United States v. Perez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 19, 2007

Charles R. Fulbruge III
Clerk
No. 05-51373

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARTHA ESQUIVEL PEREZ; MARIA GUADALUPE FONCECA,

Defendants-Appellants.

Appeals from the United States District Court
for the Western District of Texas

Before GARWOOD, WIENER, and CLEMENT, Circuit Judges.

GARWOOD, Circuit Judge:*

Appellants Fonceca and Perez were found guilty by a jury of

conspiracy to possess with intent to distribute in excess of 500

grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1)

and 846, and of conspiracy to commit money laundering in

violation of 18 U.S.C. § 1956(h). Their convictions arose out of

their participation in a vast methamphetamine distribution

conspiracy that stretched from California to Texas, and involved

numerous transactions and conspirators. Fonceca was identified

*
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this opinion should not be published and is not precedent except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.
as the supplier of the methamphetamine distributed in Texas and

also as a participant in several covert monetary or financial

transactions designed to facilitate the conspiracy to distribute

methamphetamine. Perez was shown to be a courier, or mule, for

the organization, illegally transporting money and

methamphetamine between California and Texas.

Both appellants challenge their convictions, contending that

venue in the Western District of Texas was improper. In

addition, Fonceca also challenges the sufficiency of the evidence

supporting her conviction for money laundering conspiracy,

alleges that the district court erred by restricting her cross-

examination of a government witness and co-conspirator,

Dominguez, and by refusing to order disclosure of a government

agent’s reports or debriefing notes, and also argues that the

district court erred in denying her motion for mistrial due to

the improper admission of 404(b) evidence through witness

testimony. Perez also challenges her sentence, claiming the

district court erred by sentencing her to a sentence longer than

that of her cooperating co-conspirators.

We affirm.

I. Factual Background

This appeal emerges from a case pertaining to a drug

distribution conspiracy that stretched between southern

California and Texas, involving numerous conspirators, copious

2
amounts of methamphetamine, and many financial transactions

varying in nature. In early January 1998, Rudy Ayala (Ayala) and

others began acquiring large amounts of methamphetamine from

sources in Texas, California, and Mexico to distribute in the

Dallas area. When the head of the organization, Valente

Martinez, was arrested in 1999, Ayala assumed control of the

Dallas-area drug distribution activities. In July or August

2000, Ayala met Felipe Dominguez (Dominguez), an individual from

southern California who was visiting Dallas. They soon realized

they had a business compatibility—Ayala needed methamphetamine to

distribute and Dominguez ostensibly had sources in California

from whom he could obtain the drugs.

After a few methamphetamine–cash exchanges in which

Dominguez and his wife transported methamphetamine from

California to Texas themselves, Ayala flew to California to meet

the source. There he met the ultimate supplier to the

conspiracy, appellant Fonceca, who agreed to continuously supply

Ayala and Dominguez with methamphetamine.

Ayala began receiving biweekly shipments in ten-pound

amounts of methamphetamine fronted by Fonceca and transported by

Dominguez from August 2000 to March 2001. In mid-September 2000,

after Dominguez became uncomfortable with transporting drugs

himself, Fonceca arranged for her friend, Perez, from Phoenix,

Arizona to begin transporting the methamphetamine from California

3
to Texas in exchange for $1,000 per pound of methamphetamine

transported. Perez ultimately made an estimated thirteen trips

transporting methamphetamine or cash money between California and

Texas. Perez often used Amtrak trains or Greyhound buses to

travel, concealing the drugs or money by taping packages to her

body underneath a large shirt. Other times she drove a blue

Astro van. Another courier for the conspiracy, Steven Carrasco

(Carrasco), would also make deliveries of methamphetamine, and

several times drove vehicles to California for Ayala. The

vehicles were to be received as payments for drugs and often had

large amounts of cash hidden in the door panels. Several times

Fonceca received vehicles from Ayala in exchange for

methamphetamine, and Ayala never put the vehicles’ titles in his

name nor transferred title when Fonceca took possession.

