UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 95-50460 ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHRISTIAN DAVID TAMEZ-GONZALEZ and ISRAEL RODRIGUEZ-MURGUIA,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (DR-95-CR-3) _________________________________________________________________

November 26, 1996 Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Christian David Tamez-Gonzalez and Israel Rodriguez-Murguia

appeal their convictions, following a jury trial, for importation

of marijuana, possession of marijuana with intent to distribute,

and conspiracy to commit those offenses. We AFFIRM.

I.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. On January 9, 1995, at approximately 1:00 a.m., Rafael Gomez,

a Border Patrol Agent, observed Tamez-Gonzalez driving a maroon GMC

pickup truck on Garza Road near the Mexican border, an area known

for alien and narcotics smuggling. Agent Gomez determined that the

truck was owned by Jorge Ramon, a fugitive wanted for drug crimes,

and stopped it.

Tamez-Gonzalez explained that he had borrowed the truck and

was taking his girlfriend home. After Gomez found a police scanner

underneath the passenger seat and a two-way Motorola radio under

the driver’s seat, Tamez-Gonzalez said that he owned the radio and

worked as a salesman for Motorola. Gomez allowed Tamez-Gonzalez

to leave, but advised other Border Patrol units to be on the

lookout for that truck and others for possible narcotics smuggling.

Approximately an hour later, Border Patrol Agent Gilberto

Lopez saw Tamez-Gonzalez driving a white Dodge Ram Charger, again

on Garza Road. Lopez observed an automobile following 200 to 300

yards behind it, swerving, and he pulled the automobile over.

Bundles of marijuana weighing approximately 100 kilograms were

found in the back seat and a Motorola two-way radio was found under

the front seat; Jose Felix Garcia was the driver; and Rodriguez-

Murguia, wet and sweaty, was the only passenger.

Pursuing a tip from Garcia, Gomez found the above mentioned

Ram Charger parked in front of Garcia’s house. Tamez-Gonzalez, who

was sitting in the driver’s seat, explained that he was at the

- 2 - house for a party and was about to take his girlfriend home. A

wet, barefooted illegal alien was in the back seat of the truck,

and two more, wet and muddy, were inside the house.

The earlier referenced GMC truck was parked in the driveway.

Tamez-Gonzalez said that he had switched trucks because he left his

keys inside the house and did not want to bother Mrs. Garcia.

The Ram Charger contained a cellular telephone and a base

radio that could be used with the Motorola two-way radios. When

shown the radio found in Garcia’s car, Tamez-Gonzalez said that it

looked like his; when told where the radio had been found, he

denied owning it.

Garcia pleaded guilty and agreed to testify against his co-

defendants. The Government prosecuted Tamez-Gonzalez and

Rodriguez-Murguia for importation of marijuana, possession of

marijuana with intent to distribute, and conspiracy to commit those

offenses. Garcia testified at their trial that he met with Tamez-

Gonzalez at the Coco Loco Bar in Cuidad Acuña, Mexico, to discuss

a plan whereby Mexicans would cross the border and give bundles to

Tamez-Gonzalez, and Garcia then would drive the smugglers back to

Mexico. They successfully executed this scheme twice before they

were caught, each time meeting smugglers along Garza Road.

Garcia testified that he had a birthday party for his wife on

the night in question. Tamez-Gonzalez attended the party and

offered Garcia $500 to go with him to “pick up some guys”. Garcia

- 3 - agreed and followed Tamez-Gonzalez to a spot on Garza Road. Tamez-

Gonzalez had given Garcia a two-way radio to allow them to

communicate, and flashed his lights to indicate where Garcia was to

stop. When Garcia stopped, Rodriguez-Murguia entered his vehicle.

Garcia, who had never seen Rodriguez-Murguia before, asked where

the other people were; Rodriguez-Murguia responded that they were

coming. Other individuals threw bundles of marijuana into the

automobile’s back seat and ran away. Rodriguez-Murguia then said

“let’s go, let’s go”, and Garcia drove away.

