United States v. Mendiola

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

____________________

No. 95-50140
No. 97-50401
____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN GILBERTO GUERRERO;
APOLONIO PASTRANO, a/k/a Polo;
ROBERTO ANTONIO DAVILA, a/k/a Robert Davila;
FELIPE BENAVENTA GAMEZ, a/k/a Felipe Gamez;
JAMES MENDIOLA,

Defendants-Appellants.

________________________________________________________________

Appeal from the United States District Court
for the Western District of Texas
(SA-93-CR-184)
_________________________________________________________________

October 22, 1997
Before REAVLEY, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:1

Appellants were convicted for conspiracy to possess with

intent to distribute marijuana, as well as on substantive

possession and distribution charges. We AFFIRM.

I.

1
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR. R.
47.5.4.
 This case involves an extensive marijuana distribution

operation centered in south Texas, occurring from approximately

mid-1992 through mid-1993. The operation revolved around Metroplex

Trucking and Refrigeration, which was owned in part by unindicted

co-conspirator Frank Figueroa, and which was the distribution

center for large amounts of marijuana that came from many sources,

including Mexican shipments arranged by Appellant Juan Gilberto

Guerrero. The marijuana was “fronted” to middlemen, including

Appellants Apolonio Pastrano, Roberto Antonio Davila, and Felipe

Benaventa Gamez, who in turn sold it to others for a profit.

Appellant James Mendiola acted as a “broker”, calling Figueroa to

inform him of potential buyers.

Guerrero, Pastrano, Davila, Gamez, and Mendiola were charged,

along with one other individual, with conspiracy to possess with

intent to distribute marijuana, in violation of 21 U.S.C. §§

841(a)(1) and 846; and some, with substantive counts of possession

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

U.S.C. § 2 (aiding and abetting). In mid-1994, a jury convicted

Appellants, as charged, with the exception of Davila, who was

acquitted on one of the substantive charges.

While the appeal from these convictions was pending, Davila,

Gamez, and Mendiola filed motions for a new trial and requested an

evidentiary hearing based on newly-discovered information about

Government witnesses at their trial. In mid-1997, the district

court denied the motions without a hearing.

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 II.

The Appellants contest their convictions and sentences on

several grounds, including double jeopardy, evidentiary error,

variance between the indictment and the proof at trial, and

sentencing error. Finally, seeking a new trial, they charge that

impeachment evidence was suppressed by the Government.

Although sentencing and the initial appeal from the

convictions and sentences (No. 95-50140) dates from early 1995,

oral argument was stayed in October 1996, pending the district

court ruling on the new trial motion. The appeal from that ruling

(No. 97-50401) was filed in mid-1997. In the interim, one issue

raised in the initial appeal was resolved, as discussed below.

A.

Mendiola appeals the denial of his “Motion to Dismiss the

Indictment and to Exclude the Admission of Certain Evidence

Previously Used by the United States”. In a separate proceeding

(No. SA-93-CR-191-1; No. 95-50177 in our court, the opinion for

which was rendered the same day as this opinion), Mendiola was

convicted shortly before the trial in this case of conspiring to

manufacture and distribute marijuana. Prior to sentencing, some of

Mendiola’s property was seized in a civil forfeiture action against

him (No. SA-93-CA-0496). Mendiola contends that both the prior

criminal proceeding and the civil forfeiture action placed him in

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prior jeopardy for the charges in this case, in violation of the

Fifth Amendment.

1.

Mendiola raised the double jeopardy argument vis-a-vis the

civil forfeiture action in his appeal from the prior criminal

trial, and it is addressed by this court in our separate opinion in

No. 95-50177 (as noted, rendered the same day as the opinion in

this case). Briefly stated, in rem civil forfeitures are not

“punishment” for purposes of double jeopardy analysis. United

States v. Ursery, ___ U.S. ___, 116 S. Ct. 2135, 2147 (1996);

United States v. Perez, 110 F.3d 265, 267 (5th Cir. 1997).

2.

Mendiola contends also that his prosecution and sentence in

this case violates the Fifth Amendment prohibition against multiple

prosecutions or punishments for the same offense. Unlike the

variance arguments of the other appellants, infra, who claim that

there is not one conspiracy, but several, Mendiola asserts that

there is only one overriding conspiracy, which includes the

earlier, separately tried case. Consequently, he contends, he was

placed twice in jeopardy for the “same offense”.

A double jeopardy claim is a question of law, reviewed de

novo. United States v. Gonzales, 40 F.3d 735, 737 n.2 (5th Cir.

1994), cert. denied, 514 U.S. 1074 (1995). The Double Jeopardy

Clause of the Fifth Amendment prohibits second prosecutions and

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multiple punishments for the same offense. United States v.

Sanchez-Escareno, 950 F.2d 193, 197 (5th Cir. 1991), cert. denied,

506 U.S. 841 (1992). Under double jeopardy analysis, the test for

whether an offense is the “same” is “whether each offense has an

element not contained in the other”. United States v. Dixon, 509

U.S. 688, 696-97 (1993).

