United States v. Uribe

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 95-20783
____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ERNESTO URIBE; CARLOS ANTONIO LUJAN;
HUGO A MORA-MEDRANO; EUGENIO AREVALO JR

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
November 20, 1997
Before KING and JONES, Circuit Judges, and KENDALL,* District
Judge.

PER CURIAM:**

Defendants-appellants Ernesto Uribe, Carlos Antonio Lujan,

Hugo A. Mora-Medrano, and Eugenio Arevalo, Jr. were convicted of

several violations of federal drug laws after a lengthy jury

trial. Raising various claims, each defendant appeals his

conviction; in addition, Arevalo and Uribe appeal their

*
District Judge of the Northern District of Texas,
sitting by designation.
**
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that this opinion should not be published and is not precedent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.
sentences. We affirm the district court’s judgment of conviction

and sentence as to each defendant-appellant.

I. FACTUAL & PROCEDURAL BACKGROUND

This appeal involves a drug smuggling conspiracy, the

members of which transported massive amounts of cocaine from

Colombia to the United States by way of Mexico. In a jury trial

lasting thirty-three days, five defendants were jointly tried;

four of those defendants now appeal.1

On March 26, 1994, acting on a tip, Drug Enforcement Agency

(“DEA”) agents began surveillance on a van parked in front of a

shopping center in north Houston. The agents observed Carlos

Peña get into the van and then followed him to a house in Conroe,

Texas. Peña drove the van into the garage and remained there for

approximately thirty minutes. He then drove the van to another

shopping center parking lot in The Woodlands, Texas, and entered

a restaurant. Another man got into the van and drove it away.

Surveillance officers stopped the van in Pasadena, Texas and

discovered that it contained thirty boxes filled with over 800

kilograms of cocaine.

Later that day, officers arrested Peña at the Conroe house,

and he agreed to cooperate with the government.2 Under the

1
This court granted defendant-appellant Joel Chavez-
Quezada’s motion to dismiss his appeal on October 23, 1996.
2
During the course of his cooperation, Peña fled. He
remained a fugitive at the time of trial.

2
direction of the DEA, Peña had conversations with other

participants in the conspiracy, including defendant-appellant

Ernesto Uribe. Peña consented to the DEA’s recording these

conversations. Peña also informed the DEA that a 2500 kilogram

load of cocaine was expected to arrive at the Conroe house on

April 9. The DEA therefore set up surveillance cameras in the

garage of the Conroe house.

In the late afternoon of April 9, John Mason arrived at the

Conroe house driving a recreational vehicle. On the surveillance

videotape, Peña and Mason were observed unloading approximately

125 boxes of cocaine from the recreational vehicle into the

garage. The next day, Peña loaded some of the boxes into a van

that was in the garage and drove the van to a shopping center in

The Woodlands. Jose Davila then drove the van to a house in

Houston. When the van was later searched, it was found to be

empty.

On April 11, agents observed Davila driving a small blue

pickup truck with a camper on it from the garage of the Houston

house to a McDonald’s restaurant. Davila went into the

McDonald’s. Approximately an hour to an hour and a half later,

defendant-appellant Eugenio Arevalo, Jr. arrived in a taxi and

entered the McDonald’s. Arevalo returned to the parking lot

approximately five minutes later and drove away in the blue

pickup truck that Davila had driven from the Houston house.

Agents pursued Arevalo and arrested him near the McDonald’s.

3
Their search revealed seventeen boxes filled with 340.7 kilograms

of cocaine.

Meanwhile, on April 10, a DEA agent followed Mason on an

airplane from Houston to El Paso. Upon arriving in El Paso,

Mason went to a Quality Inn. Defendant-appellant Hugo A. Mora-

Medrano later picked Mason up at the Quality Inn, but agents

observed no further drug activity. The next day, Rodrigo Herrera

picked Mason up at the Quality Inn. After Mason and Herrera met

Mora-Medrano at a restaurant, Herrera took Mason to an El Paso

house. At the house, Mason and others loaded 2400 kilograms of

cocaine into a recreational vehicle.

