United States v. Krout

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_______________________

No. 94-50290
_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DOUGLAS WILLIAM KROUT, a/k/a Mark
William Danford, a/k/a Doug Kraus,
a/k/a Doug Lopez, CYNTHIA ANN VARGAS,
SOLIS HUERTA, SOFIA AGUIRE NANEZ,
ROGELIO ROGER PEREZ ZAMORA, HERIBERTO
HERBERT HUERTA, ROGELIO ROY MEDINA
ARCE, and HECTOR CAMPOS ALVAREZ,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________

(October 6, 1995)

Before POLITZ, Chief Judge, JONES, and PARKER, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This is a consolidated appeal arising from the conviction

of seven defendants for participating in a continuing enterprise of

murder, drug distribution, and firearm offenses as members and

conspirators in a Texas prison gang referred to as the "Mexican

Mafia." The principal offenses proved at trial involved an

elaborate cocaine and heroin distribution scheme within state

prisons and on the streets of San Antonio. Most of the inevitable

differences among the confederates were resolved by murders either
approved or executed by some of these defendants. Although the

evidence adduced at trial was overwhelming,1 the defendants have

raised multiple grounds for reversing their convictions. Of these

grounds, the challenges to jury anonymity and the imposition of

consecutive sentencing are the most significant. We find no

reversible error and affirm.

I. Evidentiary Challenges

A. Wiretap Evidence

The assorted defendants begin their attack with

challenges to the evidence-gathering techniques employed by the

government. Specifically, they present three objections to the

evidence seized pursuant to court authorized electronic

surveillance. Defendants Huerta and Zamora argue that because the

terms of the initial wiretap order, entered on September 17, 1992,

limited the period of surveillance to ten days, interceptions

recorded after these first ten days must be suppressed (as well as

the fruits of these conversations).2 Solis Huerta, Nanez and

Alvarez argue that the wiretap applications and affidavits failed

to make the required showing that normal investigative procedures

were tried and failed or reasonably appeared unlikely to succeed or

too dangerous. Finally, Alvarez argues that the interception of

1
Indeed, the gang's "constitution", introduced into evidence, states in
its preamble: "Being a criminal organization . . . [w]e shall deal in drugs,
contract killings, prostitution, large scale robbery [etc.]"
2
Defendants Arce, Solis Huerta and Nanez also expressly adopted this
argument.

2
the conversations between Huerta and his wife Solis Huerta violated

their expectation of privacy.

The first order entered by the district court is slightly

awkward in syntax.3 Nonetheless, the most plausible reading of the

order authorizes interception until either the authorized

objectives were obtained or for a period of thirty days, whichever

event occurs first. The thirty days, in turn, are measured from

"the earlier of the day on which investigative or law enforcement

officers first begin to conduct an interception under this Order or

ten (10) days after the Order is entered." To read the language of

the order otherwise (i.e., with a strict limit of ten days), as the

defendants suggest, would impermissibly fail to effectuate the

thirty-day period referred to in the termination provision because

there are no circumstances in which interception may extend beyond

ten days. Moreover, the defendants' argument ignores the intent of

the issuing judge who obviously anticipated some significance to

the thirty day period since he required ten, twenty, and thirty day

progress reports to be filed, and authorized continued interception

on any changed phone number occurring within this thirty day

window.

Title 18 U.S.C. § 2518(1)(c) and (3)(c) require the

applicant for a wiretap order to verify -- and the issuing judge to

3
The order provided that monitoring

shall terminate upon attainment of the authorized
objectives as listed above, or, in any event, at the end
of thirty (30) days from the earlier of the day on which
investigative or law enforcement officers first begin to
conduct an interception under this Order or ten (10) days
after the Order is entered, whichever is earlier.

3
find -- that "normal investigative procedures have been tried and

have failed or reasonably appear to be unlikely to succeed if tried

or to be too dangerous." "What is required is a showing that in

the particular investigation normal investigative techniques

employing a normal amount of resources have failed to make the case

within a reasonable period of time." United States v. Alfonso, 552

F.2d 605, 612 (5th Cir.), cert. denied, 434 U.S. 857 (1977)

(quotation omitted). Here the affidavits contained detailed

accounts of the investigative techniques that were used by the

agencies investigating the Mexican Mafia.

Specifically, the affidavits asserted that informants or

undercover agents could not infiltrate the conspiracy at high

enough levels to obtain sufficient evidence to prosecute managers

of the organization. This court has previously affirmed wiretap

orders based upon similar affidavits. See United States v. Guerra-

Mares, 928 F.2d 665, 671 (5th Cir.), cert. denied, 112 S.Ct. 322

(1991); United States v. Webster, 734 F.2d 1048, 1055 (5th Cir.),

cert. denied, 469 U.S. 1073 (1984). These affidavits amply

established an inability to fully develop a case from informants'

knowledge, inability to infiltrate with undercover agents, lack of

access to primary targets, the limited value of searches in proving

these offenses, and informants' fear and unwillingness to testify.4

4
Alvarez lacks standing to challenge the interception of the Huertas'
conversations; he has no constitutionally recognized interest in asserting their
privacy rights. See Alderman v. United States, 394 U.S. 165, 171-72, 176 (1969);
United States v. Ruggiero, 928 F.2d 1289, 1303 (2d. Cir.), cert. denied, 112 S.Ct.
372 (1991).

4
 B. Evidence of Murders

Huerta, Zamora, Solis Huerta and Nanez challenge the

admission of evidence about the murders of Rangel, "Chepo"

Hernandez, "Pancho" Canales, and the attempted murder of "Tye"

Morales. Huerta and Zamora argue that the evidence was offered to

prove bad character in violation of Rule 404(b); all four

defendants argue that the evidence was unduly prejudicial.

