Case: 09-41207      Document: 00512589025         Page: 1    Date Filed: 04/08/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                      No. 09-41207
                                                                                FILED
                                                                             April 8, 2014
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff - Appellee
v.

MARIANO ALVAREZ; EDEN FLORES, SR.; ABRAHAM HERNANDEZ;
GUADALUPE HERNANDEZ, also known as Lupe,

                                                 Defendants - Appellants




                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 7:07-CR-144


Before SMITH, DeMOSS, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Appellants Mariano Alvarez, Eden Flores, Sr., Abraham Hernandez
(Abraham), and Guadalupe Hernandez (Guadalupe) appeal their convictions
for drug trafficking, money laundering, and conspiracy. Appellants also
challenge various rulings made by the district court before and during trial.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 09-41207
Abraham challenges his sentence. For the following reasons, we affirm on all
issues.
                                              I.
       Appellants and various other co-defendants were charged with, inter
alia, conspiracy to possess with intent to distribute cocaine, money laundering,
and possession of firearms in furtherance of a drug trafficking offense. 1 The
conspiracy activities included smuggling narcotics via UPS shipments and
modified air tank cylinders, and transporting and laundering large amounts of
money.
       Alvarez, Flores, Guadalupe, and Abraham entered pleas of not guilty on
August 7, 2008. A jury trial commenced on November 5, 2008. After several
days of deliberation, the foreperson informed the district court that a juror had
brought extrinsic evidence into the deliberation proceedings. The district court
sua sponte declared a mistrial and transferred the case to Houston for retrial.
       Retrial commenced on July 6, 2009. On July 21, 2009, the jury found
Alvarez guilty of counts one, two, three, five, and six. Alvarez was sentenced to
concurrent life terms of imprisonment on counts one and six, concurrent 240-
month terms of imprisonment on counts two, three, and five, and supervised
release. Alvarez was further ordered to pay mandatory assessments totaling
$500 and a $1,000,000 fine. Flores was found guilty of counts one, two, and six.
Flores was sentenced to concurrent life terms of imprisonment on counts one



       1  The various co-conspirators were charged with: conspiracy to possess with intent to
distribute more than five kilograms of cocaine (count one), conspiracy to commit the offense
of money laundering (count two), money laundering (count three), possession with intent to
distribute one kilogram of cocaine (count four), money laundering (count five), possession
with intent to distribute 217 kilograms of cocaine (count six), money laundering (counts seven
and eight), possession with intent to distribute three kilograms of cocaine (count nine),
unlawful possession of a firearm by a convicted felon (count ten), possession of firearms in
furtherance of a drug trafficking offense (count eleven), and possession of a short-barreled
rifle (count twelve).
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                                 No. 09-41207
and six and a 240-month term of imprisonment on count two, followed by
concurrent life and three-year terms of supervised release. Flores was also
ordered to pay mandatory assessments totaling $300 and a $1,000,000 fine.
Guadalupe was found guilty of counts one and six. Guadalupe was ordered to
serve concurrent 360-month terms of imprisonment followed by concurrent life
terms of supervised release. Guadalupe was ordered to pay mandatory
assessments totaling $200. Abraham was found guilty of counts one and two.
Abraham was ordered to serve concurrent 252-month terms of imprisonment
followed by concurrent five-year terms of supervised release. The court
imposed mandatory assessments totaling $200. This appeal followed.
                                     II.
Mistrial and double jeopardy
      The jury began its deliberations in the first trial on November 24, 2008.
After three days of deliberation, the jury submitted the following note: “We
cannot agree on a unanimous verdict. Please advise.” In a written response,
the district court asked the jury to continue its deliberations, stating that the
trial had lasted for two weeks but the jury had only been deliberating for three
days, and that it was not unusual for deliberations to last longer than three
days. Following the district court’s response, the jury continued its
deliberations. The jury submitted several other substantive notes to the court
after deliberations resumed.
      On December 5, 2008, the jury submitted a note asking that the district
court meet with the foreperson. The foreperson informed the district court that
on the previous day a juror asked whether a person could walk into a UPS store
and get a shipping label. The next morning, the juror informed the rest of the
jury that the night before he had gone to a UPS store and was able to obtain a
UPS shipping label. On December 6, 2008, the district court held a status
conference with Appellants’ counsel. After questioning by the district court, the
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                                   No. 09-41207
juror was disqualified. The district court informed counsel that the alternate
was available to start deliberations after the weekend break. The district court
stated that it would also admonish the jury to not consider statements made
by the disqualified juror. Counsel for Flores and Alvarez expressed concern
over seating an alternate juror. Abraham’s counsel objected to the juror’s
disqualification and the district court overruled the objection. Each Appellant’s
counsel objected to proceeding with 11 jurors. Flores’s counsel moved for a
mistrial, a motion the judge deemed premature. The district court recessed for
the weekend.
      On December 8, 2008, the district court convened a second status
conference and again asked the parties how they wished to proceed in light of
the disqualified juror. The government requested that jury deliberations
proceed with the alternate juror. Flores did not renew his motion for a mistrial,
and he and Alvarez expressed their desire to proceed with the alternate juror.
Guadalupe requested that deliberations proceed with 11 jurors. Abraham
moved for a mistrial, citing the length of deliberations in light of the
“simplicity” of the case. The district court declined to rule on Abraham’s
motion.
      Rather, the district court granted a mistrial on the grounds of “manifest
necessity.” The district court found that the juror’s misconduct likely “tainted
the jury as a whole.” It also found that the jury appeared to be confused because
it had been deliberating for over two weeks, and that the jury would not likely
reach a verdict. The district court then indicated that it was transferring the
case for retrial in the Houston division. None of the Appellants objected to the
district court’s declaration of a mistrial.
      On appeal, Alvarez argues that his conviction must be vacated because
it was obtained in violation of his right to be free from double jeopardy. He
asserts that the jury was not “hopelessly deadlocked,” and that the district
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                                  No. 09-41207
court should have granted his motion to dismiss the indictment on double
jeopardy grounds, which he filed prior to the start of the second trial. Alvarez
contends that the district court abused its discretion in declaring a mistrial as
it was not manifestly necessary. The government argues that the district court
did not abuse its discretion when it declared a mistrial. The government
asserts that the jury was confused based on the number of jury notes, and felt
that the extrinsic evidence introduced by a juror had a significant influence on
the jury as a whole. The government points out that the FBI later discovered
that the disqualified juror was discussing the case with Abraham and
Guadalupe during the trial, and thus the district court’s “intuition” was
correct.
      The district court’s decision to grant a mistrial is reviewed for abuse of
discretion. United States v. Coveney, 

