UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________

No. 91-2638 _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KENNETH CHARLES FRAGOSO,

Defendant-Appellant.

_________________________________________________________________

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

(November 23, 1992)

Before JONES, BARKSDALE, Circuit Judges and JUSTICE,1 District Judge.

EDITH H. JONES, Circuit Judge:

Kenneth Charles Fragoso was convicted of conspiracy to

possess with intent to distribute more than 5 kilograms of cocaine.

Because of his two prior felony convictions, he has been sentenced

to life imprisonment. He appeals his conviction on numerous

grounds. For the reasons stated below, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 6, 1990, Larry Carlton contacted U Daya Chand

Thakur, who at that time was working as a paid informant for the

Drug Enforcement Administration (DEA), to inform him that he was in

possession of some cocaine and that he wanted Thakur to meet him

1 District Judge of the Eastern District of Texas, sitting by designation. immediately. The following morning, Carlton paged Thakur on his

beeper, and Thakur returned the call from the DEA office. During

the conversation, which was taped by DEA agents, Carlton stated

that he had ten kilos of cocaine to show Thakur and instructed him

to wait by the phone for directions to a meeting location. The

second call was also recorded.

That afternoon, Thakur and Carlton met at Champs

restaurant in Houston. Thakur was "wired" during this meeting, but

the recording of the conversation was unintelligible. Thakur

testified that Carlton told him that he had the cocaine in his

duplex and that his Mexican partner, Charlie, was back at the

duplex with the cocaine. Thakur also testified that Carlton told

him that if he moved the ten kilos of cocaine quickly, his partner

Charlie could supply another twenty to thirty kilos of cocaine the

next day.

After leaving the restaurant, Thakur followed Carlton to

the duplex, where Fragoso was waiting. Thakur expressed concern

about the presence of Fragoso, whom Carlton introduced as Charlie,

because Carlton had told him on the phone that they would be alone

during the deal. Carlton told Thakur not to worry about Fragoso's

presence, because Fragoso was his partner and because he had spent

time "in the joint."

Shortly after Thakur arrived at the duplex, Fragoso left

the room and returned with a garment bag, which he threw on the

floor, and instructed Thakur to "check it out." Carlton opened the

bag, which contained ten brown packages, and Thakur tested the

2 contents of one of the packages. While Thakur tested it, Fragoso

made representations about the quality of the cocaine, noting that

it was "good stuff" and that it was "from Colombia." Upon being

told by Fragoso that he could supply Thakur with another ten to

twenty kilos by the next evening, Thakur explained that his buyers

were in New York and that he would have to call them. Thakur then

left the duplex. DEA agents entered the duplex shortly thereafter2

and seized Carlton and the cocaine. Fragoso was arrested after

climbing out a window and attempting to climb over a fence.

On September 5, 1990, Fragoso was charged in a three-

count indictment with (1) conspiracy to possess with intent to

distribute in excess of 5 kilograms of cocaine, (2) aiding and

abetting the possession with intent to distribute in excess of 5

kilograms of cocaine, and (3) possession with intent to distribute

in excess of 5 kilograms of cocaine. After finding that the

seizure of the cocaine violated the Fourth Amendment, the district

court suppressed the cocaine, and the government moved to dismiss

Counts 2 and 3 of the indictment. Fragoso went to trial only on

Count 1, the conspiracy count. He was found guilty after a trial

by jury. Fragoso had two prior felony drug convictions, and he was

sentenced to life imprisonment.

2 It is not clear just how long Thakur had been gone when the agents entered the duplex. According to the trial testimony, it could have been as much as twenty minutes later.

3 THE JENCKS ACT

During the trial, Fragoso's attorney requested all Jencks

Act materials with respect to a particular DEA agent. Upon a

defendant's motion, the Jencks Act provides that the court shall:

order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.

(b) (emphasis added). Access under the Jencks Act

is limited to materials that fall under "the Act's definition of

'statements' which relate to the subject matter as to which the

witness has testified." Campbell v. United States,

,

,

(1961) (citing Palermo v.

United States,

,

,

(1959)).

If the defense makes a timely request and there is some

indication in the record that the materials meet the Jencks Act's

definition of a statement, the district court has a duty to inspect

the documents in camera. United States v. Pierce,

(5th Cir. 1990); United States v. Hogan,

(5th

Cir. 1985). This procedure was followed here, and the district

court found that the submitted materials were not Jencks Act

materials and need not be produced to the defendant.