Mason, Mora-Medrano, and defendant-appellant Carlos Antonio

Lujan left El Paso in a three-vehicle convoy. Mora-Medrano drove

the lead vehicle, Mason drove the recreational vehicle, and Lujan

followed in another vehicle. Law enforcement agents followed the

caravan for approximately forty miles before they stopped and

arrested the suspects in Hatch, New Mexico. Uribe, Herrera, and

Jose Chavez-Quezada, the leader of the conspiracy, were also

arrested on April 11.3 On November 14, 1994, Uribe, Lujan, Mora-

Medrano, Arevalo, and four other defendants were named in a

seven-count superseding indictment by a federal grand jury.4

3
Agents arrested Uribe at Houston Intercontinental
Airport as he was attempting to leave the city. Herrera and
Chavez-Quezada were arrested in El Paso.
4
Count One charged all of the defendants with conspiracy
to possess with intent to distribute in excess of five kilograms

4
 Much of the direct evidence that the government presented at

trial as to the extent of the conspiracy prior to March 1994

involved the testimony of the cooperating co-defendants Mason and

Herrera. Their testimony established that Chavez-Quezada was the

leader of a vast narcotics organization headquartered in Juarez,

Mexico. Herrera was in charge of distribution and arranged the

transportation of the cocaine at Chavez-Quezada’s direction.

Herrera testified extensively about the start of his

association with Chavez-Quezada. He testified that he began

arranging cocaine transportation for Chavez-Quezada in May 1991

and that Mora-Medrano was involved in the conspiracy from that

time forward. Herrera later recruited John Mason to join the

conspiracy. The remainder of his testimony corroborated Mason’s

testimony.

Mason testified that he participated in numerous cocaine

of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(A). Count Two charged Uribe, Mora-Medrano, Lujan, and
three other defendants with aiding and abetting and with
possession with intent to distribute in excess of five kilograms
of cocaine on March 15, 1994 in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2. Counts Three,
Five, and Seven charged Uribe with distribution of cocaine on
March 26, April 10, and April 11, 1994 in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2. Count Four
charged Uribe, Mora-Medrano, Lujan and one other defendant with
aiding and abetting and with possession with intent to distribute
in excess of five kilograms of cocaine on April 9, 1994 in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 18 U.S.C.
§ 2. Count Six charged Arevalo with possession with intent to
distribute in excess of five kilograms of cocaine on April 11,
1994 in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 18
U.S.C. § 2.

5
transportation trips between the summer of 1993 and his arrest in

April 1994. His job consisted of picking up the loads of cocaine

in El Paso and delivering them to Houston, Chicago, or Los

Angeles. Each load consisted of anywhere from 800 to 2400

kilograms of cocaine that was transported in a recreational

vehicle either purchased or rented by Mason. Mora-Medrano

accompanied Mason on each of these trips. According to Mason,

Mora-Medrano’s job was to drive the lead vehicle and inform Mason

of any obstacles that might interfere with his delivery of the

cocaine to the destination city. Mason also testified that Lujan

joined the conspiracy for the last three trips, sometimes

accompanying Mora-Medrano in the lead car and sometimes driving

the car that followed the recreational vehicle.

The jury convicted Uribe, Lujan, and Mora-Medrano on all

counts. Arevalo was acquitted on Count One but was convicted on

Count Six.

II. DISCUSSION

Each defendant-appellant appeals several aspects of his

conviction. First, Arevalo claims that the district court erred

in refusing to suppress evidence seized during his arrest.

Second, Mora-Medrano challenges the district court’s decision to

excuse Venireman #12 based on the government’s challenge for

cause. Third, Uribe asserts that the district court erred in

admitting tape recorded statements made by Peña during one of

6
Uribe’s conversations with him. Fourth, Arevalo argues that the

district court erred in giving the jury a “deliberate

indifference” instruction and in using the term “real doubt” in

its definition of reasonable doubt. Fifth, Mora-Medrano

challenges the district court’s refusal to grant him a mistrial

based on a comment made by the prosecutor. Sixth, Mora-Medrano

and Lujan argue that they were entitled to a new trial because

extraneous material was taken into the jury room during

deliberations. Seventh, Uribe, Lujan, and Arevalo each claims

that the evidence presented at trial was insufficient to support

his conviction. Finally, Arevalo and Uribe appeal the sentences

imposed upon them by the district court. We address each of

these issues in turn.

A. Suppression of Evidence

Arevalo argues that the district court erred in dismissing

his motion to suppress the evidence seized from the blue pickup

truck that he was driving when he was arrested. He claims that

the officers lacked probable cause as required for a warrantless

arrest and that the arrest and the incident search were therefore

unlawful.

