UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

______________________

Nos. 95-50177, 97-50393 and 97-50407 ______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES MENDIOLA; ELSA MENDIOLA; JOSE L. CRUZ

Defendants-Appellants.

Appeal from the United States District Court for the Western District of Texas (SA-93-CR-191)

October 21, 1997 Before REAVLEY, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:1

James and Elsa Mendiola were convicted for conspiracy to

manufacture and distribute marijuana; and, together with Jose Luis

Cruz, for possession of marijuana with intent to distribute. We

AFFIRM Nos. 95-50177 and 97-50407; DISMISS No. 97-50393.

I.

Between September 1992 and mid-1993, James Mendiola, Jerry

Wolf and Francisco Figueroa (later, a key Government witness)

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. engaged in an operation to grow and distribute high-quality

marijuana. It was planted initially at the Mendiola residence in

San Antonio, Texas, and then transported to, and replanted at, a

ranch owned by Wolf and Mendiola in Rocksprings, Texas. Elsa

Mendiola, the wife of James Mendiola, was involved in the operation

and arranged with her sister for distribution in the Austin, Texas,

area. Cruz worked as a laborer at the Rocksprings ranch, tending

the marijuana growing operation. Approximately 800 marijuana

plants were found growing on 24 June 1993 when search warrants were

executed at the residence and the ranch.

The Mendiolas, Cruz, and Wolf were charged with conspiracy to

manufacture marijuana with intent to distribute, in violation of

and 841(a)(1), and with possession of marijuana with

intent to distribute, in violation of 21 U.S.C. 841(a)(1) and

(aiding and abetting). In mid-1994, a jury found the

Mendiolas and Wolf guilty on both charges; Cruz, on the possession,

but not the conspiracy, charge. (As discussed in our opinion in

United States v. Guerrero, Nos. 95-50140 and 97-50401, rendered the

same day as this opinion, shortly after the trial in this case,

James Mendiola was tried and convicted for conspiracy and

possession with intent to distribute other marijuana.)

In mid-1997, a new trial was denied the Mendiolas and Cruz.

II.

- 2 - Wolf dismissed his appeal. The Mendiolas and Cruz raise a

number of issues, including insufficient evidence to sustain their

convictions, evidentiary and sentencing rulings, and the denial of

a new trial. The Mendiolas also raise a double jeopardy claim;

Cruz, the denial of his severance motion. Following the mid-1994

trial, sentencing and the initial appeal (No. 95-50177) were in

1995. But, while that appeal was pending, the new trial motion was

not filed and denied until 1997. Pending that ruling, oral

argument on the initial appeal was stayed. In the interim, one

issue presented in the initial appeal was resolved, as discussed

below.

A.

The denial of Cruz’s motion to sever is reviewed only for

abuse of discretion. See Zafiro v. United States,

(1993); United States v. Arzola-Amaya,

(5th

Cir.), cert. denied,

(1989). For “conspiracy cases,

the general rule is that persons indicted together should be tried

together.” United States v. Fields,

(5th Cir.),

cert. denied, ___ U.S. ___,

(1996). “Severance is

a matter left to the sound discretion of the trial court, and a

defendant is not entitled to severance unless he can demonstrate

specific compelling prejudice that actually results in his having

received an unfair trial.” United States v. Capote-Capote, 946

- 3 - F.2d 1100, 1104 (5th Cir. 1991), cert. denied,

(1992);

see FED. R. CRIM. P. 14.

Cruz contends that, as a result of the denial of his motion,

inadmissible hearsay statements were admitted against him. It is

difficult to determine from his brief exactly which statements he

complains of, but they are apparently the telephonic intercepts of

the co-defendants, which were admitted over his objection. He

additionally appears to contend that, in relation to the denial of

a severance and the admission of the intercepts, he was denied his

Sixth Amendment right to confront the witnesses against him.

Along this line, Cruz maintains that, aside from the

intercepts, there is little independent evidence implicating him

for possession with intent to distribute. We disagree. In any

event, a difference in the amount of evidence “is clearly

insufficient in itself to justify severance.” United States v.

