                            REVISED, July 21, 1998
                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT


                                      No. 96-50512



UNITED STATES OF AMERICA,
                                                                        Plaintiff-Appellee,
                                         versus
ERNEST CORTINAS, also known as Neto; RICARDO
RODRIGUEZ, also known as Uncle Richard, also known
as Mangas; HENRY C. VILLEGAS; DANIEL CHAVEZ
VILLEGAS, also known as El Gordo; JOHNNY ALBERT
MARTINEZ, also known as Red Rider; LINDA RODRIGUEZ,
also known as Linda Rodriguez Mata; ERIC WAYNE GREEN,
                                                                   Defendants-Appellants.


                     Appeals from the United States District Court
                          For the Western District of Texas

                                      May 22, 1998
Before POLITZ, Chief Judge, DeMOSS, Circuit Judge, and FITZWATER,* District
Judge.
POLITZ, Chief Judge:

      Ernest Cortinas, Ricardo Rodriguez, Henry C. Villegas, Daniel Chavez
Villegas, Johnny Albert Martinez, Linda Rodriguez Mata, and Eric Wayne Green

were convicted of conspiracy and various substantive offenses arising out of a

marihuana distribution enterprise. They challenge on appeal, inter alia, the
admissibility of certain evidence, the denial of various motions to sever, the

sufficiency of the evidence, and the trial court’s sentencing findings as to the

amount of marihuana involved in the offenses. For the reasons assigned, we affirm

  *
   District Judge of the Northern District of Texas, sitting by designation.
in part and vacate and remand in part.
                                  BACKGROUND

         The appellants’ convictions are related to a drug smuggling organization

headed by Daniel Nieto. In 1984, Nieto began storing marihuana at Metro
Transmissions, his place of business in San Antonio, and eventually expanded his

involvement in the drug trade to become a major distributor of marihuana between

San Antonio and Saginaw, Michigan. Nieto bought marihuana from Arturo

Villareal which was delivered to Metro Transmissions by Rodriguez, Villareal’s
uncle.     On several occasions members of Nieto’s organization paid Mata,
Villareal’s sister, for the marihuana. The relationship between Nieto and Villareal
ended in 1989 and Nieto acquired another marihuana source.

         As his operations grew, Nieto hired a number of people, including Martinez,
to transport the marihuana, using Dan’s Paint and Body Shop, a San Antonio

business, as a front. Employees of Dan’s would fit vehicles with concealed
compartments, do touch up paint and body work to conceal the compartments, and
load and unload marihuana. Henry Villegas was the owner and Daniel Villegas

was an employee of Dan’s. Both were members of the Southsiders Bikers Club,

a boot camp organization for the Bandido Nation Motorcycle Club.
         In 1989, encountering problems collecting from some Michigan customers,

Nieto enlisted the services of Cortinas, a small-time customer, and other members

of the San Antonio Chapter of the Bandido Nation Motorcycle Club to assist in the

collection effort. In the process of collecting one such account, in September 1991


                                          2
Cortinas and fellow Bandido members Edward Salas and Green, reportedly “shot
up” the house of a delinquent debtor. The shooting resulted in the death of a 14-

year-old boy. The house was under the “protection” of a Michigan motorcycle

club, the Outlaws, and in order to prevent retaliation the Bandidos obtained
$25,000 from Nieto to give to the Outlaws. Nieto testified that the Bandidos

eventually took over his business and that he acquiesced in that takeover because

he feared for his life and the life of his family.

       Nieto was arrested in May 1992 along with several confederates. Nieto and
others plea bargained for reduced sentences in return for information and testimony
against other members of the organization. In January 1995, 28 members of
Neito’s organization were indicted for conspiracy with intent to distribute

marihuana, in violation of 21 U.S.C. § 841(a)(1) and § 846, and various other
substantive offenses. A jury found all appellants guilty on the conspiracy count.2

Mata was also convicted of conspiring to launder drug money proceeds in violation
of 18 U.S.C. § 1956. The jury acquitted Martinez of conspiring with Edward Jesse
Rodriguez3 to distribute marihuana. The appellants timely appealed.

                                     ANALYSIS

       Appellants assert the following claims of error: (1) the district court abused

   2
      Of the 27 defendants named in the superseding indictment, ten went to trial:
the seven appellants at bar along with Edward Salas, Jesse David
Rodriguez and Janet Westover Torrez. Salas was dismissed by the government after
it rested. Jesse David Rodriguez was found not guilty, and Torrez, although
convicted, is not a party to this appeal.