A warrantless arrest requires probable cause, which exists

“when the totality of facts and circumstances within a police

officer’s knowledge at the moment of arrest are sufficient for a

reasonable person to conclude that the suspect had committed or

7
was committing an offense.” United States v. Wadley, 59 F.3d

510, 512 (5th Cir. 1995), cert. denied, 117 S. Ct. 240 (1996).

Absent clear error, we will not disturb the factual findings

underlying the district court’s determination that probable cause

existed. Id. However, the ultimate determination of whether

probable cause existed is a question of law that we review de

novo. Id. We have reviewed the testimony presented at the

suppression hearing and find that probable cause existed to

justify the arrest of Arevalo and the search of the blue pickup

truck.

B. Excusal of Venireman #12 for Cause

Mora-Medrano argues that the district court erred by

granting the government’s challenge for cause to Venireman #12.

During voir dire, the government asked the prospective jurors

whether they could fairly listen to and evaluate the testimony of

a witness who had pled guilty and agreed to cooperate with the

government. Despite focused attempts by both defense counsel and

the district court to rehabilitate Venireman #12, he maintained

that he would be unable to keep an open mind about the testimony

of such a witness.

“We review the district court’s ruling as to juror

impartiality only for manifest abuse of discretion.” United

States v. Munoz, 15 F.3d 395, 397 (5th Cir. 1994). Having

reviewed the record, we find that the district court did not

8
manifestly abuse its discretion in granting the government’s

challenge for cause as to Venireman #12.

C. Evidentiary Ruling

Uribe asserts that the district court erred in admitting,

over his objections, tape recorded statements made by Peña during

Uribe’s conversations with him. He claims that Peña’s statements

on the tapes were more prejudicial than probative and therefore

should have been excluded under Federal Rule of Evidence 403. He

further argues that the admission of out of court statements made

by Peña, who was not available at trial and therefore was not

subject to cross examination, led to a confusion of the issues

and created the serious potential that the jury was misled. We

disagree.

A district court has broad discretion to assess

admissibility under Rule 403, and we will overturn its

determination only where it has abused that discretion. United

States v. Morris, 79 F.3d 409, 412 (5th Cir. 1996). The district

court explicitly rejected Uribe’s claim that the statements were

more prejudicial than probative and created a serious possibility

of jury confusion. In admitting the statements, the district

court relied on United States v. Gutierrez-Chavez, 842 F.2d 77

(5th Cir. 1988). In Gutierrez-Chavez, this court held that

statements taken from tape-recorded conversations between a

defendant and a third-party co-defendant are admissible “for the

9
limited purpose of putting the responses of the appellant in

context and making them ‘intelligible to the jury and

recognizable as admissions.’” Id. at 81 (quoting United States

v. Lemonakis, 485 F.2d 941, 948 (D.C. Cir. 1973)). The district

court’s admission of the statements made by Peña on that basis

was not an abuse of discretion.

D. Jury Instructions

Arevalo appeals two aspects of the jury charge. In

reviewing a challenge to jury instructions, we must determine

“‘whether the court’s charge, as a whole, is a correct statement

of the law and whether it clearly instructs jurors as to the

principles of law applicable to the factual issues confronting

them.’” United States v. Gray, 105 F.3d 956, 967 (5th Cir.)

(quoting United States v. August, 835 F.2d 76, 77 (5th Cir.

1987)), cert. denied, 117 S. Ct. 1856 (1997).

Arevalo first argues that the district court erred in giving

the jury a “deliberate ignorance” instruction with respect to the

charges against him. He claims that no evidence was presented at

trial that could support the inference that he wilfully blinded

himself to the fact that he was involved in a drug transaction.

In response, the government argues that the facts surrounding

Arevalo’s picking up the truck at the McDonald’s before his

arrest support an inference that he was subjectively aware of a

high probability of the existence of illegal conduct and

10
purposely contrived to avoid learning of it.

In determining whether a deliberate ignorance instruction

can be given, this court employs a two part test. “‘The evidence

must show that: (1) the defendant was subjectively aware of a

high probability of the existence of the illegal conduct; and (2)

the defendant purposely contrived to avoid learning of the

illegal conduct.’” United States v. Faulkner, 17 F.3d 745, 766

(5th Cir. 1994) (quoting United States v. Ojebode, 957 F.2d 1218,

1229 (5th Cir. 1992)). In order to satisfy this test, the

government need not necessarily prove that the defendant engaged

in affirmative acts in order to avoid knowledge. Id. “[I]n some

cases the likelihood of criminal wrongdoing is so high, and the

circumstance surrounding a defendant’s activities and cohorts are

so suspicious, that a failure to conduct further inquiry or

inspection can justify the inclusion of the deliberate ignorance

instruction.” Id. Viewing the evidence in the record in the

light most favorable to the jury’s verdict, see id. at 766 n.31,

we cannot say that including a deliberate ignorance instruction

constituted error on the part of the district court.