, 584 (5th Cir. 1993)
(citations omitted). The Double Jeopardy Clause will not preclude a defendant
from being retried after the district court declares a mistrial over defense
objection if the mistrial was justified by “manifest necessity.” United States v.
Campbell, 

, 580-81 (5th Cir. 2008). If a defendant consents to a
mistrial, the “manifest necessity” standard is inapplicable and double jeopardy
ordinarily will not bar a reprosecution. See United States v. El-Mezain, 

, 559 (5th Cir. 2011).
      “The defendant’s consent to a mistrial may be express or implied through
a failure to object.” 

defendant fails to timely and explicitly object to a
mistrial declaration, he is “held to have impliedly consented to the mistrial and
may be retried in a later proceeding.” United States v. Palmer, 

,
218 (5th Cir. 1997). “The determination of whether a defendant objected to a
mistrial is made on a case-by-case basis, and the critical factor is whether a
defendant’s objection gave the court sufficient notice and opportunity to resolve
the defendant’s concern.” 

(citing United States v.
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                                  No. 09-41207
Fisher, 

, 717 (5th Cir. 2010)); see also United States v. Nichols,

, 974 (5th Cir. 1992) (finding that consent to a mistrial may be
implied from the totality of circumstances surrounding the declaration of the
mistrial); United States v. Williams, 

, 755 (5th Cir. 1993) (“In
determining the sufficiency of objections we apply the general principle that
an objection which is ample and timely to bring the alleged. . . error to the
attention of the trial court and enable it to take appropriate corrective action
is sufficient to. . . preserve the claim for review.” (internal quotation marks and
citations omitted)).
      Alvarez did not explicitly object to the mistrial or provide the district
court with notice and opportunity to address the double jeopardy concerns he
now raises on appeal. “A prior expression of a desire to continue the trial will
not save a defendant from the implied consent doctrine,” including a
defendant’s expressed desire to proceed to a verdict prior to the district court’s
declaration of a mistrial. 

; see also United States v.
Benjamin, 129 F. App’x 887, 889 (5th Cir. 2005) (finding defendant impliedly
consented to mistrial when he “did not contemporaneously and expressly
object” to the district court’s declaration of a mistrial, but rather filed a
‘“motion to bar retrial on grounds of double jeopardy’ nearly two weeks after
the trial court declared a mistrial”). “[W]e must insist upon express objections.”

. Alvarez indicated to the court that he would like to
proceed to a verdict, but this is distinct from raising a double jeopardy concern
before the district court. Indeed, after the district court declared a mistrial,
Alvarez suggested retrial in a venue other than Houston rather than objecting
to the mistrial. See 

(finding implied consent to mistrial
despite defendant’s expression of displeasure at possibly retrying the case
because defendant did not make an express objection and “implied his consent
to the retrial by failing to object to the mistrial and by rescheduling the new
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                                  No. 09-41207
trial”). As such, he impliedly consented to the mistrial and double jeopardy
does not bar his retrial. See 

; 

. The district court did not err in denying Alvarez’s motion to dismiss the
indictment.
Intradistrict transfer
      During the December 8, 2008 status conference and after the district
court granted a mistrial, it sua sponte transferred the case from the McAllen
division to the Houston division. On February 26, 2009, the court held a status
conference in advance of the second trial. During the conference, the district
court stated that it could “move cases within division sua sponte for whatever
reason, and that’s what I choose to do.” Counsel for Alvarez asked that the
court consider the Corpus Christi division because it was closer to McAllen.
The district court declined this request and gave the parties two weeks to file
any additional motions. None of the Appellants filed a motion for recusal or
other written objections to the transfer order.
      We review questions of venue for an abuse of discretion. United States v.
Asibor, 

, 1037 (5th Cir. 1997). A district court generally abuses
its discretion when it “bases its decision on an erroneous view of the law or on
a clearly erroneous assessment of the evidence.” Esmark Apparel, Inc. v.
James, 

, 1163 (5th Cir. 1994). Federal Rule of Criminal Procedure
18 governs intradistrict transfers:
              [u]nless a statute or these rules permit otherwise, the
              government must prosecute an offense in a district
              where the offense was committed. The court must set
              the place of trial within the district with due regard
              for the convenience of the defendant, any victim, and
              the witnesses, and the prompt administration of
              justice.




