United States v. Castillo

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 94-10777
___________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YSIDRO CASTILLO, JR, aka Curly,
aka Big Un, GARY RHUDY, THOMAS
CHARLES BROWN, aka Big One,
THOMAS CHARLES BROWN, JR, aka
Little One, CHARLES DUANE BROWN,
MICHAEL CASTILLO and DAVID CASTILLO,
Defendants-Appellants,
________________________________________________
Appeals from the United States District Court for the
Northern District of Texas
________________________________________________
March 11, 1996
Before GARWOOD, E. GARZA and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Defendants-appellants (defendants) were convicted of one count
of conspiring to possess with the intent to distribute marihuana in
violation of 21 U.S.C. § 846. Defendant-appellant David Castillo
was additionally found guilty of a second count of possession with
intent to distribute approximately thirty-two pounds of marihuana
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D) and 18 U.S.C.
§ 2. Defendants now appeal their respective convictions and
sentences. We affirm.
Facts and Proceedings Below
I. Charles Ballard’s Testimony
On March 13, 1993, Charles Ballard (Ballard) was arrested for
possession of a box containing marihuana in the trunk of his car.
Ballard thereafter agreed to cooperate with law enforcement
officials in an effort to apprehend the persons for whom Ballard
was allegedly transporting the marihuana. Seven persons were
subsequently arrested, and, in the ensuing trial, Ballard testified
to the following facts.
From approximately February 1992 until March 1993, Ballard
transported marihuana by automobile from Dallas, Texas, to Dayton,
Ohio. During this period, Ballard made between twenty and thirty
such trips, transporting some two hundred to two hundred fifty
pounds of marihuana each trip.1 Generally, Ballard’s routine was
to contact someone from the “Castillo group”——comprised of
defendants Ysidro Castillo, Jr., David Castillo, Michael Castillo
and Gary Rhudy——upon his arrival in the Dallas area; after meeting
with one of these defendants, usually David Castillo, Ballard would
wait in a motel for someone to contact him and let him know that a
marihuana shipment was ready for transport back to Dayton, Ohio.
After returning to Dayton with the marihuana, Ballard would contact
someone from the “Brown group”——consisting of defendants Thomas
Brown, Sr., Thomas Brown, Jr., and Duane Brown——and arrange for a
1
Ballard testified that he transported less than this amount of
marihuana on his first two trips, and that he remembered
transporting as much as two hundred eighty pounds on another trip.
2
pick-up of the marihuana. Thomas Brown, Jr. usually gave Ballard
instructions to make the trips to Dallas, and Duane Brown was most
often the defendant who picked up the shipments upon Ballard’s
arrival in the Dayton area.
The marihuana was packaged in garbage bags. Often it was
weighed in Ballard’s presence by David and Ysidro Castillo, who
would thereafter instruct Ballard to inform Thomas Brown, Sr. and
Thomas Brown, Jr. of the weights.
On his first trip from Dayton to Dallas in February 1992,
Ballard was accompanied by Thomas Brown, Jr.2 Upon their arrival
in Dallas, Brown contacted David Castillo. Ballard and Brown
subsequently went to David Castillo’s residence, where the three
men loaded three or four bags of marihuana——a total of 144
pounds——into the trunk of Ballard’s car. Ballard and Brown then
returned to Dayton, where they unloaded these bags of marihuana and
placed them in the room at the Holiday Air Motel where Ballard
lived. Thomas Brown, Sr. then arrived at the motel to check the
quality of the marihuana. During the following week, Ballard
weighed the marihuana and packaged it in one-pound bags. Ballard
stored the bags in his room at the motel, and the “Brown group”
picked up bags as they needed them, usually by sending Duane Brown.
Ballard learned from discussions with members of the “Brown group”
that these one-pound bags were sold in Ohio for $1,350, and that
2
The 1979 Plymouth Volare driven by Ballard originally belonged
to Thomas Brown, Sr., but was transferred from the name of Thomas
Brown, Sr.’s girlfriend, Diana Markunes, to Ballard’s name.
3
the “Castillo group” was paid $750 per pound.
Ballard was sent to Dallas for a second shipment roughly one
week following his return to Dayton from the first trip. During
this second trip, David Castillo helped Ballard load approximately
two hundred pounds of marihuana into Ballard’s car. On his return,
Ballard settled into the pattern that would come to characterize
his return to Dayton from these trips, calling someone in the
“Brown group”——in this case, Thomas Brown, Sr.——and then packaging
and storing the marihuana in his Dayton motel room for the Browns
to pick up as needed.
In addition to picking up marihuana from David Castillo’s
home,3 Ballard also loaded marihuana into his car for transport to
Ohio in the garage of the home of defendant Gary Rhudy and his
wife, Silvia, who was the sister of David, Michael, and Ysidro
Castillo. At the Rhudys’ home, marihuana was weighed and packaged
in twenty-pound parcels. At least once, Ballard received
assistance loading his car at the Rhudy home from David and Ysidro
Castillo. Ballard also picked up marihuana at David Castillo’s
place of work, and at Ysidro Castillo’s home, both in Arlington,
Texas.
On at least six occasions, Ballard transported sums of money
from the “Brown group” to the “Castillo group.” Usually, Thomas
Brown, Jr. gave Ballard the money——bundled with rubber bands in
3
On at least one occasion, Ballard received assistance from
Michael Castillo in loading marihuana at David Castillo’s residence
in Hutchins, Texas.
4
$5,000 quantities——but Ballard received payment for the “Castillo
group” at least once from Thomas Brown, Sr. Thomas Brown, Sr. also
gave Ballard money on one occasion so that Ballard might pay his
rent. However, it was usually David Castillo who paid Ballard for
making these trips, giving Ballard as much as $2,000 to $3,000.
In March 1992, Ballard was visited by David Castillo and
Thomas Brown, Jr. At a bar, the three men discussed Ballard’s
trips.4
On December 30, 1992, Thomas Brown, Jr. took Ballard’s 1987
Mercury Marquis and gave him a 1985 Mercury Marquis to take on a
trip to Dallas the following day. During this trip, Ballard
witnessed Michael Castillo driving the 1987 Mercury Marquis near
West Memphis, Arkansas. After reaching Duncanville, Texas——in the
Dallas area——David Castillo instructed Ballard to fly back to Dayton
and leave the 1985 Mercury Marquis in Texas.
In mid-January 1993, after meeting in Dayton with Thomas
Brown, Jr. and Michael and David Castillo, Ballard and Michael
Castillo drove to Dallas. Ballard had been instructed to make a
pick-up, which Thomas Brown, Sr. coordinated.
Ballard returned to Dallas on January 14, 1993, and followed
4
Law enforcement officials had discovered this connection between
David Castillo and the “Brown group” prior to this March meeting.
Officers with the Drug Interdiction Unit at the Dayton, Ohio
airport had “profiled” David Castillo on February 17, 1993, after
Castillo had purchased a one-way ticket to Dallas using cash.
Castillo had been sitting in the Dayton airport with two persons
who left the airport in a Camaro registered to Duane Brown. After
leaving the airport, one of these persons got out of the Camaro and
into a pickup truck registered to Thomas Brown, Jr.
5
David Castillo to Ysidro Castillo’s home in Arlington, where he
picked up another shipment.
Ballard made his last trip (driving from Dayton to Dallas, and
then carrying marihuana from Dallas back to Dayton) in March 1995.