Review of the elements of the charged offenses in the two

cases reveals that they are not the “same offense” in the context

of double jeopardy. Mendiola is charged in this case with three

substantive charges of distribution on 10 and 17 December 1992, and

23 June 1993, and with conspiracy to possess with intent to

distribute marijuana from July 1992 until 24 June 1993, in the

Western and Southern Districts of Texas and in Mexico. In the

other case he is charged with possession with intent to distribute

on 24 June 1993, and with conspiracy to manufacture and distribute

marijuana from 1 September 1992 until 24 June 1993 in the Western

District of Texas. Mendiola is the only defendant common to both

indictments. As the district court stated in denying Mendiola’s

motion as frivolous, the separately charged conspiracies “are two

separate and distinct conspiracies involving different overt acts,

different objects, different dates, different locations, and

different co-conspirators.”

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 B.

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 Guerrero contests the denial of his motion to suppress papers

and other items seized from his home, without a search warrant,

during his arrest on 24 June 1993. A warrantless search is

unreasonable per se, and therefore proscribed by the Fourth

Amendment, unless subject to an exception to the warrant

requirement. See United States v. Richard, 994 F.2d 244, 247 (5th

Cir. 1993). Of course, “one of the specifically established

exceptions to the requirements of both a warrant and probable cause

is a search that is conducted pursuant to consent”. Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973).

After a hearing, the district court found that, prior to the

search, Guerrero signed a voluntary consent form, did not have any

questions, and stated that he had “nothing to hide”; that there was

no coercion and Guerrero was capable of making a voluntary choice

and of understanding his rights; and that the search was terminated

immediately when consent was withdrawn by him.

Guerrero does not contest that he voluntarily consented to the

search, rather that the evidence found in the home prior to the

consent-withdrawal should be suppressed because the Officers

removed the items from the home after consent was terminated.

Other courts have held that evidence discovered during a lawful,

consensual search is not suppressed retroactively when the consent

is terminated. See, e.g., United States v. Guzman, 852 F.2d 1117,

1122 (9th Cir. 1988) (“evidence found before [consent] revocation

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will not be suppressed”); United States v. Jachimko, 19 F.3d 296,

299 (7th Cir. 1994) (“where a suspect does not withdraw his valid

consent to a search for illegal substances before they are

discovered, the consent remains valid and the substances are

admissible as evidence”) (citing United States v. Dyer, 784 F.2d

812, 816 (7th Cir. 1986)).

While we have found no cases in this circuit expressly

standing for this proposition, see United States v. Ho, 94 F.3d

932, 935 n.3 (5th Cir. 1996) (finding it unnecessary to reach the

Seventh Circuit’s “discovery rule”), it is consistent with our

holdings in this area. In Mason v. Pulliam, 557 F.2d 426, 429 (5th

Cir. 1977), we held that an IRS Agent’s actions, pursuant to the

voluntary consent of the taxpayer, were not rendered invalid when

the taxpayer later withdrew his consent. We see no significant

distinctions between the facts in Mason and those in the instant

case.

C.

Appellants contend that the district court erred in admitting

documentary and testimonial “drug ledger” evidence. Evidentiary

rulings are reviewed for abuse of discretion; and, of course, even

if that is found, “the error is not reversible unless the defendant

was prejudiced”. United States v. Coleman, 78 F.3d 154, 156 (5th

Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 230 (1996); see FED.

R. EVID. 103(a).

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 Appellants contend that the district court erred when it

overruled their objections to the admission of “drug ledgers” on

the grounds that they were hearsay not subject to the business

records exception, not admissible as the statement of a co-

conspirator, not properly authenticated, irrelevant, and

prejudicial.

1.

Under FED. R. EVID. 801(d)(2)(E), a statement by a co-

conspirator, during the course and in furtherance of the

conspiracy, is an exception to the hearsay rule. See Bourjaily v.

United States, 483 U.S. 171, 175-76 (1987). Appellants maintain

that the ledgers could not be admitted as statements by a co-

conspirator because they lacked evidence of authorship.

The Government produced evidence at trial linking the

Appellants to the ledgers, including the following: the ledgers

were found in Appellants’ residences; ledgers seized in Guerrero’s

and Pastrano’s homes were identified by analysts, in part, to be in

their handwriting; the names “Roberto” (Davila’s first name) and

“Polo” (Pastrano is known by this name) appear on a ledger seized

at Guerrero’s residence; Figueroa testified that Pastrano kept

records in a black portfolio, in which ledgers were found; and

ledgers seized at Guerrero’s and Pastrano’s residences had

interrelated calculations on them. There was sufficient evidence

of authorship.

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 2.

Appellants contend that the court erred in admitting the

ledgers because they were not authenticated or relevant because

many of them had no dates and no reference to dollars, pounds, or

marijuana. The evidence already described, as well as the

testimony of several Government witnesses described below, was

sufficient to show that the documents were what the Government

purported them to be — drug ledgers. Therefore, we find that the

district court did not abuse its discretion in finding that the

ledgers were authenticated, relevant, and not unfairly prejudicial.

