1987) (concluding that a “bare bones” affidavit

did not justify good-faith reliance on a warrant); United States v.

Barrington, 806 F.2d 529, 531-33 (5th Cir. 1986) (same).

To prevail on his fourth amendment claim, Maestas must

establish that the facts alleged in the affidavit were so dated

that no reasonable officer could have believed that the affidavit

established probable cause to search his ranch. Craig, 861 F.2d at

822. In addressing a similar staleness claim in United States v.

Craig, we explained:

Two considerations have consistently appeared in this
court’s opinions on the issue of staleness. First, if
the information of the affidavit clearly shows a long-
standing, ongoing pattern of criminal activity, even if
fairly long periods of time have lapsed between the
information and the issuance of the warrant, the
information need not be regarded as stale. Second, the
nature of the evidence sought is also relevant. Courts
are more tolerant of dated allegations if the evidence
sought is of the sort that can reasonably be expected to
be kept for long periods of time in the place to be
searched.

Id. at 822-23 (internal quotations and citations omitted).

The affidavit in the instant case was not so lacking in

indicia of probable cause as to render good-faith reliance on a

warrant issued pursuant to it entirely unreasonable. The affidavit

included information provided by Bowers that set forth the

existence of a large-scale and ongoing drug-distribution

enterprise. According to Bowers, Maestas’s ranch was used by the

organization as a distribution point for the shipment of marijuana

and cocaine to California, Oklahoma, and Indiana. Bowers claimed

that these drugs were transported in the hidden compartments of

22
horse trailers, pickup trucks, and semi-tractors. Approximately

six months prior to execution of the contested search warrant,

Bowers accompanied federal agents to New Mexico where he pointed

out Maestas’s ranch and identified several vehicles on the property

that Bowers had used to transport drugs.

The affidavit also contained the contemporary observations of

government agents that tended to corroborate the information

provided by Bowers. Aerial surveillance of Maestas’s ranch three

days before the contested search produced photographs of several

horse trailers and a semi-tractor that were consistent with

vehicles described by Bowers. In addition, when Maestas was

arrested the day before the contested search, the officers

executing Maestas’s arrest warrant observed in plain view a number

of vehicles fitting Bowers’s description. The officers also

observed extra saddle fuel tanks (allegedly used by the

organization to store contraband) in plain view on the property.

Finally, on the day preceding the contested search, a related

search of Gil’s property produced a horse trailer with a false

compartment that was registered to “Maestas Farms.”

Maestas argues that the corroborative evidence gathered by the

government contemporaneously with its application for a search

warrant should be discarded because the evidence is consistent with

the innocent activities of a legitimate rancher. This argument is

unavailing. Both the Supreme Court and this circuit have

recognized that “innocent behavior frequently will provide the

basis for a showing of probable cause.” Gates, 462 U.S. at 243

23
n.13; see also United States v. Mendez, 27 F.3d 126, 129 (5th Cir.

1994). Taken together, the information provided by Bowers and the

contemporary, corroborative evidence gathered by the government

were sufficient for a reasonable officer to believe that the

challenged warrant was based on probable cause. Thus, the good-

faith exception applies, and the district court did not err in

denying Maestas’s motion to suppress.

IV. Conclusion

We have considered the other points of error raised by the

appellants and have concluded that they are without merit. First,

Mendoza-Garcia’s double jeopardy claim based on Grady v. Corbin,

495 U.S. 508, 510, 110 S. Ct. 2084, 109 L.Ed.2d 548 (1990), is

rejected because Grady was overruled by United States v. Dixon, 509

U.S. 688, 703-04, 113 S. Ct. 2849, 125 L.Ed.2d 556 (1993).11

Second, the appellants’ contention that the district court’s

instructions to the jury impermissibly amended the indictment by

broadening the charged offense from a conspiracy to possess with

the intent to distribute “marijuana and cocaine” to a conspiracy to

possess with the intent to distribute “marijuana or cocaine” is

rejected. We have held that “a disjunctive statute may be pleaded

conjunctively and proved disjunctively.” United States v. Johnson,

11
To prevail on his double jeopardy claim after Dixon, Mendoza-
Garcia must establish that his conviction violates the same offense
rule announced in Blockburger v. United States, 284 U.S. 299, 304,
52 S. Ct. 180, 76 L.Ed. 306 (1932). Mendoza-Garcia cannot make
this showing. A long line of Supreme Court authority has
established “the rule that a substantive crime and a conspiracy to
commit that crime are not the ‘same offence’ for double jeopardy
purposes.” United States v. Felix, 503 U.S. 378, 389, 112 S. Ct.
1377, 118 L.Ed.2d 25 (1992).

24
87 F.3d 133, 136 n.2 (5th Cir. 1996) (quoting United States v.

Pigrum, 922 F.2d 249, 253 (5th Cir.), cert. denied, 500 U.S. 936,

111 S. Ct. 2064, 114 L.Ed.2d 468 (1991) (internal quotations and

citations omitted)). Finally, we have considered the arguments

raised by the appellants challenging their Guideline-based

sentences and have concluded that they also are without merit.

For the foregoing reasons, the convictions and sentences of

the appellants are AFFIRMED.

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