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                                  No. 09-41207
In addition to considerations of convenience and prompt administration, the
district court may also consider factors such as speedy trial, docket
management, logistics, and pretrial publicity. See United States v. Lipscomb,

, 340-344 (5th Cir. 2002). The district court has “broad discretion
in determining whether [an intradistrict] transfer is warranted.” United States
v. Alvarado, 

, 539 (5th Cir. Unit A June 1981). “Reversal is proper
only where a party demonstrates a ‘substantial ground for overturning the
district court’s [decision regarding an] intradistrict transfer.’” United States v.
Dickie, 

, 609 (5th Cir. 1985), abrogated in part on other grounds
by United States v. Calverly, 

, 164 & n.27 (5th Cir. 1994), (quoting
United States v. Malmay, 

, 876 (5th Cir.1982)).
      Appellants rely on United States v. Garza, 

, 389-91 (5th Cir.
2010), where the district court similarly transferred the case to another district
sua sponte without giving any reasons. In Garza, however, we conducted out
own weighing of the Rule 18 factors and concluded that the transfer resulted
in substantial delay and inconvenience. See 

contrast, Appellants
fail to establish that the Rule 18 factors weighed against transfer. Appellants
argue that the district court’s transfer to Houston was inconvenient because
the trial was moved over 300 miles from where the parties and their counsel
resided. This factor alone is insufficient to reverse the district court’s decision
to transfer venue. See United States v. Fagan, 

, 1008 (5th Cir.
1987) (finding that a refusal to transfer outside of district was inconvenient
but did not itself establish prejudice). Moreover, while it is true that the
location was less convenient for the parties, it does not appear to have hindered
the Appellants’ ability to present their defenses. At oral argument, counsel
argued that the Houston location prevented the parties from calling witnesses,
however none of the Appellants called any witnesses during their first trial
located in McAllen. The district court further maintained the prompt
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                                  No. 09-41207
administration of justice, indicating that it would set the case for trial within
a matter of months in order to preserve the witnesses’ availability, and so that
events would stay fresh in the witnesses’ minds.
      Although many conspiracy activities occurred in the McAllen division,
various drug trafficking and money laundering activities occurred elsewhere
in the district, including Houston, and even outside the district, including in
Dallas, Texas and Atlanta, Georgia. “[B]ecause venue exists anywhere within
the judicial district in which the crime was committed, there is no right to trial
within a particular division in a district.” United States v. Weddell, 

, 1406 (5th Cir.), amended on other grounds by 

(5th Cir.
1986).
      Appellants also assert that there were significant differences in the
racial make-up of the jury pools. Specifically, that the jury pool in McAllen was
predominantly Hispanic and made up of the Appellants’ “peers,” and that there
was no need for interpreters. However, the Appellants have no right to a jury
“of any particular composition.’” Paredes v. Quarterman, 

, 289 (5th
Cir. 2009) (quoting Taylor v. Louisiana, 

, 538 (1975)). There is also
no evidence to indicate that the district court transferred the case to alter the
racial makeup of the jury pool. See United States v. McKinney, 

,
673 (5th Cir. 1995). Appellants fail to establish “substantial grounds” for
overturning the transfer order.
      Appellants fail to establish “substantial grounds” for overturning the
transfer order. Under these facts, we decline to reverse the district court’s
decision to transfer the case within the district.
Severance
      On November 3, 2008, Abraham filed a motion requesting that his trial
be severed from the trial of his co-defendants. In his motion, Abraham asserted
that Guadalupe had a more significant criminal history, and that the prejudice
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                                  No. 09-41207
of being tried jointly with Guadalupe would be even greater because the two
were brothers. Abraham complained that Guadalupe had confessed to being
involved with the drug conspiracy. Abraham argued that he would not be able
to confront his co-defendants about statements they had made implicating him
in the conspiracy, and that such testimony, which would come in as an
admission of a party opponent in a joint trial, would be inadmissible hearsay
if the trials were severed. Abraham also asserted that the government would
present evidence that Flores and Alvarez had been involved in a drug
trafficking conspiracy for years before Abraham’s alleged involvement. Finally,
he argued that a joint trial could interfere with his right to remain silent if his
co-defendants were to testify.
      On appeal, Abraham points out that the government presented evidence
that: his brother Guadalupe committed past crimes; his co-defendants
possessed assault weapons; and Flores and Alvarez committed “wrongdoings”
that did not involve Abraham. Abraham generally alleges that this evidence
presented against his co-defendants prejudiced him by causing a “spillover
effect,” whereby the jury imputed one defendant’s guilt onto the other.
      The government argues that the testimony of the government’s
witnesses “adequately compartmentalized” the evidence against the co-
defendants, thus Abraham was not prejudiced by a joint trial. The government
points to the lower sentence Abraham received as evidence that the testimony
was sufficiently compartmentalized.
      This court reviews for abuse of discretion the denial of a motion for
severance. United States v. Mitchell, 

, 775 (5th Cir. 2007).
Establishing an abuse of discretion in denying a motion to sever requires a
defendant to show that “(1) the joint trial prejudiced him to such an extent that
the district court could not provide adequate protection; and (2) the prejudice
outweighed the government’s interest in economy of judicial administration.”
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                                  No. 09-41207
United States v. Snarr, 

, 396 (5th Cir. 2013) (quoting United States
v. Owens, 

, 98 (5th Cir. 2012)). “Because this court is reluctant to
vacate a conviction based on a district court’s refusal to sever a trial, general
claims of prejudice are insufficient to trigger reversal.” 

must
‘isolate events occurring in the course of the trial and then. . . demonstrate that
such events caused substantial prejudice.’” United States v. Lewis, 

, 384 (5th Cir. 2007) (quoting United States v. Booker, 

, 415
(5th Cir. 2003)). The defendant must show prejudice that is both specific and
compelling. United States v. Erwin, 

, 665 (5th Cir. 1986). “There
is a preference in the federal system for joint trials of defendants who are
indicted together, particularly in conspiracy cases.” 