Whether written materials constitute a statement under

the Jencks Act is normally a question of fact to be determined by

the trial judge, and the court's determination may not be disturbed

unless clearly erroneous. Campbell v. United States,

,

4 493,

,

(1963); Hogan,

. Our examination of the material at issue reveals no error

in the district court's determination. Neither report "relates to

the subject matter as to which the witness has testified."

Consequently, Fragoso's Jencks Act claim must fail.

COCONSPIRATOR STATEMENTS

Fragoso claims that the court improperly permitted Thakur

to testify about "hearsay" statements made by Carlton.

Coconspirator statements are not, however, hearsay under the

Federal Rules of Evidence:

A statement is not hearsay if . . . [t]he statement is offered against a party and is . . . (E) a statement by a conspirator of a party during the course and in furtherance of the conspiracy.

Fed. R. Evid. 801(d)(2)(E). For a statement to be admissible under

this rule, "[t]here must be evidence that there was a conspiracy

involving the declarant and the nonoffering party, and that the

statement was made 'during the course and in furtherance of the

conspiracy.'" Bourjaily v. United States,

,

,

(1987). Whether statements are

admissible under this rule is a preliminary question that "shall be

determined by the court." Fed. R. Evid. 104(a); See Bourjaily,

,

.

At the start of Thakur's testimony, Fragoso objected to

the admission of hearsay statements by Carlton because no

conspiracy had yet been established. Fragoso requested a James

5 hearing3 in order to determine the existence of a conspiracy. The

district court denied Fragoso's request for a James hearing, and

Fragoso now argues that this was error. Interestingly, Fragoso's

trial counsel conceded that under Bourjaily the court need not hold

a James hearing outside the jury's presence. But even before

Bourjaily, this court had so held. United States v. Gonzales,

(5th Cir. 1983); United States v. Whitley,

(5th Cir. 1982); United States v. Ricks,

(5th Cir. 1981). James has never required a hearing outside

the presence of the jury.

Alternatively, Fragoso asserts that the district court

erred procedurally in not making express findings of fact before

allowing Thakur to testify concerning statements made by Carlton.

Substantively, he argues that Thakur's testimony as a paid

informant was so lacking in credibility that there was insufficient

evidence independent of Carlton's coconspirator statements to

support either the introduction of those statements or the

conviction itself. Each of these arguments requires brief

discussion.

When preliminary facts to admissibility of coconspirator

testimony under Rule 801(d)(2)(E) are disputed, the offering party

must prove them by a preponderance of the evidence. Bourjaily,

,

; Triplett, 922 F.2d at 1181.

Fragoso argues that Bourjaily requires the trial court to make

3 See United States v. James,

(5th Cir.), cert. denied,

,

,

(1979).

6 findings of admissibility before permitting introduction of

coconspirator testimony:

Before admitting a co-conspirator's statement over an objection that it does not qualify under Rule 801(d)(2)(E), a court must be satisfied that the statement actually falls within the definition of the Rule. There must be evidence that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made "during the course and in furtherance of the conspiracy."

Bourjaily,

,

. We think this

argument erroneously transforms a descriptive portion of the

Court's opinion in Bourjaily into a mandatory procedure. Bourjaily

did not purport to address the procedure for proving the

admissibility of coconspirator statements. The opinion was

concerned with the substantive question whether the statements

themselves could be considered in conjunction with other evidence

of conspiracy to satisfy the predicate for admission. Bourjaily,

,

. In holding that they could be

so used, Bourjaily "swept" away a major portion of our James

decision. United States v. Perez,

(5th Cir.

1987).

Bourjaily is, however, consistent with that portion of

James which emphasizes the trial court's procedural duty to make

findings "upon appropriate motion" before admitting coconspirator

statements. James,

; see United States v.

Ascarrunz,

(5th Cir. 1988). And it is true that

James advised that "[t]he district court should, whenever

reasonably practicable, require the showing of a conspiracy and of

7 the connection of the defendant with it before admitting

declarations of a coconspirator." James,

. But the

court also recognized that it is sometimes not reasonably

practicable "to require the showing to be made before admitting the

evidence."