Harrelson,

(5th Cir.), cert. denied,

(1985).

Cruz’s Sixth Amendment contention is also without merit.

Severance is proper in such cases only where a defendant’s

statement directly incriminates his or her co-defendants without

reference to other, admissible evidence. United States v.

Beaumont,

(5th Cir. 1992). The statements of the

co-defendants, which Cruz does not identify with any specificity,

did not directly incriminate Cruz without reference to other

- 4 - admissible evidence. In fact, from our review of the record, none

of the intercepts directly implicated Cruz.

Accordingly, Cruz does not demonstrate the requisite unfair

trial. Indeed, the jury found the Mendiolas guilty, but acquitted

Cruz, on the conspiracy charge, reflecting that it considered the

evidence separately as to each Appellant.

B.

The Mendiolas base their double jeopardy claim on the civil

forfeiture proceeding concerning their home, restaurant, and other

assets. As held fairly recently, an in rem civil forfeiture is not

a “punishment” subject to the Double Jeopardy Clause. United

States v. Ursery, ___ U.S. ___,

(1996).

Instead, the proceeding is “a remedial civil sanction, distinct

from potentially punitive in personam civil penalties such as

fines, and does not constitute a punishment under the Double

Jeopardy Clause.”

. In the light of Ursery, “[i]n rem

civil forfeitures do not constitute ‘punishment’ for purposes of

the Double Jeopardy Clause, but operate, merely to ‘confiscate

property used in violation of the law, and to require disgorgement

of the fruits of illegal conduct.’” United States v. Perez,

(5th Cir. 1997).

C.

Testimony by Diane Reyes, a friend of Elsa Mendiola’s sister,

Mari Gaona, was admitted pursuant to FED. R. EVID. 801(d)(2)(E), as

- 5 - “a statement by a co-conspirator of a party during the course and

in furtherance of the conspiracy.” For such admission, the

Government must establish by a preponderance of the evidence that

the declarant and the defendant were involved in a conspiracy and

that the statements were made during, and in furtherance of, the

conspiracy. Bourjaily v. United States,

(1987).

In determining whether a conspiracy exists, the district court is

free to look at all evidence, including the putative hearsay

statement.

.

The admission of Rule 801(d)(2)(E) evidence is reviewed for

abuse of discretion. United States v. Triplett,

(5th Cir.), cert. denied,

(1991). And, even if

an abuse of discretion is found, the harmless error doctrine is

applied. United States v. Skipper,

(5th Cir.

1996). Determinations that the statements were made by a co-

conspirator and in furtherance of the conspiracy are reviewed only

for clear error. United States v. Stephens,

(5th

Cir. 1992). Needless to say, “[w]here there are two permissible

views of the evidence, the factfinder’s choice between them cannot

be clearly erroneous.” Anderson v. Bessemer City,

(1985).

The Mendiolas contend that Reyes’ testimony about Gaona’s

statements should not have been admitted because there is no

independent evidence of a concert of action between them and Gaona.

- 6 - They further contend that there was no evidence that they entered

into a conspiracy with Gaona, and that the Government failed to

prove that Gaona was a member of the conspiracy for which they were

convicted. Cruz contends likewise that there was no independent

evidence of either a concert of action between him and Gaona, or

that Gaona was a member of a conspiracy that involved him.

Moreover, Cruz contends also that there was no evidence that he was

involved in a conspiracy with Reyes and that the statements made by

Reyes were not made in furtherance of a conspiracy involving her

and Cruz.

At trial, Appellants objected on several grounds, including

that, as an unindicted co-conspirator, the statements made by Gaona

were inadmissible. Counsel for Cruz objected on the basis that

Reyes’ testimony had nothing to do with Cruz. After lengthy

argument, the district court overruled all objections and

determined later that the Government had shown by a preponderance

of the evidence that a conspiracy existed, that the defendants

against whom the statements were offered were members of the

conspiracy, and that the statements were made in furtherance of

that conspiracy.

“Statements made by a non-testifying co-conspirator are

admissible against the defendant if there is ‘independent evidence

of a concert of action’ in which the defendant was a participant.”