(internal quotation marks and citation omitted).
      Although there was a disparity in Abraham’s conduct and the conduct of
his co-defendants, the disparity was not extreme. See United States v. Owens,

, 100 (5th Cir. 2012) (finding that “‘severance is required on the
basis of a disparity in the evidence only in the most extreme cases’” (quoting
United States v. Rocha, 

, 229 (5th Cir. 1990)).
      The fact that Abraham was tried with his brother Guadalupe is likewise
insufficient to warrant reversing the district court’s ruling.
            This court has held numerous times that the
            relationship between co-defendants does not require
            reversing the denial of a motion to sever. See, e.g.,
            United States v. Nguyen, 

, 625 (5th Cir.
            2007) (concluding that the district court did not abuse
            its discretion when it denied a motion to sever filed by
            a defendant who was being tried with his twin
            brother); United States v. Solis, 

, 441 (5th
            Cir. 2002) (rejecting the defendant’s argument that
            “he was convicted on guilt by association” because he
            was tried with his brother); United States v. Bermea,
            

, 1572–73 (5th Cir. 1994) (determining
            that the district court did not abuse its discretion by
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                                  No. 09-41207
            denying the appellant’s motion to sever even though
            the appellant was tried with three family members,
            one of whom pleaded guilty part way through the
            trial); United States v. Partin, 

, 640–41
            (5th Cir. 1977) (affirming the denial of a motion to
            sever where the defendant was tried with his father-
            in-law and brother); see also United States v. Lira, 262
            F. App’x 653, 655 (5th Cir. 2008) (unpublished)
            (holding that even if some of the evidence against the
            appellant’s husband was not relevant to the case
            against her, the district court did not abuse its
            discretion by denying the appellant’s motion to sever
            her case from her husband's case because “the district
            court instructed the jury to give separate
            consideration of the evidence as to each defendant”).

United States v. Owens, 

, 99 (5th Cir. 2012).
      Finally, the district court’s instruction to the jury that it should give
separate consideration to the evidence as to each defendant weighs against
finding error. “[C]ompelling prejudice is not shown if it appears that, through
use of cautionary instructions, the jury could reasonably separate the evidence
and render impartial verdicts as to each defendant.” 

(citation omitted); see also United States v. Whitfield, 

, 355–56
(5th Cir. 2009) (“Limiting instructions such as these are generally ‘sufficient to
prevent the threat of prejudice resulting from unsevered trials.’” (quoting
United States v. Massey, 

, 1005 (5th Cir. 1987))). In the present
case, the jury was properly instructed that it should evaluate the evidence
against the Appellants separately. “Because it is presumed that juries follow
the instructions the court gives them, we assume that the evidence against
each defendant was considered separately and individually.” 

. Abraham has not offered any specific argument, other than conclusory
statements, that the jury instruction given by the district court was insufficient
to cure any prejudice.

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                                 No. 09-41207
      “A spillover effect, by itself, is an insufficient predicate for a motion to
sever.” United States v. Bieganowski, 

, 287 (5th Cir. 2002). And
Abraham has failed to establish more than a general claim of prejudice from
the alleged spillover effect. Abraham has not established that the evidence
involved inflammatory facts or complex crimes that precluded the jury from
being able to assess the evidence against each defendant separately and
individually. See United States v. West, 

, at * 1 (5th Cir. Feb.
20, 2014) (unpublished) (citing 

); United States v.
Bermea, 

, 1572–74 (5th Cir. 1994). Abraham has not cited any
“specific and compelling instances of prejudice” that resulted from his joint
trial. See United States v. McRae, 

, 827 (5th Cir. 2012).
Importantly, the district court properly excluded portions of Guadalupe’s
statement that directly implicated Abraham. See United States v. Cantu-
Ramirez, 

, 631-32 (5th Cir. 2012). The district court did not abuse
its discretion in denying the motion to sever.
Limitation of cross examination
      Abraham argues that his right to confront witnesses testifying against
him was violated when the district court limited his cross-examination against
co-conspirator Marco Negrete. Negrete testified substantially on Abraham’s
involvement in the conspiracy. Jose Gonzalez, a cell mate of Negrete, allegedly
informed the government that Negrete attempted to recruit Gonzalez to
kidnap the daughter of Appellant Flores. Abraham sought to introduce this
evidence against Negrete to establish bias. The district court allowed Abraham
to cross-examine Negrete on the alleged kidnapping plot outside the presence
of the jury. Negrete denied knowledge of the plot. The district court
subsequently limited Abraham’s cross-examination testimony unless Abraham
called Gonzalez to testify, because Abraham’s only predicate to question


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                                  No. 09-41207
Negrete was an unauthenticated letter supposedly from Gonzalez. Abraham
did not seek to question any other witness regarding the alleged plot.
      “A defendant’s right to cross-examine witnesses against him is a
constitutional right secured by the Confrontation Clause of the Sixth
Amendment.” United States v. Davis, 

, 548 (5th Cir. 2004). This
court reviews de novo alleged constitutional violations of the Confrontation
Clause, subject to a harmless error analysis. United States v. Jimenez, 

, 558 (5th Cir. 2006). “‘The correct inquiry is whether, assuming that the
damaging potential of the cross-examination were fully realized, a reviewing
court might nonetheless say that the error was harmless beyond a reasonable
doubt.’” 