Second, Arevalo argues that the district court’s use of the

term “real doubt” in its definition of reasonable doubt was

improper and created a likelihood that the jury was misled and

rendered an improper verdict.5 This argument lacks merit. Other

5
The instruction given to the jury by the district court
read as follows:

11
than the addition of the word “real,” the charge that the

district court gave to the jury follows the Fifth Circuit Pattern

Jury Instructions. Moreover, this circuit and other circuits

have approved of the use of the term “real doubt” to define

“reasonable doubt.” See United States v. Alonzo, 681 F.2d 997,

1002 (5th Cir. 1982); see also, e.g., United States v. Oreto, 37

F.3d 739, 753 (1st Cir. 1994). The district court did not err in

including the term “real doubt” in its definition of reasonable

doubt.

E. Denial of Motion for a Mistrial

Mora-Medrano claims that the district court erred by

refusing to grant his motion for a mistrial based on the

following comment that was made by the prosecutor:

This idea of when they brought character witnesses to
testify to the good character of some of the
defendants, and that we could have--it opened the door
to bring in witnesses to say they’re bad people, the
only problem with that is the only people we could
bring in to testify to that are people that are in the
same drug business as they are.

At trial, the district court sustained the defense’s objection to

this comment and admonished the jury to disregard it.

Nevertheless, the district court denied the defense’s motion for

“A reasonable doubt” is a real doubt, based upon
reason and common sense, after a careful and impartial
consideration of all the evidence in the case.
“Proof beyond a reasonable doubt” is proof of such
a convincing character that you would be willing to
rely and act upon it without hesitation in the most
important of your own affairs.

12
a mistrial, both at the time of the comment and when the issue

was later revisited, stating that it had given the jury a “strong

admonition to disregard” the comment and that, “in the context of

all of the instructions that the jury has been given, and the

specific response made during the argument to [the] objection at

the time it was raised, . . . [the rights] of all the defendants

in this case have been properly protected.”

The district court is in the best position to determine

whether it is necessary to grant a mistrial on the basis of

alleged prosecutorial misconduct, and “‘[a] criminal conviction

is not to be lightly overturned on the basis of a prosecutor’s

comments standing alone.’” United States v. Rocha, 916 F.2d 219,

234 (5th Cir. 1990) (quoting United States v. Lowenberg, 853 F.2d

295, 302 (5th Cir. 1988)). We review a district court’s ruling

on a motion for a mistrial for abuse of discretion. Id.

Improper prosecutorial remarks constitute reversible error only

if they “cast serious doubt on the jury’s verdict.” United

States v. Bustamante, 45 F.3d 933, 946 (5th Cir.), cert. denied,

116 S. Ct. 473 (1995). In making this determination, this court

considers three factors: “(1) the likelihood and degree that the

jury was prejudiced by the remarks; (2) the effectiveness of any

cautionary instructions given by the court; and (3) the strength

of the legitimate evidence of the defendant’s guilt.” Id.

In this case, the prosecutor’s statement does not cast

serious doubt on the correctness of the jury’s verdict. The

13
comment was an isolated one and the district court sustained the

defense’s objection to it and promptly admonished the jury to

disregard it. In addition, the government presented strong

evidence of Mora-Medrano’s guilt, including the corroborated

testimony of both Herrera and Mason and the fact that when

arrested he was driving the lead vehicle in the convoy that was

transporting the cocaine. We therefore find that the district

court did not err in denying Mora-Medrano’s motion for a

mistrial.

F. Denial of Motions for a New Trial

After the jury vacated the jury deliberation room, the

parties discovered several extraneous items that had been marked

as government exhibits but had not been admitted into evidence.

The items included National rental car records pertaining to

Chavez-Quezada, an Avis rental car record for Uribe, a Dollar

rental car record for Uribe, and D.T.C. Travel Agency records

showing one reservation for Mora-Medrano and ten reservations for

Herrera. Handwritten on the travel agency records were the

words, “No invoices listed for Velasco/Ismael.” In addition, the

parties found sixteen pages of Continental Airlines records that

included documentation of a reservation for two people under

“Lujan/Carlos/A” on an April 9, 1994 flight from Houston to El

Paso.