   3
    Edward Jesse Rodriguez was a fugitive and was not tried.
                                           3
its discretion in admitting evidence of the Bandido’s methamphetamine trafficking,
the Michigan shooting and the Bandido’s tactics and philosophy; (2) the district

court erred in refusing to sever the trials of Rodriguez, Mata, Henry Villegas, and

Daniel Villegas; (3) the evidence was insufficient to support the convictions of
Cortinas, Rodriguez, Daniel Villegas, Martinez, Mata, and Green; (4) the district

court abused its discretion in denying Cortinas’ request for an alibi jury instruction;

(5) the government gave Cortinas and Green inadequate notice of its intention to

seek an enhanced penalty under § 841(b) which constituted a denial of due process;
(6) the quantity of marihuana for which Cortinas was held accountable was not
properly determined; (7) the district court erred in enhancing Cortinas’ sentence
based upon his alleged leadership role in the conspiracy and for possession of a

firearm; and (8) Henry Villegas’ trial counsel rendered ineffective assistance. We
consider these issues in that order.

I.       Admissibility of Evidence
         Several of the appellants contend that some of the evidence presented at trial
was inadmissible. They properly objected at trial, preserving error on these points,

and we review applying the abuse of discretion standard.4

         A. Methamphetamine Trafficking
         Cortinas and Green complain about the admission of testimony by Jay Lane

Roberts, a Bandido National Officer, that he periodically sold to them




     4
      See United States v. Speer, 30 F.3d 605 (5th Cir. 1994).
                                            4
methamphetamine in quantities sufficient for resale.5 The admissibility of extrinsic
evidence is governed by Fed. R. Evid. 404(b) which allows the introduction of such

evidence for purposes other than to show that the defendant acted in conformity

therewith. Interpreting that rule, we have applied a two-step test. “First, it must
be determined that the extrinsic offense evidence is relevant to an issue other than

the defendant’s character. Second, the evidence must possess probative value that

is not substantially outweighed by its undue prejudice and must meet the other

requirements of rule 403 . . . .”6
       This evidence was admitted properly under Fed. R. Evid. 404(b) and 403.
The extraneous drug evidence, trafficking in methamphetamine, necessarily entails
the same knowledge or intent to traffick in marihuana, the controlled substance at

issue herein. Furthermore, we previously have held that “proof of prior drug
activities is more probative than prejudicial.”7 The district court did not abuse its

discretion in admitting this evidence.8
       B. Bandido’s Tactics and Philosophy
       Cortinas, Rodriguez, and Martinez contest the admission of general


   5
    Roberts also testified that at a point in his dealings with Cortinas the relationship
changed and Cortinas became his supplier of methamphetamine. He also testified
that Green had sold him methamphetamine.
   6
    United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978)(en banc).
   7
    United States v. Harris, 932 F.2d 1529, 1534 (5th. Cir. 1991).
   8
    It should also be noted that the jury was cautioned immediately after Roberts’
direct examination that the evidence of the methamphetamine trafficking could only
be considered against Cortinas and Green.
                                           5
testimony about the culture, activities, and tenets of the Bandidos. Roberts
described the “gang” as being into “motorcycles and crime.                    Mainly

methamphetamine, . . . stolen motorcycles, prostitution, strong arm, theft, drugs,

[and] violence.”    He explained that the gang associated with “characters”--
successful, nonmember criminals--and attempted to take control of their criminal

enterprises and money.           This testimony illustrated the “talents” of the

Bandidos that led Nieto to employ the organization in his debt collection efforts.

Additionally, it supports the reasonable inference that members of this gang could
form the requisite intent to engage in an illegal enterprise. Thus, the district court
did not abuse its discretion in admitting this testimony.
       C. Michigan Shooting

       In 1991, Frances O’Valle, one of Nieto’s Michigan customers, owed Nieto
for marihuana that had been “fronted” to her.9 Nieto employed the Bandidos to

collect this debt. O’Valle told of difficulties she was experiencing collecting from
a customer and complained to Nieto about the debt collectors’ strong arm tactics.
Nieto promised O’Valle that she would be left alone if she would give the address

of her delinquent customer, one Forest Zudell. The address was given and Zudell’s

house in Mount Morris Township, Michigan was “shot up,” and a 14-year-old boy
was killed. The police investigation determined that the shots had been fired by

three gunmen from three different angles. The government maintained that

Cortinas, Green, and co-defendant Salas were the three responsible for the

   9
   Marihuana would be delivered to Nieto’s customers who would pay in cash a
short time later.
                                          6
shooting. The government introduced evidence of the debt, the shooting, and the
results of the Mount Morris Police Department’s investigation which led them to

conclude that Cortinas, Green, and Salas were the gunmen.

        Appellants contend that the district court abused its discretion in admitting
this highly inflammatory and potentially prejudicial evidence. Although the district

court did not allow evidence of the death that resulted from the shooting, appellants

maintain that the testimony implied, and in fact led the jury to believe, that

someone was killed in the incident. We are not persuaded.
        The shooting incident was admitted properly as an intrinsic act in furtherance
of the conspiracy.10 The violence was part of the effort to collect money owed for
marihuana that had been delivered to one of Nieto’s customers. Additionally, and

most importantly, any undue prejudice was avoided by disallowing evidence of the
death of the 14-year-old boy. The court’s admission of this evidence was not error.

