UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 93-7514

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

DANIEL INOCENCIO, EVARISTO HINOJOSA, SR., DANIEL ALFONSO REYES,

Defendants-Appellants.

Appeals from the United States District Court for the Southern District of Texas (December 8, 1994)

Before REYNALDO G. GARZA, WIENER, and EMILIO M. GARZA, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Daniel Inocencio, Evaristo Hinojosa, Sr., and Daniel Alfonso

Reyes (the "appellants") were indicted on October 20, 1992, on two

separate counts. Count one consisted of conspiracy to possess with

intent to distribute over five kilograms of cocaine in violation of

(a)(1), 841(b)(1)(A) and 846. Count two dealt with

the underlying possession offense in violation of

(a)(1), 841(b)(1)(A) and

The appellants were convicted by a jury on both counts of the

indictment on April 24, 1993, and were sentenced on July 22, 1993.

Evaristo Hinojosa, Sr., received a concurrent imprisonment term of

300 months in the custody of the Bureau of Prisons, followed by a

eight year term of supervised release, a $3,500 fine and a $100

special assessment. Daniel Inocencio received a concurrent

imprisonment term of 235 months, followed by a five year term of

supervised release, a $3,500 fine and a $100 special assessment.

Daniel Alfonso Reyes ("Reyes") received a concurrent imprisonment

term of 240 months, followed by a five year term of supervised

release, a $3,500 fine and a $100 special assessment. The

appellants appeal their convictions. For the reasons below, we

AFFIRM the district court.

FACTS

On October 1, 1992, while conducting traffic duties at the

checkpoint on Highway 16, two miles south of Hebbronville, Texas,

U.S. Border Patrol Agents Carl Rhodes and Luis Del Olmo were

notified at noon that directional vehicular sensors had been

activated on a private ranch road on Helen Ranch between FM 3073

and Highway 359. These sensors had been installed, after numerous

complaints from ranchers, to detect narcotics smugglers who

1 Nicanor Inocencio and Hector Eduardo Hill were also charged as defendants in both counts. Prior to trial, however, Hill pled guilty to count two pursuant to a plea agreement with the government, whereby he agreed to testify truthfully in his co- defendants' trial. Nicanor Inocencio pled guilty to the indictment without any plea agreement from the government. commonly used the road to circumvent two nearby Border Patrol

checkpoints.2 The sensors were strategically placed to avoid

detecting routine traffic on the ranch. Agent Rhodes' unit alone

had made five seizures of narcotics between April 1991 and October

1991 due to the triggering of such devices.

As Agents Rhodes and Del Olmo proceeded to the ranch, they

were alerted of another sensor "hit". They also overheard on their

police scanner that a tan Ford Bronco had been observed making u-

turns in the area, driving up and down the highway. The agents

suspected that the Bronco was a "lookout" for a second vehicle

carrying contraband; the vehicle which had presumably activated the

sensors. Upon reaching the ranch, the agents parked near to a

locked gate that enclosed the private road and waited for a vehicle

to exit.

At 12:15 p.m., they observed a white 1992 Ford pickup truck

drive up to the gate from within the ranch. The truck's sole

occupant, a Hispanic male, exited the vehicle and unlocked the

gate. The occupant was later identified as Reyes, one of the

appellants. Two other agents, Morales and Sigala, drove by as

Reyes locked the gate. All four agents observed the truck depart

towards Hebbronville. None of the agents recognized the truck or

Reyes.

2 The checkpoints are located on Highway 16, two miles south of Hebbronville, and on Highway 359 between Hebbronville and Laredo. Smugglers circumvent the checkpoints by using Highway 649 from Rio Grande City to Farm Road 3073, which exits approximately a mile below the Highway 16 checkpoint. Thereafter, the smugglers cross the private ranch road to Highway 359, thereby circumventing both checkpoints.

3 These agents were not only familiar with the traffic around

the ranch, but they had been advised by a ranch owner that the only

individuals authorized to access the road were employees of Helen

Ranch, the Hughes Oil Company and the Rodriguez Service Company.

The agents testified that they were familiar with the ranch

employees accessing the road, that the Hughes trucks were

identifiable by their company logos and that the Rodriguez truck

was a white Datsun truck. The white Ford truck driven by Reyes

aroused the agent's suspicions due to their unfamiliarity with the

vehicle, the heightened drug activity in the area, the lack of

company logos on the truck and the fact that it carried no tools or

pipe racks typical of oil field trucks. The agents were also

unaware of any oil activity in the area at that time. Furthermore,

although Reyes appeared to be dressed as a workman, his clothing

appeared too clean to have been working in the field.

The agents followed the truck onto the highway in the

direction of Hebbronville. A check of the vehicle's license

registration revealed that the vehicle was registered in the name

of Hector Eduardo Hill of Newark, Texas. Due to their suspicions,

the agents decided to stop the truck for an immigration inspection.

As Agent Del Olmo questioned Reyes, Agent Rhodes noticed signs of

a false compartment in the bed of the truck. The record discloses

that Rhodes observed that the back of the truck was higher than

normal, that Rhodes smelled fresh paint and noticed that a fresh

coat of it covered dents and scratches around the fender wells at

the back of the truck and that there was a fresh black undercoating

4 in certain areas underneath the bed of the truck.3 The parties

dispute the questions asked by Del Olmo following the stop, and

Reyes' behavior and responses to such questions. In any event,

Agent Rhodes ultimately asked Reyes if he consented to a canine

search of the vehicle. Reyes replied in the affirmative and a

drug-sniffing dog immediately detected contraband in the bed of the

truck.

