UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 94-20685
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
URSULA BERNADETTE BROUSSARD; RAPHAEL A CASTRO,
aka Jhony Castillo Rivera, aka Johny Castillo
Rivera In Custody; RUTH CASTRO; ROMEL WILLIAM
TORRES; CLAUDE MERRITT,
Defendants-Appellants.
______________________________________________
Appeal from the United States District Court for the
Southern District of Texas
______________________________________________
April 4, 1996
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Ursula Broussard ("Broussard"), Ruth Castro, Raphael Castro,
Claude Merritt ("Merritt"), and Romel Torres ("Torres") appeal from
their convictions on various charges stemming from their
participation in a drug-trafficking organization. Merritt also
appeals from the sentence imposed for his drug conviction. We
affirm.
BACKGROUND
The convictions arise out of the Drug Enforcement Agency's
("DEA") investigation of a drug-trafficking organization operating
out of Houston, Texas. The DEA believed that Torres was the
organization's kingpin. Torres's drug-trafficking associates
included Ruth Castro, his common-law wife, Raphael Castro, her
brother, Merritt, Broussard, Pearl Hughes, Harold Garcia, and Henry
Carvoijol.1 The organization was transporting large quantities of
cocaine to New York and Chicago in several cars equipped with
hidden compartments. An associate of Torres would transport the
cocaine and would then return to Houston with money stashed in the
hidden compartment.
After placing several members of the organization under
surveillance and searching some members' homes, the defendants were
indicted on various counts. A jury convicted Broussard, Ruth
Castro, Raphael Castro, and Merritt of conspiring to possess
cocaine with intent to distribute; Raphael Castro, Merritt, and
Torres of possessing cocaine with the intent to distribute; and
Torres of engaging in a continuing criminal enterprise, using a
communications facility in the course of a controlled substance
offense, conspiracy to launder money, eight counts of money
laundering, and eight counts of evading a currency reporting
requirement.
In this appeal, the various appellants attack the sufficiency
of the evidence, various orders on motions to suppress, denials of
requests for severance, and a sentence enhancement based on the
1
Hughes and Carvoijol pled guilty before trial, and Garcia
forfeited his bond and became a fugitive on the day of trial. The
jury acquitted five other co-indictees on all counts.
2
possession of firearms.
DISCUSSION
I. Sufficiency of the Evidence
Broussard and Ruth Castro contend that the evidence was
insufficient to support their convictions for conspiracy to possess
cocaine with the intent to distribute. In reviewing sufficiency,
this Court views the evidence and all inferences to be drawn from
it in the light most favorable to the jury verdict to determine
whether a reasonable jury could find that the evidence establishes
guilt beyond a reasonable doubt. United States v. Sanchez-Sotelo,
8 F.3d 202, 208 (5th Cir. 1993), cert. denied, U.S. , 114 S. Ct.
1410, 128 L. Ed.2d 82 (1994). "The evidence need not exclude every
reasonable hypothesis of innocence or be wholly inconsistent with
every conclusion except that of guilt, and the jury is free to
choose among reasonable constructions of the evidence." United
States v. Bermea, 30 F.3d 1539, 1551 (5th Cir. 1994), cert. denied,
U.S. , 115 S. Ct. 1113, 130 L. Ed.2d 1077 (1995).
To establish a drug conspiracy under 21 U.S.C. § 846, the
government must prove: (1) the existence of an agreement between
two or more persons to violate federal narcotics laws; (2) that the
defendant knew of the agreement; and (3) that the defendant
voluntarily participated in the agreement. United States v. Gallo,
927 F.2d 815, 820 (5th Cir. 1991). The elements may be proved by
circumstantial evidence and "[c]ircumstances altogether
inconclusive, if separately considered, may, by their number and
3
joint operation . . . be sufficient to constitute conclusive
proof." United States v. Roberts, 913 F.2d 211, 218 (5th Cir.
1990), cert. denied, 500 U.S. 955, 111 S. Ct. 2264, 114 L. Ed.2d
716 (1991) (quoting United States v. Lechuga, 888 F.2d 1472, 1476
(5th Cir. 1989)).
A. Broussard
Broussard contends that the evidence is insufficient to prove
her knowledge of and voluntary participation in the drug ring. She
argues that the Government's entire case was based on the fact that
she is the sister of Pearl Hughes, a co-indictee who entered a plea
pretrial, and lived with several alleged members of the drug ring.
Broussard correctly asserts that a conviction cannot be based
solely on the existence of familial relationships or upon the
defendant's mere knowing presence. See United States v. Williams-
Hendricks, 805 F.2d 496, 503 (5th Cir. 1986). Inferences drawn
from familial relationships or mere knowing presence, however, may
be combined with other circumstantial evidence to support a
conspiracy conviction. Id.
The Government relies on several pieces of evidence to support
Broussard's conviction. The Government argues that Broussard's
various conversations with Torres indicate her voluntary
participation because she knew to contact Torres when a problem
arose and she understood the need to be discreet when contacting
him. The record reveals that Hughes was arrested in Louisiana
while on a drug-transporting trip. Shortly thereafter Broussard
contacted Torres and stated, "I think we got a problem." On July
4
12, 1993, Broussard called Torres from a friend's home to tell him
that Hughes's bail had been set at $500,000. When Torres
discovered where Broussard was calling from, he became concerned
that she had not used a pay phone. Broussard assured him that the
phone was "safe," but Torres remained unconvinced, informing
Broussard, "Listen, if people around anything, you know if people
just around, while we talk that's not the waySQyou can always find
a payphone."
Evidence was also presented that on at least one occasion
Broussard reserved hotel rooms for Hughes to stay in on a drug run.