As a result, both before and after

Bourjaily this court has approved district courts' practice of

carrying a James motion through trial or at least through

presentation of the government's case until a determination of the

existence of the Rule 801(d)(2)(E) predicate facts4 can be

appropriately made. See, e.g., United States v. Lechuga,

(5th Cir. 1989) (denying motion to exclude "at the close

of the government's evidence"); Perez,

(motion

carried with the case); Ricks,

. In some cases, of

course, judicial economy suggests that express findings on

admissibility should be made before the coconspirator statements

are introduced. See, e.g., Ascarrunz,

; Gonzales,

; Whitley,

. This is a matter

committed to the broad discretion of the trial court. United

States v. Cantu,

(5th Cir. 1977), cert. denied,

(1973).

This case strayed off the procedural track in that the

court never made any findings as to the predicate facts under Rule

801(d)(2)(E). Although we caution district judges against such

4 The predicate facts are the existence of the conspiracy and that the statements sought to be introduced were made during and in furtherance of the conspiracy. See, e.g., United States v. Lechuga,

(5th Cir. 1989).

8 oversights, the error here was harmless. In denying the

defendant's motion for directed verdict of acquittal at the close

of trial, the court implicitly found the evidence sufficient to

establish a conspiracy. See United States v. Ammar,

(3d Cir.), cert. denied,

,

,

(1983); United States v. Lutz,

(9th Cir.),

cert. denied,

,

,

(1980).

Fragoso also asserts substantively that there was not

sufficient evidence independent of Carlton's statements to support

the existence of a conspiracy and hence the admission of the

statements under Rule 801(d)(2)(E). Bourjaily declined to decide

whether there must be any evidence independent of coconspirator

statements to determine that a conspiracy has been established by

a preponderance of the evidence. Bourjaily,

,

. That question is of no moment in this case,

for independent evidence of a conspiracy between Fragoso and

Carlton existed, and, together with coconspirator statements, that

evidence was sufficient to show the existence of a conspiracy by a

preponderance of the evidence.

When Thakur arrived at Carlton's duplex, Carlton and

Fragoso communicated through the door using code language that

Thakur did not understand. After being escorted around to the back

door, Thakur was introduced to Fragoso. They shook hands, and

Fragoso said, "Let's go in." While they were walking in, Fragoso

said to Thakur, "Don't worry, everything is cool." Once in the

duplex, Fragoso went to the back room, brought out a brown garment

9 bag, and threw it on the floor. Fragoso then told Thakur to check

it out. The garment bag contained ten brown packages. On one of

the packages, Thakur saw the letters, "YGA," and asked if somebody

had just flown in from Hong Kong. Fragoso replied, "No, this is

from Colombia." He then told Thakur that one of the packages was

open. Thakur found the package, opened it, and tested the cocaine.

Fragoso stated that it was "good stuff." Fragoso also told Thakur

that if he could get rid of that ten by the next morning, then he

could get Thakur another ten or twenty more by that evening.

This evidence all tends to support the conclusion that a

conspiracy existed between Fragoso and Carlton. If one considers

the coconspirator statements and the lack of contrary evidence,

there was certainly sufficient evidence to support the existence of

a conspiracy between Fragoso and Carlton. Fragoso makes much of

the inherent untrustworthiness of testimony by a paid informant

such as Thakur. Carlton did not testify, so Thakur's testimony

stood virtually alone to incriminate Fragoso. Fragoso considers it

malevolently significant that the "wire" Thakur carried to

memorialize the conspiracy malfunctioned consistently. To

infiltrate and expose the most sophisticated drug traffickers the

government must deal with, and must surely sometimes be fooled by,

unsavory characters. There is little this appellate court can

properly do to prevent overreaching but to implore that prosecutors

exercise sound moral and legal judgment and to insist that juries

be fully informed of the conditions under which a paid informant

10 worked. The credibility of Thakur's testimony was for the jury to

assess.

EVIDENCE OF PRIOR CONVICTIONS

Fragoso next asserts that fundamental, incurable error

occurred when Thakur testified that Carlton assuaged his

nervousness about Fragoso by telling him not to worry because

Fragoso had spent time "in the joint." Evidence of prior

convictions is admissible only for limited purposes. See Fed. R.