During that trip, Ballard met with Ysidro, David and Michael
Castillo at the Lace Club in Arlington, Texas, where Ballard was
given one hundred one dollar bills. Later during that trip, while
riding in a jeep, Ballard agreed to continue working for Michael
and Ysidro Castillo, both of whom apparently had some reservations
about David Castillo. On the morning of March 10, 1993, Ballard
and David Castillo picked up a box containing approximately thirty
pounds of marihuana at the home of Enrique Castillo. David
Castillo informed Ballard that the small size of this shipment was
meant to reflect the “Castillo group’s” dissatisfaction with the
“Brown group’s” delinquency in making their payments.5
Ballard left the Dallas area bound for Dayton on March 12,
1993. He was arrested that day.
Subsequent to his arrest, and in accordance with his agreement
5
In early 1993, law enforcement officials combined their efforts
to apprehend the defendants. In February 1993, officials
identified the telephone number of David Castillo’s mobile
telephone. On March 8, 1993, officials observed Ballard talking
with Ysidro, David, and Michael Castillo at the Lace Club in
Arlington, Texas; while at the Lace Club, they also observed Ysidro
Castillo hand to Ballard a large stack of currency. Continuing
their surveillance of Ballard, officials witnessed and photographed
a meeting between Ballard and David Castillo the following day.
Subsequently, officials observed Ballard, together with Michael and
Ysidro Castillo in a jeep, doing “heat runs” in the automobile in
an effort to detect if they were being followed. The next morning,
officials observed Ballard and David Castillo drive to the home of
Enrique Castillo and place a box into their automobile.
6
to cooperate with law enforcement officials, Ballard proceeded to
Dayton with the box of marihuana and acted upon his instructions
from officials to make a “controlled delivery.” Ballard telephoned
Thomas Brown, Sr., Thomas Brown, Jr., Duane Brown, and David
Castillo on the day he arrived in Dayton, and each of these
conversations was recorded.6
Following these conversations, Thomas Brown, Sr. visited
Ballard at his motel room. After learning that Ballard was in
possession of only thirty pounds of marihuana, Brown stated that it
was not enough to “mess with” and left.
Later that evening, Duane Brown arrived at Ballard’s motel
room and the two men moved the box of marihuana from Ballard’s car
to Brown’s. Brown then gave Ballard $500 and left with the
6
In his conversation with Thomas Brown, Sr., Ballard——using the
agreed-to “code”——informed Thomas Brown, Sr. that he had arrived in
Dayton with a shipment, and asked when they should meet: “Lets play
. . . What time do you want to tee off?” Thomas Brown, Sr.
responded, “Just stay there.” In a subsequent conversation,
Ballard told Duane Brown that he had “[b]rought back about thirty
dozen golf balls. . . . Thought we’d play.” Duane Brown’s response
indicated to Ballard that Duane and Thomas Brown, Jr. wished to
keep the news of Ballard’s possession of marihuana from their
father: after asking Ballard if he had talked to “Dad,” Duane Brown
said, “Tell him you misunderstood him. . . . no balls at all . . .
Tommy will call you.” Duane called Ballard back and told Ballard
not to say anything about their conversation and indicated that
Ballard was going to receive two pounds of marihuana. Not long
thereafter, Thomas Brown, Jr. called Ballard and asked if his
father knew that Ballard was in possession of marihuana; he then
stated, “I just wanted to know what Dad knew cause I was just going
to keep that for, . . . and do it myself . . . I’ll send Duane over
there and take care of you. . . . I’m supposed to give you
something.”
7
marihuana.7
Also later on the night of March 13, 1993, Ballard called
David Castillo and told him that the amount of marihuana in the box
had not been enough for “Big One”, but that “Little One” had taken
it.8 Ballard understood Castillo’s response to mean that a load of
marihuana would need to be picked up for Thomas Brown, Sr. later
that week. Additionally, when Ballard informed Castillo that he
had received only $500 for his role in the most recent shipment,
Castillo responded in a way that indicated to Ballard that Castillo
planned to contact Thomas Brown, Jr. and instruct Brown to give
Ballard another $500.9
On March 14, 1993, Thomas Brown, Sr. telephoned Ballard and
asked Ballard to come to his home. When Ballard arrived, Brown
spoke about Duane Brown’s arrest and advised Ballard that, since
Ballard might also be under surveillance, he should leave town for
a while. After leaving Brown’s home, Ballard followed instructions
from law enforcement officials and telephoned David Castillo,
7
Law enforcement officials conducting surveillance of Ballard’s
motel observed (1) Duane Brown’s arrival at the motel, (2) a short
conversation between Ballard and Duane Brown, and (3) the transfer
of the box containing marihuana from Ballard’s car to Brown’s car.
Officials arrested Duane Brown later that evening after Brown
attempted to open the box. One pound of marihuana was in the box,
along with the telephone books that officials had used to replace
twenty-nine pounds of the marihuana when Ballard agreed to perform
the “controlled delivery.”
8
David Castillo responded, “Well, that’s all right. Well, we’ll
take care of Big One come this week.”
9
David Castillo’s response was, “I’ll talk to him today and tell
him to give you another five . . . I told him to give you one.”
8
informing him about Duane Brown’s arrest.10
On March 17, 1993, Ballard went to Dallas at the direction of
law enforcement authorities. During the week he stayed in Dallas,
Ballard had telephone conversations with David Castillo and Thomas
Brown, Sr., telling both that he was in Georgia. David Castillo
discussed his intentions of getting the money from the “Brown
group” that he believed was overdue. Thomas Brown, Sr. revealed to
Ballard that the “Brown group” harbored certain suspicions
regarding Ballard in light of the fact that Ballard had not been
arrested and that the police had a videotape of certain events.
On March 29, 1993, Ballard met with David Castillo and Gary
Rhudy at a restaurant parking lot in Ohio. During this meeting,
Ballard gave David Castillo general directions to Thomas Brown,
Jr.’s lake house in Russells Point, Ohio; Castillo wanted to speak
with Brown about his overdue debts. Also, Castillo agreed to set
up a delivery for Ballard——who claimed that he needed work ——to an
unspecified third party.11
10
In response, David Castillo told Ballard to stay in his room and
to quit telephoning him; Castillo also advised Ballard that he
would travel to Dayton soon, and that he would tell “him” (Thomas
Brown, Jr.) to give Ballard “about five” ($500).
11
On May 10, 1993, David Castillo had an intercepted conversation
with Ballard in which Castillo asked Ballard, “You ready to go to
work?” After indicating a reluctance to deal with Thomas Brown,
Jr., Castillo stated that he was willing to work with “Big One”
(Thomas Brown, Sr.), that “He (Ysidro Castillo) wants you to come
down,” and that he would find out “when he (Ysidro Castillo) wants
you here.” In a later conversation on the same day, Castillo told
Ballard that “I’m gonna hear from him in the morning. . . . Just
sit tight . . . I’ll call you.” On May 13, 1993, Castillo and
Ballard continued their discussion concerning this anticipated
shipment.
