           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          March 10, 2008

                                       No. 03-50150                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

JASINDA WHITTINGTON; JOSE CRISTOBAL CARDONA; KELLY
CARDONA

                                                  Defendants-Appellants



              Appeals from the United States District Court for the
                  Western District of Texas, Del Rio Division
                            USDC No. 2:01-CR-251-6


Before JONES, Chief Judge, and WIENER and CLEMENT, Circuit Judges.
PER CURIAM:*
       Jasinda Whittington and Jose Cardona appeal their convictions and
sentences. Kelly Cardona appeals her convictions. We AFFIRM as to Jose
Cardona and Kelly Cardona.             We AFFIRM Whittington’s conviction, but
VACATE her sentence and REMAND for resentencing.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                         No. 03-50150

                            I. FACTS AND PROCEEDINGS
       On September 5, 2001, Whittington, Jose Cardona, Kelly Cardona, Lionel
Serrano, Manuel Cerda, and Marina Hernandez Garcia were indicted for various
drug charges. Whittington, Jose Cardona, and Kelly Cardona were charged with
one count of conspiracy to possess with intent to distribute over 100 kilograms
of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), & 846. The
Cardonas1 were also charged with one count of conspiring to possess with intent
to distribute less then 100 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), & 846, one count of possession with intent to distribute over 100
kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(B), and
one count of possession with intent to distribute over 100 grams of heroin, in
violation of 21 U.S.C. §§ 841(a)(1) &, 841(b)(1)(C). Whittington, Serrano, and the
Cardonas were tried together on March 26, 2002.
       During pretrial motions, Cardona’s second court-appointed attorney
withdrew and a third court-appointed attorney was provided.                         Cardona
subsequently made a motion to represent himself which was granted. Cardona
moved for access to a law library, and visitation and correspondence with family
and friends. These motions were denied. Serrano filed a motion for severance
pursuant to Federal Rules of Criminal Procedure 8 and 14.2 On the day of trial,
Whittington adopted the motions of her codefendants. The court denied the
motions to sever.
A.     Cardona’s Trial and Sentencing
       At trial, the evidence against Cardona was as follows. Three witnesses,
Fuentes, Benevides, and Guerra, who had been incarcerated with Cardona,
testified pursuant to plea agreements. All three testified that Cardona was a

       1
         Hereinafter, Jose Cardona will be referred to as “Cardona” and Kelly Cardona will be
referred to as “Kelly Cardona.” Both defendants together will be referred to as “the Cardonas.”
       2
           Serrano’s conviction and sentencing are not at issue in this appeal.

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member of the Mexican Mafia. They further testified that Cardona had told
them details of his drug-trafficking and that Cardona also gave them names of
other individuals involved in his trafficking. One testified that Cardona used
the term “chickens” as code for drugs. Conversations between Cardona and his
wife that were recorded while Cardona was incarcerated indicated that they
used the term “chickens” regularly in discussing various transactions. A U.S.
Customs agent who had been involved in the investigation testified that when
the Cardonas differentiated between black and regular chickens in their
discussions, the “ones in black” referred to heroin. He also testified to methods
by which drug-trafficking organizations operated.
      Cooperating codefendant Marina Garcia testified that she had been
arrested in possession of heroin after Cardona had asked her to hold the drugs
for him when they were pulled over by police. Del Rio Police officers testified to
arresting Garcia and the Cardonas during April 2001. Garcia had heroin in her
possession. Cardona was unlawfully carrying a weapon and Kelly Cardona had
an outstanding warrant. When officers found heroin hidden in Garcia’s pants,
she began shouting, “He made me do it. . . . Joe.” Testimony throughout trial
indicated that Cardona was referred to as “Joe.” The heroin seized from Garcia
weighed 30.24 grams.
      Cooperating codefendant Manuel Cerda testified that he was arrested
while receiving a load of marijuana at a brown trailer that belonged to the
Cardonas. He said he had been recruited by Serrano who told him that he
received the shipments of marijuana for Cardona. Cerda testified that he was
a low-ranking member of the Mexican Mafia, specifically that he was one of
Cardona’s “prospects” in the Mexican Mafia. Two Border Patrol agents testified
about the April 2001 arrest of Cerda and Serrano receiving marijuana at the
Cardona’s trailer. The marijuana seized during the arrest weighed 259.08
pounds.


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      Three U.S. Border Patrol agents testified to an operation where they
captured Cardona in the vicinity of several individuals bringing a load of
marijuana into the United States from Mexico during January 1999. A U.S.
Customs agent testified that he conducted a search of the Cardonas’ trailer in
February 2001 and found a shotgun.
      At the close of the government’s evidence, Cardona moved for a judgment
of acquittal which was denied. He did not renew the motion at the close of all
evidence. The jury convicted him on all counts. On October 9, 2002, Cardona
moved to proceed pro se and for access to a law library to prepare for sentencing.
He renewed his motion for visitation and correspondence with friends and family
members. The court determined that Cardona was already representing himself
and would not remove his standby counsel. His motions were denied. Cardona
later moved to continue sentencing from December 16, 2002 because he received
his presentence report late on December 9, 2002. His motion was granted and
his sentencing continued. On December 16, 2002, Cardona filed objections to his
presentence    report,   specifically   the   drug   quantity,   the   four-point
leader/organizer enhancement, the obstruction of justice enhancement, the use
of a weapon enhancement, and the career offender enhancement.
      Cardona raises eighteen issues on appeal.
B.    Kelly Cardona’s Trial and Sentencing
      The evidence against Kelly Cardona was as follows. All three witnesses
who had been incarcerated with Cardona testified that he told them that Kelly
Cardona was involved in operating his drug-trafficking organization. Cerda
testified that he had seen Kelly Cardona present at the Cardonas’ trailer when
shipments of marijuana were being loaded. Garcia testified that Kelly Cardona
was in the car when Jose Cardona asked her to conceal the heroin for him. Kelly
Cardona later visited Garcia in custody and threatened to kill Garcia’s children
if she said anything against Kelly Cardona or others. Also, the tape-recorded

