United States v. Posada-Rios

REVISED, November 12, 1998

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

________________________

No. 94-20645
________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ESNORALDO DE JESUS POSADA-RIOS
CARLOS ANTONIO MENA
ELISA GRAJALES MURGA
CARMENZA GUZMAN VARON
RAUL GAMBOA
LUIS GERARDO RIOS-CASTANO
MANUEL DE JESUS PARADA
ANTHONY JEROME GAGE
KELVIN JACKQUET
MONA SMITH WATSON,

Defendants-Appellants.

________________________

Appeals from the United States District Court
for the Southern District of Texas
________________________

October 21, 1998

TABLE OF CONTENTS

I. FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . 5

A. Samuel Posada-Rios Organizes “La Compania” . . . . 5

B. Threats from Rival Drug Dealers and
Retaliation by La Compania . . . . . . . . . . . . 8

C. Samuel Posada-Rios Operates La Compania from
Colombia . . . . . . . . . . . . . . . . . . . . . 11

1. Ariel Ochoa and Esnoraldo De Jesus Posada-
Rios take over the Houston operation . . . . . 11

2. Elisa Grajales Murga . . . . . . . . . . . . . 13
 D. Harold and Wonda Cortes . . . . . . . . . . . . . . 15

1. The Harold Cortes Organization (Manuel
Parada) . . . . . . . . . . . . . . . . . . . . 16

2. The Wonda Cortes Organization . . . . . . . . . 20

a. Mona Smith Watson and Tony Jones . . . . . 20

b. Mary Helen Hermann . . . . . . . . . . . . 21

c. Anthony Jerome Gage and Kelvin Jackquet . . 22

d. Carmenza Guzman Varon . . . . . . . . . . . 23

e. November 15-16, 1991, distributions to Gage,
Jackquet, Watson, and Varon . . . . . . . . 23

f. December 10-11, 1991, distributions to Watson,
Gage, Jackquet, Carmenza Varon, and Janeth Varon
. . . . . . . . . . . . . . . . . . . . . 26

g. January 1992 distributions . . . . . . . . 29

E. Mona Smith Watson’s Cocaine Distributions . . . . . 29

F. Anthony Gage and Kelvin Jackquet’s Cocaine Distri-butions
. . . . . . . . . . . . . . . . . . . . . . . . . 31

G. Raul Gamboa and Carlos Mena . . . . . . . . . . . . 32

H. The Demise of La Compania . . . . . . . . . . . . . 35

II. VERDICTS AND SENTENCES . . . . . . . . . . . . . . . . 37

III. DISCUSSION . . . . . . . . . . . . . . . . . . . . . . 40

A. Sufficiency of the Evidence Challenges . . . . . . 40

1. RICO, 18 U.S.C. § 1962(c) . . . . . . . . . . . 41

2. RICO Conspiracy, 18 U.S.C. § 1962(d) . . . . . 45

a. Mena . . . . . . . . . . . . . . . . . . . 48

b. Murga . . . . . . . . . . . . . . . . . . . 50

c. Varon . . . . . . . . . . . . . . . . . . . 50

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 d. Parada . . . . . . . . . . . . . . . . . . 51

e. Gage . . . . . . . . . . . . . . . . . . . 52

3. The Controlled Substances Violations . . . . . 53

a. Mena . . . . . . . . . . . . . . . . . . . 53

b. Murga . . . . . . . . . . . . . . . . . . . 54

c. Gamboa . . . . . . . . . . . . . . . . . . 54

d. Parada . . . . . . . . . . . . . . . . . . 55

e. Gage . . . . . . . . . . . . . . . . . . . 55

4. Jackquet’s conviction for use of a firearm “during
and in relation to” a drug trafficking offense in
violation of 18 U.S.C. § 924(c) . . . . . . . . 56

5. Murga’s conviction for making a false statement on a
visa application in violation of 18 U.S.C. § 1546(a)
. . . . . . . . . . . . . . . . . . . . . . . 58

B. Joinder and Severance Issues . . . . . . . . . . . 59

1. Joinder . . . . . . . . . . . . . . . . . . . . 59

2. Severance . . . . . . . . . . . . . . . . . . . 60

C. Evidentiary Issues . . . . . . . . . . . . . . . . 66

1. Admissibility of Watson’s Statements . . . . . 66

2. Admissibility of Murga’s Statements . . . . . . 72

3. Admissibility of Evidence Seized from the Mercury
Sable . . . . . . . . . . . . . . . . . . . . . 72

4. Admissibility of Evidence Seized from Jackquet’s
Residence . . . . . . . . . . . . . . . . . . . 74

5. The Government’s Trial Charts . . . . . . . . . 75

6. The Alleged Hearsay Testimony of Agent
Schaefer . . . . . . . . . . . . . . . . . . . 77

7. Impeachment Evidence Against Agent Schaefer . . 79

8. Extraneous Offense Evidence Against Gage . . . 81

9. Violation of Fed. R. Evid. 615 by Hall and

-3-
Cortes . . . . . . . . . . . . . . . . . . . . 82

-4-
 D. Instructions to the Jury . . . . . . . . . . . . . 84

1. Voir Dire Instruction About Guilty Pleas . . . 84

2. Failure to Submit Duress Instruction . . . . . 86

3. Deliberate Ignorance Instruction . . . . . . . 92

E. Contact with a Juror . . . . . . . . . . . . . . . 93

F. Ineffective Assistance of Counsel . . . . . . . . . 96

G. Sentencing Issues . . . . . . . . . . . . . . . . . 98

1. Esnoraldo Posada-Rios . . . . . . . . . . . . . 99

2. Mena . . . . . . . . . . . . . . . . . . . . . 99

3. Murga . . . . . . . . . . . . . . . . . . . . . 102

4. Varon . . . . . . . . . . . . . . . . . . . . . 104

5. Gamboa . . . . . . . . . . . . . . . . . . . . 105

6. Rios-Castano . . . . . . . . . . . . . . . . . 106

7. Gage . . . . . . . . . . . . . . . . . . . . . 107

8. Jackquet . . . . . . . . . . . . . . . . . . . 108

IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . 109

-5-
Before KING and STEWART, Circuit Judges, and LAKE,* District Judge.

SIM LAKE, District Judge:

In December of 1992 a 134-page superseding indictment was

returned charging 35 defendants with drug trafficking and related

charges arising out of a conspiracy that began in 1985. After 84

days of trial, the ten defendants who are parties to this

consolidated appeal were convicted of a number of offenses. Most

of the defendants challenge the sufficiency of the evidence to

support their convictions, and various defendants challenge a

number of the trial court’s rulings before and during trial and at

sentencing. Except as to the RICO conspiracy conviction of Carlos

Antonio Mena, we AFFIRM the judgments of the trial court.

I. FACTUAL BACKGROUND

A. Samuel Posada-Rios Organizes “La Compania”

In 1985 Leoncio Ysreal Espaillat2 met Fabio Ochoa, Jr., a

Colombian cocaine supplier, and Samuel Posada-Rios. From 1986

through 1988 Espaillat stored approximately 12,000 kilograms of

Fabio Ochoa’s cocaine at Espaillat’s ranch in the Dominican

Republic. Some of the cocaine was delivered to Samuel Posada-Rios,

*
District Judge for the Southern District of Texas, sitting by
designation.
2
The downfall of the Samuel Posada-Rios cocaine trafficking
enterprise was hastened by the arrest of Espaillat. After he was
convicted of federal drug offenses in 1989 and sentenced to twenty
years in prison Espaillat began cooperating with law enforcement
agents. At trial Espaillat detailed the history and organization
of the Samuel Posada-Rios drug conspiracy.

-6-
who was then operating from Tampa, Florida. Samuel Posada-Rios and

his partner, Carlos Moncada Rendon, formed a cocaine trafficking

enterprise known as “La Compania.” Samuel Posada-Rios’ inner

circle of associates included Miguel Cardona and Luis Gerardo Rios-

Castano (“a/k/a Luis Rios”; a/k/a “Flecha”)3 (both of whom operated

as transporters and assassins for the organization), Pepo Rendon

(Carlos Rendon’s brother), Wilson Patino, Mario Restrepo, and

Mercedes Agredo. Samuel Posada-Rios supplied cocaine to a number

of major distributors, including Esnoraldo De Jesus Posada-Rios,

Jose Aref-Mohammed, Enrique Perez, Jose Hernandez, Harold Cortes,

and Wonda Cortes. Each of the major distributors had his or her

own distributor customers.

At Samuel Posada-Rios’ direction Espaillat began transporting

drugs and money from Los Angeles to New York and Miami in 1986. On

his first trip Espaillat flew to Los Angeles and was driven by

Samuel Posada-Rios from the airport to the cocaine stash house.

After hiding the cocaine in a secret compartment in a camper of a

small truck, Espaillat drove to Queens, New York, and delivered the

cocaine to Esnoraldo De Jesus Posada-Rios. Shortly thereafter,

Samuel Posada-Rios moved his drug trafficking operations from Tampa

to Houston. Samuel Posada-Rios began paying Espaillat $10,000 a

month to assist in driving 25- to 200-kilogram loads of cocaine

from Houston to Austin, Dallas, New York, and Colorado by renting

cars and finding apartments and storage for the cocaine.

3
For ease of understanding the names of the ten appellants are
underlined in this abbreviated factual summary.

-7-
 In early 1987 Espaillat delivered two loads, of 10 and 25

kilograms, to Aref-Mohammed at the instructions of Samuel Posada-

Rios. Aref-Mohammed then asked to meet Samuel Posada-Rios, and the

two began dealing directly with one another. Espaillat then began

making cocaine deliveries at least twice a month to “Chu Chu,” an

employee of Aref-Mohammed. Henry Alfredo Garcia also transported

cocaine from Samuel Posada-Rios to Aref-Mohammed through Chu Chu.

In 1987 most of the cocaine delivered to Samuel Posada-Rios

in Houston arrived over land. On September 6, 1987, however, 850

kilograms of cocaine arrived in Houston on a ship from Colombia and

was transported to Samuel Posada-Rios’ house in the Mission Bend

area of Houston. Present at the house to count and distribute the

cocaine were Samuel Posada-Rios, Espaillat, Enrique Perez, Mercedes

Agredo, Miguel Cardona, Rios-Castano, and Chu Chu. Perez and Aref-

Mohammed received 350 kilograms, and the remaining 500 kilograms

went to Samuel Posada-Rios. Espaillat delivered $675,000 in cash

to the captain of the ship as payment for transporting the cocaine.

Espaillat obtained the money from Samuel Posada-Rios, Enrique
Perez, and Chu Chu, who was acting on behalf of Aref-Mohammed.

In 1987, 1988, and 1989 Samuel Posada-Rios received between

400 and 500 kilograms of cocaine per month. Espaillat estimated

that from the beginning of 1987 through the summer of 1988 Samuel

Posada-Rios received between 12,000 and 14,000 kilograms of

cocaine, and that he received another 2,000 kilograms of cocaine

-8-
during the remainder of 1988. Over 1,000 kilograms of this cocaine

was supplied to Aref-Mohammed.4

In September of 1988 Espaillat distributed 60 kilograms of

cocaine in Miami at Samuel Posada-Rios’ direction. He received

$250,000 in cash in payment but was robbed of this money at

gunpoint. Samuel Posada-Rios ordered Espaillat to go to Colombia,

where he was shown a severed arm and hand wearing the watch and

ring that Espaillat identified as formerly belonging to the person

who had robbed him.

B. Threats from Rival Drug Dealers and Retaliation by La
Compania

Carlos Palomino belonged to a rival drug gang from Buena

Ventura, Colombia, called “Los Canoneros” (highjackers or

cannoneers in Spanish) that was noted for stealing cocaine and

money from rival drug dealers and for killing members of rival

gangs. In December of 1987 Samuel Posada-Rios told Espaillat that

Palomino had stolen 5 kilograms of cocaine from the Posada-Rios

organization and had molested a woman who was guarding the drugs.

Samuel Posada-Rios, Espaillat, Pepo Rendon, and other members of

La Compania decided to kill Palomino after the Christmas holidays

in retaliation and to ensure respect for La Compania.

On January 18, 1988, Rios-Castano and Edison Alvarez (a/k/a

“Motor”) were sitting inside the Miami Beat Disco in Houston when

4
When the trial began Aref-Mohammed was a defendant. On
July 21, 1993, he pled guilty to a superseding information charging
him with one count of engaging in a continuing criminal enterprise
in violation of 21 U.S.C. § 848 pursuant to an agreement with the
government. He was sentenced to ten years in prison, three years
of supervised release, a $50,000 fine, and a $100 special
assessment.

-9-
Palomino and his girlfriend, Carolyn Tippett, arrived. Carlos

Moncado-Rendon testified at trial that Rios-Castano related to him

the following account of what happened at the club. Rios-Castano

and Alvarez were sitting at the club drinking when Palomino arrived

with two women. An argument ensued between Alvarez and Palomino,

and Rios-Castano grabbed Alvarez and took him outside. Carolyn

Tippett followed Rios-Castano and Alvarez outside and began arguing

with Alvarez. Palomino followed Tippett out of the club. When

Tippett tried to hit Alvarez in the face he pulled his gun and shot

and killed her. During the defense portion of the case Rios-

Castano described a similar, but more detailed, version of the

Tippett killing. The thrust of both of Rios-Castano’s versions was

that Tippett’s killing was a personal, rather than business

related, matter. Tippett’s murder was discussed at a subsequent

meeting of La Compania members Samuel Posada-Rios, Rios-Castano,

Miguel Cardona, and Espaillat. When Samuel Posada-Rios suggested

that they should not have killed Tippett, Rios-Castano responded,

“We killed her, so what.”

On February 27, 1988, three carloads of Posada-Rios’ men

(including Miguel Cardona, Rios-Castano, Tumaco, Mikiquito,

Moncada, and Pepo Rendon) went to the Thunderdome nightclub to kill

Palomino. Although they shot Palomino numerous times as he came

out of the club, Palomino escaped with only minor injuries. Robert

Torres-Gonzalez (a/k/a “Gustavito”), a drug dealer who had been

with Palomino at the club and who testified at trial, identified

Rios-Castano as one of the gunmen, and Rios-Castano later pled

guilty in state court of aggravated assault of Palomino.

-10-
 Palomino retaliated on June 26, 1988, by murdering Pepo

Rendon at the Miami Beat Disco. Samuel Posada-Rios then told

Mikiquito to find out which of Palomino’s people had killed Pepo

Rendon and where they lived. Mikiquito identified Gustavito and

Henry Barahona as Pepo Rendon’s killers and identified a house

where they could be found. On June 27, 1988, Samuel Posada-Rios,

Rios-Castano, Moncado, Mikiquito, and others went to 2703 Skelton

to kill Gustavito and Barahona. When they could not find Rendon’s

killers, they shot up the house, and another house at 11811 Green

Lane.

On August 7, 1988, Samuel Posada-Rios, Miguel Cardona, Carlos

Moncada Rendon, and Rios-Castano finally tracked Gustavito and

Barahona to an apartment complex, laid in wait for them to leave,

and retaliated for Pepo Rendon’s murder. When four people emerged

from the apartment, a gun battle ensued; Barahona was killed and

Gustavito was shot nine times. Rios-Castano later pled guilty in

state court to Barahona’s murder. Samuel Posada-Rios bragged to

Harold Cortes how Barahona’s brain “splattered or exploded

everywhere.”

Barahona’s murder forced Samuel Posada-Rios to leave the

country. Espaillat drove him to Miami, and from there he went to

the Dominican Republic, and ultimately to Colombia, where Espaillat

delivered $3 million to him.5

5
Samuel Posada-Rios was a fugitive at the time of the
appellants’ trial in 1993. On June 15, 1995, the United States
extradited Samuel Posada-Rios from Frankfurt, Germany. In 1996 he
was tried and sentenced to life in prison after a jury found him
guilty of participating in a racketeering enterprise and possessing
cocaine with intent to distribute it in violation of 18 U.S.C.
(continued...)

-11-
C. Samuel Posada-Rios Operates La Compania from Colombia

1. Ariel Ochoa and Esnoraldo De Jesus Posada-Rios take over
the Houston operation

Samuel Posada-Rios continued his drug trafficking enterprise

from Colombia, calling Espaillat on a daily basis. Carlos Moncada

took over the Houston enterprise until his arrest on September 9,

1988. Samuel Posada-Rios then designated Ariel Ochoa as his

successor in Houston to distribute Colombian cocaine. Samuel

Posada-Rios also designated his brother, Esnoraldo De Jesus Posada-

Rios, as his local successor to collect money owed him for previous

cocaine deliveries. The money owed was recorded in ledgers that

Espaillat retrieved from Samuel Posada-Rios’ house and gave to

Miguel Cardona and Esnoraldo Posada-Rios.

Esnoraldo Posada-Rios was arrested in August of 1988. Samuel

Posada-Rios instructed Espaillat to bond Esnoraldo out of jail and

to find him a place to live. Samuel Posada-Rios promised Espaillat

15 kilograms of cocaine for putting up Esnoraldo’s bond. Espaillat

complied and moved Esnoraldo to 9001 Jones Road, #1111, after

bonding him out of jail.

After his release from jail Esnoraldo and Ariel Ochoa worked

together at Samuel Posada-Rios’ direction. (After his release from

jail Esnoraldo also collected over $2 million of Samuel’s drug

debts.) Ochoa had agreed with Samuel Posada-Rios to supply

Esnoraldo with up to 150 kilograms of cocaine per week. Esnoraldo

(...continued)
§ 1962 and 21 U.S.C. § 846.

-12-
met with Ochoa at the Two Pesos restaurant on FM 1960 to arrange

for additional deliveries of cocaine. Maximo Perez, a friend from

the Dominican Republic whom Espaillat recruited to come to Houston,

attended the meeting with Esnoraldo; and Ochoa was accompanied by

Tatiana Bedoya, his girlfriend, and Elisa Grajales Murga, his ex-

wife. After the meeting Murga and Bedoya delivered 25 kilograms to

Esnoraldo at Ochoa’s direction. Espaillat purchased 2 kilograms of

this delivery. Again through Murga and Bedoya, Ochoa delivered a

second 75-kilogram load to Esnoraldo and Maximo Perez in November

of 1988.

In January of 1989 Esnoraldo Posada-Rios had arranged for

Espaillat to make a cocaine delivery. Espaillat had spotted

surveillance agents earlier that day. Afraid that he was about to

be arrested, he called a friend from his car to retrieve the

cocaine he was carrying. Although Espaillat delivered what he

believed to be all of the cocaine to the friend, when his car was

stopped by the police 1 kilogram was discovered on the back seat

floorboard. The Jones Road apartment was searched later that day,

and nine packages of cocaine, weighing paraphernalia, guns, and

ammunition were seized.

Esnoraldo Posada-Rios talked to Espaillat two days after this

arrest to locate the 3 kilograms of cocaine that Espaillat had

turned over to his friend. Esnoraldo then fled to New York, where

he ran Samuel Posada-Rios’ New York cocaine distribution operation.

New York police arrested Esnoraldo on January 24, 1990, at an

-13-
apartment where they also seized a machine gun, ammunition, and

cocaine that belonged to him.

2. Elisa Grajales Murga

Elisa Grajales Murga assisted her ex-husband, Ariel Ochoa,

in the cocaine distributing operation. Jose Antonio Ortiz

testified that in March of 1989 Murga paid him $500 per kilogram to

sell cocaine for her. He sold 1 or 2 kilograms, which he received

from Murga's maid, Mercedes Alonzo, at Murga's house at 12806

Maxfield and for which he paid Alonzo. In late May of 1989 Ortiz

negotiated a second delivery that was to occur in June of 1989.

On June 13, 1989, surveillance officers observed Ernesto

Torres emerge from room #113 at a Manor House Motel with Murga

carrying a large hard-sided suitcase, which Torres placed in the

trunk of his car. Torres and Murga drove to her house at 12806

Maxfield, where police observed them carrying packages into the

house. Police continued to follow Torres. Later that afternoon

Torres met several unidentified Latin males, one of whom handed

Torres a package from the trunk of his car.