(quoting Delaware v. Van Arsdall, 

, 684 (1986)).
“If a jury might reasonably have questioned the witness's reliability or
credibility if cross-examination had been allowed, then the denial of the right
to confrontation is reversible error.” 

examines “the trial testimony to determine whether there was
a violation of a defendant’s right to confront the witnesses against him.” United
States v. Tuma, 

, 690 (5th Cir. 2013). In this case, the trial record
reflects that Negrete was cross-examined at length, and the jury heard
evidence regarding his lack of credibility sufficient to assess any bias and
motives in his testimony. The defendant’s Confrontation Clause rights are
satisfied when the jury has been exposed “to facts from which the jury ‘could
appropriately draw inferences relating to the reliability of the witness.’” United
States v. Heard, 

, 432 (5th Cir. 2013) (quoting 

). The district court’s exclusion of testimony based on a speculative and
barely relevant issue does not amount to a constitutional violation. See United
States v. Diaz, 

, 597 (5th Cir. 2011) (stating that a district court
has discretion “to place reasonable limits on a criminal defendant’s right to
cross-examine a witness based on concerns about, among other things . . .
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                                  No. 09-41207
prejudice . . . or interrogation that is . . . only marginally relevant” (internal
quotation marks and citation omitted)). Abraham has not established that the
district court’s limitation of Negrete’s cross-examination amounted to a
violation of his constitutional rights.
      If no constitutional violation is found, this court reviews any limitation
of a defendant’s cross-examination of a witness for abuse of discretion. 

the defendant must show that a reasonable jury might have had a
significantly different impression of the witness’s credibility if defense counsel
had been allowed to pursue the questioning.” 

. “’Where
there is no constitutional violation, we will not find an abuse of the trial court’s
discretion absent a showing that the limitations were clearly prejudicial.’” El–

(quoting 

(internal quotations
and citations omitted)).
      For the previously stated reasons, Abraham has failed to establish that
the district court’s limitation of his cross-examination of Negrete was clearly
prejudicial. The district court did not abuse its discretion when limiting
Abraham’s cross-examination of Negrete.
Abraham’s sentence
      Abraham’s PSR recommended that Abraham be held accountable for 217
kilograms of cocaine for sentencing purposes. The district court adopted the
recommendations and findings of the PSR, and found that Abraham’s total
offense level was 38, which included a two-level reduction for acceptance of
responsibility. The applicable guideline imprisonment range was 235 to 293
months. After considering the factors listed under 18 U.S.C. § 3553(a), the
court imposed a 252-month term of imprisonment. Abraham argues that there
was not an adequate evidentiary basis for the district court to adopt the factual
findings in the PSR with respect to the amount of cocaine attributable to him.


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                                   No. 09-41207
      “The district court’s calculation of the quantity of drugs involved in an
offense is a factual determination this court reviews for clear error.” United
States v. Betancourt, 

, 246 (5th Cir. 2005) (internal quotations and
citations omitted); see also United States v. Cisneros-Gutierrez, 

,
764 (5th Cir. 2008). If a district court’s finding is plausible in light of the record
as a whole, there is no clear error. 

.
      United States Sentencing Guidelines § 2D1.1(c) states that a defendant’s
base offense level is determined by the quantity of drugs involved. The quantity
of drugs involved includes not only the amount of drugs with which the
defendant was directly involved, but also “in the case of a jointly undertaken
criminal activity, all reasonably foreseeable quantities of contraband that were
within the scope of the criminal activity that he jointly undertook.” U.S.
SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 1B1.3, cmt. n. 2; see also 

A defendant with an “obvious understanding as to the general
breadth of the drug enterprise” may be held liable for the full amount of drugs
involved in the conspiracy. United States v. Duncan, 

, 577 (5th
Cir. 1999).
      The jury found that Abraham was a member of the drug conspiracy and
acted in furtherance of the drug conspiracy. Moreover, the jury found that
Abraham was guilty of Count 6 “as charged in the indictment.” The indictment
charged Abraham of “knowingly and intentionally possess[ing] with intent to
distribute . . . approximately 217 kilograms of cocaine.” The evidence supports
the district court’s conclusion that Abraham actively participated in the drug
trafficking conspiracy and that there were massive quantities of drugs involved
in the conspiracy. Accordingly, the district court did not clearly err in adopting
the drug quantity of 217 kilograms in calculating Abraham’s base level offense.
Production of witness statements and emails


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                                      No. 09-41207
       Flores and Guadalupe 2 argue that the district court erred in denying
their motion for production of witness statements and emails sent and received
by agents who were to testify at trial. Specifically, Flores and Guadalupe
requested that the government produce “any statement . . . prepared by the
prosecuting attorneys related to the subject matter of the testimony of a
government witness” and “all emails as statements made by government
witnesses.” They asserted that failure to produce the statements violated the
Jencks Act. The government objected to these requests as overbroad and
vague, and argued that there were not discoverable under the Jencks Act.
Finally, the government asserted that compliance with such a request would
be overly burdensome.
       After a December 7, 2008 hearing, the district court denied the
production request. On appeal, the government argues that Flores and
Guadalupe failed to identify the relevant witness testimony that would have
been subject to impeachment by their emails, or even suggest that the
witnesses would testify contrary to statements made in the emails. The
government further argues that the emails were not statements under the
Jencks Act because the emails were akin to interview reports or notes that
“contain the interpretations or impressions of agents or which were prepared
after the interview without the aid of complete notes and hence rest on the
memory of the agent.” Because the emails were not “essentially transcriptions
of interview notes,” which the government asserts is required under Jencks,
the district court did not err in denying their production.



