                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                            No. 00-40080


                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                               versus

           EDUARDO ARRIAGA-GARCIA; JOSE ARRIAGA-GARCIA,

                                             Defendants-Appellants.


           Appeal from the United States District Court
                for the Southern District of Texas
                          (L-99-CR-494-2)

                            June 4, 2001

Before GARWOOD, HALL,1 and BARKSDALE, Circuit Judges.

PER CURIAM:2

     Eduardo and Jose Arriaga-Garcia appeal their drug-related

convictions, maintaining the district court abused its discretion

by denying their motions for a mistrial because of the Government’s

alleged suppression of evidence.        Eduardo Arriaga-Garcia also

claims:   the evidence was insufficient to sustain his convictions;

and the district court erred in denying his motions for judgment of

acquittal or a new trial.   AFFIRMED.



     1
      Circuit Judge of the Ninth Circuit, sitting by designation.
     2
      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this opinion should not be published and is not precedent except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.
                                I.

      In September 1999, a jury found Eduardo Arriaga-Garcia guilty

of:   conspiracy to possess with intent to distribute marijuana in

excess of 1,000 kilograms (2,200 pounds) (count 1); and possession

with intent to distribute a quantity in excess of 1,436 pounds of

marijuana on 5 November 1998 (count 2).   The same jury found Jose

Arriaga-Garcia guilty of:    conspiracy to possess with intent to

distribute marijuana in excess of 1,000 kilograms (count 1);

possession with intent to distribute approximately 1,495 pounds of

marijuana on 1 June 1999 (count 3); and possession with intent to

distribute approximately 297 pounds of marijuana on 9 May 1999

(count 4).

                                II.

      Eduardo Arriaga-Garcia’s sufficiency claims are addressed

first; then, both Appellants’ suppression claim.

                                A.

      Appellants moved for judgment of acquittal at the conclusion

of the Government’s case, reurged their motions at the conclusion

of all the evidence, and, following the verdict, moved for judgment

of acquittal and, in the alternative, for a new trial.   See FED. R.

CRIM. P. 29(a) (motion for judgment of acquittal before submission

to jury); FED. R. CRIM. P. 29(c) (motion for judgment of acquittal

after discharge of jury).    Each motion was denied.     Based upon

Eduardo Arriaga-Garcia’s challenges to the sufficiency of the


                                 2
evidence as to both counts on which he was convicted, he contests

the denial of his motions for judgment of acquittal and for a new

trial.

     Eduardo Arriaga-Garcia was employed as a truck driver for

Advanced Distribution Systems (A.D.S.).      On 5 November 1998, the

A.D.S. terminal manager contacted Eduardo Arriaga-Garcia to haul a

load for Proausa from Laredo, Texas, to Cable-Com in East Chicago,

Indiana.   Both companies were fictitious.

     Eduardo Arriaga-Garcia picked up the load at a warehouse

rented under the name of Proausa.    Later that day, United States

Border Patrol Agents arrested Eduardo Arriaga-Garcia 15 miles north

of Laredo because the tractor-trailer he drove carried 653.17

kilograms (1,440.25 pounds) gross weight of marijuana hidden inside

the hollow centers of five wooden spools.        The spools had been

covered by tarp, concealing the marijuana.

     The initial criminal complaint against Eduardo Arriaga-Garcia

was dismissed; however, in June 1999, Eduardo Arriaga-Garcia was

reindicted   after   confidential    informant    Zambrano   provided

information that Eduardo Arriaga-Garcia had helped pack and load

the marijuana.   At trial in September 1999, Eduardo Arriaga-Garcia

testified he did not know the load contained marijuana.

     Zambrano became a confidential source after the Illinois

Police Force stopped him on 5 May 1999.       On that occasion, the




                                 3
pick-up truck he drove contained $123,000 hidden below its bed.

Zambrano was recruited to assist DEA Special Agent Peterson.