Broussard admitted during questioning by DEA agents that she
participated in two trips and that she had received a share of the
fee plus expenses for each trip. Although Broussard contends that
Hughes testified that Broussard was unaware that the vehicles
contained secret compartments to carry drugs, the Government
asserts that the jury could infer that Broussard knew at the time
she willingly participated in the trips that their purpose was to
transport illicit drugs.2 Broussard also knew that Torres paid
Hughes to transport $60,000 from Houston to Miami.
Viewing the evidence in the light most favorable to the jury's
verdict, we conclude that the conviction should be upheld. See
Sanchez-Sotelo, 8 F.3d at 208. A reasonable jury could infer from
2
Hughes testified during trial that although no one explicitly
informed her that she was transporting drugs, she believed that the
cars she drove were carrying money or drugs. The Government
asserts that the jury could reasonably infer that Broussard
similarly understood that drug trafficking was involved because she
was also paid and had witnessed the same routine. In connection
with this, we note that Broussard had a prior conviction for
possession of a large amount of marijuana.
5
the evidence that Broussard knew of and voluntarily participated in
the drug-trafficking conspiracy.
B. Ruth Castro
Castro argues that the evidence is insufficient to support her
conviction for drug conspiracy.3 The Government principally relied
on two recorded phone conversations in prosecuting Castro. On July
8, 1993, two days before Hughes was arrested in a gold Lincoln
Continental carrying fifty-four bags of cocaine in Louisiana,
Castro paged her brother, Raphael Castro, and put in a call-back
code of "54." She then called her sister, Luce, and informed her
using code words that she had placed a number in Raphael Castro's
beeper. Ruth Castro then stated, "Mark him, so he can come and
take the yellow . . . car,"4 and also requested that Luce tell
Raphael that Ruth needed a favor from him.
Soon after Hughes was arrested on July 10, 1993, Torres and
Ruth Castro engaged in a coded conversation:
Torres: I got a call, my aunt like . . . I don't know
yet what's happening.
. . .
Castro: Is she ill?
Torres: It's not known exactly yet, what it is. . . .
3
She also contends that the evidence is insufficient to support
a conviction for aiding and abetting. The jury obviously agreed,
as it acquitted Castro on this charge. Thus, we need not address
Castro's contention.
4
The Government asserts that the "yellow car" meant the gold
Lincoln based on Raphael Castro's conversation with Torres a few
hours later: "Lucy said that Ruth called of [sic] the Lincoln."
Castro then informed Torres that he had "armed" the Lincoln. The
jury could conclude that the "yellow car" referred to was the
Lincoln.
6
Bob Boudreau, a DEA agent, testified that based upon his experience
and his involvement in the investigation, Torres's reference to an
"aunt" informed Castro that one of Torres's associates was in
trouble, and Castro's response inquiring whether the aunt was ill
was intended to specifically question whether Hughes had been
arrested.
Castro argues that these conversations do not prove that she
either knew of or voluntarily participated in the conspiracy. She
asserts that the Government presented no evidence that she was
alone during her conversation with Luce concerning the "yellow
car." Thus, she claims the Government could not discount the
strong probability that she was merely passing along messages
without being aware of their content. In United States v. Ortiz,
942 F.2d 903 (5th Cir. 1991), cert. denied, 504 U.S. 985, 112 S.
Ct. 2966, 119 L. Ed.2d 587 (1992), the defendant similarly argued
that she relayed messages without understanding their content.
This Court rejected her argument, noting that her explanations
"blithely overlook the fact that we are bound at this juncture to
`resolve all inferences and credibility assessments in favor of the
jury verdict.'" Id. at 908 (quoting United States v. Singh, 922
F.2d 1169, 1173 (5th Cir.), cert. denied, 500 U.S. 938, 111 S. Ct.
2066, 114 L. Ed.2d 471 (1991)). Castro's arguments reflect the
same misapprehension of our role in reviewing the evidence. Castro
apparently made this self-serving argument to the jury; the jury
rejected it.
In addition to the phone conversations, Castro associated with
various members of the conspiracy, was a frequent passenger in many
7
of the cars used for drug transport, often was present at sites,
such as hotels, important to the conspiracy, and was present in the
car on a couple of occasions when Torres engaged in "heat
runs"SQerratic driving commonly used to determine whether a vehicle
is under police surveillance. The Government's search of Torres's
and Castro's home revealed no evidence that either was employed or
had a legitimate source of income, yet approximately $10,000 was
recovered from their home.
From these circumstances, the jury could infer Castro's guilt.
See United States v. Steen, 55 F.3d 1022, 1032 (5th Cir.), cert.
denied, U.S. , 116 S. Ct. 577, 133 L. Ed.2d 500 (1995)
(concluding that knowledge can be inferred from suspicious
circumstances that indicate the defendant's consciousness of
guilt). Despite Castro's assertion that the jury convicted her
based on her marital relationship with Torres, the evidence
provided an adequate basis for the jury to infer Castro's knowledge
of and voluntary participation in the conspiracy. See United
States v. Ornelas-Rodriguez, 12 F.3d 1339, 1345 (5th Cir.), cert.
denied, U.S. , 115 S. Ct. 103, 130 L. Ed.2d 51 (1994).
The evidence was sufficient to support both Broussard's and
Castro's convictions for conspiracy to possess cocaine with the
intent to distribute.
II. District Court's Refusal to Suppress Evidence
Raphael Castro and Claude Merritt attack the district court's
admission of evidence seized and incriminating statements made
during the searches of their residences. In reviewing a district
8
court's ruling on a motion to suppress, we must accept its factual
findings unless they are clearly erroneous or are influenced by an
incorrect view of the law. United States v. Breeland, 53 F.3d 100,
102 (5th Cir. 1995).