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conversations showed her involvement in Cardona’s drug-trafficking. During
one conversation, Cardona told his wife to go see Garcia in custody. He also
expressed his concern about Garcia testifying. Kelly Cardona was recorded
acknowledging Cardona’s statements about the couple continuing to make
mistakes. A U.S. Customs agent testified that he arrested Juan Kinisky on
August 9, 2001 for smuggling 225 pounds of marijuana in a vehicle that was
registered to Kelly Cardona. Later testimony showed that Kelly Cardona
reported the vehicle stolen two days later. When searching the Cardonas’
trailer, agents found a small amount of marijuana which Kelly Cardona
admitted was hers.
      At the close of the government’s evidence, Kelly Cardona moved for a
judgment of acquittal which was denied. She did not renew the motion at the
close of all evidence. The jury convicted Kelly Cardona on all counts. On August
20, 2003, she was sentenced to 120 months of imprisonment. She appeals the
admission of hearsay statements in furtherance of the conspiracy, the admission
of evidence regarding Cardona’s membership in the Mexican Mafia, and the
sufficiency of evidence of her convictions.
C.    Whittington’s Trial and Sentencing
      The evidence against Whittington was as follows. Cerda testified that
Whittington had been present when loading drug shipments. Benevides testified
that Cardona told him that Whittington was involved in smuggling heroin into
prison because she knew one of the guards. Guerra testified that Cardona told
him he once gave control of his drug-trafficking to Whittington because Kelly
Cardona was spending too much money. A U.S. Customs agent interviewed
Whittington after searching the Cardonas’ trailer. Whittington told him that
she owned the shotgun found at the trailer, but had left it behind after
subletting the trailer to the Cardonas. A member of the DEA’s task force
testified that during his investigation of an individual named Jerry Wade, a


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license plate registered to Whittington was found on a vehicle carrying 101
kilograms of marijuana on February 21, 2001. Whittington did not own the
vehicle. An analyst from U.S. Customs testified about a recorded conversation
in Spanish between Cardona and a female, whom Whittington later admitted
was her. During the conversation, Cardona discussed his concerns about an
individual testifying against him.
      At the close of the government’s evidence, Whittington moved for a
judgment of acquittal which was denied. She did not renew the motion at the
close of all evidence.
      The jury convicted Whittington of the one count with which she was
charged. On December 16, 2002, Whittington’s sentencing hearing was held.
She was sentenced to 121 months of imprisonment. Whittington appeals the
denial of her motion to sever, the district court’s factual determination in the
calculation of drug quantity for her Sentencing Guidelines, the constitutionality
of her sentence under United States v. Booker, 543 U.S. 220 (2005), and raises
an ineffective assistance of counsel claim on direct appeal.
                                 II. DISCUSSION
A.    Admission of Hearsay Statements
      Kelly Cardona appeals the admission of statements implicating her that
Cardona made to other inmates. Because Kelly Cardona concedes that she failed
to object to the admission of the hearsay statements that she now raises on
appeal, the admission is reviewed for plain error. United States v. Olano, 507
U.S. 725, 731–32 (1993); United States v. Cuellar, 478 F.3d 282, 294 (5th Cir.
2007) (en banc). “Under that standard, we do not correct an error raised for the
first time on appeal unless there is (1) error, (2) that is plain, and (3) that affects
substantial rights.” Cuellar, 478 F.3d at 294 (citing Olano, 507 U.S. at 731–37).
“If these factors are established, the decision to correct the forfeited error is
within the court’s sound discretion, which will not be exercised unless the error

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seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (citing Olano, 507 U.S. at 736).
      Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” FED. R. EVID. 801(c). A statement is not hearsay if it is made
“by a coconspirator of a party during the course and in furtherance of the
conspiracy.” FED. R. EVID. 801(d)(2)(E). “[T]he ‘in furtherance’ requirement is
not to be construed too strictly lest the purpose of the exception be defeated.”
United States v. Cornett, 195 F.3d 776, 782 (5th Cir. 1999). “This rule is not
without its limits, however; a statement is not in furtherance of the conspiracy
unless it advances the ultimate objects of the conspiracy.” Id. “Efforts to conceal
an ongoing conspiracy obviously can further the conspiracy by assuring that the
conspirators will not be revealed and the conspiracy brought to an end.” United
States v. Phillips, 219 F.3d 404, 419 (5th Cir. 2000). “[S]tatements which are
puffing or boasts, but which are used to obtain the confidence of the person
toward whom the statement is directed, are properly considered to be statements
in furtherance of the conspiracy.” United States v. Johnson, 872 F.2d 612, 623
(5th Cir. 1989). This Court has held that “statements [made] in order to
encourage loyalty and obedience among the conspirators [is] a purpose clearly
in furtherance of the conspiracy.” United States v. Flores, 63 F.3d 1342, 1377
(5th Cir. 1995). Situations “where the person acting as a connection informed
his source of the identity of the ultimate purchaser” have also been held to be
situations in furtherance of a conspiracy. United States v. Patton, 594 F.2d 444,
447 (5th Cir. 1979).
      Kelly Cardona argues that Cardona’s statements about her to Fuentes,
Benevides, and Guerra, which were admitted at trial were not in furtherance of
the conspiracy. Under the plain error standard, this Court cannot make that
conclusion. Benevides testified that Cardona explained the details of the drug