     Zambrano was one of the Government’s main witnesses at the

Arriaga-Garcia trial; his credibility was very much at issue.                          In

addition    to   admitting    to    being       stopped       in   Illinois   carrying

$123,000, Zambrano testified to the following.                      He had a pending

arrest in Zapata County, where he had been found in possession of

591.25 pounds of marijuana.          In 1996, he had spent 11 months in a

Mexican jail, but was released after he was acquitted of the

charges.    He had also been stopped in February 1998 in the Rio

Grande Valley, and his vehicle had been seized because it had been

used to transport marijuana.               Zambrano used his birth name in

Mexico   and     another    name    in     the       United    States.        The    only

consideration he received in exchange for his cooperation was that

he was not charged in the Arriaga-Garcia conspiracy.

     Zambrano testified that, on 31 October 1998, Eduardo Arriaga-

Garcia assisted him in transporting marijuana from Zambrano’s home

to the Proausa warehouse.          On that and the next two days, Zambrano,

Appellants Eduardo and Jose Arriaga-Garcia, and two others had

packaged the marijuana in the wooden spools, using grease and rug

deodorant   to    impede    the    smell       and    covering     the   marijuana     in

transparent      plastic.     (In    mid-January          1999,     when   DEA      Agents

searched the warehouse pursuant to the owner’s consent, they found

disassembled wooden spools, similar to the ones Eduardo Arriaga-


                                           4
Garcia hauled the previous November, as well as pieces of black

duct tape wrapped around the spools and pieces of clear cellophane

wrapping paper.)

     On 5 November 1998, Zambrano loaded the spools onto the

flatbed of Eduardo Arriaga-Garcia’s truck with a forklift.                  Jose

Arriaga-Garcia had notified him that Eduardo Arriaga-Garcia would

pick up the spools, and Eduardo Arriaga-Garcia helped him chain the

spools down.

     After     being   provided   information       by    Zambrano,   the    DEA

conducted    surveillance    from   9     through    31    May   1999.      The

surveillance included Jose Arriaga-Garcia’s residence at 208 Idaho

Street and a house he rented at 321 South Dakota Street.              Beginning

11 May, Jose Arriaga-Garcia rented the 321 South Dakota home under

the alias Jose Salazar, purportedly on behalf of Rodrigo Salazar.

On that same day, Eduardo Arriaga-Garcia was observed twice at the

realtor’s, once with Jose Arriaga-Garcia.

     On 31 May 1999, Zambrano drove a pick-up truck loaded with

marijuana to the house at 321 South Dakota.               Jose Arriaga-Garcia

and two others joined him in unloading and weighing the marijuana

and then stacking it in a closet.          When arrested later that day,

Jose Arriaga-Garcia had a receipt showing the total weight to be

between 1,400 and 1,500 pounds.          Early on 1 June 1999, DEA Agents

executed search warrants at the two houses.              At 321 South Dakota,

they seized over 100 bundles of marijuana with a gross weight of



                                     5
676.32 kilograms (1,495 pounds).     At 208 Idaho, they seized torn

pieces of paper with handwritten drawings of wooden spools similar

to the spools on the 5 November 1998 load driven by Eduardo

Arriaga-Garcia; documents regarding rental of the warehouse Proausa

had used; a bill of lading matching the load driven by Eduardo

Arriaga-Garcia on 5 November; several receipts for payment of rent;

a receipt dated 30 October 1998 from Builder’s Square for packing

material, such as tape and staples; receipts from Gutierrez Mini-

Storage; and a receipt for a forklift rental, dated 4 November

1998.

     The next day the Agents executed a search warrant on a pick-up

truck Jose Arriaga-Garcia and his alleged co-conspirators had used.

It was parked at Gutierrez Mini-Storage.      The Agents recovered

approximately 135.46 kilograms (300 pounds) of marijuana, hidden in

a compartment in the bed of the truck.

                                1.

     Eduardo Arriaga-Garcia asserts the evidence was insufficient

because the Government presented no credible testimony or evidence

upon which the jury could find him guilty.     He contends that the

Government’s main witness, Zambrano, was tainted by his admitted

drug trafficking and was impeached by prior arrests.       He also

highlights:   Zambrano’s testimony that, to his knowledge, Eduardo

Arriaga-Garcia was not involved in the May 1999 transaction; and

Agent Peterson’s agreement with Zambrano’s statement.