Once the methamphetamine arrived in Dallas, Ayala would cut

the methamphetamine and then would front it to Fernando Ramirez,

Jimmy Nguyen and others, who would distribute it to Brad Mills

and others. Brad Mills would then sell the methamphetamine to

parties in Waco and West, both in the Western District of Texas.

Based on the cooperating co-conspirators’ testimony and

government’s investigation, Perez was held accountable for the

distribution of 130 pounds of methamphetamine. Perez was

sentenced to concurrent terms of 292 months’ imprisonment for

conspiring to possess with intent to distribute methamphetamine

4
(Count One) and of 240 months for conspiracy to launder money

(Count Two).1 Fonceca was held accountable for the distribution

of 140 pounds of methamphetamine, and was sentenced to concurrent

terms of 294 months for conspiracy to possess with intent to

distribute (Count One) and of 240 months for money laundering

(Count Two).2

II. Discussion

A. Venue in Western District of Texas

Both appellants assert that, with respect to each count,

the government failed to offer evidence sufficient to support

venue in the Western District of Texas. Since the appellants’

conspiracies of money laundering and methamphetamine possession

with intent to distribute were intertwined, the venue-propriety

analysis is generally the same for each count with which the

appellants were charged. “[W]e previously have said that ‘[w]e

review all questions concerning venue under the abuse of

discretion standard.’” United States v. Strain, 396 F.3d 689, 692

(5th Cir. 2005) (quoting United States v. Brown, 250 F.3d 907,

1
On the drug conspiracy count Perez was sentenced to five
years’ supervised release; on the money laundering conspiracy she
was sentenced to two years’ supervised release concurrent with
that on the drug count. A fine of $500 (below guideline because
of inability to pay) was imposed on each count.
2
On Count One a ten year term of supervised release was
imposed; on Count Two the term of supervised release was three
years, concurrent with that on Count One. A fine of $1,000
(below guideline range due to inability to pay) was imposed on
each count.

5
912 (5th Cir. 2001)). However, both appellants contend there was

insufficient evidence presented at trial to support venue on

either count so the district court erred in denying their motions

for directed verdict at the conclusion of the case. Hence, “the

relevant question for this court is whether the Government

presented the jury with sufficient evidence to support a finding

that [the defendants’] offense[s] ‘[were] begun, continued or

completed in the Western District of Texas.’” Id.

“[C]ircumstantial evidence alone is sufficient to establish

venue” so long as venue is proved by a preponderance of the

evidence. United States v. Loe, 248 F.3d 449, 465 (5th Cir.

2001).3

We have repeatedly held that, for continuing offenses like

those charged here, “venue in conspiracy cases is proper in any

district where the agreement was formed or where an overt act in

furtherance of the conspiracy was performed.” United States v.

Pomranz, 43 F.3d 156, 158–59 (5th Cir. 1995); 18 U.S.C.

§ 3237(a); see also United States v. Solis, 299 F.3d 420, 445

n.76, n.77 (5th Cir. 2002); United States v. Winship, 724 F.2d

1116, 1125 (5th Cir. 1984)). Therefore, in this case, venue may

3
Since the allegations of the indictment are sufficient to
support venue in the Western District of Texas, complaint as to
venue was properly raised by defendants’ Rule 29(a), FED. R. CRIM.
P., motions made at the close of the government’s case in chief
(neither defendant having thereafter presented any evidence).
See Strain, 396 F.3d at 693.