Yet "[e]vidence of an uncharged offense arising out of

the same transactions as the offense charged in the indictment is

not extrinsic evidence within the meaning of Rule 404(b)." United

States v. Maceo, 947 F.2d 1191, 1199 (5th Cir. 1991), cert. denied,

112 S.Ct. 1510 (1992). Huerta, Zamora, Arce and Alvarez were

charged in the superseding indictment with a RICO offense and RICO

conspiracy. That indictment specifically alleged that members and

associates of the criminal enterprise engaged in the actual and

threatened use of violence, including murder, to further the

objectives of the enterprise, to obtain money, and protect the

organization from law enforcement investigations. These murders

and attempted murder were not introduced as character evidence but

as acts committed by members of the Texas Mafia in furtherance of

the RICO offenses.

The government is not limited in its proof of a

conspiracy or racketeering enterprise to the overt or racketeering

acts alleged in the indictment. United States v. Wilson, 657 F.2d

755, 763 (5th Cir. 1981), cert. denied, 455 U.S. 951 (1982).

Morales, Rangel, Hernandez and Canales had all served as "generals"

5
in the Texas Mexican Mafia, commanding the members outside of

prison in San Antonio. Evidence of how disputes were settled with

these members or how they were treated if believed to be

cooperating with law enforcement was properly admitted to prove the

allegation in the indictment that murder and extreme violence were

part of the organization's pattern of racketeering activities. See

United States v. Firestone, 816 F.2d 583, 587 (11th Cir.), cert.

denied, 484 U.S. 948 (1987); United States v. Hawkins, 681 F.2d

1343, 1346 (11th Cir.), cert. denied, 459 U.S. 994 (1992).

C. Coconspirator Testimony

Zamora challenges the district court's admission of two

recorded conversations between Rangel's wife, Emily Mendoza, and

her son, Edward, in which Mendoza discusses the efforts to kill a

bookie, Ramirez, to whom Rangel and Zamora owed money. Zamora

argues that because Mendoza was not a conspirator and the

statements were not made in furtherance of the conspiracy, these

statements were inadmissible hearsay. This court reviews the

district court's admission of evidence under Rule 801(d)(2)(E) for

abuse of discretion. United States v. Triplett, 922 F.2d 1174,

1181 (5th Cir.), cert. denied, 500 U.S. 945 (1991). The district

court's determinations that the statement was made by a

coconspirator and in furtherance of the conspiracy are findings of

fact reversible only if clearly erroneous. United States v.

Stephens, 964 F.2d 424, 434 (5th Cir. 1992).

Although debatable, the district court's decision that

Mendoza's comments were made by a coconspirator and in furtherance

6
of that conspiracy were not clearly erroneous. First, Mendoza was

with Rangel when he explained the details of the plan to kill

Ramirez, and she suggested an improvement to the plan. ("You

should have paid Edward instead.") Second, she also attempted to

get the job of murdering Ramirez assigned to her son as part of an

effort to recruit someone to actually commit the murder that was

initially bungled. Although this could be explained as an

independent endeavor to find work for her son, "[w]here there are

two permissible views of the evidence, the factfinder's choice

between them cannot be clearly erroneous." Anderson v. Bessemer

City, 470 U.S. 564, 574 (1985).

In any event, these conversations were merely cumulative

of recorded conversations among Rangel, Arce, Zamora and others

that indubitably established a conspiracy to murder Ramirez.

II. Jury Challenges

A. Jury Anonymity

We next address the appellants' challenge to the

procedure employed by the district court in deciding to empanel an

anonymous jury, and the substance of the decision that such a

device was warranted. The appellants complain that the district

court abused its discretion in ordering an anonymous jury by: (1)

failing to conduct a hearing; (2) failing to afford appellants an

opportunity to refute the allegations in the government's motion

for anonymous jury; (3) deciding to select an anonymous jury based

solely on the unsworn allegations contained in the government's

motion; (4) failing to advise the jury of a neutral or

7
nonprejudicial reason for their anonymous selection; (5) failing to

preserve the safeguards of a fair and impartial jury selection;

and, (6) because the unusual circumstances that might justify

empaneling an anonymous jury were not present in this case.

Anonymous jury empanelment is an issue of first

impression in this circuit, but our analysis is guided by the

standards developed in other circuits, all of which hold that a

lower court's decision to empanel an anonymous jury is entitled to

deference and is subject to abuse of discretion review. United

States v. Paccione, 949 F.2d 1183, 1192 (2nd Cir. 1991); United

States v. Thornton, 1 F.3d 149, 154 (3rd Cir.), cert. denied, 114

S.Ct. 483 (1993); United States v. Crockett, 979 F.2d 1204, 1215-16

(7th Cir.), cert. denied, 113 S.Ct. 1617 (1993); United States v.

Daniels, 986 F.2d 451, 454 (11th Cir. 1993) (district court has

wide discretion in determining which questions will be asked during

voir dire). Accordingly, this court adopts the same abuse of

discretion standard of review and will afford deference to a

district court's empanelment of anonymous juries.

Keeping this standard in mind, we first reject the

appellants' objections to the procedural aspects of the district

court's decision. The court provided ample opportunities for the

various defendants to state their objections and to develop their

arguments. That the court did not follow the exact procedures

urged by the defendants on appeal is insignificant.5 Indeed, only

5
The court found that anonymity would dispel possible fear by jurors for
their safety and promote impartial verdicts. To this end, the court ordered a U.S.
Deputy Marshal to accompany jurors at recesses and to pick up and drop off jurors

8
Huerta, Zamora and Alvarez filed written objections to the

government's motion to empanel an anonymous jury.6 A conference

hearing was also held to discuss the motion, and no appellant

objected to the court's failure to pose questions to the venire

other than on the subject of their identities.

Moving to the merits of the decision to empanel an

anonymous jury, it must be emphasized that this is a drastic

measure, which should be undertaken only in limited and carefully

delineated circumstances. United States v. Ross, 33 F.3d 1507

(11th Cir. 1994). Courts that have upheld this form of juror

protection have reasoned that it is constitutional when needed to

ensure against a serious threat to juror safety, if the courts also

protect the defendants' interest in conducting effective voir dire

and maintaining the presumption of innocence. United States v.