A. Raphael Castro
During the execution of a search warrant on July 17, 1993,
officers confronted Raphael Castro. Officer Richard Mireles
advised Castro of his legal rights in both English and Spanish and
then permitted Castro to read the Spanish Miranda warning card
himself. Castro indicated that he understood his rights, but made
no statements at that time. Castro was then detained while
officers performed a search of the residence.
Approximately ten to fifteen minutes after his initial
detention, other officers on the scene informed Mireles that Castro
wanted to speak with him. Castro told Mireles that he wanted to
cooperate with the DEA and give it "the big deal." Mireles then
advised the case agent, Mike McDaniel, of Castro's desire to
cooperate. McDaniel testified at the suppression hearing that
Castro was informed that he would go to jail, but that the U.S.
Attorney's office would be advised of his cooperation. Castro then
made several incriminating statements to officers concerning his
involvement in the drug ring.
Castro initially argues that his detention violated the Fourth
Amendment because it was prolonged and overly intrusive. See
Michigan v. Summers, 452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed.2d 340
(1981). Although Castro concedes that the search warrant was
9
valid, he argues that the manner in which it was carried out was
unreasonable and, thus, violative of the Fourth Amendment.
Franklin v. Foxworth, 31 F.3d 873, 875 (9th Cir. 1994). Castro
argues that he was held for fifteen minutes without being taken
before a magistrate, he did not speak English, he was taken to the
area searched and questioned during the search, and he was promised
leniency. He argues that these factors indicate overly intrusive
police conduct in the absence of any law enforcement interests in
detention.
We reject Castro's contention. Castro concedes that the
officers could detain him and we find no merit in his argument that
the officers' actions constituted prolonged or overly intrusive
police conduct. Castro was detained only ten to fifteen minutes
before he agreed to cooperate, the evidence provides no indication
that the search was not conducted diligently, and Castro was not
handcuffed or threatened during this period. Although Castro
attempts to make much of the fact that he did not speak English,
there was at least one officer on the premises who spoke Spanish
and communicated with Castro. As discussed in more detail below,
Castro was not promised leniency in exchange for his cooperation.
Moreover, we perceive nothing improper in the fact that Castro was
taken to the driveway while officers searched the house and the
garage. The officers did not act unreasonably and certainly there
is no support for Castro's claim of overly intrusive police
conduct. Castro's Fourth Amendment challenge fails.
Castro next contends that the district court erred in
admitting his incriminating statements to officers during the
10
search because they were obtained in violation of his Fifth
Amendment rights. A confession is voluntary if, under the totality
of the circumstances, the statement is the product of the accused's
free and rational choice. United States v. Scurlock, 52 F.3d 531,
536 (5th Cir. 1995). A confession cannot be the product of
official overreaching in the form of either direct or subtle
psychological persuasion. Id.
The totality of the circumstances surrounding Castro's
detention indicates that his statements were voluntary. He was
immediately informed of his Miranda rights in Spanish, asked after
each warning whether he understood, and given an opportunity to
read a Spanish Miranda warning card.5 Only fifteen minutes elapsed
between the Miranda warnings and Castro's offer to cooperate.
Castro also asserts that he was promised leniency in exchange for
cooperation. Officers informed Castro that the U.S. Attorney would
be apprised of his cooperation, but he was unequivocally informed
that even if he cooperated, he would still go to prison. The
officers' statements did not constitute a promise of leniency. See
United States v. Ballard, 586 F.2d 1060, 1063 (5th Cir. 1978)
(concluding that a statement that the accused's cooperation will be
made known to the court is an insufficient inducement to render
5
Castro also alleges that the officers interrogated him after
he refused to speak with them and that an unidentified translator
advised him of his Miranda rights and translated his incriminating
statements. Neither allegation is supported by the record.
Officer Mireles testified that he read Castro his rights and
subsequently was told by other officers that Castro wanted to speak
with him. The Government also points to the fact that Castro could
not have been interrogated by other officers because all evidence
indicates that the other officers with Castro did not speak
Spanish.
11
subsequent confession involuntary); Ornelas-Rodriguez, 12 F.3d at
1348 (advising accused that there are advantages to cooperating
does not render confession involuntary). Castro's incriminating
statements were voluntary, and we conclude that his Fifth Amendment
rights were not violated.
B. Merritt
Merritt challenges the district court's denial of a motion to
suppress evidence seized during a search of his home and the
admission of his confession. Merritt concedes that the affidavit
arguably established probable cause to believe that he was engaged
in drug trafficking, but asserts that the affidavit failed to
establish probable cause to support the magistrate's determination
that evidence of drug-trafficking would be found in his home.
If an officer's reliance on a search warrant is objectively
reasonable, evidence obtained under such warrant is admissible,
even if the warrant itself is not based on adequate probable cause.
United States v. Royal, 972 F.2d 643, 646 (5th Cir. 1992), cert.
denied, 507 U.S. 911, 113 S. Ct. 1258, 122 L. Ed.2d 655 (1993); see
United States v. Restrepo, 994 F.2d 173, 187 (5th Cir. 1993). In
order to avoid application of the good-faith exception to the
exclusionary rule, Merritt argues that the magistrate wholly
abandoned its judicial role and the warrant was so lacking in
indicia of probable cause as to render official belief in its
existence unreasonable. See United States v. Leon, 468 U.S. 897,
923, 104 S. Ct. 3405, 3421, 82 L. Ed.2d 677 (1984) (outlining
various situations where the good-faith exception does not apply).