       2 On appeal, Guadalupe fails to adequately present an argument on this issue. He
cites no case law, nor does he identify any government witnesses against whom he would
have or could have used the withheld documents. He further fails to identify or even describe
in general terms any document withheld by the government. As such, we consider this issue
forfeited as to Guadalupe and address the issue only as to Flores. See Brinkmann v. Dallas
Cnty. Deputy Sheriff Abner, 

, 748 (5th Cir. 1987); FED. R. APP. P. 28(a)(8).
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                                  No. 09-41207
        The Jencks Act requires that the government provide the defendant with
witness statements that relate to the subject matter on which the witness has
testified. 18 U.S.C. § 3500. The term “statement” is a term of art defined by the
Jencks Act as
              (1) a written statement made by said witness and
              signed or otherwise adopted or approved by him;


              (2) a stenographic, mechanical, electrical, or other
              recording, or a transcription thereof, which is a
              substantially verbatim recital of an oral statement
              made      by     said   witness     and     recorded
              contemporaneously with the making of such oral
              statement. . . .

reviews Jencks Act rulings for clear error. United States v.
Brown, 

, 591 (5th Cir. 2002). “Even when a [Jencks Act] violation
is found, the failure to produce prior statements is subject to a harmless error
analysis.” United States v. Ramirez, 

, 587 (5th Cir. 1999). “We
strictly apply harmless error analysis and determine whether the error itself
had a substantial influence on the judgment in addition to determining
whether there was sufficient evidence to support the conviction.” United States
v. Montgomery, 

, 451 (5th Cir. 2000).
        Because a statement must be approved by the witness to fall under the
Jencks Act, the emails authored by agents discussing witnesses were not
discoverable. See 18 U.S.C. § 3500(e)(1); United States v. Gaston, 

,
611 (5th Cir. 1979). An agents’ reports of witness interviews or debriefings may
contain “phrases or isolated sentences identical to the language used by the
witness,” but “this does not necessarily make such notes a ‘statement’ for
Jencks     Act    purposes”   unless    they     are   substantially   verbatim,
contemporaneously recorded transcripts of oral statements, or are written by

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                                  No. 09-41207
the witness and signed or otherwise ratified by the witness. 18 U.S.C. §
3500(e)(1)-(2); United States v. Cole, 

, 867-69 (5th Cir. 1980);

. Agent Juan Hernandez, who authored many of the
emails, testified during the court’s hearing on the motion to produce the emails.
The record also reflects that the district court examined the emails to
determine whether they were discoverable under the Jencks Act “and made
findings based on that examination.” See United States v. Kizer, 

, at *1 (5th Cir. Feb. 12, 2014) (unpublished). Moreover, the emails were
not prepared or verified by the witnesses who were interviewed by the agents,
and did not purport to be a substantially verbatim account of the witnesses’
statements. Likewise, there is no indication that the agents’ version of the facts
reviewed by or read to them for their adoption or approval. See United States
v. Williams, 

, 269 (5th Cir. 1993); United States v. Pierce, 

, 675 (5th Cir. 1990).
      Here, the emails were not exact transcriptions of interview notes but
summaries of interpretations or impressions of the agents. This does not meet
the Jencks requirement of “essential[] transcriptions” of interview notes, thus
the district court did not clearly err in denying their production. Moreover,
even if the statements had been subject to the Jencks Act, Flores did not
demonstrate that any such error would be harmless.
Challenge to the search warrant
      On May 5, 2008, Abraham filed a motion to suppress physical evidence
that had been seized pursuant to a search warrant executed on his home on
May 25, 2007. During the search, police officers seized certain documents,
Airgas Employee ID’s, UPS labels, and internet search page information.
Agents also took photographs of evidence they found, including candles in a
bucket with the phrase “shut your mouth,” and various items inside Abraham’s
bedroom. The seized evidence was introduced at trial.
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                                  No. 09-41207
      Abraham raises several issues with respect to the search warrant.
Abraham argues that the affidavit supporting the search warrant lacked
probable cause. Abraham asserts that the affidavit was stale, and further
failed to establish that the confidential informant had personal knowledge and
failed to establish the credibility of the informant. The government responds
that DEA Agent Juan Hernandez filed a 21-page affidavit in support of the
application of a search warrant, which summarized Abraham’s role in the
conspiracy, including the use of Airgas oxygen tanks to transport drugs. The
government argues that the information gathered from the confidential
informant was corroborated by the observations made by the investigator
during the execution of the drug conspiracy.
      We review the district court’s factual findings for clear error and its
conclusions of law de novo. United States v. Payne, 

, 399 (5th Cir.
2003). We will “uphold the district court’s ruling to deny the suppression
motion if there is any reasonable view of the evidence to support it.” United
States v. Michelletti, 

, 841 (5th Cir. 1994) (en banc) (internal
quotation marks and citation omitted).
      When evaluating the sufficiency of a search warrant, this court must
“first determine whether the good-faith exception to the exclusionary rule
applies.” United States v. Shugart, 

, 843 (5th Cir. 1997). This
exception provides that “evidence obtained by law enforcement officials acting
in objectively reasonable good-faith reliance upon a search warrant is
admissible in the prosecution’s case-in-chief, even though the affidavit on
which the warrant was based was insufficient to establish probable cause.”
United States v. Craig, 

, 821 (5th Cir. 1988). Typically, “[i]ssuance
of a warrant by a magistrate . . . suffices to establish good faith on the part of
law enforcement officers who conduct a search pursuant to the warrant.” 

exception applies unless, inter alia, “the warrant was based on
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                                  No. 09-41207
an affidavit so lacking in indicia of probable cause as to render official belief in
its existence entirely unreasonable.” United States v. Gibbs, 

, 355
(5th Cir. 2005) (internal quotation marks and citation omitted).
      Abraham fails to address the good-faith exception in his briefing to this
court, but he impliedly argues that the exception does not apply because the
affidavit upon which the search warrant relies was stale. Abraham contends
that all the information in the affidavit concerning him was from the spring of
2005. However, the affidavit states that the affiant learned in 2007 that
Abraham was a driver for Airgas Company, which reported twenty missing
oxygen tanks, at least one of which was had been modified to secret cocaine.
The affidavit upon which the search warrant was based further implicated
Abraham in a “long-standing, ongoing pattern of criminal activity,” and thus
“the information need not be regarded as stale.” 