        Appellants who were not members of the Bandidos11 contend that even if this
evidence was properly admitted as to those involved in the incident, the district
court failed to craft an adequate limiting instruction to preclude the jury from

considering that evidence as to them. The appellants, however, did not object to

these instructions as being erroneous or inadequate, nor did they propose that other,
preferable limiting instructions should have been given. We, therefore, may review

   10
     See United States v. Maceo, 947 F.2d 1191 (5th Cir. 1991)(evidence of an
uncharged offense arising out of the same transactions as the offenses charged in the
indictment is not extrinsic evidence within the meaning of Rule 404(b)).
   11
     Rodriguez, Mata, Henry Villegas, Daniel Villegas, and Martinez were not members
of the Bandidos.
                                           7
only for plain error.12 We find none.
II.        Severance

           Prior to trial, Rodriguez,13 Mata, and Henry and Daniel Villegas filed

separate motions for severance under Fed. R. Crim. P. 14, contending that much of
the evidence that would be introduced at trial was irrelevant and so highly

prejudicial to their case as to undermine their right to a fair trial. We review denial

of a Rule 14 motion for an abuse of discretion.14 The appellants must show that

they “suffered specific and compelling prejudice against which the trial court was
unable to afford protection, and that this prejudice resulted in an unfair trial.” 15
           Rodriguez and Mata contend that they were prejudiced by the testimony of
the Bandido’s tactics and activities, including the highly inflammatory evidence of

the Michigan shooting. Although “persons jointly indicted in a conspiracy case
should generally be tried together,”16 we must conclude that Rodriguez’ and Mata’s

motions for severance should have been granted. Neither Rodriguez nor Mata was
associated with the Bandidos. In fact, the record reflects that their charged
involvement with Nieto ended in 1989, prior to the Bandido’s joining the

conspiracy. After 1989, Nieto obtained another source of marihuana and no longer

      12
        Fed. R. Crim. Proc. 52(b).
      13
        Rodriguez asserts this error on appeal by adoption.
      14
   See United States v. Restrepo, 994 F.2d 173 (5th Cir. 1993); United States v.
Toro, 840 F.2d 1221 (5th Cir. 1988).
      15
        Toro at 1238.
      16
        United States v. Scott, 795 F.2d 1245, 1250 (5th Cir. 1986).
                                             8
used Villareal, Mata’s brother and Rodriguez’ uncle, as his supplier.17 Limiting
instructions given by the trial judge were inadequate to mitigate the prejudicial

effect of the overwhelming testimony regarding the violent, criminal activities of

the Bandidos. Accordingly, the convictions of Rodriguez and Mata are vacated and
as to them, the matter is remanded to the district court for further proceedings

consistent herewith.

       Henry and Daniel Villegas also contend that they were prejudiced by the

Bandido evidence. The evidence showed, however, that both were members of the
Southsiders Motorcycle Club, a boot camp organization for the Bandidos. Their
alleged involvement with Nieto coincided with the Bandido collection efforts. Our
review of the record persuades that the trial judge did not abuse his discretion in

refusing to sever these defendants.
III. Sufficiency of the Evidence

       All appellants, with the exception of Henry Villegas, contend that the
evidence was insufficient to support their convictions.        In reviewing such
challenges we view the evidence in the light most favorable to the jury’s verdict

and affirm if a rational trier of fact could have found that the government proved

all essential elements of a crime beyond a reasonable doubt.18         Credibility
determinations and reasonable inferences are resolved in favor of the jury’s


  17
     The record contains evidence of payments for real estate used by Mata and
Villareal in the alleged money laundering scheme that post date 1989. These
payments, however, were not tied to the Bandidos’ activities.
  18
    See United States v. Puig-Infante, 19 F.3d 929 (5th Cir. 1994).
                                        9
verdict.19
        Cortinas, Daniel Villegas, Martinez, and Green challenge the sufficiency of

the evidence supporting their convictions for conspiracy to possess with intent to

distribute marihuana.20 Necessary elements of the conspiracy are: (1) the existence
of an agreement to possess marihuana with the intent to distribute, (2) knowledge

of the agreement, and (3) voluntary participation in the agreement.21 Although

mere association or presence alone are insufficient to prove knowing participation

in the agreement,22 when combined with other relevant circumstantial evidence
these factors may constitute sufficient evidence to support a conspiracy
conviction.23
        We find that the evidence of record is adequate to support a reasonable

inference that each of these appellants were knowing and voluntary members of
Nieto’s marihuana distribution enterprise. A National Bandido Officer and Nieto,

himself, testified that Cortinas worked as a debt collector and enforcer for Nieto.
Cortinas was introduced to Nieto’s customers and associates as an employee, and
Nieto’s bookkeeper testified that Cortinas was paid for his services. Additionally,


   19
     Id.
   20
     Rodriguez and Mata also challenge the sufficiency of the evidence. Because of
our decision regarding their motions to sever we do not address their arguments on
this issue.
   21
     See United States v. Mergerson, 4 F.3d 337 (5th Cir. 1993).
   22
     See United States v. Vergara, 687 F.2d 57 (5th Cir. 1982).
   23
     See United States v. Williams-Hendricks, 805 F.2d 496 (5th Cir. 1986).
                                         10
the government’s evidence showed that the Cortinases lived beyond their reported
income and evidence found in various searches linked Cortinas to the drug trade.