Evid. 404(b); Fed. R. Evid. 609. The district court ruled that

Thakur's statement was inadmissible and sustained Fragoso's

objection. We assume without deciding that the statement was not

properly admissible.5 When the district court sustained the

objection, he asked Fragoso's counsel if she wanted an instruction

and was told that she did. The court then instructed the jury that

he had sustained the objection and that they were to disregard the

witness's last response. At no point during the trial did Fragoso

suggest that the court's instruction was inadequate, nor did he

ever request a mistrial. Fragoso's assertion that the district

court's alleged error is incurable is incorrect. The district

court's instruction to disregard the comment cured the error, if

any. See United States v. Fields,

(5th Cir.),

cert. denied, ____ U.S. ____,

,

5 The government argues on appeal that Thakur's statement was admissible because it was part of the puffery used to obtain Thakur's confidence. See Lechuga,

; United States v. Miller,

(5th Cir. 1981), cert. denied,

,

,

(1982).

11 (1991); United States v. Avarello,

(5th Cir.),

cert. denied,

,

,

(1979).

VARIANCE BETWEEN THE INDICTMENT AND THE JURY CHARGE

The indictment charged Fragoso with conspiracy to possess

with intent to distribute in excess of five kilograms of cocaine.

The district court instructed the jury that it was not required to

show that Fragoso knew the substance was cocaine, only that he

conspired to possess with intent to distribute some controlled

substance. Fragoso asserts that this discrepancy was reversible

error.6 Fragoso was convicted of conspiracy to possess with intent

to distribute under

, which adopts as the object of

a conspiracy the crime of possession with intent to distribute, as

defined in

(a). Under section 841(a), "the

government is not required to prove that a defendant knew the exact

nature of a substance with which he was dealing; it is sufficient

that he was aware that he possessed some controlled substance."

Gonzales,

. Jury instructions such as that given in

this case were approved by this court long ago. Gonzales,

(jury instructed that it could convict Gonzales if he "knew

that there was some controlled substance in the car, whether or not

he knew it was actually heroin or some other drug or narcotic");

6 Fragoso also argues that there was insufficient evidence to prove that cocaine was involved. Here the ten kilos of cocaine seized at the duplex were suppressed by the trial court. Despite the lack of physical evidence in the form of the cocaine itself, Thakur's conversations with Carlton include numerous references to cocaine as the subject of the transaction. In light of these references, there was more than enough evidence for the jury to infer that Fragoso had conspired with Carlton to possess cocaine with intent to distribute it.

12 see United States v. Rada-Solano,

(5th Cir.),

cert. denied,

,

,

(1980).

There was no error in the jury charge.

SENTENCING

Fragoso's final contention is that he was improperly

sentenced because the district court did not specifically follow

the procedures set forth in

to prove and base a

sentence enhancement on prior convictions. The government does not

deny the court's oversight, but it notes that Fragoso was well

aware of the likelihood of enhancement from the government's

pretrial information, filed pursuant to § 851(a)(1), alleging two

prior convictions. Although Fragoso objected to the presentence

investigation report and objected to the government's failure to

prove the convictions at trial, he never challenged them.

For two reasons, there is no reversible error. First,

Fragoso could not challenge his 1980 conviction under the

limitations provision of section 851(e), and where that section

prohibits a challenge to a conviction, "[n]either the enhancement

statute nor reason requires a trial court to adhere to the rituals

of § 851(b)." United States v. Nanez,

(5th Cir.

1982), cert. denied,

,

,

(1983); see United States v. Weaver,

(11th Cir.

1990), cert. denied, ____ U.S. ____,

,

(1991). Second, while Fragoso's ability to challenge the use

of his later conviction is not barred by section 851(e), this court

recently held that a defendant's "failure to comply with the

13 procedures of § 851(c), when coupled with the absence of any

suggestion . . . that the judge's omission precluded him from

presenting a specific challenge to [a prior conviction]," amounts

to harmless error. United States v. Garcia,

(5th

Cir. 1992). Even on appeal, Fragoso does not argue that he would

or could have raised a proper challenge to his prior convictions

had he received the district court's warning under section 851(b).

Consequently, as in Garcia, the district court's error, if any, was

harmless.

Finally, for the first time on appeal, Fragoso argues

that it was cruel and unusual punishment to imprison him for life

without parole. The Supreme Court's decision in Harmelin v.

Michigan, ____ U.S. ____,

,

(1991), forecloses this contention.

CONCLUSION

For the foregoing reasons, Fragoso's sentence is

AFFIRMED.

14