United States v. Asibor,

(5th Cir.), cert.

- 7 - denied, ___ U.S. ___,

(Oct. 6, 1997). There was

ample independent, non-hearsay evidence that Appellants were

participants in the marijuana growing and distribution conspiracy

and that Gaona was involved. Our focus for this challenge is

whether the “government introduced sufficient independent evidence

of the existence of a conspiracy, in which the defendant was a co-

conspirator....” United States v. Dawson,

(5th

Cir. 1978), cert. denied,

(1979). The record shows

that a marijuana growing and distribution operation was run by

James Mendiola and Wolf; that Cruz cared for the marijuana at the

Rocksprings ranch; and that Elsa Mendiola was aware of the

operation and assisted in the distribution with her sister, Gaona.

Additionally, there was testimony from an FBI Agent who observed an

exchange of a package believed to be marijuana between Gaona and

Wolf. Accordingly, Appellants’ challenge regarding lack of

independent concert of action is meritless.

As noted, the Government’s burden is to establish by a

preponderance of the evidence that the declarant (Gaona) and the

defendants were involved in a conspiracy and that the statements

were made during, and in furtherance of, the conspiracy.

Bourjaily,

. As also noted, Appellants contend

there was no evidence they entered into a conspiracy with Gaona,

and that the Government failed to prove that she was a member of

the conspiracy for which the Mendiolas were convicted. This

- 8 - contention is without merit. There was independent evidence that

Gaona was involved in a conspiracy to distribute marijuana grown by

the Mendiolas and cared for by Cruz. Reyes testified that Gaona

told her that marijuana was being grown at the Rocksprings ranch;

that marijuana had come from the Mendiolas’ residence; that

marijuana was delivered to her in Austin from the Mendiolas; and

that Wolf and she in turn sold it for $2000 per pound. There was

also testimony from another witness that Elsa Mendiola sold

marijuana to Gaona.

As noted, Cruz contends also that there was no evidence that

he was involved in a conspiracy with Reyes, and that the statements

made by Reyes were not made in furtherance of a conspiracy

involving her and Cruz. But, the focus concerning a Rule

801(d)(2)(E) admission is on the declarant, Gaona, not Reyes.

D.

The Mendiolas challenge the sufficiency of the evidence on

conspiracy and, with Cruz, on possession with intent to distribute.

For such challenges, the evidence is viewed in the light most

favorable to the verdict, accepting all credibility choices and

reasonable inferences made by the jury; and, it is sufficient if a

rational juror could have found that it established guilt beyond a

reasonable doubt. E.g., United States v. Montoya-Ortiz,

(5th Cir. 1993). Toward that end, “[i]t is not

necessary that the evidence exclude every reasonable hypothesis of

- 9 - innocence or be wholly inconsistent with every conclusion except

that of guilt.... A jury is free to choose among reasonable

constructions of the evidence.”

(quoting United States v.

Bell,

(5th Cir. 1982), aff’d,

(1983).

As noted, concerning the insufficiency claims as to both

charges, a key Government witness was Figueroa. Figueroa, who was

also a key player in the operation, engaged in a marijuana growing

and dealing relationship with James Mendiola and Wolf. He

testified that he had a drug dealing relationship with James

Mendiola; that Wolf oversaw the growing operation; that the

marijuana began growing at the Mendiola residence and was then

transferred to the Rocksprings ranch; and that Cruz was a laborer

in charge of caring for the plants. James Mendiola also showed him

marijuana that was growing. Figueroa testified also that, once the

marijuana was transferred from the residence to the ranch, James

Mendiola would go to the ranch to make sure the plants were

perfect; that Cruz lived both at the Mendiola residence and at the

Rocksprings ranch; and that Elsa Mendiola was aware of the growing

operation, because she witnessed the loading of marijuana on a

truck.

1.

“To establish a conspiracy under

, the

government must prove that a conspiracy existed, that each co-

- 10 - defendant knew of the conspiracy, and that each co-defendant

voluntarily joined in it.” Montoya-Ortiz,

(internal quotation marks and citation omitted). The elements for

conviction under § 846 “may be proved by circumstantial evidence

and ‘[c]ircumstances altogether inconclusive, if separately

considered, may, by their number and joint operation ... be

sufficient to constitute conclusive proof.’” United States v.