      Daniel Villegas was identified by several witnesses as an employee of Dan’s

Paint and Body Shop. Nieto identified Daniel Villegas by his nickname “Gordo”,
and testified that he worked on Nieto’s vehicles constructing hidden compartments

or doing body work to conceal them.          Jesse Hernandez, a cooperating co-

conspirator, specifically testified that he had seen Daniel Villegas painting one of

the secret compartments. The evidence sufficiently supports Daniel Villegas’
conspiracy conviction.
      Martinez was a driver for Nieto. Frances O’Valle identified him as the
person delivering marihuana to her. Luis Bermudez, O’Valle’s son-in-law, also

identified Martinez as having delivered marihuana to him. Additional documentary
evidence, such as notations in purported drug ledgers and motel receipts from

Michigan, supports the involvement of Martinez in the conspiracy.
      Green was a member of the Bandidos. He accompanied Nieto to Michigan
on a couple of occasions and aided Cortinas in the debt collecting. Green was a

suspect in the Michigan shooting and a fellow Bandido testified that Green told him

that he had received the “TCB” Bandido patch for “taking care of business” in
Michigan. The evidence supports a reasonable inference that Green was a knowing

and voluntary member of the conspiracy. The challenges to the sufficiency of the

evidence are rejected.

IV. Alibi Jury Instruction


                                        11
      Cortinas contends that the district court abused its discretion in refusing to
give an alibi instruction. He maintains that he presented sufficient evidence that

he was at a motorcycle rally in Canyon Lake, Texas over the 1991 Labor Day

weekend when the Zudell house was attacked. The evidence, however, shows only
that Cortinas was last seen at the rally on Sunday morning. The shooting did not

occur until the early hours of Monday morning and the jury reasonably could infer

that Cortinas had time to travel to Michigan in order to participate in the shooting.

We find no error in the district court’s refusal to give the requested instruction.
V.    Notice of Enhanced Penalty
      Cortinas and Green claim a due process violation, contending that the
government gave them inadequate notice of its intention to seek an enhanced

penalty under 21 U.S.C. § 841(b). This argument is without merit. Each was
notified in his Presentence Investigation Report, made available seven weeks

before sentencing, that he was subject to an enhanced prison term of ten years to
life because the conspiracy involved more than 1,000 kilograms of marihuana, and
that the government would be filing a notice of enhanced penalties. A month

before sentencing the government gave each formal written notice. There was no

due process violation.
VI.   Sentencing of Cortinas

      A. Quantity of Drugs

      Cortinas contends that the district court erred in determining the quantity of

drugs for which he was responsible. At sentencing, the district court found that


                                         12
Cortinas had participated in the conspiracy for at least 20 months during which the
average amount of marihuana moved had been no less than 500 pounds. In a

conspiracy case, the drug quantity for purposes of sentencing includes amounts

attributable to co-conspirators’ conduct in furtherance of the conspiracy as long as
those amounts were reasonably foreseeable to the complaining defendant.24 Drug

quantity is a finding of fact reviewed for clear error.25 After reviewing the record,

we conclude that the determination of the quantity of drugs for which Cortinas was

held accountable was not clearly erroneous.
        B. Enhancement
        In sentencing Cortinas, the district court assessed a two-level upward
adjustment under U.S.S.G. § 2D1.1(b)(1) for possession of firearms in furtherance

of the conspiracy and a three-level upward adjustment under U.S.S.G. § 3B1.1(a)
for his leadership role in the conspiracy. Cortinas contends that the evidence did

not support such adjustments. We review these adjustments and findings of fact for
clear error.26 Finding no such error, we reject this challenge.
VII. Ineffective Assistance of Counsel

        Henry Villegas maintained that he received ineffective assistance of counsel

during his trial. To succeed, he must prove that (1) his counsel’s performance was




   24
     United States v. Alix, 86 F.3d 429 (5th Cir. 1996).
   25
     Id.
   26
     United States v. Rivas, 99 F.3d 179 (5th Cir. 1996).
                                          13
deficient and (2) this deficient performance prejudiced his defense.27 We must
presume that counsel’s performance was reasonable.28 Henry Villegas maintains

that his attorney failed to file a motion to suppress evidence obtained in a search

of his business, Dan’s Paint and Body Shop. He also contends that his counsel
failed to impeach an important government witness.