6
permissibly lie in any district where an overt act in furtherance

of the conspiracies was committed—even if appellants themselves

never entered the district at issue. United States v. Caldwell,

16 F.3d 623, 624 (5th Cir. 1994); United States v. Parrish, 736

F.2d 152, 158 (5th Cir. 1984). And this is so even though an

overt act is not an element of the conspiracy charged in either

count here. See Whitfield v. United States, 125 S.Ct. 687, 690-

93 (2005). It has been stated that for this purpose:

“The act must occur subsequent to the formation of the
conspiracy agreement and prior to or in completion of
the conspiratorial objective. It also must have been
done in furtherance of the accomplishment of that
objective . . . No distinctions are drawn based on the
importance of the act to the accomplishment of the
objective or on the legality of the act. A simple and
commonplace legal activity may be sufficient, even
though the action may be one that would have been taken
in any event even had there been no illegal purpose.
The act can be that of a single conspirator or even an
innocent agent who is acting at his direction. The
other conspirators need not have counseled the
commission of the act nor even have been aware that it
was to be done.”4 (footnotes omitted)

4
4 LaFave, Israel & King, Criminal Procedure (2d Ed.
1999), § 16.2(f) at 538 (footnotes omitted). See also, e.g.,
United States v. Johnson, 165 F.2d 42, 45 (3d Cir. 1947) (“. . .
it is not necessary that an overt act in furtherance of
conspiracy necessarily be a criminal act . . . an innocent act by
a third party, if caused by a previous act or contact on the part
of one of the conspirators, would be enough . . . the filing of
the trustee’s report . . . itself a perfectly legal act, may be
an overt act in furtherance of the conspiracy if such filing is
part of the general plan of the conspirators with regard to the
subject matter in which the report is filed.” (footnotes
omitted)); Winebrenner v. United States, 147 F.2d 322, 325 (8th
Cir. 1945) (“If . . . Mellor was induced by Winebrenner to make a
fraudulent bid on work . . . even though Mellor was innocent, the
conspiracy was brought within . . . the Western District of

7
For money laundering conspiracy offenses, venue based upon an

overt act in furtherance of the conspiracy being committed in the

district of prosecution is provided for in 18 U.S.C. § 1956(i)(2)

(“in any . . . district where an act in furtherance of the . . .

conspiracy took place”) and such venue is likewise appropriate

under 18 U.S.C. § 3237(a), so our analysis proceeds on the basis

of section 3237(a) as to both counts.

In the present case, the record clearly supports venue in

the Western District. Testimony established that the

conspirators used an Amtrak train on at least one occasion to

transport methamphetamine to San Antonio, from whence

conspirators drove the drugs to Dallas, Texas. San Antonio is

indisputably within the Western District of Texas.5 Appellants

argue that that particular act took place in a different

conspiracy since a different man became the leader of the

organization after that particular drug transportation trip.

However, the drugs involved all originated with Fonceca, before

and after the San Antonio stop-over, and were destined for

Missouri, where the contracts were carried out.”).
5
San Antonio is within the Western District of Texas though
it is located within a different division than is Waco. However,
that does not alter our analysis since there is no constitutional
right to be tried in a particular division within a district.
United States v. McKinney, 53 F.3d 664, 673 (5th Cir. 1995).
Venue is generally determined on a district, rather than a
division, basis. See Rule 18, FED. R. CRIM. P.; 18 U.S.C. §
3237(a). We are aware of no special contrary provision
applicable to either of the instant offenses.

8
distribution in the same areas. These are the same parties and

same drug-source for whom Perez regularly transported. The

evidence was sufficient for the jury to find that the

transportation of Fonceca’s methamphetamine from California to

San Antonio (and thence to Dallas) was part of the charged

conspiracy. See United States v. Morrow, 177 F.3d 272, 291 (5th

Cir. 1999). See also United States v. Therm-All, Inc., 373 F.3d

625, 637 (5th Cir. 2004); United States v. Morgan, 117 F.3d 849,

858 (5th Cir. 1997).

Further, Brad Mills’ testimony established distribution of

methamphetamine, pursuant to the conspiracy, in the Western

District of Texas. Appellants contend that they were no longer

participating in the conspiracy at the time Mills moved to the

Western District in 2002 and began directly distributing there.