(internal quotation marks and citation omitted). As such, Abraham does not
overcome the good-faith exception.
      Abraham also asserts that because the search occurred outside the time
frame authorized by the warrant, the subsequent search and seizure was
conducted without a valid warrant. The order authorizing the search warrant
stated that the search should be conducted on or before October 24, 2007. The
search warrant was executed on Abraham’s home on October 25, 2007. The
government argues that the execution of the search warrant one day after the
date ordered on the warrant did not undermine the officers’ good faith reliance
on the warrant in searching Abraham’s house. The execution of the search
warrant one day after it expired also fails to overcome the good-faith exception.
See United States v. Leon, 

, 918 (1984) (finding that “suppression
of evidence obtained pursuant to a warrant should be ordered only on a case-
by-case basis and only in those unusual cases in which exclusion will further
the purposes of the exclusionary rule”).
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                                  No. 09-41207
      Finally, Abraham failed to prove that the search warrant was “based on
an affidavit so lacking in indicia of probable cause as to render official belief in
its existence entirely unreasonable.” See 

(internal
quotation marks and citation omitted). An affidavit in support of a warrant
need not “vouch for the informant’s veracity.” United States v. Fisher, 

, 579 (5th Cir. 1994). Because we find that the good-faith exception applies,
we end our suppression analysis. See United States v. Woerner, 

,
535 (5th Cir. 2013). Accordingly, the district court did not commit reversible
error in denying Abraham’s motion to suppress.
Production of progress reports
      Flores argues that the district court erred when it did not require
disclosure of the progress reports supporting the wire taps. The wiretap orders
required that the government provide progress reports on the eleventh,
twenty-first, and thirty-first days of interception. Flores argues that these
reports were essentially extensions of the original court order authorizing
interception. He also argues that disclosure of the progress reports was
“essential” in preparing a motion to suppress the wiretaps. He asserts that the
government’s failure to provide the progress reports should have deprived it
from using any information obtained from those interceptions.
      The government responds that the progress reports were not subject to
disclosure because they represented work product and that Flores failed to
demonstrate that the lack of disclosure affected the sufficiency of his motion to
suppress the wiretap evidence. Finally, the government argues that the
progress reports fall within Federal Rule of Criminal Procedure 16(a)(2)’s law
enforcement exception to discovery because they were prepared by prosecutors
and agents.
      Because “progress reports do not provide a defendant with any original
information beyond what can be found in the tapes, transcripts, and monitor
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                                 No. 09-41207
log sheets,” to which the defendant is already entitled, United States v. Wright,

, 1350-52 (D. Kan. 2000), we find that the progress reports
are not discoverable. See Clifford S. Fishman & Anne T. McKenna,
WIRETAPPING AND EAVESDROPPING § 33:13 (citing cases). As such, we find that
the district court did not err in denying Flores’s motion for production.
Comments made during voir dire
      Flores argues that the district court erred by not dismissing the jury
panel after the court made an allegedly disparaging remark in the presence of
the jury. During voir dire for the second trial, the judge asked if anyone was
acquainted with Flores’s counsel. One of the potential jurors asked which
church Flores’s counsel attended. The court interjected “I’m surprised he goes
to church. Just kidding. A little levity.” Flores’s counsel then revealed that he
attended the same church as the potential juror. The jury was empaneled
without objection. However, prior to the start of trial, Flores moved the court
to strike the jury as the remark was “unethical” and “tainted” the jury against
his counsel. The government asserts that any error arising from the court’s
comment was cured by the length of the trial and the court’s instructions to
the jury.

      The district court’s remark was made 14 days before the case was
submitted to the jury. During jury instructions the district court admonished
the jury to “not assume from anything I may have done or said during these
proceedings that I have any opinion concerning any of the issues in this case.
Except for these instructions to you on the law, you should disregard anything
I may have said during these proceedings in arriving at your own findings as
to the facts.”

      When reviewing claims of judicial misconduct, this court must
“determine whether the judge’s behavior was so prejudicial that it denied the

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                                      No. 09-41207
defendant a fair, as opposed to perfect, trial.” 

. The
proceedings must be viewed as a whole to determine whether the judge’s
actions “amount to an intervention that could have led the jury to a
predisposition of guilt. . . .” 

can cure minor disparaging comments. See 

72; United States v. Zapata, 477 F. App’x 207, 208 (5th Cir. 2012) (unpublished)
(disparaging remark by judge cured by instruction that jury “should disregard
anything it had said in determining [defendant’s] guilt or innocence”); United
States v. Lankford, 

, 573 (5th Cir. 1999) (finding that instructions
to the jury can “operate against” a finding of judicial misconduct). Certainly,
“a trial judge has enormous influence on the jury and therefore must act with
a corresponding responsibility.” United States v. Williams, 

, 1086
(5th Cir. 1987). However, Flores has not demonstrated that the district court’s
remark resulted in substantial prejudice. See 

. A
review of the record demonstrates that the comment did not deprive Flores of
a fair trial, and overall the trial was conducted in an impartial manner. As
such, there was no reversible error with respect to Flores’s claim of judicial
misconduct.
Jury instructions
      Guadalupe argues that the district court erred in denying his proposed
jury instruction and challenge to the jury charge. Guadalupe argues that
Flores sought him out to find a lawyer and bondsmen for a co-conspirator after
the co-conspirator was arrested for possession of 217 kilograms of cocaine.
Guadalupe contends that the government failed to present any additional
evidence that he was involved in the conspiracy or possession of the cocaine
and that he did not get involved in the conspiracy until weeks after the cocaine
was seized. Guadalupe requested that the court include an instruction for
accessory after the fact as a lesser included offense.
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                                  No. 09-41207
      The government argues that Negrete testified that Guadalupe was
involved in the drug trafficking conspiracy before the seizure occurred. The
government also argues that Guadalupe was found guilty of conspiracy to
possess with intent to distribute and of aiding and abetting in the possession
of a controlled substance, and accessory after the fact is not a lesser included
offense of aiding and abetting because it requires proof that the defendant gave
assistance “in order to prevent the apprehension, trial, or punishment of the
offender.”
      In United States v. Avants, 