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charges against him because Cardona asked him for “legal advice” regarding his
case. Cardona also asked Benevides to join in his drug-smuggling operation.
Cardona’s statements to Benevides were in furtherance of the conspiracy to
conceal the conspiracy by obtaining legal advice from a drug trafficker.
Cardona’s statements were also intended to obtain Benevides’s confidence to join
him in the conspiracy. Guerra was a fellow member of the Mexican Mafia and
Cardona’s statements to him were in furtherance of the conspiracy to gain his
confidence as a member of the same gang. Fuentes testified that he was the
head of a drug-trafficking organization and knew of Cardona’s membership in
the Mexican Mafia. The district court did not clearly err in admitting those
statements that could have been designed by Cardona to gain the confidence of
a fellow head of a drug-trafficking organization.
      Assuming for the purpose of argument that these statements were
admitted in error, the error was not plain, clear, or obvious. See Olano, 507 U.S.
at 734. “The purpose of the plain error rule is to enforce the requirement that
parties object to errors at trial in a timely manner so as to provide the trial judge
an opportunity to avoid or correct any error, and thus avoid the costs of
reversal.” United States v. Chaney, 662 F.2d 1148, 1151 n.4 (5th Cir. Unit B Dec.
1981).   From the testimony in the record, it is not clear that Cardona’s
statements were not made in furtherance of the conspiracy.
      In support of her claim, Kelly Cardona relies on United States v. El-Zoubi,
where “[t]he statement in question was not made to a coconspirator [and] the
record [did] not allow the inference that [the defendant] thought the conspiracy
would be more likely to succeed if [the listener] knew of [the defendant’s] intent
to [commit the crime].” 993 F.2d 442, 446 (5th Cir. 1993). That case, however,
is inapplicable. Fuentes was the leader of his own drug-trafficking organization,
Benevides was asked to participate in Cardona’s drug-trafficking, and Guerra
was a fellow Mexican Mafia member. Substantial evidence existed in the record

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to infer that Cardona’s drug-trafficking business would be more likely to succeed
and expand if these individuals knew of his operation.
B.    Sufficiency of the Evidence
      The Cardonas each challenge the sufficiency of the evidence of their
convictions. A review of the trial transcript and docket sheet indicates that both
moved for a judgment of acquittal at the close of the government’s case, but did
not renew their motions at the close of all evidence.
      Where . . . the defendant moves for a judgment of acquittal at the
      close of the government’s case, but fails to renew the motion at the
      close of all evidence, the court applies a stricter standard to a
      sufficiency of the evidence challenge. In such cases, the court
      reviews the evidence only to determine whether there has been a
      manifest miscarriage of justice, which occurs only when the record
      is devoid of evidence of guilt.
United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007) (internal citations
omitted).
      “The elements of a drug conspiracy are: (1) the existence of an agreement
to import or to possess with intent to distribute; (2) knowledge of the agreement;
and (3) voluntary participation in the agreement.” United States v. Rodriguez-
Mireles, 896 F.2d 890, 892 (5th Cir. 1990).
            A possession conviction requires proof that a defendant had
      knowing possession of marijuana with the intent to distribute it. . . .
      Possession may be actual or constructive, and may be proved by
      circumstantial evidence. One who owns or exercises control over a
      motor vehicle in which contraband is concealed may be deemed to
      possess the contraband. Intent to distribute may be inferred from
      the possession of a large quantity of contraband.
United States v. Hernandez-Palacios, 838 F.2d 1346, 1349 (5th Cir. 1988).
“Constructive possession is found if the defendant knowingly has ownership,
dominion or control over the contraband itself or over the premises in which the
contraband is concealed.” United States v. Arnold, 467 F.3d 880, 883 (5th Cir.
2006) (internal quotations omitted).

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      Reviewing the evidence presented at trial under the strict standard of
review, there was ample evidence to support the Cardonas’ convictions on all
four counts. As to Count 1 of the superseding indictment, the evidence indicated
that there was an agreement between the Cardonas and others to possess
marijuana with intent to distribute it. There was evidence that the Cardonas
knew of the agreement and voluntarily participated in it.          Besides the
statements of Cardona to fellow inmates, Kelly Cardona’s recorded conversations
with Cardona while he was in prison that were played for the jury and her own
testimony acknowledging these conversations indicated her knowledge and
participation in the conspiracy. Furthermore, her involvement in reporting a
vehicle stolen two days after it was seized when being was used to haul 255
pounds of marijuana was evidence of her conspiring to possess marijuana with
the intent to distribute it.
      The evidence against the Cardonas was sufficient to prove their guilt as
to Count 3, the marijuana possession count. Serrano and Cerda were caught in
the act of receiving 259 pounds of marijuana at a trailer that was the Cardonas’
residence. Cerda testified that Kelly Cardona was present when other loads of
marijuana were placed on a truck at the residence and he testified that Serrano
told him that he received marijuana for Cardona. This Court cannot say that
the record was devoid of evidence proving that the Cardonas had constructive
possession over the marijuana with intent to distribute the large amount of
marijuana delivered to their residence.
      There was sufficient evidence to prove Counts 2 and 4. Garcia testified
that Cardona had given her the thirty grams of heroin that was found in her
possession when she and the Cardonas were in the same car.           Cardona’s
statements about smuggling heroin into Leavenworth indicate that intent to
distribute the heroin existed. Recorded conversations were played for the jury
in which the Cardonas discussed the possibility of Garcia testifying against