Wong, 40 F.3d 1347, 1376 (2nd Cir. 1994); United States v. Amuso,

21 F.3d 1251, 1264 (2nd Cir.), cert. denied, 115 S.Ct. 326 (1994);

United States v. Paccione, 949 F.2d at 1192. "These competing

individual and institutional interests are reasonably accommodated,

and the use of an anonymous jury is constitutional when, 'there is

at an undisclosed location at the beginning and end of each day. To attain such
anonymity, the court ordered simply that the names, addresses, and places of
employment of jurors and spouses would not be disclosed to the parties. The
district court also stated that it would provide a neutral explanation for the
anonymous status, explaining that it was not the result of any threat by any
defendant. While the anonymous status endured throughout the trial, the court did,
however, deviate from its intentions in several respects. First, it did not
implement the proposed method of transporting jurors, instead allowing them to
report directly to the courthouse each day during trial. Second, the court did
not explain to the jury their anonymous status. Similarly, the court did not
implement a sequestration order entered during trial until the jury began its
deliberations.
6
The district court, nonetheless, deemed all defendants to have joined
any such objection.

9
strong reason to believe the jury needs protection' and the

district court 'tak[es] reasonable precautions to minimize any

prejudicial effects on the defendant and to ensure that his

fundamental rights are protected'". United States v. Wong, 40 F.3d

at 1376 (internal citations omitted). United States v. Vario, 943

F.2d 236, 239 (2nd Cir. 1991), cert. denied, 112 S.Ct. 882

(1992)(when this balance is properly struck, the use of an

anonymous jury does not violate the defendant's constitutional

rights). Within these parameters, and, again noting the

seriousness of such a step, the decision whether or not to empanel

an anonymous jury is left to the district court's discretion.

Factors that may justify jury protection by anonymity

include: (1) the defendants' involvement in organized crime;

(2) the defendants' participation in a group with the capacity to

harm jurors; (3) the defendants' past attempts to interfere with

the judicial process or witnesses; (4) the potential that, if

convicted, the defendants will suffer a lengthy incarceration and

substantial monetary penalties; and, (5) extensive publicity that

could enhance the possibility that jurors' names would become

public and expose them to intimidation and harassment. United

States v. Paccione, 949 F.2d at 1192; United States v. Amuso, 21

F.3d at 1264-65; United States v. Ross, 33 F.3d at 1520.

Furthermore, as a caution that use of anonymous juries will remain

a device of last resort, it is necessary that the district court

base its decision on more than mere allegations or inferences of

10
potential risk.7 In accordance with a holding by the Second

Circuit, however, the use of anonymous juries will be upheld where

evidence at trial supports the conclusion that anonymity was

warranted. United States v. Wong, 40 F.3d at 1376-77 (even if the

district court had relied only on the government's proffer, the

trial record supports the court's order of anonymity).

All of the above factors were present in this case, and

the district court did not abuse its discretion in empaneling an

anonymous jury. Evidence at trial and in wiretap affidavits

established that appellants were members and leaders of the Texas

Mexican Mafia. By its written constitution, the organization

defined itself as criminals dealing in drugs, contract killings,

prostitution, large scale robbery, gambling, weapons, and "in

everything imaginable." One of the group's tenets was to interfere

with potential witnesses -- specifically, to murder or attempt to

murder members suspected of informing authorities; such acts did

occur. The gang had been linked to dozens of murders in San

Antonio from 1990-92. The organization also sought to corrupt law

enforcement authorities to further their goals. The appellants

faced substantial penalties, as Huerta was sentenced to life in

prison, Alvarez, Zamora, and Arce received sentences of 300, 360,

and 420 months, respectively, and the shortest term of imprisonment

imposed on those tried was 120 months. Finally, prior to trial,

7
A lesser showing might be adequate where specific evidence exists
linking the defendant to organized crime. Satisfaction of this element alone can,
in turn, translate into the requisite showing for the empanelment of an anonymous
jury. United States v. Persico, 832 F.2d 705 (2nd Cir. 1987), cert. denied, 486
U.S. 1022 (1988)(anonymous jury upheld where crime family's normal
course of business suggested risk of obstruction and harm).

11
counsel for several defendants observed, and the district court

agreed, that the case had been the subject of much publicity which

would likely continue to the case's resolution.8

B. Batson Claim9

After objection, the United States stipulated that of the

11 prospective jurors stricken peremptorily by the government,

seven appeared to be of Hispanic ethnicity. The district court

found a prima facie case of discrimination based upon the number of

strikes against presumably Hispanic veniremen.10 Pursuant to

Batson, the court asked the prosecutor to explain the reason for

each of the challenged peremptory strikes, and the court was

satisfied that there was no purposeful racial discrimination.11

This court reviews that conclusion under the clearly erroneous

standard. Hernandez v. New York, 500 U.S. 352, 364-365, 369, 111

S.Ct. 1859, 1868-69, 1871 (1991).

The government suggests that this court should not

address the merits of the Batson claim. To be timely, a Batson

challenge must be raised before the venire has been dismissed.

United States v. Maseratti, 1 F.3d 330, 335 (5th Cir. 1993), cert.

8
At the close of oral argument in this appeal, a specific issue arose
as to whether or not the government during trial inadvertently obtained names and
telephone numbers for the jurors in this case. This court requested the parties to
submit further documentation of such allegations and, after careful review of the
record, we are convinced that such was not the case.
9
Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 1723-24 (1986).

10
The United States believes that eight other persons who might have
been Hispanic remained as prospective jurors, and three of them were seated on the
jury, while two others became alternate jurors. Defense counsel at oral argument
conceded that at least two seated jurors were of Hispanic origin.
11
See n.13 infra for a summary of the reasons given.