Reyes was properly placed under arrest and approximately 300

pounds of cocaine (with a street value of $9,6000,000) were

recovered from a false compartment in the bed of the truck. The

agents also recovered a hand-held, two-way radio from the seat of

Reyes' truck, a small amount of cocaine and a key to the ranch

gate. After Reyes' arrest, the local sheriff's department was

notified to be on the "look out" for the Bronco which had been

driving back and forth on the highway.

At 3:18 p.m., Deputy Roland Garza, with the Jim Hogg Sheriff's

Department, observed the Bronco traveling on Highway 359, one mile

west of Hebbronville. The Bronco was following too closely behind

a recreational vehicle, approximately one car length behind at a

speed of 55 m.p.h., prompting Deputy Garza to pull the Bronco over.

Daniel Inocencio ("Daniel"), the driver, failed to produce a

license and proof of insurance. He also admitted to following the

recreational vehicle too closely and apologized. Nicanor Inocencio

("Nicanor"), the passenger, produced his Texas driver's license.

3 The smell of fresh paint was suspicious to Rhodes, since the truck was brand new at the time of the stop.

5 While writing out the citations against Daniel, the deputy asked

about a two-way radio located under the dashboard. Daniel admitted

to owning the radio and became nervous and evasive when asked

further questions about it.

After receiving Daniel's consent to search the vehicle, Deputy

Garza inquired whether there were any weapons in the Bronco and

Daniel indicated that there was a gun in the glove box and a clip

with ammunition in the driver's side door panel. For safety

reasons, the search was continued at the sheriff's department.

While searching the Bronco, Deputy Garza finally realized that it

matched the description of the vehicle sighted in connection with

possible narcotics trafficking. Daniel was arrested for possession

of a firearm, driving without a license or liability insurance and

for driving too closely behind another vehicle. Nicanor was

arrested for possessing approximately two grams of cocaine.

A thorough search of the Ford Bronco revealed that the two-way

radio was programmed to the same frequency as the radio found in

Reyes' truck. Officers also found a cellular phone that displayed

a locked-in phone number of 664-7323, a piece of paper with the

same phone number and number 132 written on it, and a photograph of

Daniel and Reyes. The phone number was traced to Alice Motor Inn

in Alice, Texas. The officers further seized a digital pager from

Daniel and numerous phone numbers from his and Nicanor's wallet,

including Evaristo Hinojosa's cellular phone numbers and Reyes'

pager number.

Alice police officers were sent to room 132 at the Alice Motor

6 Inn. The room was registered under the name of David Garza, but it

was later determined that Nicanor had signed the registration card

for the room. The occupants of the room were identified as Hector

Eduardo Hill ("Hill"), Evaristo Hinojosa, Sr., ("Hinojosa") and

Alejandro Trevino. After preliminary questioning, Hill, Hinojosa

and Alejandro Trevino were transported to the Laredo Drug

Enforcement Agency office. Hill and Hinojosa were consequently

arrested and charged with the present drug offenses.4 Reyes,

Daniel and Hinojosa appeal the convictions arising from the facts

above.

DISCUSSION5

I. Daniel Alfonso Reyes

A.

Reyes bases his appeal on three separate points of error. In

his first point of error, the appellant argues that U.S. Border

Patrol agents lacked reasonable suspicion to conduct a stop and

probable cause to conduct a search of the vehicle. Reyes asserts

that the Agents were predisposed to stop any traffic traveling the

private road at Helen Ranch. Consequently, Reyes argues all

evidence seized from such stop is fruit from a poisonous tree.

Hence, said evidence should have been suppressed in his pre-trial

4 It is unclear from the record what charges, if any, were brought against Alejandro Trevino, nor their ultimate disposition. 5 Although the appellants appeals are docketed under the same appeal number, each defendant has raised different issues. Therefore, each defendant's appeal will be discussed separately.

7 motion to suppress.

A district court's purely factual findings are reviewed under

the clearly erroneous standard. United States v. Cardona,

(5th Cir.), cert. denied, ---U.S.---,

(1992). The evidence presented at a pre-trial hearing on a motion

to suppress is viewed in the light most favorable to the prevailing

party. Id. The conclusions of law derived from a district court's

findings of fact, such as whether a reasonable suspicion existed to

stop a vehicle, are reviewed de novo. Id.

Due to the fact that this case involves a roving Border Patrol

stop, our analysis is guided by the principles enunciated by the

United States Supreme Court in United States v. Brignoni-Ponce,

(1975). Border Patrol officers on roving patrol may

temporarily detain vehicles for investigation only if they are

"aware of specific articulable facts, together with rational

inferences from those facts, that reasonably warrant suspicion"

that the vehicle is involved in illegal activities. Cardona,

(quoting Brignoni-Ponce,

); see United

States v. Cortez,

(1981) (expanding the

Brignoni-Ponce "reasonable suspicion" test for alien smuggling to

encompass vehicle stops for any suspected criminal activity).

In determining whether a Border Patrol agent acted with

reasonable suspicion, the district court may consider the following

relevant factors:

(1) known characteristics of a particular area, (2) previous experience of the arresting agents with criminal activity, (3) proximity of the area to the border, (4) usual traffic patterns of that road, (5) information about recent illegal

8 trafficking in aliens or narcotics in the area, (6) the behavior of the vehicle's driver, (7) the appearance of the vehicle, and (8) the number, appearance and behavior of the passengers.