12
The affidavit must establish a nexus between the house to be
searched and the evidence sought. See United States v. Freeman,
685 F.2d 942, 949 (5th Cir. 1982). That nexus may be established,
however, by direct observation or through normal inferences as to
where the articles sought would be located. See id.; United States
v. Pace, 955 F.2d 270, 277 (5th Cir. 1992). Despite Merritt's
argument that the affidavit fails to establish any connection
between his residence and the drug-trafficking activity, the
affidavit contains sufficient facts to conclude that the DEA
agents' reliance was reasonable.
The so-called "boilerplate" assertions that Merritt complains
of, which are based on the affiant's extensive experience and
training and involve generalizations about the types of evidence
that may be found in drug dealers' residences, do not undermine the
reasonableness of reliance on the warrant. See Restrepo, 994 F.2d
at 188; United States v. Kleinebreil, 966 F.2d 945, 949 (5th Cir.
1992). We do not mean to suggest that these types of
generalizations, without more, are sufficient to render the
officers' reliance objectively reasonable.
In the instant cause, however, the affiant presented specific
facts linking Merritt and the residence to drug-trafficking
activities. On July 8, 1993, Ruth Castro instructed someone to
place cocaine in the gold Lincoln Continental. Later that day,
Merritt and Torres picked up the Lincoln, and Merritt parked it in
his driveway. Merritt and Torres then discussed delivery of the
Lincoln, and Merritt was observed delivering the car to Hughes, who
was arrested in Louisiana after cocaine was found in the car. The
13
affidavit also describes Merritt's involvement in two different
apparent drug transactions. Merritt was also observed picking up
a bag at a storage unit where police believed drugs were stored,
the FILL-ER UP, and placing it in his car. He then drove to his
residence and took the bag inside.
Based on this evidence, we conclude that the affidavit
contained more than "bare bones" assertions and, thus, the
officers' reliance on the warrant was reasonable. Restrepo, 994
F.2d at 189; United States v. Pigrum, 922 F.2d 249, 252 (5th Cir.),
cert. denied, 500 U.S. 936, 111 S. Ct. 2064, 114 L. Ed.2d 468
(1991). The good-faith exception applies.6
Merritt also asserts that the district court erred in
admitting his oral confession because officers initiated contact
with him after he indicated a desire for an attorney. Law
enforcement agents may not interrogate an accused once he or she
indicates a desire for counsel. See Edwards v. Arizona, 451 U.S.
477, 484-85, 101 S. Ct. 1880, 1885, 68 L. Ed.2d 378 (1981).
Merritt's claims arise out of events that occurred during the
execution of a search warrant at his residence at approximately six
a.m. on July 17, 1993. Merritt answered the door wearing a robe,
was taken outside and frisked, and then was given a Miranda
warning. Although Merritt did not orally state that he refused to
6
Because we have concluded that the affidavit contained more
than conclusory allegations and because the record provides no
indication that the magistrate had any bias or interest in issuing
the warrant or otherwise dispensed with its neutral and detached
role, we reject Merritt's contention that the magistrate abandoned
its neutral role. See United States v. Mueller, 902 F.2d 336, 340
(5th Cir. 1990).
14
waive his rights, he refused to sign the waiver card, and the word
"refuse" was later written on the card. DEA agent Robert Schaefer
subsequently read him his rights, which Merritt indicated that he
understood, and Merritt then agreed to answer Schaefer's questions.
Merritt also signed a consent form to search a storage unit he was
leasing. Merritt then made several incriminating statements.
The district court was presented conflicting evidence on the
issue of whether Merritt requested an attorney. The court
concluded that Schaefer's and Harris County Deputy Roger Harvey's
testimony that Merritt did not request an attorney was credible and
that Merritt's and his wife's interest in the outcome of the case
rendered their testimony that Merritt requested an attorney less
credible. The district court's decision is not clearly erroneous.
"[W]hen a trial judge's finding is based on his decision to credit
the testimony of one of two or more witnesses . . . that finding,
if not internally inconsistent, can virtually never be clear
error." Anderson v. City of Bessemer City, N.C., 470 U.S. 564,
575, 105 S. Ct. 1504, 1512, 84 L. Ed.2d 518 (1985).
Merritt's contention that his refusal to sign the waiver form
represented an invocation of his right to an attorney similarly
fails. See United States v. McKinney, 758 F.2d 1036, 1044-45 (5th
Cir. 1985) (rejecting a claim that a defendant's refusal to sign a
waiver form constitutes a request for an attorney). The district
court did not err in admitting statements Merritt made during the
search of his home.
Merritt further asserts that the district court erred in
admitting cocaine seized as a result of Merritt's consent to search
15
the storage unit. Because the district court did not err in
finding that Merritt did not request an attorney, we need not
consider his argument that the cocaine was seized as a result of a
Miranda violation or the consequences of such a claimed violation.
Merritt also contends that the consent to search was
involuntary because it resulted from "extreme psychological
pressure." In assessing voluntariness, the court should examine
the totality of the circumstances. See United States v. Gonzalez-
Basulto, 898 F.2d 1011, 1012-13 (5th Cir. 1990) (outlining factors
to consider in determining voluntariness). The district court's
decision is reviewed only for clear error. United States v. Ponce,
8 F.3d 989, 997 (5th Cir. 1993).
Merritt was an intelligent person with some college education
and was apprised of his Miranda rights. Merritt's contention that
he was under "great psychological pressure" is not supported by the
evidence adduced at the hearing. The district court found credible
Schaefer's and Harvey's testimony that the officers did not
threaten Merritt, and that they holstered their guns once the
residence was secured. Merritt and his wife testified at the
suppression hearing that many of the officers were rude; however,
both indicated that Schaefer was courteous.7 Mrs. Merritt also
7
Merritt argues that the officers ignored his requests to use
the bathroom, causing him to urinate on himself, which humiliated
him and contributed to the psychological pressure. The suppression
hearing evidence, however, indicates that the officers took Merritt
outside as soon as he opened the door, and that he was kept outside
for approximately two minutes. It was during this period that
Merritt urinated. We perceive nothing coercive in the officers'
failure to give Merritt an opportunity to use the restroom while
they were securing the premises.