On June 14, 1989, around 11:00 a.m., Murga met Carlos

Guillermo Rodriguez and Torres at the Cafe Miami Restaurant. Murga

then left the restaurant and returned to the Maxfield house.

Around noon police observed a Latin male, later identified as

Victor Rodriguez, carry a box from the Maxfield house and place it

in the trunk of his car. Victor Rodriguez was later stopped by the

police on an outstanding warrant, and 10 kilograms of cocaine were

seized from his car. The cocaine was labeled “Oro” and “Peria.”

-14-
 The same day that she delivered cocaine to Victor Rodriguez,

Murga called Ortiz three times at the restaurant to tell him that

his cocaine was ready. Ortiz drove to Murga's house around

1:00 p.m. and spoke with Mercedes Alonzo, who told him that Murga

had left him a package in a boat in Murga's garage. Ortiz and

Alonzo loaded a large corrugated box from the boat into the trunk

of Ortiz’s car. Police later stopped Ortiz and seized 20 kilograms

of cocaine from the box in his car.

The police then went to Murga’s house and searched it with

her consent. The police seized 10 kilograms of cocaine from the

boat in the garage. The cocaine was packaged with the same “Oro”

and “Peria” markings as the 30 kilograms previously seized from

Rodriguez and Ortiz. Police also seized a bag containing 2.9 grams

of cocaine from Murga's purse and a triple-beam scale from her

house.

Olivia Alastre, a confidential informant working for the FBI,

testified that in January of 1991 Murga was attempting to

reestablish her contacts in the drug trafficking business. Murga

first tried unsuccessfully to obtain cocaine from Fabio Zuniga, a

friend of Ochoa's. Ochoa finally agreed to give her 30-40

kilograms. In April of 1991 Murga asked Alastre’s assistance in

renting an apartment to store the cocaine. She introduced Alastre

to “Don Jose,” whom Murga told Alastre she had employed to assist

her in distributing the cocaine to reduce her personal involvement.

Murga's address book, which she inadvertently left in Alastre's

car, was photocopied by federal agents before it was returned. The

-15-
book contained names and telephone numbers of other documented drug

traffickers.

D. Harold and Wonda Cortes

Harold Cortes was one of Samuel Posada-Rios' best customers.

When Ariel Ochoa took over the distribution of Samuel Posada-Rios’

cocaine in Houston, Harold became one of his main assistants. When

Samuel Posada-Rios fled to Colombia, Harold Cortes owed him between

$125,000-$130,000; Ariel Ochoa offered to let Harold repay the debt

by becoming one of his distributors.

Wonda Cortes was Harold’s wife and a long-time drug dealer

in her own right. Wonda had a large number of customers whom she

was not able to supply because of her own limited supply of cocaine

and the high cost she was paying for the cocaine. In the fall of

1990 Harold Cortes agreed to let Wonda distribute cocaine from

Ochoa to these customers. By 1991 the Corteses were well

established as major distributors in the Samuel Posada-Rios

organization. Ledgers seized from Harold Cortes's residence on Sir

William Street during a July 10, 1992, search reflected almost $72

million in drug proceeds and 5,753.3 kilograms of cocaine

distributions.

Ariel Ochoa supplied cocaine to Harold Cortes through Tatiana

Bedoya, Ochoa’s girlfriend. Millions of dollars in drug proceeds

collected by the Corteses were wired to Colombia through money

laundering facilities known as "giro houses" in Houston or other

cities. Bedoya worked at a giro house named "One Stop Express."

1. The Harold Cortes Organization (Manuel Parada)

-16-
 Wonda Cortes testified for the government at trial. She

explained that the Posada-Rios drug trafficking enterprise operated

like a corporation. Cocaine and money had to be accounted for,

stored, and redistributed; and money had to be paid out for renting

houses for living and stashing contraband, for cars for

transporting drugs and money, and for pagers, telephones, scanners,

and antisurveillance devices. To accomplish these tasks Harold

Cortes employed Victor Loaiza (a/k/a Julio Jimenez), Hernan Moreno

(a/k/a “Papo”), and Manuel De Jesus Parada.

Victor Loaiza met Ariel Ochoa in 1989. Loaiza testified that

in early 1990 he flew from Miami to Houston at Ochoa's request to

"take care of the money." Ochoa took Loaiza to an apartment, and

Harold Cortes arrived at the apartment with $150,000 for Loaiza to

guard. Loaiza remained in Houston about 1-1/2 months before

returning to Miami. On his next trip he remained in Houston for

2-3 months. He helped count and guard $350,000 to $400,000. On

three occasions Loaiza also transferred drug proceeds at Harold

Cortes's direction in amounts ranging from $150,000 to $400,000 to

a woman named "Bruni" and through Bedoya at One Stop Express.

Hernan Moreno and Manuel De Jesus Parada performed logistical

services for Harold Cortes. They rented stash houses, cars, U-Haul

trailers, telephones, and pagers. At Harold Cortes's direction

they used false information in leases and applications, and changed

residences periodically to minimize detection. Parada let Cortes

and Moreno use his apartment at 2828 Rogerdale for registering car

titles and applying for pager rentals. Moreno used Parada's

-17-
Rogerdale address on a purchase application for a gold Oldsmobile,

which he bought with cash, and that was later discovered to have a

hidden compartment.

Parada also rented a house at 9658 Angie Street in his own

name at Harold Cortes's instruction. Moreno, who paid the rent,

and "Alexis" and "Fernando (a/k/a Potes)" moved into the house to

guard cocaine stored there. Loaiza testified that he also rented

an apartment on Trailing Vine. At Harold Cortes’s instructions

Loaiza listed Parada as a reference on the lease application.

Loaiza explained that it was essential to use Parada as a reference

because Parada had the necessary credit card.

Harold Cortes paid Parada $1,000 per month. Parada’s name

appeared in drug ledgers reflecting "rent" payments for stash

houses, cars, and other expenses of the drug operation. Wonda

Cortes explained that the ledger notations reflected expenses for

their drug enterprise. For example, one entry in a ledger stated

“Manuel carro, phone car, phone house" next to the figure 3.0.

Wonda Cortes explained that the entry referred to a $3,000 payment

to Parada for expenses of the car and the house telephone bill.

Harold Cortes also hired Parada to drive a car from Miami to

Houston. Parada was stopped by a Louisiana state patrolman for a

traffic violation on May 18, 1991. He told the patrolman that he

was transporting the car from Florida to Houston for a friend, whom

he did not identify. The car contained a fresh odor of fiberglass

and paint. After obtaining Parada's consent to search, the officer

found an empty hidden compartment that had been built into the back

-18-
of the rear seat and operated by a sophisticated hidden release

device wired through the air conditioning vent. The car was also

equipped with air shocks, controlled by an air pump panel switch,

to disguise the weight being carried in the vehicle. Parada denied

any knowledge of the hidden compartment. Parada was issued a

traffic citation and released. Loaiza testified that after this

incident Harold Cortes considered the car to be ruined as a drug

smuggling vehicle and gave it to Parada. Registration of this

vehicle was later changed to Parada's name.

On July 18, 1991, DEA agents followed Loaiza in a gray Dodge

rented by Parada from the Angie Street house to an apartment at the

Stonefield Village complex. Loaiza entered the apartment empty-

handed and left carrying a shoulder bag. When Loaiza was stopped

by police officers and searched, he had $73,405 in cash and a

digital pager. Loaiza identified this cash as drug proceeds

received from "Hubert," an associate of Harold Cortes who lived at

the Stonefield Village complex. Loaiza was stopped en route to

delivering the money to Cortes. A digital pager in Loaiza’s

possession reflected a coded message from Parada.

After the July 18, 1991, seizure of drug proceeds Ariel Ochoa

instructed Loaiza to return to Miami, and he did so the next day.

Law enforcement agents continued to follow Moreno and Parada. On

August 6, 1991, agents saw Hernan Moreno and Parada arrive at a

Captain Benny’s restaurant around 6:50 p.m. Moreno made several

calls from a pay telephone at the rear of the restaurant. The

calls appeared to be made to a beeper. The two men then drove from

-19-
the restaurant to an Exxon station next door and made more calls

from a pay telephone there. They then returned to Captain Benny’s

and made more calls from the pay telephone there. Around 7:20 p.m.

Moreno and Parada left the Captain Benny’s restaurant and drove to

the Stonefield Village apartment complex and went inside apartment

#1804. Fifteen minutes later the two men came out of the

apartment, one of them carrying a purple gym bag. Moreno and

Parada then drove to Harold Cortes’s residence at 19803 JoanLeigh.

Moreno carried a half-full brown grocery bag into the residence.

A few minutes later Parada came out of the JoanLeigh residence

carrying a purple gym bag. He got into a different car with two

women and drove to 9658 Angie, where he took the gym bag into the

residence. Fifteen minutes later Parada left the Angie residence

without the gym bag with the two women and drove to a Two Pesos

restaurant. There was no direct evidence of the contents of the

grocery bag or the purple gym bag.

Pen registers from the three telephone lines that Parada had

installed at his Rogerdale residence reflected 238 calls from

Harold Cortes during the period from June 5, 1991, through

January 15, 1992. In a telephone conversation intercepted pursuant

to a Title III wiretap on March 5, 1992, Jaime Cardenas told Parada

that he had "papers" to bring him. Wonda Cortes testified that she

used the term “papers” in telephone conversations to refer to

money. In a statement made to DEA agent Mike Schaefer after his

arrest in August of 1992 Parada stated that Hernan Moreno had

stopped him from walking down the hallway of one of the rented

-20-
houses and told him that “you don’t need to see what’s down there.”

Parada told agent Schaefer that at that point he knew Harold Cortes

and Hernan Moreno were "up to no good."

2. The Wonda Cortes Organization

Wonda Cortes distributed cocaine to her brother, Richard

Winston Hall,6 Mona Smith Watson, Tony Jones, Carmenza Guzman

Varon, Mary Helen Hermann, Anthony Jerome Gage, and Kelvin

Jackquet.

a. Mona Smith Watson and Tony Jones

Tony Jones began as one of Wonda Cortes's customers and

became one of Harold Cortes's largest customers. Through Mona

Smith Watson, Jones' girlfriend and the mother of his child, Harold

Cortes distributed large amounts of cocaine. Watson assisted Jones

by retrieving and delivering cocaine-laden vehicles supplied by

Harold Cortes and returning drug proceeds to Cortes. Tony Jones

was murdered in 1991. At the time of his death Jones owed Harold

Cortes $360,000 for drug purchases. Harold asked Watson for

assistance in collecting drug debts owed by Jones, and Watson gave

Harold Cortes a list of people who owed money to Jones.

6
Some of Wonda’s distributors’ customers also bought cocaine
from Harold. Wonda's brother, Richard Winston Hall, also made
deliveries for Harold Cortes. Hall and Harold Cortes made a number
of cocaine deliveries to Conroe, Texas, in 1989. At Harold's
direction and with his money, Hall purchased a pickup truck in his
name on February 17, 1991. Harold Cortes was stopped while driving
this truck in Louisiana on March 20, 1991. A search of the truck
uncovered a black overnight bag containing $126,053, vehicle
registration documents in Hall's name, and an insurance contract in
Ochoa's name. Wonda Cortes identified this money as drug proceeds.

-21-
 After Tony Jones was murdered Wonda Cortes agreed to continue

supplying Mona Smith Watson with cocaine for the customer base that

Jones had developed during his drug trafficking activities with

Harold Cortes. Watson acted primarily as a broker in these

transactions. She would contact the customers, determine how much

cocaine they wanted, and call Wonda Cortes and put the customer in

contact with her. For her role as a broker Watson was paid from

$500 to $1,000 per kilogram. In a statement made to the FBI at the

time of her arrest, Watson also admitted personally buying and

distributing 3 kilograms of cocaine in addition to her brokering

activities.

b. Mary Helen Hermann

Mary Helen Hermann was a long-time drug dealer who testified

for the government at trial. In 1987 Hermann supplied Wonda Cortes

with cocaine from a supplier named Mario Moreno in Los Angeles.

Wonda Cortes later told Hermann that she would no longer deal with

Moreno because she could get a better price and had easier access

to cocaine through Samuel Posada-Rios. In mid-1988 Hermann moved

from Los Angeles to Wonda Cortes’s residence on Hearthstone in

Houston and began assisting Wonda and accompanying her on

deliveries of cocaine received from the Posada-Rios organization

through Harold Cortes.

Hermann described instances when Wonda Cortes and Mona Smith

Watson distributed cocaine together and counted the proceeds.

Hermann also picked up a load of cocaine for Wonda Cortes at the

Port of Houston. Hermann and her brother went to the port

-22-
pretending to sell electronic equipment. They took a television

set onto a ship and two sailors loaded 24 kilograms of cocaine

inside the television. Hermann and her brother delivered the

television set to Wonda Cortes and were each paid $12,000. In late

1991 or early 1992 Hermann assisted Wonda Cortes and Tatiana Bedoya

in counting $500,000 at Wonda’s house on Corral Street. Cortes and

Bedoya delivered the money to Ochoa later that evening.

c. Anthony Jerome Gage and Kelvin Jackquet

In August of 1991 a large shipment of cocaine arrived in

Houston. In August and September of 1991 Wonda Cortes made four

large cocaine sales. Wonda delivered 14 kilograms to Watson and

Anthony Jerome Gage a/k/a "Bo" at a price of more than $14,000 per

kilogram. This was the first time Wonda Cortes had met Gage.

Wonda Cortes delivered another 20 kilograms to Gage at the

apartment of his brother, Kelvin Jackquet a/k/a “Pop,” at 2425

Holly Hall, apartment #B-25. Gage paid Cortes for part of the

price for the cocaine, and Mona Smith Watson paid Cortes the rest

of the sales price. Wonda Cortes made a third, 25-kilogram sale,

at $14,500 per kilogram, at Jackquet's apartment on Holly Hall.

Present during this sale were Gage, Jackquet, Wonda Cortes, and

Carmenza Guzman Varon. Gage delivered the balance of the payment

for the 25 kilograms to Wonda Cortes at a "stash house" that she

rented on El Mundo Street under the alias "Alexis Caron"; and Wonda

Cortes, Carmenza Guzman Varon, and Wonda’s brother, Richard Winston

Hall, counted about $350,000 in cocaine receipts. In September of

1991 Wonda Cortes made a fourth delivery of 40 kilograms to Gage at

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the apartment of Gage’s sister, Yolanda Gage. Present during the

delivery were Wonda Cortes, Carmenza Varon, and Gage. Gage made a

$300,000 or $400,000 down payment for the cocaine and took the rest

on consignment, with the balance to be paid after Gage sold the

cocaine.

d. Carmenza Guzman Varon

Carmenza Guzman Varon (a/k/a “Menchie”) began working for

Wonda Cortes in May or June of 1991 at a clothing store Cortes

owned. In July of 1991 Varon agreed to supply cocaine to Olivia

Alastre. Alastre would sell the cocaine to her customers, and

Alastre and Varon would split the proceeds equally. On August 15,

1991, Alastre gave Varon $15,000 for 1 kilogram of cocaine at

Varon's apartment at 7222 Bellerive. On October 2, 1991, Wonda

Cortes made a second 1-kilogram delivery to Alastre through Wonda’s

younger brother, Richard Winston Hall. Hall handed the cocaine to

Varon, who handed it to Alastre.

e. November 15-16, 1991, distributions to
Gage, Jackquet, Watson, and Varon

By November of 1991 federal authorities had placed a wiretap

on one of Wonda Cortes's cellular telephones and began recording

conversations detailing her drug trafficking activities. In a

conversation recorded on November 8, 1991, Anthony Jerome Gage told

Wonda Cortes that he had lost $100,000 at the airport and that

someone "got hit 76 times," meaning that the police had confiscated

76 kilograms of cocaine. Wonda Cortes told Gage that his brother,

Kelvin Jackquet, was short $4,640 in his cocaine payments. (This

-24-
shortage was also reflected in Wonda's drug ledger; it was paid on

November 15, 1991.)

A series of conversations were recorded on November 13, 1991.

Wonda Cortes testified about the code phrases the participants used

in the calls to conceal drug quantities and prices. In the first

call Kelvin Jackquet told Wonda Cortes that he was ready to buy

cocaine from someone else. Wonda replied that she was expecting

another delivery of cocaine in a day or so. In a later call that

day with Jackquet and Gage, Wonda Cortes confirmed the load was
coming but could not quote a price. In a conversation between Mona

Smith Watson and Wonda Cortes, Watson told Wonda that she needed to

make some money selling cocaine. Wonda replied that she had 5

kilograms to sell and Watson asked to buy it. Bedoya called Wonda

Cortes to tell her that she had been notified that the expected

load of cocaine had arrived in Houston.

The arrival of the load of cocaine sparked a series of

telephone calls on November 14, 1991. Wonda Cortes notified Gage,

Roy Ford, and Jackquet that she was on her way to pick up the

cocaine. Jackquet wanted 3 kilograms. Wonda quoted Ford a price

of $14,500 per kilogram; and she quoted Watson a price of $14,000.

Tatiana Bedoya delivered 15 kilograms of cocaine to Wonda.

Wonda stored it at a stash house she had rented at 1115 Augusta,

#31, under the alias Alexis Caron. Carmenza Varon was living at

the house to guard the cocaine. From this shipment of cocaine

Wonda delivered 1 kilogram to Ford on November 14, 1991.

Mona Smith Watson wanted 8 kilograms but only had the money

to buy 4. She later called Wonda Cortes to tell her that she had

-25-
the money for 5 kilograms. Wonda delivered 4 kilograms to Watson,

and Wonda made another 1-kilogram delivery to “Andrea” the next day

at Watson's request.

In a coded conversation between Wonda Cortes, Carmenza Varon,

and Janeth Varon, Janeth told Wonda that she had "dresses"

(kilograms of cocaine) she wanted to sell in Wonda's shop. Wonda

replied that "most of the things I take in are "11 and 11-1/2,”

meaning $11,000 to $11,500 per kilogram. Janeth's price was too

high and Wonda did not want to deal with her.

Wonda Cortes and Richard Winston Hall made a cocaine delivery

to Kelvin Jackquet and Anthony Gage on November 15, 1991, at a

house on Calumet. This delivery was referenced in Wonda's ledgers

as 2 kilograms at $14,300 each. Jackquet was short $100. In a

subsequent conversation, Wonda informed Jackquet that he was $200

over, and that she would credit the amount against his outstanding

cocaine balance. Wonda also told Jackquet that she was going to

have additional cocaine to sell him. Wonda delivered her remaining

7 kilograms of cocaine to Jackquet on November 16, 1991. On

November 16, 1991, after receiving payment for the sale of this

cocaine, Wonda Cortes, Carmenza Varon, Richard Hall, and Donald

Wayne Woods counted it in a room at the Holiday Inn Crowne Plaza at

the Houston Galleria. While there Wonda received a phone call from

a Colombian with a Cali accent whose voice she did not recognize.

He warned her that one of her associates was an informant and that

"there was a tail" on her. They quickly gathered the money and

left the hotel. In a conversation with Mona Smith Watson on

-26-
November 18, 1991, Wonda Cortes referred to having "loose ends,"

meaning she had people around her who were making mistakes. Wonda

Cortes wanted to consolidate her cocaine deliveries to Watson into

one daily load.

f. December 10-11, 1991, distributions to Watson, Gage,
Jackquet, Carmenza Varon, and Janeth Varon

On November 26, 1991, Jackquet asked Wonda Cortes if she

could obtain 2 kilograms of cocaine for him. Wonda replied that a

shipment was coming but that she did not yet have any cocaine.