12
denied, 114 S.Ct. 1096 (1994). An objection raised after the jury

is seated and the venire has been dismissed does not preserve the

claim. United States v. Collins, 972 F.2d 1385, 1402 (5th Cir.

1992), cert. denied, 113 S.Ct. 1812 (1993). A proper objection

must be made before the venire is excused and leaves the courtroom.

Maseratti, 1 F.3d at 335 n.1. The record here is ambiguous

concerning the exact sequence of events,12 but we will assume the

objection was timely.

Resolution of the merits of the Batson challenge posed by

all defendants is much simpler in light of Purkett v. Elem, ___

U.S. ___, 115 S.Ct. 1769 (1995). Reversing the court of appeals,

which had demanded that a race-neutral explanation be related to

the facts of the particular case, the Supreme Court held that all

that a prosecutor need offer is a facially valid explanation. Id.

at 1771. "Unless a discriminatory intent is inherent in the

prosecutor's explanation, the reason offered will be deemed race

neutral." Id. (citing Hernandez, 500 U.S. at 360 (plurality

opinion), 374 (O'Connor, concurring)). Accordingly, a "’legitimate

reason' is not a reason that makes sense, but a reason that does

not deny equal protection." Id.

12
After the judge read the numbers of the sixteen jurors selected to
serve, the district court thanked the other veniremen and instructed them to hand
their "juror" buttons to somebody at the back door. He informed them they could be
on their way, and according to the record there was a pause as those excused left
the courtroom. Next, the district judge ordered the selected jurors to move into
the jury box. Only after they had moved into the box, and the court began
addressing the jury as selected did defense counsel apprise the court, "We may have
a Batson problem." Counsel acknowledged that he needed to raise the issue
before losing jurors, but the district court observed, "it's too late to bring them
back." The court then proceeded to give preliminary instructions to the jury.

It is unclear whether the veniremen had physically left the courtroom when
defense counsel first offered a Batson-objection to the district court.

13
 The district court believed the reasons proffered by the

assistant United States attorney were genuine, and nothing in the

record has been identified to suggest this credibility evaluation

to have been clearly erroneous.13

III. Procedural Challenges

A. Misjoinder, Rule 8

"Improper joinder under Rule 8 is considered to be inherently

prejudicial and this is reviewable on appeal as a matter of law."

United States v. Bright, 630 F.2d 804, 813 (5th Cir. 1980). This

criminal procedure rule authorizes joinder of defendants "if they

are alleged to have participated in the same act or transaction or

in the same series of acts or transactions constituting an offense

or offenses." Its requirement is satisfied by allegation of an

overarching conspiracy that encompasses the substantive offenses

charged. United States v. Faulkner, 17 F.3d 745,758 (5th Cir.),

cert. denied, 115 S.Ct. 193 (1994). If an indictment charges RICO

violations, offenses committed as part of the pattern of

13
In Purkett, the reason proffered by the prosecution was that the juror
had a beard and long hair. These justifications, held sufficient in Purkett, are
the least trial-related explanations proffered in this case:

a. Jurors 1, 13, and 59 expressed difficulty reading the English
language, which prompted concern because of the voluminous
transcripts introduced into evidence. Juror 59 also had a
tattoo which could indicate prior affiliation with a gang.

b. Juror 10's demeanor appeared "lackadaisical," and he laughed at
inappropriate times. Juror 56 also was excused for failure to
exhibit an appropriate degree of seriousness.

c. Juror 94 indicated in his response that the Mexican Mafia sought
peace. Concerned with potential bias, the prosecutor was
further troubled by his long hair and a beard.

d. Juror 100 was excused because of her son's previous experience
with juvenile court, and her casual attitude.

14
racketeering activity are properly joined even if the defendant

objecting is not named in the RICO count. United States v.

Manzella, 782 F.2d 533,540 (5th Cir.), cert. denied, 476 U.S. 1123

(1986).

Yet Krout notes that he was only indicted for

participating in the heroin conspiracy and with the substantive

offense of possessing with intent to distribute heroin on March 15,

1993. Citing United States v. Bova, 493 F.2d 33 (5th Cir. 1974),

and United States v. Gentile, 495 F.2d 626 (5th Cir. 1974), he

reasons that he falls within the rule requiring severance where all

of the defendants are charged with offenses arising out of the same

series of acts or transactions, but one defendant is additionally

charged with an offense which is not alleged to have arisen out of

the same series of acts or transactions.

Krout is only partially correct because he ignores United

States v. Welch, 656 F.2d 1039, 1049-50 (5th Cir. 1981). This

court in Welch held that "the joinder of otherwise separate acts

may be allowed when the acts are properly linked by means of a

conspiracy charge." Id. at 1051. Significantly, this court

expressly decided that "[i]t is true that a RICO conspiracy count

can provide the connexity between two otherwise unrelated

conspiracies necessary to satisfy the requirements of Rule 8(b)."

Id. More importantly, the Welch court adopted the reasoning of the

Second Circuit in United States v. Weisman, 624 F.2d 1118 (2d

Cir.), cert. denied, 449 U.S. 871 (1980).

15
 In Weisman, as in Krout's case, an individual

defendant -- Cannatella -- was charged in the indictment with

bankruptcy fraud and not in either the securities fraud or any

unifying RICO count. Nevertheless, the Second Circuit held (with

this court later approving) that the joint trial of Cannatella with

the other RICO defendants did not violate Rule 8(b). Welch, 656

F.2d at 1052-1053. Similarly, no error was committed by Krout's

joinder in this case.

B. Severance, Rule 14

Krout, Nanez, and Solis Huerta all argue that the

district court abused its discretion in denying their motions for

relief from prejudicial joinder under Fed. R. Crim. P. 14.