See FED. R. EVID. 403 and 901(a).

3.

Appellants next claim that the district court erred by

allowing the testimony of Government witnesses concerning the “drug

ledgers”. As they concede, they failed, however, to object to

these witnesses at trial; therefore, the standard of review is

plain error. United States v. Calverley, 37 F.3d 160, 162-64 (5th

Cir. 1994) (en banc), cert. denied, 513 U.S. 1196 (1995). To show

plain error, Appellants must show (1) error by the district court;

(2) that is obvious, clear, or readily apparent; and (3) affecting

substantial rights. Id. And, even then, we “possess the

discretion to decline to correct errors which do not ‘seriously

affect the fairness, integrity, or public reputation of judicial

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proceedings’”. Id. at 162 (quoting United States v. Atkinson, 297

U.S. 157, 160 (1936)).

Several Agents testified that, in their opinion and based on

their experience, various documents were drug ledgers. Appellants

have failed to show clear or obvious error by the trial court in

allowing such testimony. See id.

4.

Finally, Appellants maintain that the district court erred in

admitting expert testimony by an FBI Agent concerning the “drug

ledgers”. They objected to that testimony on the grounds that it

was not accepted in the scientific community, was inadmissible

under FED. R. EVID. 704 as testifying about the mental state or

condition of the defendants, and was repetitious, bolstering, and

cumulative. Again, the standard of review is abuse of discretion.

Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 180 (5th Cir.

1995).

In determining whether to admit expert testimony, the trial

court is to focus on the validity of the scientific method and the

ability of the testimony to assist the trier of fact. FED. R. EVID.

702. Here, the Agent was a certified public accountant with

extensive training in drug record examination and was employed with

the FBI Racketeering Records Analysis Unit. The testimony

concerned the role of ledgers in drug transactions and the meaning

and interrelationship of calculations on some of the alleged drug

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ledgers admitted at trial. Appellants contend that there were

different interpretations of the evidence and that the district

judge eventually terminated the testimony because he felt it was

not “helping the jury”. But, neither of these arguments

demonstrate that the district court abused its discretion in

allowing the testimony.

D.

Guerrero contends that he was unfairly prejudiced by

disclosures to the jury of his prior incarceration and his being

incarcerated pending trial in the instant case.

1.

The admission of extrinsic acts evidence is reviewed for abuse

of discretion. United States v. McCarty, 36 F.3d 1349, 1353 (5th

Cir. 1994). Such evidence is admissible to prove motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake. FED. R. EVID. 404(b). In assessing whether

Rule 404(b) has been violated, a two-part test is employed: (1)

whether the evidence is relevant to an issue other than the

defendant’s character; and (2) whether the evidence possesses

probative value that is not substantially outweighed by the danger

of unfair prejudice. United States v. Beechum, 582 F.2d 898, 911

(5th Cir. 1978), cert. denied, 440 U.S. 920 (1979).

Guerrero’s main contention concerns the following testimony by

Moises Perez, a confidential informant:

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 The problem was, he said to me, that the
gentleman from Laredo, Mr. Juan [Guerrero], is
a person who’s already about fifty-seven years
of age or older and has a lot of experience,
and he doesn’t want to [meet with a person he
does not know] because it has happened to him
other times because he has already been in the
federal penitentiary, and he doesn’t want any
strange person, any unknown person, to go over
there without him knowing him or some other
person because he doesn’t want to lose the
place, the stash place where he has the
marijuana.

(emphasis added). This testimony was prompted by a question about

why there was a problem with a particular drug deal, not to show

conformity with an extrinsic act.

Guerrero contends that he is entitled to a remand for an on-

the-record articulation of the Beechum test. Guerrero’s brief

misleadingly states that Perez’s testimony was “admitted over

objection”. The record reflects that counsel made hearsay and

relevance objections prior to the testimony in which the witness

mentioned Guerrero’s incarceration, but did not object when the

witness actually testified. At no point did Guerrero request a

Rule 404(b) finding at trial, and he is not entitled to a remand

for such a finding now. See United States v. Robinson, 700 F.2d

205, 212-14 (5th Cir. 1983) (requiring “in Rule 404(b) cases an on-

the-record articulation by the trial court of Beechum’s probative

value/prejudice inquiry when requested by a party”) (emphasis

added).

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 2.

One of Guerrero’s contentions concerns the following question

during voir dire:

Does the fact that some of the Defendants in
this case are in custody awaiting trial cause
anyone to believe that because they are in
custody they are more likely to be guilty than
innocent?

Guerrero asserts that this question deprived him of a fair trial

under the Sixth Amendment. But, he provides no authority and

therefore has not properly briefed this issue for appeal.

E.