Wonda Cortes received 50 kilograms of cocaine from Tatiana

Bedoya on December 10, 1991. With Wonda Cortes’s acquiescence,

Bedoya agreed to lend Harold Cortes 10 of the 50 kilograms. Wonda

Cortes then began contacting her distributors to sell the rest of

the cocaine. In a 10:37 a.m. telephone conversation with Jackquet

on December 10, 1991, Wonda told him to “sit still” because she was

awaiting delivery of the cocaine. At 2:36 p.m. Wonda told Mona

Smith Watson that "everything is everything," meaning that she had

the cocaine in hand. Wonda Cortes also told Watson that the price

would be around $14,400 per kilogram and she would confirm the

price to Watson over her digital pager. In these conversations

Wonda cautioned both Jackquet and Watson about talking over the

telephone. Kelvin Jackquet and Anthony Gage spoke with Wonda

Cortes three times between 3:02 and 3:39 p.m. Wonda stated that a

"plentiful" cocaine load had arrived, and Gage stated that his

customers were ready. At 4:17 p.m. Wonda told Mona Smith Watson

that she had the cocaine, and Watson replied that she had to get

-27-
the “papers (i.e., money) together.” At 4:21 p.m. Wonda told

Jackquet that she had the cocaine but that she would not deliver

the amount he requested to him on consignment. At 4:31 p.m. Roy

Ford called requesting 1 kilogram. At 4:52 p.m. Mona Smith Watson

called and ordered 3 kilograms.

Later that afternoon, while still negotiating sales to other

customers, Wonda Cortes began delivering the cocaine she had sold

earlier in the afternoon. At 6:11 p.m. Wonda arranged with Watson

to meet Andrea at the Children’s Etc. in the Galleria to deliver 2

kilograms of cocaine. Wonda made the delivery later that evening.

By 8:20 that evening Wonda Cortes told Mona Smith Watson that she

only had 25 kilograms of cocaine left.

Wonda met Roy Ford later that evening at a shopping center

and delivered 1 kilogram of cocaine to him. Ford was driving a

white Lincoln Continental limousine that the agents had seen in

November. A DEA agent observed Wonda Cortes remove a light-colored

bag from her vehicle, place it in the limousine, and leave. The

limousine was followed and stopped by Houston police officers for

a traffic violation, and Ford was arrested. Four clear plastic

bags containing 128 grams of cocaine were recovered from the front

seat transmission hump of Ford’s car.

Wonda Cortes made two deliveries to Kelvin Jackquet on

December 10. The first, a 3-kilogram delivery, was made around

6:15 p.m. to Jackquet's Holly Hall apartment. Jackquet paid Wonda

in cash. Wonda made the second 1-kilogram delivery to Jackquet at

a strip shopping center later that evening. Surveillance agents

-28-
followed Wonda and saw her park beside a white pickup truck

occupied by Jackquet and Gage. Jackquet got out of his truck and

joined Wonda in her vehicle for 2-3 minutes. Wonda handed him a

dark-colored plastic bag from the back seat and Jackquet returned

to his pickup truck.

While making cocaine deliveries during the evening of

December 10, 1991, Wonda Cortes was also negotiating a 5-kilogram

sale to Janeth Varon through her sister, Carmenza Varon. At

5:36 p.m. Carmenza Varon called Wonda. Later that evening Wonda

delivered 5 kilograms of cocaine to the Varon sisters at a

Shipley’s Do-Nut Shop on Veteran’s Memorial Drive. A DEA agent

watched the transaction. The Varon sisters retrieved a gray

plastic bag from Wonda’s Lincoln Continental and put it in the

trunk of the red Chevrolet they were driving. In return the Varon

sisters gave Wonda Cortes a brown paper bag. The Varons were later

stopped by HPD officers and Janeth Varon was arrested. Inside the

gray bag was a telephone box containing 5 kilograms of cocaine.

Carmenza Varon called Wonda Cortes the next day to discuss the

arrest. Wonda was upset over losing the cocaine because she would

have to explain the loss to Ariel Ochoa and was concerned that

Janeth could implicate her as the source of the cocaine. Wonda met

with Ochoa, Harold Cortes, Tatiana Bedoya, and Hernan Moreno the

next day to discuss the seizure. Harold Cortes was concerned that

if Wonda "brought the heat" everybody would go to jail.

Wonda Cortes testified that while making the December 10

deliveries, she drove around Houston carrying both cocaine and

-29-
large amounts of cash. She delivered the drug proceeds to her

house on Corral Street. She continued negotiating cocaine sales on

December 11, 1991. Around 6:30 p.m. she delivered 1 kilogram to

Jackquet and Gage at a location on Yellowstone and Lozier, near a

"Dr. Chuck's” auto shop. Earlier that day she had tried to

convince Donald Wayne Woods to take at least 4 kilograms. After

the Jackquet delivery Wonda delivered 15-17 kilograms of cocaine to

Woods at his residence. She was there 3-4 hours and saw his

customers come and go. Wonda Cortes and Mary Hermann checked into

the Residence Inn on December 12, 1991, to count the drug proceeds.

g. January 1992 distributions

Wonda Cortes received another load of cocaine in January of

1992. Roy Ford called Wonda on January 8, 1992, asking if she

still had the cocaine and requested a kilogram. Richard Winston

Hall assisted Wonda in delivering at least 2 kilograms of cocaine

to Mona Smith Watson in January of 1992. Hall testified that in

January of 1992 he also made a 2-kilogram delivery and a 1-kilogram

delivery to Ford, and a 4-kilogram delivery to Kelvin Jackquet.

Each time he returned the money to Wonda Cortes. Hall also

testified at trial that he delivered cocaine supplied by Wonda

Cortes to Ford in February, March, and April of 1992 and returned

the money to Wonda.

E. Mona Smith Watson’s Cocaine Distributions

Like many of Wonda Cortes’s customers, Mona Smith Watson had

other sources of cocaine and her own network of customers for the

-30-
cocaine she obtained. Watson shopped around for the lowest price

and the best terms. On January 10, 1992, Wonda Cortes quoted

Watson a price of $14,100 per kilogram. Wonda agreed to lower the

price if Watson purchased at least 20 kilograms. In a January 16,

1992, conversation Wonda offered to sell Watson 10 kilograms at a

time at $13,500 per kilogram. This was the same price she was then

quoting to Kelvin Jackquet. (Wonda quoted Richard Winston Hall a

discounted price of $13,200 because he was her brother.)

Mona Smith Watson’s customers included “Paula,” “Stan,” and
Linda Jones, the mother of Watson’s murdered boyfriend, Tony Jones.

The cocaine that Watson purchased from Wonda Cortes in January of

1992 was for Paula. Wonda Cortes, Hall, and Watson delivered a few

kilograms of cocaine to Stan at his residence in Missouri City,

Texas, in December of 1991 or January of 1992. Stan wanted to deal

on a regular basis directly with Wonda, but she refused to do so

because Stan was Watson's customer.

Most of Mona Smith Watson's cocaine was supplied by Wonda

through Carmenza Varon. In the late spring to early summer of 1992

Wonda Cortes and Mary Hermann made six deliveries in amounts

ranging from 10 to 30 kilograms to Watson, who would send Linda

Jones to pick up the cocaine. Linda Jones picked up three of the

loads of cocaine from Carmenza Varon at her apartment on 2205 Hayes

Road. Carmenza Varon later moved to 2801 Walnut Bend and delivered

cocaine to Linda Jones from that location.

In the spring of 1992 Mona Smith Watson was also dealing

directly with Ariel Ochoa, who was suppling Watson with cocaine

through Jaime Cardenas. Cardenas had started out as one of Harold

-31-
Cortes's subordinates but had become one of Ariel Ochoa's major

distributors by January of 1992. Wonda Cortes believed that

Cardenas had been skimming money from her drug payments to Ochoa

and blaming her for the shortages. Mona Smith Watson experienced

a similar problem; in February of 1992 Ariel Ochoa called Watson

complaining that a cash delivery from Watson to Ochoa through

Cardenas was short $5,000.

F. Anthony Gage and Kelvin Jackquet’s Cocaine Distributions

Kelvin Jackquet and Anthony Gage redistributed the cocaine
they purchased from Wonda Cortes and Mona Smith Watson. One of

Jackquet and Gage's drug transporters was Charles White, who ran a

vehicle body shop called "Dr. Chuck's Auto Hospital." White

testified that beginning in December of 1991 he delivered cocaine

for Gage. For his first delivery Jackquet and Gage gave White

cocaine, which he hid in the doors of a rented U-haul truck. White

drove the truck to Atlanta where, as Gage directed, a man picked up

the truck from White. Gage provided White a plane ticket to return

from Atlanta to Houston and paid him $1,500 for transporting the

cocaine.

White made a second trip to Atlanta about a week later,

driving a blue Chevy Malibu. Both Gage and Jackquet were with

White when he picked up the car. When White picked up the car

there was a black bag with cocaine inside. At the direction of

Gage and Jackquet, White hid the cocaine in the car’s spare tire.

White drove the car to Atlanta where he delivered part of the

-32-
cocaine to Gage and part to another man at Gage’s direction and was

paid by Gage.

White made a third and final trip to Atlanta on January 14,

1992. He drove the same blue Chevrolet. White put the cocaine in

a car door and in the spare tire. Gage and Jackquet paid White

$600 before he left Houston. Late that evening sheriff’s deputies

in Atlanta stopped White for not wearing a seat belt. After White

consented to a search of the car the deputies found a .22 caliber

handgun in a soft eyeglass case on the front passenger floorboard.

They also found five packages of cocaine and four packages of

marijuana in the car’s spare tire. During a later interview White

told the deputies that more cocaine was concealed in the right door

panels, and three additional packages of cocaine were found there.

G. Raul Gamboa and Carlos Mena

Mary Hermann testified that she first met Carlos Antonio Mena

a/k/a Gaspar Prado in early 1987 in Houston. At the time Hermann

was transporting cocaine for Jose Mosquera. In Mosquera’s apart-

ment Hermann saw a drug ledger that belonged to Mena. The ledger

contained figures representing distributions of kilogram quantities

of cocaine. Mena took the ledger away from Hermann and told her

not to look in it. In September of 1989 Mena was convicted in

state court of Panola County, Texas, of aggravated possession of

cocaine after law enforcement officers found 11 pounds of cocaine

in a car he was driving.

In October of 1991 Wonda Cortes began using Tatiana Bedoya

as a direct source of supply for cocaine instead of buying the

-33-
cocaine through her estranged husband, Harold Cortes. Bedoya

agreed to supply the cocaine in return for Wonda splitting the

profits 50/50. In early November of 1991 Bedoya attempted to find

a source of cocaine apart from the Samuel Posada-Rios organization.

On November 7, 1991, she flew to Los Angeles to meet with Carlos

Mena, whom she had known since 1988. Carlos Mena arranged for

Wonda to meet with "El Negro"7 to discuss the possibility of

obtaining cocaine from a source not associated with Harold Cortes.

Although Wonda and Mena continued to discuss a possible purchase of

cocaine from Mena for several months, no purchase ever materialized

from the discussions with El Negro or Mena. There was no evidence,

either from Wonda’s trial testimony or the recorded conversations

between Wonda and Mena, that Wonda told Mena about the Posada-Rios

organization or any of her co-conspirators in the organization.

On August 11, 1992, at around 5:45 p.m., United States

Customs Service agents observed Raul Gamboa, Mena, and a woman

arrive at “Giro El Calima,” a money exchange, in a tan Nissan

Maxima. A confidential source had told the agents that money

laundering was occurring at the giro house. The woman remained in

the car while Gamboa and Mena "scanned" the cars in the parking

lot. The men then walked empty handed into the giro house,

remained inside for 10-15 minutes, and came out carrying a red and

black gym bag that appeared to be quite heavy. Gamboa and Mena

7
Wonda Cortes testified that the nickname "El Negro" was
common for Colombian drug dealers. This “El Negro” was not
associated with the Samuel Posada-Rios enterprise.

-34-
again scanned the parking lot before they got back in their car.

Gamboa put the bag in the trunk of the car.

Agents followed the Nissan and noticed Mena making cellular

telephone calls. The Nissan proceeded to the Collingsford

Apartments, where it drove through a coded gate to the back of the

apartment complex and then exited through another gate. The Nissan

then circled around the complex and proceeded to the Rustic Village

Apartments. Customs Agent Peter Lattanci, who participated in the

surveillance of the Nissan, testified that these maneuvers were
typical of a “heat run” -- a tactic commonly used by drug traffick-

ers to detect surveillance. At the Rustic Village Apartments Mena,

Raul Gamboa, and the woman who was with them went into apartment

#181. A few minutes later a blue Mercury Sable, driven by

Esmeralda Hooker, arrived and Hooker went into apartment #181.

Mena, Gamboa, and Hooker left the apartment together and

proceeded in the blue Sable to the Collingsford Apartments, where

they parked the car. Dressed in raid jackets, agents approached

Gamboa and Mena as they got out of the car. A Spanish-speaking

officer informed Gamboa that the agents were investigating drug and

money laundering activities at Giro El Calima. Gamboa consented to

a search of the car and signed a Spanish language “Voluntary

Consent to Search and Seize” form. Agents recovered a plastic bag

that contained $34,000 in cash from the right rear passenger area

of the car where Mena had been sitting.

When asked in Spanish about going to the Rustic Village

Apartments, Gamboa stated he had driven Hooker there to visit her

friends; and Mena stated that he had just been picked up by Gamboa

-35-
and Hooker from a bus stop near the apartments. Both Gamboa and

Mena denied being at the Giro El Calima or knowing anything about

the Nissan Maxima. Gamboa and Mena were not arrested but agreed to

follow the agents back to the Rustic Village Apartments. There,

the Nissan Maxima was pointed out to both Mena and Gamboa, and they

again denied any knowledge of the vehicle -- which was registered

to Mena -- or of apartment #181. The agents called a drug

detection dog to the scene, and it alerted them to the trunk of the

Nissan. After Gamboa consented to a search of the car agents
seized from the trunk the red and black gym bag, which contained 9

packages of cocaine wrapped in plastic tape, and $4,000 in cash in

the glove compartment, and arrested Mena and Gamboa. An hour or

two later Mena admitted that he had owned the Nissan, but stated

that he had sold it, but could not recall to whom.

H. The Demise of La Compania

DEA agents searched Harold Cortes's residence on Sir William

Street on July 10, 1992. They seized drug ledgers, cellular

telephones, anti-surveillance equipment, a sophisticated scanner,

photographs, and various documents.

Wonda Cortes was arrested on July 21, 1992. On July 23,

1992, agents executed a search at her residence at the Legend Point

Apartments. They seized several cellular telephones, a pink drug

ledger, a blue drug ledger, and numerous other documents and

notebooks. Analysis of Wonda Cortes’s drug ledgers documented the

receipt of $3,952,402 in drug proceeds for cocaine sold to

customers in 1991 and 1992. Cortes testified that she "doctored"

-36-
this ledger to reflect lesser amounts to cheat Bedoya out of

profits.

On August 13, 1992, fifteen raid teams participated in the

simultaneous execution of arrest warrants for Elisa Murga, Ford,

Manuel Parada, Hall, Donald Wayne Woods, Kelvin Jackquet, and Mona

Smith Watson and execution of search warrants for various premises.

Watson was arrested at her mother's residence. A search of

Watson’s apartment on Greenbriar uncovered photographs, notebooks,

and drug ledgers. Carmenza Varon's residence on Walnut Bend was

searched and agents seized drug ledgers, a money counting machine,

an address book, and other documents noting prices for varying

amounts of cocaine.

When agents arrived at 10538 Farmington in Houston to execute

a search warrant and a warrant to arrest Kelvin Jackquet, they saw

a silver Nissan drive away. The agents stopped the vehicle and

spoke with the driver, Marla Jackquet, Kelvin Jackquet’s sister.

Marla told the agents that Kelvin Jackquet was in the downstairs

bedroom, and Marla gave agents keys to the burglar bars that

protected the house. Agents unlocked the burglar bars and

announced their presence loudly several times. When the agents

entered the house they again announced their presence. As agent

Renaldo Ollie approached the downstairs bedroom, he told Kelvin

Jackquet to come out and that agents had a warrant for his arrest.

As agent Ollie reached inside the room to turn on the lights, he

heard what appeared to be the sound of someone chambering a round

in a shotgun. Agent Ollie yelled out “shotgun” loudly to warn

-37-
other agents. Agent Ollie then backed out into the hallway. As he

did so he saw someone run down the hallway carrying a shotgun into

the utility room that led to the garage. Agent Ollie then heard

the garage door opening and heard several shots. DPS agent Larry

Allen was securing the perimeter approximately 8 feet from the

garage door. Allen was wearing a raid jacket labeled “DPS” and

“Police” in large letters. As Jackquet came out of the garage he

shot Allen in the chest. Although Allen was wounded in the hand

and arm, his body armor prevented more serious injury. Agent Allen

returned fire and one bullet grazed Jackquet’s left shoulder blade.

Agent Ollie then ran outside and saw Jackquet standing with the

shotgun. Ollie told Jackquet to drop the shotgun. Jackquet

dropped the gun and ran, but other agents quickly arrested him.

Approximately $32,000 in cash and an address book were seized from

a nightstand next to Jackquet’s bed and two pistols were seized

from beneath his mattress.

II. VERDICTS AND SENTENCES

Esnoraldo De Jesus Posada-Rios was convicted of count 1

(conspiracy to participate in a racketeering enterprise in

violation of 18 U.S.C. § 1962(d)), count 2 (participation in a

racketeering enterprise in violation of 18 U.S.C. § 1962(c)), and

count 3 (conspiracy to possess with intent to distribute cocaine in

violation of 21 U.S.C. §§ 841(b)(1)(A) and 846). Posada-Rios was

sentenced to concurrent terms of life in prison, followed by 10

years of supervised release, and was ordered to pay $150 in special

assessments.

-38-
 Carlos Antonio Mena was convicted of counts 1 and 3 and of

counts 42 and 43 (conspiracy to possess with intent to distribute

cocaine and possession with intent to distribute it in violation of

21 U.S.C. §§ 841(a) and 846). He pled guilty to count 46

(unlawfully reentering the United States after deportation and

commission of an aggravated felony in violation of 8 U.S.C.

§ 1326(a)). Mena was sentenced to concurrent terms of 240 months

in prison on counts 1, 3, 42, and 43 and a 180-month concurrent

prison term on count 46, followed by 10 years of supervised

release, and was ordered to pay $250 in special assessments.

Elisa Grajales Murga was convicted of counts 1 and 3 but was

acquitted of count 2. She was also convicted of count 41

(possession with intent to distribute cocaine in violation of 21

U.S.C. § 841(a)) and count 48 (making a false statement on an

application for immigrant visa in violation of 18 U.S.C.

§ 1546(a)). Counts 37-40 (possession with intent to distribute

cocaine) and count 53 (possessing a firearm as an illegal alien in

violation of 18 U.S.C. § 922(g)(5)) were dismissed on the

government’s motion. Murga was sentenced to concurrent terms of

292 months in prison on counts 1, 3, and 41 and 60 months in prison

on count 48, followed by 5 years of supervised release, and was

ordered to pay $200 in special assessments.

Carmenza Guzman Varon was convicted of counts 1, 2, and 3.

She was also convicted of counts 11, 12, 13, 22, 23, and 24

(possession with intent to distribute cocaine in violation of 21

U.S.C. § 841(a)), but was acquitted of counts 6, 21, and 25, which

-39-
also charged her with violating § 841(a)(1). Varon was sentenced

to concurrent terms of 292 months in prison, followed by 5 years of

supervised release, and was ordered to pay $450 in special

assessments.

Raul Gamboa was convicted of counts 42 and 43 (conspiracy to

possess with intent to distribute cocaine in violation of 21 U.S.C.

§ 841(a)(1)). He was sentenced to concurrent 121-month prison

terms, followed by 5 years of supervised release, and was ordered

to pay $100 in special assessments.

Luis Gerardo Rios-Castano was convicted of counts 1 and 2,

and pled guilty to count 45 (unlawfully reentering the United

States after deportation and commission of an aggravated felony in

violation of 8 U.S.C. § 1326(a)). He was sentenced to life in

prison on counts 1 and 2 and a concurrent 180-month prison term on

count 45, followed by 5 years of supervised release, and was

ordered to pay $150 in special assessments.