16
testified that the officers informed Merritt that "if you cooperate
with us, it will make it easier for you. We won't have to arrest
your wife or tear your house up any more."
The district court was not required to believe Merritt's
testimony or proffered evidence at the suppression hearing. In any
event, none of the officers' actions which the Merritts testified
to were so "offensive to a civilized system of justice that they
must be condemned." Miller v. Fenton, 474 U.S. 104, 109, 106 S.
Ct. 445, 449, 88 L. Ed.2d 405 (1985) (noting that confessions
procured by beatings or other forms of physical or psychological
torture cannot be used to obtain a conviction). The district court
did not clearly err in finding that Merritt's consent to search was
voluntary.
III. Severance
Ruth Castro and Torres appeal from the district court's denial
of their motions for severance on the ground of unfair prejudice
resulting from the "spillover effect" of evidence presented against
their co-defendants. Castro also appeals on the ground that Torres
would have testified in her behalf if their trials had been
severed. Joinder was proper in the instant cause because the
indictment alleged that the defendants participated in the same
conspiracy. See United States v. Rocha, 916 F.2d 219, 228 (5th
Cir. 1990), cert. denied, 500 U.S. 934, 111 S. Ct. 2057, 114 L.
Ed.2d 462 (1991); see also Fed. R. Crim. P. 8(b). A severance may
be granted, however, if it appears that a defendant is prejudiced
by the joinder. Fed. R. Crim. P. 14. The district court's denial
17
of severance is reviewed for an abuse of discretion. United States
v. Ellender, 947 F.2d 748, 754 (5th Cir. 1991).
A. Torres
Torres asserts that the district court abused its discretion
because very little of the evidence presented at trial applied to
him; thus, he suffered prejudice from the spillover effect of
evidence about his co-defendants. See United States v. Erwin, 793
F.2d 656, 666 (5th Cir.), cert. denied, 479 U.S. 991, 107 S. Ct.
589, 93 L. Ed.2d 590 (1986). The evidence indicates, however, that
many of the witnesses at trial implicated Torres by linking him to
the illicit or suspicious activities of others.8 Thus, we are not
confronted with the situation where there is meager evidence
against one defendant, yet that defendant runs the risk of
conviction as the result of a prejudicial spillover. Torres has
not shown specific and compelling prejudice as a result of the
denial of severance. Id. at 665.
B. Ruth Castro
Ruth Castro similarly contends that the mountainous evidence
8
The evidence implicated Torres in (1) buying cars with cash
and shipping them to Colombia pursuant to a money-laundering
scheme; (2) arranging and coordinating Hughes's various drug-
trafficking transports to New York and Chicago and her cash-
carrying trip to Miami; (3) meeting with various other co-
conspirators; (4) engaging in "heat runs" to detect police
surveillance; (6) participating in thirty of the thirty-four phone
calls that were played to the jury; and (7) a drug ledger sheet
obtained from trash at Torres's and Castro's home, which included
cars, amounts of cocaine hidden in each car's secret compartment,
and the location to which various amounts were transported.
18
regarding the participation of other co-defendants did not
implicate her. The Supreme Court has indicated that a severance
should be granted "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, U.S. , 113
S. Ct. 933, 938, 122 L. Ed.2d 317 (1993). Neither a quantitative
disparity in the evidence nor a prejudicial spillover effect is
sufficient in and of itself to warrant a severance. United States
v. Mitchell, 31 F.3d 271, 276 (5th Cir.), cert. denied, U.S. ,
115 S. Ct. 455, 130 L. Ed.2d 363 (1994). Castro cannot show the
"specific and compelling prejudice" required in order to
necessitate a finding that the district court abused its
discretion. Id.
Although the Supreme Court has noted that the risk of
prejudice is heightened when defendants have markedly different
degrees of culpability, it concluded that severance is not always
necessary if less drastic measures, such as limiting instructions,
will suffice to cure the risk of prejudice. See Zafiro, U.S. at
, 113 S. Ct. at 938; United States v. McKinney, 53 F.3d 664, 674
(5th Cir.), cert. denied, U.S. , 116 S. Ct. 261, 133 L. Ed.2d
184 (1995); Rocha, 916 F.2d at 228 (severance not required in a
conspiracy trial even if a disparity in the quantity of evidence
exists if district court repeatedly gives cautionary instructions).
In the instant cause, the district court cautioned the jury
throughout the trial that it must consider the evidence of guilt
separately against each defendant.
19
Castro also asserts that her relationship with Torres rendered
it impossible for the jury to distinguish between the evidence
presented against each of them and weigh it separately. The record
does not support this contention. Castro was acquitted on one of
the two counts with which she was charged in the indictment.
Castro's acquittal on one count supports the conclusion that the
jury sorted through the evidence and considered each count
separately. McKinney, 53 F.3d at 674; see United States v.
Hawkins, 661 F.2d 436, 453 (5th Cir. 1981), cert. denied, 456 U.S.
991, 102 S. Ct. 2274, 73 L. Ed.2d 1287 (1982) (mixed verdicts
indicate jury engaged in careful weighing of evidence against each
defendant). Castro has not shown that the district court's
limiting instructions were insufficient to cure any prejudice from
spillover. See Zafiro, U.S. at , 113 S. Ct. at 938.