9
Sometime thereafter, Ballard met with David and Ysidro
Castillo at the Lace Club in Arlington, Texas, to discuss a trip to
Ohio. Ysidro Castillo told Ballard that he would probably agree to
work with the “Brown group” if a deal could be arranged to his
satisfaction. On May 20, 1993, Ballard and Ysidro Castillo drove
around and continued this discussion.12
In his next meeting with Ysidro and Michael Castillo, Ballard
was able to persuade the Castillos that Duane Brown had asked him
to keep the DPS tapes. Apparently believing this story, the
Castillos discussed their anticipated marihuana deal with the
“Brown group” and gave Ballard approximately $120.13
On May 27, 1993, Ballard and David Castillo met at a
restaurant in Arlington, Texas, and discussed Castillo’s suspicions
of Ballard. The two men were joined by Ysidro Castillo in the
parking lot and the three continued this conversation. The
Castillos noted that they had observed police officers all around
12
Law enforcement officials conducted surveillance of this
meeting. Additionally, on May 23, 1993, agents intercepted a
telephone conversation between Thomas Brown, Jr. and David Castillo
in which Brown warned Castillo that, “We just found out [Ballard
is] working for the narcotics squad in Dallas.” Brown explained
that blank cassette tapes issued by the Department of Public Safety
had been uncovered under Ballard’s bed with a recorder. Castillo
responded, “I’m gonna get hold of Big’un today . . . I’ll let him
know about that [sic] what you just told me.”
13
Following this conversation between the Castillos and Ballard,
law enforcement officials observed Ysidro and Michael Castillo in
a car registered to Silvia Rhudy at the motel where Ballard was
staying.
10
Ballard.14 The Castillos voiced their concern that Ballard was, at
the very least, being followed by law enforcement officials.
II. Evidence Seized
In a search of the home of Thomas Brown, Sr., law enforcement
officials seized two telephone books and a cassette tape with a
Texas Department of Public Safety label that was identical to the
five or six tapes that had been issued to Ballard. It was the
discovery of these tapes in Ballard’s room that purportedly
compromised Ballard’s role as an informant.
In a search of the home of Thomas Brown, Jr., officials seized
the certificate of title to a 1979 Plymouth Volare registered to
Charles Ballard and showing Diana Markunes, Thomas Brown, Sr.’s
girlfriend, as the previous owner. A handwritten letter was also
seized, which letter stated:
“What’s up Tommy? Just a few lines to let you know to
get in touch with me. I talked to Ralph and he told me
to reach you. I thought you might want to look me up.
Call me at Donna, Texas, 512-464-3620 or Dave Castillo’s,
214-225-4406 or write me back at Curly [Ysidro] Castillo,
Route 1, Box 316-M, Donna Texas 78537.”
Written on the back of this letter was “214-296-9230," the
telephone number of the Royal Inn in Duncanville, Texas. “Room
209" was also written on the back of this letter. This was the
room that Ballard checked into on March 19, 1992. Officials
14
On June 2, 1993, David Castillo called Thomas Brown, Jr. In
this intercepted conversation, Castillo told Brown, “And Brother
said, ‘Well, I don’t need him.’ I said, ‘Whatever, we don’t need
him.’ . . . He told me to howler at you, see what y’all wanted to
do. Y’all want to fish we can go or I can go up there and we’ll
talk about it.”
11
additionally seized a letter to which were attached ads for kits
used to detect wiretaps, and a piece of paper on which was written
“214-698-1452, Dave, 5:30."
In a search of the home of Ysidro Castillo, officials seized
an electronic and a manual scale, both of the type used to weigh
drugs. Subsequent analysis of these scales uncovered trace amounts
of cocaine on both. Officials also seized rubber bands of the type
used to band money and $2,301 in currency.
In a search of the home of Michael Castillo, officials seized
a gray suitcase that held fourteen clear plastic bags containing a
total of 18.10 pounds of marihuana. One of Ysidro Castillo’s
fingerprints was later discovered on one of these bags. Officials
also found in the home a .357 revolver and ammunition, an address
book, and documents containing suspected drug notes.
In a search of the home of Gary Rhudy, officials seized a tote
bag containing 10.06 ounces of marihuana and pieces of cardboard on
which handwritten notations had been made in black and red ink.15
Discovered on these pieces of cardboard were .22 grams of
marihuana. Ysidro Castillo and Gary Rhudy were present at Rhudy’s
home at the time of this search.
Finally, at the time of his arrest, David Castillo was in
possession of a briefcase that contained the telephone numbers of
Thomas Brown, Sr., Thomas Brown, Jr., and Ballard, as well as
receipts and appraisals for a $4,848 Rolex watch, a $1,100 pendant,
15
Agent Tramel testified that these markings matched the “drug
notes” seized at the home of Michael Castillo.
12
and a $3,525 ring.
III. DEA Special Agent Doug Tramel’s Testimony
Agent Tramel was called as a government witness to testify
regarding evidence compiled through the use of: (1) a wiretap of
David Castillo’s home and mobile telephones, and (2) pen registers
authorized for the telephones of other defendants. Agent Tramel,
together with other agents, constructed “summary charts” of the
evidence so obtained; these charts included telephone numbers, pen
register numbers, dates, and times. Agent Tramel testified that
the records from which the “summary chart” information was taken
were also in evidence.
The government created these “summary charts” in an effort to
supplement the testimonial evidence against the defendants with
documented telephone calls, dates, and times. As the (DEA)
administrative agent in charge of the wiretap and author of these
charts, Agent Tramel was called to testify regarding these
summaries of the voluminous records already in evidence. In the
course of this “summarization,” however, Agent Tramel offered
considerable testimony that did not directly bear on these “summary
charts.” In fact, Agent Tramel “summarized” portions of the live
testimony previously introduced in the government’s case, doing so
in the context of discussing, among other topics, the activities of
Ballard and Ysidro Castillo——following the placement of a telephone
call——in loading approximately 250 pounds of marihuana.16
16
In relevant part, the transcript of Agent Tramel’s testimony on
this point reads:
13
IV. Jim Spencer’s Testimony
“Q: He calls the same one?
A: Calls the same number.
Q: And then what happens later that day, sir?
A: Charles Ballard goes to Ysidro Castillo, Jr.’s house and
he, David——he and David and Ysidro load approximately
250 pounds of marijuana.
Ms. Hewins: Your Honor, I object. This is hearsay.
This gentleman was not present, and he has no personal
knowledge.
Ms. Romero: Your Honor, this is summary testimony.
The Court: All right. Sustained——I mean, overrule
the objection. He may answer that.
Q: All right. Now, Charles Ballard and Ysidro Castillo and
David Castillo load up a load of marijuana, approximately
250 pounds; is that correct?
A: Yes, ma’am, that is correct.
Q: And this is on 11/25/92?
A: Yes, ma’am, that is correct.”
Later in the course of Agent Tramel’s testimony, counsel for Ysidro
Castillo made the following objection:
“Ms. Hewins: Your Honor, I renew my objection at this
time under Rule 1006. The purpose of the chart and
purpose of summary testimony is to summarize voluminous
documents. It is not to permit or to summarize the
testimony of another individual.”
Joining in this contention, counsel for Thomas Brown, Jr. clarified
that his objection was to Agent Tramel’s testimony as to how Thomas
Brown, Jr. obtained possession of Ballard’s Mercury Marquis:
“Q: On 12/30/92, what happened, sir?
A: As Ballard——Mr. Ballard testified, Tom, Jr. picked up
his vehicle at the Holiday Motel in Ohio.
Q: Picked up whose vehicle?
A: Picked up Mr. Ballard’s ‘87 Lincoln Marquis.”
14
Navarro County Sheriffs’ Captain Jim Spencer also testified
regarding certain “summary charts” of telephone company toll and
subscriber records already admitted into evidence. Specifically,
Captain Spencer detailed (1) telephone calls charged to David
Castillo——made to Ohio, (2) calls charged to Michael Castillo——made
to and from Ohio, and (3) calls charged to Gary and Sylvia
Rhudy——made from Kentucky, Arkansas, and Ohio.