Broussard,

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

___,

(1996) (quoting United States v. Roberts,

(5th Cir. 1990), cert. denied,

(1991)).

Approximately 450 marijuana plants were found growing at the

Mendiolas’ residence, with over 300 plants found growing at the

Rocksprings ranch. Also, the Mendiolas were overheard in numerous

intercepted telephone calls discussing marijuana purchases and

deliveries in coded language.

James Mendiola was a leader and organizer of the grow

operation. Moreover, an undercover FBI Agent testified that James

Mendiola informed him that he grew seedless marijuana and offered

to sell it to the Agent.

In addition, as noted, Elsa Mendiola was present when a

shipment of marijuana was loaded aboard a truck; and, as also

noted, she used code in discussing drugs on the telephone, and,

sold marijuana to her sister, Gaona, for distribution in Austin

(the sister discussed in part II. C. supra).

- 11 - In sum, there was more than sufficient evidence for a

reasonable juror to find, beyond a reasonable doubt, that a

conspiracy existed, and that the Mendiolas were aware of, and

voluntarily participated in, it.

2.

Under

(a)(1), the Government must prove three

elements: (1) knowing (2) possession of a controlled substance (3)

with intent to distribute it. See United States v. Brown,

(5th Cir.), cert. denied,

(1994). Of

course, these elements may be established by circumstantial

evidence. United States v. Cardenas,

(5th Cir.

1993), cert. denied,

(1994). For example, intent to

distribute may be inferred from the quantity, value, and quality of

the drugs involved. United States v. Casilla,

(5th Cir.), cert. denied,

(1994); Cardenas,

.

Along this line, the elements for aiding and abetting a

criminal offense, in violation of

, are association

with criminal activity, participation in it, and acting to help it

succeed. See United States v. Pedroza,

(5th

Cir. 1996); United States v. Vaden,

(5th Cir.

1990). “Association means that the defendant shared in the

criminal intent of the principal.... Participation means that the

defendant engaged in some affirmative conduct designed to aid the

- 12 - venture.... Although relevant, mere presence and association are

insufficient to sustain a conviction of aiding and abetting.”

United States v. Salazar,

(5th Cir. 1995).

Approximately 450 plants were seized at the Mendiolas’

residence; approximately 315, at the Rocksprings ranch.

Additionally, there was evidence regarding the premium price and

high quality of the seedless marijuana being grown by the

Mendiolas; that James Mendiola actively offered to sell marijuana;

that Elsa Mendiola witnessed loading marijuana shipments; that she

was engaged in a distribution scheme with her sister in Austin;

that Cruz tended and cared for the marijuana at the Rocksprings

ranch; and that he was seen at the ranch the majority of the time

(indeed, he was the only person there when the search was

conducted). There was also testimony that, when Cruz was not

working at the ranch, he lived at the Mendiola residence. And, a

money order receipt and an emergency notification card bearing

Cruz’s name and the address for the Mendiolas’ residence were found

at that residence.

The jury could reasonably find, beyond a reasonable doubt,

that the Mendiolas and Cruz possessed marijuana with intent to

distribute.

E.

A sentence will be upheld “unless it was imposed in violation

of law; imposed as a result of an incorrect application of the

- 13 - sentencing guidelines; or outside the range of the applicable

sentencing guideline and is unreasonable.” United States v.

Montoya-Ortiz,

(5th Cir. 1993) (quoting United

States v. Haymer,

(5th Cir. 1993)).

1.

Appellants contend that the court erred in calculating their

offense level based upon a finding that there were 771 marijuana

plants at the residence and ranch. We accept such sentencing

findings unless they are clearly erroneous. E.g., United States

v. Sotelo,

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

(1996); United States v. Robins,

(5th Cir. 1992); United States v. Otero,

(5th

Cir. 1989). And, due deference is given to the district court’s

application of the Sentencing Guidelines to those findings.

Robins,

.

