United States v. Kessler

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-50071
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID EUGENE KESSLER,
WILLIAM PEARSON KESSLER, AND
GEORGE ROBERT HURLBURT,

Defendants-Appellants.
_________________________________________________________________

Appeal from the United States District Court
for the Western District of Texas
(EP-97-CR-602-DB)
_________________________________________________________________
December 2, 1998
Before KING, GARWOOD, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

David Kessler, William Kessler, and George Hurlburt, the

defendants-appellants, challenge their individual convictions and

sentences relating to a conspiracy to distribute marijuana. We

affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
 On the evening of July 3, 1997, a confidential informant

tipped the United States Customs Service that a faded blue van

containing narcotics would be traveling at about 8:00 p.m. on

Interstate Highway 10 toward the area of North Loop and Horizon

Road in El Paso, Texas. The Customs Service positioned special

agents on Interstate 10 to conduct surveillance of the area, and

at about 8:05 p.m. Special Agent Jorge Balderrama (Balderrama)

spotted and began to follow a van meeting the informant’s

description east on Interstate 10. After losing sight of the van

and apparently following a different van, Balderrama regained

contact with the original blue van as it exited a ranch.

Balderrama turned to follow the van, and the van pulled over to

the side of the road; Balderrama turned around again, and he saw

the van traveling toward him. Balderrama turned around a third

time to follow the van, and this time the van increased speed.

Balderrama noticed that the side door to the van was open. He

also confirmed that the van was the original van he had spotted

by comparing its license plate number to partial plate

information he had obtained while following it earlier.

Balderrama stopped and searched the van, finding no

narcotics. The driver, Leonardo Valencia, told Balderrama that

the van’s side door was open because it was broken, but upon

inspection, Balderrama determined that the door would close and

was not broken. Balderrama asked Valencia where he was coming

from, and Valencia responded “from here,” “from my ranch, here,”

2
and “my little ranch here.” When asked for the address of the

ranch, Valencia responded “right here. Just right here.”

Balderama asked Valencia to cooperate and take him to the ranch

from which he came. Valencia responded, “Well, you know where I

came from. You saw me leaving there.” Upon hearing Balderrama

tell other agents that they did not need Valencia’s help in

finding the ranch, Valencia agreed to take the officers to the

ranch. During the trip to the ranch, Valencia remarked, “It’s

about the marijuana that was in the van.”

The ranch was enclosed by pipe fencing, and when the agents

arrived the gate to the property was open. The agents noticed a

sign next to the open gate that read “Car Parking,” with an arrow

pointing onto the ranch property. Valencia identified a barn

inside the gate as containing marijuana. The agents drove

through the open gate and entered a driveway, following the

sign’s directions toward parking.

When additional officers arrived, they approached the barn

that Valencia had indicated contained marijuana. Officer Frank

Hernandez stated that he smelled marijuana and heard voices as he

approached the barn. Hernandez subsequently looked through an

open door to the barn and saw boxes and an individual walking

next to a van. An officer asked the occupants of the building to

step outside, and all three appellants exited the barn and were

arrested. Incident to the appellants’ arrests, the agents

conducted security sweeps of the barn and the house. During the

3
security sweep of the barn, the agents saw bales of marijuana,

loose marijuana, a van filled with marijuana, scales, and three

pairs of gloves.

After conducting the security sweep, two agents left the

ranch to obtain a search warrant for the barn, the residence, and

the vehicles. The affidavit in support of the warrant did not

reference any observations made during the security sweep. The

agents returned to the ranch with a warrant three hours later and

searched the barn, yielding what they had found before, as well

as packing materials, an odor gun, cat litter, and a document

that appeared to be a drug ledger. The officers also found

$36,000 in cash in the house. In all, the agents found about

4000 pounds of marijuana, including 1800 pounds found in a van

parked inside the barn.

George Hurlburt (Hurlburt) allowed an FBI special agent to

search his trailer. Upon entering the trailer, the agent saw a

revolver on the night stand and crack cocaine and marijuana on a

bureau in the bedroom. After Hurlburt was advised of, and

waived, his constitutional rights, he disclaimed ownership of the

marijuana in the barn.

After William Kessler was advised of his constitutional

rights, he admitted that there was marijuana in the barn, but

claimed that he had only entered the barn twenty minutes earlier

to talk to Hurlburt and David Kessler, his brother. After

initially denying knowledge concerning who owned the ranch,

4
William Kessler admitted to working as the ranch foreman for the

actual property owners.1

The appellants, along with two other codefendants, were

charged with possession with intent to distribute marijuana, see

21 U.S.C. § 841(a)(1), and conspiracy with intent to distribute

marijuana, see 21 U.S.C. § 846. Appellants sought an order from

the trial court requiring the government to disclose the identity

of the confidential informant, which was denied. The appellants

also filed motions to suppress the evidence found in the barn,

which were denied after a hearing. Finally, the appellants

sought and were denied permission to depose a foreign witness.

Following a jury trial, William Kessler was convicted of

both counts. David Kessler and Hurlburt were convicted of the

conspiracy count and acquitted of the possession charge. David

Kessler and William Kessler were sentenced to 130 months of

imprisonment followed by five years of supervised release and

were ordered to pay a $2000 fine. Hurlburt received the same

penalty with five additional months of imprisonment.