        Sufficient evidence existed independently of the things obtained in the search

to support Henry Villegas’ conviction and a co-defendant’s counsel attempted to

impeach the government witness with the information of which he now complains.
Even were we to find that counsel’s performance was deficient, Villegas’ claim
would still fail because he was not prejudiced thereby.
        We conclude that all other points of error urged by the parties lack merit and

they therefore are rejected.
        For the foregoing reasons, we AFFIRM the convictions and sentences of

Ernest Cortinas, Henry C. Villegas, Daniel Chavez Villegas, Johnny Albert
Martinez, and Eric Wayne Green and we VACATE the convictions and sentences
of Ricardo Rodriguez and Linda Rodriguez Mata and REMAND for further

proceedings with respect thereto consistent herewith.


ENDRECORD




   27
     Pitts v. Anderson, 122 F.3d 275 (5th Cir. 1997).
   28
     Id.
                                          14
FITZWATER, District Judge, concurring in part and dissenting in part:
        I join the majority opinion except insofar as it vacates the convictions of

Linda Rodriguez Mata (“Mata”) and Ricardo Rodriguez (“Rodriguez”). Because

the majority fails to apply properly the well-settled severance jurisprudence of this
circuit, I respectfully dissent from that part of its decision.

                                           I

        Mata, Rodriguez, and 25 other defendants were indicted for conspiracy to

possess with intent to distribute marihuana, in violation of 21 U.S.C. § 846. The
government charged that the conspiracy took place over a period of almost seven
years (between June 1, 1985 and May 6, 1992), and that it was broad-ranging in its
geographic scope and in the number and respective roles of its participants.



        Two of the defendants--Mata and Arturo Villareal, Jr. (“Villareal”)--were

also indicted for conspiring between April 1, 1987 and July 1, 1993 to launder the
proceeds of the marihuana distribution conspiracy, in violation of 18 U.S.C. §
1956(g). Two other defendants were also charged with the substantive offense of

possession with intent to distribute marihuana, in violation of 21 U.S.C. §

841(a)(1).29
        Mata, Rodriguez, and seven other defendants were tried together. The

government dismissed one defendant during trial. The jury found seven of the

remaining eight defendants--including Mata and Rodriguez--guilty of the



   29
    The superseding indictment also charged one defendant with escape. That defendant
was a fugitive, and was not tried with the other defendants.
marihuana conspiracy, and acquitted defendant Jesse David Rodriguez (“Jesse”).
The jury found Mata guilty of the money laundering conspiracy. It acquitted

Johnny Albert Martinez (“Martinez”), the sole defendant who was tried for the

substantive offense of possession with intent to distribute marihuana.
      The trial evidence showed that Daniel Nieto (“Nieto”) commenced in 1984-

85 a multimillion dollar smuggling operation in which he used vehicles with hidden

compartments to transport large quantities of marihuana from San Antonio, Texas

to Saginaw, Michigan. During the 1985-89 period, Nieto obtained marihuana from
Villareal, Mata’s brother. Mata occasionally arranged for Villareal’s marihuana
to be delivered to Nieto, who in turn paid Mata several hundred thousand dollars
for delivery to Villareal.   Mata also engaged in real and personal property

transactions for the purpose of laundering the proceeds of the marihuana sales. For
several years, Rodriguez, who is Mata and Villareal’s uncle, delivered Villareal’s

marihuana to Nieto’s engine and transmission shop in San Antonio. Villareal
ceased supplying Nieto with marihuana sometime in 1989.             Although the
indictment charged that as late as June 10, 1993 Mata committed overt acts in

furtherance of the money laundering conspiracy, the evidence against Mata and

Rodriguez focused on their activities in Texas during the period that Villareal was
Nieto’s source of marihuana, which ended in 1989.

      In 1989 Nieto met defendant Ernest Cortinas (“Cortinas”). Nieto complained

to him that certain of his Michigan customers owed him money. Cortinas, a

member of the San Antonio chapter of the Bandido Nation Motorcycle Club,


                                      - 16 -
offered to collect these debts in exchange for a fee. Cortinas was assisted by
defendants Eric Wayne Green (“Green”) and Edward Salas, and by David Loera

(“Loera”), who were also Bandidos.30

        According to the evidence, the Bandido Nation is an organization involved
in motorcycles and crime, principally methamphetamine, stolen motorcycles,

prostitution, strong arm, theft, drugs, and violence, including possession of assault

weapons and machine guns. The trial evidence showed that the Bandidos engaged

in acts of violence as part of their collection efforts. On September 2, 1991
Cortinas, Loera, and Green committed a drive-by shooting of the residence of
Forrest Zudell (“Zudell”), a drug debtor who resided in Michigan.31 The Outlaws,
a motorcycle gang headquartered in Detroit, responded by threatening violence

against Cortinas because the Zudell family had been under their protection. Nieto
was required to provide $25,000 for payment of a tribute to The Outlaws so that

they would not use violence against Cortinas. Eventually, the Bandidos took
control of Nieto’s business.
                                            II
        The oft-cited general rule is that codefendants who

are indicted together should be tried together.                                     See,

e.g., Zafiro v. United States, 506 U.S. 534, 537 (1993);
United States v. Mikolajczyk, 137 F.3d 237, 240 (5th Cir.