Guerrero, Pastrano, Davila, and Gamez contend that there was

a fatal variance between the indictment, which charged a single

conspiracy, and the proof at trial, which they claim demonstrated

as many as five conspiracies.2 To prevail on this issue, these

Appellants must show a variance between the indictment and the

proof at trial that affects their “substantial rights”. United

2
Confusingly, some Appellants contend that evidence from
the two separately-indicted conspiracies (the “home-grown”
conspiracy (No. 95-50177), involving James and Elsa Mendiola and
their associates, and the “Metroplex” conspiracy, involving
Figueroa and his partner, Luis Garza) that was admitted in the
immediate case, was also a variance from the immediate indictment.
These arguments are better framed as an issue of relevance under
FED. R. EVID. 401-403, or criminal conduct under Rule 404(b).
Obviously, treating evidence from other trials as a variance from
the indictment would subsume Rules 403 and 404(b) to a large
extent. As such, the Appellants have not properly raised this
issue on appeal and, in any event, have made no showing of abuse of
discretion by the trial judge in admitting any specific evidence
from the other conspiracy cases.

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States v. Puig-Infante, 19 F.3d 929, 935-36 (5th Cir.), cert.

denied, 513 U.S. 864 (1994). Because we find that there was no

variance between the indictment and the proof at trial, we do not

reach whether these Appellants’ substantial rights were prejudiced.

The Government contends that this variance issue should be

reviewed only for plain error because these Appellants did not

request a multiple conspiracy jury instruction at trial and did not

object to the jury instruction given by the court. However, these

Appellants are not appealing error in the jury charge, rather that

there was a fatal variance between indictment and proof. See,

e.g., United States v. Gaytan, 74 F.3d 545, 552-53 (5th Cir.)

(separately considering fatal variance claim and omission of

multiple conspiracy instruction), cert. denied, ___ U.S. ___, 117

S. Ct. 77 (1996). These Appellants have preserved this issue for

appeal because of their numerous, specific objections at trial that

evidence of multiple conspiracies varied from the indictment.

The following factors are considered in determining whether a

single conspiracy has been proven: (1) the existence of a common

goal or purpose; (2) the nature of the scheme; and (3) overlapping

participants in various dealings. United States v. Morris, 46 F.3d

410, 415 (5th Cir.), cert. denied, 515 U.S. 1150 (1995). In

analyzing these factors, the court “must affirm the jury’s finding

that the [G]overnment proved a single conspiracy unless the

evidence and all reasonable inferences, examined in the light most

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favorable to the [G]overnment, would preclude reasonable jurors

from finding a single conspiracy beyond a reasonable doubt”.

United States v. DeVarona, 872 F.2d 114, 118 (5th Cir. 1989)

(citations omitted).

Our court has defined “common goal” broadly. United States v.

Richerson, 833 F.2d 1147, 1153 (5th Cir. 1987). The common goal of

the conspiracy at issue was to have a steady supply of marijuana to

sell at a profit. These Appellants contend that the evidence

produced by the Government at trial showed different suppliers,

purchasers, and co-conspirators. However, the evidence allows the

inference that suppliers, including Guerrero, sold to middlemen,

including Pastrano, Davila, and Gamez, who then sold to others for

a profit. Testimony at trial identified Mendiola as a “broker” who

would call Figueroa when he knew that others wanted to buy

marijuana.

The second factor in determining whether there was a variance

is the nature of the scheme. As stated in United States v. Elam,

[w]here the activities of one aspect of the
scheme are necessary or advantageous to the
success of another aspect of the scheme or to
the overall success of the venture, where
there are several parts inherent in a larger
common plan, ... the existence of a single
conspiracy will be inferred.

678 F.2d 1234, 1246 (5th Cir. 1982); United States v. Perez, 489

F.2d 51, 62 (5th Cir. 1973) (single conspiracy exists if it “will

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not continue without the continuous cooperation of the

conspirators”), cert. denied, 417 U.S. 945 (1974).

Again, the Government has produced sufficient evidence for the

jury to find beyond a reasonable doubt that the success of the

conspiracy depended on the continued participation of the

defendants. They operated in different roles in the conspiracy in

order to accomplish the common goal: to maintain a steady supply of

marijuana to sell at a profit. The existence of other sources of

supply and other purchasers does not necessarily create new

conspiracies, as asserted by these Appellants; in the light of the

other evidence presented, contact with these other individuals

serves the goal of maintaining a constant supply of marijuana for

sale. See United States v. Morris, 46 F.3d at 416.

The third factor in determining the existence of a single

conspiracy is the overlapping of participants in the conspiracy.

It is well-established that “[t]here is no requirement that every

member must participate in every transaction to find a single

conspiracy”. Richerson, 833 F.2d at 1154. The Government produced

significant evidence demonstrating the interdependence between the

defendants, including the following: Pastrano, Davila, Gamez, and

Mendiola acquired marijuana from Metroplex on consignment; Guerrero

supplied marijuana for Pastrano and Davila; on one occasion,

Mendiola received a book bag containing $15,000 from a confidential

informant, and Davila was observed placing in a vehicle two bags of

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marijuana weighing 27 pounds; Davila and Mendiola negotiated a deal

to sell 8000 pounds of marijuana to a confidential informant in two

equal installments; and, as discussed, the words “Roberto” and

“Polo”, the names of two Appellants, appear on a ledger seized at

Guerrero’s residence. Taken as a whole, the evidence demonstrates

significant overlap among the defendants, with each performing

tasks essential to the overall success of the conspiracy.