Moreover, “a presentence report generally bears sufficient

indicia of reliability to be considered as evidence by the trial

court in making factual determinations required by the Guidelines.”

Robins,

. And, the district court is well within

its province “to rely on a presentence report’s construction of

evidence to resolve a factual dispute, rather than relying on the

defendant’s version of the facts.”

(internal citations and

quotations omitted).

- 14 - The presentence report, adopted by the district court, stated

that the offense involved a total of 771 growing marijuana plants.

There was testimony from the Agents conducting the searches

regarding the number of plants seized, their stage of growth, and

their root structure. They testified further that plants were not

picked or counted unless they appeared to be viable and capable of

growth. Additionally, there was testimony from a Government expert

regarding the grow operation and the nature of the plants.

During oral argument for this appeal, counsel for James

Mendiola contended that an FBI Special Agent simply “guessed”

during sentencing at the number of plants seized at the residence.

However, the Agent testified at trial that 455 plants were seized

at that site. Based on our review of the record, we cannot say

that the plant quantity finding was clearly erroneous.

2.

Cruz contends that the district court erred by including the

plants seized at the Mendiola residence in calculating his base

offense level. But, the court had the discretion to consider

amounts that were part of a common plan or scheme to distribute.

United States v. Ponce,

(5th Cir. 1990) (per

curiam), cert. denied,

(1991); United States v.

Sarasti,

(5th Cir. 1989). Moreover, under the

Guidelines, the court may consider as relevant conduct occurrences

which did not result in a conviction in determining the actual

- 15 - guideline range. See United States v. Taplette,

(5th Cir.), cert. denied,

(1989). As reflected supra,

there was ample evidence to link Cruz to both the Rocksprings ranch

and the Mendiola residence. Accordingly, the court did not clearly

err by including the plants seized at the latter.

3.

While this appeal was pending, Guidelines § 2D1.1(c) was

amended by replacing the one kilogram per plant ratio with an

instruction to base the sentence upon the greater of the actual

weight of the usable marijuana, or 100 grams per plant. See

U.S.S.G. App. C, Amendment 516 (Nov. 1, 1995) (amending the notes

and commentary to U.S.S.G. § 2D1.1). This amendment may be applied

retroactively by the district court. United States v. Boe,

(5th Cir. 1997). Appellants contend, and the

Government concedes, that the amendment may affect their sentences.

A motion pursuant to

(c)(2) “permits a

district court to reduce a term of imprisonment when it is based

upon a sentencing range that has subsequently been lowered by an

amendment to the Sentencing Guidelines, if such a reduction is

consistent with the policy statements issued by the Sentencing

Commission.” Boe,

. The “district court has the

discretion to deny a section 3582(c)(2) motion, even if the

retroactive amendment has lowered the guideline range.” United

States v. Ursery,

(6th Cir. 1997).

- 16 - Consequently, our affirmance of the sentences is without prejudice

to Appellants seeking a reduction in sentence pursuant to §

3582(c)(2) and Amendment 516.

4.

Appellants maintain that the district court erred in applying

Guideline § 2D1.1(b)(1) (increase offense level by two for

possession of dangerous weapon) because the seized-firearms were

neither possessed during, nor connected to, the commission of any

offense. The increase should be given if a weapon was present,

unless it is clearly improbable that it was connected to the

offense. United States v. Sparks,

(5th Cir. 1993)

(citing § 2D1.1, comment. (n.3)), cert. denied,

(1994). In this regard, the analysis of the term “use” of a weapon

in Bailey v. United States, ___ U.S. ___,

(1995),

was limited to

(c)(1); contrary to Appellants’

contention, it has no application in the present context. See

United States v. Castillo,

, 1499 n.34 (5th Cir.),

cert. denied, ___ U.S. ___,

(1996).

The evidence established that four handguns, including one

found in a briefcase used by Elsa Mendiola, and one shotgun were

found at the Mendiolas’ residence, where 455 plants were found.

Additionally, a shotgun and one rifle were found at the ranch,

where 316 plants were found.