Castro further contends that a severance was required so that
Torres could testify in her behalf. Castro submitted a signed
affidavit by Torres, which indicated his willingness to offer
exculpatory evidence for Castro. In order to establish a prima
facie case warranting severance for the purpose of introducing
exculpatory testimony of a co-defendant, the defendant must show:
(1) a bona fide need for the testimony; (2) the substance of the
testimony; (3) its exculpatory nature and effect; and (4) that the
co-defendant would in fact testify if a severance was granted.
Rocha, 916 F.2d at 232. The Government argues that Castro failed
to make the requisite showing on the latter two prongs.
The Government asserts that Torres's proposed testimony lacked
specific exculpatory facts because he stated only that it was his
20
opinion that Castro did not understand the import of the calls she
placed. Because Torres failed to offer any factual basis for this
opinion, his proffered testimony lacked probative value. See Byrd
v. Wainwright, 428 F.2d 1017, 1021 (5th Cir. 1970) (holding that
the court is not required to sever if the testimony is of
negligible weight or probative value). Without specific and
exonerative facts to support Torres's opinion, his proffer of
testimony amounts to little more than a bare, conclusory allegation
that Castro was unaware of the content of the messages. See United
States v. DeSimone, 660 F.2d 532, 540 (5th Cir. 1981), cert.
denied, 455 U.S. 1027, 102 S. Ct. 1732, 72 L. Ed.2d 149 (1982).
Castro also failed to establish that Torres would in fact
testify if a severance were granted. See United States v. Kane,
887 F.2d 568, 573 (5th Cir. 1989), cert. denied, 493 U.S. 1090, 110
S. Ct. 1159, 107 L. Ed.2d 1062 (1990). Torres stated in his
affidavit that he would be willing to testify if a severance were
granted and he were tried first because he did not want to waive
his Fifth Amendment rights. Torres's offer was contingent upon his
trial occurring before Castro's; thus, it did not constitute an
unequivocal offer to testify. See United States v. McDonald, 837
F.2d 1287, 1290 (5th Cir. 1988) (co-defendant's offer to testify if
he were granted immunity or acquitted at his own trial insufficient
to show co-defendant would in fact testify); United States v.
Alejandro, 527 F.2d 423, 428 (5th Cir.), cert. denied, 429 U.S.
844, 97 S. Ct. 124, 50 L. Ed.2d 115 (1976) (severance not required
where co-defendant does not offer to exculpate defendant contrary
to his own penal interest); United States v. Cochran, 499 F.2d 380,
21
391-92 (5th Cir. 1974), cert. denied, 419 U.S. 1124, 95 S. Ct. 810,
42 L. Ed.2d 825 (1975) (no severance required where co-defendants
indicated they would testify only if no charges were pending
against them).
We have previously determined that it is the district court's
prerogative to decide the order in which defendants will be tried.
See Byrd, 428 F.2d at 1022. We agree with the Sixth Circuit's
conclusion that co-conspirators should not be allowed to control
the order in which they are tried. See United States v. Blanco,
844 F.2d 344, 353 (6th Cir.), cert. denied, 486 U.S. 1046, 108 S.
Ct. 2042, 100 L. Ed.2d 626 (1988) (offer to testify illusory
because co-defendant conditioned testifying on being tried first).
Torres's affidavit did not establish that he would in fact testify
if a severance were granted and it attempted to usurp the district
court's discretion to determine the order in which the defendants
would be tried. Accordingly, no abuse of discretion was occasioned
by the district court's denial of Castro's severance motions.
IV. Continuing Criminal Enterprise
Torres challenges his conviction on one count of engaging in
a continuing criminal enterprise ("CCE"), alleging that the
district court erred in instructing the jury. To convict Torres,
the jury had to find that he acted "in concert with five or more
other persons with respect to whom [Torres] occupie[d] a position
of organizer, a supervisory position, or any other position of
management." 21 U.S.C. § 848(b)(2)(A).
Relying on a Ninth Circuit case, United States v. Jerome, 942
22
F.2d 1328, 1331 (9th Cir. 1991), Torres argues that the district
court's failure to instruct that the jury must unanimously agree on
the identity of the five persons constituted plain error. We have
specifically held, however, that 21 U.S.C. § 848 does not require
the jury to agree unanimously on the identities of the five
individuals. See United States v. Thomas, 12 F.3d 1350, 1366 n.26
(5th Cir.), cert. denied, U.S. , 114 S. Ct. 1861, 128 L. Ed.2d
483 (1994); United States v. Linn, 889 F.2d 1369, 1374 (5th Cir.
1989), cert. denied, 498 U.S. 809, 111 S. Ct. 43, 112 L. Ed.2d 19
(1990). The district court correctly refused to instruct the jury
on unanimity.
V. Admission of a Co-Conspirator's Statement
Broussard complains of the district court's admission of the
taped conversations between Torres and her because the Government
failed to lay a proper predicate for their admission. Out-of-court
statements are not considered hearsay if they are made by a co-
conspirator of a party during the course and in furtherance of the
conspiracy. Fed. R. Evid. 801(d)(2)(E). The Government must
establish by a preponderance of the evidence that the declarant and
the defendant were involved in a conspiracy and that the statements
were made during and in furtherance of the conspiracy. Bourjaily
v. United States, 483 U.S. 171, 175, 107 S. Ct. 2775, 2778-79, 97
L. Ed.2d 144 (1987).
Broussard contends that the evidence independent of the
statement itself must be sufficient to show the existence of a
conspiracy. To the contrary, the Supreme Court has held that the
23
alleged hearsay statements may be considered in making the Rule
801(d)(2)(E) determination. See id. at 181, 107 S. Ct. at 2781.