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Cardona and Cardona recommended that Kelly Cardona visit Garcia. Garcia
testified that Kelly Cardona threatened to kill her children if Garcia implicated
Kelly Cardona. Kelly Cardona’s threats against Garcia and her conversations
with her husband indicate their constructive possession of the heroin, an
agreement to possess it with the intent to distribute it, and that both voluntarily
participated in the agreement.
C.    Admission of Cardona’s Membership in Mexican Mafia as
      Evidence Against Kelly Cardona
      Kelly Cardona appeals the admission of evidence that her husband was a
member of the Mexican Mafia. The record indicates that Kelly Cardona did not
object to the admission of Cardona’s membership in the Mexican Mafia or
possible retaliation by Cardona against witnesses.        Thus, the appropriate
standard of review is plain error. Olano, 507 U.S. 725 at 731–32; Cuellar, 478
F.3d at 294.
      “This Court has previously established and upheld the rule that a
defendant’s guilt may not be proven by showing that he is related to an
‘unsavory’ person.” United States v. Parada-Talamantes, 32 F.3d 168, 170 (5th
Cir. 1994) (quoting United States v. Singleterry, 646 F.2d 1014, 1018 (5th Cir.
1981)). However, in Parada-Talamantes, the defendant’s relative was not a
codefendant in the same trial. Id. at 169. Because Kelly Cardona and her
husband were codefendants in the same trial, the admission of his Mexican
Mafia membership for its relevancy or prejudice to Kelly Cardona would be
reviewed under the Federal Rules of Evidence. “Evidence which is not relevant
is not admissible.” FED. R. EVID. 402. “Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of
unfair prejudice . . . .” FED. R. EVID. 403. This Court has held that undue
prejudice toward one defendant from the admission of evidence that is relevant
against a codefendant may be alleviated by a district court’s instructions. United


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States v. Ramos Rodriguez, 926 F.2d 418, 421 (5th Cir. 1991). Instructions that
the defendant was “on trial only for conduct alleged in the indictment, that the
jury was not to be concerned with the guilt of any other person, and that
evidence pertaining to each person in each count of the indictment was to be
considered separately” has been held as sufficient. Id.
      The evidence of Cardona’s membership in the Mexican Mafia was relevant.
With regard to the possession of heroin count in the indictment, the government
alleged that Cardona attempted to smuggle the drugs to incarcerated Mexican
Mafia members. The witnesses’ fear of retaliation against them was relevant to
prove Cardona’s membership in the organization and involvement in narcotics-
trafficking.
      Kelly Cardona does not challenge the jury instructions. The jury was
instructed that the defendants were on trial for conduct alleged in the
indictment, that they were not to be concerned with the guilt of others, and that
they were to consider the evidence against each person in each count separately.
“This Court recognizes that a jury is generally capable of properly applying
evidence only against whom it is offered.” Id.
      Even if the admission of Cardona’s Mexican Mafia membership were plain
error as to Kelly Cardona, she has failed to show that her substantial rights
were affected or that the admission “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Cuellar, 478 F.3d 282,
294 (5th Cir. 2007) (en banc) (citing United States v. Olano, 507 U.S. 725, 736
(1993)). As discussed above, there was sufficient evidence other than her
husband’s Mexican Mafia membership to prove that Kelly Cardona was guilty
of the crimes charged, which is more than necessary to show that her substantial
rights were not affected by the admission.




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D.    Severance
      Whittington appeals the denial of her motion to sever and Cardona
appeals the denial of severance (although he made no motion to sever).
Whittington adopted the motions of her codefendants, which included Serrano’s
motion to sever. The government did not object to Whittington’s adoption of the
motions, nor did the court refuse to permit the adoption, nor are there
exceptional circumstances indicating the adoption materially misled the court
or opposing counsel.      In these circumstances, this Court has held that a
defendant properly adopted the objection of a codefendant. United States v.
Bernal, 814 F.2d 175, 182 (5th Cir. 1987).          Because Whittington properly
adopted her codefendant’s motion to sever, we review the denial of the motion
for abuse of discretion. United States v. Nguyen, 493 F.3d 613, 625 (5th Cir.
2007).
      “If the joinder of offenses or defendants in an indictment . . . appears to
prejudice a defendant . . . the court may order separate trials of counts, sever the
defendants’ trials, or provide any other relief that justice requires.” FED. R. CRIM.
P. 14(a).
      As a general rule, defendants indicted together would hold a trial together.
      A district court should grant severance only if a defendant is able to show
      that there is serious risk that a joint trial would compromise a special trial
      right of one of the defendants, or prevent the jury from making a reliable
      judgment about guilt or innocence.
Nguyen, 493 F.3d at 625 (internal citations and quotations omitted). “To prevail,
the defendant must show that: (1) the joint trial prejudiced him to such an
extent that the district court could not provide adequate protection; and (2) the
prejudice outweighed the government’s interest in economy of judicial
administration.” United States v. Peterson, 244 F.3d 385, 393 (5th Cir. 2001)
(internal quotations omitted). “[W]e have held that a quantitative disparity in
the evidence is clearly insufficient in itself to justify severance. . . . We have also