Manuel De Jesus Parada was convicted of counts 1 and 3. He

was sentenced to concurrent terms of 151 months in prison, followed

by 5 years of supervised release, and was ordered to pay $100 in

special assessments.

Anthony Jerome Gage was convicted of counts 1, 2, and 3. He

was also convicted of count 5 (conspiracy to possess with intent to

distribute cocaine), but was acquitted of counts 6 and 21, which

charged him with the same offense. Gage was sentenced to

concurrent terms of 300 months in prison, followed by 5 years of

-40-
supervised release, and was ordered to pay $200 in special

assessments.

Kelvin Jackquet was convicted of counts 1, 2, and 3 and of

count 52 (use of a firearm during and in relation to a drug

trafficking crime in violation of 18 U.S.C. § 924(c)(1)). He pled

guilty to count 27 (possession with intent to distribute cocaine).

Jackquet was acquitted of count 6 (possession with intent to

distribute cocaine). The court granted his motion for a mistrial

on count 26 (possession with intent to distribute cocaine).

Jackquet was sentenced to concurrent terms of 235 months in prison

on counts 1, 2, 3, and 27 and a consecutive 60-month prison term on

count 52, followed by 5 years of supervised release, and was

ordered to pay $250 in special assessments.

Mona Smith Watson was convicted of counts 1, 2, and 3 and of

counts 5, 7, 8, 10, 11, 12, and 13 (possession with intent to

distribute cocaine in violation of 21 U.S.C. § 841(a)(1)). She was

acquitted of count 6. Watson was originally sentenced to concur-

rent terms of 360 months in prison, followed by 5 years of

supervised release, and was ordered to pay $500 in special

assessments. On September 23, 1996, an Amended Judgment was

entered reducing her term of imprisonment to 292 months pursuant to

18 U.S.C. § 3582(c)(2) because of a retroactive amendment to the

Sentencing Guidelines that lowered Watson’s guideline range.

III. DISCUSSION

A. Sufficiency of the Evidence Challenges

-41-
 Mena, Murga, Varon, Gamboa, Parada, Gage, and Jackquet

contend that the evidence was insufficient to sustain some or all

of their convictions.8 In reviewing the sufficiency of the

evidence we view the evidence and all inferences to be drawn from

it in the light most favorable to the verdict to determine if a

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. See United States v. Sneed,

63 F.3d 381, 385 (5th Cir. 1995).9

1. RICO, 18 U.S.C. § 1962(c)
The substantive RICO statute charged in the indictment, 18

U.S.C. § 1962(c), prohibits “any person employed by or associated

with any enterprise engaged in, or the activities of which affect,

interstate or foreign commerce, to conduct or participate, directly

or indirectly, in the conduct of such enterprise’s affairs through

a pattern of racketeering activity or collection of unlawful debt.”

To establish a violation of § 1962(c) the government must prove

(1) the existence of an enterprise that affects interstate or

foreign commerce, (2) that the defendant was “employed by” or

“associated with” the enterprise, (3) that the defendant partici-

8
Although defendants attempt to adopt the claims raised by
each other as provided by Fed. R. App. P. 28(I), this court does
not allow an appellant to adopt fact-specific challenges, such as
sufficiency of the evidence, to support a conviction or sentence.
See United States v. Moser, 123 F.3d 813, 819 n.3 (5th Cir.), cert.
denied, --- U.S. ---, 118 S. Ct. 642 (1997); United States v. Alix,
86 F.3d 429, 434 n.2 (5th Cir. 1996).
9
Because none of the parties have raised the issue and because
the government contends in its brief that this is the appropriate
standard of review, the court assumes that each of the defendants
made all appropriate motions to preserve this issue for review.

-42-
pated in the conduct of the enterprise’s affairs, and (4) that the

participation was through “a pattern of racketeering activity.”

United States v. Erwin, 793 F.2d 656, 670 (5th Cir. 1986).

Gage argues that the government failed to establish that he

participated in the conduct of the affairs of the enterprise as

required by Reves v. Ernst & Young, 507 U.S. 170, 113 S. Ct. 1163

(1993). In Reves the Court held that to be convicted of a

substantive RICO offense under § 1962(c), “one must participate in

the operation or management of the enterprise itself.” Reves, 507

U.S. at 185, 113 S. Ct. at 1173. The Court concluded that in

enacting § 1962(c) Congress intended “participate” to have the

“common understanding of the word . . . ‘to take part in.’” Id. at

179, 113 S. Ct. at 1170. The Court specifically rejected the D.C.

Circuit’s suggestion that § 1962(c) requires significant control

over or within an enterprise. Id. at 179 n.4, 113 S. Ct. at 1170

n.4. The Court held that “the word ‘participate’ makes clear that

RICO liability is not limited to those with primary responsibility

for the enterprise’s affairs, just as the phrase ‘directly or

indirectly’ makes clear that RICO liability is not limited to those

with a formal position in the enterprise. . . .” Id. at 179, 113

S. Ct. at 1170. The Court explained that “[a]n enterprise is

‘operated’ not just by upper management but also by lower rung

participants in the enterprise who are under the direction of upper

management.” Id. at 184, 113 S. Ct. at 1173. Because the Court

found that the petitioner, an outside accounting firm engaging in

the valuation of a farming cooperative, was clearly not involved in

-43-
the management of the enterprise or acting under direction of the

cooperative’s management, the Court declined to “decide how far

§ 1962(c) extends down the ladder of operation.” Id. at 184 n.9,

113 S. Ct. at 1173 n.9.

Gage argues that he was merely “an independent purchaser who

was buying from whomever . . . [and that] he had no power to direct

the affairs of the enterprise.” (Gage’s brief at page 20) He

argues that the evidence is insufficient to support his conviction

under § 1962(c) because Reves requires evidence that he exhibited

“decision-making” power, such as the power to “set prices or

schedule delivery dates and times.” Id. Although such evidence

would certainly be relevant to show that a defendant participated

in the operation of an enterprise, Reves does not require it.

Reves only requires that a defendant “take part in” the operation

of the enterprise, not that he direct its affairs. Moreover,

unlike Reves, which involved a defendant with a “horizontal”

connection to the enterprise, this case presents the “vertical”

question of how far RICO liability may extend “down the

organizational ladder.” See United States v. Oreto, 37 F.3d 739,

750 (1st Cir. 1994).

In a multiple-level, international drug enterprise such as

the Samuel Posada-Rios organization, the success of the enterprise

depends upon many people who participate in the affairs of the

enterprise at different levels, from the boss in Colombia through

multiple levels of distributors to the retail dealers who sell to

the ultimate users. Gage was a mid-level distributor; he bought

-44-
multiple-kilogram loads of cocaine from Cortes and paid large sums

of money to the enterprise. Although he did not operate the

enterprise as a whole, he participated in its operation at his

level by deciding how much cocaine to buy and what prices and terms

to charge to the lower-level distributors to whom he redistributed

the cocaine.

In United States v. Cauble, 706 F.2d 1322 (5th Cir. 1983),

we held that a defendant does not “conduct” or “participate in the

conduct of an enterprise’s affairs” unless (1) the defendant has in

fact committed the racketeering acts as alleged, (2) the defend-

ant’s position in the enterprise facilitated his commission of the

racketeering acts, and (3) the predicate acts had some effect on

the enterprise. Id. at 1332-33. The government’s evidence against

Gage established each of these elements.

The enterprise was the Samuel Posada-Rios organization, a

group of people who distributed and redistributed large amounts of

cocaine over an extended period of time for profit. There was

evidence at trial to support the jury’s verdict that Gage committed

racketeering acts Nos. 131A (count 3) and 145 (count 5) by conspir-

ing to possess cocaine with intent to distribute it and by

possessing with intent to distribute 14 kilograms of cocaine in

August of 1991. It was also reasonable for the jury to conclude

that Gage’s position in the Posada-Rios organization facilitated

the commission of his racketeering acts because the Posada-Rios

organization made large supplies of cocaine from the enterprise

-45-
available to Gage on a regular basis. Likewise, the jury could

have reasonably concluded that Gage’s racketeering acts affected

the enterprise because his willingness to purchase multiple-

kilogram amounts of cocaine on a regular basis for hundreds of

thousands of dollars enhanced the continued economic viability of

the enterprise. See Cauble, 706 F.2d at 1341. Without attempting

to define the limits of vertical RICO liability after Reves, we are

persuaded that the evidence against Gage was sufficient to support

his § 1962(c) conviction under both Reves and Cauble.

2. RICO Conspiracy, 18 U.S.C. § 1962(d)

Title 18 § 1962(d) makes it unlawful “for any person to

conspire to violate any of the provisions of subsection (a), (b),

or (c) of this section.” Mena, Murga, Varon, Parada, and Gage

argue that the direction and control requirements of Reves also

apply to a RICO conspiracy charge. This is an issue of first

impression in this circuit. To date five circuit courts have

addressed whether the management and control test set forth in

Reves applies to a RICO conspiracy. The Second, Seventh, and

Eleventh Circuits have held that Reves’ management and control test

does not apply to a RICO conspiracy, concluding that “Reves

addressed only the extent of conduct or participation necessary to

violate a substantive provision of the statute; the holding in that

case did not address the principles of conspiracy law undergirding

§ 1962(d).” United States v. Quintanilla, 2 F.3d 1469, 1484-85

(7th Cir. 1993); accord United States v. Starrett, 55 F.3d 1525,

-46-
1547 (11th Cir. 1995), cert. denied, 517 U.S. 111, 116 S. Ct. 1335

(1996); Napoli v. United States, 45 F.3d 680, 683-84 (2d Cir.

1995). The Third and Ninth Circuits, however, have held that

Reves’ management and control test must necessarily apply to a RICO

conspiracy because to hold otherwise would render Reves nugatory.

See Neibel v. Trans World Assurance Co., 108 F.3d 1123, 1128 (9th

Cir. 1997); United States v. Antar, 53 F.3d 568, 581 (3d Cir.

1995).10

We conclude that the better-reasoned rule is the one adopted
by the Second, Seventh, and Eleventh Circuits, especially in light

of the Supreme Court’s recent decision in Salinas v. United States,

522 U.S. 52, 118 S. Ct. 469 (1997), which affirmed this court’s

decision in United States v. Marmolejo, 89 F.3d 1185 (5th Cir.

1996). In Salinas the petitioner argued that to convict a defend-

ant of conspiring to violate RICO the government must prove that

the defendant personally agreed to commit two predicate acts. The

Court disagreed, holding instead that § 1962(d) is governed by

traditional conspiracy law. The Court held that “[a] conspiracy

may exist even if a conspirator does not agree to commit or facili-

tate each and every part of the substantive offense.” Salinas, 118

S. Ct. at 477.

To prove a RICO conspiracy the government must establish

(1) that two or more people agreed to commit a substantive RICO

10
The D.C. Circuit has recognized the split but declined to
resolve the issue because it concluded that the defendant would
have been convicted regardless of the approach adopted by the
court. See United States v. Thomas, 114 F.3d 228, 242-43 (D.C.
Cir.), cert. denied, --- U.S. ---, 118 S. Ct. 635 (1997).

-47-
offense and (2) that the defendant knew of and agreed to the

overall objective of the RICO offense. See Marmolejo, 89 F.3d at

1196-97. The government is not required to prove a conspiracy

through direct evidence. Because conspirators normally attempt to

conceal their conduct, the elements of a conspiracy offense may be

established solely by circumstantial evidence. See United States

v. Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir. 1988). “The

agreement, a defendant’s guilty knowledge and a defendant’s

participation in the conspiracy all may be inferred from the
‘development and collocation of circumstances.’” United States v.

Maltos, 985 F.2d 743, 746 (5th Cir. 1992) (quoting United States v.

Lentz, 823 F.2d 867, 868 (5th Cir. 1987)). Although a defendant’s

mere presence at the scene of a crime is not, by itself, sufficient

to support a finding that the defendant is participating in a

conspiracy, presence and association may be considered by the jury

along with other evidence in finding that the defendant

participated in a conspiracy. See United States v. Chavez, 947

F.2d 742, 745 (5th Cir. 1991).

Moreover, a defendant may be convicted of a conspiracy if the

evidence shows that he only participated at one level of the

conspiracy charged in the indictment, and only played a minor role

in the conspiracy. See United States v. Prieto-Tejas, 779 F.2d

1098, 1103 (5th Cir. 1986). The government does not have to prove

that the defendant knew all of the details of the unlawful

enterprise or the number or identities of all of the co-

conspirators, as long as there is evidence from which the jury

could reasonably infer that the defendant knowingly participated in

-48-
some manner in the overall objective of the conspiracy. See United

States v. Fernandez-Roque, 703 F.2d 808, 814-815 (5th Cir. 1983).

A defendant may not, however, be convicted of a drug conspiracy

merely by evidence that he associated with other drug conspirators

or by evidence that places the defendant in “a climate of activity

that reeks of something foul.” Maltos, 985 F.2d at 746 (quoting

United States v. Galvan, 693 F.2d 417, 419 (5th Cir. 1982)).

a. Mena

The government attempts to link Mena with the Samuel Posada-
Rios drug conspiracy through Wonda Cortes’s testimony that she flew

to Los Angeles in November of 1991 and negotiated with Mena for

several months to obtain cocaine from a source of supply other than

the Posada-Rios enterprise. It is undisputed, however, that noth-

ing ever materialized from these negotiations. According to the

government, by negotiating with Wonda Cortes, Mena should have

acquired at least a rough idea of the larger scheme. Although the

government correctly points out that parallel or multiple sources

of drugs do not destroy the existence of a single conspiracy, see

United States v. Johnson, 54 F.3d 1150, 1154 (4th Cir. 1995), the

government must nevertheless establish that Mena was involved in

the conspiracy charged in the indictment. The government also

argues that since Mena had a longstanding association with both the

drug trade and with various members of the Posada-Rios enterprise,

the jury was entitled to infer that he knew that the prospective

act of supplying cocaine to Wonda Cortes would entail numerous

violations of the law. That is no doubt true and supports, in

-49-
part, Mena’s conviction on count 3. But even accepting every

reasonable inference, there is no evidence that Mena knew of and

agreed to participate in the Posada-Rios RICO conspiracy charged in

count 1. Although we agree that a conspirator need not know each

of his co-conspirators, or the details of the conspiracy, the

government’s theory in this case stretches too far the outer bounds

of RICO conspiracy law. We conclude that the evidence was not

sufficient to support Mena’s conviction on count 1.11

Although we vacate Mena’s conviction and sentence on count
1, we do not remand for resentencing. In calculating Mena’s

offense level, counts 1, 3, 42, and 43 were grouped together.

Because count 3 had the highest level, it became the offense level

for all four counts. Mena’s total offense level on these four

counts was 36. With a criminal history category of II, his

guideline range was 210-262 months. Because of a prior Texas

felony drug conviction, however, Mena was subject to the statutory

minimum sentence of 240 months under 21 U.S.C. § 841(b)(1) for

11
When questioned at oral argument about the weak evidentiary
support for Mena’s RICO conspiracy conviction, the government
argued that the conviction was sustainable under the court’s
analysis in United States v. Elliott, 571 F.2d 880 (5th Cir. 1978).
Having carefully considered Elliott we are not persuaded that it
can shoulder the load the government assigns it. Although Elliott
recognized the well-established rules that “under the RICO
conspiracy provision, remote associates of an enterprise may be
convicted as conspirators on the basis of purely circumstantial
evidence” and that the “government is not required to prove that a
conspirator had full knowledge of all the details of the
conspiracy,” the court also acknowledged the equally well-
established principle that the defendant must nevertheless have
“knowledge of the essential nature of the plan.” Id. at 903
(citations omitted). In this case Mena’s unsuccessful negotiations
with Wonda Cortes are inadequate to show that Mena was aware of the
Samuel Posada-Rios drug distribution enterprise.

-50-
counts 1, 3, 42, and 43, which was the sentence he received. (See

Part III.G.2., infra.) Where, as here, Mena’s sentence on counts

3, 42, and 43 was no harsher than it would have been with his

conviction for count 1 there is no need to remand for resentencing.

See United States v. Narviz-Guerra, 148 F.3d 530, 534 (5th Cir.

1998); United States v. Michel, 588 F.2d 986, 1001 (5th Cir. 1979).

b. Murga

Relying on her acquittal on count 2, the substantive RICO

charge, Murga first argues that there was insufficient evidence to

support her RICO conspiracy conviction because a RICO conspiracy

requires proof that she committed two overt acts in furtherance of

the conspiracy. As we explained above this argument was rejected

by this court in Marmolejo and by the Supreme Court in Salinas.

Murga next argues that there was no direct evidence linking

her to any of the drugs or money involved in the conspiracy. We

are not persuaded by this argument because as detailed in Part

I.C., supra, of this opinion, the government presented ample

evidence that in 1988 and again in 1991 Murga assisted her ex-

husband, Ariel Ochoa, in distributing multiple-kilogram loads of

cocaine for the Samuel Posada-Rios organization. Because the

evidence was sufficient to establish that Murga knew of and agreed

to the overall objective of the RICO conspiracy, the evidence was

sufficient to sustain her RICO conspiracy conviction.

c. Varon

-51-
 Varon argues that she was merely “assisting Cortes in

selling, delivering and protecting the drugs” and that “[s]he did

not set prices or schedule the delivery dates and times.” (Varon’s

brief at page 15) The record, however, does not corroborate such

a limited role for Varon. There was evidence that Varon persuaded

Wonda Cortes to sell cocaine to her sister, Janeth Varon, and to

Olivia Alastre, with Carmenza Varon and Alastre agreeing to split

the proceeds for the sale of the cocaine. Varon also guarded Wonda

Cortes’s cocaine, accompanied Cortes on cocaine deliveries, and

assisted Cortes in counting the proceeds of the cocaine sales on

November 15 and 16, 1991. The evidence was sufficient for the jury

to conclude that Varon knew of and agreed to the overall objective

of the RICO conspiracy.

d. Parada

Parada argues that he was hired by Harold Cortes merely to

run errands. Although he acknowledges that he performed services

for Harold Cortes and that he was paid with drug proceeds by Harold

Cortes, he argues that he was shielded from any knowledge that

Harold Cortes and Hernan Moreno were engaging in drug trafficking.

He argues that the services he performed were capable of innocent

explanation, i.e., he leased the apartments where Moreno lived

because he had good credit and spoke better English, and he did not

know that the car he transported was altered for smuggling.

Our review of the evidence discussed in Part I.D.1, supra,

does not support such a benign role for Parada. Parada’s claim of

ignorance is inconsistent with his post-arrest statement in which

-52-
he acknowledged that he knew that his cohorts were “up to no good.”

Likewise, Parada’s claim of ignorance overlooks the fact that he

continued his association with Harold Cortes and Moreno even after

he was stopped by the Louisiana Highway Patrol in May of 1991 and

after the July 1991 seizure of money from Victor Loaiza. Moreover,

evidence that Parada rented apartments under false names and

allowed members of the enterprise to use his address to register

pagers is probative of his knowledge of the conspiracy and intent

to act in furtherance of it. See United States v. Quiroz-

Hernandez, 48 F.3d 858, 868 (5th Cir. 1995). Although many of the

facts of Parada’s involvement with the conspiracy, when viewed in

isolation, may be explainable, when viewed together in light of the

other evidence, the jury could have reasonably concluded that

Parada knew of and agreed to the overall objective of the

conspiracy.

e. Gage

The evidence established that between August and December of

1991 Gage purchased large amounts of cocaine from Wonda Cortes for

redistribution. Although Gage is correct that a buyer-seller

relationship, by itself, is insufficient to show conspiratorial

activity, the government also presented evidence that Gage

purchased some of the cocaine on consignment, which is “strong

evidence” of membership in a conspiracy because it indicates a

strong level of trust and an ongoing, mutually dependent

relationship. See United States v. Rodriguez, 53 F.3d 1439, 1445

-53-
(7th Cir. 1995). A rational jury could have concluded that Gage

knew of and agreed to the overall objective of the conspiracy.