In the instant cause, the statements, in conjunction with other
evidence, are more than adequate to establish the existence of a
conspiracy.
Broussard further asserts that even if a conspiracy existed,
the district court erred because the statements were not made in
furtherance of the conspiracy. The conversations concerned
Hughes's arrest and the best method of obtaining her release.
Although Broussard correctly asserts that the taped conversations
did not mention drug-trafficking, the failure to explicitly discuss
drugs or drug-trafficking does not automatically indicate that the
conversations were not in furtherance of the conspiracy. Indeed,
"in furtherance of a conspiracy" is not to be construed too
strictly lest the purpose of the exception be defeated. United
States v. Lechuga, 888 F.2d 1472, 1480 (5th Cir. 1989). We have
"shunned an overly literal interpretation of this [phrase]."
United States v. Ascarrunz, 838 F.2d 759, 763 (5th Cir. 1988).
The conversations about Hughes's arrest concerned a
significant event that threatened the existence of the conspiracy.
Torres and Broussard's conversations implicitly involve how best to
avert damage to the ongoing drug conspiracy. Their discussions do
not involve mere idle conversation, which we have previously
concluded does not fall within the exception. See United States v.
Means, 695 F.2d 811, 818 (5th Cir. 1983). We agree with the
Seventh Circuit's pronouncement that statements "in furtherance" of
a conspiracy can take many forms, including statements seeking to
24
control damage to an ongoing conspiracy and statements made in an
attempt to conceal the criminal objectives of the conspiracy. See
United States v. Doerr, 886 F.2d 944, 951 (7th Cir. 1989); see also
United States v. Smith, 833 F.2d 213, 219 (10th Cir. 1987)
("[S]tatements that explain events of importance to the conspiracy
in order to facilitate its operation are considered to be in
furtherance of the conspiracy.").
Moreover, Torres's statements in which he emphasized to
Broussard the need to use a "safe" pay phone clearly indicates
Torres's desire that the conspiracy be kept concealed from DEA
agents. Given that concealment is often a necessary part of a
conspiracy, statements made to aid the concealment are made in
furtherance of the conspiracy. See United States v. Esacove, 943
F.2d 3, 5 (5th Cir. 1991); United States v. Del Valle, 587 F.2d
699, 704 (5th Cir.), cert. denied, 442 U.S. 909, 99 S. Ct. 2822, 61
L. Ed.2d 274 (1979).
We conclude that the district court did not clearly err in
finding the recorded conversations were in furtherance of the
conspiracy. See United States v. Stephens, 964 F.2d 424, 434 (5th
Cir. 1992) (district court's finding of "in furtherance" is
reviewed for clear error). The taped conversations were properly
admitted.
VI. Evidence of Prior Convictions
Broussard and Torres challenge the district court's admission
of their prior convictions at trial. The Government introduced
evidence that Torres had been convicted in 1981 of knowingly and
25
intentionally conspiring and possessing with intent to distribute
marijuana and was sentenced to four years. The Government also
presented evidence that Broussard was placed on ten-years deferred
adjudication in 1991 for possession of marijuana in a usable
quantity of more than fifty but less than 200 pounds.
Evidence of extrinsic acts may be admissible as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. Fed. R. Evid. 404(b). The
district court's admission of extrinsic acts evidence may be
reversed only upon a clear showing of an abuse of discretion.
United States v. McCarty, 36 F.3d 1349, 1353 (5th Cir. 1994).
In assessing violations of Rule 404(b), we engage in a two-
part test: (1) the evidence is relevant to an issue other than the
defendant's character; and (2) the evidence possesses probative
value that is not substantially outweighed by the danger of unfair
prejudice and is otherwise admissible under Rule 403. United
States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978), cert. denied,
440 U.S. 920, 99 S. Ct. 1244, 59 L. Ed.2d 472 (1979). The first
prong of Beechum is satisfied as to Torres and Broussard. The mere
entry of a not guilty plea in a conspiracy case raises the issue of
intent sufficiently to justify the admissibility of extrinsic
offense evidence. Bermea, 30 F.3d at 1562; United States v.
Parziale, 947 F.2d 123, 129 (5th Cir. 1991), cert. denied, 503 U.S.
946, 112 S. Ct. 1499, 117 L. Ed.2d 638 (1992). Thus, our task is
simply to determine whether the requirements of Rule 403 are
satisfied.
The evidence of the prior convictions was clearly probative on
26
the issue of intent. Torres had previously been convicted of
conspiring with intent to distribute marijuana, which bears marked
similarity to offenses charged in the instant cause. Broussard's
recent conviction for possession of fifty to 200 pounds of
marijuana was similarly highly probative of her knowledge of the
drug conspiracy and her intent to participate. See Bermea, 30 F.3d
at 1562 (noting that in drug offense cases courts frequently find
extrinsic drug offense evidence admissible); United States v.
Harris, 932 F.2d 1529, 1534 (5th Cir.), cert. denied, 502 U.S. 897,
112 S. Ct. 270, 116 L. Ed.2d 223 (1991) (holding that proof of
prior drug activities is more probative than prejudicial).
Torres principally argues that he suffered unfair prejudice
because his prior conviction was more than ten years old. Although
the remoteness of the extrinsic acts evidence may weaken its
probative value, the age of the prior conviction does not bar its
use under Rule 404. United States v. Rubio-Gonzalez, 674 F.2d
1067, 1075 (5th Cir. 1982). The fact that the offenses involved
different narcotics does not unfairly prejudice Torres in light of
the fact that both offenses involved conspiracy to possess with the
intent to distribute. See United States v. Devine, 934 F.2d 1325,
1345-46 (5th Cir. 1991), cert. denied, 502 U.S. 1065, 112 S. Ct.