These Appellants could have objected to the single conspiracy

jury instruction or to request a multiple conspiracy jury

instruction; as noted, they did not do so. The jury, following its

instructions, found Appellants guilty of the charged single

conspiracy. The evidence was such that a reasonable juror could

find a single conspiracy beyond a reasonable doubt.

F.

Guerrero contends that the evidence was not sufficient to

allow a rational juror to convict him of the conspiracy charge.

The standard of review for a sufficiency of evidence challenge is

more than well-established: viewing the evidence in the light most

favorable to the verdict, and accepting all of the jury’s

reasonable inferences and findings of credibility, the evidence is

sufficient if a rational trier of fact could have found that it

established guilt beyond a reasonable doubt. E.g., United States

v. Montoya-Ortiz, 7 F.3d 1171, 1173 (5th Cir. 1993).

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 To establish a conspiracy under 21 U.S.C. § 846, the

Government is required to prove beyond a reasonable doubt: (1)

that two or more persons agreed to violate the narcotics laws; (2)

that each co-defendant knew of the conspiracy; and (3) that each

voluntarily joined in it. Id. at 1173 (internal quotation marks

and citation omitted). “Circumstances altogether inconclusive, if

separately considered, may, by their number and joint operation ...

be sufficient to constitute conclusive proof.” United States v.

Roberts, 913 F.2d 211, 218 (5th Cir. 1990) (quoting United States

v. Lechuga, 888 F.2d 1472, 1476 (5th Cir. 1989)), cert. denied, 500

U.S. 955 (1991).

The Government produced a wide array of evidence showing the

existence of a conspiracy, of which Guerrero was a voluntary

participant, to obtain a steady supply of marijuana for sale.

Unindicted co-conspirator Figueroa testified that Guerrero “was a

supplier for Pastrano and Robert Davila”; and that “when he got the

marijuana from Mr. Guerrero, Mr. Pastrano or Robert Davila would

hand [money] to Mr. Guerrero”. Figueroa testified that Guerrero

played a specific role in the transfer of drugs through Metroplex:

Q: ... What was out at Metroplex on the
22nd?
A: Was that on a Monday?
Q: Yes, sir.
A: There was [sic] 400 pounds of marijuana
stored at Metroplex.
Q: Whose marijuana was that at the time?
A: That came from Juan Guerrero to Polo
Pastrano.

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Figueroa also testified that he brought Guerrero to Metroplex in

July of 1992 “to check out the shop to see if it was a good area to

unload marijuana”.

At trial, defense counsel attempted to show that Figueroa’s

testimony was not credible because he is a cocaine addict, a five

time convicted felon, and testified pursuant to a plea agreement.

“It is well established that a conspiracy conviction may be based

upon the uncorroborated testimony of a co-conspirator, even when

that testimony is from one who has made a plea bargain with the

[G]overnment, provided that the testimony is not incredible or

otherwise insubstantial on its face.” United States v. Gadison, 8

F.3d 186, 190 (5th Cir. 1993). “To be considered incredible as a

matter of law, a witness’ testimony must assert facts that the

witness physically could not have observed or events that could not

have occurred under the laws of nature.” Id. (internal quotation

marks, brackets, and citation omitted). Figueroa’s testimony,

tested thoroughly during cross-examination, was not incredible.

Several items seized during the search of Guerrero’s residence

were admitted into evidence, including: a small amount of

marijuana; a scanner programmed to frequencies used by the Laredo

Police Department, Texas Department of Public Safety, Border

Patrol, and U.S. Customs Service; an envelope with a row of numbers

that was identified by an IRS Agent as a “load sheet”, which is

used to calculate the total drug shipment weight; and various

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papers with numbers and calculations identified by Government

witnesses as “drug ledgers”, discussed supra. Those ledgers

contained the words “Polo” and “Roberto”, the names, as mentioned,

of two of the alleged co-conspirators, and the word “cross”, which

was identified by Government witnesses as referring to crossing the

Mexican-American border with drug shipments. And, a Government

witness testified that numbers in these ledgers correlated to

numbers in other ledgers found at Pastrano’s residence.

Moreover, the Government produced a taped conversation on 20

March 1993 in which Pastrano stated that “the ones from [New York]

... they want twelve cars, 1,200", to which Guerrero replied,

“Well, what I’m going to send over to you, to begin with, are about

four and a half” and “I’m having difficulties here because I don’t

have money for the people that cross and all that”. Figueroa

testified that the conversation was in code and explained that

Pastrano was asking for 1200 pounds of marijuana, that Guerrero

would only give 450 pounds, and that there were difficulties

getting the marijuana across the border. In addition, Figueroa

testified that he received the 450 pounds of marijuana on the

following day. As discussed, it was for the jury to determine

whether this testimony was credible.