3. The Controlled Substances Violations

To prove a drug conspiracy in violation of 21 U.S.C. §§ 841

and 846 the government must establish: “(1) the existence of an

agreement between two or more persons [to violate the narcotics

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

defendant’s voluntary participation in the conspiracy.” United

States v. Thomas, 120 F.3d 564, 569 (5th Cir. 1997), cert. denied,
--- U.S. ---, 118 S. Ct. 721 (1998) (quoting United States v.

Brown, 29 F.3d 953, 958 (5th Cir. 1994)).

To convict a defendant of possession of an illegal drug with

intent to distribute in violation of 21 U.S.C. § 841(a), the

government must establish that the defendant (1) knowingly

(2) possessed a controlled substance (3) with intent to distribute

it. See id.

To convict a defendant of aiding and abetting the possession

of a controlled substance with intent to distribute it the

government must establish that the defendant (1) associated with

the criminal venture, (2) participated in the venture, and (3)

sought by action to make the venture succeed. See United States v.

Lombardi, 138 F.3d 559, 561 (5th Cir. 1998). In addition, the

defendant must share the intent to commit the crime and must play

an active role in its commission. Id.

a. Mena

-54-
 Although we have concluded that the evidence was not

sufficient to support Mena’s RICO conspiracy conviction under count

1, we are satisfied that Mena’s conviction for conspiracy to

possess cocaine with intent to distribute as charged in count 3 of

the indictment is supported by the evidence discussed in Part I.G.,

supra.12

b. Murga

In her brief Murga offers no real analysis of the evidence

of guilt on these counts and concedes that this is her weakest
argument. Our review of the evidence against Murga summarized in

Part I.C., supra, satisfies us that the jury had sufficient

evidence to convict her of counts 3 and 41.

c. Gamboa

Gamboa was not charged in counts 1-3 of the indictment; he

was charged and convicted of count 42 for a separate conspiracy

with Mena to distribute cocaine and of count 43 for aiding and

abetting the underlying substantive offense. Gamboa argues that,

at best, the evidence only established that he associated with

people engaged in a conspiracy and that he was in “a climate of

activity that reeks of something foul,” see Maltos, 985 F.2d at

746, and he attempts to compare the facts of his case to those of

other cases in which the defendants’ convictions were reversed on

appeal for insufficient evidence. Drug cases are fact specific.

12
Mena does not challenge his conviction on counts 42 and 43,
which charged him with a narrower drug conspiracy and with cocaine
possession relating to his August 1992 drug deal with Raul Gamboa.

-55-
Gamboa’s testimony denying that he was present at the Giro El

Calima and denying any knowledge of the Nissan Maxima, coupled with

the other evidence against him summarized in Part I.G., supra, was

sufficient to sustain his convictions on counts 42 and 43. See

Thomas, 120 F.3d at 570 (false statements by a defendant are

evidence of guilty knowledge).

d. Parada

Our discussion above of the evidence that supports Parada’s

conviction for conspiring to violate RICO satisfies us that the

evidence was also sufficient to sustain his conviction on count 3

for conspiracy to possess cocaine with intent to distribute it in

violation of 21 U.S.C. §§ 841(a) and 846.

e. Gage

Gage argues that because the jury acquitted him on counts 6

and 21, which were based primarily on the testimony of Wonda

Cortes, the jury’s guilty verdicts on counts 3 and 5 were

inconsistent and based on confusion. We reject this argument
because inconsistent verdicts do not impact the court’s sufficiency

of the evidence analysis. See United States v. Parks, 68 F.3d 860,

865 (5th Cir. 1995), cert. denied, 516 U.S. 1098, 116 S. Ct. 825

(1996). It was within the jury’s discretion to disregard Cortes’s

testimony in some respects and accept it in other respects. Gage

also argues that there was no corroborating surveillance of his

meetings with Wonda Cortes. It is well settled, however, that a

-56-
conviction may rest solely upon the uncorroborated testimony of an

accomplice, even one who has chosen to cooperate with the

government in exchange for leniency, as long as the testimony is

not insubstantial on its face. See United States v. Rasco, 123

F.3d 222, 228 (5th Cir. 1997), cert. denied, --- U.S. ---, 118

S. Ct. 868 (1998). 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. See United States v. Bermea, 30 F.3d 1539, 1552 (5th

Cir. 1994). Wonda Cortes’s testimony is not susceptible to either

vice. We have considered Gage’s other factual sufficiency

arguments and are not persuaded by them. There was ample evidence

that Gage conspired with other defendants to possess cocaine with

the intent to distribute it, as charged in count 3, and that he

possessed 14 kilograms of cocaine in August of 1991 with the intent

to distribute it, as charged in count 5.

4. Jackquet’s conviction for use of a firearm “during and in
relation to” a drug trafficking offense in violation of
18 U.S.C. § 924(c)

Count 52 of the superseding indictment charged Jackquet with

using and carrying a 12-gauge shotgun on August 13, 1992, “during

and in relation to the drug trafficking crime charged in Count

Three . . .” The district court instructed the jury on both the

“use” and “carry” prongs of § 924(c). Jackquet argues that the

evidence was not sufficient to show that he “used” a firearm within

the meaning of Bailey v. United States, 516 U.S. 137, 116 S. Ct.

-57-
501 (1995), or that he used a firearm “in relation to” a drug

trafficking offense.

The first argument clearly has no merit. The evidence showed

that Jackquet used the shotgun to shoot DPS officer Larry Allen to

avoid being arrested. As the Supreme Court explained in Bailey

“using” a firearm includes “brandishing, displaying, . . . and most

obviously, firing or attempting to fire, a firearm.” Id. at 148,

116 S. Ct. at 508. Jackquet’s conduct meets Bailey’s definition of

use.
Jackquet’s argument that his use was not “during and in

relation to” a drug trafficking offense is based on the fact that

his arrest on August 13, 1992, occurred six months after the last

specific drug trafficking transaction with Wonda Cortes. In United

States v. Tolliver, 116 F.3d 120, 125 (5th Cir.), cert. denied, ---

U.S. ---, 118 S. Ct. 324 (1997), the court explained that “[t]he

phrase ‘in relation to’ . . . requires only that the firearm have

played a role in the crime for which the defendant is charged; the

firearm cannot have been inadvertently used or carried ‘in relation

to’ an obviously unrelated crime.” In Tolliver defendant Shane

Sterling was convicted under § 924(c) based on evidence that he

reached for a loaded pistol as federal agents entered his bedroom

to arrest him on drug charges. On appeal Sterling argued that he

did not use the pistol “in relation to” the underlying drug

conspiracy because his use of the pistol related only to “the

assault of a federal officer,” not the underlying drug offense.

Id. at 125. This court disagreed, concluding that his use of the

pistol “had the potential to facilitate the drug distribution

-58-
conspiracy for which Sterling is charged.” Id. at 126. The court

concluded that “Sterling’s use of the gun was ‘in relation to’ the

underlying drug conspiracy; such use could have facilitated that

conspiracy by preventing the arrest of two conspirators and

forestalling the seizure of various instrumentalities of the

conspiracy.” Id. In this case we likewise conclude that

Jackquet’s use of the shotgun to avoid arrest on drug charges

provided a sufficient factual basis for the jury to conclude that

he used the gun in relation to the underlying drug conspiracy.

5. Murga’s conviction for making a false statement on a visa
application in violation of 18 U.S.C. § 1546(a)

Murga challenges the sufficiency of the evidence to support

her conviction on count 48 for knowingly making a false statement

on a visa application that she signed on March 9, 1992, at the

American Embassy in Bogota, Colombia. Question 33.B on the

application asked whether “you are an alien who is or has been a

trafficker in any controlled substance.” Murga answered “no” to

the question, and the United States issued her a visa based on the

application. The jury heard evidence, summarized in Part I.C.,

supra, that Murga delivered a 25-kilogram load of cocaine and a 75-

kilogram load of cocaine to Esnoraldo Posada-Rios in 1988 at the

direction of Ariel Ochoa and that Murga sold cocaine to Jose

Antonio Ortiz in 1989.13 We have considered all of Murga’s

13
In her reply brief Murga argues that the government did not
“rely” on this evidence at trial to establish her guilt on count
48. The record contradicts this argument. At vol. 113, pages 9107
to 9110 of the Trial Transcript the government argued that this
very evidence established Murga’s guilt on count 48.

-59-
arguments and are satisfied that there was sufficient evidence for

the jury to convict her of count 48.14

B. Joinder and Severance Issues

1. Joinder

Mena and Gamboa argue that they were improperly joined in the

superseding indictment. Under Fed. R. Crim. P. 8(b) the initial

joinder of defendants is proper “if they are alleged to have

participated in the same act or transaction or in the same series

of acts or transactions constituting an offense or offenses.”

Defendants who are charged with conspiring together are properly

joined in a single indictment. See Moser, 123 F.3d at 828.

Whether joinder is proper is normally determined from the

allegations in the indictment. See United States v. Faulkner, 17

F.3d 745, 758 (5th Cir. 1994).

Because Mena was charged with both the RICO and drug

distribution conspiracies (counts 1 and 3), his joinder in the

indictment with his alleged co-conspirator was proper under Rule

14
Murga argues that the district court erred in excluding from
evidence a letter from a Texas judge to the Colombian consul
stating that she had been acquitted of state drug charges arising
out of her delivery of 40 kilograms of cocaine on June 14, 1989.
The district court did not err in excluding the letter under Fed.
R. Evid. 403 because the question for the jury was whether Murga
had falsely denied prior drug trafficking in her visa application,
not whether she had falsely denied a prior drug conviction. We
have held that “evidence of a prior acquittal is not relevant
because it does not prove innocence but rather merely indicates
that the prior prosecution failed to meet its burden of proving
beyond a reasonable doubt at least one element of the crime.”
United States v. Kerley, 643 F.2d 299, 300-301 (5th Cir. Unit B
April 1981). For the same reasons we also conclude that the
district court did not err in refusing Murga’s proposed jury
instruction that the jury could not consider her participation in
the events of June 14, 1989, in its consideration of count 48.

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8(b). Gamboa, however, was not charged in either of those conspir-

acies. He was charged in count 42 with conspiring with Mena to

possess with intent to distribute cocaine and in count 43 with

possession with intent to distribute cocaine. Gamboa argues that

the only “common denominator” between him and the other defendants

was Mena. “Joinder of charges is the rule rather than the excep-

tion and Rule 8 is construed liberally in favor of initial

joinder.” United States v. Bullock, 71 F.3d 171, 174 (5th Cir.

1995), cert. denied, 517 U.S. 1126, 116 S. Ct. 1365 (1996).

Although the question is a close one, we are satisfied that the

initial joinder of the subsidiary conspiracy charged in count 42

and of the substantive cocaine possession charged in count 43 with

the other counts of the superseding indictment was proper. The

conspiracies charged were not separate or distinct; they were

substantially interrelated by their facts and common aims

(importation and distribution of large amounts of Colombian

cocaine) and by at least one common participant (Mena). See United

States v. Kaufman, 858 F.2d 994, 1003 (5th Cir. 1988).

2. Severance

Varon, Parada, and Gage join Mena and Gamboa in arguing that

the district court abused its discretion by denying their motions

to sever under Fed. R. Crim. P. 14 before trial and at various

times during the trial and by denying their motions for new trial

based on alleged prejudice to them from the joint trial. This

court reviews a district court’s denial of a motion to sever for an

abuse of discretion. Bullock, 71 F.3d at 174. Even in cases where

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the initial joinder of defendants was not proper, to demonstrate

reversible error from the denial of a motion for severance a

defendant must still show “clear, specific and compelling prejudice

that resulted in an unfair trial.” Id. The general rule is that

“‘persons indicted together should be tried together, especially in

conspiracy cases, and . . . the mere presence of a spillover effect

does not ordinarily warrant severance. . . .’” Moser, 123 F.3d at

828 (quoting United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir.

1993)). That separate trials might have afforded the defendant “a

better chance of acquittal” does not justify a severance. Id. at

828. The possibility of prejudice must also be balanced against

the interest of judicial economy. See United States v. Wolford,

614 F.2d 516, 518 (5th Cir. 1980). A defendant complaining of the

denial of a motion to sever must also show that he did not receive

adequate protection from the potential prejudice of a joint trial

through the court’s instructions to the jury. See United States v.

Mitchell, 31 F.3d 271, 276 (5th Cir. 1994).

Appellants advance both common and individual arguments to

show that they were prejudiced by the joint trial. Generally, they

argue that they were prejudiced by evidence of crimes committed by

co-conspirators, including gruesome murders, before they joined the

conspiracies. As the court noted in United States v. Manges, 110

F.3d 1162, 1174-75 (5th Cir. 1997), cert. denied, --- U.S. ---, 118

S. Ct. 1675 (1998), however, “[w]hile the district court must guard

against undue prejudice, it need not protect conspirators from

-62-
evidence of their confederates’ acts in furtherance of their common

illegal aim.”

Appellants also argue that they were prejudiced by the length

of the trial (six months) and the number of defendants tried

together (twelve), and by the tense atmosphere created by the high

security required for this trial. This court has rejected the

notion that the length of trial or number of defendants or the

atmosphere of a “megatrial” alone can establish the compelling

prejudice required for reversal based on the denial of a motion to

sever. In United States v. Ellender, 947 F.2d 748, 755 (5th Cir.

1991), the court acknowledged that there are legitimate concerns

over megatrials (in that case, 23 defendants tried over 3 months),

but concluded that “[m]ere generalized criticism of megatrials

generally will not withstand the rigorous standard of review for

denial of severance.” Id. Instead, appellants must “isolate

events occurring in the course of a joint trial and then . . .

demonstrate that such events caused substantial prejudice.” Id.

In this case the district court took a number of steps to

lessen the prejudice to individual defendants from a joint trial.

During the voir dire examination of the jury panel, and again

before any evidence was offered, the court told the jury that the

case against each individual defendant should be considered

separately. The court also allowed the jurors to take notes and to

have photographs of the defendants to enable the jurors to keep the

defendants separate in their minds. In Ellender we concluded that

-63-
the defendants had not demonstrated compelling prejudice in part

because “the jurors were provided with a copy of the final

indictment, a seating chart, and note-taking materials.” 947 F.2d

at 755.

In its charge to the jury, the district court instructed:

A separate crime is charged against one or more of
the defendants in each count of the Indictment. Each
count, and the evidence pertaining to it, should be
considered separately. Also, the case of each
defendant should be considered separately and
individually. The fact that you may find one or more
of the defendants guilty or not guilty of the crimes
charged should not control your verdict as to any
other crime or any other defendant. You must give
separate consideration to the evidence against each
defendant. (Court’s Instructions to the Jury at page
19)

Similar instructions have been held to be sufficient to cure the

possibility of prejudice because the court presumes that the jury

followed the court’s instructions. See, e.g., Faulkner, 17 F.3d at

759.

The district court also instructed the jury many times during

the trial to consider certain evidence only against certain

defendants and to consider other evidence only for limited

purposes. For example, with respect to Gamboa, who has the

strongest severance argument since less than 2 days of evidence

related to him, the district court instructed the jury:

Ladies and Gentlemen, you are instructed that the
evidence of this witness and the evidence of the
witnesses you have already heard, the monitor
witnesses, and the evidence that I have admitted in
the case up until now has not been offered by the
government for your consideration against Mr. Gamboa,
the Defendant Mr. Gamboa. The government has
indicated that the charges against Mr. Gamboa, the
accusations against him refer to a specific date,

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 August 11, 1992. So until further notice, none of the
evidence, until I tell you that the government is
going to offer evidence now concerning Mr. Gamboa,
none of the evidence is against Mr. Gamboa, is being
offered by the government for your consideration
against Mr. Gamboa. (Trial Transcript, vol. 70, pages
1551-1552)

When the government later began presenting evidence against Gamboa

the court reminded the jury that none of the evidence presented

thus far related to Gamboa, but that the government would now be

offering evidence against Gamboa. (Trial Transcript, vol. 89, page

4936)

In this case the presumption that the jury followed the

court’s instructions is even stronger in light of the jury’s

verdicts. The jury acquitted Murga of count 2; acquitted Varon of

counts 6, 21, and 25; acquitted Jackquet of count 6; acquitted

Watson of count 6; and acquitted Gage of counts 6 and 21.

“[A]cquittals as to some defendants on some counts support an

inference that the jury sorted through the evidence and considered

each defendant and each count separately.” Ellender, 947 F.2d at

755.15

Defendants also raise various individual arguments in support

of their severance points. Gamboa argues that the government’s

15
Varon and Gage argue that the mixed verdicts demonstrates
juror confusion because the government’s case against them was
supported by the testimony of the same two witnesses (Wonda Cortes
and Hall). That the jury acquitted defendants of some charges
based on the testimony of Cortes and Hall, but convicted them of
other charges based on the testimony of the same witnesses does not
necessarily demonstrate juror confusion: The testimony may have
been more believable with respect to some counts than others. The
jury was apparently quite able to separate the wheat from the
chaff.

-65-
case against him was weak and that he was prejudiced by being

pictured on a large chart along with all of the defendants. But

the evidence relating to Gamboa’s activities on August 11, 1992,

was not weak, and those events were separated in time and place

from the evidence against other defendants, thereby lessening any

possible spillover effects from the evidence against other

defendants. Likewise, although Gamboa’s face on the photo chart

was constantly before the jury, the only relationship noted between

him and any of the other defendants on the chart was a horizontal

dotted line between Gamboa and Mena.

Gage argues that he was prejudiced by the joint trial because

his brother Jackquet pleaded guilty to count 27. The plea occurred

after three days of voir dire examination of the jury panel and

outside of their presence. After the jury was sworn the government

arraigned the defendants in open court, and Jackquet pled guilty to

count 27 and not guilty to the other counts against him. Any risk

of prejudice to Gage from Jackquet’s guilty plea to count 27 was

remote. Only Jackquet was charged with count 27 (possession with

intent to distribute cocaine on or about October 10, 1991), and no

evidence was offered about Wonda Cortes’s sales of cocaine on

December 10 and 11, 1991, until several weeks later during the

trial.

Parada argues that a juror acceptable to him was stricken for

cause at Jackquet’s behest because of his apparent inability to be

fair to a defendant charged with shooting a police officer. Parada

provides no support for his assertion that this was a “fundamental

-66-
error” that requires a reversal. Parada also argues that the joint

trial resulted in a violation of his right to a speedy trial.

Although Parada might have been able to raise a separate speedy

trial claim, this is not the type of prejudice that requires

reversal under a severance analysis. Parada also argues that an

incident in which codefendant Watson’s brother accosted a juror

constitutes prejudice flowing from the joint trial. This incident,

raised in separate points of error by Parada and other defendants

and discussed separately below, does not show compelling prejudice

from the joint trial.

We have carefully considered all of the appellants’ severance

arguments. A long and complex trial like this one taxes the

patience and vigor of the judge, jury, and counsel. The record

discloses very few instances of antagonistic arguments or evidence

among defense counsel. The government’s evidence was focused, and

the testimony of witnesses was directed to particular defendants

and counts. The district judge ably parsed through the almost

daily arguments of counsel over evidentiary and procedural issues

in order to assure a fair trial for all parties and to minimize any

spillover effect from the long joint trial. None of the

defendants’ arguments persuade us that the district court erred in

denying appellants’ motions to sever or their motions for new trial

based on the alleged prejudice of a joint trial.

C. Evidentiary Issues

1. Admissibility of Watson’s Statements

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 Watson filed a motion to suppress statements made to law

enforcement officers after her arrest. After an evidentiary

hearing the court entered an order on March 29, 1993, denying the

motion to suppress. The order stated

The Court finds that on August 13, 1992, law enforcement
officers entered the residence at 4801 Meadow Park, Houston,
with Defendant Mona Smith Watson’s permission, read Defendant
her rights, lawfully took Defendant into custody pursuant to
an arrest warrant, and searched the home of her mother,
Marion Smith, following consent from Defendant with her
mother’s authorization. Credible testimony from DEA agent
Roger Norman, ATF agent Mary Daugherty, and Harris County
Sheriff’s Department’s Butch Porter convinces the Court that
Defendant did not ask for an attorney nor request her mother
to call an attorney for her at this time.