However, Mills specifically testified that he distributed the

methamphetamine to Joshua Adamson in West in 2000 and 2001

(before Mills moved to Waco), and Nguyen testified that he began

fronting to Mills in early 2001 the same methamphetamine he

obtained from Ayala and Dominguez. Mills further explained that

he also fronted methamphetamine (which had been fronted to him by

Nguyen) to Justin Hodge, who lived in Waco, and to Adamson, who

lived in West. Both West and Waco are in McClennan County, which

is within the Western District of Texas. Prior to 2002 Hodge

fronted some of that methamphetamine to Adamson in West. While

9
Hodge and Adamson sometimes had to travel to the Dallas area to

obtain the methamphetamine from Mills (and to pay him for drugs

he previously fronted to them, using proceeds of their sale of

the fronted drugs) prior to 2002, they obtained a quarter-pound

to a pound of methamphetamine each time, amounts sufficient to

shown intent to distribute within their home bases in the Western

District.

The money laundering count (Count Two) alleged that Fonceca

and Perez and others conspired, contrary to 18 U.S.C. § 1956(h),

to commit one or more of the following offenses, namely: (1)

conducting and attempting to conduct a financial transaction

(involving property known to represent proceeds of unlawful

activity) with intent to promote the specified unlawful activity

of the conspiracy to distribute and to possess with intent to

distribute methamphetamine, contrary to 18 U.S.C. §

1956(a)(1)(A)(i); and/or (2) conducting and attempting to conduct

a financial transaction (involving property known to represent

proceeds of unlawful activity) knowing it was wholly or partially

designed to conceal the nature, location, source, ownership or

control of proceeds of the specified unlawful activity of the

conspiracy to distribute and to possess with intent to distribute

methamphetamine, contrary to 18 U.S.C. § 1956(a)(1)(B)(i); and/or

(3) engaging in, and attempting to engage in, monetary

transactions in property derived from the specified unlawful of

conspiracy to distribute and to possess with intent to distribute

10
methamphetamine, contrary to 18 U.S.C. § 1957(a). This count

goes on to allege that “[t]he conspiracy was executed in the

following manner through the following means.” It was alleged,

among other things, that as a part of the conspiracy,

methamphetamine was distributed “on a consignment basis, that is

‘fronted’” by Fonceca in California and transported to Texas, in

part by Perez, and was fronted by conspirator Ayala to, among

others, Nguyen, and that “these people would then front” that

methamphetamine to “Mills and others, including people in the

Western District of Texas, Waco Division.” It was further

alleged that when the methamphetamine was sold and “currency” was

“collected,” it made its way back up the distribution chain and

ultimately a portion of the currency made its way back to Fonceca

in California, sometimes transported there from Texas by Perez.

The evidence sufficed to allow the jury to find by a

preponderance of the evidence that, for example, the fronted

conspirators who distributed the methamphetamine in the Western

District of Texas took some of the currency proceeds of the sales

they made there and, in or partly in the Western District of

Texas, transported and delivered those currency proceeds to the

conspirator who had fronted the drugs to them, and that such a

delivery and disposition (see section 1956(c)(3)) of the currency

constituted a financial transaction (see section 1956(c)(4) &

(5)) in property known to represent the proceeds of the unlawful

activity of the distribution of methamphetamine and was entered

11
into by both conspirators who were parties thereto with the

intent to promote the methamphetamine distribution conspiracy

alleged in Count One, contrary to 18 U.S.C. § 1956(a)(1)(A)(i).

Such would plainly constitute an overt act in the Western

District of Texas in furtherance of the Count Two conspiracy.