United States v. Casteneda,

(5th Cir. 1992) (citing

United States v. Melendez-Gonzalez,

(5th Cir.

1984) (in turn citing Brignoni-Ponce,

)).

Reasonable suspicion, however, is not limited to an analysis of any

one factor. Melendez-Gonzalez,

; Cardona,

(the absence of a particular factor will not control a

court's conclusions). Instead, since "reasonable suspicion" is a

fact intensive test, each case must be examined from the "totality

of the circumstances known to the agent, and the agent's experience

in evaluating such circumstances." Casteneda,

.

One element that this Court frequently focuses on, however, is

whether an arresting agent could reasonably conclude that a

particular vehicle originated its journey at the border.6

6 This Court considers the fact that a vehicle may have recently crossed the border as a vital element in making an investigatory stop. Melendez-Gonzalez,

. This stems from the fact that we are reluctant to allow governmental interference with people traveling within our country, even if the vehicle is traveling close to the border.

That situation, however, is completely different from the instance where someone has "definitely and positively entered this country from abroad."

(quoting United States v. Lopez,

(5th Cir. 1977)). In the latter case, a stop at the border or its "functional equivalent" is automatically justified without a showing of probable cause or even reasonable suspicion.

(citing Almeida-Sanchez v. Untied States,

(1973)). At times, this issue is resolved by an analysis of the road the vehicle was travelling on, the number of towns along the road, the number of intersecting roads and, finally, the number of miles the vehicle was actually from the border at the point of the stop. United States v. Cardona,

(5th Cir.), cert. denied, ---U.S.---,

(1992).

9 Melendez-Gonzalez,

(citations omitted). When the

stop occurs a substantial distance from the border,7 this element

is missing.

Since the record does not reflect the proximity

of the stop to the Texas-Mexico border, this Court will take

judicial notice of the fact that the stop was a substantial

distance from the nearest border entry point. Consequently, the

proximity element is missing in this case.

On the other hand, if the agents do not base the stop on the

vehicle's proximity to the border, Brignoni-Ponce may still be

satisfied if other articulable facts warrant reasonable suspicion.

United States v. Henke,

(5th Cir. 1985); United

States v. Salazar-Martinez,

(5th Cir. 1983)

(proximity to the border is not a controlling Brignoni-Ponce factor

if other articulable facts give rise to the requisite reasonable

suspicion); Melendez-Gonzalez,

. In that instance,

the facts offered by the government to support a reasonable

suspicion will be examined charily. Salazar-Martinez,

; Henke,

.

A careful examination of the facts creates a reasonable

suspicion of illegal activity, especially when the evidence is

viewed in the light most favorable to the prevailing party. The

record clearly establishes several of the Brignoni-Ponce factors.

7 Vehicles traveling more than fifty miles from the border are usually a "substantial" distance from the border. See Cardona,

(5th Cir.), cert. denied, ---U.S.---,

(1992) (stop was proper where vehicle was between 40 and 50 miles from Mexican border); Melendez-Gonzalez,

(a stop sixty miles from the Mexican border was not sufficient to establish that vehicle originated from the border).

10 For example, the record shows that Agent Rhodes was an experienced

veteran who was familiar with the Hebbronville area and who had

been involved in five narcotics seizures (within a five month

period) on that particular road. It was certainly clear to Agent

Rhodes and the other agents that this road, which was unaccessible

to the public, was a main artery for drug smuggling since it

circumvented the two Border Patrol checkpoints.8

In addition, the agents were propelled into action by sensors

designed to avoid routine ranch traffic. This is not to say,

however, that a sensor "hit" alone will create "reasonable

suspicion" for an investigatory immigration stop. But a "hit,"

together with the observation of an unfamiliar and atypical-looking

oil field vehicle with no company logos and an unfamiliar

individual wearing clean workman's clothes may, as a whole, justify

such a stop. Again, this Court will stress that the ranch owners

had specifically identified the vehicles that were authorized to

access the private ranch road. They emphasized that all other

vehicles on that road were unauthorized. Moreover, the agents had

worked that area for enough time to familiarize themselves with the

employees and vehicles accessing that road.

Furthermore, the agents were alerted to the suspicious

activity of the Ford Bronco in the vicinity of the ranch gate;

activity suggesting a "lead car - load car" configuration.9 The

8 The record also reveals that the ranch road was heavily used by alien smugglers. 9 This configuration is one of the tactics utilized by drug smugglers while transporting contraband. The "lead" vehicle will

11 totality of these circumstances created a sufficient level of

reasonable suspicion to conduct an investigatory stop.10 However,

contrary to appellant's argument, the facts do not support Reyes'

contention that the agents were predisposed to stop and investigate

any vehicle crossing that road.11

Since we conclude that the stop was legal, the next question

we must answer is whether the seizure of the evidence was legal.