Appellants then filed a motion for a new trial based on

newly discovered evidence. The evidence referred to in the

motion (collectively referred to as the Oklahoma City evidence)

consisted of government documents concerning investigations of

narcotics trafficking from El Paso to Oklahoma City, which the

1
The actual property owners, Marshall Scott Farris and
Julie Farris, were not charged with any crimes.

5
appellants maintain identify several individuals as supplying,

distributing, and originally packaging the drugs found in the

barn. Included in the Oklahoma City evidence were records

relating to a criminal case in Oklahoma City, in which the

appellants claim that the government admitted that other

individuals owned and distributed the drugs found in the barn the

night of the appellants’ arrests. The district court denied the

new trial motion, noting that the appellants’ indictments

specifically indicated that the conspiracy included “others

unknown to the Grand Jury.” In addition, the court found that

the Oklahoma City criminal trial was irrelevant to the issues in

the appellants’ trial. Following the district court’s denial of

their new trial motion, the appellants timely appealed.

II. DISCUSSION

The appellants make several arguments in support of their

appeals. The appellants first contend that the trial court erred

in denying their motion to suppress evidence, and that the

admissible evidence was insufficient as a matter of law to

support their convictions. Next, the appellants argue that the

trial court erred in refusing to force the government to reveal

the identity of the informant and in denying their motion to

depose a foreign witness. The appellants also argue that the

district court erred in denying their new trial motion based on

newly discovered evidence, and that the government’s failure to

disclose this evidence violated Brady v. Maryland, 373 U.S. 83

6
(1963). Lastly, the appellants maintain that the trial court

erred in its sentencing calculations. We consider each issue in

turn.

A. The Suppression Motion

The appellants challenge the agents’ entry onto the ranch,

the security sweep, their arrests, and the search conducted after

the agents obtained a warrant on Fourth Amendment grounds. In

reviewing a district court’s ruling on a motion to suppress, we

review questions of law de novo. See United States v. Baker, 47

F.3d 691, 692-93 (5th Cir. 1995); United States v. Alvarez, 6

F.3d 287, 289 (5th Cir. 1993). We consider the evidence in the

light most favorable to the prevailing party and accept the

district court’s factual findings unless clearly erroneous or

influenced by an incorrect view of the law. See Baker, 47 F.3d

at 693; Alvarez, 6 F.3d at 289.

The entry by the agents onto the ranch property and their

subsequent drive to the barn did not violate the appellants’

Fourth Amendment rights. It is true that warrantless searches

violate the Fourth Amendment unless they fall within a specific

exception to the general rule. See United States v. Karo, 468

U.S. 705, 717 (1984); United States v. Gonzales, 121 F.3d 928,

938 (5th Cir. 1997), cert. denied, 118 S. Ct. 726 (1998), and

cert. denied, 118 S. Ct. 1084 (1998). However, consent to search

is one such exception to the warrant requirement. See

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); United

7
States v. Jenkins, 46 F.3d 447, 451 (5th Cir. 1995). Here, the

agents relied on Valencia, a third party, to consent to the

search. When the government seeks to justify a consent search on

the theory that consent was lawfully obtained from a third party,

the government must prove by a preponderance of the evidence that

the third party had either actual or apparent authority to

consent. See Gonzales, 121 F.3d at 938; United States v. Jaras,

86 F.3d 383, 388-89 (5th Cir. 1996). To establish that a third

party had apparent authority to consent, the government need only

show that the agents “reasonably believed that the third party

was authorized to consent.” Gonzales, 121 F.3d at 938 (citing

Illinois v. Rodriguez, 497 U.S. 177, 188 (1990)); see Jaras, 86

F.3d at 389.

The district court found that the agents reasonably believed

Valencia had the authority to consent to the agents’ entering the

ranch. The court credited Balderrama’s testimony that Valencia

told him he left marijuana at “his ranch,” that he had seen

Valencia exit the ranch in the van, that Valencia had identified

the barn as the place where he had left marijuana, and that

Valencia had consented to their entry onto the property. The

district court also explicitly found Valencia’s testimony that he

had not consented incredible. The district court’s findings of

fact are not clearly erroneous, and they suffice to prove that

the agents reasonably believed Valencia had authority to consent

to their entry onto the property and their drive toward the barn.

8
See Rodriguez, 497 U.S. at 188-89; Gonzales, 121 F.3d at 939;

Iron Wing v. United States, 34 F.3d 662, 665 (8th Cir. 1994).

In addition, the driveway leading to the barn was not

entitled to Fourth Amendment protection. The Fourth Amendment

protects homes and the areas immediately surrounding homes, known

as the curtilage of the dwelling. See United States v. Dunn, 480

U.S. 294, 300 (1987). The primary issue in determining whether

an area is part of the curtilage is whether the area “is so

intimately tied to the home itself that it should be placed under

the home’s ‘umbrella’ of Fourth Amendment protection.” Id. at

301.

Areas that are accessible to the public, such as the

driveway leading to the barn, are afforded less protection than

residences. See, e.g., United States v. Thomas, 120 F.3d 564,

571-72 (5th Cir. 1997), cert. denied sub nom. Harmon v. United

States, 118 S. Ct. 721 (1998) and cert. denied, 118 S. Ct. 721

(1998) (finding that principal means of access to an apartment

was not protected by Fourth Amendment); Krause v. Penny, 837 F.2d

595, 597 (2d Cir. 1988) (stating that there is substantial

“authority for the proposition that areas such as driveways that

are readily accessible to visitors are not entitled to the same

degree of Fourth Amendment protection as are the interiors of

defendants' houses”).

