UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 92-2425
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCA CASTILLO CASTRO, REMIDIOS MENDEZ,
JOHNNY LEE CAREY, CARMINE OSUNA,
LIONEL HORTIO BUITRON,
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________________________________________________
(February 21, 1994)
Before WISDOM, HIGGINBOTHAM, and JONES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Appellants Francisca Castillo Castro ("Francisca"),
Remidios Mendez ("Mendez"), Johnny Lee Carey ("Carey"), Carmine
Osuna ("Osuna"), and Lionel Buitron ("Buitron") were convicted by
a jury of conspiracy to possess with intent to distribute heroin in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846 and/or
aiding and abetting the distribution of heroin in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and 18 U.S.C. § 2. They
appeal their convictions on various grounds. Finding no reversible
error, we affirm.
DISCUSSION
Reynaldo Cantu-Castro ("Ray Castro" or "Ray") owned and
operated, with the assistance of several family members, the Castro
Body Shop in Bryan/College Station, Texas. Ray Castro lived in an
apartment located above the body shop. His ex-wife, Francisca,
lived in a trailer a few doors away. They had been married for 47
years before getting divorced. In addition to doing legitimate
body shop work, Ray Castro ran a heroin distribution operation. He
had several people -- family members and non-family members
alike -- assisting him with the operation of his heroin business.
Several individuals, including Ray, his son Angel Castro
("Angel"), and the appellants, were arrested and charged with
various offenses relating to the heroin operation. In exchange for
more lenient sentences, Ray and Angel pled guilty and testified at
the joint trial of six of their co-indictees. At their joint
trial, one of the defendants was found not guilty by the jury. The
other five defendants, the appellants in this appeal, were found
guilty of conspiracy to possess with intent to distribute heroin
and/or aiding and abetting the distribution of heroin.
A. Sufficiency of Evidence
Francisca, Mendez, Osuna, and Buitron claim that there
was insufficient evidence to support their convictions. In
reviewing challenges to sufficiency of the evidence, this court
views the evidence in the light most favorable to the jury verdict
and affirms if a rational trier of fact could have found that the
government proved all essential elements of the crime beyond a
2
reasonable doubt. See United States v. Ruiz, 987 F.2d 243, 259
(5th Cir. 1993). All inferences and credibility determinations are
to be resolved in favor of the jury's verdict. See id. To support
a conviction of conspiracy with intent to distribute heroin, the
prosecution must show beyond a reasonable doubt that (1) a
conspiracy existed, (2) the defendant knew of the conspiracy, and
(3) the defendant voluntarily joined the conspiracy. See United
States v. Sagaribay, 982 F.2d 906, 911-12 (5th Cir. 1993).
Francisca Castro
The jury convicted Francisca of conspiracy with intent to
distribute heroin. The prosecution presented testimony by Della
Espinoza, a co-indictee who pled guilty. She testified that she
would purchase heroin from Ray and Angel Castro. Oftentimes, when
she did not have money with which to purchase the heroin, she would
trade clothes and other property for the drug. She testified that
a lot of the property that she traded for heroin was for Francisca.
(R. 14:15-17). On at least one occasion, Francisca asked Espinoza
to get her some things and specifically asked her for pantyhose in
a specific size and color. After Espinoza delivered the pantyhose
to Francisca and with Francisca still present, Espinoza received
the heroin in exchange for the clothes. On a separate occasion,
Francisca looked through items that Espinoza had brought and picked
out some earrings that were exchanged for heroin. (R 14:17-18)
Rosemary Salazar also pled guilty in connection with this
case and testified for the prosecution. She often would call Ray
on the phone to arrange a drug purchase and sometimes Francisca
3
would answer. (R 15:72) If Ray was not there, Francisca would
tell Salazar that Francisca would send Ray to wherever Salazar
wanted him to be sent. Francisca would sometimes be present when
Salazar would purchase heroin from Ray, and Francisca would watch
the transaction. (R. 15:88) Francisca could see what was going
on, and she could hear what Salazar was asking for from Ray. (R.
15:89) On one occasion in particular, Salazar was trying to
convince Ray to give her some heroin, but instead of paying with
money, she promised Ray that he could go shopping for Francisca by
using Salazar's department store credit card. Salazar directed the
conversation to Francisca who told Salazar what items she wanted
from the department store. Francisca then authorized Ray to go
ahead and give the heroin to Salazar. Salazar testified that
Francisca then told Salazar that she better be sure to bring her
the things that she wanted from the store.
This activity by Francisca constitutes more than mere
presence at a location where criminal activity is taking place.
This evidence, when viewed in the light favorable to the verdict,
establishes the existence of a conspiracy of which Francisca was
knowledgeable and in which she voluntarily participated. Viewing
this evidence in the light most favorable to the verdict, there was
evidence to support Francisca's conviction for conspiracy with
intent to distribute heroin.