V. Disposition in Court Below
On August 8, 1994, a jury found Ysidro Castillo, Jr., David
Castillo, Michael Castillo, Thomas Charles Brown, Sr., Thomas
Charles Brown, Jr., Charles Duane Brown, and Gary Rhudy guilty of
conspiring——together with Charles Ballard, Sherill Raper,17 and
Enrique Castillo——to distribute and to possess with intent to
distribute (1,000 kilograms or more of) marihuana. The jury
additionally found David Castillo guilty of possession with intent
to distribute approximately thirty-two pounds of marihuana.
Accordingly, the district court sentenced the defendants as
follows: (1) Ysidro Castillo, Jr.——216 months; (2) David Castillo
——188 months on count one of the indictment and sixty months on
count two, to run concurrently; (3) Michael Castillo——168 months;
(4) Thomas Brown, Sr.——216 months; (5) Thomas Brown, Jr.——230
months; (6) Duane Brown——136 months; and (7) Gary Rhudy——121 months.
17
Ballard testified that, on May 14, 1993, at Thomas Brown, Sr.’s
direction, he went to Houston, Texas, to pick up a shipment of
marihuana. In Houston, Ballard met with Sherill Raper. However,
because Raper’s suppliers would not agree on a price, Ballard left
Houston without picking up any marihuana.
15
The sentences of Thomas Brown, Sr., Ysidro Castillo, and David
Castillo were enhanced, pursuant to U.S.S.G. § 3B1.1(a), based on
their roles as organizational leaders. Additionally, the court
imposed five-year terms of supervised release against each of the
defendants.
All seven defendants gave timely notice of appeal.
Discussion
I. Denial of Motions for Severance
Defendants18 argue that the district court prejudiced their
rights by denying the Browns’19 pretrial motions for severance. We
review the district court’s denial of these motions for an abuse of
discretion. United States v. Thomas, 12 F.3d 1350, 1363 (5th
Cir.), cert. denied, 114 S. Ct. 1861 (1994).
Citing United States v. Prewitt, 34 F.3d 436, 440 (7th Cir.
1994), the defendants contend that their conflicting and
irreconcilable differences, the massive amount of complex evidence
(impossible for the jury to separate by defendant), the
incriminating statements made by a co-defendant, and the gross
18
While Thomas Brown, Sr., Thomas Brown, Jr., and Duane Brown have
jointly filed a single brief on appeal, Ysidro Castillo, David
Castillo, Michael Castillo, and Gary Rhudy have filed individual
briefs. However, each defendant specifically adopts all of the
applicable points of error raised by the other defendants.
19
Thomas Brown, Jr. and Duane Brown filed pretrial motions for
severance, and Thomas Brown, Sr. joined in the oral motions for
severance presented after the government rested. As Thomas Brown,
Sr.’s failure to move for severance before trial resulted in a
waiver of that request, we consider only the district court’s
denial of Thomas Brown, Jr.’s and Duane Brown’s motions for
severance. See Fed. R. Crim. P. 12(b)(5) and (f).
16
disparity of evidence between defendants necessitated severance in
this case, and the district court’s failure to grant the Browns’
pretrial motions therefore constituted reversible error.
We need not address the Seventh Circuit’s decision in Prewitt,
however, as it is clear that those criteria have not been
established in the present case. First, the defendants’
conflicting and irreconcilable differences, if any, existed in the
operation of their drug scheme, and not within the context of their
defense. Second, while the defendants do assert that the
considerable amount of complex evidence presented at trial would
“blur” in the minds of the jurors, they articulate no reasonable
support for this assertion;20 moreover, in Thomas, we observed that
“the mere presence of a spillover effect does not ordinarily
warrant severance.” 12 F.3d at 1363 (citation omitted). Third,
there was no incriminating statement by a co-defendant admitted at
trial that would not have been admissible in (post-severance)
separate trials, and Ballard’s testimony would have been available
in any event. Finally, this Court has clarified that “a
quantitative disparity in the evidence ‘is clearly insufficient in
itself to justify severance.’” Id. (citation omitted).
Furthermore, while there does not appear to have been any such
conflict in the present case, we held in Thomas that severance is
20
There is no merit to the defendants’ suggestions that the
piecemeal nature of the government’s presentation of its case and
the shared surnames of the defendants would render the jury’s
efforts to “compartmentalize” the evidence——as required by
Prewitt——“impossible.”
17
not automatically required merely because co-defendants present
mutually antagonistic defenses. Id. Determinations concerning the
risk of prejudice in this context must generally be left to the
sound discretion of the district court if we are to give any weight
to the rule that “persons indicted together should be tried
together, especially in conspiracy cases.” Id. (quoting United
States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir.), cert. denied, 114
S. Ct. 266 (1993)).
Finally, even if some not overwhelming risk of prejudice had
resulted from the district court’s denial of the motions for
severance, the court properly instructed the jury that: (1) the
verdict as to each defendant should be based solely on the evidence
about that defendant; and (2) membership in a conspiracy must be
shown by a defendant’s own acts and statements. These
instructions, which the jury is generally presumed to have
followed, reduced any such risk of prejudice. Id.
II. Fatal Variance
Defendants contend that, while the indictment alleged a single
conspiracy, the evidence presented at trial demonstrated the
existence of multiple conspiracies. More specifically, defendants
argue that the government’s evidence proved the existence of
several conspiracies, but did not prove that each defendant agreed
with one or more of his co-defendants to participate in all of
these conspiracies; therefore, a fatal variance existed between the
indictment (and jury charge)——which contemplated a single
conspiracy——and the evidence adduced at trial.
18
The district court expressly instructed the jury that:
“. . .Multiple Conspiracies
You must determine whether the conspiracy charged in the
indictment existed, and, if it did, whether the defendant
was a member of it. If you find that the conspiracy
charged did not exist, then you must return a not guilty
verdict, even though you find that some other conspiracy
existed. If you find that a defendant was not a member
of the conspiracy charged in the indictment, then you
must find that defendant not guilty, even though that
defendant may have been a member of some other
conspiracy.”
“[J]uries are presumed to follow their instructions.” United
States v. Thomas, 12 F.3d 1350, 1363 (5th Cir.) (citation omitted),
cert. denied, 114 S. Ct. 1861 (1994). Furthermore, a jury’s finding
that the government proved a single conspiracy must be affirmed
unless the evidence——and all reasonable inferences which may be
drawn——examined in the light most favorable to the government would
preclude a finding by reasonable jurors of a single conspiracy
beyond a reasonable doubt. United States v. DeVarona, 872 F.2d
114, 118 (5th Cir. 1989).
This Court has previously held that, in determining the number
of conspiracies proved at trial, the principal factors to consider
are: (1) the existence of a common goal, (2) the nature of the
scheme, and (3) overlapping participants in the various dealings.
United States v. Richerson, 833 F.2d 1147, 1153 (5th Cir. 1987).
In the present case, there was sufficient evidence to support the
jury’s finding of the single conspiracy alleged in the indictment.
Between February 1992 and March 1993, Ballard made approximately
twenty to thirty trips between Texas and Ohio, transporting
shipments of marihuana and currency. Thomas Brown, Sr. and Thomas
19
Brown, Jr. took primary responsibility for instructing Ballard when
to make trips to Texas. Duane Brown was most often the person from
the “Brown group” who would pick up the marihuana from Ballard once
a trip from Texas had been completed, occasionally helping Ballard
with the unloading as well. David Castillo was Ballard’s principal
contact in Dallas, often relaying information and instructions
between Ballard and Ysidro Castillo. Ysidro Castillo, together
with David and Michael Castillo, assisted in the various functions
related to the weighing and loading of marihuana for Ballard’s
trips back to Ohio. Gary Rhudy permitted marihuana to be stored,
weighed, packaged, and loaded into Ballard’s vehicle in the garage
of his home.