Chavez-Quezada filed a motion for new trial based on the

14
presence of unauthorized material in the jury room during

deliberations. The district court permitted Lujan to adopt

Chavez-Quezada’s motion for new trial in lieu of filing his own.

Mora-Medrano filed his own motion for new trial on the same

basis.

At the hearing on the defendants’ motions, Lujan claimed

that all of the extraneous material prejudiced him, and he argued

specifically that the Continental Airlines records were

prejudicial because they tended to discredit his theory that

Velasco and another individual were on the April 9, 1994 airplane

flight to El Paso rather than him. Mora-Medrano’s motion claimed

that the travel agency records listing prepaid tickets for him

and for Herrera linked him with alleged co-conspirators Herrera

and Velasco. He argued that this exhibit could have influenced

the jury and supplied the corroboration the jury might have felt

they needed to convict him.

The district court denied the motions for new trial, noting

that before jury deliberations began it had repeatedly instructed

the attorneys for both sides to review the exhibits carefully to

ensure that only the admitted exhibits were sent to the jury

room. The district court therefore concluded that defense

counsel’s failure to effectively review the documents after

repeated instructions to do so constituted waiver by failure to

exercise due diligence. In the alternative, the court held that

even if no waiver occurred, the extraneous materials did not

15
affect the verdict because there was sufficient evidence of the

defendants’ guilt to make the extraneous material harmless as a

matter of law.6

Absent an abuse of discretion, we will not overturn a

district court’s ruling on a motion for new trial on the ground

that extrinsic material prejudiced the defendants. United States

v. Sanchez-Sotelo, 8 F.3d 202, 212 (5th Cir. 1993). When

extraneous material is found in the jury room, the district court

must inquire into how it came to be there, whether the jurors

have seen it, and whether there is a reasonable possibility that

it influenced the jury’s verdict. See United States v. Luffred,

911 F.2d 1011, 1015 n.3 (5th Cir. 1990). “[A] defendant is

entitled to a new trial when extrinsic evidence is introduced

into the jury room ‘unless there is no reasonable possibility

that the jury’s verdict was influenced by the material that

improperly came before it.’” Id. at 1014 (quoting Llewellyn v.

Stynchombe, 609 F.2d 194, 195 (5th Cir. 1980)). Factors that are

relevant to this determination include “the content of the

extrinsic material, the manner in which it came to the jury’s

attention, and the weight of the evidence against the defendant.”

Id. There is a rebuttable presumption that extraneous material

is prejudicial to the defendant, and the government bears the

6
For purposes of this motion, the district court assumed
that the jury “was exposed to and considered the materials at
issue.”

16
burden of proving harmlessness. Id. However, extraneous

material that is cumulative of properly admitted evidence is not

prejudicial. Llewellyn, 609 F.2d at 196.

(1) Mora-Medrano

Mora-Medrano argues that he was prejudiced by the extrinsic

material because it corroborated “the heavily attacked testimony

of Mason and Herrera, co-operating co-defendants whose

credibility had been seriously damaged otherwise.” At the

hearing below, he specifically argued that the D.T.C. Travel

records prejudiced him because they indicated that he had

purchased a pre-paid airline ticket for travel on January 10,

1994 and thereby corroborated Herrera’s testimony regarding his

actions on that date. In addition, he contended that the

handwritten notation regarding co-defendant Velasco served to

associate him with Velasco.

At trial, the government introduced a significant amount of

evidence which is relevant to this issue. The testimony of Mason

and Herrera indicated that Mora drove the lead vehicle in each

drug transportation trip. Hotel records corroborated this

testimony by indicating that Mora-Medrano was in Houston on the

dates that Mason and Herrera testified drug transportation trips

arrived there. In addition, officers observed Mora-Medrano

meeting with Herrera and Mason in El Paso just prior to Herrera

and Mason going to the El Paso house. Finally, Mora-Medrano was

17
arrested in Hatch, New Mexico while driving the lead vehicle in

the transportation convoy. Given the significant amount of

evidence indicating that Mora-Medrano was deeply involved in the

conspiracy, we conclude that the district court’s determination

that the jury’s consideration of the travel agency document was

harmless did not constitute an abuse of discretion.