Tamez-Gonzalez’s testimony directly contradicted Garcia’s.

Tamez-Gonzalez claimed that he went to Garcia’s house because Ramon

(the above referenced fugitive), a frequent customer of Tamez-

Gonzalez’s taco stand, invited him to the party; that he drove

Ramon’s truck at his request; and that he never discussed smuggling

or picking up people with Garcia.

Rodriguez-Murguia did not testify. His attorney contended in

his opening statement and in closing argument that Rodriquez-

Murguia did not even know his co-defendants and had never agreed

with anyone to smuggle drugs. A jury convicted both defendants on

all counts.

II.

Three issues are presented: the admission of statements

Tamez-Gonzales made to a narcotics agent; the denial of Rodriguez-

Murguia’s motion for a mistrial; and the sufficiency of the

- 4 - evidence.

A.

Tamez-Gonzalez asserts that statements he made to Don

Letsinger, an Agent of the Texas narcotics control program, are

inadmissible because he made them in the course of plea

negotiations with the Government. See FED. R. CRIM. P. 11(e)(6);

FED. R. EVID. 410.

Tamez-Gonzalez testified that he had no knowledge of marijuana

smuggling, or of a person named Angel, or what his customers did

with the radios he sold them. Over Tamez-Gonzalez’s objection,

which the district court overruled, Letsinger testified on rebuttal

that Tamez-Gonzalez told him that (1) the seized marijuana was

intended for an individual named Angel whom he had met at Pancho’s

bar in Acuña; (2) he knew that his customers used the radios when

transporting marijuana; and (3) he knew specific radio frequencies

used by marijuana smugglers to avoid detection. Before making the

statement to Letsinger, Tamez-Gonzalez signed an agreement

providing that his statement could “be used for impeachment

purposes if the Defendant testifies in any way that is inconsistent

with the debriefing statement.”

Tamez-Gonzalez contends that Rules 11(e)(6) and 410 are not

subject to waiver because they represent a policy decision that the

Government should not use statements made in conjunction with plea

negotiations. To the contrary, “[a]bsent some affirmative

- 5 - indication that the agreement was entered into unknowingly or

involuntarily, an agreement to waive the exclusionary provisions of

the plea-statement Rules is valid and enforceable.” United States

v. Mezzanatto, ___ U.S. ___,

(1995).

Tamez-Gonzalez does not claim that he entered into the

agreement unknowingly or involuntarily. Thus, his waiver is valid.

(Accordingly, we need not reach the Government’s contention that

Tamez-Gonzalez did not make the statements as part of a plea

negotiation.)

B.

Rodriguez-Murguia challenges the denial of his motion for a

mistrial, based on the Government’s failure to disclose, pursuant

to a discovery request, oral statements he made to a Government

Agent. Agent Letsinger testified that Rodriguez-Murguia told him

that he was a waiter at the Coco Loco restaurant. This testimony,

combined with Garcia’s testimony that he met with Tamez-Gonzalez at

the Coco Loco to discuss details of their conspiracy, undercut

Rodriguez-Murguia’s contention that he did not know the other

conspirators.

Rodriguez-Murguia’s counsel objected, contending that Letsin-

ger’s testimony was covered by a discovery order requiring the

Government to produce all statements made by Rodriguez-Murguia in

response to Government interrogation, and that the Government had

not disclosed that statement. The Government responded that

- 6 - Rodriguez-Murguia made the statement in response to a routine

question in the context of booking information, and that its

failure to disclose the response was an oversight.

The district court denied the motion, stating that it thought

the failure was unintentional. Rodriguez-Murguia initially

requested a curative instruction, but withdrew that request.

If a party fails to comply with a discovery order, the

district court “may order such party to permit the discovery or

inspection, grant a continuance, or prohibit the party from

introducing evidence not disclosed, or it may enter such other

order as it deems just under the circumstances.” FED. R. CRIM. P.

16(d)(2). As the language of the rule indicates, the district

court has “broad discretion” in responding to discovery abuses.