In Dunn, the Supreme Court articulated a four-factor test as

an analytical tool in assessing whether an area is part of the

9
curtilage. See 480 U.S. at 301-03. The four factors are: (1)

the area’s proximity to the home, (2) whether the area is

included within an enclosure, (3) the uses to which the area is

put, and (4) the steps taken to protect the area from

observation. See id.

The district court’s factual findings, which the appellants

do not contest, strongly support a conclusion that, under Dunn,

the driveway at issue here is not part of the curtilage. First,

the district court found that the parking area where the agents

parked was twenty yards away from the home. From this finding,

we can infer that the driveway and the barn “should be treated as

an adjunct” of the house, and should not be granted the same

protection as the house itself. Dunn, 480 U.S. at 302; see

United States v. Traynor, 990 F.2d 1153, 1158 (9th Cir. 1993)

(finding that a structure about twenty five yards from a home was

not protected) (citing United States v. Pace, 955 F.2d 270, 273

(5th Cir. 1992)); United States v. Calabrese, 825 F.2d 1342, 1350

(9th Cir. 1987) (finding that a structure located fifty feet from

a residence was not protected under the Fourth Amendment).

While the district court found that the driveway area was

surrounded by a fence, we agree with its analysis that the second

Dunn factor weighs only slightly in favor of the appellants, as

the fence encloses a rural area much larger than the house

itself. As such, the fence does not “demark a specific area of

land immediately adjacent to the house that is readily

10
identifiable as part and parcel of the house.” Id. Instead, the

outer fence surrounding the ranch ostensibly indicates the limit

of land ownership, and does not clearly mark an area “around the

home to which the activity of home life extends.” Id. (internal

quotation marks omitted); see United States v. Soliz, 129 F.3d

499, 502 (9th Cir. 1997) (finding that not all of the area within

a chain link fence surrounding the entire property was entitled

to protection); United States v. Van Damme, 48 F.3d 461, 464 (9th

Cir. 1995) (finding that perimeter fence did not define area

afforded Fourth Amendment protection).

The district court’s factual findings regarding the third

and fourth Dunn standards strongly indicate that the driveway

should not be considered curtilage. The court found that the

driveway is used by ranch residents, visitors, and others for

access to the house and barn and for parking; that the gates to

the driveway were open; that the owner had not taken any steps to

indicate that permission was necessary to gain entrance to the

driveway; that there was no bell or buzzer with which the agents

could have announced their arrival; that the “Car Parking” sign

indicated that parking was readily available further down the

driveway; and that the pipe fence provided no visual privacy.

These factual findings, all amply supported by the record,

indicate that the driveway was put toward public use and that

there were no steps taken to protect the area from observation.

See Thomas, 120 F.3d at 571 (finding that an open gate and other

11
signs that no precautions had been taken to ensure privacy

provided strong evidence that an area was not curtilage).

Based on the application of the Dunn factors to its factual

findings, the district court properly concluded that the driveway

was not so intimately tied to the home that it should protected

by the Fourth Amendment. The agents therefore did not violate

the appellants’ Fourth Amendment rights in entering the ranch

property and driving on the driveway toward the barn.

See Thomas, 120 F.3d at 571-72; Pace, 955 F.2d at 275.

The appellants next argue that the agents’ security sweep of

the barn and the home violated their Fourth Amendment rights.

However, the district court found, and our review of the record

confirms, that the search warrant eventually obtained by the

agents to search the property did not contain any statements

regarding evidence found during the protective sweep. Because,

as we explain below, the agents’ reliance on the search warrant

was not unreasonable, the district court did not err in refusing

to suppress evidence on this ground. See United States v.

Hutchings, 127 F.3d 1255, 1259 (10th Cir. 1997) (finding no

Fourth Amendment violation based on alleged protective sweep

because officers relied on observations made before sweep in

warrant request); United States v. Warren, 16 F.3d 247, 253 (8th

Cir. 1994) (“The motion to suppress was properly denied because

the search warrant was not based on any evidence discerned from

the entry and protective sweep.”) (citing Segura v. United

12
States, 468 U.S. 796, 805 (1984)). We therefore need not address

the question of whether the search of the barn and house

conducted before the agents obtained the search warrant was valid

as a protective sweep under Maryland v. Buie, 494 U.S. 325, 334-

35 (1990).

The appellants next attack the validity of the search

warrant eventually obtained to search the property. We employ a

two-step process for reviewing a district court’s conclusion

concerning the sufficiency of a warrant. See United States v.

Richardson, 943 F.2d 547, 549 (5th Cir. 1991). First, we

determine whether the good-faith exception to the exclusionary

rule applies. See United States v. Leon, 468 U.S. 897, 922-23

(1984); United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir.

1992). Only if a novel legal question is presented or the good-

faith exception does not apply must we then “ensure that the

magistrate had a substantial basis for . . . conclud[ing] that

probable cause existed.” Illinois v. Gates, 462 U.S. 213, 238-39

(1983) (ellipses and brackets in original) (internal quotation

marks omitted). If the good-faith exception applies, the court

need not reach the question of probable cause. See Satterwhite,

980 F.2d at 320; United States v. Craig, 861 F.2d 818, 820 (5th

Cir. 1988) (“Principles of judicial restraint and precedent

dictate that, in most cases, we should not reach the probable

cause issue if a decision on the admissibility of the evidence

13
under the good-faith exception of Leon will resolve the

matter.”).