Although only reasonable suspicion is needed to stop a vehicle for

an immigration check, probable cause or consent is necessary in

order to search a vehicle. See United States v. Melendez-Gonzalez,

(5th Cir. 1984) (citing United States v.

drive on ahead and warn the "load" vehicle, usually via two-way radio, of any law enforcement officers on the road. 10 In light of these facts, we also agree with the government that Agents Rhodes and Del Olmo acted with an objectively reasonable good faith belief that they had a reasonable articulable suspicion that legally justified stopping Reyes. See United States v. Ramirez-Lujan,

(5th Cir. 1992), cert. denied, --U.S.--,

(1993) (among the factors relied on by the Border Patrol agent in making the stop on Pinon Road were that he knew the truck did not belong to a Pinon Road resident or one of their employees, the unusual hour the truck transversed the road, the proximity of the road to an avoided checkpoint, the notoriety of the road's use for illegal activity, and its proximity to the border). Under the good faith exception, "evidence is not to be suppressed...where it is discovered by officers in the course of actions that are taken in good faith and in the reasonable, though mistaken, belief that they [were] authorized." Id. at 932 (citations omitted). The facts in Ramirez-Lujan are sufficiently similar to those before us to adequately support this finding as well. 11 To substantiate his argument that the agents were unreasonably stopping anyone on that road, Reyes placed great weight on the fact that he possessed a key to the ranch gate Yet, this fact by itself does not tip the scales in his favor. If, on the other hand, he had also been driving a typical oil field truck with company logos, his argument might have carried more weight. This, however, did not occur.

12 Brignoni-Ponce,

(1975)); United States v.

Henke,

(5th Cir. 1985). The agents testified at

trial that Reyes appeared nervous and offered conflicting

statements in explaining his presence on Helen Ranch road. In

addition, they testified that Reyes was unable to read certain

graphs and charts that he claimed he was working on while in the

area. The cumulation of the testimony and evidence above, together

with the observation that the bed of the vehicle was higher than

normal, the discovery of fresh paint (on a brand new truck) around

the fender wells and the fresh undercoating beneath the bed of the

truck, all contributed in creating a reasonable belief that the

vehicle contained a false compartment. This belief would create

sufficient probable cause to search the vehicle. See United States

v. Edwards,

(5th Cir.) (en banc), cert. denied,

(1978) ("It is well settled that probable cause to

search an automobile exists when trustworthy facts and

circumstances within the officer's personal knowledge would cause

a reasonably prudent man to believe that the vehicle contains

contraband."). Even so, it is undisputed by Reyes that he

voluntarily consented to a search of the vehicle after the

investigatory stop. For these reasons, we find the search legal.

B.

As his second point of error, Reyes asserts that the direct

and circumstantial evidence presented against him was insufficient

to support his conviction for conspiracy or possession with intent

to distribute. He argues that the government failed to prove that

13 an agreement was entered into between the five individuals

originally named as defendants. Furthermore, he claims the

government did not prove that he was guilty of possession with

intent to distribute because it did not show that he was aware of

the false compartment in the bed of the truck.

Reyes moved for a judgment of acquittal at the end of the

state's evidence, but failed to renew the motion at the close of

his evidence. Accordingly, our review of Reyes' claims is limited

to whether his conviction resulted in a manifest miscarriage of

justice. United State v. Thomas,

(5th Cir.),

cert. denied, ---U.S.---,

(1994) (citations

omitted). "Such a miscarriage would exist only if the record is

devoid of evidence pointing to guilt, or...because the evidence on

a key element of the offense was so tenuous that a conviction would

be shocking." United States v. Pierre,

(5th

Cir.) (en banc), cert. denied, ---U.S.---,

(1992)

(internal quotations and citations omitted).12 In making this

determination, the evidence, as with the regular standard for

review of insufficiency of evidence claims, must be considered in

12 In United States v. McCarty, No.93-7757,

(5th Cir. Oct. 25, 1994) (per curiam), this Court recognized that there was some question about the distinction between the plain error "miscarriage of justice" standard and the "sufficiency of the evidence" standard, see United States v. Pennington,

, 597 n.2 (5th Cir. 1994), as applied to defendants who failed to renew their motions for acquittal at the close of their evidence. This Court resolved the issue by stating that it was bound by the precedent of this Circuit as reflected in United States v. Pierre and United States v.

Therefore, under the plain error standard, this Court will reverse a conviction only where there is a manifest miscarriage of justice.

14 the light most favorable to the government, giving the government

the benefit of all reasonable inferences and credibility choices.

Thomas,

(citation omitted).

A conviction under

(a)(1) for possession of

drugs with intent to distribute, requires the government to prove

that the defendants knowingly possessed contraband with the intent

to distribute it. United States v. Shabazz,

(5th

Cir. 1993). Possession may be actual or constructive.

Ownership, dominion, or control over the contraband, or over the

vehicle in which it was concealed, constitutes constructive

possession.

Furthermore, "knowledge of the presence of

contraband may ordinarily be inferred from the exercise of control

over the vehicle in which it is concealed."

(quoting United

States v. Garcia,

(5th Cir. 1990).

In recent cases, however, where the illegal substance was

discovered in a hidden compartment within the vehicle, we have

required circumstantial evidence that is suspicious in nature or

which demonstrates guilty knowledge. Id.; see, e.g., United States

v. Pineda-Ortuno,

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

U.S.---,

(1992); United States v. Gonzalez-Lira,

(5th Cir. 1991). For example, the defendant's

control over a vehicle, when combined with his nervousness,

conflicting statements, and implausible stories, is sufficient to

support a finding that he had knowing possession. Pineda-Ortuno,

; United States v. Diaz-Carreon,

, 954-

55 (5th Cir. 1990). Finally, possession of cocaine in an amount

15 larger than that needed for personal consumption will support a

finding that the defendant intended to distribute the drug.

Pineda-Ortuno,

; United States v. Kaufman,

(5th Cir. 1988).