   30
     Loera joined the Bandidos in 1992.
   31
     As the majority opinion notes, a 14-year old boy was killed in the shooting, but the
district court precluded the government from disclosing this fact to the jury.
                                          - 17 -
1998).32       “The rule that persons indicted together should

be tried together carries great weight where, as here,
persons are charged with committing the same conspiracy.”

Mikolajczyk, 137 F.3d at 240 (citing United States v.

Archer, 733 F.2d 354, 360 (5th Cir.1984)); United States

v. Manges, 110 F.3d 1162, 1174 (5th Cir. 1997), cert.
denied, __ U.S. __, __ S. Ct. __, 66 U.S.L.W. 3170, 66
U.S.L.W. 3716, and 66 U.S.L.W. 3718 (U.S. May 4, 1998)

(No. 97-315); United States v. Featherson, 949 F.2d 770,
773 (5th Cir. 1991) (“This rule is especially strong when

the     defendants         are     charged       with      committing          the     same

conspiracy.”).              “Joinder is the rule rather than the
exception.”          Mikolajczyk, 137 F.3d at 240 (citing United
States v. Chagra, 754 F.2d 1186, 1188 (5th Cir.1985)).33

   32
     In Zafiro the Court held:
              There is a preference in the federal system for joint trials of
              defendants who are indicted together. Joint trials “play a vital
              role in the criminal justice system.” They promote efficiency
              and “serve the interests of justice by avoiding the scandal and
              inequity of inconsistent verdicts.” For these reasons, we
              repeatedly have approved of joint trials.
506 U.S. at 537 (citations omitted). When these informing principles are kept in mind, it
is a more facile task to accept the fundamental fairness of joint trials in conspiracy cases,
despite differences in the defendants’ respective roles and in the nature and quantum of
the proof against them.
   33
    If joinder were the exception and severance the rule, our courts could become even
more clogged by successive trials in which witnesses, jurors, and court officers must
present or consider substantially similar, if not identical, evidence concerning the alleged
                                           - 18 -
A district court should grant a severance only if there

is a serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent

the jury from making a reasonable judgment about guilt.

United States v. Neal, 27 F.3d 1035, 1045 (5th Cir. 1994)

(citing Zafiro, 506 U.S. at 539).
      A defendant is not entitled to a severance merely
because      the     evidence       against       a   codefendant         is    more

damaging than the evidence against her.                               See United
States v. Williams, 809 F.2d 1072, 1085 (5th Cir. 1987).

Generally, defendants are to be tried together if their

indictments arise out of a common set of circumstances,
even if there is a disparity in the quantum of the
evidence.       See United States v. Rocha, 916 F.2d 219, 227-

28 (5th Cir. 1990).                Moreover, even if there is more
damaging evidence presented against one defendant that
may spill over to other defendants against whom the

evidence is not as damaging, the proper remedy is not

severance.         See United States v. Walters, 87 F.3d 663,
670 (5th Cir.) (“Neither a qualitative disparity in the

evidence nor a prejudicial spillover effect is sufficient

conspiracy, augmented in each trial only by evidence by which the government seeks to
prove that the defendant on trial was a member of the conspiracy.
                                        - 19 -
in and of itself to warrant a severance.”)(citing United

States v. Mitchell, 31 F.3d 271, 276 (5th Cir. 1994)),
cert. denied, __ U.S. __, 117 S. Ct. 498 (1996).                  The

pernicious    effect   of   cumulation    is     best   avoided    by

precise instructions to the jury on the admissibility and

proper uses of the evidence introduced by the government.
See Zafiro, 506 U.S. at 539 (“When the risk of prejudice
is high, a district court is more likely to determine

that separate trials are necessary, but, . . . less
drastic measures, such as limiting instructions, often

will suffice to cure any risk of prejudice.”); United

States v. Piaget, 915 F.2d 138, 142 (5th Cir. 1990);
United States v. Harrelson, 754 F.2d 1153, 1175 (5th Cir.
1985).   The district court can properly instruct the jury

that it is to consider separately the evidence offered
against each defendant.      See Walters, 87 F.3d at 670.          If
the jury can keep separate the evidence that is relevant

to each defendant, even if the task is difficult, and

render a fair and impartial verdict as to each defendant,
a severance should not be granted.         See id. at 670-71.