Thus, between February 1992 and March 1993, each of the
defendants played some role in facilitating the transportation of
more than 1,000 kilograms of marihuana from Ohio to Texas for
distribution. Throughout this enterprise, the suppliers, the mode
of transport, and the purchasers remained constant. Therefore, the
jury could reasonably infer the existence of a single conspiracy
involving all of the defendants. See United States v. Puig-
Infante, 19 F.3d 929, 936 (5th Cir.), cert. denied, 115 S. Ct. 180
(1994). Furthermore, in light of the court’s instruction regarding
“multiple conspiracies,” even if there had been some risk of
prejudice resulting from this alleged variance between the
indictment and some of the evidence adduced, the defendants were
adequately shielded from such risk.
III. Insufficiency of the Evidence
20
A. A Single Conspiracy
As discussed, supra, the government presented sufficient
evidence to support the jury’s reasonable inference that the
defendants participated in the single conspiracy charged. To
adduce sufficient evidence that each defendant engaged in this
single narcotics conspiracy, the government was required to prove
beyond a reasonable doubt: (1) the existence of an agreement
between two or more of the defendants to violate narcotics laws,
(2) that each alleged conspirator knew of the conspiracy and
intentionally joined in it, and (3) that each alleged conspirator
voluntarily participated in the conspiracy. United States v.
Crain, 33 F.3d 480, 485 (5th Cir. 1994), cert. denied, 115 S. Ct.
1142 (1995). In this case, the evidence which supported the jury’s
finding of a single conspiracy——evidence of the defendants’
repeated, coordinated, and extensive facilitation of large
shipments of marihuana and currency between Ohio and Texas——also
sufficiently demonstrates that each defendant knowingly and
voluntarily joined in this marihuana trafficking with the common
goal of profiting therefrom by the continued necessary cooperation
of the parties to the ongoing scheme. Following the analytical
framework of United States v. Morris, 46 F.3d 410, 415-17 (5th
Cir.), cert. denied, 115 S. Ct. 2595 (1995), we conclude that the
evidence supports a finding of conspiracy as alleged.
B. Gary Rhudy Shown to Be a Co-conspirator
Rhudy argues that the evidence presented by the government
failed to demonstrate that he had knowledge of, and voluntarily
21
participated in, the alleged conspiracy. Rhudy does, however,
concede that the government adduced evidence that: (1) Ballard was
in the garage at Rhudy’s home “on occasion”;21 (2) Rhudy was with
David Castillo in Ohio at a meeting between Ballard and Castillo
concerning the conspiracy; (3) Rhudy’s wife, Silvia, was the sister
of Ysidro, David, and Michael Castillo; (4) a number of telephone
calls between members of the conspiracy were charged to Rhudy’s
home and credit card; (5) pieces of cardboard displaying
handwriting, matching the drug notes seized at Michael Castillo’s
home, were found in the Rhudys’ garage; and (6) marihuana was
seized in the Rhudys’ garage, Rhudy being present.
We review this contention to determine whether, after viewing
the evidence in the light most favorable to the verdict, a
reasonable jury could have found that Rhudy was a knowing and
voluntary conspirator beyond a reasonable doubt. United States v.
Triplett, 922 F.2d 1174, 1177 (5th Cir.), cert. denied, 111 S. Ct.
2245 (1991). The evidence adduced at trial was sufficient to
support the jury’s verdict that Rhudy was such a participant in the
alleged conspiracy. “A defendant need only have had a minor role
in the conspiracy, once it is shown that he voluntarily agreed to
participate.” United States v. McKinney, 53 F.3d 664, 672 (5th
Cir.), cert. denied, 116 S. Ct. 261 (1995).
IV. Findings and Conclusions at Sentencing
A. Adjustments for Defendants’ Roles in the Conspiracy
21
Ballard testified that marihuana was stored, weighed, packaged,
and loaded into his vehicle in the Rhudys’ garage.
22
Thomas Brown, Sr., Ysidro Castillo, and David Castillo argue
that the district court erred when it upwardly adjusted their
respective sentences to reflect their organizational or leadership
roles in the conspiracy. At sentencing, the court adopted the
recommendations made in the presentence investigation reports
(PSRs) prepared for Thomas Brown, Sr. and Ysidro Castillo and
increased their respective base offense levels by four levels
pursuant to U.S.S.G. § 3B1.1(a); the court thereby concluded that
Thomas Brown, Sr. and Ysidro Castillo were——as stated in their
PSRs——“organizer[s] or leader[s] of a criminal activity that
involved five or more participants or [] otherwise extensive.”
Concluding, however, that David Castillo was a “manager or
supervisor (but not an organizer or leader)” pursuant to § 3B1.1,
the court departed from the recommendation made in David Castillo’s
PSR and increased his base offense level by only three levels.
We review the district court’s findings in this context for
clear error. United States v. Narvaez, 38 F.3d 162, 166 (5th Cir.
1994), cert. denied, 115 S. Ct. 1803 (1995). In addition to
Ballard’s testimony regarding the roles of these defendants, supra,
the district court considered the following information from the
PSRs of these defendants: (1) Thomas Brown, Sr. participated in the
decision to hire Ballard, instructed Ballard regarding when to make
trips to Texas, served as Ballard’s principal contact upon
Ballard’s return from Texas with marihuana, gave Ballard
instructions as to what to do with the marihuana, and funded an
attempt to purchase two hundred pounds of marihuana from a third
23
party in Houston, Texas; (2) Ysidro Castillo was the leader of the
organization in Texas, also storing marihuana in his home and
assisting in the loading of marihuana; (3) David Castillo was one
of the leaders of the Dallas organization, relaying instructions to
Ballard, generally assisting Ysidro Castillo, and also
participating in the loading of marihuana.22 In light of the
evidence before the district court, the court’s findings were not
clearly erroneous.
Michael Castillo argues that the district court’s refusal to
depart downwardly two levels from his base offense level——pursuant
to U.S.S.G. § 3B1.2(b)——in consideration of his professed minor
participation in the conspiracy constituted clear error. However,
in United States v. Tremelling, 43 F.3d 148 (5th Cir. 1995), this
Court held that a district court should not make an adjustment for
minor participation merely because the defendant’s participation is
somewhat less than the other participants’; to warrant such a
downward adjustment, the defendant’s participation must be “enough
less so that he at best was peripheral to the advancement of the
illicit activity.” Id. at 153. In Tremelling, we held that the
defendant’s actions in bringing the buyers and sellers together for
the transaction were not “peripheral” so as to merit a downward
departure. Id. Therefore, considering the evidence of Michael
22
In relying on these PSRs, as well as the testimony at trial
concerning these defendants’ respective roles in the conspiracy,
the district court did not deny these defendants due process.
United States v. Montoya-Ortiz, 7 F.3d 1171, 1180 (5th Cir. 1993).
24
Castillo’s participation in this conspiracy,23 the district court’s
decision not to make a downward adjustment was not clearly
erroneous.