. . . Defendant’s voice exemplar tape fortuitously
and clearly shows that during her post-arrest
questioning by Butch Porter at the [DEA building],
Defendant Mona Smith Watson failed to assert, even
equivocally, her right to have an attorney present or
to stop the questioning. [citations omitted] Porter
did not pressure her, but gave her free choice whether
to call an attorney or stop the interview. Defendant
orally and in writing voluntarily and knowingly waived
her rights to do so. Moreover FBI agent Bobby Echard
credibly testified that Defendant was fully
cooperative during her interview and did not request
a call to anyone other than her mother. Moreover
Defendant voluntarily signed a consent form for the
search of her apartment.

The Court did not find believable the testimony of
Marion Smith, whose credibility was undermined by
questioning about her job, income, false credit
statement for the purchase of a Jaguar, and the car
itself.

All testimony showed that at the time of her
arrest and subsequent processing and interview at the
[DEA building], Defendant was in complete control of
her senses, not under the influence of drugs,
coherent, able to understand, and fully apprised of
her rights. This and other appearances before this
Court have revealed her to be an intelligent and
sophisticated business woman, who supervised eight
employees and dealt extensively with the public. The
Court finds that she was not intimidated or misled

-68-
 during the post-arrest processing, nor did she request
interruption of the questioning. The Court does not
find convincing her testimony that she was relying on
the advice and help of her sister’s friend, Butch
Porter, of agent Bobby Echard, and of interviewer Joe
Harris in her cooperation with the authorities.

The district court also instructed the jury that it must determine

whether an out-of-court statement by a defendant was knowingly and

voluntarily made. (Court’s Instructions to the Jury at pages 7 and

8)

Watson raises three challenges to the admissibility of her

confession. First, she contends that the confession was involun-

tary under the Fifth Amendment because it was the result of a

“false friend” interrogation condemned by the Supreme Court in

Spano v. New York, 360 U.S. 315, 79 S. Ct. 1202 (1959). She also

contends that her confession violated her Fifth Amendment right to

counsel because it occurred after the interrogating agents were

aware that she wanted counsel, and that it violated her Sixth

Amendment right to counsel because it occurred after she had been

indicted, but had not waived her right to counsel.

A confession is voluntary if under all the circumstances it

is the product of the defendant’s free and rational choice. See

United States v. Restrepo, 994 F.2d 173, 182 (5th Cir. 1993). The

voluntariness of a statement is reviewed on a case-by-case basis.

Findings of the district court after an evidentiary hearing,

including credibility choices made by the district court, are

reviewed by this court under a clearly erroneous standard. Id.

The ultimate issue of voluntariness, however, is a question of law

subject to de novo review by this court.

-69-
 Watson’s claim that her confession was involuntary because

it was the result of a “false friend” interrogation is based on the

fact that the police used deputy Porter, a friend of Watson’s

sister, to fingerprint, photograph, and interview her for a DEA

“personal history.” Deputy Porter, who was not involved in the

investigation of this case, was also present at Watson’s arrest and

the search of her house. The facts of this case do not approach

those in Spano, where the government used a longtime friend of the

accused to coerce a confession. Spano had called his friend,
officer Bruno, and told him about the events that led up to the

shooting for which he was arrested. See Spano, 360 U.S. at 316, 79

S. Ct. at 1204. After Spano repeatedly refused, on advice of

counsel, to answer questions from an assistant district attorney

and police detectives, Bruno’s supervisors coached Bruno to tell

Spano that his telephone call had “gotten him ‘in a lot of

trouble,’” and that Spano should think of Bruno’s wife and three

children. Id. at 319, 79 S. Ct. at 1205. Bruno pleaded with Spano

at least four times before he confessed.

In contrast, deputy Porter told Watson that he could not tell

her what to do. He also informed her of her right to an attorney.

Although he told her that another friend, detective Joe Harris,

would be conducting the interrogation, a female FBI agent actually

conducted the interrogation. The fact that deputy Porter exhibited

sympathy and created an atmosphere of trust does not demonstrate

the type of police overreaching prohibited by Spano. See United

States v. Rojas-Martinez, 968 F.2d 415, 418 (5th Cir. 1992)

(“Expressions of sympathy by an officer are not coercive.”).

-70-
Watson was allowed to call her mother, the only person she asked to

call. Watson never asked to terminate the interview, never

requested counsel, and signed a written waiver of her rights.

Although she testified at the suppression hearing that agents

threatened that she would never see her daughter again, the

district court found that this testimony was not credible.

Watson also argues that her confession was inadmissible under

the Fifth and Sixth Amendments because it was obtained in violation

of her right to counsel. Agent Norman testified that he read
Watson her Miranda rights as soon as she was arrested and that she

indicated that she understood those rights. This circuit has held

that “[a]s long as the police administer Miranda warnings before

proceeding, a defendant’s voluntary decision to answer questions

without claiming his right to have a lawyer present to advise him

constitutes a ‘knowing and intelligent,’ and therefore valid,

waiver of his Sixth Amendment right.” Montoya v. Collins, 955 F.2d

279, 282 (5th Cir. 1992) (quoting Patterson v. Illinois, 487 U.S.

285, 292-97, 108 S. Ct. 2389, 2394-97 (1988)).

Watson acknowledges that “[t]he evidence was in dispute as

to whether, where, and when [she] indicated that she wanted to

contact counsel.” (Watson’s brief at 19) She appears to argue

that she invoked her right to counsel at her mother’s home when she

was arrested, and that she gave another indication that she had not

waived her right to counsel when she commented to deputy Porter

-71-
later at the DEA building that she “might have to get a lawyer

then, huh?” in response to Porter’s reiteration of her right to

counsel.

In support of her argument that she invoked her right to

counsel at her home Watson points to her mother’s testimony that

Watson asked her mother to contact Linda Jones so that Jones could

contact an attorney who had represented her deceased son (and

Watson’s former boyfriend), Tony Jones. Watson testified that

deputy Porter heard this request, and there was evidence that

another officer wrote down Jones’ telephone number for Watson’s

mother. The right to counsel must be “unambiguously” invoked.

Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355

(1994). Watson’s statements to her mother, even if overheard by

the officers, were insufficient to invoke her right to counsel.

The arresting officers were not obligated to clarify whether her

comments were intended to be an invocation of her right to counsel.

See United States v. Scurlock, 52 F.3d 531, 537 (5th Cir. 1995).

Watson’s comment to deputy Porter that she “might have to get a

lawyer then, huh?” was also insufficient to invoke her right to

counsel. See Davis, 512 U.S. at 459, 114 S. Ct. at 2355 (holding

that an arrestee’s comment that “maybe [she] should talk to a

lawyer” did not constitute an unambiguous request for counsel);

Scurlock, 52 F.3d at 537 (holding that defendant’s comment that she

“needed a lawyer” was not a request for counsel when the comment

was made in response to an agent’s statement that she would be

indicted in the future).

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 Fundamentally, these points of error express Watson’s

disagreement with the credibility choices made by the district

court and the court’s conclusions based on the evidence at the

suppression hearing. Having carefully reviewed Watson’s arguments

and the record we are persuaded that none of the district court’s

findings are clearly erroneous and that Watson voluntarily con-

sented to answer questions without the presence of counsel.

Accordingly, we find no violation of Watson’s Fifth or Sixth

Amendment right.

2. Admissibility of Murga’s Statements

After a two-day evidentiary hearing the district court

entered a comprehensive, seven-page order denying Murga’s motion to

suppress her statements to law enforcement officers. In response

to the district court’s detailed findings of facts and conclusions

of law regarding the voluntariness of Murga’s confession and waiver

of her Miranda rights, Murga states in her brief only that her

“custodial statements were not truly voluntary because they

resulted from improper inducements and continuing interrogation by

numerous law enforcement officers and agents.” (Murga’s brief at

30 n.55) Murga’s brief contains no argument or discussion of the

facts explaining why the district court’s findings were incorrect,

and she does not even present an argument “as to what improper

inducements were made.” Although Murga cites documents filed in

the district court by prior counsel, Murga cannot satisfy the

requirements of Fed. R. App. P. 28(a)(5) by merely referring to

-73-
briefing filed with the district court. We conclude that Murga has

waived this point of error because her brief fails to satisfy the

requirements of Fed. R. App. P. 28(a)(5) and (6).

3. Admissibility of Evidence Seized from the Mercury Sable

Gamboa argues that the district court erred in denying his

motion to suppress evidence seized from a blue Mercury Sable on

August 11, 1992. Gamboa first argues that he was illegally

detained in violation of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868

(1968). As explained in Part I.G., supra, the officers saw Gamboa

and Mena enter a suspected money laundering exchange, scanning the

parking lot as they went in. The officers saw them leave the

exchange, again scanning the parking lot as they returned to their

car, with Gamboa carrying a heavy duffle bag, which he put into the

trunk of the car. They then saw Mena use a cellular phone and saw

Gamboa and Mena engage in counter-surveillance techniques.16

Officers later saw Gamboa and Mena get into a blue Mercury Sable

and drive to another apartment complex. The officers testified

that they approached Gamboa and Mena without drawing their weapons,

asked for identification, and told them that they were investigat-

ing drug trafficking activities.

16
Use of counter-surveillance techniques by suspects raises a
reasonable suspicion. See United States v. Quiroz-Hernandez, 48
F.3d 858, 863 (5th Cir. 1995).

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 In an order entered on April 1, 1993, the district court

concluded that the investigating officers had reasonable suspicion

of criminal activity to stop Gamboa. The district court also

concluded that the government had proved by a preponderance of the

evidence that Gamboa voluntarily consented to the officers’ search

of the Mercury Sable, both orally and in writing. Although Gamboa

testified that the officers approached the car with their guns

drawn and that he did not understand the consent form, the district

court credited the officers’ testimony that their weapons were not

drawn when they approached the car, that officer Montalvo explained

to Gamboa that he could refuse to consent to the search, and that

Gamboa acknowledged that he understood him and executed a Spanish

language consent form.

The district court was presented with two conflicting

versions of the facts. Because the district court’s factual

findings are supported by the evidence, they are not clearly

erroneous. See Amadeo v. Zant, 486 U.S. 214, 223, 108 S. Ct. 1771,

1778 (1988) (holding that where there are two permissible views of

the evidence, the factfinder’s choice between them cannot be

clearly erroneous). Reviewing the evidence de novo, we also

conclude that Gamboa has failed to establish a Fourth Amendment

violation.

4. Admissibility of Evidence Seized from
Jackquet’s Residence

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 Although Jackquet argues in his brief that the officers who

arrested him failed to knock and announce their presence before

entering his residence in violation of the Fourth Amendment, he

never states that he objected to the admissibility of the evidence,

either through a pretrial motion to suppress evidence or by

objecting to evidence at trial.

Moreover, even had Jackquet objected to this evidence, he has

failed to satisfy his initial burden of proving that “an

unannounced entry actually occurred.” Moser, 123 F.3d at 824

(quoting United States v. Fike, 82 F.3d 1315, 1323 (5th Cir.),

cert. denied, 117 S. Ct. 241 (1996)). Jackquet argues that his

statement to interrogating officers that he did not hear the

arresting officers knock and announce before entering meets his

initial burden. That statement, however, is not sufficient to make

a prima facie showing under this court’s analysis in United States

v. Mueller, 902 F.2d 336 (5th Cir. 1990). In Mueller the court

held that the defendant’s affidavit, which stated that he had been

asleep in a back bedroom of the house and had not heard the

officers knock and announce, was too speculative to support the

required initial showing, even in the absence of any testimony from

the arresting officers that they knocked and announced before

entering. Id. at 344. Jackquet’s prima facie evidence is even

weaker since the arresting officers testified that they knocked and

repeatedly announced their presence before they entered Jackquet’s

residence. Jackquet has failed to show that the district court

-76-
committed plain error in admitting this evidence, see Moser, 123

F.3d 824, or assuming arguendo that he properly objected to it

before the trial court, that the court erred in admitting the

evidence.

5. The Government’s Trial Charts

Jackquet and Watson complain that the district court erred

in allowing the government to display throughout the trial time-

line and organizational charts. The time line was posted on eight

large poster boards on easels. The organizational chart arranged

photographs of the defendants in a manner that demonstrated the

government’s theory of the defendants’ roles in the conspiracies

and substantive RICO offenses. Summaries of evidence and testimony

were attached to the time-line chart with Velcro as those items

were admitted into evidence. The district court allowed the charts

to be used as demonstrative aids. Since the charts were not

admitted in evidence, they were not sent to the jury room during

deliberations.

Since the government did not offer the charts into evidence

and the trial court did not admit them, we need not decide whether,

as appellants argue, they were not admissible under Fed. R. Evid.

1006, which allows charts and summaries of “voluminous writings,

recordings, or photographs” to be received as evidence. Where, as

here, the party using the charts does not offer them into evidence,

their use at trial is not governed by Fed. R. Evid. 1006. See

Pierce v. Ramsey Winch Co., 753 F.2d 416, 431 (5th Cir. 1985).

-77-
 We review the district court’s decision to allow the

government to display summary charts for abuse of discretion. See

United States v. Winn, 948 F.2d 145, 158 (5th Cir. 1991). As the

trial court explained in her memorandum and order allowing the use

of the charts, the charts were not evidence but were “pedagogical”

devices intended to present the government’s version of the case.

This court has held that the use of a chart as a demonstrative aid

to summarize the evidence is permissible as long as the court gives

the jury appropriate limiting instructions. See United States v.

Torres, 114 F.3d 520, 526 (5th Cir.), cert. denied, 118 S. Ct. 316

(1997). In this case the district court instructed the jury that

the charts were not evidence and that the summary was “just an

effort to help you follow the evidence that you are going to be

hearing over the course of the trial.” The district court gave

additional instructions during the trial that the charts were not

evidence when asked to do so by defense counsel. We are satisfied

that Fed. R. Evid. 611(a) afforded the district court discretion to

allow the government to use the summary charts and organizational

charts. The district court’s rulings allowing the use of the

charts, when accompanied by the court’s repeated limiting

instructions, was not an abuse of discretion.17

17
Watson argues that the district court’s charge to the jury
failed to contain another limiting instruction about the charts.
Watson does not argue, however, that she ever requested such an
instruction. Although the charge did not reiterate the earlier
limiting instructions about the charts, the charge did instruct the
jury that “[i]t is your duty to base your verdict solely upon the
(continued...)

-78-
 6. The Alleged Hearsay Testimony of Agent Schaefer

The government called Julio Jimenez a/k/a Victor Loaiza as

a witness. On cross-examination by Parada’s counsel Loaiza

testified that Parada was not aware of the illegal activities of

Ariel Ochoa, Harold Cortes, or Hernan Moreno. Loaiza testified

that he and the other drug conspirators were careful not to let

Parada in on the secrets of the drug business because “he was too

sound a person, too straight of a person for that type of

business.” Loaiza also testified that Parada was not told about
the hidden compartment in the car, and that all the errands Parada

was asked to perform appeared on their surface to be legitimate.

Loaiza also testified that he had told government agents that

“Parada was not aware of what was going on.” Later in the trial

counsel for Parada cross-examined DEA agent Mike Schaefer about

whether he participated in “the debriefing of [Loaiza] that took

place over the last ten months where he said my client wasn’t in

the drug business.” Agent Schaefer testified that he had partici-

pated in debriefing Loaiza.

The government then informed the court that agent Schaefer

would be asked whether Loaiza had told Schaefer that Parada knew

that Harold Cortes and Hernan Moreno were engaging in drug

trafficking and money laundering. In response to Parada’s hearsay

(...continued)
testimony and evidence.” (Court’s Instructions to the Jury at
page 2) Given this instruction and the court’s repeated instruc-
tions during trial that the charts were not evidence, even if
Watson had preserved this argument for appeal by requesting an
appropriate instruction, the district court would not have erred in
refusing it.

-79-
objection the government argued, and the district court agreed,

that agent Schaefer’s testimony about Loaiza’s statements to him

was relevant to refute the inference raised by Parada’s counsel’s

questions to Loaiza and agent Schaefer that the government had

acted in bad faith by prosecuting someone the government knew to be

innocent. Before allowing the government to question agent

Schaefer about Loaiza’s statements the court gave the following

instruction to the jury:

Ladies and gentlemen, Mr. Lewis has indicated that he
will elicit from Michael Schaefer, the witness on the
stand, testimony concerning statements made to this
witness by Victor Loaiza, also known as Julio Jimenez.
These statements are not being offered for the truth of
the matters asserted in Loaiza’s statements to
Mr. Schaefer, but, rather, are being offered to show that
Loaiza made the statements to the investigating agents
and to establish the effect on the agents in forming the
bases of their subsequent conduct. (Trial Transcript,
vol. 89, page 4919)

Agent Schaefer then testified that Loaiza had told him that “Parada

knew that there was drug trafficking and money laundering going on

by Hernan Moreno and Harold Cortes.” Parada’s counsel then cross-

examined agent Schaefer at length about his interview with Loaiza.

Parada argues that the district court erred in allowing agent

Schaefer to testify to Loaiza’s hearsay statements and that the

court’s instruction was insufficient to prevent prejudice to Parada

from this testimony. The district court’s decision to allow this

testimony is reversible only for abuse of discretion. See United

States v. Carrillo, 20 F.3d 617, 619 (5th Cir. 1994). In light of

the questioning by Parada’s counsel, which made the testimony

-80-
relevant, and the limiting instruction given by the court, which

minimized any unfair prejudice to Parada, the district court did

not abuse its discretion in allowing Schaefer’s testimony.

7. Impeachment Evidence Against Agent Schaefer

Parada argues that the district court abused its discretion by

refusing to allow him to introduce evidence that he claims would

have impeached agent Schaefer’s testimony. First, Parada complains

that he was prevented from presenting evidence that agent Schaefer

erroneously testified at Parada’s pretrial detention hearing that

pretrial services had told him that Parada was on probation in New

York. Parada sought to present the testimony of Carolyn

Baranowski, a pretrial services officer, that her files did not

indicate that Parada was on probation as of the date of his arrest.

The district court acted well within its discretion in excluding

Schaefer’s testimony from the pretrial detention hearing and

Baranowski’s testimony. See United States v. Hawkins, 661 F.2d

436, 444 (5th Cir. Unit B Nov. 1981) (“There is no right to impeach

a witness with respect to collateral or irrelevant matters.”).

Second, Parada complains that he was precluded from presenting

evidence that Parada’s son, mother, and daughter were handcuffed

while the police arrested Parada and searched his apartment. Agent

Schaefer testified that several agents participated in the arrest

and search and that he did not see the women handcuffed. He also

testified that Parada’s son, Christian, had remained handcuffed “no

more than a half hour,” and that the handcuffs were removed when

Christian spoke with his father in a bedroom. Christian Parada

-81-
testified about conversations between agent Schaefer and his father

and threats by Schaefer to both Christian and his father to induce

their cooperation. In a bill of exceptions Christian Parada

testified that he remained handcuffed throughout the search of the

apartment and that his mother and sister were handcuffed.

The district court did not abuse its discretion in sustaining

the government’s relevancy objection to exclude the testimony of

Christian Parada. That Parada’s wife and daughter were handcuffed

does not necessarily impeach agent Schaefer’s testimony that he did

not see them handcuffed. Parada does not argue that the fact that

Parada’s family was handcuffed is relevant to whether Parada’s

confession was voluntary. In fact, the statement of Parada that

was introduced into evidence was made seven hours later at DEA

headquarters after Parada was informed of and waived his Miranda

rights. Given the marginal relevance of the testimony that the

district court excluded, the court did not err in excluding it.

8. Extraneous Offense Evidence Against Gage

Gage argues that the district court abused its discretion in

admitting evidence of extraneous offenses under Fed. R. Evid.