, 450 (5th Cir. 2004), this court
considered whether a defendant was entitled to an “accessory after the fact”
instruction in a case where he was charged with aiding and abetting murder.
      A defendant is entitled to a jury instruction on a lesser included
      offense if (1) the elements of the lesser offense are a subset of the
      elements of the charged offense (statutory elements test), and (2)
      the evidence at trial permits a rational jury to find the defendant
      guilty of the lesser offense yet acquit him of the greater. We review
      the first prong de novo; the second, for abuse of discretion. Where
      the lesser offense requires an element not required for the greater
      offense, no instruction is to be given under Rule 31(c).

(internal quotation marks and citations omitted). We
concluded that “accessory after the fact is not a lesser included offense of aiding
and abetting because the former requires proof that the defendant gave
assistance in order to prevent the apprehension, trial, or punishment of the
offender.” 

and citation omitted). Similarly, neither
conspiracy nor possession require proof that the defendant gave assistance in
order to prevent the apprehension, trial or punishment of the offender. See,
e.g. United States v. Thomas, 

, 366 (5th Cir.), cert. denied, — U.S.
—, 

(2012) (listing elements for conspiracy); see United States v.
Lopez, 

, 1031 (5th Cir. 1992) (listing elements for possession).



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                                       No. 09-41207
       We find that the district court did not err in denying Guadalupe’s
proposed jury charge. 3
Sufficiency of the evidence
       Guadalupe argues that the evidence presented at trial was insufficient
to show that he was not a participant in the drug trafficking conspiracy, nor
was it sufficient to establish that he possessed drugs. Because Guadalupe
moved for a judgment of acquittal at the close of the Government’s case and
again after the close of all evidence, he preserved the issue for appellate review
and we review de novo his challenge to the sufficiency of the evidence. See
United States v. Ollison, 

, 158 (5th Cir. 2009).
       “[R]eviewing courts must affirm a conviction if, afterviewing the
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.” United States v. Vargas-Ocampo, No. 11-41363, 

, at
* 1 (5th Cir. Mar. 12, 2014) (en banc) (citing Jackson v. Virginia, 

,
312 (1979 (emphasis in original)). Our review of factual findings underlying a
jury verdict is highly deferential. Ham Marine, Inc. v. Dresser Indus., Inc., 

, 461 (5th Cir. 1995). “Unless the evidence is of such quality and
weight that reasonable and impartial jurors could not arrive at such a verdict,
the findings of the jury must be upheld.” 

       To sustain a conviction for conspiracy, the government must prove “(1)
an agreement existed between two or more persons to violate federal narcotics


       3  Guadalupe also asserts that this circuit’s lesser included offense test is
unconstitutional because it prevents lesser included offense instructions which are supported
by the evidence simply because the statutory elements differ. Guadalupe’s sole citation to
Beck v. Alabama, 

(1980), is readily distinguishable. In Beck, the Supreme Court
struck down a categorical bar on giving lesser included offense instructions in capital cases.

Beck does not suggest that a lesser included offense analysis based on statutory
elements is unconstitutional. Guadalupe has failed to identify a case which clearly supports
that conclusion.
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                                  No. 09-41207
law, (2) the defendant knew of the existence of the agreement, and (3) the
defendant voluntarily participated in the conspiracy.” 

(internal quotations and citations omitted). The essence of the crime of
conspiracy is the agreement to commit an unlawful act. Iannelli v. United
States, 

, 777 (1975). The agreement need not be explicit, but can
be inferred from the facts and circumstances of the case. 

n.10.
      When viewed in the light most favorable to the government, the evidence
presented at trial would allow a rational trier of fact to find beyond a
reasonable doubt that Guadalupe knowingly participated in a conspiracy to
distribute drugs. See 

. Guadalupe’s argument on
appeal consists of the following conclusory statement: “[t]he defendant in this
case was nothing more than a person who came along after the [cocaine was
seized] and was asked to look for a lawyer or a bondsman. That, without more[,]
is not evidence of a conspirator. That is evidence of a friend.” However, the jury
heard evidence that Guadalupe did more than simply secure a bond and
attorney for a co-conspirator after the co-conspirator’s arrest. The evidence
showed that Guadalupe (1) utilized his position as a UPS employee to transport
contraband in UPS packages; (2) confessed to his participation in obtaining
UPS labels for drug transport; and (3) was recorded during phone
conversations between Guadalupe and co-conspirators relating to drug
trafficking transactions.
      To sustain a conviction for possession, the government must prove that
Guadalupe knowingly possessed drugs with the intent to distribute. See 

. Possession may be actual or constructive and can be proved
by circumstantial evidence. 

at trial to sustain the possession charge included
phone conversations between Guadalupe and co-conspirators relating to his
drug trafficking transactions, and Guadalupe’s transferring drugs via UPS. A
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                                 No. 09-41207
jury could reasonably find that Guadalupe possessed drugs with an intent to
distribute. The evidence presented at trial was sufficient to sustain the jury’s
guilty verdict on the conspiracy and possession charges.
                                      III.
      For the foregoing reasons, we affirm the convictions of all four
Appellants. We also affirm the district court’s declaration of a mistrial and
order transferring the case within the district. We further affirm the district
court’s denial of the motion to sever, the two motions for production, the motion
to suppress, and the motion to strike. We affirm the district court’s limitation
of Abraham’s cross-examination of a witness, and its denial of Guadalupe’s
proposed jury charge. Finally, we affirm Abraham’s sentence.
AFFIRMED.




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