B. Quantity of Drugs Attributable to Defendants
The defendants contend that the district court failed to make
the specific findings required to attribute to each defendant the
entirety of the 1,000 kilograms of marihuana alleged in the
indictment.24 At the Browns’ sentencing hearing, counsel for Thomas
Brown, Jr. objected to the “findings of the Court,” but failed to
specify the grounds for his objection——assuming such an objection
was incorporated within this general challenge——to the court’s
findings regarding the quantity of marihuana attributable to Thomas
23
The evidence adduced at trial, together with the observations
in Michael Castillo’s PSR, presented the following details of his
participation: Michael Castillo (1) assisted in the loading of
marihuana on at least one occasion, (2) made at least one trip to
Ohio——in an automobile ordinarily used by Ballard to ship
marihuana, (3) was present at one meeting with Ballard, Ysidro
Castillo, and David Castillo and at another with only Ballard and
Ysidro Castillo, (4) purchased a 1993 Chevrolet Corvette for which
Ysidro Castillo made a ($18,000) cash deposit, and (5) was in
possession of approximately 18 pounds of marihuana and a firearm
when law enforcement officials searched his residence.
24
The district court adopted the recommendations set out in the
defendants’ respective PSRs concerning the quantities of marihuana
attributable to each defendant for sentencing purposes: (1) Thomas
Brown, Sr.——3,574 pounds (included 200-pound transaction in
Houston); (2) Thomas Brown, Jr.——3,374 pounds; (3) Duane
Brown——3,374; (4) Ysidro Castillo——4,974 pounds (included 200-pound
transactions in Arkansas and Michigan); (5) David Castillo——4,574
pounds; (6) Michael Castillo——4,592 pounds (included the 18 pounds
of marihuana seized during the search of his home); (7) Gary Rhudy——
4,574 pounds. These (PSR) recommendations were based on the
premise, stated in each PSR, that the Castillos as a whole were
responsible for 4,574 pounds of marihuana, and the Browns were
collectively responsible for at least 3,374 pounds of marihuana.
25
Brown, Jr.
In United States v. Clark, 67 F.3d 1154 (5th Cir. 1995),
petition for cert. filed, No. 95-7511 (Jan. 16, 1996), this Court
observed that, under the sentencing guidelines, a defendant who
participates in a drug conspiracy is accountable for the quantity
of drugs that is attributable to the conspiracy and reasonably
foreseeable to the individual defendant. Id. at 1164. The
district court must therefore make two findings: (1) the quantity
of drugs attributable to the entire conspiracy; and (2) the
quantity of drugs that each defendant knew or should have known was
involved in the conspiracy. See United States v. Quiroz-Hernandez,
48 F.3d 858, 870 (5th Cir. 1995).
At the Browns’ sentencing hearing, the district court held
that:
“So based on all of the evidence that I have before me
and the evidence that I heard at trial, particularly the
evidence that I heard at trial, and also the fact that it
is obviously clear the Castillos were moving large
amounts of marijuana based on the notes and the evidence
that was found, and a lot of it was going up to Dayton.
And so while we can’t determine a precise amount, I
believe it is a finding that I can make by a
preponderance, based on all of the evidence that I heard,
including especially the evidence at trial, that at least
1,000 kilograms made their way up to Dayton and that
these defendants were involved in that amount of
marijuana trafficking.
So that will be the finding of the Court, that each
of these defendants jointed [sic] the conspiracy from the
beginning as alleged in the indictment, this February
1992 date; that they were members of the conspiracy from
that date through the end of the conspiracy as alleged in
the indictment; that the amounts of marijuana that they
were involved in was in excess of 1,000 kilograms.
That certainly their levels of involvement are
different . . . But that the amounts were within the
26
scope, this 1,000 kilograms was within the scope of the
agreements that were entered into in the conspiracy that
were entered into by these defendants of which they were
a part, and that these amounts were also reasonably
foreseeable to these defendants without knowing the exact
amounts, as they don’t have to know, they knew what was
going on, that they were involved in marijuana
trafficking, and so the amounts were within the scope of
the agreement and reasonably foreseeable to each of the
defendants.”
Similarly, at the sentencing hearing for Ysidro Castillo,
David Castillo, and Gary Rhudy, the district court concluded that
the quantities of marihuana recommended in the PSRs were properly
attributable to these defendants as “within the scope of the
agreement” and “reasonably foreseeable” to them.25
At Michael Castillo’s sentencing hearing, the district court
concluded that Michael Castillo had been involved throughout the
duration of the conspiracy, and that it was reasonably foreseeable
to him——and within the scope of his agreement with the other
defendants——”that at least a thousand kilograms of marijuana would
be trafficked by [his] family.”
We review these findings by the district court for clear
error. See United States v. Puig-Infante, 19 F.3d 929, 942 (5th
Cir. 1994). In making these findings, the district court expressly
drew upon corroborated testimony that Ballard transported shipments
of marihuana on at least eighteen occasions. Ballard further
25
With regard to Gary Rhudy, the court determined that he joined
the conspiracy in July 1992, so only 2,400 pounds of the marihuana
involved in the greater conspiracy (commenced in February 1992)
were attributable to him.
27
testified that these shipments averaged from 200 to 250 pounds.26
Additionally, the government adduced considerable evidence
demonstrating that each defendant was a voluntary and knowing
participant in the conspiracy.
Furthermore, the district court’s findings in the defendants’
respective sentencing hearings were clearly adequate and
sufficiently specific to comply with U.S.S.G. § 1B1.3.27 “Where
there is no drug seizure or the amount seized does not reflect the
scale of the offense . . .” the sentencing guidelines recognize
that a district court must approximate the quantity of drugs at
issue. U.S.S.G. § 2D1.1 comment. (n.12). In the present case, the
district court set forward its computations in estimating the
quantities of marihuana attributed to the conspiracy and to the
individual defendants. Based on the evidence before the court, and
in light of the fact that the vast majority of the marihuana
involved in this conspiracy was never seized, the district court’s
findings of fact——estimating the quantities of drugs attributable
to the individual defendants——were not clearly erroneous.
V. Instruction That Jury Need Not Determine Quantities
26
These 18 corroborated marihuana shipments would not have to have
averaged much more than 120 pounds in order for the total amount of
marihuana to have exceeded 1,000 kilograms.
27
Thomas Brown, Sr. and Thomas Brown, Jr. filed written objections
to the quantities of marihuana attributed to them in their
respective PSRs; the district court adopted these PSRs (as
clarified) in determining the defendants’ sentences; Michael
Castillo, Gary Rhudy, David Castillo, Ysidro Castillo, and Duane
Brown also objected to the quantities of marihuana attributed to
them in the addenda to their respective PSRs.
28
The defendants contend that the district court erred by
instructing the jury that the evidence need not establish that the
quantity of marihuana was as alleged in the indictment, but only
that a measurable amount of marihuana was involved with regard to
the acts charged in the indictment. Specifically, the defendants
argue that the 1,000 kilogram quantity of marihuana alleged in the
indictment constituted an element of the offense, which the jury
would need to find beyond a reasonable doubt. The court’s
instruction was proper.28 We have held that “[q]uantity is not an
element of the crimes proscribed by 21 U.S.C. § 841(a)(1) or 846,”
and only need be established for sentencing purposes. United
States v. Valencia, 957 F.2d 1189, 1197 (5th Cir.), cert. denied,
113 S. Ct. 254 (1992).
VI. Evidence of Solicitation of a False Statement
Ysidro Castillo contends that the district court erred in
admitting evidence that he solicited a false statement. Michael
Perryman testified that he sold a 1993 Chevrolet Corvette to
Michael Castillo on July 27, 1993. While title to the Corvette was
taken in Michael Castillo’s name, it was Ysidro Castillo who gave
Perryman a shoe box containing $18,000 in currency as a down
payment against the ($33,698.11) purchase price of the vehicle.
Sometime after the indictment was returned (July 29, 1993) but
before the middle of August 1993, Ysidro Castillo asked Perryman
to: (1) contact a certain law enforcement official and inquire
28
We assume, arguendo, that there was adequate objection below.
