United States v. Broussard

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

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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.

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