Since it is undisputed that the driver of the cocaine laden

vehicle was Reyes, a jury could conclude that he had constructive

possession of the cocaine. In addition, the agents' testimony

revealed that Reyes seemed nervous throughout the questioning and

had a hard time keeping his story straight. For instance, when

questioned about the owner of the truck Reyes initially responded

that it belonged to "Mr. Hill," but later reversed himself and

stated that it belonged to Killam Oil. According to the agents,

Reyes claimed to be reading oil field gauges in the area with the

help of graphs inside the truck, but when he produced the graphs

they had no marks on them. Agent Rhodes also testified that Reyes

failed to explain how to read the graphs he was supposedly working

on.

Reyes, on the other hand, offered a different story. Reyes

testified that he had no knowledge that he was transporting cocaine

when he was arrested. He alleged that a friend left the truck

(with over $9.6 million in cocaine) at his house for a few hours

and, since the keys were left in the ignition, decided to use it to

run errands and seek employment in a ranch near to where he was

stopped. Reyes denied ever giving the investigating agents the

name of the vehicle's owner. Furthermore, he denied using any of

the graphs found inside the truck and denied ever mentioning that

16 he knew a "Mr. Hill."

The jurors entertained the plausibility of each parties'

testimony and were free to believe or disbelieve all or part of it.

Yet, it is clear that they found Reyes' version of the facts

implausible, since they chose to convict him. In light of the

testimony and evidence adduced at trial, and by virtue of the large

amount of cocaine in his possession, this Court concludes that

there is an overwhelming amount of evidence in the record to

support the jury's conviction for possession with the intent to

distribute cocaine. Especially, when the evidence is viewed in the

light most favorable to the government.

To establish a drug conspiracy under

, the

government must prove beyond a reasonable doubt (1) an agreement

between two or more persons to violate the narcotics laws, (2) that

each alleged conspirator knew of the conspiracy and intended to

join it, and (3) that each alleged conspirator did participate

voluntarily in the conspiracy. United States v. Pennington,

(5th Cir. 1994). "No evidence of overt conduct is

required. A conspiracy agreement may be tacit, and the trier of

fact may infer an agreement from circumstantial evidence." United

States v. Thomas,

, 1358 (5th Cir.), cert. denied, ---

U.S.---,

(1994) (quoting United States v. Hernandez-

Palacios,

(5th Cir. 1988)); Pierre,

(a conspiracy need not be proved by direct evidence, but may

be inferred from circumstantial evidence indicating a "concert of

action" between the alleged conspirators). Furthermore, a jury may

17 find a defendant guilty of conspiring with unknown persons where a

"pivotal figure. . .directs and organizes the illegal activity, and

has extensive dealings with each of the parties." Thomas,

(quoting United States v. Lockey,

(5th

Cir. 1991)). Thus, "parties who knowingly participate with core

conspirators to achieve a common goal may be members of an overall

conspiracy," even in the absence of contact with other

conspirators.

(quoting United States v. Richerson,

(5th Cir. 1987)).

Reyes argues that a conspiracy was not established because no

testimony was given by co-defendants Daniel, Nicanor and Hinojosa,

that there was a conspiracy between them. Furthermore, Hill, who

was the main government witness, testified that he did not know

Reyes. Thus, Reyes asserts that no conspiracy existed between him

and any of the individuals named above. The appellant, however,

fails to recognize that a conspiracy can be established through

either direct or circumstantial evidence. In this case, the

circumstantial evidence shows that the defendants were involved in

a conspiracy to possess with the intent to distribute cocaine.

During trial, testimony was offered by the government

concerning oral statements given by Daniel to agents at the Drug

Enforcement Agency office.13 The statement revealed that a friend14

13 The record reveals the defendant was advised of his Miranda rights. He acknowledged that he understood his rights and gave the agents his statement. 14 In testimony over Daniel's statement, Reyes was referred to as "a friend" in order to avoid the confrontation problems in Bruton v. United States,

(1968).

18 had asked Daniel to act as a "lookout" by driving to Hebbronville

in his vehicle, while his friend drove a white pickup truck.

Although his friend did not disclose the purpose of the trip, he

thought his friend would be transporting marihuana or an illegal

substance through Hebbronville. Daniel's friend, however, never

arrived at Hebbronville.

In addition, Hill offered the following testimony pursuant to

a plea agreement. He testified that he traveled to Alice, Texas

with Jose Alejandro Trevino to meet Hinojosa at the Alice Motor

Inn. A few days prior to the meeting, he had agreed with Hinojosa

to drive a load of cocaine in the white truck to a destination in

Dallas, Texas. Hill disclosed that he had previously made other

drug "runs" for Hinojosa. Hinojosa had instructed Hill as to the

motel they were to meet at in Alice and the roads he was to take

during the drug operation. When Hill arrived at the motel, he

observed the Inocencio brothers leaving. Hinojosa informed him

that they were going to look for the white Ford truck because it

was late in arriving. Hill stated that he did not know the person

who was delivering the truck, but that he knew the driver of the

truck worked for Hinojosa.