954, 117 L. Ed.2d 121 (1992) (determining that the defendant's
prior cocaine dealing was admissible in trial for conspiracy to
manufacture and sell methamphetamine).
Broussard argues that the admission of her 1991 conviction
was unfairly prejudicial because it led to her conviction while
most of her family and friends were acquitted. She argues that the
27
extrinsic acts evidence caused the jury to find her guilty in the
absence of sufficient evidence that she committed the charged
crimes. The Government's case, however, was stronger against her
than other family members because the Government had tapes of
incriminating conversations between Broussard and Torres.9 The
evidence was not so weak against Broussard that the jury was forced
to rely on the prior conviction as evidence that Broussard
committed the currently charged offenses. Broussard was not
unfairly prejudiced by the admission of the prior conviction.
Moreover, any prejudice Torres and Broussard suffered was
minimized by the district court's limiting instruction, which was
given immediately after the extrinsic offenses were offered in
evidence. See United States v. Gordon, 780 F.2d 1165, 1174-75 (5th
Cir. 1986); see also Devine, 934 F.2d at 1346; United States v.
Henthorn, 815 F.2d 304, 308 (5th Cir. 1987). We conclude that the
district court did not abuse its discretion in admitting the prior
convictions of Torres and Broussard.
VII. Sentence Enhancement Based on Weapons found in Home
Merritt contends that the district court erred in increasing
his offense level by two points for three guns found in his home
during a search, arguing that the Government failed to establish
that the weapons were connected to the offense and that increasing
9
Broussard's argument is also undermined by the fact that the
Government introduced evidence of a prior offense committed by
Leslie Jeanmard, a co-indictee whom the jury acquitted. As the
Government correctly asserts, admission of the extrinsic bad act
could not therefore be the sole reason the jury found Broussard
guilty; otherwise it would have similarly convicted Jeanmard.
28
the level violates his constitutional rights. The Sentencing
Guidelines provide for a two-level increase if "a dangerous weapon
(including a firearm) was possessed." U.S.S.G. § 2D1.1(b)(1)
(1994). The adjustment "should be applied if the weapon was
present, unless it is clearly improbable that the weapon was
connected with the offense." Id. § 2D1.1 cmt. 3. A district
court's decision to apply section 2D1.1(b)(1) is reviewed only for
clear error. Devine, 934 F.2d at 1339.
In the instant cause, the three guns were found in the same
home where large amounts of cocaine were stored; two of the guns
were found in the same dresser drawer as some of the cocaine.
Thus, the Government met its burden under section 2D1.1(b)(1).
United States v. Eastland, 989 F.2d 760, 770 (5th Cir.), cert.
denied, U.S. , 114 S. Ct. 246, 126 L. Ed.2d 200 (1993)
(concluding that enhancement is proper if the guns are found at the
same location where drugs are stored or where a drug transaction
occurred); see United States v. Mergerson, 4 F.3d 337, 350 (5th
Cir. 1993), cert. denied, U.S. , 114 S. Ct. 1310, 127 L. Ed.2d
660 (1994); United States v. Menesses, 962 F.2d 420, 428-29 (5th
Cir. 1992). The district court did not clearly err in enhancing
Merritt's sentence by two levels.
Merritt alternatively argues that the enhancement chills his
constitutional right to possess weapons. See Stinson v. United
States, U.S. , 113 S. Ct. 1913, 1915, 123 L. Ed.2d 598 (1993)
(holding that the Guidelines commentary is authoritative unless it
violates the Constitution). Merritt concedes that the Second
Amendment, which concerns possession of weapons for a well-
29
organized militia, is inapplicable, but asserts that the right to
possess weapons is among the rights reserved to citizens by the
Ninth Amendment. U.S. Const. amend. IX.10 Merritt does not point
to any authority in support of his argument.11 Nor does he advance
any rationale to support his assertion that the right to possess
weapons is among the rights reserved to citizens under the Ninth
Amendment. Merritt relies solely on a law review article to
support his contention. See Nicholas J. Johnson, Beyond the Second
Amendment: An Individual Right to Arms Viewed Through the Ninth
Amendment, 24 Rutgers L.J. 1 (1992). We are not persuaded to
discover or declare a new constitutional right to possess weapons
under the Ninth Amendment on the basis of Merritt's proffered
"authority."
Moreover, Professor Johnson's article is premised on the
construct of self-defense. In the instant cause, Merritt presented
evidence that he used the guns to "hunt and practice shooting guns
just for the fun of it." Because Merritt's possession of the
firearms was not for personal security, his argument exceeds
Professor Johnson's rationale for the novel idea that possession of
10
The Ninth Amendment provides:
The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others
retained by the people.
11
Although neither this Court nor the Supreme Court has
addressed the issue of whether the Ninth Amendment encompasses a
right to possess firearms, two circuits have rejected this
contention. See Quilici v. Village of Morton Grove, 695 F.2d 261,
271 (7th Cir. 1982), cert. denied, 464 U.S. 863, 104 S. Ct. 194, 78
L. Ed.2d 170 (1983); United States v. Warin, 530 F.2d 103, 108 (6th
Cir.), cert. denied, 426 U.S. 948, 96 S. Ct. 3168, 49 L. Ed.2d 1185
(1976).
30
firearms is constitutionally protected under the Ninth Amendment.
We reject Merritt's argument that the sentence enhancement chills
a constitutional right.
The district court did not err in increasing Merritt's offense
by two levels.
CONCLUSION
Based on the forgoing discussion, we affirm the convictions of
Broussard, Torres, Ruth Castro, Raphael Castro, and Merritt.
AFFIRMED.
31