Generally, however, persons indicted together should be

tried together. United States v. Arzola-Amaya, 867 F.2d 1504, 1516

(5th Cir.), cert. denied, 493 U.S. 933 (1989). A district court

should grant a Rule 14 severance "only if there is a serious risk

that a joint trial would compromise a specific trial right of one

of the defendants, or prevent the jury from making a reliable

judgment about guilt or innocence." Zafiro v. United States, 113

S.Ct. 933, 939 (1993). Indeed, neither a quantitative disparity in

the evidence nor the presence of a spillover effect requires a

severance." United States v. Neal, 27 F.3d 1035, 1045 (5th Cir.),

cert. denied, 115 S.Ct. 530 (1994). Normally, limiting

instructions to the jury will cure any risk of prejudice. Zafiro,

113 S.Ct. at 938.

16
 To reverse for abuse of discretion thus requires a

showing of specific and compelling prejudice. United States v.

Thomas, 12 F.3d 1350, 1363 (5th Cir.), cert. denied, 114 S.Ct. 1861

(1994). These defendants cannot approach such a showing:

a. The evidence about Krout's illicit activity was
focused and compartmentalized. Presentation of evidence
related to his delivery of heroin to Saldana and Munoz
was limited to the 11th, 12th and 14th days of trial.
Moreover, Krout's opening argument specifically directed
the jury's attention to the events of March 15, 1993 and
warned against "spillover." The actual disputed factual
issues concerning his guilt were simple and limited:
whether the surveillance officers could see him deliver
a package to Saldana; and whether or not Erasmo
Gonzalez's testimony was credible.

b. The extent of Solis Huerta's involvement was
also not difficult to separate from the larger universe
of evidence. She communicated with her husband Huerta,
packaged heroin, and connected Huerta with other gang
members by telephone. Nanez's role was similar but she
also actively participated in collecting the "dime," and
facilitating communications between her father Huerta and
other gang members. Both of these defendants also had
the testimony presented against them in a block on the
4th, 5th and 6th days of trial.14

IV. Alvarez’s, Krout’s, and Arce’s Separate Challenges

A. Alvarez

1. Evidentiary Challenges

Alvarez challenges the district court's denial of his

motion to suppress evidence obtained pursuant to a search warrant

14
In addition to the court's instruction to consider each defendant's
guilt individually, the care and attention of the jury was obvious from the specific
and focused notes it sent to the district court throughout its seven day period of
deliberations.

Initially, the jury requested an index for the volumes of wiretap transcripts.
Subsequently, the jury sent notes concentrating on Hector Alvarez, then about the
murder offense involving Arce and Zamora, proceeding to the shipment of heroin to
California (implicating Huerta, Solis Huerta, and Nanez), moving onto the testimony
of Morales, and culminating with Krout's March 15 transaction. This course of
events reflects careful sifting of the evidence, or as the district court observed,
they "studied this matter very carefully."

17
from the residence of Rosa Rubio in San Antonio. Regardless of the

merits of his contention about the deficiency of the warrant,

Alvarez has no standing to challenge its constitutionality.

Alvarez has the burden of establishing that his own

constitutional rights were violated by an unlawful search or

seizure. United States v. Wilson, 36 F.3d 1298, 1302 (5th Cir.

1994). Alvarez neither alleged nor offered evidence at the

suppression hearing that he had any property or possessory interest

in the property searched at 6154 Bark Valley. "In general, a person

who is aggrieved by an illegal search and seizure only through the

introduction of damaging evidence secured by a search of a third

person's premises or property has not had any of his Fourth

Amendment rights infringed." Wilson, 36 F.3d at 1302. The

government alerted Alvarez in its response to his motion to

suppress that he had the burden of establishing his expectation of

privacy in the premises searched. This court does not deem

standing to be waived where "no facts were adduced at the

[suppression] hearing from which the government could reasonably

have inferred the existence of the defendant's standing." United

States v. Cardona, 955 F.2d 976, 982 (5th Cir.), cert. denied, 113

S.Ct. 381 (1992).

Alvarez also challenges, primarily under Fed. R. Evid.

404(b), the admission of two of his prior traffic stops by police

officers. During the first stop, on June 11, 1992, Alvarez fled

the scene and discarded nine packets of heroin and a handgun. The

second stop, which occurred on March 12, 1993, was for driving

18
while intoxicated. Contrary to his assertions, none of the

evidence admitted about these two stops was character evidence

within the meaning of Rule 404(b).

Rule 404(b) excludes most evidence of extrinsic offenses

offered to prove a defendant acted in conformity with his bad

character. Uncharged offenses arising from the same transaction or

series of transactions charged in the indictment, however, are not

barred by the rule. United States v. Maceo, 947 F.2d 1191, 1999

(5th Cir. 1991), cert. denied, 112 S.Ct. 1510 (1992). More

specifically, evidence of acts committed pursuant to a conspiracy

and offered to prove the defendant's membership or participation in

the conspiracy are not extrinsic evidence. United States v. Davis,

19 F.3d 166, 171 (5th Cir. 1994).

Thus, to avoid the strictures of Rule 404(b), all the

government need do is suggest a logical hypothesis of the relevance

of the evidence for a purpose other than to demonstrate his

propensity to act in a particular manner. Here, the prosecutor

proposed to introduce evidence of the first traffic stop because it

physically associated appellant Alvarez with Victor "Morro"

Alvarez, a member of the Texas Mexican Mafia conspiracy. Moreover,

it corroborated the testimony of uncharged conspirator Lisa Rubio

that these two men were engaged in a drug trafficking operation.

Finally, the evidence could also be admissible as an act "part and

parcel of the conspiracy itself." The June date of this traffic

stop fell within the time period of the offenses charged in the

19
indictment and implicated the same offense conduct and a

participant identified in wiretap recordings.

The 1993 stop for DWI was similarly admissible. The

evidence at trial was limited to the fact of the actual stop and

the reason was never provided the jury. The United States limited

its proof to the fact that Alvarez was stopped and identified as

the driver of a car registered to Lisa Rubio. Not only did the

evidence corroborate Rosa Rubio's testimony about the relationship

between Lisa Rubio and Victor Alvarez, it also linked Alvarez to

Rangel, one of the leaders of the alleged conspiracy, because the

same vehicle had been observed by a surveillance officer at

Rangel's residence in December, 1992.