                                 6
     Because      Eduardo   Arriaga-Garcia      moved   for   judgment     of

acquittal, “we review the evidence in the light most favorable to

the verdict, to determine whether any reasonable trier of fact

could have found that the evidence established guilt beyond a

reasonable doubt”.       United States v. Edwards, 231 F.3d 933, 935

(5th Cir. 2000).

                                     a.

     The evidence was sufficient to support the conviction for

intent to distribute 1,436 pounds of marijuana on 5 November 1998.

Testimony was given that Eduardo Arriaga-Garcia knowingly possessed

the marijuana by wrapping, packing, and securing it to the flatbed;

and the jury could infer, from the quantity of marijuana involved

(over 1,400 pounds), his intent to distribute it.              See United

States v. Cartwright, 6 F.3d 294, 299 (5th Cir. 1993) (possession

with intent to distribute requires proof of (1) possession of

illegal substance, (2) knowledge, and (3) requisite intent to

distribute), cert. denied, 513 U.S. 1060 (1994); United States v.

Romero-Reyna, 867 F.2d 834, 836 (5th Cir. 1989) (generally may

infer    intent   to   distribute   controlled    substance   solely     from

possession of large amount), cert. denied, 494 U.S. 1084 (1990).

     Eduardo      Arriaga-Garcia’s        no-credible-testimony-assertion

fails.   First, “non-credibility is generally not a sound basis for

alleging insufficiency of the evidence on appeal; it is the jury’s

function to determine credibility”. United States v. Polk, 56 F.3d


                                     7
613, 620 (5th Cir. 1995) (emphasis added).                Second, Zambrano’s

testimony was fully corroborated by the evidence obtained through

the consent search of the warehouse, the documents seized at Jose

Arriaga-Garcia’s residence and the rented house, and the details to

which other witnesses testified.             Cf. United States v. Bermea, 30

F.3d 1539, 1552 (5th Cir. 1994) (“[A] guilty verdict may be

sustained if supported only by the uncorroborated testimony of a

coconspirator, even if the witness is interested due to a plea

bargain or promise of leniency, unless the testimony is incredible

or insubstantial on its face.”), cert. denied, 514 U.S. 1097

(1995).

                                        b.

      As for the conspiracy count, Eduardo Arriaga-Garcia does not

specify which element was not proven at trial.                A rational jury

could have found, beyond a reasonable doubt, the existence of an

agreement between Eduardo Arriaga-Garcia, Jose Arriaga-Garcia,

Zambrano,   and    other     alleged    co-conspirators       to    violate   the

narcotics      laws;   Eduardo     Arriaga-Garcia’s      knowledge      of    the

conspiracy and intent to join it; and his voluntary participation

in the conspiracy.      See United States v. White, 219 F.3d 442, 445

(5th Cir. 2000).           The jury could have inferred that Eduardo

Arriaga-Garcia assisted his brother Jose Arriaga-Garcia in renting

the   house,     because     he   was   seen     twice   at   the    realtor’s.

Furthermore, the evidence was sufficient to support a finding that


                                        8
Jose Arriaga-Garcia possessed and distributed 1,495 pounds of

marijuana on 1 June 1999.     Regardless of whether Eduardo Arriaga-

Garcia personally participated in that specific transaction, he was

liable for crimes committed by his co-conspirators in furtherance

of the conspiracy.    See United States v. Payne, 99 F.3d 1273, 1278

(5th Cir. 1996).

     Aggregating the 1,436 pounds of marijuana seized in November

1998 with the 1,495 pounds seized in June 1999 yields a total of

2,931 pounds.   Therefore, viewing the evidence in the light most

favorable to the verdict, the jury could have found, beyond a

reasonable   doubt,   that   Eduardo   Arriaga-Garcia   was   guilty   of

conspiracy to possess with intent to distribute over 2,200 pounds

(1,000 kilograms) of marijuana, as the indictment charged.

                                  2.