United States v. Bentley,

(5th Cir. 1989). “In

exercising this discretion, the district court should consider

factors such as the reasons why disclosure was not made, the

prejudice to the opposing party, the feasibility of rectifying that

prejudice by granting a continuance, and other relevant

circumstances.”

Granting a mistrial is a disfavored remedy for discovery

violations. The district court “should impose the least severe

sanction that will accomplish the desired result”.

(quoting

United States v. Sarcinelli,

(5th Cir. 1982)). Even

in a case involving disclosure of evidence on the night before

- 7 - trial, our court affirmed the decision not to exclude the evidence,

noting that exclusion is “the most extreme sanction possible.”

As our sister circuit noted, however, exclusion is really only “the

most severe remedy a court can impose short of declaring a

mistrial.” United States v. Rodriguez,

(11th

Cir. 1985) (emphasis added). Because of their severity, mistrials

are reserved for extreme instances. In fact, they are not included

in Rule 16(d)(2)’s list of suggested remedies.

In short, Rodriguez-Murguia must show that the district court

abused its broad discretion by declining to employ a disfavored

remedy. He has not done so. For starters, he does not even

contest the district court’s finding that the non-disclosure was

unintentional.

Second, Rodriguez-Murguia has not made a specific showing that

the tardiness of the disclosure prejudiced him. This is not a case

where the Government used the statement on cross-examination to

damage, immediately and irreparably, the credibility of a defense

witness. Instead, the only individual with first-hand knowledge of

the statement revealed it during the Government’s case-in-chief.

If defense counsel needed additional time to prepare for cross-

examination of Letsinger, find a rebuttal witness, or refine his

own case, he could have requested a continuance, or at least moved

to strike the testimony.

Finally, Rodriguez-Murguia asserts conclusorily that knowledge

- 8 - of the evidence would have been material to the preparation of his

defense. Such an assertion is undoubtedly true in all Rule 16(d)

cases; all of the available evidence should be considered in

preparing for trial. But, Rodriguez-Murguia has not shown that he

would have employed a different overall trial strategy if the

Government had disclosed the statement; nor is an alternative

strategy apparent from the record. Rodriguez-Murguia has also

failed to identify any unusual circumstances requiring the drastic

remedy of a mistrial. Accordingly, the district court did not

abuse its broad discretion by denying the motion. (Therefore, we

need not reach the Government’s contention that the discovery

request did not encompass statements made during booking.)

C.

Tamez-Gonzalez and Rodriguez-Murguia challenge the sufficiency

of the evidence to support their convictions. The elements of a

drug conspiracy are (1) an agreement between two or more people to

violate the law; (2) knowledge of the agreement; and (3) voluntary

participation in the conspiracy. E.g., United States v. Casilla,

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

, and cert. denied, ___ U.S. ___,

, and cert.

denied, ___ U.S. ___,

(1994). Circumstantial

evidence showing a “concert of action” may suffice to prove the

existence of a conspiracy. Id. A jury also may infer a

defendant’s knowledge and voluntary participation from a

- 9 - “collection of circumstances” and may rely upon his presence and

association with other members of the conspiracy, along with other

evidence, in finding that he joined the conspiracy. Id.

To prove importation of a controlled substance, the Government

must show that the defendant (1) played a role in bringing the

substance into this country; (2) knew that the substance was a

controlled one; and (3) knew that the substance would enter the

United States. Id. And, the elements of possession with intent to

distribute are (1) possession; (2) knowledge; and (3) intent to

distribute. Possession may be actual or constructive, and

“[i]ntent to distribute may be inferred from the value and quantity

of the substance possessed.” Id.

1.

Tamez-Gonzalez moved for judgment of acquittal at the close of

the Government’s case but failed to renew the motion after

presenting his own case. Accordingly, we will review the evidence

only to determine whether Tamez-Gonzalez’s conviction resulted in

a manifest miscarriage of justice. See United States v. Inocencio,

(5th Cir. 1994). “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.”