More generally, the jury could find by a preponderance of the

evidence that the money laundering conspiracy charged in Count

Two included the making of sales of methamphetamine in the

Western District of Texas and the collection of a portion of the

currency proceeds of such sales and the laundering of such

proceeds, including laundering that took place outside of the

Western District. For venue purposes, the overt act need not be

the whole crime, but merely an act (including, in a proper case,

an act of a non-conspirator caused by a previous act or contact

by a conspirator) in furtherance of the conspiracy. See note 4

supra and accompanying text.6

6
Also, the evidence here would permit a finding that there
was in essence a single conspiracy with two interdependent
illegal objectives, each of which materially furthered the
achievement of the other, the first objective being to possess
methamphetamine with intent to distribute it and/or to distribute
it, contrary to 21 U.S.C. § 841(a)(1), and the second objective
being to “launder” proceeds of the methamphetamine so
distributed, contrary to 18 U.S.C. § 1956(a)(1)(A)(i), and/or §
1956(a)(1)(B)(i), and/or § 1957(a). Because conspiring for the
purpose of the first objective is denounced by 21 U.S.C. § 846,
and conspiring for the purpose of the second objective is
denounced by a different statute, namely 18 U.S.C. § 1956(h), two
offenses (one for conspiring for the first objective, the other
for conspiring for the second objective) may properly be charged
(and convicted for) notwithstanding there is in fact essentially
only a single conspiracy (albeit with two unlawful objectives).

12
 Appellants’ reliance on United States v. Cabrales, 118 S.Ct.

1772 (1998), is misplaced, for there the Court was careful to

point out that “[n]otably, the counts at issue do not charge

Cabrales with conspiracy; they do not link her to, or assert her

responsibility for, acts done by others.” Id. at 1776 (emphasis

added). Cabrales also specifically distinguished United States

v. Hyde, 32 S.Ct. 793 (1912) (holding that venue for a conspiracy

prosecution was proper in a district where an overt act took

place although defendant had never been there and the conspiracy

was not formed there), on the ground that it was a conspiracy

prosecution. Cabrales at 1776-77 (“By contrast, the counts at

issue in this case allege no conspiracy. They describe activity

in which Cabrales alone, untied to others, engaged”). Here, by

contrast, the only offenses alleged are conspiracies and the

evidence shows agreement and concerted action among defendants

and many others and the movement of drugs from California to

Texas (including the Western District) and of the proceeds of the

sale of the drugs from Texas (including the Western District)

back to California with laundering thereof along the way.

Compare Cabrales at 1777 (“The counts before us portray her

[Cabrales] and the money she deposited and withdrew as moving

Albernaz v. United States, 101 S.Ct. 1137, 1142-43 (1981). The
rule is otherwise where only a single conspiracy statute is
violated. Braverman v. United States, 63 S.Ct. 99, 101-02
(1942).

13
inside Florida only”). In United States v. Rodriguez-Moreno, 119

S.Ct. 1239, 1244 (1999), the Court reaffirmed the validity of

Hyde. Again, in Whitfield v. United States, 125 S.Ct. 687, 693

(2005), the Court reiterated that for a conspiracy prosecution

under section 1956(h) “venue is proper in any district in which

an overt act in furtherance of the conspiracy is committed, even

where an overt act is not a required element of the conspiracy

offense.” See also, e.g., United States v. Nichols, 416 F.3d

811, 823-24 (8th Cir. 2005); Prosper v. United States, 218 F.3d

883, 884 (8th Cir. 2000).

We find no merit in appellants’ contention that venue laid

in the Western District of Texas was improper.

B. Sufficiency of Evidence to Support Fonceca’s Money
Laundering Conspiracy Conviction

Fonceca argues that the evidence is insufficient to support

her conviction for conspiracy to money launder (Count Two).7

Fonceca claims the evidence only shows that she repeatedly

received payment for her merchandise and does not show that she

conspired with the others to disguise or conceal the funds.

We “must affirm if a rational trier of fact could have found

that the evidence established the essential elements of the

7
Except with respect to venue, as discussed in part IIA
above, Perez does not challenge the sufficiency of the evidence
as to either count and Fonceca does not challenge the sufficiency
of the evidence as to the drug distribution conspiracy (Count
One).