     In addition to Eduardo Arriaga-Garcia’s post-verdict motion

for judgment of acquittal, he moved, in the alternative, for a new

trial.   As noted, the sole basis for the motions was insufficiency

of the evidence.   We review the denial of a motion for a new trial

for an abuse of discretion.    E.g., United States v. Pankhurst, 118

F.3d 345, 353 (5th Cir.), cert. denied, 522 U.S. 1030 (1997).

     In the light of our previous conclusions about the sufficiency

of the evidence, we likewise find no error in the denial of the new

trial motion.




                                   9
                                        B.

     Both Jose and Eduardo Arriaga-Garcia assert the district court

erred in denying their motions for a mistrial on the basis of the

Government’s failure to produce the DEA confidential source report

detailing Zambrano’s arrest by Illinois State Police with not only

$123,000, but also 4.4 pounds of marijuana, in his possession.

They maintain the failure to produce this report deprived them of

their    right     to   cross-examine        Zambrano   regarding        that   drug

possession and of their right to a fair trial.               They also maintain

that, because of the Government’s claimed negligence or bad faith

in not producing the material, a new trial is warranted.                          The

denial   of   a    mistrial   motion    is     reviewed     only   for    abuse    of

discretion.       United States v. Wyly, 193 F.3d 289, 298 (5th Cir.

1999); see FED. R. CRIM. P. 52(a) (“Any error, defect, irregularity

or variance which does not affect substantial rights shall be

disregarded.” (emphasis added)).

     During       cross-examination     of    DEA   Agent    Peterson,      Eduardo

Arriaga-Garcia’s counsel inquired about various reports the Agent

had written about the case. The United States Attorney advised the

court that various reports had not been provided because they dealt

with ongoing investigations that resulted from information Zambrano

provided.     Eduardo Arriaga-Garcia’s counsel requested that any

reports not given him be submitted to the court.




                                        10
     When questioned about why Zambrano’s criminal history was not

in his reports, Agent Peterson explained that Zambrano’s criminal

history was detailed in his personnel file, which, for purposes of

the informant’s personal safety, was a confidential file separate

from the files of ongoing investigations.      Following additional

discussion, the court requested that the documents be provided to

it in camera by the end of the day.

     Later that afternoon, the parties rested. They then presented

closing arguments.

     The DEA reports the Government submitted to the court in

camera revealed that, when Zambrano was stopped in Illinois, not

only $123,000, but also 4.4 pounds of marijuana, were found in the

bed of the pick-up truck.   The next morning (the day after closing

arguments), the court and counsel met to discuss motions prior to

submission of the case to the jury.     (The court pointed out, “in

fairness to the Government”, that “inquiry was made by counsel for

the Government as to what was told Agent Peterson by the Illinois

law enforcement officer.    An objection was made by defense counsel

that that was hearsay, and [the court] sustained the objection”.)

Eduardo and Jose Arriaga-Garcia moved for a mistrial on the grounds

that the Government had suppressed evidence, the defense was unable

to cross-examine Zambrano, and the information was material and

relevant to Zambrano’s character for truthfulness.     (Counsel for

the defendants did not move to reopen the evidence, nor had they


                                 11
requested a continuance until the court conducted its in camera

inspection of the reports.)    The Government responded that it had

only a duty to disclose prior convictions, and the defense knew of

the pending case in Zapata County and the case in Mexico.       The

Government added it had no objection to instructing the jury on the

matter.

     Outside the presence of the jury, the court recalled Agent

Peterson, who acknowledged that the report he had received from the

Illinois Police Force stated that Zambrano had marijuana in his

truck.     When questioned by Eduardo Arriaga-Garcia’s counsel, the

Agent stated he could not recall if he had told the United States

Attorney about the marijuana, although he believed the United

States Attorney was aware that a report of the Illinois arrest

existed.    Agent Peterson stated that he did not provide the United

States Attorney with a copy of the report.    When asked why he did

not tell the defense about the marijuana, he replied that he was

never asked.