(quoting United States

v. Pierre,

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

(1992)).

- 10 - Tamez-Gonzalez contends that the evidence shows only that he

conspired to “pick up some guys”, not to commit drug offenses.

Letsinger testified that Tamez-Gonzalez admitted that he knew that

the marijuana was destined for a man named Angel, whom Tamez-

Gonzalez had met previously. In addition, Garcia testified that he

and Tamez-Gonzalez twice before had picked up illegal aliens

bearing bundles on Garza Road. Thus, the record is not “devoid” of

evidence pointing toward Tamez-Gonzalez’s knowledge of the ends of

the conspiracy.

Tamez-Gonzalez asserts that some of Garcia’s testimony was

untrue and that his own testimony is more credible than Garcia’s.

Of course, as an appellate court, we must accept a jury’s

credibility determinations unless the witness’ testimony is

“factually impossible.” See United States v. Lopez,

(5th Cir.) (internal quotation marks and citation omitted),

cert. denied, ___ U.S. ___,

(1996). Garcia’s

testimony is at least plausible; thus, we cannot disturb the jury’s

assessment of his credibility.

Finally, Tamez-Gonzalez insists that there is no evidence that

he ever physically possessed marijuana or exercised dominion over

it. The district court correctly instructed the jury that it could

find Tamez-Gonzalez liable for reasonably foreseeable acts that his

co-conspirators committed in furtherance of the conspiracy. See

United States v. Leahy,

(5th Cir. 1996); Pinkerton

- 11 - v. United States,

(1946). Possession of

marijuana was certainly a foreseeable act in furtherance of the

conspiracy.

2.

As did his co-defendant, Rodriguez-Murguia moved for acquittal

at the close of the Government’s case but did not renew his motion

at the close of all the evidence. But, because Rodriguez-Murguia

did not present evidence in his own defense, he was not required to

renew his motion. See United States v. Arias-Diaz,

(5th Cir. 1974), cert. denied,

(1975);

2 CHARLES A. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 463, at 642 (1982).

Thus, we must determine whether any rational juror could have

found that the evidence established Rodriguez-Murguia’s guilt

beyond a reasonable doubt. See Casilla,

. It goes

without saying that, because the jury bears sole responsibility for

determining weight and credibility, we draw all reasonable

inferences in favor of the verdict.

There was sufficient evidence from which the jury could

reasonably infer that Rodriguez-Murguia was a knowing and voluntary

participant in the drug conspiracy. He was a waiter at the Coco

Loco restaurant, where Garcia and Tamez-Gonzalez met to discuss the

details of the conspiracy. He was waiting at the place along Garza

Road where Tamez-Gonzalez and Garcia stopped to meet the drug

smugglers. He promptly entered Garcia’s automobile, and when

- 12 - Garcia asked where the others were, Rodriguez-Murguia responded

that they were coming. After the other aliens put the bundles of

marijuana in Garcia’s automobile, Rodriguez-Murguia remained in it

and said, “let’s go, let’s go.” When he was arrested, Rodriguez-

Murguia was wet and sweaty and confessed to having entered the

country illegally.

This evidence shows far more than “mere presence” at the crime

scene. Rodriguez-Murguia’s appearance indicated that he had just

crossed the border illegally, and his actions indicated that he was

working with the smugglers: He was waiting at the meeting site,

entered the drop-off vehicle, told the driver the others were

coming, and said “let’s go” after the marijuana had been delivered.

Rodriguez-Murguia was not merely present -- he also engaged in a

“concert of action” showing that he was a member of the conspiracy.

There was also sufficient evidence to convict Rodriguez-

Murguia on the substantive counts. As discussed above, the

district court gave the jury a Pinkerton instruction, pursuant to

which it found Rodriguez-Murguia liable for the reasonably

foreseeable acts of his co-conspirators in furtherance of the

conspiracy.

III.

For the foregoing reasons, the judgments are

AFFIRMED.

- 13 -