14
offense beyond a reasonable doubt.” United States v. Lopez, 74

F.3d 575, 577 (5th Cir. 1996). We review the evidence de novo,

in the light most favorable to the prevailing party. United

States v. Resio-Trejo, 45 F.3d 907, 910 (5th Cir. 1995).

Credibility and factual determinations are resolved in favor of

the jury’s verdict. Id. at 911.

Fonceca was convicted of conspiracy to money launder in

violation of 18 U.S.C. § 1956(h) (Count Two). “‘Direct evidence

of a conspiracy is unnecessary; each element may be inferred from

circumstantial evidence . . . . An agreement may be inferred from

a “concert of action.”’” United States v. Virgen-Moreno, 265 F.3d

276, 284–85 (5th Cir. 2001).

The money laundering charges alleged as a basis of the

conspiracy charge included violations of 18 U.S.C.

§§ 1956(a)(1)(A)(i), and/or 1956(a)(1)(B)(i), and/or 1957(a).

The elements required to establish money laundering under section

1957(a) are: “1) property valued at more than $10,000 was derived

from specified unlawful activity . . . ; 2) [the perpetrator]

engaged in a monetary transaction with this property; and 3) [the

perpetrator] knew that this property was derived from unlawful

activity.” United States v. Wilson, 249 F.3d 366, 379 (5th Cir.

2001). To establish money laundering under section 1956(a)(1),

the government must prove that “1) [the perpetrator] conducted or

attempted a financial transaction, (2) which he knew involved

15
proceeds arising from unlawful activity, (3) with the intent to

promote or further those illegal actions [section (a)(1)(A)(i)],

or (4) with the knowledge that the transaction’s design was to

conceal or disguise the nature or source of the illegal proceeds

[section (a)(1)(B)(i)].” United States v. Pennell, 409 F.3d

240, 243 (5th Cir. 2005). The “defendant need not have

specifically intended to conceal or disguise the proceeds of the

unlawful activity” as “[i]t is sufficient for the defendant

merely to be aware of the perpetrator’s intent to conceal or

disguise the nature or source of the funds.” United States v.

Adair, 436 F.3d 520, 524 (5th Cir. 2006). Compensating co-

conspirators for their participation in the conspiracy in order

to continue the illegal activity is sufficient to show promotion

or carrying on of unlawful activity. Wilson, 249 F.3d at 377-78.

Fonceca’s arguments fail, and the elements of the charge of

conspiring to money launder were adequately shown. The evidence

showed that members of the conspiracy would conspire to transport

currency from Texas to Fonceca in California by utilizing bank

accounts, businesses, and numerous assets. Additionally, many of

the assets—particularly automobiles—were placed in fictitious

names to conceal and disguise the nature and ownership of the

assets. Several times, large amounts of cash proceeds from the

drug trade (approximately $150,000 in one trip) used to further

16
the methamphetamine conspiracy were transported from Texas to

Ayala and Fonceca in California, hidden in the door panels of a

Chevrolet Tahoe SUV. The government also presented evidence of

Perez’s furtive courier runs between California and Texas to

transport both cash and methamphetamine for the purpose of

continuing the unlawful activity.

The jury could have inferred from the significant amount of

evidence presented that Fonceca had engaged in a conspiratorial

agreement to violate money laundering laws in an effort to

conceal the illegal nature of the substantial funds exchanging

hands facilitating and furthering the carrying on of this drug

distribution conspiracy. See Virgen-Moreno, 265 F.3d at 285–86.

C. Brady–Giglio or Jencks Act Material: Government Agents’
Witness Debriefing Notes

We review a district court’s rulings regarding discovery

under the Jencks Act for clear error. 18 U.S.C. § 3500; United

States v. Brown, 303 F.3d 582, 591 (5th Cir. 2002). Brady

determinations are reviewed de novo. East v. Johnson, 123 F.3d

235, 237 (5th Cir. 1997).