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held that the mere presence of spillover effect does not ordinarily warrant
severance.” United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir. 1993) (internal
citations and quotations omitted).
      Whittington argues that she was prejudiced by the denial of her adopted
motion to sever because of the disparity between evidence against her and her
codefendants and because of the admission of evidence regarding the heroin
conspiracy.    The disparity in evidence between Whittington and her
codefendants alone is insufficient to warrant severance, as is the spillover effect
from the evidence of the heroin conspiracy. Although the disparity and spillover
together may be enough to warrant severance, Whittington concedes that the
jury was given proper instructions to consider the evidence against the
defendants separately. As noted above, undue prejudice from the admission of
evidence regarding a codefendant may be alleviated by proper jury instructions.
United States v. Ramos Rodriguez, 926 F.2d 418, 421 (5th Cir. 1991).
      Whittington also argues that she was clearly prejudiced by denial of her
adopted motion to sever because there was insufficient evidence to convict her.
The record indicates otherwise. Cerda testified that Whittington was present
when marijuana was loaded onto a truck. She sublet the trailer to the Cardonas
which was used to receive a shipment of marijuana. She purchased a shotgun
and left it behind in the trailer where Cardona would have access to it, when, as
a convicted felon, he would not normally have legal access to a weapon.
Cardona’s statement to fellow inmates that Whittington had taken over his drug
operation was indicative of her involvement in a marijuana conspiracy. Also, the
presence of a license plate registered to Whittington on a car that did not belong
to her that was transporting marijuana indicates Whittington’s involvement.
The amount of evidence against Whittington, the limiting instructions given to
the jury, and this Circuit’s precedent indicate that she did not suffer prejudice



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sufficient to outweigh the government’s interest in economy of judicial
administration.
      Cardona, on the other hand, made no motion to sever, nor did he adopt the
motions of his codefendants.3 “We have held that where, as here, appellants
have failed to show any cause for failing to move for severance prior to trial, we
need not even address the merits of their argument. Alternatively, we have
limited review to plain error in such circumstances.” United States v. Mann, 161
F.3d 840, 862 (5th Cir. 1998) (internal citations omitted). Thus, his claim is
reviewed for plain error.
      Cardona was not unduly prejudiced by the district court’s failure to grant
a severance that he never requested. Reviewing for plain error, the record
reveals no indication that his substantial rights were affected or that his trial
with codefendants “seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” United States v. Cuellar, 478 F.3d 282, 294 (5th Cir.
2007) (en banc) (citing United States v. Olano, 507 U.S. 725, 736 (1993)).
Considering that Cardona was charged in each count and was the alleged
ringleader in each count, it is difficult to envision him suffering any prejudice.
The joint trial for heroin and marijuana charges appears to be of minor prejudice
that certainly does not outweigh the government’s interest in economy of judicial
administration.
E.    Improper Joinder
      Cardona also challenges the joinder of the four counts of the indictment.
“The indictment . . . may charge a defendant in separate counts with 2 or more
offenses if the offenses charged . . . are of the same or similar character, or are
based on the same act or transaction, or are connected with or constitute parts
of a common scheme or plan.” FED. R. CRIM. P. 8(a). “The indictment . . . may

      3
        Cardona argues that misjoinder and denial of a motion to sever are the same issue.
We will discuss the two separately.

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charge 2 or more defendants if they are alleged to have participated in the same
act or transaction, or in the same series of acts or transactions, constituting an
offense or offenses.” FED. R. CRIM. P. 8(b). “Improper joinder under Rule 8 is
considered to be inherently prejudicial and thus is reviewable on appeal as a
matter of law.” United States v. Bright, 630 F.2d 804, 812 (5th Cir. 1980).
“Although a claim of misjoinder under Rule 8(a) is completely reviewable on
appeal as a legal question, the rule is to be construed broadly in favor of initial
joinder.” United States v. Chagra, 754 F.2d 1186, 1188 (5th Cir. 1985).
“Generally, the propriety of joinder under Rule 8 is to be judged from the
allegations of the indictment, which for these purposes are assumed to be true.”
Id.
      Cardona was charged in each count of the superseding indictment with
each of the defendants. He has no claim of misjoinder under Rule 8(b). His
reliance on cases interpreting joinder of defendants is misplaced. As to his claim
under Rule 8(a), Cardona argues that the heroin and marijuana conspiracies
occurred at different times, in different locations, and involved different drugs
and different participants. Cardona’s factual assertions are inaccurate, except
that the charges involve different drugs. All four counts involved two common
participants: Cardona and his wife. Counts Two, Three, and Four all occurred
within a four-day time period that was within the same time period as Count
One. All occurred within the same geographic area. The initial joinder of the
four counts was proper.
F.    Ineffective Assistance of Counsel
      On direct appeal, Cardona claims that he received ineffective assistance
of counsel. “We do not entertain ineffective assistance of counsel claims on direct
appeal when they have not been raised before the trial court, as the trial court
is the proper place to develop the record necessary for their resolution.” United
States v. Palmer, 122 F.3d 215, 221 (5th Cir. 1997). “[T]he exception to our

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general rule of non-review is typically satisfied only where the actual claim was
raised and developed in a post-trial motion to the district court.” United States
v. Stevens, 487 F.3d 232, 245 (5th Cir. 2007).       Cardona did not raise his
ineffective assistance of counsel claim in the district court. There is no record
available to review Cardona’s counsel’s decisions, particularly no affidavits from
his counsel. Therefore, Cardona’s claim will not be reviewed on direct appeal.
G.    Sentencing Factors
      Whittington challenges the district court’s calculation of drug quantity in
determining her offense level for sentencing. She did not file a written challenge
to her presentence report (“PSR”), but Whittington personally, not her attorney,
objected to the drug quantity at her sentencing hearing. Thus, she properly
objected to the PSR’s calculated drug quantity. Cardona appeals the district
court’s calculation of his criminal history category and the application of the
leader/organizer, obstruction of justice, and dangerous weapon enhancements
to his offense level. Cardona properly objected to his PSR. “We review the
district court’s application and interpretation of the sentencing guidelines de
novo. We review the district court’s factual findings at the sentencing hearing
for clear error.” United States v. Gallardo-Trapero, 185 F.3d 307, 323 (5th Cir.
1999) (internal citations omitted). “A factual finding is not clearly erroneous if
it is plausible in light of the record read as a whole.” United States v. Valencia,
44 F.3d 269, 272 (5th Cir. 1995).
1.    Drug quantity
            When determining the base offense level of a co-conspirator,
      the Sentencing Guidelines’ ‘reasonable foreseeability’ requirement
      necessitates a consideration of when the co-conspirator joined the
      conspiracy, what drug quantities were within the scope of the
      conspiratorial agreement, and of those drug quantities, the
      quantities that were reasonably foreseeable, prospectively only, by
      the defendant.