In Leon, the Supreme Court established the good-faith

exception, holding that “evidence obtained by law enforcement

officials acting in objectively reasonable good-faith reliance

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

chief, even though the affidavit on which the warrant was based

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

at 821 (citing Leon, 468 U.S. at 922-23). “Issuance of a warrant

by a magistrate normally suffices to establish good faith on the

part of law enforcement officers who conduct a search pursuant to

the warrant.” Id. However, an officer cannot establish good

faith reliance when a warrant is “based on an affidavit so

lacking in indicia of probable cause as to render official belief

in its existence entirely unreasonable.” Leon, 468 U.S. at 923

(internal quotation marks omitted).

The affidavit in support of the search warrant in this case

provided sufficient “indicia of probable cause” for reasonable

law enforcement officers to believe that the procured warrant was

valid. The affidavit recounted the circumstances concerning the

initial stop of Valencia, including his exit from the ranch, his

apparent counter-surveillance driving, and his statement that the

stop of his van concerned marijuana. The affidavit also related

that Valencia had taken the agents to the ranch and pointed out a

large building as containing marijuana. In addition, it stated

14
that after the agents had entered the property, they had seen

large bales of what they thought was marijuana inside the barn,

and that there was a strong odor of marijuana. Under these

circumstances, we believe that a reasonable officer could easily

have concluded that the affidavit contained probable cause

sufficient to justify issuance of the search warrant. Thus, the

good-faith exception applies, and the district court did not err

in denying the appellants’ motion to suppress on this basis.

Lastly, the district court did not err in concluding that

the warrantless arrests of the appellants were valid. The Fourth

Amendment requires that a warrantless arrest be based upon

probable cause. See United States v. Shugart, 117 F.3d 838, 846

(5th Cir. 1997), cert. denied, 118 S. Ct. 433 (1997); United

States v. Levine, 80 F.3d 129, 132 (5th Cir. 1996). Probable

cause exists when “the totality of facts and circumstances within

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

a reasonable person to conclude that the suspect had committed an

offense.” United States v. Hebert, 131 F.3d 514, 524 (5th Cir.

1997), cert. denied, 118 S. Ct. 1571 (1998) (citing United States

v. Wadley, 59 F.3d 510, 512 (5th Cir. 1995)); see Shugart, 117

F.3d at 846.

The agents who arrested the appellants had sufficient

knowledge to conclude that Hurlburt and the Kesslers had

committed an offense. The district court found at the

suppression hearing that Valencia told the agents there was

15
marijuana inside the barn. The agents smelled a strong odor of,

and saw bales of, marijuana through a barn door. The agents

heard the appellants’ voices inside the barn and saw them exit

the barn together. One of the appellants confirmed to the agents

Valencia’s statement that there was marijuana inside the barn.

One appellant, Hurlburt, had marijuana on his hands and clothing.

Based on these district court findings, all supported by the

record, the agents had probable cause to believe that the

appellants had committed an offense. Their warrantless arrests,

therefore, did not violate the appellants’ Fourth Amendment

rights.

B. The Sufficiency of the Evidence

The appellants next contend that the evidence presented at

trial was insufficient as a matter of law to support their

convictions for conspiracy to possess with intent to distribute

marijuana and/or possession with intent to distribute marijuana.

In reviewing a challenge based on factual sufficiency, this court

must determine whether a rational trier of fact could have found

that the evidence established guilt beyond a reasonable doubt.

See United States v. Hemmingson, 157 F.3d 347, 353 (5th Cir.

1998); United States v. Dupre, 117 F.3d 810, 818 (5th Cir. 1997),

cert. denied, 118 S. Ct. 857 (1998). The court must view the

evidence in the light most favorable to the government and accept

all reasonable inferences in the government’s favor. See

Hemmingson, 157 F.3d at 353; United States v. Ivey, 949 F.2d 759,

16
766 (5th Cir. 1991). Inconsistency in a jury’s verdict is not

ground for appeal. See Harris v. Rivera, 454 U.S. 339, 345

(1981); United States v. Price, 750 F.2d 363, 365 (5th Cir.

1985).

Only William Kessler was convicted of the § 841(a)(1)

possession with intent to distribute charge. To prove a

violation of § 841(a)(1), the government must show (1) knowing

(2) possession (3) with intent to distribute. See United States

v. Ramirez, 954 F.2d 1035, 1039 (5th Cir. 1992); United States v.

Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th Cir. 1990).

Possession of a controlled substance may be actual or

constructive, may be joint among several defendants, and may be

proved by direct or circumstantial evidence. See United States

v. Pigrum, 922 F.2d 249, 255 (5th Cir. 1991); United States v.

Gardea Carrasco, 830 F.2d 41, 45 (5th Cir. 1987). Constructive

possession is "the knowing exercise of, or the knowing power or

right to exercise, dominion and control over the proscribed

substance." Gardea Carrasco, 830 F.2d at 45 (internal quotation

marks omitted); see Pigrum, 922 F.2d at 255. The intent to

distribute can be inferred from the amount of marijuana alone.