Fonceca argues that the district court erred by refusing to

require disclosure of a government agent’s reports relating to

the debriefings of cooperating witnesses as required by the

Jencks Act. Fonceca also contends that the material was

17
potentially Brady–Giglio8 material. Finally, Fonceca contends

that the reports should have been discoverable in any case

because the agent who wrote the reports testified at trial.

Fonceca’s arguments do not succeed.

First, the agent who drafted the reports of the witness

interviews was himself a witness at trial but he did not testify

about what the co-conspirators told him in the course of his

witness interviews. We have held that a testifying agent’s

report of a witness interview is a statement discoverable as to

the agent under the Jencks Act but only if and to the extent it

relates to the subject matter of the agent’s direct testimony.

United States v. Welch, 810 F.2d 485, 490 (5th Cir. 1987); United

States v. Gaston, 608 F.2d 607, 612 (5th Cir. 1979). Also, the

agent’s reports or notes are not Jencks Act material as to a

testifying co-conspirator who is not shown to have adopted the

statements in the reports or notes. 18 U.S.C. § 3500(e); United

States v. Martinez, 87 F.3d 731, 736-37 (5th Cir. 1996); Welch,

810 F.2d at 490. Fonceca’s assertion that the notes could be

8
Brady v. Maryland, 83 S.Ct. 1194, 1196–97 (1963) (holding
that “the suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution”); Giglio v. United
States, 92 S.Ct. 763 (1972) (holding that prosecution’s duty to
present all material evidence to the jury was not fulfilled when
it became known the government failed to disclose an alleged
promise of leniency made to its key witness in return for his
testimony).

18
used to impeach the testifying co-conspirators is purely

speculative. Appellant’s arguments are unavailing, especially

considering that the government had an open-file policy and had

tendered the notes or reports to the district judge for in camera

inspection. The fact that the district court declined the

government’s invitation to examine the notes or reports does not

convert them to discoverable Jencks Act material. We have held

that the district court only has a duty to make such an in camera

inspection of alleged Jencks Act material “if a timely request is

made by the defense and some indication exists in the record that

the notes meet the Jencks Act’s definition of a statement.”

United States v. Hogan, 763 F.2d 697, 704 (5th Cir.), opinion

withdrawn in part, 771 F.2d 82 (5th Cir. 1985). There is no such

indication here. Additionally, there was no request that the

material at issue be made a part of the record on appeal.

Fonceca has not shown error.

D. Restriction of Fonceca’s Cross-Examination of Dominguez

Fonceca argues that the district court erred by sustaining

the prosecution’s objections to her cross-examination of

Dominguez regarding aspects of Dominguez’s plea agreement.

Fonceca claims her Sixth Amendment right to confrontation was

violated because she was unable to ask Dominguez about the

“factual basis” underlying his plea agreement.

Since Fonceca did not object to the district court’s rulings

19
below, we review for plain error. United States v. Mares, 402

F.3d 511, 520–21 (5th Cir. 2005). We will correct an error shown

to be plain if Fonceca establishes (1) an error (2) that is plain

or obvious (3) and that affects appellant’s substantial rights.

United States v. Olano, 113 S.Ct. 1770, 1776–77 (1993). We

exercise our discretion to correct an error that affects the

fairness, integrity, or public reputation of judicial

proceedings. Id.

Fonceca has not met her burden on this issue. She was

allowed to cross-examine Dominguez concerning his incentives to

testify under his plea agreement, and Fonceca was able to pose

similar questions as those denied to another co-conspirator,

Carrasco, regarding the factual basis of his plea agreement.

Also, Fonceca was able to ask Dominguez about various

inconsistencies in his multiple debriefings with the government.

Fonceca has not established that the limitations on her cross-

examination were clearly prejudicial and prevented the jury from

hearing sufficient information to “appropriately draw inferences

relating to the reliability of the witness.” United States v.

Restivo, 8 F.3d 274, 278 (5th Cir. 1993).