(2) Lujan

Lujan argues on appeal that all of the extraneous material

prejudiced him because “the documents tended to link Mr. Lujan to

Herrera through an association with Mora[-Medrano].” The

government responds that the only item that could possibly have

prejudiced Lujan was the Continental Airlines record that showed

a reservation for two people in his name on an April 9, 1994

flight from Houston to El Paso.

When the jury receives extrinsic evidence that “links the

defendant to the offense with which he is charged or impeaches

the defendant or one of his witnesses and the material is not

merely cumulative, prejudicial error requiring reversal may

result.” Martin v. Estelle, 541 F.2d 1147, 1148 (5th Cir. 1976).

With the exception of the Continental Airlines record, none of

the extrinsic material mentioned Lujan or linked him to the

offense with which he is charged. The government claims that the

Continental Airlines record was cumulative because in its

rebuttal it introduced the tickets and reservation documents from

18
the same flight indicating that two people identified to the

airline as Carlos and A. Lujan took the April 9, 1994 flight.7

Given the fact that this evidence documented the same event as

the extrinsic material in question, we conclude that the district

7
Lujan claims that because the tickets were admitted in
violation of Federal Rule of Criminal Procedure 16(a)(1)(C), they
cannot be considered properly admitted evidence. He therefore
argues that the airline record that was mistakenly taken into the
jury room cannot be considered merely cumulative of properly
admitted evidence. We disagree.

Lujan has not challenged the admission of the tickets and
reservation records directly; he does so only in one portion of
his argument regarding the extrinsic material that was taken into
the jury room. Even assuming that this point is properly raised,
however, we think that the district court’s admission of the
tickets was proper. Rule 16(a)(1)(C) requires that the
government disclose documents and tangible objects “which are
within the possession, custody, or control of the government and
which are material to the preparation of the defendant’s
defense.” FED. R. CRIM. PRO. 16(a)(1)(C).

The trial record indicates that the rebuttal witness, the
custodian of records at Continental Airlines, brought the tickets
with him on the day of his testimony and the government did not
have access to them prior to its examination of the witness. In
its rebuttal, the government introduced reservations records from
Continental Airlines through the witness’s testimony. During the
government’s examination of the witness, defense counsel took the
witness on voir dire and proceeded to question him regarding
whether the reservation records would indicate whether the person
who reserved the ticket was actually on the flight. When
pursuing this line of questioning, defense counsel was aware that
the government was in possession of the tickets that were
collected when the airplane was boarded. Thus, because defense
counsel opened the door to the issue and was aware of the tickets
when it did so, the district court’s decision to admit the
tickets was not improper. Cf. United States v. Delk, 586 F.2d
513, 519 (5th Cir. 1978) (holding that license tag receipts which
were not disclosed to the defense prior to their introduction at
trial, through no fault of the government, were properly admitted
in the government’s rebuttal case because the defense opened the
door by focusing on the lack of physical evidence).

19
court did not abuse its discretion in denying Lujan’s motion for

new trial.

G. Sufficiency of the Evidence

Uribe, Lujan, and Arevalo argue that the evidence was

insufficient to sustain their convictions for the crimes with

which they were charged. In considering challenges to the

sufficiency of the evidence, this court reviews the evidence,

whether direct or circumstantial, in the light most favorable to

the jury verdict. United States v. Resio-Trejo, 45 F.3d 907, 910

(5th Cir. 1995). Moreover, we resolve all credibility

determinations and reasonable inferences to be drawn therefrom in

favor of the verdict. Id. at 911. The evidence is sufficient to

support the verdict if a reasonable trier of fact could have

found the essential elements of the crime to be proven beyond a

reasonable doubt. Id. We address the claims of each defendant

in turn.

(1) Uribe

Uribe argues that the government’s evidence was insufficient

to prove that he was part of the drug conspiracy. “‘To establish

the offense of a drug conspiracy, the Government must prove

beyond a reasonable doubt that a conspiracy existed, that the

accused knew of the conspiracy, and that he voluntarily joined

it.’” United States v. Dean, 59 F.3d 1479, 1485 (5th Cir. 1995)

(quoting United States v. Limones, 8 F.3d 1004, 1009 (5th Cir.