Remidios Mendez
Mendez was also convicted of conspiracy with intent to
distribute heroin. As pointed out in Mendez' briefs to this court,
4
Della Espinoza testified that Mendez had sold and delivered heroin
to her at least three times. (R. 14:26) Jennifer Kallus, an
investigator with the Brazos Valley Narcotics Task Force, testified
that she and a confidential informant were involved in a drug
transaction with Mendez. (R. 14:117-22) Kallus also testified
that on a later occasion, she and Sergeant Investigator Robert
Rhynsburger were involved in a drug transaction with Mendez. (R.
14:124) Rhynsburger testified that Mendez was present during
several heroin purchases. (R. 16:71, 77) Mendez also observed
Rhynsburger weighing the heroin before purchasing it. (R. 16:82-
83) Although Mendez argues that this evidence indicates that
Mendez was merely present at a place where drug activity was being
conducted, we find this contention to be unsupported in the
evidence when viewed in the light most favorable to the verdict.
This evidence is sufficient to affirm Mendez's conviction for
conspiracy with intent to distribute heroin.
Carmine Osuna
Osuna was convicted of aiding and abetting the
distribution of heroin as well as conspiracy to possess with intent
to distribute heroin. She complains only of the sufficiency of the
evidence regarding her conviction for conspiracy. As Osuna points
out in her brief to this court, Ray Castro, the admitted leader of
this conspiracy, testified that he was the leader of the heroin
operation and had once accepted delivery of at least a gram of
heroin from Osuna. (R. 13:52) Osuna was present on several
occasions when Ray bought heroin from Osuna's husband, Herminio.
5
Moreover, Rose Salazar testified that she traveled to Houston with
an undercover agent to purchase heroin with government funds from
Osuna. Osuna had sold Salazar heroin that Osuna kept in her house
stashed in a coke can. (R. 15:67-68). Officer Jose Mora was the
officer who arrested Osuna. He testified that Osuna told him,
after being advised of her rights, that she was involved in the
distribution of heroin along with her husband. (R. 14:235).
This evidence, when taken in the light most favorable to
the prosecution, indicates that there was a conspiracy of which she
had knowledge and in which she voluntarily participated. Rational
jurors could have found beyond a reasonable doubt that Osuna was
involved in a conspiracy with intent to distribute heroin.
Lionel Buitron
Buitron was convicted of conspiracy to possess with
intent to distribute heroin. Ray Castro testified that on one
occasion, he purchased heroin from Buitron which Ray, in turn, sold
to others. (R.13:49) Additionally, Richard Stewart of the Texas
Department of Public Safety Narcotics Service testified that the
authorities had received information that an unknown man would be
at a particular location on a certain day to call and arrange a
meeting with Ray Castro. On August 8, 1991 while under
surveillance, Buitron, after making the call to Ray, was followed
to a trailer house in Bryan, Texas where he met Ray. (R. 14:224)
Shortly after leaving the meeting with Ray, the authorities
arrested Buitron and confiscated approximately $2,041 from him,
$1,900 of which was marked money that was traced to two heroin
6
purchases that government authorities had made from Ray Castro in
June or July of 1991. (R. 14:222-23) This evidence, taken in the
light most favorable to the verdict, is sufficient to establish
that Buitron was guilty of conspiracy to possess with intent to
distribute heroin.
B. Expert Psychiatric Testimony
Johnny Lee Carey complains that the district court erred
in denying his request to present expert testimony regarding his
state of mind at the time of the offense, and, as a result, he was
unable to present expert psychiatric testimony concerning his
physiological impairment, brain damage, and the psychological and
physiological effects of drug addiction.
Fed. R. Crim. P. 12.2 requires that the defendant notify
the government in writing of any intention to introduce expert
testimony relating to a mental disease, defect, or any other mental
condition of the defendant bearing upon the issue of guilt. See
Fed. R. Crim. P. 12.2(b). If the defendant fails to comply with
this requirement, "the court may exclude the testimony of any
expert witness offered by the defendant on the issue of the
defendant's guilt." Fed. R. Crim. P. 12.2(d).
Carey concedes that he did not timely file his request
because he was unaware of the proposed testimony of a co-defendant
until after the deadline had passed. The district court denied his
motion based on Fed. R. Crim. P. 12.2(b). The district court did
not abuse its discretion in denying Carey's request to provide
7
expert testimony because Carey failed to comply with the notice
requirements of the Federal Rules of Criminal Procedure.
C. Psychological Examination
Carey also complains that the district court abused its
discretion in denying his request for a psychological examination.
The Criminal Justice Act, 18 U.S.C. § 3006A(e), provides that a
"person who is financially unable to obtain investigative, expert,
or other services necessary for adequate representation" may obtain
such services after demonstrating in an ex parte proceeding that
the services are necessary. See 18 U.S.C. § 3006A(e) (West Supp.