- 17 - The sentencing enhancement “for weapon possession reflects the

increased danger of violence when drug traffickers possess

weapons.” U.S.S.G. § 2D1.1, comment (n.3). Moreover, “the mere

presence of [a] gun, loaded or not, can escalate the danger.”

United States v. Mitchell,

(5th Cir.), cert.

denied,

(1994). The evidence clearly established the

presence of the weapons at the marijuana growing operations. The

finding that the weapons were “connected” to the offenses was not

clearly erroneous; restated, it was not clearly improbable that

they were connected to the offense.

F.

While their convictions and sentences were on appeal,

Appellants obtained information relating to Moises Perez, an FBI

informant and witness, and relating to a Special Agent, who also

testified. The Government dismissed charges in an unrelated case

in which Perez was to be a witness because they allegedly had lost

confidence in him.

The information revealed that Perez had entered a plea of no

contest to the offense of organized crime in Texas state court,

which was never given to Appellants prior to trial and that,

consequently, Perez may have testified falsely at their trial.

Additionally, information that the Special Agent had been

investigated by the FBI’s Office of Professional Responsibility was

never revealed.

- 18 - As a result, Appellants moved for a new trial; the motion was

denied without a hearing.2 (The Government submitted to the

district court for in camera inspection the materials relating to

the investigations of the Special Agent.)

Impeachment evidence, which is primarily at issue here, is

covered by the disclosure requirements of Brady v. Maryland,

(1963). See Wilson v. Whitley,

(5th Cir.

1994), cert. denied,

(1995) (citing United States v.

Bagley,

(1985)). The Court has held: “When the

‘reliability of a given witness may well be determinative of guilt

or innocence,’ nondisclosure of evidence affecting credibility

falls within [Brady’s] general rule.” Giglio v. United States,

(1972) (quoting Napue v. Illinois,

(1959)). Brady rulings are reviewed de novo. United States v.

Green,

(5th Cir.), cert. denied,

(1995).

2 Pursuant to FED. R. APP. P. 4(b), Cruz’s appeal from the new trial denial (No. 97-50393) was untimely. On remand, the district court determined that the untimely filing was not due to excusable neglect. See FED. R. APP. P. 4(b) (“upon showing of excusable neglect the district court may ... extend the time for filing a notice of appeal.”). We review an excusable neglect determination for abuse of discretion. See United States v. Clark,

, 43 n.5 (5th Cir. 1995). We cannot say that the court abused its discretion when it determined that Cruz’s attorney’s failure to properly read Rule 4(b) constituted inexcusable neglect. Accordingly, Cruz’s appeal in No. 97-50393 is DISMISSED.

- 19 - Brady violations require reversal only if there is a

“reasonable probability” that the outcome of the trial would have

been different had the evidence been disclosed. See Bagley,

. Such “reasonable probability” is established only

when the failure to disclose “could reasonably be taken to put the

whole case in such a different light as to undermine confidence in

the verdict.” Kyles v. Whitley,

(1995).

The challenge at hand focuses on withheld impeachment evidence

regarding Perez and the Special Agent. “In assessing the

materiality of undisclosed impeachment evidence, ‘we must consider

the nature of the impeachment evidence improperly withheld and the

additional evidence of the defendant’s guilt independent of the

disputed testimony.’” Wilson v. Whitley,

(5th Cir.

1994) (quoting United States v. Weintraub,

(5th

Cir. 1989)) cert. denied,

(1995). There is

overwhelming evidence of the Mendiolas’ guilt, independent of the

evidence in issue that could be obtained from Perez or the Special

Agent. Consequently, there is no Brady violation; a new trial was

properly denied. (In connection with his new trial motion, James

Mendiola sought the disqualification of the Assistant United States

Attorney who tried the case. Obviously, there being no error

regarding the new trial denial, we do not reach this issue.)

III.

- 20 - For the foregoing reasons, Cruz’s appeal from the new trial

denial (No. 97-50393) is DISMISSED; the Mendiolas’ appeal from such

denial (No. 97-50407) is AFFIRMED; and the convictions and

sentences (No. 97-50177) are AFFIRMED, without prejudice to

Appellants moving for a reduction in sentence.

- 21 -