404(b). The government was allowed to introduce evidence that on

August 23, 1992, Louisiana officers stopped Kelvin Jackquet’s

sister for traffic violations. The Chevrolet van she was driving

had been rented by Gage. While the officers were talking to her,

a Chevrolet Corvette in which Gage was a passenger pulled up. Gage

told the officers that he was traveling with the van. A search of

the van recovered a black tote bag containing $24,985. The

government also introduced the testimony of Tom Burgess that in

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November of 1992 he delivered 30 kilograms of cocaine to Gage, as

well as recorded telephone conversations from December of 1992 in

which Gage, Burgess, and others discussed the purchase of cocaine

by Gage.

Gage concedes that evidence of extraneous offenses is

admissible if relevant to an issue other than the defendant’s

character. He also concedes that a defendant’s plea of not guilty

in a criminal case raises the issue of intent allowing the

government to use evidence of extrinsic acts to prove the

defendant’s intent. He contends, however, that the district court

abused its discretion in admitting this extraneous offense evidence

without considering that other evidence had already been admitted

to establish his intent. See United States v. Roberts, 619 F.2d

379, 383 (5th Cir. 1980) (stating that the district court “must

consider ‘the extent to which the defendant’s unlawful intent is

established by other evidence’” (quoting United States v. Beechum,

582 F.2d 898, 914 (5th Cir. 1978) (en banc))). In this case the

district court did just that. In an order entered on July 8, 1993,

the court concluded that the evidence the government sought to

offer was relevant to the issue of Gage’s intent and that,

notwithstanding Gage’s “overkill” argument, such evidence would not

unduly prejudice Gage. The district court also minimized the risk

of undue prejudice by twice giving a detailed limiting instruction

that the extraneous evidence was only to be considered to show

Gage’s intent. The district court carefully complied with the

requirements of Beechum, and we find no error in the court’s

rulings.

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 9. Violation of Fed. R. Evid. 615 by Hall and Cortes

On cross-examination Richard Hall testified that before he

testified, his sister, Wonda Cortes, called him from jail after she

had testified and the two discussed her testimony. Hall admitted

that he had talked with his sister about her testimony “[d]uring

the time she was testifying” and that they discussed “some of the

things that were happening to her on the witness stand,” “some of

the things she had said,” and “some of the things the lawyers had

asked her about.” Gage and Varon argue that their convictions

should be reversed because the district court refused to strike the

testimony of Hall and Cortes pursuant to Fed. R. Evid. 615, which

provides for sequestration of witnesses during trial, and refused

to allow them to explore outside the presence of the jury whether

Cortes influenced Hall’s testimony.

Although Cortes had been sequestered pursuant to Rule 615 at

the time of her conversations with Hall, the district court has

discretion to allow the testimony of a witness who violated a

sequestration order, and its decision to do so is reviewed for an

abuse of discretion. See United States v. Wylie, 919 F.2d 969, 976

(5th Cir. 1990). “In evaluating whether an abuse of discretion has

occurred, the focus is upon whether the witness’s out-of-court

conversations concerned substantive aspects of the trial and

whether the court allowed the defense fully to explore the

conversation during cross-examination.” Id. (citation omitted).

After a lengthy conference with counsel at which defense counsel

suggested various alternative remedies for the Rule 615 violation,

the district court concluded that defense counsel could cross-

-84-
examine Hall further about his conversations with Cortes. The

court refused, however, to allow defense counsel to question Hall

or Cortes outside of the presence of the jury to explore the nature

and extent of their conversations.18 Defense counsel then declined

to cross-examine Hall further about his conversations with Cortes.

On redirect Hall testified that Cortes had not attempted to

influence his testimony by telling him what to say in court. On

recross Hall essentially reiterated his cross-examination testimony

quoted above.19

In the limited cross-examination of Hall conducted by the

defense there was no indication that his testimony was “tainted” as

Varon suggests. Moreover, as in Wylie, Varon and Gage fail to

identify which portions of Hall’s testimony they contend “were

either tailored or less than candid.” Id. at 976. Because the

defendants were allowed a full opportunity to cross-examine Hall,

and because the testimony that was elicited from Hall did not

indicate that his testimony was influenced by his conversations

18
The district court had the discretion under Fed. R. Evid.
104(c) to allow defense counsel to question Hall and Cortes outside
of the presence of the jury or to require that the questioning be
in open court before the jury. The Advisory Committee Notes to
Rule 104(c) explain that allowing counsel to question witnesses on
preliminary matters outside of the presence of the jury is time
consuming and in many cases testimony given in such a hearing must
later be presented to the jury.
19
Gage also faults the district court for not instructing the
jury about how to consider and evaluate Hall’s testimony in light
of the violation of Rule 615. In his brief Gage does not state
that any defense counsel ever requested such an instruction,
however, and we did not find such a request in our review of the
record.

-85-
with Cortes, the district court did not err in refusing to strike

the testimony of Hall and Cortes or to allow further questioning of

Hall and Cortes outside of the presence of the jury.

D. Instructions to the Jury

1. Voir Dire Instruction About Guilty Pleas

During voir dire Watson’s counsel told the jury panel that a

guilty plea was not evidence of a crime. The next morning, outside

of the presence of the jury panel, the government objected that the

statement was misleading. The district court agreed and instructed
the jury panel:

Yesterday, also, Mr. DeGeurin mentioned that it is
possible for an individual to plead guilty to a crime and
that person not actually been guilty, and that’s true,
that is the law, but I want you to know that it is not
the policy nor the practice of this court to accept a
plea of guilty from anyone who tells me he or she is not
guilty of the crime to which he is pleading guilty.

During the trial the government elicited testimony from Wonda

Cortes that she had pled guilty before Judge Harmon. Defendants

objected and moved for a mistrial. Although the court denied the

motion for mistrial, the court promptly instructed the jury:

Ladies and Gentlemen, the last questions and answer are
stricken and you are instructed to disregard it. To whom
Ms. Cortes pled guilty in this case is totally irrelevant
to this case and you are instructed to disregard the last
statement of the witness.

In the jury charge the court instructed the jury that “[t]he fact

that the alleged accomplice has entered a plea of guilty to the

offense charged is not evidence, in and of itself, of the guilt of

any other person.” (Court’s Instructions to the Jury at page 12)

-86-
 Parada and Mena argue that the court’s initial instruction and

the government’s subsequent questions to Wonda Cortes prejudiced

them by implying to the jury that since Cortes had pled guilty, the

district judge who was presiding over the case must have found that

a conspiracy existed before accepting Cortes’s plea. A district

court has broad discretion under Fed. R. Crim. P. 24 in conducting

the voir dire examination of the jury panel, and “absent an abuse

of discretion and a showing that the rights of the accused have

been prejudiced thereby, the scope and content of voir dire will
not be disturbed on appeal.” United States v. Black, 685 F.2d 132,

134 (5th Cir. 1982). In light of the comment to the jury panel by

counsel for Watson, the court’s initial instruction was proper to

cure any misimpression by the jury panel that the court would allow

innocent people to plead guilty. Any prejudice to Parada or Mena

that resulted from the instruction or from the government’s

subsequent question to Cortes was cured by the district court’s

later instructions.

2. Failure to Submit Duress Instruction

Watson argues that the district court erred in refusing to

instruct the jury on her duress defense and erred in refusing to

allow counsel to argue during closing arguments that evidence of

duress negated the government’s proof of Watson’s intent. Watson’s

brother, Christopher Smith, testified that he visited his mother’s

house, where Watson lived, once or twice a week. Smith testified

that after Watson’s boyfriend, Tony Jones, was murdered in 1991,

Watson was afraid to stay at home by herself and was afraid that

-87-
other family members might be killed. Wonda Cortes testified that

the conspiracy would not allow members who threatened its existence

to withdraw voluntarily. Watson argues that this evidence estab-

lished that her participation in the conspiracy was compelled by

her fear for her own and her family’s safety.

Duress, like the related, and often overlapping, defenses of

self-defense and necessity, is a form of the affirmative defense of

justification. See United States v. Harper, 802 F.2d 115, 117 (5th

Cir. 1986).20 To raise an issue of duress for the jury a defendant

must present proof of four elements:

(1) that the defendant was under an unlawful and
“present, imminent, and impending [threat] of such
a nature as to induce a well-grounded apprehension
of death or serious bodily injury”;

(2) that defendant had not “recklessly or negligently
placed himself in a situation in which it was
probable that he would be [forced to choose the
criminal conduct]”;

(3) that defendant had no “reasonable legal alternative
to violating the law; a chance both to refuse to do
the criminal act and also to avoid the threatened
harm”; and

(4) “that a direct causal relationship may be
reasonably anticipated between the [criminal]
action taken and the avoidance of the [threatened]
harm.”

20
“While the defense of duress covered the situation where the
coercion had its source in the actions of other human beings, the
defense of necessity, or choice of evils, traditionally covered the
situation where physical forces beyond the actor’s control rendered
illegal conduct the lesser of two evils.” United States v. Bailey,
444 U.S. 394, 409-410, 100 S. Ct. 624, 634 (1980).

-88-
Harper, 802 F.2d at 117 (quoting United States v. Gant, 691 F.2d

1159, 1162-63 (5th Cir. 1982) (citations and footnotes omitted)

(brackets in original)).

Because duress is an affirmative defense, a defendant must

present evidence of each of the elements of the defense before it

may be presented to the jury. See United States v. Bailey, 444

U.S. 394, 415, 110 S. Ct. 624, 637 (1980); Gant, 691 F.2d at 1165.

In determining whether a defendant has made a threshold showing of

the elements of the defense a court must objectively evaluate the

facts presented by the defendant. See Gant, 691 F.2d at 1163. An

objective analysis of Watson’s evidence persuades us that Watson

failed to present evidence that she was under a “present, imminent,

and impending” threat of death or serious bodily injury, or that

she had no available legal alternatives other than her continued

course of criminal conduct.

Watson presented no specific evidence of any threat to her or

her family. She attempts to overcome this evidentiary deficit by

arguing that Bailey only requires an “imminent” threat. Watson

argues that “‘imminent’ does not always mean ‘immediate,’” and that

in a conspiracy case like this one “a threat remains ‘present,

imminent, and impending’ . . . as long as the conspiracy’s

potential for violence remains.” (Watson’s brief at pages 29 and

30) Watson’s attempt to drive a semantic wedge between “imminent”

and “immediate” is of no avail under the facts of this case.

Regardless of which adjective is used to describe the threat, our

decisions make it clear that the defense only arises if there is a

-89-
real emergency leaving no time to pursue any legal alternative. In

stating why the defense requires proof “of absolute and

uncontrollable necessity” the Supreme Court explained that “[a]ny

rule less stringent than this would open the door to all sorts of

fraud.” The Diana, 74 U.S. (7 Wall.) 354, 360-61, 19 L. Ed. 165

(1868).21

Nor has Watson presented evidence of the absence of a legal

alternative to drug dealing. To establish the absence of a legal

alternative a defendant must show “that he had actually tried the

alternative or had no time to try it, or that a history of futile

attempts revealed the illusionary benefit of the alternative.”

Harper, 802 F.2d at 118 (quoting Gant, 691 F.2d at 1164). In

assessing whether reasonable alternatives were available to a

defendant a court must objectively evaluate the facts. A

“[d]efendant’s subjective belief as to available legal alternatives

is not determinative. As long as defendant’s crises permitted ‘a

selection from among several solutions, some of which did not

involve criminal acts,’ . . . the necessity defense must fail.”

United States v. Meraz-Valeta, 26 F.3d 992, 995 (10th Cir. 1994).

As the Supreme Court explained in Bailey, “[v]ague and necessarily

self-serving statements of defendants or witnesses as to future

good intentions or ambiguous conduct simply do not support a

21
Examples of the type of immediacy that will warrant a
justification defense include a prisoner who flees a burning prison
without permission to avoid being burned to death, see United
States v. Kirby, 74 U.S. (7 Wall.) 482, 487, 19 L. Ed. 278 (1869),
and a mariner who jettisons wood from a sinking ship during a storm
without paying excise taxes to save the lives of passengers. See
Reniger v. Fogossa, 1 Plowd.1, 75 Eng. Rep. 1 (K.B. 1551).

-90-
finding of this element of the defense.” Bailey, 444 U.S. at 415,

100 S. Ct. at 637.

A comparison of decisions in which a duress defense has been

invoked illustrates the rigorousness of the requirements of a real,

imminent threat and the absence of any legal alternative. For

example, in one of the few cases in which the defense was held to

be available, United States v. Panter, 688 F.2d 268 (5th Cir.

1982), Panter, a convicted felon, was working as a bartender. He
was assaulted by a patron who had been drinking heavily and who had

previously been convicted of murder. After a brief argument the

patron threatened to kill Panter, pulled a knife, and stabbed

Panter in the stomach. As the two men fought on the floor, Panter

reached under the bar for a club he kept there. As he reached for

the club, his hand fell upon a pistol placed there by another

employee, and he shot his attacker. This court held that the

defenses of self-defense and necessity were available to Panter in

defending against a charge of possession of a firearm by a felon

because there was no time for Panter to take any lawful action to

avoid being killed. See id. at 271.

Contrasted with Panter are the facts in Harper and United

States v. Harvey, 897 F.2d 1300 (5th Cir. 1990), overruled in part

on other grounds by United States v. Lambert, 984 F.2d 658 (5th

Cir. 1993) (en banc). In Harper the defendant, also a convicted

felon, had purchased firearms to protect himself and his fiancee

after he had been robbed several times. We held that the defense

of necessity was not available because there was no evidence that

-91-
Harper was in danger of any “imminent” bodily harm when he

purchased and possessed the gun, and because Harper had reasonable

legal alternatives available to possessing a firearm; for example,

he could have notified the police of the threats. See id. at 118.

In Harvey the defendant, again a convicted felon, argued that he

feared for his life because a rival church faction in his small

hometown had engaged in “shootouts” and that Harvey had been

threatened by members of the faction who wanted him to leave town.

We affirmed the district’s refusal to submit a duress instruction
to the jury because Harvey’s evidence did not show that any

present, immediate threat prevented him from calling the police.

See Harvey, 897 F.2d at 1305.

Watson’s evidence of duress was much more analogous to Harper

and Harvey than to Panter. Watson presented no evidence of any

imminent threat or that she could not pursue legal alternatives to

drug dealing, such as contacting the police. The generalized

testimony of her brother that Watson was afraid to stay at home and

that she feared for her family’s safety and Cortes’s testimony that

the conspiracy did not allow members to withdraw fell far short of

the proof required to raise an issue of duress. A district court’s

refusal to submit a requested jury instruction is reviewed for

abuse of discretion. See United States v. Clements, 73 F.3d 1330,

1338 (5th Cir. 1996). The district court was well within its

discretion in refusing to instruct the jury on the defense of

duress.

During closing arguments Watson’s counsel argued, based on the

same evidence that Watson relied on in support of her duress

-92-
defense, that the government had failed to prove that Watson acted

willfully. The government objected that Watson’s counsel was

attempting to argue indirectly the duress defense. At the govern-

ment’s request the district court instructed the jury that

“Ms. Watson is not entitled to the defense of duress in this case.”

Watson argues on appeal that this instruction left the jury with

the impression that the evidence of the murders and other violence

could not be considered, even in relation to her intent.

Evaluating a challenged jury instruction “requires careful

attention to the words actually spoken to the jury . . ., for

whether a defendant has been accorded his constitutional rights

depends upon the way in which a reasonable juror could have

interpreted the instruction.” Francis v. Franklin, 471 U.S. 307,

314, 105 S. Ct. 1965, 1971 (1985) (citation omitted). The district

court’s instruction to the jury was a correct and limited statement

of the court’s conclusion that she was not entitled to a duress

defense. It said no more, and did not foreclose Watson from

arguing that the government had not proved her intent beyond a

reasonable doubt.

Neither Watson’s complaint that the district court failed to

instruct the jury on her duress defense nor her complaint that the

district court instructed the jury that she was not entitled to a

duress defense provides a basis for overturning her convictions.

3. Deliberate Ignorance Instruction

-93-
 Parada challenges the district court’s submission of a delib-

erate ignorance instruction.22 A deliberate ignorance instruction

is warranted “when a defendant claims a lack of guilty knowledge

and the proof at trial supports an inference of deliberate

indifference.” Moser, 123 F.3d at 825 (quoting United States v.

McKinney, 53 F.3d 664, 676-77 (5th Cir. 1995)). The instruction

should not be submitted unless the evidence raises inferences that

(1) the defendant was subjectively aware of a high
probability of the existence of illegal conduct,
and

(2) the defendant purposely contrived to avoid learning
of the illegal conduct.

United States v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir. 1990).

Although Parada concedes that “the evidence . . . tended to

show that Parada should have been aware of the illegal conduct

. . .” (Parada’s brief at 24), he argues that there was no evidence

that he purposely contrived to avoid learning of the illegal

conduct. We are not persuaded by this argument. As discussed in

Part I.D.1., supra, Parada rented apartments for Harold Cortes and

Hernan Moreno under false names, and allowed Cortes and Moreno to

use his address to register pagers and vehicles for Cortes and

22
The district court instructed the jury:

You may find that a defendant had knowledge of a
fact if you find that the defendant deliberately closed
his eyes to what would otherwise have been obvious to
him. While knowledge on the part of the defendant cannot
be established merely by demonstrating that the defendant
was negligent, careless, or foolish, knowledge can be
inferred if the defendant deliberately blinded himself to
the existence of a fact. (Court’s Instructions to the
Jury at pages 20 and 21)

-94-
Moreno. When Parada was stopped in Louisiana for a traffic

violation a Louisiana state patrolman uncovered a hidden

compartment that had been built into the back of the rear seat and

operated by a sophisticated hidden release device wired through the

air conditioning vent. Parada told agent Schaefer that he knew

Cortes and Moreno were “up to no good” when Moreno had stopped him

from going into a room saying “you don’t need to see what’s down

there.” Because this evidence raised an inference that Parada

purposely avoided learning the true facts about his dealings with

Harold Cortes and Hernan Moreno, it supported the district court’s

deliberate ignorance instruction.

E. Contact with a Juror

Murga and Parada argue that the district court abused its

discretion by failing to grant a mistrial because of contact

between Mona Smith Watson’s brother and a juror. During a break in

closing arguments Watson’s brother, Christopher Smith, approached

one of the jurors, handed her a business card with his phone

number, and told her not to tell anyone. The juror took the card

into the jury room, placed it on the table, and told several other

jurors how she had received it.

A deputy marshal retrieved the card from the jury room and

brought the matter to the district court’s attention. The court

promptly interviewed the juror privately in chambers. The juror

stated that she had discussed the incident in the jury room, and

that based on negative comments she had heard about Watson’s

attorney, Mike DeGeurin, through her employment at the police

-95-
department she had speculated that it was possible that the

incident could “be a totally innocent thing” or it could have been

instigated by DeGeurin. The district court instructed the juror

not to say anything more about the matter and then discussed with

counsel the interview with the juror. DeGeurin asked the court to

instruct the jury that he did not have anything to do with the

incident and that it was an innocent act that should not have been

done. DeGeurin and counsel for Murga also moved to dismiss the

juror who received the card, but counsel for defendant Roy Ford

objected, viewing the juror as favorable to his client. Counsel

for Murga moved for a mistrial.

The district court denied the motions to dismiss the juror and

for mistrial. Before DeGeurin’s closing argument the court again

called the juror into chambers and told her “I wanted to tell you

that I have done an investigation of this whole incident and I am

convinced that Mr. DeGuerin [sic] had nothing whatsoever to do with

it. So I just wanted you to put that out of your mind . . . .”

The juror responded “[f]ine . . . I felt like it was an innocent

thing on the guy, I felt like it was really innocent. But once I

brought it back [into the jury room] and threw it on the table and

told them where I had gotten it from, . . . it seemed to escalate

from that . . . .” The court then related the second private

discussion with the juror to all counsel. Murga renewed her motion

for mistrial, and the court again denied it.