20
1993)), cert. denied, 116 S. Ct. 794 (1996). While the

government may prove these elements through circumstantial

evidence, “‘we have repeatedly stressed that we will not lightly

infer a defendant’s knowledge of and participation in a

conspiracy.’” Id. (quoting United States v. Maltos, 985 F.2d

743, 746 (5th Cir. 1992)). Thus, evidence that it is more likely

than not that the defendant knowingly joined a conspiracy is not

sufficient to prove the government’s case beyond a reasonable

doubt. Id.

Uribe maintains that he is a legitimate businessman whose

only interaction with the members of the conspiracy was

purchasing used automobiles from them. At trial, Herrera

testified that Uribe was responsible for receiving the drugs on

behalf of Chavez-Quezada upon their arrival in the destination

city. Herrera’s testimony was corroborated by the fact that,

when arrested, Uribe’s wallet contained Peña’s pager number and

cellular phone number. Moreover, Uribe’s pager number was found

in Herrera’s electronic organizer and on a piece of paper found

at one of the stash houses.

In addition, Mason testified extensively as to the dates

that he made drug deliveries to different cities. Hotel receipts

indicated that on several occasions Uribe was in those cities

when Mason made the deliveries. Mason also testified that on two

different occasions he delivered cocaine to Victorville,

California and that he was told that Victorville had been chosen

21
because the people who were receiving the drugs lived there.

Documentary evidence indicated that Uribe lived in Victorville.

Finally, the government introduced into evidence taped

conversations in which Peña and Uribe discussed the logistics of

the exchange of the vans.

“[A] guilty verdict may be sustained if supported only by

the uncorroborated testimony of a co-conspirator, 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). In this case the testimony of the co-conspirators was

supported by other evidence admitted at trial. When viewed in

the light most favorable to the verdict, the evidence admitted at

trial was sufficient to allow a reasonable jury to conclude that

a conspiracy existed and that Uribe knowingly and voluntarily

joined it.

(2) Lujan

Lujan contends that the evidence presented at trial was

insufficient to allow a reasonable jury to find that he was

guilty of the offenses of drug conspiracy, drug possession, and

aiding and abetting. As noted above, in order to prove the

offense of drug conspiracy, the government must prove beyond a

reasonable doubt that a conspiracy existed and that the defendant

knowingly and voluntarily joined it. Dean, 59 F.3d at 1485. In

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order to sustain a conviction for aiding and abetting a drug

possession with intent to distribute, the government must prove

both the offense of aiding and abetting and the offense of drug

possession. “The elements for possession of drugs with intent to

distribute are as follows: (1) knowledge of the contraband, (2)

possession of the contraband, and (3) intent to distribute the

contraband.” United States v. Pedroza, 78 F.3d 179, 183 (5th

Cir. 1996). In order to prove the aiding and abetting aspect of

the charge, the government was required to show (1) Lujan’s

association in the criminal activity, (2) his participation in

it, and (3) the actions that he took for the purpose of making

the criminal activity succeed. Id.

At trial, Mason testified that Lujan participated in three

different drug transportation trips and that on two of those

trips, Lujan drove the lead vehicle. This testimony was

corroborated by airline records indicating that Lujan flew from

Houston to El Paso on April 9, 1994, just two days before the

April 11 trip during which he was arrested. Mason also testified

that when he, Lujan, and Mora-Medrano were being held together

prior to their arraignment, Lujan told him to “keep his mouth

shut.” In addition, Herrera testified that Lujan was a member of

the organization and that during one of the trips Lujan answered

the mobile phone when Herrera called the car. Finally, when

Lujan was arrested, phone numbers of other members of the

conspiracy were found in his wallet. Viewed in the light most

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favorable to the jury’s verdict, we think the evidence admitted

at trial was sufficient to allow the jury to find Lujan guilty on

all three counts.

(3) Arevalo

Arevalo challenges the sufficiency of the evidence

supporting his conviction for possession with intent to

distribute in excess of five kilograms of cocaine. As noted

above, in order to establish that a defendant is guilty of

possession with intent to distribute, the government must prove

that the defendant had knowledge and possession of the contraband

and that he intended to distribute it. Pedroza, 78 F.3d at 183.

Possession of a quantity of drugs too large for ordinary

consumption suggests an intent to distribute. See United States

v. Pineda-Ortuna, 952 F.2d 98, 102 (5th Cir. 1992).

The evidence admitted at trial indicated that Arevalo was

dropped off by a taxicab at a McDonald’s restaurant and went

briefly inside. When he exited the McDonald’s, he drove away in

a blue pickup truck that DEA agents had followed from a house

that had received a delivery of cocaine on the previous day.