                                        17
                                       No. 03-50150

United States v. Turner, 319 F.3d 716, 724 (5th Cir. 2003). “The base offense
level of a co-conspirator at sentencing should reflect only the quantity of drugs
he reasonably foresees it is the object of the conspiracy to distribute after he
joins the conspiracy.” Id. (internal quotations omitted).
       Evidence at trial proved that Whittington became involved in the
conspiracy as early as February 2001, when the Cardonas sublet the brown
trailer from her and when a license plate registered to her was found on a car
carrying marijuana. Whittington was held responsible for a total of 1062
kilograms of marijuana. Of that amount, 570 kilograms were from the following
sources: 102 kilograms seized in the Jerry Wade investigation, which was the
marijuana found in a car with her license plate; 117 kilograms seized at the
brown trailer during April 2001 when Serrano and Cerda were arrested; 103
kilograms seized during August 2001 as part of the investigation into Juan
Kinisky; and 148 kilograms of marijuana seized in the Abelardo Rodriguez
investigation on September 23, 2001.4
       However, Whittington was also held responsible for the 592 kilograms of
marijuana smuggled by Rodriguez in four loads before his September 23, 2001
arrest. The district court’s finding that Rodriguez’s trafficking was reasonably
foreseeable was plausible in light of the record as a whole, as was the district
court’s calculation that those four loads weighed approximately 592 kilograms.
The district court’s factual findings holding Whittington responsible for
Rodriguez’s trafficking and for the calculation of the 592 kilograms were not
clearly erroneous. However, without additional information from the record that
Whittington entered the conspiracy earlier or that the four loads occurred after
February 2001, it was not plausible for the district court to find Whittington


       4
        Rodriguez, who had the alias “Lalo,” was proven to be associated with the Cardona
marijuana trafficking at trial and his trafficking would be reasonably foreseeable to occur even
after Whittington’s indictment.

                                              18
                                  No. 03-50150

responsible for those additional 592 kilograms smuggled by Rodriguez.
Therefore, Whittington’s sentence is vacated and remanded for resentencing.
      Because Whittington’s sentence has been vacated and remanded and her
ineffective assistance of counsel claim pertains only to sentencing, her claim of
ineffective assistance of counsel is moot.
2.    Career offender/criminal history category
      Cardona challenges the district court’s calculation of his criminal history
category. “Section [4A1.2(e)] establishes the time period within which prior
sentences are counted. As used in [§4A1.2(e)], the term ‘commencement of the
instant offense’ includes any relevant conduct.” U.S.S.G. § 4A1.2 cmt. n.7.
      What Cardona refers to as his career offender enhancement is really his
criminal history category. (His PSR indicates the career offender enhancement
was not applied to him because his base offense level was higher than the offense
level from the career offender table.) He argues that the indictment alleging his
conduct in January 1999 was improperly contrived to allow his 1984 sentence for
burglary of a habitation to be included in his criminal history category. He also
argues that the heroin conspiracy did not commence until 2001 and his 1984
sentence should not be applied in computing his criminal history category for
computation of his Sentencing Guidelines as to the heroin charges.
      Whether Cardona’s involvement in marijuana-trafficking in 1999 was
properly included in the indictment is immaterial. The district court’s finding
that the January 1999 arrest by Border Patrol agents was relevant to both the
marijuana and heroin charges of which Cardona was convicted was plausible in
light of the record as a whole.     The district court’s interpretation of the
Guidelines that Cardona’s 1984 sentence for burglary of a habitation was within
fifteen years of the commencement of the instant offenses was correct.




                                       19
                                    No. 03-50150

3.       Leader/organizer enhancement
         Cardona appeals the district court’s application of the four-point
leader/organizer enhancement to his offense level. “If the defendant was an
organizer or leader of a criminal activity that involved five or more participants
or was otherwise extensive, increase by 4 levels.” U.S.S.G. § 3B1.1(a). In
deciding whether a defendant undertook an organizational or leadership role, a
court should consider
         the exercise of decision making authority, the nature of
         participation in the commission of the offense, the recruitment of
         accomplices, the claimed right to a larger share of the fruits of the
         crime, the degree of participation in planning or organizing the
         offense, the nature and scope of the illegal activity, and the degree
         of control and authority exercised over others.
U.S.S.G. § 3B1.1 cmt. n.4. “At sentencing, the court . . . must—for any disputed
portion of the presentence report or other controverted matter—rule on the
dispute or determine that a ruling is unnecessary . . . .” FED. R. CRIM. P.
32(i)(3)(B).
         Cardona argues that the district court did not rule on the dispute over his
role as an organizer or leader. He also argues that he was not an organizer or
leader and that the criminal activity did not involve five or more participants or
was otherwise extensive.
         The transcript of Cardona’s sentencing hearing indicates the district court
specifically found that the testimony regarding Cardona’s leader/organizer role
was believable. The evidence offered at trial including Cardona’s statements, his
tape-recorded conversations with his wife and Whittington, and Garcia’s and
Cerda’s testimony all indicated that Cardona was the leader of his drug-
trafficking organization. The same evidence proved that five or more individuals
were involved in Cardona’s organization. Therefore, the district court did not err
in applying the four-point leader/organizer enhancement to Cardona’s offense
level.