     The United States Attorney again distinguished his case file

from the confidential informant file kept by the DEA, saying the

report was in the DEA’s file.    He asserted that the United States

Attorney’s Office could not review those files without a court

order.




                                  12
     The   court   conditionally   denied   the    mistrial   motion   and

submitted the case to the jury.     In charging the jury, the court

stated:

           I wish to call to your particular attention
           [the following:]

                I think the jury is aware that the Court
           was to review a confidential file produced by
           the Government. I did review that file last
           night in my chambers. The Court’s review of
           the confidential Government file on its
           witness, Mr. Zambrano, revealed that when he
           was arrested in Illinois, he was in possession
           of approximately 4.4 pounds of marihuana.
           Although this arrest was previously disclosed,
           the presence of marihuana was not previously
           revealed, either by the Government or by Mr.
           Zambrano.

                This is an additional fact that the jury
           may wish to consider in determining what
           weight, if any, to give Mr. Zambrano’s
           testimony....

(Emphasis added.)

                                   1.

     “[T]he suppression by the prosecution of evidence favorable to

an accused upon request violates due process where the evidence is

material either to guilt or punishment”.          Brady v. Maryland, 373

U.S. 83, 87 (1963) (emphasis added).      The Brady rule includes both

exculpatory and impeachment evidence. United States v. Bagley, 473

U.S. 667, 676 (1985).   Pre-trial, Eduardo Arriaga-Garcia requested

material known to the Government or that might be learned from

investigation officers or witnesses that was exculpatory in nature

or favorable to the defendants.         Pre-trial, Jose Arriaga-Garcia

                                   13
made a Brady request and, among other things, asked for arrest or

conviction records of any witness.

       “[A] successful Brady doctrine claim must establish three

factors:       (1) the prosecution’s suppression of evidence; (2) the

favorable character of the suppressed evidence for the defense; (3)

the materiality of the suppressed evidence”.                         United States v.

Anderson, 574 F.2d 1347, 1353 (5th Cir. 1978).                        “The evidence is

material only if there is a reasonable probability that, had the

evidence       been    disclosed    to    the    defense,      the     result    of    the

proceeding would have been different”.                      Bagley, 473 U.S. at 682

(opinion of Blackmun, J.).

       Appellants’ briefs on this issue are almost identical.                          The

claimed deprivation of the right to fully cross-examine Zambrano is

best articulated, however, by Jose Arriaga-Garcia.                          He asserts

that, had his counsel “been able to argue to the jury that the sole

incriminating         witness    (as      opposed      to     those     testifying      to

circumstantial matters) was a major drug dealer caught in the act

and    whose    only    escape     from    a    lengthy      jail     sentence   was    to

incriminate [Jose Arriaga-Garcia]”, it was reasonably probable the

jury    would    not    have     convicted      him.         (Again,    prior    to    its

deliberations, the jury was given this information.) But, there is

no reason counsel could not have made this argument, even in the

absence of the evidence of the 4.4 pounds of marijuana.




                                           14
     Along this line, Zambrano had admitted his involvement in the

conspiracy to possess with intent to distribute the nearly 3,000

pounds   of   marijuana.   Moreover,   when    asked   if   he   had   ever

transported marijuana, he answered “yes”; and when asked how many

times, he replied, “[a] lot of times”.        And, the jury could have

inferred that the large amount of currency hidden in the pick-up

truck’s false compartment was drug proceeds.            Showing, while

Zambrano testified, that he had possessed an additional 4.4 pounds

of marijuana, of which he claimed no knowledge, would not have

enhanced defense counsels’ ability to impeach Zambrano or enabled

them to make arguments they otherwise could not have made.              The

impeachment value was merely cumulative.

                                 2.

     Because the evidence was not material, we need not reach

whether the Government had a duty to disclose the contents of the

DEA’s confidential report.      Accordingly, we reject Appellants’

assertion that a new trial is warranted because of the Government’s

negligence or bad faith.

     Therefore, the district court did not abuse its discretion in

denying the mistrial motions.

                                III.

     For the foregoing reasons, the judgment is

                                                            AFFIRMED.




                                 15