29
into what could be done to retrieve the Corvette, which had been
seized; and (2) state that Perryman had accompanied Ysidro Castillo
to the bank, where Castillo withdrew the $18,000 down payment.
At trial, but outside the presence of the jury, counsel for
Ysidro Castillo objected to Perryman’s testifying regarding Ysidro
Castillo’s request that Perryman fabricate a story about
accompanying Castillo to the bank to withdraw cash for the down
payment. The district court ruled this testimony to be relevant
and admissible. We review this evidentiary ruling for abuse of
discretion. United States v. Lopez, 979 F.2d 1024, 1032 (5th Cir.
1992), cert. denied, 113 S. Ct. 2349 (1993). Perryman’s testimony
was properly admitted as tending to show Ysidro Castillo’s
“knowledge of and membership in the conspiracy.” United States v.
Sullivan, 578 F.2d 121, 123 (5th Cir. 1978). It is well-settled
that, “In developing proof of intent and motive, the prosecution
may offer all of the surrounding circumstances that were relevant.”
United States v. Dula, 989 F.2d 772, 777 (5th Cir.), cert. denied,
114 S. Ct. 172 (1993). Ysidro Castillo’s request that Perryman
fabricate this story about the bank demonstrated Castillo’s
consciousness of guilt, and was clearly relevant to the
government’s contention that Ysidro Castillo knowingly participated
in this conspiracy. Id.
VII. Prejudicial Statements by a Juror
Defendants argue that the district court erred in failing to
dismiss the jury panel or declare a mistrial after one jury panel
member allegedly stated to another that all of the defendants were
30
drug dealers——and that the defendants were also all guilty——at a
time when the entire panel was seated in the courtroom.29 On the
same morning, this juror was later observed by defense counsel
speaking to other panel members and pointing towards the defendants
in the hall outside of the courtroom. Defense counsel brought this
information to the attention of the district court after voir dire,
and the court questioned both the jury panel member who allegedly
had made the statement and a panel member who had been seated
nearby. Both testified that they had no knowledge of the alleged
statement, and the court concluded that no such statement had been
made.
Granting of a mistrial is largely within the discretion of the
trial judge, and this discretion extends to the type of
investigation required. United States v. Khoury, 539 F.2d 441, 443
(5th Cir. 1976) (citations omitted), cert. denied, 97 S. Ct. 739
(1977). Here, the district court was faced with a credibility
determination, and, after questioning several of the persons
potentially involved, determined that there was no evidence of
misconduct. See United States v. Marrero, 904 F.2d 251 (5th Cir.),
cert. denied, 111 S. Ct. 561 (1990). We find no error in denying
these motions.
VIII. Prosecutorial Misconduct
Defendants argue that the government, by eliciting certain
testimony, engaged in misconduct so egregious as to require
29
Michael Castillo maintained that he overheard this remark.
31
reversal of the convictions. First, the government elicited
testimony from a law enforcement official that one of the
prosecutors was to be named “Prosecutor of the Year” by the Texas
Narcotics Officers Association.30 Second, the government elicited
testimony regarding the steps that must be taken to secure a
wiretap which allegedly suggested that the issuing judge endorsed
the government’s case.31 Third, the government elicited testimony
30
The testimony at issue was elicited as follows:
“Q: All right. Just very briefly, what is the Texas
Narcotics Officers Association?”
. . .
Q: And you give awards every year for Narcotics Officer of
the Year, Prosecutor of the Year, and things like that?
A: Yes, for those who have done outstanding performance and
accomplishments in the field.
Q: Those awards are going to be given out next week?
A: Yes, sir.
Q: Who is Prosecutor of the Year?
A: Ms. Rose Romero.”
A defense objection was immediately made, as well as a motion to
strike and to instruct the jury.
31
This testimony was the following:
“Q: Well, let me ask you this . . . can you just walk
into the judge and get your wiretap signed?
A: . . . First of all, we must get approval for our
supervisors to begin to work on a wiretap. And after we
have the approval of our supervisor, we must go to the US
Attorney and talk to them and convince them that there
is a need for it and that we have probable cause . . .
Q: And then once you do this and you go to the US Attorney’s
32
which touched upon the incarceration of particular individuals,
thereby allegedly disregarding the court’s ruling on a motion in
limine not to discuss certain prior convictions.32
In reviewing a claim that prosecutorial misconduct constituted
reversible error, we must determine whether the misconduct casts
serious doubt upon the correctness of the jury’s verdict. United
office and get assigned a prosecutor, do you have to do
something else as far as the Department of Justice is
concerned?
A: Yes, ma’am, you do . . . I first have to send it to DEA
headquarters for their approval in Washington, DC, and
after they have approved it and the US Attorney in the
district that I am trying to work the wiretap approves
it, we have to send to it [sic] the Department of Justice
for their approval, and the Attorney General in
Washington has to approve . . .
Q: And then after all of these people have approved
proceeding with this, then what do you do with your
application and your affidavit for your wiretap?
A: I then take it to the judge for his approval.
Q: And for his signature?
A: For his signature ordering the wire intercept.
Defense counsel objected to this testimony concerning the steps for
obtaining authorization, but the district court overruled the
objection.
32
Specifically, defendants objected to Ballard’s response to the
government’s question, “When did Sherill Raper start living there
at Cozy Lane?”——“After his release, I imagine.” Also, defendants
objected, and moved for mistrial, based on a government witness’
response to the question, “And do you know——did you know——I believe
Mr. Brannon also asked you if you knew where Tom Brown, Jr. was at
the time you ran the search warrants of August 6, 1993. Do you
know where he was?”——“Yes, ma’am, he was in jail.”
33
States v. Tomblin, 46 F.3d 1369, 1389 n. 54 (5th Cir. 1995).33 For
prosecutorial misconduct in the form of improper comment or
questioning to represent reversible error, it generally “must be so
pronounced and persistent that it permeates the entire atmosphere
of the trial.” United States v. Iredia, 866 F.2d 114, 117 (5th
Cir.), cert. denied, 109 S. Ct. 3250 (1989).
Beginning with the testimony elicited by the government
regarding Ms. Rose Romero’s distinction as “Prosecutor of the
Year”, this isolated comment——albeit obviously improper——plainly did
not permeate the entire atmosphere of the trial, particularly as on
the following day the court instructed the jury that this testimony
was not pertinent to any issue in the case and admonished the jury
to disregard it. The jury is presumed to have followed this
instruction. Tomblin, 46 F.3d at 1390. The testimony detailing
the numerous authorizations obtained by law enforcement officials
in securing a wiretap warrant, while more extensive than necessary
or desirable, clearly presents no reversible error. Regarding the
reference to Sherill Raper’s incarceration, it is clear that
Ballard had been instructed by the government not to make any such
reference; additionally, the court instructed the jury to disregard
this testimony, which plainly did not permeate the entire trial.
Finally, the government’s more direct elicitation of testimony
33
Also, regarding the district court’s refusal to grant
defendants’ motion for mistrial in this context, the district
court’s ruling will not be set aside absent an abuse of discretion.
United States v. Rocha, 916 F.2d 219, 234 (5th Cir. 1990) (citation
omitted), cert. denied, 111 S. Ct. 2057 (1991).