2. Jury Instruction

Alvarez requested the district court to give the jury a

lesser included offense instruction misdemeanor possession of

heroin or cocaine, in violation of 21 U.S.C. § 844(a). To be

entitled to such an instruction, the elements of the lesser offense

must be a subset of the elements of the charged offense. See

United States v. Garcia, 27 F.3d 1009, 1014 (5th Cir.), cert.

denied, 115 S.Ct. 531 (1994); Schmuck v. United States, 489 U.S.

705, 716 (1989). Indeed, each statutory element of the lesser

offense must also be present in the greater offense. United States

v. Browner, 937 F.2d 165, 168 (5th Cir. 1991).

The elements of simple possession of a controlled

substance are (1) the knowing possession (2) of a controlled

substance. Alvarez, however, was charged in Count I with a

20
substantive RICO violation under 18 U.S.C. section 1962(c).

Racketeering activities are defined by statute to include "the

felonious manufacture, importation, receiving, concealment, buying,

selling, or otherwise dealing in narcotic or other dangerous

drugs." 18 U.S.C. § 1961(1)(D)(emphasis added). Simple possession

of heroin or cocaine does not even constitute a RICO predicate

offense. Counts Two, Four and Five charged Alvarez with

conspiracies to commit the substantive offense, and to distribute

and possess with the intent to distribute heroin and cocaine.

Simple possession is not a lesser included offense of a drug

conspiracy, United States v. Rodriguez, 948 F.2d 914, 917 (5th Cir.

1991), cert. denied, 112 S.Ct. 2970 (1992), nor should it be a

lesser offense for a RICO conspiracy.

Alvarez also urges that the district court committed

reversible error by failing to charge the jury that "mere agreement

to commit the predicate acts charged is not sufficient to find the

defendant guilty of conspiracy to violate the RICO statute." The

trial court's refusal is reviewed for abuse of discretion. United

States v. Jensen, 41 F.3d 946, 953 (5th Cir. 1994). Denial of a

requested instruction is not error when its substance is implicit

in the instructions actually given. United States v. Ramirez, 963

F.2d 693, 705 (5th Cir.), cert. denied, 113 S.Ct. 388 (1992).

The district court's instructions separated the

enterprise from the pattern of racketeering activity. And they

quite carefully explained each of the elements necessary for

21
predicate offenses, a "pattern," and conspiracy.15 Considered as

a whole, these instructions did not permit the jury to find a RICO

conspiracy solely upon proof that Alvarez agreed to commit the

predicate crimes.

3. Statutory Challenge

Alvarez argues that the elements of "pattern of

racketeering activity" and activities of an enterprise that "affect

interstate or foreign commerce" are both unconstitutionally vague

on their face and as applied to him. This circuit has already

specifically rejected the facial challenge to the vagueness of

"pattern of racketeering activity." Abell v. Potomac Ins. Co. of

Illinois, 946 F.2d 1160, 1165-67 (5th Cir. 1991), cert. denied, 112

S.Ct. 1944 (1992). As applied, the statute itself enumerates

offenses that qualify as "racketeering activity." The Supreme

Court defined the "pattern" component to require the prosecution to

"show that the racketeering predicates are related, and that they

amount to or pose a threat of continued criminal activity." H.J.

Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239 (1989).

Hence, Alvarez must argue that the scope of this pattern element

"was so unclear that a person of ordinary intelligence in [his]

15
First, the judge directed the jury that "[t]o prove a pattern of
racketeering activity, the government must prove . . . that the acts are related to
each other and, two, they amount to or pose a threat of continuing criminal
activity." He then defined what the government must establish to prove the
racketeering acts are related to one another: "[T]he criminal conduct charged
embraces criminal acts that have the same or similar purposes, results,
participants, victims . . . and are not isolated events." Next, the district court
carefully outlined that the defendant must be linked to the illegal endeavors of the
enterprise by participating or "conduct[ing] its affairs: To do so, the government
must additionally demonstrate a relationship among the defendant, the pattern of
racketeering activity and the enterprise." He cautioned the jury explicitly, "The
defendant and the enterprise cannot be the same." Finally, the court precisely
defined the elements of a RICO conspiracy.

22
position would not have had adequate notice that his actions

constituted a pattern of racketeering activity." Abell, 946 F.2d

at 1167 (internal quotations omitted). Alvarez was shown to be a

member of the Mexican Mafia, an organization officially devoted to

criminal activities,16 which dealt and distributed narcotics,

sanctioned murder, and organized an extortionate collection scheme

of a "street tax." RICO was certainly intended to encompass these

activities designed to further an organized crime enterprise.

Because Alvarez did not truly develop the interstate

commerce vagueness argument in his brief, the point is abandoned.17

B. Krout

1. Replayed Testimony

The district court denied the jury's request during

deliberations to replay the testimony of the officers involved in

the surveillance and stop of Krout on March 15. Generally,

rereading or replaying testimony is disfavored. United States v.

Nolan, 700 F.2d 479, 486 (9th Cir.), cert. denied, 462 U.S. 1123

(1983); United States v. Keys, 899 F.2d 983, 98 (10th Cir.), cert.

denied, 489 U.S. 858 (1990). Denial of such a request is proper

when the court finds that replaying the testimony would take an

inordinate amount of time or create a risk that the jury would

place an undue emphasis on that evidence. United States v.

16
Recall, the gang's self-avowed objective was to "deal in drugs,
contract killings, prostitution, large scale robbery, gambling, weapons . . ."
17
We have also considered -- and reject -- Alvarez's argument that there
was insufficient evidence to convict him on all counts.

23
Schmitt, 748 F.2d 249, 256 (5th Cir. 1984), cert. denied, 471 U.S.

1104 (1985).