From this testimony, the jury could infer the existence of a

conspiracy and that Hinojosa was the pivotal figure of the

agreement. They could also infer that Reyes conspired to transport

the cocaine for Hinojosa. There is also additional circumstantial

evidence implicating Reyes. As recited before, the radio recovered

from Reyes' truck was programmed to the same frequency as the radio

19 seized from Daniel's Bronco. The radio, and the fact that the

Bronco was apparently waiting for another vehicle on the highway,

supports a "lead car-load car" transportation scheme. Also, among

the papers seized from Daniel and Nicanor were Reyes' pager and

business number, as well as Hinojosa's cellular phone number. A

photograph of Reyes and Daniel was also seized from Daniel's

Bronco. In addition, the cellular phone recovered from the Bronco

displayed a locked-in phone number which was traced to the Alice

Motor Inn. It was also established that someone using Hinojosa's

cellular phone called the cellular phone in Daniel's Bronco on the

morning of the offense. Again, in light of all the evidence

reflected in the record, a jury could infer that a conspiracy had

been formed between the defendants, and that Reyes was an active

and knowing participant in the drug operation.

The conspiracy evidence recited above also establishes that

Reyes aided and abetted the possession offense under

.

United States v. Chavez,

(5th Cir. 1991). The

government clearly proved that Reyes "became associated with,

participated in, and in some way acted to further the possession

and distribution of the drugs."

("typically, the same evidence

will support both a conspiracy and an aiding and abetting

conviction"). Thus, the evidence also supports the appellant's

conviction on this offense.

C.

As his last point of error, Reyes contests the district

20 court's actions in raising or enhancing his offense level for

obstruction of justice.15 He argues that there is no evidence to

support a finding that his trial testimony was materially untrue

since it was essentially uncontradicted by any co-conspirator's

testimony at trial. He further questions the probation officer's

use of Nicanor's out-of-court statement as evidence that his

testimony was false.16

This Court is unable to entertain Reyes' contention because he

has not provided this Court with a record of the sentencing

hearing, and no justification has been presented for his not doing

so. United States v. Hinojosa,

(5th Cir. 1992).

Although the district court's judgement generally states that the

basis for the sentence is "because the defendant provided an absurd

version of the circumstances of the offense," it fails to reflect

any further reason for increasing the offense level. Moreover,

there is no record of the district court's evaluation of the

defendant's trial testimony for this Court to review. Since the

appellant failed to comply with the rules of appellate procedure by

15 The district court may enhance the offense level by two points "[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede the administration of justice during the investigation, prosecution, or sentencing of the instant offense." U.S.S.G. § 3C1.1 (1993). The commission of perjury is an example of the type of conduct that may justify the enhancement. Id. § 3C1.1 commentary n.3(b). 16 In the Presentence Report, the probation officer recommended that Reyes' base offense level be raised for obstruction of justice for given materially false testimony at trial. The officer based his recommendation on the contradictory testimony given by law enforcement officers and Nicanor's statement implicating Reyes in the conspiracy.

21 failing to provide a thorough record,17 we properly decline to

review this issue. Hinojosa,

.

II. Daniel Inocencio

A.

Daniel asserts that the lower court has erred in denying his

motion to suppress because the officer had no objectively

reasonable basis to stop his vehicle. The officer in question,

Deputy Garza, stopped Daniel for following another vehicle too

closely, in violation of TEX. REV. CIV. STAT. ANN. art. 6701d, § 61(a)

(Vernon 1977). Daniel argues that this statute requires a specific

result to occur in the presence of the officer, i.e. a collision,

before a crime can be said to have occurred. Daniel's argument is

meritless.

Article 6701d, section 61(a) of the statute defines the

traffic offense for following another vehicle too closely as

follows:

The driver of a motor vehicle shall, when following another vehicle, maintain an assured clear distance between the two vehicles, exercising due regard for the speed of such vehicles, traffic upon and conditions of the street or highway, so that such motor vehicle can be safely brought to a stop without colliding with the preceding vehicle, or veering into other vehicles or objects or persons on or near the street or highway.

17 "(1) Within 10 days after filing the notice of appeal the appellant shall order from the reporter a transcript of such parts of the proceedings not already on file as the appellant deems necessary, subject to local rules of the courts of appeals...(2) If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion." FED. R. APP. P. 10(b).

22 Id. At the suppression hearing, Deputy Garza testified that

Daniel's Bronco and the vehicle being followed were traveling close

to 55 m.p.h. The deputy also testified that the Bronco was

approximately one car length behind the first vehicle. For these

reasons, he pulled the Bronco over. After advising Daniel of the

reason for the stop, Daniel allegedly admitted to his driving

closely and apologized. Daniel did not offer any evidence to

contest the officer's version of the facts. The appellant also

failed to produce a driver's license and proof of insurance when

requested. Furthermore, Daniel also gave Deputy Garza his consent

to search the Bronco and indicated that a weapon was in the

glovebox after being queried about firearms. Appellant did not

challenge his subsequent arrest for not carrying a driver's license

or proof of insurance, nor for illegally carrying a firearm.

The Texas Court of Civil Appeals has held that an officer has

probable cause, under TEX. REV. CIV. STAT. ANN. ART. 6701D, § 61(A), to

stop a vehicle for following too closely. Nelson v. State,

(Tex. App. -- Houston [1st Dist.], 1992, n.w.h.). In

Nelson, the vehicle (a motorcycle) was observed traveling within

one car length of the first vehicle, prompting the officer to stop

the driver.

There was no collision in that case nor was

evidence presented that the driver had veered off the road.

The reviewing court upheld the denial of a motion to suppress under

those facts, and concluded that the officer had probable cause to

stop the defendant for following too closely and that the driver's

subsequent arrest for driving while intoxicated was lawful.