    Where joinder is initially proper, we review the

district     court’s   refusal     to    sever    for    abuse    of


                              - 20 -
discretion.           Mikolajczyk, 137 F.3d at 240 (citing Zafiro,

506 U.S. at 539);                United States v. Faulkner, 17 F.3d
745, 758 (5th Cir. 1994).                           To prevail on appeal, a

defendant must show that (1) the denial resulted in

compelling prejudice against which the trial court was

unable afford protection and (2) the prejudice outweighed
the     government’s            interest            in   economy       of     judicial
administration.            Mikolajczyk, 137 F.3d at 240-41; Manges,

110     F.3d     at    1174.         The     party       seeking      to     establish
reversible error has a heavy burden.                             See Mitchell, 31

F.3d at 276; Neal, 27 F.3d at 1045.34

                                           III
                                             A
        Mata, in arguments adopted by Rodriguez,35 contends

the district court erred by denying a severance.                                     They



   34
     In Mikolajczyk we noted that the defendants “failed to cite a single case in which this
court reversed a conviction for failure to sever.” 137 F.3d at 240. Mata and Rodriguez
have cited such a case. See United States v. Fisher, 106 F.3d 622, 631-32 (5th Cir. 1997)
(holding that impeachment of codefendant who had invalid and inadmissible conviction
was so prejudicial to defendant that it could not be cured by instruction). Fisher,
however, is distinguishable and limited to the “extraordinary circumstances of th[at]
case.” Id. at 632 n.10.
   35
    As the majority opinion notes, pursuant to Fed. R. App. P. 28(i), Rodriguez
expressly adopted by reference the arguments presented in the briefs of the other
defendants as those arguments might apply to him. Insofar as Mata’s arguments apply to
Rodriguez, my reasoning for dissenting from the majority’s decision to vacate Mata’s
conviction applies equally to its decision to vacate Rodriguez’s conviction.
                                           - 21 -
maintain that there was a gross disparity in the quantity

and   venality    of    the   evidence     between       them     and   the
codefendants,     and    that   there        was    no   testimony       or

indication     that    they   knew   of    the      Bandidos’      violent

activities or even of their involvement in a conspiracy

with Nieto.      Mata also asserts that the district court
improperly denied a mid-trial limiting instruction at the
time the government offered evidence of the Zudell drive-

by shooting, and gave a “marginal and cursory limiting
instruction”     at     the   conclusion       of     trial      that   was

insufficient to protect her rights.

      Although    the     majority       opinion      recognizes        the
controlling jurisprudence and standard of review, it
proceeds to disregard them, holding in almost summary

fashion that Mata and Rodriguez should have been granted
a severance.      The majority reasons that the government
introduced     prejudicial      evidence       concerning         Bandidos

tactics and activities, including highly inflammatory

evidence of the drive-by shooting.                  Neither Mata nor
Rodriguez was associated with the Bandidos, and their

involvement with Nieto ended in 1989, before the Bandidos

joined   the     conspiracy.         After     1989      Nieto     changed


                                - 22 -
marihuana      suppliers   and     no     longer   used      Villareal.

According to the majority, the district court’s limiting
instructions “were inadequate to mitigate the prejudicial

effect    of   the   overwhelming         testimony    regarding   the

violent, criminal activities of the Bandidos.”

    Unlike the majority, I would hold that Mata and
Rodriguez have failed to show an abuse of discretion and
specific and compelling prejudice.

                                   B
    The district court’s instructions to the jury, in the

context of the facts of this case, were adequate to

remedy any prejudice from a joint trial.
    The     district   court     gave     the   jury   two    pertinent
instructions at the conclusion of the case.                  The first

stated:
          No Defendant is on trial for an act,
          conduct, or offense not alleged in the
          indictment   against  the   particular
          Defendant.  Neither are you concerned
          with the guilt of any other person or
          persons not on trial as a Defendant in
          this case.
The second instruction provided:

          A separate crime or offense is charged
          against one or more of the Defendants in
          each count of the indictment.       Each
          count, and the evidence pertaining to

                                 - 23 -
          it, should be considered separately.
          Also, the case of each Defendant should
          be    considered     separately      and
          individually.   The fact that you may
          find one or more of the accused guilty
          or not guilty of any of the crimes
          charged should not control your verdict
          as to any other crime or any other
          defendant.    You must give separate
          consideration to the evidence as to each
          defendant.
    We have held in several cases that instructions
substantially similar or identical to those given in the

present   case    are    sufficient       to   cure    any    risk   of
prejudice.    See, e.g., Mikolajczyk, 137 F.3d at 242;

Manges, 110 F.3d at 1175; United States v. Misher, 99

F.3d 664, 669 (5th Cir. 1996), cert. denied, __ U.S. __,
118 S. Ct. 73 (1997).        That the district court did not
give the jury cautionary instructions more than one time

during the course of trial does not detract from their
curative effect, especially when the instructions are
considered   in    conjunction          with   the    other    factors

discussed below.        Moreover, the cases in which we have

held that cautionary instructions cured any potential for
prejudice have not been limited to those that involved

repeated instructions.       See Mikolajczyk, 137 F.3d at 242

(instructions given at voir dire and trial); Manges, 110


                               - 24 -
F.3d at 1175 (single instruction); Walters, 87 F.3d at

670 (appearing to involve single instruction).
                                           C