This request from the jury encompassed four to six hours

of testimony. The parties themselves were unable to focus the

request into a more manageable segment of the testimony. Further,

because the testimony was audiotaped it would have required

redaction prior to playing before the jury. At this time, the jury

had already deliberated into the fifth day, and had previously

requested two other lengthy replays of testimony. No abuse of

discretion occurred in denying this request.

2. Expert Testimony

Detective Martinez testified during the playing of three

recorded conversations in which "Cowboy" Gonzalez was a participant

or was discussed. The district court denied Krout's objections to

questions soliciting the officer's opinion that references to "the

people" and the "driver of the truck" indicated that Gonzalez was

acting with others to bring heroin into the area. Although this

court has held that an undercover agent may interpret the "argot or

seemingly secret jargon of []alleged criminals," United States v.

Fuller, 974 F.2d 1474,1482 (5th Cir. 1992),18 expert testimony

regarding the meaning of ordinary words, which the jury is in as

good a position as the 'expert" to interpret, must be excluded.

United States v. Allibhai, 939 F.2d 244, 250 (5th Cir. 1991). Here

the excerpts of conversation which Martinez was asked to comment on

18
The agent was permitted to explain the term "move around" money means
money laundering.

24
were not alleged by the United States to be code -- as is often the

case in wiretapped conversations.

Nonetheless, erroneous admission of expert testimony is

subject to harmless error analysis. United States v. Weiner, 3

F.3d 17,21-22 (1st Cir. 1993). The testimony objected to by

counsel did little to incriminate Krout. First, other evidence

introduced at trial established that the "people" referred to in

this conversation about the December 28 transaction did not include

Krout.19 Gonzalez's own testimony confirmed this fact. For the

exact opposite reason, testimony concerning the March 14

conversation was also harmless to Krout; it was cumulative of other

incriminating evidence: Gonzalez testified that Krout delivered

the heroin to a Mr. Saldana on March 15. Significantly, this

testimony was corroborated by surveillance of the exchange of

packages between Krout's and Saldana's vehicles, the seizure of

heroin from a box of laundry detergent in Saldana's car, and 1-2

cupfuls of laundry detergent from Krout's Blazer.

3. Consecutive Sentencing

Krout's challenge to his sentence, however, merits

extended discussion. Krout complains that the district court

failed to apply the methodology provided by the commentary to

§ 5G1.3(c), a policy statement, and that if it had, the district

court would have imposed the sentence to run concurrent with a

sentence imposed in the Southern District of Texas.

19
Indeed, after Detective Martinez clarified that Krout was not involved
in the December 28 transaction Krout's attorney remarked that he "had no problem"
with the testimony that Gonzalez was not acting alone.

25
 At sentencing, the district court informed Krout that it

would impose the sentence for this offense consecutive to a 97-

month term imposed for a prior drug offense in the Southern

District of Texas. (Krout was a fugitive when he committed the

offenses involved in this case.) Both Krout and his attorney asked

the district judge to reconsider this decision, and noted an

"objection" for the record. However, Krout's objection offered no

particular legal basis.20 The government contends that Krout's

imprecise objection is insufficient to preserve the claimed error

for review. We agree.

Krout's objection was in the manner of a simple plea for

leniency. Indeed, nothing in Krout's objection gave any indication

of the sentencing error now claimed. "A party must raise a claim

of error with the district court in such a manner so that the

district court may correct itself and thus, obviate the need for

our review." United States v. Bullard, 13 F.3d 154, 156 (5th Cir.

1994). By failing to properly object at sentencing, the defendant

20
The record reflects this exchange after the sentence was imposed:

KROUT: Your Honor, could I say one more thing?

COURT: Yes.
KROUT: Could I just ask you to reconsider about running it concurrent
with the Corpus Christi? You know, its a very long time away
from my family, your Honor.

COURT: The Court will deny that request at this time, Mr. Krout, and
the Court will order that the hundred and sixty-eight months on
this case run consecutive to the ninety-seven months imposed in
the Corpus case. The Court, it will--

FAHLE (Counsel): Your Honor, I'm sorry. I've just two other
quick things. I want to make sure that our objection to that is
preserved. And, secondly, I would now orally file a notice of
appeal, and I'll follow it later with a written notice of
appeal.

26
waives his right to full appellate review. This Court will remedy

errors so forfeited only in the most exceptional case. United

States v. Torrez, 40 F.3d 84, 86 (5th Cir. 1994). In other words,

we review only for plain error.21

In order to show plain error, the appellant must show

that there was an error, that it was plain (meaning "clear" or

"obvious") and that the error affects substantial rights. This

Court lacks the authority to relieve an appellant of this burden.

United States v. Olano, --U.S.--, 113 S. Ct. 1770, 1777-81, 123 L.

Ed. 2d 508 (1993). In addition, even when the appellant carries

this burden, this Court is not required to correct the error. The

Supreme Court has directed that such a forfeited error should be

corrected if the error "seriously affect[s] the fairness, integrity

or public reputation of judicial proceedings." Id. at --, 113 S.

Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 160,

56 S. Ct. 391, 392, 80 L. Ed. 555 (1936)).

In the written judgment of commitment the district court

explained its decision to impose consecutive sentences:

According to U.S.S.G. § 5G1.3, the sentence for the
instant offense should result in an appropriate
incremental punishment that most nearly approximates the
sentence that would have been imposed had both sentences
been imposed at the same time. Based upon the purity of
the heroin, the defendant's obstructive behavior, and the
fact that the defendant was not prosecuted for bond
jumping in the Southern District of Texas, the court
finds that the consecutive sentence in this case is
appropriate.

21
Rule 52(b) of the Federal Rules of Criminal Procedure provides: "Plain
errors or defects affecting substantial rights may be noticed although they were not
brought to the attention of the court."

27
The actual sentence imposed for this offense was at the low end of

the guideline range of imprisonment: 168 months in a range of 168-

210 months.