See United States v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994);

United States v. Martinez-Mercado, 888 F.2d 1484, 1491 (5th Cir.

1989). The jury could reasonably have determined that William

Kessler had knowing possession of marijuana based on the evidence

presented at trial. The agents saw him exit from the barn, which

17
contained about 4000 pounds of marijuana in plain view. He also

explicitly told the agents that there was marijuana inside the

barn. Likewise, the jury could have inferred his intent to

distribute the marijuana from the enormous quantity of the drug

found on the scene. See Martinez-Mercado, 888 F.2d at 1491

(stating that a jury could have inferred intent to distribute

from evidence that the defendant possessed three hundred pounds

of marijuana). The scene at the barn also evidenced an intent to

distribute. It appeared that the marijuana was being placed in

large boxes surrounded by cat litter to mask the odor. The

agents found tape and empty boxes in the barn, from which the

jury could have reasonably inferred that William Kessler was

packaging the drugs. The agents also found what appeared to be a

drug ledger in the barn, which supports a finding of commercial

drug distribution. In short, the circumstantial evidence in this

case is considerably more than sufficient to support William

Kessler’s possession with intent to distribute conviction.

All three appellants argue that the evidence was

insufficient to support their convictions for conspiring with

intent to distribute marijuana, in violation of 21 U.S.C. § 846.

In order to establish a conspiracy under § 846, the government

must prove beyond a reasonable doubt that a conspiracy existed

and that the defendant knowingly and voluntarily became a part of

the conspiracy. See United States v. Featherson, 949 F.2d 770,

774 (5th Cir. 1991). These elements need not be shown by direct

18
evidence; an inference from circumstantial evidence suffices.

See United States v. Espinoza-Seanez, 862 F.2d 526, 536-37 (5th

Cir. 1988). The conspiratorial agreement can be inferred from

concert of action. See id. at 537.

The crux of the appellants’ argument is that they were

“merely present” in the barn and that there is no evidence

specifically linking them to a conspiracy with intent to

distribute the marijuana found inside the barn. Although it is

true that “mere presence” alone will not support an inference of

participation in a conspiracy, see id. at 537, presence combined

with other circumstantial evidence is sufficient, see United

States v. Westbrook, 119 F.3d 1176, 1189 (5th Cir. 1997), cert.

denied sub nom. Peoples v. United States, 118 S. Ct. 1059 (1998),

and cert. denied sub nom. Green v. United States, 118 S. Ct. 1060

(1998). Rational inferences from the evidence presented at trial

belie the appellants’ claim that they were merely present inside

the barn and provide sufficient evidence of concert of action.

The three appellants emerged together from the barn, in which the

4000 pounds of marijuana was found scattered on the floor, in

boxes, in bundles, and inside a van. There were three sets of

gloves found inside the barn, near packing materials such as

tape, boxes, and cat litter. Several of the boxes were in

various stages of packaging. Agents found marijuana residue on

Hurlburt’s clothes and hands. “[P]articipation in a conspiracy

can be inferred from a development and collocation of

19
circumstances.” United States v. Basey, 816 F.2d 980, 1002 (5th

Cir. 1987) (internal quotation marks omitted). The collocation

of circumstances in this case overwhelmingly supports the jury’s

conclusion that the appellants conspired to violate the narcotics

laws.

C. The Identity of the Confidential Informant

Appellants next contend that the district court erred in

refusing to order the disclosure of the identity of the

confidential informant. In determining whether to order the

disclosure of the identity of a government witness, a trial court

must balance three factors: (1) the level of the informant’s

involvement in the alleged activity, (2) the helpfulness of

disclosure to the asserted defense, and (3) the government’s

interest in nondisclosure. See United States v. Singh, 922 F.2d

1169, 1171-72 (5th Cir. 1991); United States v. De Los Santos,

810 F.2d 1326, 1332 (5th Cir. 1987). This court may reverse a

conviction on the basis of the trial court’s decision not to

force the release of the identity of a government informant if

the trial court abused its discretion in balancing these factors.

See United States v. Vizcarra-Porras, 889 F.2d 1435, 1438 (5th

Cir. 1989); De Los Santos, 810 F.2d at 1332. Any factual

findings on which the court’s legal conclusion rests are subject

to the clearly erroneous standard. See Vizcarra-Porras, 889 F.2d

at 1438.

20
 The district court did not abuse its discretion in refusing

to order the government to divulge the identity of the informant.

The appellants fail to offer any evidence that the informant in

this case was anything more than a mere tipster. We have

previously held that under the first factor, this amount of

participation does not compel disclosure. See United States v.

Hickman, 151 F.3d 446, 459 (5th Cir. 1998); United States v.

Cooper, 949 F.2d 737, 749 (5th Cir. 1991). Likewise, under the

second factor, the appellants do not explain why knowing the

identity of the informant would aid their defense; their

statement that evidence obtained from the tipster would exculpate

them is merely conjecture. See Cooper, 949 F.2d at 749; United

States v. Gonzales, 606 F.2d 70, 75 (5th Cir. 1979) (stating that

“it has been frequently held that mere conjecture or supposition

about the possible relevancy of the informant’s testimony is

insufficient to warrant disclosure”). Because the appellants

failed to establish the necessity for revealing the identity of

the tipster, the trial court need not have balanced the

government’s interest in nondisclosure. See United States v.