                                          20
                                  No. 03-50150

4.    Obstruction of justice enhancement
      Cardona appeals the district court’s application of the obstruction of justice
enhancement to his offense level. He argues that there was no basis for the
district court to conclude that he had obstructed the administration of justice.
      If (A) the defendant willfully obstructed or impeded, or attempted
      to obstruct or impede, the administration of justice during the
      course of the investigation, prosecution, or sentencing of the instant
      offense of conviction, and (B) the obstructive conduct related to (i)
      the defendant’s offense of conviction and any relevant conduct; or (ii)
      a closely related offense, increase the offense level by 2 levels.
U.S.S.G. § 3C1.1.
      Garcia testified that Cardona’s wife threatened her children, arguably at
the direction of Cardona based upon the tape-recorded conversations admitted
at trial. Cardona even instructed his wife to visit Garcia. The district court did
not clearly err in finding that Cardona obstructed justice.
5.    Dangerous weapon enhancement
      Cardona challenges the district court’s application of the dangerous
weapon enhancement to his offense level. He argues the government failed to
prove that the weapon was present during any drug-trafficking activity, because,
he claims, there was no such activity before April 20, 2001. “If a dangerous
weapon (including a firearm) was possessed, increase by 2 levels.” U.S.S.G. §
2D1.1(b)(1).
      The Government has the burden of proof under §2D1.1 of showing
      by a preponderance of the evidence that a temporal and spatial
      relation existed between the weapon, the drug trafficking activity,
      and the defendant. Under this standard, the Government must
      show that the weapon was found in the same location where drugs
      or drug paraphernalia are stored or where part of the transaction
      occurred.
United States v. Salado, 339 F.3d 285, 293–94 (5th Cir. 2003) (internal citations
omitted).



                                        21
                                      No. 03-50150

       The government proved that Cardona was involved in a drug-trafficking
conspiracy beginning in January 1999.             The government also proved that
Cardona used the brown trailer as a location to receive drugs from Mexico.
Although the weapon was found in the brown trailer before the April 20, 2001
load, the district court did not clearly err in finding that the weapon was present
in the trailer while drug transactions occurred there, particularly considering
the testimony of witnesses that the trailer was used for trafficking.
H.     Booker Error5
       In order to preserve error under United States v. Booker, 543 U.S. 220
(2005), for a pre-Booker sentence, an objection “should be couched in terms that
facts used to enhance the sentence were not proven to a jury beyond a reasonable
doubt.” United States v. Rodarte-Vasquez, 488 F.3d 316, 320 (5th Cir. 2007).
Cardona made no such objection. Thus, his claim of Booker error for his pre-
Booker sentences is reviewed for plain error. Id. at 321.
       In Booker, the Court followed its rationale in Blakely and concluded
       that when the sentencing judge bound by mandatory Guidelines
       increased the sentencing range under the Guidelines based on facts
       not found by the jury or admitted by the defendant, the sentence
       violated defendant Booker’s Sixth Amendment right to a jury trial.
United States v. Mares, 402 F.3d 511, 518 (5th Cir. 2005) (citing Blakely v.
Washington, 542 U.S. 296, 298–306 (2004); Booker, 543 U.S. at 228–29).
Cardona argues that the district court similarly erred because its factual
findings in determining his Sentencing Guidelines range, including the career
offender enhancement, were not authorized by a jury verdict.6




       5
        Because Whittington’s sentence is vacated and remanded for resentencing, there is no
need to address her claim of Booker error here.
       6
       Although he cites Blakely v. Washington, 542 U.S. 296 (2004), in his pro se brief,
Cardona’s argument is properly made under Booker and we analyze the issue accordingly.

                                            22
                                  No. 03-50150

      We find plain error when: (1) there was an error; (2) the error was clear
and obvious; and (3) the error affected the defendant’s substantial rights. United
States v. Olano, 507 U.S. 725, 732–37 (1993). Cardona satisfies “the first two
prongs of the plain-error test because the district court committed Sixth
Amendment Booker error and because that error is now plain after Booker.”
United States v. Infante, 404 F.3d 376, 394 (5th Cir. 2005). To satisfy the third
prong of the plain-error test, Cardona must show “with a probability sufficient
to undermine confidence in the outcome, that if the judge had sentenced him
under an advisory sentencing regime rather than a mandatory one, he would
have received a lesser sentence.” Id. at 395.
      Even after Booker, “[t]he sentencing judge is entitled to find by a
preponderance of the evidence all the facts relevant to the determination of a
Guideline sentencing range and all facts relevant to the determination of a non-
Guidelines sentence.” United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
Thus, the district court’s findings regarding Cardona’s sentence, including
findings of prior convictions for his criminal history category computation, were
not in error.
      Before this Court will vacate his sentence after Booker under a plain-error
standard of review, Cardona must show that the plain error affected his
substantial rights. Cardona’s Sentencing Guidelines calculation recommended
a range of 360 months to life imprisonment. The district court sentenced him to
480 months. Cardona’s sentence, which was ten years over the lower limit of his
Guidelines range, indicates that he would have received the same sentence
under an advisory sentencing regime. He has failed to show that he would have
received a lesser sentence under an advisory sentencing regime. Therefore, the
district court’s error did not affect his substantial rights and this Court will not
vacate his sentence.
I.    Law Library Access