23 Because the facts relating to the stop are similar in both

cases, and because we are bound by Texas precedent, we find that

the trial court properly held that the stop was lawful despite the

absence of a collision. See id.; see also Texas Highway Dep't. v.

Broussard,

(Tex. Civ. App. -- Fort Worth

1981, writ ref'd n.r.e.) (under art. 6701d, § 61, it is the duty of

anyone operating a vehicle upon the public highways to maintain

such a clear distance behind the preceding vehicle so that, should

the necessity arise, he will be able to slow down or even stop

without colliding with the preceding vehicle; the driver is guilty

of negligence under the statute if the driver fails to maintain

such distance, whether or not there is a collision). Therefore,

any evidence or statements taken as a result of the stop are also

lawful.

B.

In addition, Daniel claims that article 6701d, § 61(a) is

unconstitutionally vague because it does not provide a person with

adequate notice of the prohibited activity. Therefore, the

argument continues, it can not provide an officer with a reasonable

objective basis for the traffic stop and thus, the evidence and

statements taken as a result should have been suppressed by the

trial court. This argument also lacks merit. We are unconvinced

that the statute is vague in any sense. Yet, even if the statute

were declared unconstitutional, it would not affect the legality of

the stop since Deputy Garza had probable cause to believe Daniel

violated the "presumptively valid" statute. See Michigan v.

24 DeFillippo,

(1979) ("A prudent officer, in the

course of determining whether respondent had committed an

offense..., should not have been required to anticipate that a

court would later hold the ordinance unconstitutional.");18 accord

United States v. Landry,

(5th Cir. 1990). The

denial of the motion to suppress was proper.

III. Evaristo Hinojosa, Sr.

A.

Hinojosa claims on appeal that the district court committed

plain error in giving the jury charge by making several comments

which relieved the government's burden of proving all the elements

of its case. First, Hinojosa argues that the district judge

effectively directed the jury to find that the substance seized by

agents was in fact cocaine.19 He asserts that a stipulation entered

into with the government, merely reflected that a chemist would

have given testimony at trial that the test sample tested positive

18 The Supreme Court added that the "purpose of the exclusionary rule is to deter unlawful police action. No conceivable purpose of deterrence would be served by suppressing evidence which, at the time it was found on the person of the respondent, was the product of a lawful arrest and a lawful search. To deter police from enforcing a presumptively valid statute was never remotely in the contemplation of even the most zealous advocate of the exclusionary rule." DeFillippo,

n.3. 19 For example, the court instructed the jury that "[t]he crime of possession with intent to distribute cocaine involves these elements. Number one, to tailor it to the facts of this case, that the substance in that white pick-up truck was, in fact, cocaine... And incidently, that's not really a matter of dispute. I think there's a chemist report in here that everybody has signed off on and agreed that, in fact, that's true."

25 for cocaine and that it was taken from a three hundred pound

"catch." This, however, was not conclusive proof that the

substance was cocaine. Thus, Hinojosa claims the judge erred in

failing to inform the jury that they could reject the stipulated

testimony and determine, in the alternative, that the substance was

not in fact cocaine.

The record reveals that no objections were made to the court's

charge during trial. In such a case, this Court will uphold the

charge absent plain error. United States v. Davis,

(5th Cir. 1994) ("When no party objects at trial to a jury

instruction, we will uphold the charge absent plain error.").

Plain error occurs only when the instruction, considered as a

whole, was so clearly erroneous as to result in the likelihood of

a grave miscarriage of justice.

With this standard in mind,

we review the court's jury instructions.

While the trial court may under no circumstances withdraw any

element of an offense from the jury's consideration in a criminal

case, the judge may comment on the evidence, so long as he

instructs the jury that they are not bound by his comments. United

States v. Canales,

(5th Cir. 1984). A trial

judges's comments may also be error if they "seriously prejudice

the defendant."

Hinojosa has turned a blind eye to the relevant section of the

stipulations entered into by the parties. That section reads as

follows:

It is further stipulated and agreed between the United States of America and Defendants DANIEL INOCENCIO, NICANOR INOCENCIO,

26 EVARISTO HINOJOSA, SR., and DANIEL ALFONSO REYES and their attorneys of record, Jose Luis Ramos, Enrique A. Garza, Eustorgio Perez, and Ruben Garcia, respectively, that the results of the chemical analysis of Government Exhibits #1, #2, and #3 performed by Angela M. DeTulleo, Forensic Chemist, Drug Enforcement Administration, revealed that the substance was in fact Cocaine (Cocaine HCL).

Government Exhibit 1A at 1-2 (emphasis added). The stipulation

also stated that the chain of custody for Exhibit #1, which

evidenced the 127 bundles of cocaine taken from the Ford truck, was

unbroken. Id. at 2-3. Whether or not the substance was cocaine

was not a disputed issue, instead, it was stipulated to as fact.

A judge may point out undisputed facts to the jury without error.

Moreover, the record clearly shows that the judge's comments were

to be advisory and non-binding, and furthermore, that the jurors

were to be the ultimate fact finders.20 We cannot say that the

trial court's references to "cocaine" prejudiced the appellant in

any way.21 In this respect, the judges comments were proper.