1993). The services of a psychiatric expert are necessary for
adequate representation within this provision only when the
defendant's sanity at the time of the offense is truly at issue.
See United States v. Williams, 998 F.2d 258, 264 (1993); Williams
v. Collins, 989 F.2d 841, 845 (1993). The defendant is required to
make a "showing that his sanity was likely to be a significant
factor at trial, such that the denial of a mental examination
amounted to a denial of due process under Ake v. Oklahoma, [470
U.S. 68, 105 S. Ct. 1087 (1985)], or an abuse of discretion under
18 U.S.C. § 3006A." Williams, 998 F.2d at 264 (footnotes omitted).
Carey argues that his defense of insanity would have been
based on his heroin addiction and the fact that he had previously
been confined to a mental institution. These reasons are
insufficient to put his sanity at the time of the offense into
issue at trial. Evidence of heroin addiction is insufficient to
show that a defendant's sanity would be a significant factor at
8
trial. See Volanty v. Lynaugh, 874 F.2d 243, 247 (5th Cir. 1989)
(holding that drug addiction alone is insufficient to make the
defendant's sanity a significant factor at trial under Ake).
Moreover, evidence of drug addiction, even when coupled with past
confinement in a mental institution, is still insufficient to
establish the requisite factual showing necessary to give the trial
court reason to doubt the defendant's sanity at the time of the
offense. See Pedrero v. Wainwright, 590 F.2d 1383, 1391-92 (5th
Cir. 1979).
Carey never provided the district court with any
evidence, aside from his drug addiction, to support his request for
psychiatric evaluation. Even when asked by the court directly,
Carey's only support for putting his sanity into issue was the fact
that he was a drug addict. He did not use this opportunity before
the court to argue any evidence of prior institutionalization. (R.
17:7-8) Therefore, the district court did not abuse its discretion
in denying Carey's request for psychological examination, and such
denial did not violate Carey's due process rights under Ake.
D. Motion to Sever
Francisca Castro claims that the district court abused
its discretion in failing to grant her motion to sever her case
from that of her co-defendants. As stated earlier, Francisca's ex-
husband, Ray Castro, and her son Angel pled guilty and testified at
the trial of Francisca and five other co-indictees. As part of
their plea arrangement, neither was required to testify against
Francisca, and neither did so. Francisca now complains that she
9
was prejudiced because the jury could have thought that Ray and
Angel were "protecting" her. She claims that she was prejudiced
because having no duty to take the stand in her own defense, her
counsel was forced to ask questions of her relatives as to her
involvement.
Denial of a motion for severance is evaluated for an
abuse of discretion. See Zafiro v. United States, ___ U.S. ___,
113 S.Ct. 933, 937 (1993); United States v. Branch, 989 F.2d 752,
756 (5th Cir. 1993). Broad discretion is given to district courts
to examine motions for severance made by criminal defendants. See
Branch, 989 F.2d at 756. Where defendants have been properly
joined for trial, "a severance is warranted only to avert 'serious
risk that a joint trial would compromise a specific trial right of
one of the defendants or prevent the jury from making reliable
judgments about guilt or innocence.'" Id. (quoting Zafiro, 113
S.Ct. at 938.) Any prejudice that exists can generally be cured
through jury instructions. See id.
Francisca and the other defendants were indicted
together. Not only did Ray and Angel testify at trial that they
had a deal with the government that they would not testify against
Francisca, but the district court instructed the jury:
[T]he 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 any
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 as to each
defendant.
(R. 18:135)
10
Francisca was not prejudiced by being tried with her co-
defendants. Moreover, any prejudice was cured by testimony and the
court's instruction to the jury. The district court did not abuse
its discretion in denying Francisca's motion for severance.
E. Motion for Continuance
Mendez argues that the district court abused its
discretion by denying her motion for continuance. Mendez claims
that on the first day of trial, she was notified for the first time
that a witness who had earlier pled guilty to involvement in this
heroin operation planned to testify that Mendez had intentionally
and knowingly received stolen property in return for heroin.
Counsel for Mendez moved for continuance based on surprise and
undue delay in order to prepare for that testimony. Both parties
agree that the government was under no duty to disclose a summary
of this witness's probable testimony prior to or during trial.
This court will reverse a district court's decision
denying a defendant's motion for continuance only when the district
court has abused its discretion and the defendant can establish
that he suffered serious prejudice. See United States v. Brito-
Hernandez, 996 F.2d 80, 83 (5th Cir. 1993). Mendez has not
indicated the ways in which she was seriously prejudiced by not
receiving a continuance, aside from claiming that she was surprised
and did not have the opportunity to adequately prepare her case.
We fail to see how the district court abused its discretion.
Moreover, a thorough review of the record indicates that the
district court did not abuse its discretion in such a way as to
11
cause serious prejudice to Mendez. We affirm the district court's
denial of continuance.
VII. Conclusion
Finding no reversible error, we AFFIRM the decision of
the district court.
12