In the light of such evidence, the jury was presented with

more than a sufficient evidentiary basis for its verdict as to

Guerrero.

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 G.

Appellants challenge their sentences under numerous bases.

The statutorily defined standard of review for guidelines-based

sentences requires that they be upheld unless shown to have been

imposed (1) in violation of law; (2) as a result of an incorrect

application of the guidelines; or (3) unreasonably outside the

range of the applicable guidelines. E.g., United States v.

McKinney, 53 F.3d 664, 677 (5th Cir.), cert. denied, ___ U.S. ___,

116 S. Ct. 261 (1995).

1.

First, Appellants contend that the district court erred in

determining the drug amount for sentencing, asserting that the

court’s determination was based on insufficient and unreliable

evidence, that it failed to make specific findings, and that it

failed to make a separate drug-quantity finding for statutory

enhancement sentencing.

The base offense level for drug offenses may be based on drugs

with which the defendant was directly involved, under U.S.S.G. §

1B1.3(a)(1)(A), and drugs which are attributed to the defendant as

relevant conduct in a conspiracy, under U.S.S.G. § 1B1.3(a)(1)(B).

United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir. 1994).

Relevant conduct includes “all reasonably foreseeable acts and

omissions of others in furtherance of jointly undertaken criminal

activity”. Id.; U.S.S.G. 1B1.3(a)(1)(B).

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 The district court found that Guerrero could reasonably

foresee 3300 pounds of marijuana; Pastrano, 2378.68 pounds; Davila,

2325.61 pounds; and Gamez and Mendiola, each between 1000 and 3000

pounds.

a.

Appellants contest the calculation of the quantity of drugs

attributable to them on the basis that it was not reasonably

foreseeable and was based on insufficient evidence. The sentencing

court’s factual determination of the drug quantity is reviewed only

for clear error. United States v. Thomas, 870 F.2d 174, 176 (5th

Cir. 1989). And, the court is afforded due deference in the

application of the guidelines to the facts. United States v.

Parks, 924 F.2d 68, 71 (5th Cir. 1991). During sentencing, a

district court may consider any relevant evidence with “sufficient

indicia of reliability to support its probable accuracy”. U.S.S.G

§ 6A1.3(a). Moreover, “a presentence report generally bears

sufficient indicia of reliability to be considered as evidence by

the trial judge in making the factual determinations required by

the sentencing guidelines”. United States v. Alfaro, 919 F.2d 962,

966 (5th Cir. 1990).

As discussed, there is ample evidence demonstrating that

Appellants were participants in an extensive drug distribution

operation, including also the following: Figueroa testified that

approximately 3000 pounds of marijuana were received at Metroplex

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in the course of the conspiracy; at sentencing, several papers

seized in Guerrero’s and Pastrano’s residences were identified by

an Agent as an inventory of marijuana, which had a total of 3300

pounds; and 173 pounds of marijuana were seized in a co-

conspirator’s home.

Appellants maintain that some of the evidence used for

sentencing purposes was based on the unreliable testimony of

Figueroa. As addressed, supra, his testimony did not rise to the

level of being “incredible”. See United States v. Gadison, 8 F.3d

at 190. In addition, much of his testimony was corroborated either

by drug ledgers, surveillance, or recorded telephone conversations.

Appellants contend that the drug ledgers, which were relied

upon by the district court in sentencing, were unreliable. They

cite United States v. Mergerson, 4 F.3d 337 (5th Cir. 1993), cert.

denied, 510 U.S. 1198 (1994), which found clear error in the

district court’s finding, based on various hand-written papers,

that the defendant possessed an amount of drugs. However, in

Mergerson, the papers were the sole evidence supporting the drug

amount. Id. Here, the district court’s basis for the amounts, as

detailed above, is supported with substantial evidence.

b.

Pastrano, Gamez, and Mendiola assert that the district court

erred by failing to make sufficient findings concerning the drug

quantity attributable to them. “[T]he court must make either a

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finding on the allegation or a determination that no finding is

necessary because the controverted matter will not be taken into

account in, or will not affect, sentencing.” FED. R. CRIM. P.

32(c)(1). “A defendant is generally provided adequate notice of

the district court’s resolution of the disputed facts when the

court merely adopts the findings of the [presentence report].”

United States v. Mora, 994 F.2d 1129, 1141 (5th Cir.), cert.

denied, 510 U.S. 958 (1993). Moreover, “it is proper for the

district court to rely on a presentence report’s construction of

evidence to resolve a factual dispute, rather than relying on the

defendant’s version of the facts.” United States v. Robins, 978

F.2d 881, 889 (5th Cir. 1992) (citations omitted).