20 For example, the judge stated "I am the judge of the law and you're the judges of the facts... I also remind you again that whatever I have said or done here during the trial, and I'm talking about me personally, is because I -- was following the law and procedures that I thought were important or basically trying to keep order or move the case along. Or to the extent that I would ever ask questions of a witness, that was to bring out things that I thought were incomplete or confusing so that you could have more facts to base your decision. But please do not speculate or infer or conclude as to what opinion you think that I have about the case. Your function is not to guess what I would do if I were a juror. Your function is to make your own judgment about the outcome of this case." In testing the credibility of the witnesses, the jury was told "you, and you alone, are the only ones that can decide who you believe and how much you believe them." 21 The record reflects that appellant's own counsel referred to the substance as cocaine in his closing argument - "...I ask you to look at that cocaine when you go in and deliberate. Look at it. It's a lot of cocaine..."

27 B.

Hinojosa also challenges the court's instructions regarding

the government's burden in proving an "intent to distribute" and a

conspiracy. The first instruction was as follows:

And as was correctly said to you yesterday, [intent to distribute is] something that can be decided also by circumstances. The sheer volume of it, three hundred pounds. The way it was packaged. The circumstances of how it was being carried in a vehicle on the highway. And, of course, Mr. Hill's testimony, to the extent that you believe this part, and I don't -- at least I don't think anybody's challenging him on this part. I mean, whoever else was involved, he says that when the truck arrived at Alice, he himself was going to take it and distribute it. That he was going to take it and pass it on to somebody up in the Fort Worth/Dallas area. Well, that's exactly what intent to distribute means. That the purpose of having that cocaine in somebody's possession was to distribute it to other people. So Hill says, if you accept his testimony, that that's what the purpose was.

Hinojosa claims that this instruction gave credence to Hill's

testimony by stating that such testimony was uncontested. As

recited above, a judge may comment on the evidence to facilitate

the jurors' task of reaching a proper verdict so long as the judge

advises them that they are not bound by his comments. The remarks

above simply reflected the evidence in the record. The judge did

not instruct the jury to take Hill's testimony as true, he merely

suggested that they could believe or disbelieve the testimony in

considering whether there was intent to distribute. Moreover, the

jury was instructed that the fact that Hill had admitted his guilt

did not establish the guilt of anyone else in the case.

Regarding the second instruction, appellant challenges the

court's comments in defining the elements of a conspiracy. The

28 court told the jury:

Because a conspiracy is simply an agreement, an agreement of the type, for example, -- and lets forget for a minute who all is involved. But of the type that Hill is describing, an agreement to get a truck, arrange for a driver, meet and move the truck from one spot to another spot and deliver the cocaine and so forth. That would be a conspiracy. That would be a classic agreement situation where a group of people have reached an understanding that they're going to do something illegal. They're going to get possession of cocaine with the intention of distributing it to other people. So that would be a classic conspiracy to possess cocaine with intent to distribute it. So nobody here is arguing, as I get it, that there was not that kind of conspiracy going on. I think everybody joins in and says, yeah, there probably was that kind of conspiracy going on. It's a big amount, it's a big load, it's a valuable load. It was in the truck and there were people in a hotel and it was going other places and so forth. So there is probably a conspiracy going on.

Hinojosa claims that this instruction relieved the government of

its burden of proving that a conspiracy occurred between Hinojosa

and the other defendants. In addition, by accepting that there was

"probably a conspiracy going on," the court allegedly reflected its

bias in favor of the government.

We are also unpersuaded by this argument. In the first

paragraph of the instruction, the district court merely described

an agreement in terms of the facts before the jury. The judge

never instructed the jury that the evidence showed that the

defendants were involved in a conspiracy. The court also gave

additional instructions beyond that statement in which he cited

several other factual examples of a conspiracy and concluded with

the statement that the government had to prove beyond a reasonable

doubt that each of the defendants was intentionally involved in the

criminal plan. More importantly, immediately before giving this

29 instruction, the court stressed that it was within the jury's

province to determine who was involved in the conspiracy with Hill:

In other words, by Hill's scenario -- and I'm not telling -- I'm not endorsing -- please understand this. When I quote evidence, I'm not saying for you to believe it or not believe it. I'm just trying to illustrate to you and then it's up to you to believe it or not believe it. But I'm saying that by Hill's scenario, it would be he -- he would be involved 'cause he was going to take it to Dallas; Hinojosa would be involved cause Hinojosa was there, making the arrangements and so forth; the two Inocencios were lookouts of some kind, guides; Reyes was the truck driver; a fellow named Tenorio had some role in it. So there may be lots of people, but the question for you to decide is, are these people involved. Because, of course, their version, as you've heard argued, is that they did not know what was going on. That, yes, indeed, it may be Hill, it may be Tenorio, it may be Trevino, and it may be people in Fort Worth and Dallas, but not them. They are not involved in the conspiracy. And that's for you to decide. That's the question of count one.

Based on the precautionary instructions given by the lower court,

we find no error in this part of the charge.

Regarding the second paragraph of the instruction, the

district court's remarks again reflected the evidence in the

record. The court simply referred to the same evidence that

Hinojosa's counsel relied on in his own closing argument.22 Since

the remarks mirrored Hinojosa's own defense theories, this Court

cannot conclude that plain error was committed.

CONCLUSION

Having determined that none of appellants' complaints present

22 In his closing argument, Hinojosa's attorney argued that he "believe[d] that the government proved a conspiracy in this case to conspire with intent to distribute cocaine." However, he argued to the jury that the government had proved a conspiracy between the other defendants, not his client.

30 reversible error, the judgment of the district court is affirmed.

AFFIRMED.

31