       The verdict in this case also demonstrates that the

jury was able to separate the evidence and to consider

each defendant and each charge separately.
       The jury acquitted Jesse of the marihuana conspiracy
and acquitted Martinez of the substantive offense of

possession with intent to distribute marihuana.                                  Jesse
was not a member of the Bandidos.36                     Martinez was a member

of the Southsiders Bikers Club, a “boot camp” for the

Bandidos.         The jury thus demonstrated its ability to
distinguish the Bandidos evidence when addressing the
allegations against a non-Bandido, and to accomplish the

potentially more difficult task of parsing the evidence
against      a    member       of    a   Bandidos        boot      camp.         These
acquittals establish that the jury followed the district

court’s instructions.                 See Walters, 87 F.3d at 670-71

(“[T]he      jury     acquitted          both     [appellants]          on    several
counts of the indictment, suggesting that they heeded the

court’s instructions.”); Neal, 27 F.3d at 1045 (“[T]he


  36
    Nothing in the record reflects that Jesse had any association with the Bandidos.
                                         - 25 -
jury’s    ‘not   guilty’     verdicts       as    to    some    defendants

demonstrate that the jurors followed the district court’s
instructions and considered the evidence separately as to

each defendant.”); United States v. Ellender, 947 F.2d

748,    755   (5th    Cir.   1991)       (“[A]cquittals        as    to   some

defendants on some counts support an inference that the
jury sorted through the evidence and considered each
defendant and each count separately.”).

                                     D
       Unlike the majority, I would hold that the temporal

and spatial differences between Mata’s and Rodriguez’s

involvement      in    the    conspiracy,         and    the        Bandidos’
participation, reduce rather than                heighten any concerns
that the jury could have erroneously found Mata and

Rodriguez guilty based on the Bandidos’ violent conduct.
       While “evidence of a codefendant’s wrongdoing in some
circumstances erroneously could lead a jury to conclude

that a defendant was guilty,” Zafiro, 506 U.S. at 539,

the evidence does not support such concerns in this case.
Mata and Rodriguez       participated in the conspiracy until

1989, while Villareal was Nieto’s marihuana supplier, and

their criminal activities took place in Texas.                            The


                                 - 26 -
Bandidos did not enter the conspiracy until 1989.                                 The

violent        act    that    was     of    principal          concern     to     the
defendants--the          Zudell      drive-by           shooting--occurred         in

Michigan, two years after most of Mata’s37 and Rodriguez’s

involvement in the conspiracy had ended.                              The former

national secretary-treasurer of the Bandidos testified at
trial that Mata was not a Bandido (and, as a woman, could
not have been one).            The trial evidence did not otherwise

connect Mata or Rodriguez to any violent Bandidos acts.
In view of the stark contrast between the conduct of Mata

and Rodriguez, on the one hand, and the Bandidos, on the

other hand, it is doubtful that the jury would have
erroneously          concluded       that        Mata    and    Rodriguez       were
guilty.

        Mata    and     Rodriguez        have      failed      to    demonstrate
specific and compelling prejudice based on the Bandidos’
conduct.        They have not established that this evidence

would either have been confusing to the jury or would

have prevented it from reaching a fair and impartial
verdict.       The district court did not abuse its discretion

by denying their severance motions.

   37
     The superseding indictment alleges that on June 10, 1993 Mata committed an overt
act in furtherance of the money laundering conspiracy.
                                        - 27 -
                                   IV

       Although I respectfully disagree with my colleagues’
disposition of Mata’s and Rodriguez’s convictions, I

think it is important to confine the majority opinion to

its unusual facts rather than to view it as a well-spring

for severance motions in conspiracy cases.               The premise
of the majority opinion is that the district court abused
its discretion because, absent a severance, Mata and

Rodriguez were prejudiced by (1) highly inflammatory
evidence that would not have been admissible against them

had they been tried separately, (2) that pertained to

persons with whom they had no connection and to a time-
period after they had concluded their charged involvement
in the conspiracy, and (3) with regard to which the

district court gave inadequate limiting instructions.
The Supreme Court teaches that we must evaluate case-by-
case the risk of prejudice in a joint trial.             Zafiro, 506

U.S.    at    539.    Accordingly,         although    the   majority

concludes     that   Mata   and    Rodriguez    have    demonstrated
compelling prejudice, today’s decision should be limited

to   the     “extraordinary   circumstances       of    this   case.”

Fisher, 106 F.3d at 632 n.10.


                                  - 28 -
I concur in part and dissent in part.




                     - 29 -