The district court made a separate drug quantity finding for

each Appellant. It found specifically that the drug quantity

attributed to Davila, Mendiola, and Pastrano was reasonably

foreseeable from their jointly undertaken criminal activity. These

findings satisfy Rule 32.

c.

Pastrano, Davila, Gamez, and Mendiola assert that the court

erred by including “negotiated” drug amounts in the 21 U.S.C. §

841(b)(1)(A) enhancement sentencing. They point to Mergerson,

which states, “Mere proof of the amounts ‘negotiated’ with the

undercover agents ... would not count toward the quantity of

[drugs] applicable to the conspiracy count.” 4 F.3d at 346.

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Pastrano, Davila, and Gamez contend also that the district court

erred by adopting the presentence report drug quantity, which was

based on “relevant conduct”, instead of performing a separate drug-

quantity finding for “negotiated amounts”. Appellants again cite

Mergerson for the proposition that the court “must engage in two

separate sufficiency analyses regarding the district court’s

findings”. 4 F.3d at 345.

We find that evidence of the amounts of marijuana actually

possessed by the co-conspirators in the course of the conspiracy is

a sufficient basis for the district court’s quantity findings under

§ 841(b)(1)(A). See United States v. Ruiz, 43 F.3d 985, 992 (5th

Cir. 1995) (“[T]he quantity of drugs involved in a conspiracy for

guideline sentencing purposes apply in determining whether to

impose the statutory minimums prescribed in § 841(b).”). In so

holding, it is not necessary to address whether Appellants were

entitled to a separate finding for “negotiated amounts” under

Mergerson.

2.

Pastrano claims that the district court erred in increasing

his base offense level by two levels under U.S.S.G. § 2D1.1(b)(1)

for possession of a firearm during the commission of a drug

offense. The adjustment is applicable if the weapon was present

during the commission of the drug offense, “unless it is clearly

improbable that the weapon was connected with the offense.”

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U.S.S.G. § 2D1.1, cmt. 3; United States v. Sparks, 2 F.3d 574, 587

(5th Cir. 1993) (citation omitted), cert. denied, 510 U.S. 1080

(1994). The district court’s decision to apply the two-level

increase is a factual determination, reviewed only for clear error.

United States v. Paulk, 917 F.2d 879 (5th Cir. 1990).

Pastrano contends that the Government failed to establish that

the weapons seized in his residence were connected to the offense.

They were found in Pastrano’s bedroom along with drug ledgers.

Evidence at trial demonstrated that Pastrano was an active

participant in an extensive drug distribution operation. This

evidence does not demonstrate that it is clearly improbable that

the guns were linked to the marijuana conspiracy, or that the

district court was clearly erroneous in so finding.

Pastrano asserts also that the phrase “unless clearly

improbable” from U.S.S.G. § 2D1.1(b)(1) constitutes an

unconstitutional shift of the burden of proof from the Government

to the defendant. Pastrano did not raise this issue in district

court; therefore, again, we review only for plain error, as earlier

defined. We find no “clear” or “obvious” error by the trial court.

See United States v. Ortiz-Granados, 12 F.3d 39, 41 (5th Cir. 1994)

(rejecting contention that “clearly improbable” standard should be

“replaced” because it violates due process by shifting burden of

proof from Government to defendant) (citing United States v.

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Webster, 960 F.2d 1301, 1310 (5th Cir.), cert. denied, 506 U.S. 927

(1992)).

3.

Pastrano claims next that the court erred by enhancing his

base offense level by three levels for being a manager of criminal

activity involving five or more participants. U.S.S.G. § 3B1.1(b).

He maintains that there is insufficient evidence demonstrating that

he was such a manager, and that he, Davila, Gamez, and Figueroa

were equals. A district court’s sentencing-factor findings are not

clearly erroneous as long as it is plausible in the light of the

record as a whole. United States v. Whitlow, 979 F.2d 1008, 1011

(5th Cir. 1992). And, the defendant’s role may be inferred from

available facts. See United States v. Menthei, 913 F.2d 1130, 1135

(5th Cir. 1990). Again, “it is proper for the district court to

rely on a presentence report’s construction of evidence to resolve

a factual dispute, rather than relying on the defendant’s version

of the facts.” United States v. Robins, 978 F.2d 881, 889 (5th

Cir. 1992) (citations omitted).

The presentence report provided sufficient findings to support

the inference that Pastrano was a manager, including: the existence

of a large-scale drug distribution enterprise; Pastrano’s role as

supplier of marijuana from Guerrero; and Pastrano’s role in

obtaining, negotiating, and distributing marijuana.

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 4.

Mendiola asserts that the court erred in assessing an

increment in his sentence for multiple offenses under U.S.S.G §

5G1.3(c). This issue involves an application of the Guidelines and

requires de novo review. United States v. Gross, 26 F.3d 552, 554

(5th Cir. 1994). Section 5G1.3(c) provides that, for cases not

covered by subsections (a) and (b), “the sentence for the instant

offense shall be imposed to run consecutively to the prior

undischarged term of imprisonment to the extent necessary to

achieve a reasonable incremental punishment for the instant

offense”.