Guideline section 5G1.3(c) provides that, in any case

other than those covered under subsections (a) and (b),22 "the

sentence for the instant offense shall be imposed to run

consecutively to the prior undischarged term of imprisonment to the

extent necessary to achieve a reasonable incremental punishment for

the instant offense." U.S.S.G. § 5G1.3(c), p.s. The commentary to

this section, application note 3, provides that "to the extent

practicable, the court should consider a reasonable incremental

penalty to be a sentence for the instant offense that results in a

combined sentence of imprisonment that approximates the total

punishment that would have been imposed . . . had all of the

offenses been federal offenses for which sentences were being

imposed at the same time."

Although the district court has the ultimate discretion

to impose a sentence consecutively, see United States v. Bell, 46

F.3d 442, 446 (5th Cir. 1995), it is required to consider the

applicable sentencing guidelines and policy statements. See 18

U.S.C. §§ 3584(a), (b); 18 U.S.C. §§ 3553(a)(4), (5); United States

v. Parks, 924 F.2d 68, 72 (5th Cir. 1991). In addition, the

Supreme Court has held that commentary that interprets or explains

22
Subsection (a) applies where the defendant committed the instant offense
while serving an undischarged term of imprisonment and subsection (b) applies where
the conduct resulting in the undischarged term of imprisonment has been taken into
account under the relevant conduct provision in determining the offense level for
the instant offense. Appellant and appellee agree that subsections (a) and (b) did
not apply in the present case.

28
a guideline is authoritative. Stinson v. United States, -- U.S.--,

113 S. Ct. 1913, 1915, 123 L. Ed. 2d 598 (1993). In United States

v. Hernandez, -- F.3d --, 1995 WL 509345 (5th Cir. 1995), this

Court held that a sentencing court is bound to consider § 5G1.3(c)

as well as the implications of the methodology suggested by

application note 3. "[T]he district court must consider the

suggested methodology before determining whether a sentence should

run consecutively or concurrently." Id. at *3. The judgment

entered by the district court, quoted above, clearly reflects that

it considered both § 5G1.3(c) and the commentary to that section.

Krout argues, however, that the district court's failure

to apply the methodology provided by the commentary to § 5G1.3(c)

was error. We cannot agree. As we noted in Torrez,

the methodology proposed by note 3 is permissive only.
The specific formula . . . is conspicuously preceded by
the language "[t]o the extent practicable, the court
should consider . . . ." This language denotes merely
one possible manner of determining the appropriate
incremental penalty. Thus, even if the district court
had considered this provision, it would have been free to
decline to follow the suggested methodology. In other
words, the district court would not have violated this
provision if it had considered it and then determined
that imposing the sentence consecutively provided the
appropriate incremental punishment.

40 F.3d at 87 (internal citation omitted). In Hernandez, this

Court held that the suggested methodology is advisory only. 1995

WL 509345 at *3. Therefore, failure to apply the methodology

provided cannot constitute error.

Krout also argues that the reasons given by the district

court for imposing the sentence consecutively were insufficient to

justify that decision in light of the policy concerns underlying §

29
5G1.3. In Hernandez, we held that "[i]f the district court chooses

not to follow the methodology, it must explain why the calculated

sentence would be impracticable in that case or the reasons for

using an alternate method. Thereafter, the district court is left

with discretion to impose a sentence which it believes provides an

appropriate incremental punishment." Id. (internal citations

omitted).

Although it is not clear from the district court's judgment

why it did not follow the recommended methodology or why it used an

alternate method, it is clear that the district court considered

the relevant commentary and, with reasons, decided on what it

believed to be an appropriate incremental penalty. We need not

decide whether under Hernandez the district court's reasons were

insufficient because any error in the district court's judgment

could not be considered so "clear" or "obvious" as to be deemed

"plain" error.23

C. Arce

This court reviews the court's denial of a motion for

severance or a motion for continuance for abuse of discretion.

United States v. Dilman, 15 F.3d 384, 393-94 (5th Cir.), cert.

denied, 115 S.Ct. 183 (1994)(severance); United States v. Kelly,

973 F.2d 1145, 1147-48 (5th Cir. 1992)(continuance). Denial of an

eleventh hour or mid-trial motion for a continuance - even when an

attorney unfamiliar with the case must take over representation of

23
We are not saying that the reasons articulated by the District Court
would not be proper justification for the imposition of a consecutive sentence under
the Hernandez mandated methodology.

30
a defendant- is not an abuse of discretion. See United States v.

Mitchell, 777 F.2d 248, 255 (5th Cir. 1985), cert. denied, 475 U.S.

1096 (1986). Arce seeks to establish the requisite "specific and

compelling" or "serious" prejudice based upon the ineffective

assistance of counsel he received from his first attorney Harrison

and based upon Harrison's absences from trial, which allegedly

denied him counsel altogether.

This court, however, will not address ineffective

assistance of counsel claims on direct appeal except in unusual

cases. United States v. Higdon, 832 F.2d 312, 313-314 (5th Cir.

1987), cert. denied, 484 U.S. 1075 (1988). Only in that rare

instance where the details of the attorney's conduct are "well

developed" in the record is such a claim properly considered on

direct appeal." Id. at 314. Because the record is not definitive

about when Harrison's absences were covered by Langlois, we defer

to the usual vehicle for resolution of a Sixth Amendment claim, a

section 2255 motion.

Finally, to the extent that Arce attempts to find an

abuse of discretion in the district court's denial of his motion

that is not grounded in effective assistance of counsel, the

district court's careful and extended reasoning easily suffices to

reject the attack.

V. Sentencing Challenges

We have specifically considered each appellant's

challenge to the sentence imposed and reject all of their attacks;

31
every appellant was properly sentenced or the error claimed was

harmless.

CONCLUSION

Having carefully reviewed the contentions advanced by the

appellants, we find no reversible error of fact or law.

AFFIRMED.

32