Moments later, Arevalo was stopped and arrested, and 340.7

kilograms of cocaine were found in the vehicle.

Although Arevalo, a mechanic, testified that he had been

called to pick up the truck because it had mechanical problems,

DEA officers found no evidence of such problems, Arevalo did not

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inspect the truck before driving it away, and he did not have

tools with him when he was arrested. Further, he claimed that he

did not get the name of the owner or the truck’s exact location

before leaving to pick it up at the McDonald’s. In addition, his

shop was located approximately thirty miles from the McDonald’s

where he picked up the truck, and he was arrested after exiting

the freeway at a different exit than the one that would have led

back to his shop. This evidence was sufficient for a reasonable

jury to find Arevalo guilty of the crime of possession of cocaine

with intent to distribute.

H. Application of the Sentencing Guidelines

Arevalo and Uribe challenge the sentences imposed upon them

by the district court. We will uphold a sentence imposed under

the sentencing guidelines if it is the result of a correct

application of the guidelines to factual findings that are not

clearly erroneous. United States v. Atanda, 60 F.3d 196, 198

(5th Cir. 1995).

(1) Arevalo

Arevalo argues that the district court erred in refusing to

grant him a four-point reduction in his offense level pursuant to

§ 3B1.2 of the Sentencing Guidelines. Section 3B1.2 provides for

a four-point reduction where the defendant was a “minimal”

participant in the criminal activity and a two-point reduction

where the defendant was a “minor” participant. U.S. SENTENCING

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GUIDELINES § 3B1.2. This provision is not applicable to Arevalo.

Arevalo’s participation in the criminal activity was

limited to driving a single truckload of cocaine that amounted to

less than one percent of the total amount allegedly involved in

the conspiracy. However, Arevalo was acquitted on the conspiracy

charge; he was found guilty only of possession with intent to

distribute 340.7 kilograms of cocaine. His sentence therefore

was based entirely on his possession of the drugs, an activity in

which he clearly was involved. “[W]hen a sentence is based on an

activity in which a defendant was actually involved, § 3B1.2 does

not require a reduction in the base offense level even though the

defendant’s activity in a larger conspiracy may have been minor

or minimal.” Atanda, 60 F.3d at 199. Thus, the district court

did not err in refusing to reduce Arevalo’s offense level.

(2) Uribe

Uribe contends that the district court erred by increasing

his offense level by three points pursuant to § 3B1.1(b) of the

Sentencing Guidelines. Section 3B1.1(b) provides that the

defendant’s offense level should be increased by three levels if

“the defendant was a manager or supervisor (but not an organizer

or leader) and the criminal activity involved five or more

participants or was otherwise extensive.” U.S. SENTENCING GUIDELINES

§ 3B1.1(b). Uribe contends that § 3B1.1(b) does not apply to him

because under the government’s theory he was merely a driver

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without any real authority in the conspiracy. Further, he

disputes the finding that there were five people working under

him in the conspiracy.

A district court’s determination that a defendant is an

organizer, leader, manager, or supervisor under § 3B1.1 is a

factual finding which this court reviews only for clear error.

See United States v. Giraldo, 111 F.3d 21, 23 (5th Cir.), cert.

denied, 66 U.S.L.W. 3282 (Oct. 14, 1997); United States v.

Valencia, 44 F.3d 269, 272 (5th Cir. 1995). “A factual finding

is not clearly erroneous if it is plausible in light of the

record read as a whole.” Valencia, 44 F.3d at 272.

In sentencing Uribe, the district court adopted the

Presentence Investigation Report’s finding that he was a manager

or supervisor in the conspiracy. A Presentence Investigation

Report “‘generally bears sufficient indicia of reliability to be

considered as evidence by the trial judge in making the factual

determinations required by the guidelines.’” United States v.

Jobe, 101 F.3d 1046, 1065 (5th Cir. 1996) (quoting United States

v. Elwood, 999 F.2d 814, 817 (5th Cir. 1993)), cert. denied, 118

S. Ct. 81 (1997). Having reviewed the record and the Presentence

Investigation Report, we cannot say that the district court’s

factual determination that Uribe was a manager or supervisor was

clearly erroneous. We therefore find that the district court did

not err in increasing Uribe’s offense level by three points

pursuant to § 3B1.1(b) of the Sentencing Guidelines.

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 III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

judgment of conviction and sentence as to each defendant-

appellant.

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