Mendiola contends that U.S.S.G. § 5G1.3(c) does not apply

because the instant case and the separate conspiracy case (No. 95-

50177) are the same case. As discussed supra, this premise is

incorrect.

H.

Guerrero, Pastrano, Davila, and Gamez contend that they are

prejudiced by an incomplete record on appeal. The Government’s

rebuttal closing argument was not recorded due to mechanical

failure, and its Notice of Intent to Use Evidence Pursuant to Rule

404(b), which the docket sheet reflects was filed, is not in the

record.

These Appellants, who have different counsel on appeal than at

trial, cite United States v. Neal, 27 F.3d 1035, 1044 (5th Cir.

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1994) (citation and internal quotation omitted) (emphasis added),

cert. denied, 513 U.S. 1179 (1995), for the proposition that, when

“a criminal defendant is represented on appeal by counsel other

than the attorney at trial, the absence of a substantial and

significant portion of the record, even absent any showing of

specific prejudice or error, is sufficient to mandate reversal”.

The rebuttal closing argument and Rule 404(b) notice does not

constitute a significant portion of the record, which consists of

27 volumes and a transcript of over 2400 pages, and does not omit

any portions which prejudice these Appellants’ claims.3

Accordingly, the omission is harmless error. See United States v.

Selva, 559 F.2d 1303, 1306 n.5 (5th Cir. 1977); FED. R. CRIM. P. 52.

(Although it is not dispositive, it is at least of interest that

Mendiola, the only Appellant not represented by counsel on appeal

different from that at trial, does not challenge the incomplete

record as prejudicial.)

I.

Davila, Gamez, and Mendiola also challenge the denial of their

new trial motion. How this issue arose is addressed in our opinion

3
We note that it is incumbent upon the Appellant to “take
any other action necessary to enable the clerk to assemble and
transmit the record”. FED. R. APP. P. 11(a). Upon learning of any
omission, the Appellant may follow the procedures prescribed in
FED. R. APP. PRO. 10(c) to attempt to reconstruct the record. This
process was designed to prevent the situation presented here, in
which these Appellants raise the issue of an incomplete record,
considered on appeal more than three years after the end of trial.

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in No. 95-50177 (which includes No. 97-50407). Briefly stated,

impeachment evidence concerning confidential informant Moises Perez

and FBI Agent Montoya, both of whom were Government witnesses at

trial, was not disclosed to the defense. While appeal in the

instant case was pending, the Government dismissed a separate

criminal case in which Perez was testifying because they had lost

confidence in his credibility as an informant.

As a result, Appellants moved for a new trial. And, as

discussed, the motion was denied without a hearing.

1.

It is claimed that the nondisclosure of the impeachment

evidence violated Brady v. Maryland, 373 U.S. 83 (1963), and Giglio

v. United States, 405 U.S. 150 (1972). Brady rulings are reviewed

de novo. United States v. Green, 46 F.3d 461, 464 (5th Cir.),

cert. denied, ___ U.S. ___, 115 S. Ct. 2629 (1995). But see United

States v. Krenning, 93 F.3d 1257, 1268 (5th Cir. 1996) (standard of

review for denial of new trial motion is abuse of discretion). The

applicable legal standards are addressed in our opinion in No. 95-

50177.

As detailed supra, there is overwhelming independent evidence

of Appellants’ guilt; therefore, no Brady violation. See Kyles v.

Whitley, 514 U.S. 419, 435 (1995) (reversal of nondisclosure

requires “reasonable probability” that “could reasonably be taken

to put the whole case in such a different light as to undermine

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confidence in the verdict”); Wilson v. Whitley, 28 F.3d 433, 439

(5th Cir. 1994) (“In assessing the materiality of undisclosed

impeachment evidence, we must consider the nature of the

impeachment evidence improperly withheld and the additional

evidence of the defendant’s guilt independent of the disputed

testimony.”) (citation and internal quotation omitted), cert.

denied, 513 U.S. 1091 (1995).

2.

Along this line, Appellants contend also that the Government

allowed false testimony. They must demonstrate: (1) that the

testimony was false; (2) that the prosecution knew it was false;

and (3) that the evidence was material. United States v. Scott, 48

F.3d 1389, 1394 (5th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct.

264 (1995). For the reasons stated above, the testimony was not

material to the outcome of the case.

3.

Finally, Davila maintains that the district court erred in not

providing an FBI investigation file concerning the Agent, which the

court reviewed in camera. We review for abuse of discretion. Cf.

United States v. Neal, 27 F.3d at 1049 (5th Cir. 1994) (discovery

rule issues reviewed for abuse of discretion and reversed only if

substantial rights prejudiced). The district court was within its

discretion in refusing to provide the report after viewing it in

camera.

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 III.

For the foregoing reasons, the convictions and sentences (No.

95-50140), and denial of a new trial (No. 97-50401) are

AFFIRMED.

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