E. Denial of Fonceca’s Motion for Mistrial due to Inadvertent
Admission of 404(b) Evidence

We review the denial of a motion for mistrial for abuse of

discretion. United States v. Akpan, 407 F.3d 360, 366 (5th Cir.

2005). When a defendant’s motion for mistrial alleges

20
prejudicial testimony, there is reversible error only if the

evidence, when viewed in the context of the trial as whole, is so

highly prejudicial that it likely would have had a “substantial

impact” on the jury’s verdict. United States v. Limones, 8 F.3d

1004, 1007–08 (5th Cir. 1993).

Before the trial began, both defense counsel and the

government agreed that no 404(b) evidence, including that of past

crimes, would be offered. However, while defense counsel was

questioning Dominguez, a government witness, the following

statement mentioning Fonceca’s previous time spent incarcerated

was inadvertently elicited in violation of the 404(b) agreement :

“DEFENSE COUNSEL: Did you know that Maria—and that’s
Maria Fonceca—and the woman Meeka were they friends?
DOMINGUEZ: Yes. They married ten years ago when they
make time in jail. [sic]
DEFENSE COUNSEL: May we approach, Your Honor?
COURT: I’m sorry?
DEFENSE COUNSEL: Motion to strike as nonresponsive and
I’d also like to approach.
COURT: Sure.
DEFENSE COUNSEL: The nonresponsive answer just now with
the witness that was put before the jury my client has
been in jail at some point in the past, I think I’m
duty bound to move for a mistrial based on that. I am
so moving under the circumstances. I don’t see how I
can do other but I’ll submit it.
. . .
COURT: I’m not going to grant a mistrial at this point.
DEFENSE COUNSEL: Okay. That’s fine. I’ll proceed on.”

This testimony was not struck and the jury was not instructed to

disregard it. No lawyer or witness referred to that testimony at

any other time during the trial.

Even assuming error, in light of the significant amount of

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other evidence in the case, this inadvertent remark is not so

highly prejudicial that it would have had a “substantial impact”

on the jury’s verdict. Limones, 8 F.3d at 1007–08. We do not

find reversible error.

F. Perez’s Sentence

We review de novo the district court’s guidelines

interpretations. United States v. Duhon, 440 F.3d 711, 714 (5th

Cir. 2006). We accept the district court’s fact findings unless

they are clearly erroneous. Id. We review the sentence for

unreasonableness considering the provisions of 18 U.S.C. § 3553.

Id.

Perez argues that the disparity between her sentence and

that of her co-conspirators was unwarranted, and asserts this

point of error for two reasons:

"(1) to preserve the issue in the event the Supreme
Court decides that under facts similar to those in this
case the disparity is not warranted; and (2) . . .
because of the timing of her arrest and her inclusion
in the case as a defendant, she was not presented with
any opportunity to provide substantial assistance and
therefore was not similarly situated to the
co-conspirators who testified against her.”

Perez was sentenced to 292 months’ imprisonment, while her

co-conspirators (other than Fonceca) were sentenced to

significantly lower sentences due to their assistance to the

government in prosecuting this case.

We rejected an argument similar to Perez’s in Duhon, 440

F.3d at 720 (holding that “sentencing disparity produced by

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substantial assistance departures was intended by Congress and is

thus not a proper sentencing consideration under section

3553(a)(6)”). Duhon noted that district courts should “avoid

disparity among similarly-situated defendants nationwide rather

than disparity with [the defendant]’s differently situated

codefendant.” Duhon, 440 F.3d at 721 (emphasis added).

Perez’s attempts to distinguish her situation from that in

Duhon are unavailing. There is no requirement that the

government provide equal opportunities for cooperation to all

co-defendants. We affirm Perez’s sentence.

III. Conclusion

For the foregoing reasons, we AFFIRM the convictions and

sentences of appellants Fonceca and Perez.

AFFIRMED

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