Sanchez, 988 F.2d 1384, 1392 (5th Cir. 1993); Cooper, 949 F.2d at

749-50 (citing United States v. Kerris, 748 F.2d 610 (11th Cir.

1984)). Our review of the record leads to the conclusion that

the district court did not abuse its discretion in refusing to

order the government to divulge the identity of its informant.

D. The Foreign Deposition

21
 The appellants next protest the district court’s denial of

their request to depose Rafael Medrano in Mexico. They argued to

the trial court that Medrano would testify that he did not expect

the appellants to be in the barn on the night of their arrests

and that the appellants did not have prior knowledge of the

marijuana’s presence inside the barn until shortly before their

arrests. The district court, applying Federal Rule of Criminal

Procedure 15(a), denied the appellants’ request.

Federal Rule of Criminal Procedure 15(a) provides in

relevant part:

Whenever due to exceptional circumstances of the case
it is in the interest of justice that the testimony of
a prospective witness of a party be taken and preserved
for use at trial, the court may upon motion of such
party and notice to the parties order that testimony of
such witness be taken by deposition.

The district court found that there were no exceptional

circumstances under Rule 15(a). We review the district court’s

denial of the appellants’ motion to take Medrano’s deposition in

Mexico for an abuse of discretion. See United States v. Dillman,

15 F.3d 384, 389 (5th Cir. 1994); United States v. Omene, 143

F.3d 1167, 1170 (9th Cir. 1998). The district court has “broad

discretion in granting rule 15(a) motions, and in determining the

particular characteristics of the case to determine whether the

‘exceptional circumstances’ requirement has been met.” United

States v. Allie, 978 F.2d 1401, 1405 (5th Cir. 1992) (internal

quotation marks omitted).

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 In Dillman, we expressly stated that although “the textual

words of Rule 15 do not expressly require ‘materiality,’ it is

emphatically clear to us that the words ‘in the interest of

justice’ call for the deposition to offer evidence that is

material.” 15 F.3d at 389 (citing United States v. Drogoul, 1

F.3d 1546, 1552 (11th Cir. 1993); United States v. Ontiveros-

Lucero, 621 F. Supp. 1037, 1038 (W.D. Tex. 1985), aff’d, 790 F.2d

891 (5th Cir. 1986)). The district court expressly found in this

case that Medrano’s deposed testimony would be immaterial because

it was uncontested that the appellants were in the barn with the

marijuana on the night of their arrests. In addition, the

district court credited the appellants’ testimony, taken during

the suppression hearing, that the appellants had possession and

control of the barn for the entire evening the night of their

arrests. Therefore, testimony concerning Medrano’s expectation

as to the identity of his co-conspirators was not relevant,

according to the district court, in determining whether the

appellants possessed and were conspiring to distribute the

marijuana found inside the barn.

The district court’s decision not to permit the foreign

deposition was not an abuse of its considerable discretion. When

Rule 15(a) was adopted, “[i]t was contemplated that in criminal

cases depositions would be used only in exceptional situations.”

Fed. R. Crim. P. 15 advisory committee’s note 2; see United

States v. Hernandez-Escarsega, 886 F.2d 1560, 1569-70 (9th Cir.

23
1989). The proposed testimony in this case would not have

provided any evidence to undermine an element of either of the

offenses. Medrano’s testimony would have been collateral to the

evidence that the appellants were in the barn with 4000 pounds of

marijuana in various states of packaging with packaging materials

found around them. The district court was within its discretion

to credit the appellants’ own testimony that they were in

possession and control of the barn on the night of their arrests.

At best, therefore, Medrano’s testimony would have supported an

inference that he did not know who his co-conspirators would be,

an issue immaterial to the question of whether the appellants

were guilty of possessing or conspiring to distribute marijuana.

Thus, we decline to find that the district court abused its

discretion in denying the appellants’ motion for a foreign

deposition under Rule 15(a). See United States v. Aggarwal, 17

F.3d 737, 742 (5th Cir. 1994) (affirming a district court’s

denial of a Rule 15(a) motion in part because the proposed

deponent testimony was immaterial); cf. United States v. Farfan-

Carreon, 935 F.2d 678, 679-80 (5th Cir. 1991) (finding that the

district court abused its discretion in denying defendant’s 15(a)

motion where proposed deposition testimony would be directly

relevant to an element of the charged offense).

E. The Newly Discovered Evidence

The appellants next argument concerns the Oklahoma City

evidence, which the appellants claim identifies other individuals

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as the true owners of the marijuana found inside the barn the

night they were arrested. They assert that this suppression

violated their due process rights under Brady v. Maryland, 373

U.S. 83 (1963), and that the district court erred in denying

their new trial motion based on this newly discovered evidence.

We discuss each issue in turn.

We review the district court's Brady determination de novo.

See United States v. Dixon, 132 F.3d 192, 199 (5th Cir. 1997),

cert. denied, 118 S. Ct. 1581 (1998); United States v. Green, 46

F.3d 461, 464 (5th Cir. 1995). To succeed on their Brady claims,

the appellants must show (1) that the prosecution suppressed or

withheld evidence (2) favorable to their defense and (3) material

to guilt or punishment. See Brady, 373 U.S. at 87; United States

v. Aubin, 87 F.3d 141, 148 (5th Cir. 1996), cert. denied, 117 S.