34
pertaining to Thomas Brown, Jr.’s incarceration followed an earlier
question in which defense counsel asked the same witness whether he
knew that Thomas Brown, Jr. was at work when the search warrant was
executed; if the “door” was thereby “opened,” then the prosecutor
arguably elicited this testimony in good faith. In any event, this
exchange cannot be seen to have permeated the entire atmosphere of
the trial, nor did the district court abuse its discretion in
refusing to grant a mistrial based on this testimony.
Viewing the trial as a whole, and particularly the strength of
the evidence against the defendants, we find that any misconduct by
the government identified in these claims does not——singly or
collectively——constitute reversible error. However, eliciting of
testimony before the jury that the lead prosecutor was to be named
“Prosecutor of the Year” was wholly unacceptable and
unprofessional. Should there be other instances of similarly
blatant unprofessionalism, active consideration may have to be
given as to whether some form of disciplinary proceeding is
appropriate.
IX. Possession of a Firearm in Connection with the Conspiracy
Michael Castillo contends that the district court erred in
enhancing his base offense level by two levels, pursuant to
U.S.S.G. § 2D1.1(b)(1), for possession of a firearm in connection
with a drug offense. We review this decision by the district court
for clear error. See United States v. Buchanan, 70 F.3d 818, 827-
28 (5th Cir. 1995).
The district court had before it evidence that, during the
35
search of Michael Castillo’s home, law enforcement officials seized
a .38-caliber Smith and Wesson revolver, handwritten notes that
referred to shipments of marihuana, and eighteen pounds of
marihuana. The district court concluded that Michael Castillo had
been involved throughout the duration of the conspiracy, and that
it was reasonably foreseeable to him——and within the scope of his
agreement with the other defendants——“that at least a thousand
kilograms of marijuana would be trafficked by [his] family.” At
sentencing, the court overruled defense counsel’s objection to this
two-level enhancement:
“As to the gun, and I agree, Mr. Heiskell, if he had a
small amount of drugs and he just had a gun in the house
that ordinarily without more you wouldn’t give the two-
point——assess the two-level increase. But when we are
dealing with the amounts of drugs that we are dealing
with here, thousands of pounds and thousands and
thousands and maybe hundreds of thousands of dollars, I
just think the inference is too strong. And trips out of
state, that the gun had to have been at least somewhat
involved in the offense that’s alleged. So I will deny
that objection.”
In United States v. Mitchell, 31 F.3d 271 (5th Cir.), cert.
denied, 115 S. Ct. 455 (1994), this Court observed that Application
Note 3 to § 2D1.1 explains that enhancement for possession of a
weapon “should be applied if the weapon was present, unless it is
clearly improbable that the weapon was connected with the offense.”
Id. at 277. Considering that law enforcement officials discovered
in Michael Castillo’s home not only the gun, but also eighteen
pounds of marihuana and notes relating to the conspiracy, the
district court’s finding——that the gun was “at least somewhat
involved in the offense”——was not clearly erroneous. The court
36
certainly could have inferred that Michael Castillo was storing
marihuana in his home, in which case the connection between the gun
and the conspiracy was not “clearly improbable.”34
X. Tramel’s Testimony
Defendants argue that the government, under the guise of
providing a summary of voluminous records, elicited detailed
testimony from DEA Special Agent Tramel that essentially repeated
portions of Ballard’s previous testimony. Defendants contend that
this abuse of Fed. R. Evid. 1006, to which defense counsel objected
at trial, provided the government with an opportunity to bolster
Ballard’s testimony and to argue its case to the jury through
Tramel.
Agent Tramel was the DEA’s administrative agent for the
wiretap investigation, which was based largely upon the “wire
intercepts” of David Castillo’s home and mobile telephones.35
Having established Agent Tramel’s predominant role in the wiretap
investigation, the government turned to the primary purpose of his
testimony. After reviewing all of the audio tapes, monitor logs,
34
Michael Castillo contends that the Supreme Court’s decision in
Bailey v. United States, 116 S. Ct. 501 (1995), impacts the present
application of section 2D1.1(b)(1) because the Supreme Court
construed the term “use” (of a weapon) to require the “active
employment” of the weapon by the defendant. Id. at 505. However,
section 2D1.1(b)(1) contemplates enhancement “[i]f a dangerous
weapon (including a firearm) was possessed.” (Emphasis added).
Moreover, the Supreme Court took great pains in Bailey to limit its
holding to the construction of the term “use” as that term is
employed in 18 U.S.C. § 924(c)(1), the statute at issue in Bailey.
Therefore, Bailey does not control the present analysis.
35
The investigation also made use of pen registers authorized for
the telephones of several of the other defendants.
37
transcripts of intercepted conversations, relevant telephone
company records, and pen registers——all of which were entered into
evidence——Tramel created “summary charts” for the government. These
charts, which purportedly culled out the relevant telephone calls,
dates, and times from the voluminous records amassed during the
wiretap investigation, were offered into evidence pursuant to Rule
1006. Tramel’s function was to provide the foundation for this
summary evidence.
Defendants contend that Tramel’s testimony exceeded this
limited function, and we are inclined to agree, although that alone
is not dispositive, as Tramel could testify in more than one
capacity. This Court has recognized that a witness may be called
as both an expert on a particular subject and as a fact witness of
the events leading to the defendants’ indictment. See United
States v. Moore, 997 F.2d 55 (5th Cir. 1993). Furthermore, the
witness may also serve as “an expert summary witness”, in which
capacity the witness may testify regarding his analysis of the
subject matter of his expertise, “which may necessarily stem from
the testimony of other witnesses.” Id. at 57-58. Finally, the
witness may testify to facts that were “personally experienced” by
him, even though this testimony “bolsters” the government’s other
evidence. Id. at 59.
Neither Moore nor Rule 1006, nor other recognized principles
of evidence, justify all Tramel’s testimony. Some of it——such as
that concerning what Ballard and Ysidro Castillo did following a
telephone call or that Thomas Brown, Jr. picked up Ballard’s
38
vehicle at the Holiday Motel (see note 16, supra), had nothing to
do with summarizing any documents or records,36 was not anything
observed or personally known by Tramel, and was not the basis for
any expert opinion expressed by him. Nor was the subject matter of
these aspects of Tramel’s testimony——or, unlike the situation in
Moore, of the case as a whole (apart from a few discrete aspects of
it)——of a technical nature as to which specialized knowledge was
needed for proper understanding. We decline to put our stamp of
approval on this sort of practice, which, in a case of this
character, without good reason or real need, unfairly allows one
prosecution witness merely to repeat or paraphrase the in-court
testimony of another as to ordinary, observable facts, and to do so
other than in the context of rendering or explaining the basis of
or matters considered in reaching an expert opinion.
Nevertheless, we are unable to conclude that the admission of
these portions of Tramel’s testimony constituted reversible error
here. Tramel did not misstate or put an unfair “spin” on the
testimony he repeated or paraphrased, and it was uncontradicted.
It was always plain that Tramel was merely referring to what
36
Rule 1006 provides:
“The contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined in
court may be presented in the form of a chart, summary,
or calculation. The originals, or duplicates, shall be
made available for examination or copying, or both, by
other parties at reasonable time and place. The court
may order that they be produced in court.”
Plainly, this rule does not contemplate summarization of live
testimony presented in court.
39
another witness had testified to, and was not suggesting any other
source of information. The government’s case was strong and
essentially uncontradicted, the only defense evidence being two
witnesses as to the good character of Michael Castillo.
Accordingly, we reject defendants’ contentions on appeal that the
trial court’s overruling of their objections to specified aspects
of Tramel’s testimony requires that we order a new trial.
Conclusion
Defendants have demonstrated no reversible error. Their
convictions and sentences are accordingly
AFFIRMED.
40