The court then instructed the jury:

Ladies and Gentlemen, yesterday I was informed that
one of the spectators handed to one of you a business

-96-
 card, and the juror to whom the business card was handed
told the rest of you about it in the jury room and that
there was some discussion about it, and I understand that
some of that discussion was as to whether or not
Mr. DeGeurin had had anything to do with the spectator
handing the juror the card. I want to assure you that I
have spoken to Mr. DeGeurin and made an investigation of
this incident and I am convinced that Mr. DeGeurin did
not have anything whatsoever to do with that. And I want
you all to simply put that out of your minds and not to
consider or think about that incident whatsoever during
your consideration of the case.

After jury arguments were concluded the court conducted a

hearing. The court inquired of each juror what he or she had heard

about the card incident, whether they were concerned about it,

whether they believed DeGeurin was involved, and whether the

incident could affect their ability to be a fair and impartial

juror. Not all of the jurors heard the discussion of the card in

the jury room or any mention of DeGeurin’s name. Each juror told

the court that the incident would not affect his or her

deliberations. The court then again denied the defendants’ motions

for mistrial after concluding that none of the jurors “had been

influenced in any way by the card incident.”

In Smith v. Phillips, 455 U.S. 209, 215, 102 S. Ct. 940, 945

(1982), the Court held that “the remedy for allegations of juror

partiality is a hearing in which the defendant has the opportunity

to prove actual bias.” Drawing on its previous decision in Remmer

v. United States, 347 U.S. 227, 74 S. Ct. 450 (1954), the Court

explained in Smith that the trial judge is “to ‘determine the

circumstances, the impact thereof upon the jurors, and whether or

not [they were] prejudicial, in a hearing with all interested

parties permitted to participate.’” Smith, 455 U.S. at 216, 102

-97-
S. Ct. 945 (quoting Remmer, 347 U.S. at 230, 74 S. Ct. 451)

(emphasis in Smith). This is exactly what the district judge did

in this case.

A district court has broad discretion in handling allegations

of outside influences on the jury. See United States v. Ramos, 71

F.3d 1150, 1153 (5th Cir. 1995), cert. denied, 517 U.S. 1227, 116

S. Ct. 1864 (1996) (“We do not understand Smith to require a full-

blown evidentiary hearing in every instance in which an outside

influence is brought to bear on a petit juror. Our precedents
allow the trial judge the flexibility, within broadly defined

parameters, to handle such situations in the least destructive

manner.”). Neither Murga nor Parada has shown any abuse of

discretion by the district court in handling this incident.

F. Ineffective Assistance of Counsel

After the jury’s verdict Louis Suarez, counsel for Luis Rios-

Castano, was indicted for drug dealing. The court appointed a new

lawyer to represent Rios-Castano at his sentencing and on appeal.

Rios-Castano’s new counsel filed a motion for new trial alleging

that Suarez had provided ineffective representation at trial

because (1) he entered into a cocaine transaction with an

undercover agent during trial (and later pleaded guilty to the

offense), and (2) he did not devote adequate time to Rios-Castano’s

defense, and in particular, failed to interview a key witness. To

preserve Suarez’s testimony while his memory was fresh the district

court allowed the parties to make a record concerning Rios-

Castano’s claims. Because Rios-Castano’s newly appointed counsel

-98-
did not have access to a transcript of the trial at the time of the

hearing or to all of the facts, including several government

memoranda that were filed under seal, the court recessed the

hearing so that Rios-Castano’s new counsel could supplement the

evidence at a later hearing. Nothing in the record indicates that

Rios-Castano ever asked the district court to complete the hearing,

and the district court has never ruled on Rios-Castano’s motion for

new trial.

Generally, a claim of ineffective assistance of counsel will

not be addressed on direct appeal unless it has first been

considered by the district court. See United States v. Bounds, 943

F.2d 541, 544 (5th Cir. 1991). Because Rios-Castano’s claims of

ineffective assistance of counsel focus on his trial counsel’s

trial strategy and investigation, which are fact-intensive issues

that must initially be addressed by the district court, we dismiss

this portion of his appeal without prejudice to his right to raise

the issue of ineffective assistance of counsel in a proceeding

brought in the district court under 28 U.S.C. § 2255.

G. Sentencing Issues

Esnoraldo Posada-Rios, Carlos Mena, Elisa Murga, Carmenza

Varon, Raul Gamboa, Luis Rios-Castano, Anthony Gage, and Kelvin

Jackquet challenge the sentences imposed by the district court. We

review factual findings under the “clearly erroneous” standard

mandated by 18 U.S.C. § 3742(e) and accord great deference to the

trial judge’s application of the sentencing guidelines to the

-99-
facts. See United States v. Humphrey, 7 F.3d 1186, 1189 (5th Cir.

1993). In a conspiracy case the drug quantity for purposes of

sentencing includes amounts attributable to co-conspirator conduct

in furtherance of the conspiracy as long as those amounts were

reasonably foreseeable to the defendant and includes drugs

possessed by other conspirators who were “aided and abetted” by the

defendant. See United States v. Carreon, 11 F.3d 1225, 1237 (5th

Cir. 1994). The district court’s determination of the amount of

drugs attributable to a defendant is a finding of fact reviewed for

clear error. See United States v. Alix, 86 F.3d 429 (5th Cir.

1996). The district court’s determination of a defendant’s role in

the offense is also a finding of fact that is reviewed for clear

error. See United States v. Zuniga, 18 F.3d 1254, 1261 (5th Cir.

1994). The sentencing court may consider any relevant information,

without regard to its admissibility, as long as the court concludes

that it has sufficient indicia of reliability. See

Section 6A1.3(a) of the United States Sentencing Commission

Guidelines Manual (1993) (USSG).

1. Esnoraldo Posada-Rios

Posada-Rios argues that the district court erred by sentencing

him as a Career Criminal Offender under USSG § 4B1.1 because the

two prior convictions relied on by the court to sentence him as a

career offender were related to his current convictions and

therefore could not serve as a basis for enhancement. This

argument is irrelevant because the district court did not sentence

Posada-Rios as a career offender.

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 In Posada-Rios’ Presentence Investigation Report (PSR) the

probation officer calculated Posada-Rios’ base offense level as 40

based on the quantity of drugs attributable to him. That level was

increased by 2 levels because Posada-Rios possessed a firearm in

connection with his drug trafficking activities and by an

additional 3 levels for his role as a supervisor or manager in the

offense. The resulting total offense level of 45 was then reduced

to 43, the maximum offense level under the Sentencing Guidelines.

Because Posada-Rios’ offense level under the career criminal
provisions of Chapter Four of the guidelines was lower (37), it did

not apply. With a total offense level of 43 and a criminal history

category of VI, Posada-Rios’ guideline sentence was life in prison,

the sentence that the district court imposed. There was no error

in Posada-Rios’ sentence.

2. Mena

The probation officer calculated Mena’s base offense level on

counts 1, 3, 42, and 43 under USSG § 2D1.1 as 36, based on the

cocaine he negotiated to deliver to Wonda Cortes in 1991 and the

cocaine seized from the Nissan on August 11, 1992. For Mena’s

conviction on count 46, illegal reentry in violation of 8 U.S.C.

§ 1326(a), the probation officer calculated a base offense level of

8 under USSG § 2L1.2(a), which was increased by 16 levels under

USSG § 2L1.2(b)(2) because Mena had previously been deported after

being convicted for an aggravated felony, for an adjusted offense

level of 24. Under the grouping rules of USSG § 3D1.4 his

multiple-count adjustments calculated to only one unit, and his

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guideline level became the greater adjusted offense level of 36.

Mena was assigned to criminal history category II. The district

court adopted the PSR and found that Mena’s imprisonment range

under the sentencing guidelines was 210-262 months. The court

concluded, however, that Mena was subject to the statutory minimum

sentence of 240 months under 21 U.S.C. § 841(b)(1) for counts 1, 3,

42, and 43 based on his prior Texas drug conviction and that the

statutory maximum sentence on count 46 was then 180 months in

prison. The court sentenced Mena to concurrent sentences of 240

months in prison on counts 1, 3, 42, and 43 and a concurrent 180-

month sentence on count 46.

On appeal Mena does not challenge the manner in which the

probation officer and the district court grouped his counts of

conviction or that his prior state conviction constitutes a prior

conviction that requires a mandatory minimum sentence of 240

months. Instead, he argues that the district court erred in

considering the cocaine that he negotiated but never delivered to

Wonda Cortes, and that the district court erred in calculating his

sentence on count 46.

Because the district court sentenced Mena to the statutory

minimum based on his prior state drug conviction, the total amount

of cocaine attributable to Mena does not affect his guideline

calculation or his sentence on the conspiracy and controlled

substance violations. Because Mena’s guideline range on count 46

was based in part, under the grouping rules, on the amount of

-102-
cocaine attributed to him, the amount of cocaine did, however,

indirectly affect his guideline range on count 46.

A district court may hold a defendant accountable for an

unconsummated transaction unless the defendant did not intend and

was not reasonably capable of producing this amount. See USSG

§ 2D1.1, comment 12 (“In an offense involving negotiation to

traffic in a controlled substance, the weight under negotiation in

an uncompleted distribution shall be used to calculate the

applicable amount.”); United States v. Davis, 76 F.3d 82, 85 (5th

Cir. 1996). There was no evidence that Mena did not intend or

could not produce the cocaine to Wonda Cortes; their negotiations

apparently floundered over price.23 Accordingly, Mena has not shown

any error by the district court in including the cocaine that Mena

negotiated to sell to Cortes in calculating his base offense level

under § 2D1.1.

Mena’s second sentencing challenge is unclear. Under the

multiple-count grouping rules Mena’s guideline range on count 46

was 210-262 months. Because the statutory maximum under 8 U.S.C.

§ 1326(b)(2) on count 46 was 180 months at the time of Mena’s

conviction, the district court sentenced Mena to a concurrent

sentence of 180 months on that count. Mena cites no authority, and

23
In his brief Mena argues that the evidence only showed that
Cortes spoke with Mena about a possible purchase of 30 to 40
kilograms of cocaine, not the 50 kilograms referenced in Mena’s
PSR. Although there was also evidence in the record of a
discussion of 50 kilograms, even if Mena were correct on this
factual argument it would merely lower his base offense level by
two levels, which would not affect his sentence on any of his
counts of conviction.

-103-
presents no argument, why this sentence was not correct. He makes

only the conclusory argument that his “[b]ase [l]evel should have

been 8 plus 16, or 24, before the application of a 2-level decrease

for acceptance of responsibility.” (Mena’s brief at page 19)

Because this argument overlooks the effect of the grouping rules to

his sentence on count 46, we reject it and conclude that his 180-

month sentence on count 46 was proper.

3. Murga

The probation officer calculated a base offense level of 38

for Murga’s sentence on counts 1, 3, and 41 based on 162.2

kilograms of cocaine. That level was increased by 2 levels under

USSG § 3B1.1(c) for her role as an organizer, manager, leader, or

supervisor, resulting in an adjusted offense level of 40. For

Murga’s sentence on count 48, making a false statement on an

application for immigrant visa in violation of 18 U.S.C. § 1546(a),

the probation officer calculated a base offense level of 6 under

§ 2L2.2(a), increased 2 levels under USSG § 2L2.2(b)(1) because she

had previously been deported. Under the grouping rules of USSG

§ 3D1.4 her multiple-count adjustments were calculated to only one

unit, and her guideline level became the greater adjusted offense

level of 40. With a criminal history category of I, her guideline

range was 292-365 months in prison.24 The district court adopted

the PSR.

24
A statutory maximum sentence of 60 months applied to count
48.

-104-
 Murga first argues that the district court erred by holding

her accountable for 162.2 kilograms of cocaine. She argues that

the amount attributable to her is less than 125 kilograms, and

alternatively, not more than 148.9 kilograms. Although Murga

argues that the evidence relied on by the probation officer was

uncertain and not credible,25 she does not explain how she arrives

at her alternative drug quantity calculations. The district court

rejected a similar argument at Murga’s sentencing. Our review of

the record satisfies us that there was ample evidence to support

the amount of cocaine that the probation officer and the district

court attributed to Murga.

Murga also complains that the district court erroneously

increased her base offense level by 2 levels under § 3B1.1(c) for

her role in the offense. At Murga’s sentencing the district court

rejected this argument citing several instances in which Murga had

recruited other people to distribute cocaine for her. We also

reject this argument, which is essentially a disagreement with the

district court as to how her criminal activities should be

characterized. There was sufficient evidence for the district

court to conclude that Murga occupied a supervisory or management

role in the conspiracy.

Murga argues that the weapon found at her home at the time of

her arrest provides no basis for departure under USSG § 5K2.6.

25
To the extent that Murga contends that the probation officer
could not rely on FBI debriefings of confidential informants, she
is incorrect. See United States v. Golden, 17 F.3d 735, 736 (5th
Cir. 1994).

-105-
This argument is frivolous because the probation officer did not

recommend an upward departure or any adjustment to Murga’s

guideline range based on the weapon, and there was no mention of it

at the sentencing hearing. In fact, the district court sentenced

Murga to 292 months in prison, the lowest sentence possible under

the sentencing guidelines. We have considered Murga’s numerous

other objections to her sentence, including her conclusory chal-

lenges to the 60-month concurrent sentence she received on count

48, and conclude that none have merit.

4. Varon

Varon was sentenced on September 2, 1994, under the 1993

edition of the Sentencing Guidelines. The probation officer and

the district court applied a base offense level of 40 under USSG

§ 2D1.1, after attributing 608.4 kilograms of cocaine to Varon.

Varon received no enhancements and had a criminal history category

of I. This resulted in a guideline range of 292-365 months. The

district court sentenced Varon to 292 months in prison.

Varon’s only sentencing argument on appeal is that she is

entitled to be resentenced under Amendment 505 to the Sentencing

Guidelines, effective November 1, 1994. Under that amendment

Varon’s base offense level would be 38 instead of 40. As Varon

correctly states, this amendment is given retroactive effect under

USSG § 1B1.10(c). See United States v. Gonzalez-Balderas, 105 F.3d

981 (5th Cir. 1997). Whether to reduce a sentence based on a

subsequent change in the sentencing guidelines rests with the sound

-106-
discretion of the district court and the proper mechanism for

reviewing such a claim is a motion brought under 18 U.S.C.

§ 3582(c)(2). See Gonzalez-Balderas, 105 F.3d at 982. We

therefore dismiss this portion of Varon’s appeal without prejudice

to her right to seek relief from the district court.

5. Gamboa

Gamboa argues that the district court misapplied the

sentencing guidelines by refusing to reduce his offense level under

USSG § 3B1.2 for minimal or minor participation. Gamboa’s request

is premised on his argument that he is less culpable than Mena. A

defendant is not entitled to a reduction under § 3B1.2, however,

merely because he was less culpable than his codefendants; a

downward adjustment may only be appropriate if the defendant was

“substantially less culpable than the average participant.” United

States v. Zuniga, 18 F.3d 1254, 1261 (5th Cir. 1994). Gamboa bears

the burden of proving his mitigating role by a preponderance of the

evidence. Id. Because Gamboa has not established that his conduct

in the August 11, 1992, drug deal for which he was convicted on

counts 42 and 43 was substantially less culpable than Mena’s, the

district court did not abuse its discretion in denying him a

mitigating role adjustment.

6. Rios-Castano

Rios-Castano was convicted of counts 1 and 2, the RICO

conspiracy and substantive offenses. Under USSG § 2E1.1(a)(2) the

base offense level for racketeering is calculated based on the

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offense level applicable to the underlying racketeering activity.

Where, as here, there is more than one underlying racketeering act,

each racketeering act is treated as if it were contained in a

separate count of conviction. USSG § 2E1.1, comment 1. The

racketeering act that yields the greatest offense level is used to

determine the guideline range. Id. In this case the greater base

offense level was 43 for the murder of Carolyn Tippett.

On appeal Rios-Castano argues that the district court erred in

calculating his sentence based on the murder of Carolyn Tippett

because it was not a foreseeable consequence of his criminal

activity as required by USSG § 1B1.3(a)(1)(B) but was merely the

result of a personal dispute between Tippett and Edison Alvarez.

Rios-Castano made the same argument at sentencing before the

district court. The district court chose to credit the PSR’s

conclusion, based on a police report of the Tippett killing, that

her death occurred when Palomino, seeing that he had walked into a

trap in the parking lot of the Miami Beat Disco, grabbed Tippett

and used her as a human shield to protect himself from a fusillade

of bullets from Samuel Posada-Rios’ men who were waiting for him in

the parking lot. The police report noted that Tippett’s autopsy

reflected that she had sustained 14 bullet wounds. The district

court concluded that Rios-Castano could have reasonably foreseen

Tippett’s murder because he and other conspirators had gone to the

club to eliminate Palomino, a rival drug dealer. Because the

police report bore sufficient indicia of reliability, the probation

officer and the district court properly relied on it. Reviewing

-108-
the district court’s finding of Rios-Castano’s responsibility for

Tippett’s killing under a clear error standard, we conclude that

the court could properly choose to discredit the self-serving

testimony of Rios-Castano and credit instead the police report and

the previously announced intention of Rios-Castano and other

members of La Compania to go to the club to kill Palomino. Based

on that information, it was reasonable to conclude that Rios-

Castano could have foreseen that an innocent bystander could be

injured in an attempt to murder Palomino.

Rios-Castano also argues that the district court erred in

calculating his criminal history category. An offense level of 43

carries a mandatory life sentence irrespective of the defendant’s

criminal history category, and the transcript of Rios-Castano’s

sentencing makes it clear that the district court would not have

considered any grounds for any downward departure from the

guideline sentence. Any error committed by the district court in

calculating his criminal history category was therefore harmless.

See United States v. Rogers, 126 F.3d 655, 661 (5th Cir. 1997).

7. Gage

Gage argues that the district court misapplied the guidelines

by increasing his offense level by 2 levels for his participation

as an organizer, leader, manager, or supervisor pursuant to USSG

§ 3B1.1(c). At Gage’s sentencing the district court expressly

found that Gage was responsible for recruiting and directing

Charles White in his drug trafficking activities. Because the

evidence discussed in Part I.F., supra, supports that conclusion,

-109-
the district court did not err in increasing Gage’s base offense

level under § 3B1.1(c). See United States v. Palomo, 998 F.2d 253,

257 (5th Cir. 1993).

8. Jackquet

In determining Jackquet’s base offense level for counts 1, 2,

3, and 27 the probation officer concluded that Jackquet was

accountable for 43 kilograms of cocaine and calculated a base

offense level of 34 under USSG § 2D1.1 (applicable to at least 15

kilograms of cocaine but less than 50 kilograms of cocaine). The

district court adopted the PSR. On appeal Jackquet argues that the

court erred in the amount of drugs attributed to him.

Specifically, Jackquet argues that he should only be held

accountable for 12 kilograms of cocaine that Wonda Cortes testified

she delivered to him. He argues that the cocaine attributed to him

in Wonda Cortes’s drug ledgers “double counts” the cocaine she

testified about at trial and that he did not reasonably foresee the

drug purchases of the other conspirators that occurred in his

presence.

We are not persuaded by this argument. Our brief summary of

the facts in Part I.D.2.e. and f., supra, reflects direct sales of

18 kilograms of cocaine to Jackquet by Wonda Cortes (2 kilograms on

November 15, 1991; 7 kilograms on November 16, 1991; 4 kilograms on

December 10, 1991; 1 kilogram on December 11, 1991; and 4 kilograms

in January of 1992). Cortes delivered another 45 kilograms of

cocaine to Jackquet’s brother, Anthony Jerome Gage, at Jackquet’s

apartment in August of 1991 (see Part I.D.2.c., supra). This

-110-
cocaine was attributable to Jackquet both as an aider and abettor

pursuant to USSG § 1B1.3(a)(1)(A) and because it was reasonably

foreseeable to Jackquet that other drug dealers with whom he

conspired would deal in additional amounts of cocaine. The

district court did not err in using 34 kilograms to calculate

Jackquet’s base offense level on these counts.

IV. CONCLUSION

For the foregoing reasons, we VACATE Mena’s conviction and

sentence on count 1. In all other respects we AFFIRM the district

court’s judgments of conviction and sentences.

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