Ct. 965 (1997). Undisclosed evidence is material if “there is a

reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been

different.” United States v. Bagley, 473 U.S. 667, 682 (1985).

A reasonable probability is one that “‘undermines confidence in

the outcome of the trial.’” Kyles v. Whitley, 514 U.S. 419, 434

(1995) (quoting Bagley, 473 U.S. at 678).

The appellants’ principal contention is that the evidence,

specifically the testimony of Michael Bakios, a government agent

testifying in the Oklahoma City criminal trial, exculpates them

by proving that the marijuana found in the barn was not owned by

25
them. Instead, Bakios testified, the marijuana belonged to

Javier Contreras and another individual, Rolando Samaniego, who

was the purported chief distributor of the drugs. The appellants

claim that this evidence directly refutes the government’s

assertion at their trial that this case was “one of the few times

you saw the source of supply meet the distribution network in a

drug deal in a drug transaction,” and that the “suppliers and the

distributors were caught together.”

The Oklahoma City evidence is not material. At best, this

evidence supports an inference that the appellants were part of a

larger conspiracy, perhaps including Contreras and Samaniego.

This inference is irrelevant--the government never alleged that

the appellants were the only distributors and suppliers of the

marijuana. In fact, as the district court pointed out, the

appellants’ indictment stated that the conspiracy involved

“others unknown to the Grand Jury.”

Title to the marijuana is not an element of either offense

with which the appellants were charged. Regarding the possession

charge, the government merely needed to prove that the appellants

knowingly possessed the drugs with an intent to distribute them.

As discussed above, possession under § 841(a)(1) can be

established by showing that the defendant exercised dominion and

control over the marijuana. See Gardea Carrasco, 830 F.2d at 45.

Whether the marijuana was part of a larger conspiracy is

irrelevant to the fact that William Kessler was found with the

26
marijuana on the night of his arrest. On the conspiracy charge,

the government’s burden was simply to prove that the appellants

knowingly and voluntarily became a part of an existing

conspiracy. The possibility that the conspiracy was not limited

to the appellants and included others, including Contreras and

Samaniego, is inconsequential. It is well established that one

may be convicted of conspiracy without knowing all the details or

all the participants of the unlawful scheme. See United States

v. Garcia Abrego, 141 F.3d 142, 155 (5th Cir.), cert. denied, 119

S. Ct. 182 (1998) (citing United States v. Westbrook, 119 F.3d

1176, 1189 (5th Cir. 1997)); United States v. Greenwood, 974 F.2d

1449, 1457 (5th Cir. 1992) (citing United States v.

Fernandez-Roque, 703 F.2d 808, 814-15 (5th Cir. 1983)). Because

the disclosure of additional conspirators does not undermine our

confidence in the outcome of the trial, we find that this

evidence is immaterial and the appellants’ Brady claim must fail.

The appellants also maintain that the district court erred

in denying their motion for a new trial based on the newly

discovered Oklahoma City evidence. We review a denial of a new

trial based on newly discovered evidence for an abuse of

discretion. See United States v. Jaramillo, 42 F.3d 920, 924

(5th Cir. 1995); United States v. Miliet, 804 F.2d 853, 859 (5th

Cir. 1986). We disfavor these motions and view them with great

caution. See Jaramillo, 42 F.3d at 924; United States v. Pena,

949 F.2d 751, 758 (5th Cir. 1991). To receive a new trial on the

27
basis of newly discovered evidence, a defendant must prove that

(1) the evidence is newly discovered and was unknown to the

defendant at the time of trial; (2) the failure to detect the

evidence was not due to a lack of diligence by the defendant; (3)

the evidence is not merely cumulative or impeaching; (4) the

evidence is material; and (5) the evidence introduced at a new

trial would probably produce an acquittal. See Jaramillo, 42

F.3d at 924; United States v. Time, 21 F.3d 635, 642 (5th Cir.

1994). Unless each element is satisfied, the motion for a new

trial must be denied. See United States v. Gresham, 118 F.3d

258, 267 (5th Cir. 1997), cert. denied, 118 S. Ct. 702 (1998);

Jaramillo, 42 F.3d at 924.

We find no merit to the appellants’ argument that the

district court abused its discretion in denying the new trial

motion. As discussed in our analysis of the Brady issue, the

evidence is not material; the possibility that the appellants

were part of a larger conspiracy and that not all alleged

conspirators were tried together in the same trial does not

exculpate the appellants in any way. In addition, the appellants

must fail with regard to the fifth new trial element, as evidence

is only material if “there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the

proceeding would have been different.” Bagley, 473 U.S. at 682.

Therefore, under the fifth element, we are confident that the

evidence would not have produced an acquittal. The appellants

28
have failed to prove their entitlement to a new trial under the

fourth and fifth elements; we need not consider the others.

Consequently, we find no indication that the district court

abused its discretion in refusing to grant the appellants’ motion

for new trial.

F. The Calculation of the Sentences

Lastly, the appellants argue that the district court erred

in basing their sentences upon the 3987 pounds of marijuana found

throughout the barn from which the appellants emerged.

Specifically, the appellants assert that the district court erred

because only a small percentage of the bundled substance found in

the barn was tested, because it included the marijuana found

inside the van parked in the barn, and because it did not make

foreseeability findings related to the marijuana.

The trial court’s determination of the amount of drugs

attributable to a defendant at sentencing is a factual finding

reviewable under the clearly erroneous standard. See United

States v. Alix, 86 F.3d 429, 436 (5th Cir. 1996); United States

v. Ponce, 917 F.2d 841, 842 (5th Cir. 1990). A clearly erroneous

finding is one that is not plausible in the light of the record

viewed in its entirety. See Anderson v. City of Bessemer City,

470 U.S. 564, 573 (1985); United States v. Murillo, 902 F.2d

1169, 1173 (5th Cir. 1990) (applying the Anderson standard in a

sentencing guideline context). In determining drug quantities,

the district court may consider any evidence which has

29
"sufficient indicia of reliability." United States Sentencing

Guidelines Manual § 6A1.3, commentary; see United States v.

Manthei, 913 F.2d 1130, 1138 (5th Cir. 1990). This evidence may

include estimates of the quantity of drugs for sentencing

purposes. See United States v. Sherrod, 964 F.2d 1501, 1508 (5th

Cir. 1992); United States v. Coleman, 947 F.2d 1424, 1428 (10th

Cir. 1991). The district court's factual finding of the amount

of drugs involved must be supported by what it could fairly

determine to be a preponderance of the evidence. See United

States v. Thomas, 932 F.2d 1085, 1091 (5th Cir. 1991).

The presentence report (PSR) recommended that William

Kessler be held accountable for 1808.50 kilograms (3987 pounds)

of marijuana, the quantity of marijuana seized from the barn and

from inside the van parked in the barn. The probation office

recommended that Hurlburt and David Kessler be held accountable

for this quantity as well as an additional 498.96 kilograms of

marijuana seized from them in Mississippi in a different case.

Hurlburt and David Kessler objected that the marijuana from the

Mississippi case should not be used to determine their sentences,

and the district court granted their objection. All appellants

objected that they should not be held accountable for the

marijuana inside the van and that they should not be held

accountable for any substance not actually tested. These

objections were overruled.

30
 A presentence report generally bears sufficient indicia of

reliability to be considered as evidence in making factual

determinations required by the sentencing guidelines. See United

States v. Alfaro, 919 F.2d 962, 966 (5th Cir. 1990); Murillo, 902

F.2d at 1173. Here, there is nothing to suggest that the PSR is

unreliable; the appellants offer no evidence, save for their

unsworn objections, contradicting its conclusions. The district

court was therefore free to adopt the PSR. See United States v.

Gray, 105 F.3d 956, 969 (5th Cir.), cert. denied sub nom.

Luchkowek v. United States, 117 S. Ct. 1326 (1997), and cert.

denied, 117 S. Ct. 1856 (1997), and cert. denied sub nom. Satz v.

United States, 117 S. Ct. 2530 (1997); United States v.

Rodriguez, 897 F.2d 1324, 1327 (5th Cir. 1990).

The district court therefore did not clearly err in

sentencing the appellants based on the full amount of marijuana

found inside the barn on the night of their arrests. Other than

objecting to the PSR, the appellants provide no support for their

assertions that not all of the substance found in the barn was

marijuana and that they should not be held accountable for the

marijuana found inside the van parked in the barn. The court was

permitted to rely on the PSR conclusions and the trial testimony

that trained agents determined that all of the substance in the

barn was marijuana, and that the marijuana found in the van was

part of the repackaging operation being conducted in the barn.

These findings are plausible in light of the record, and we will

31
not disturb them.2 See Manthei, 913 F.2d at 1138 (upholding

district court’s drug quantity findings based on presentence

report).

Finally, the appellants’ contend that the district court

erred in failing to make an express finding that the

conspiratorial activity was foreseeable. We find no merit to

this claim. U.S.S.G. § 1B1.3 requires that in a conspiracy, drug

quantities reasonably foreseeable to the defendant and those

quantities with which he is directly associated be used to

determine the offense level. We have rejected the proposition

that a court must make a “catechismic regurgitation of each fact

determined” when the findings in the PSR at issue are clear

enough that the reviewing court is not left to second-guess the

basis for the sentencing decision. United States v. Carreon, 11

F.3d 1225, 1231 (5th Cir. 1994) (quoting United States v.

Sherbak, 950 F.2d 1095, 1099 (5th Cir. 1992)); see United States

v. Hooten, 942 F.2d 878, 881 (5th Cir. 1991). Here, the PSR set

forth specific facts demonstrating that all of the marijuana

found in the barn was part of a common scheme or plan and that it

was reasonably foreseeable to the appellants that the entire

amount was part of the criminal activity. No appellant has

2
Appellants argue that a district court cannot properly
rely on a presentence report in a sentencing hearing because it
is hearsay not subject to an exception. This is incorrect. The
Federal Rules of Evidence regarding hearsay are not applicable to
sentencing proceedings. See Fed. R. Evid. 1101(d)(3); Manthei,
913 F.2d at 1138.

32
presented any evidence remotely suggesting that all of the

marijuana in the barn should not have been attributed to him

because he did not reasonably foresee the actions of another

conspirator. The district court simply sentenced each appellant

based on the amount of drugs actually found in the barn, which

was under the control of each appellant at the time of his

arrest. Therefore, upon our review of the record we find that

the district court committed no error in sentencing the

appellants based on the entire amount of marijuana found inside

the barn.

III. CONCLUSION

For the foregoing reasons, the appellants’ convictions and

sentences are AFFIRMED.

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