                                        23
                                      No. 03-50150

       Cardona claims the district court erred in failing to provide him access to
a law library and visitation and correspondence with friends and family.
“[H]aving rejected the assistance of court-appointed counsel, [a defendant] ha[s]
no constitutional right to access a law library in preparing the pro se defense of
his criminal trial.” Degrate v. Godwin, 84 F.3d 768, 769 (5th Cir. 1996) (per
curiam). Cardona claims that his right to represent himself at trial was denied
by the district court and he was then prejudiced because communication with his
family and friends was restricted and he had no law library access. The record
indicates that Cardona chose to represent himself after the appointment of his
third court-appointed counsel. Cardona moved for access to a law library and
visitation and personal correspondence which was denied after a hearing.7 At
the hearing, Cardona’s third attorney, who acted as standby counsel, agreed to
assist him with legal materials. Soon thereafter, Cardona moved to cease
representing himself. His standby counsel was appointed to represent him and
represented him through trial. After trial, Cardona rejected his court-appointed
counsel again and represented himself at his sentencing hearing.
       There is no indication that Cardona was denied the right to represent
himself. He made his own motion to be represented at trial. During the period
when he did represent himself, both before trial and after, having fired his court-
appointed attorney, he had no right to law library access. Cardona’s argument
that Degrate is not the law because it is a per curiam decision is meritless and
his case is not distinguishable from Degrate. Having rejected the assistance of
court-appointed attorneys, neither Degrate nor Cardona had a right to access a
law library. Cardona’s ability to visit with friends and family is not material to
his conviction, particularly because he was either represented by counsel or had
standby counsel who had the ability to communicate with potential witnesses for

       7
        The court found that there was not a full law library where Cardona was incarcerated,
nor was there a facility with a full law library to which Cardona could be moved.

                                             24
                                  No. 03-50150

him. Therefore, the district court did not err in denying Cardona’s pretrial
motions for access to a law library and visitation and correspondence with family
and friends.
J.    Continuance for Sentencing Hearing
      Cardona appeals the denial of a second continuance for his sentencing
hearing. He also claims that he was wrongfully denied access to a law library
for that hearing. “To prevail on this appeal, he must demonstrate that the
district [court] abused its discretion and that he suffered prejudice.” United
States v. Peden, 891 F.2d 514, 519 (5th Cir. 1989) (internal citations omitted).
After his conviction, Cardona moved, on October 9, 2002, to proceed pro se and
have access to a law library. After a hearing by a magistrate judge, the district
court adopted the magistrate’s recommendations and allowed Cardona to
proceed pro se, but denied him access to a law library. He was provided a copy
of his PSR on December 9, 2002 and his sentencing hearing was scheduled for
December 16, 2002. Cardona filed objections to his PSR and moved for a
continuance. His motion for a continuance was granted and his sentencing was
continued to February 21, 2003. Cardona moved for a second continuance at the
hearing, citing his lack of access to a law library and his desire to subpoena the
state chemist who had weighed the drugs admitted against Cardona at trial, but
the district court denied his motion.
      There is no indication that the district court abused its discretion when it
denied Cardona’s second motion to continue. The district court had already
accepted that the PSR was not timely provided to Cardona and continued the
hearing. He suffered no prejudice because he had ample time to review the PSR
and consult with standby counsel appointed to assist him. The chemist he
requested to subpoena had already testified at trial.       As discussed above,
Cardona had no right to access a law library after firing his court-appointed
attorney.

                                        25
                                  No. 03-50150

K.    Various Evidentiary Issues
      Cardona appeals the admission of evidence of his membership in the
Mexican Mafia, a U.S. Customs agent’s lay opinion testimony as improper expert
testimony, testimony regarding an informant’s tip, and hearsay of codefendant
Serrano. This Court “review[s] a district court’s evidentiary rulings for abuse of
discretion” subject to harmless-error analysis. United States v. Cantu, 167 F.3d
198, 203 (5th Cir. 1999). “[F]or any of the evidentiary rulings to be reversible
error, the admission of the evidence in question must have substantially
prejudiced [the defendant’s] rights.” United States v. Sanders, 343 F.3d 511, 519
(5th Cir. 2003).
1.    Mexican Mafia membership
      “Evidence of other acts is intrinsic when the evidence of the other act and
the evidence of the crime charged are inextricably intertwined or both acts are
part of a single criminal episode or other acts were necessary preliminaries to
the crime charged.” United States v. Miranda, 248 F.3d 434, 440 (5th Cir. 2001)
(internal quotations omitted).
      Cardona objected to the admission of some of the testimony regarding his
membership in the Mexican Mafia.          He claims that the evidence of his
membership in the Mexican Mafia was improperly admitted under Federal Rule
of Evidence 404(b). However, evidence of his Mexican Mafia membership was
inextricably intertwined with the two drug conspiracies with which he was
charged. The government alleged that the heroin was to be smuggled to
incarcerated Mexican Mafia members. A cooperating codefendant caught
trafficking in marijuana as part of the marijuana conspiracy and possession
charges was a member of the Mexican Mafia. Cardona’s membership and high
rank in the gang was a necessary prerequisite to prove his involvement as the
leader of a large narcotics-trafficking organization. Therefore, the district court



                                        26
                                  No. 03-50150

did not abuse its discretion in admitting evidence of Cardona’s membership in
the Mexican Mafia.
2.    Agent testimony
            If the witness is not testifying as an expert, the witness’
      testimony in the form of opinions or inferences is limited to those
      opinions or inferences which are (a) rationally based on the
      perception of the witness, (b) helpful to a clear understanding of the
      witness’ testimony or the determination of a fact in issue, and (c) not
      based on scientific, technical, or other specialized knowledge within
      the scope of Rule 702.
FED. R. EVID. 701.
      [An investigator’s] extensive participation in the investigation of [a]
      conspiracy, including surveillance, undercover purchases of drugs,
      debriefings of cooperating witnesses familiar with the drug
      negotiations of the defendants, and the monitoring and translating
      of intercepted telephone conversations, allow[] him to form opinions
      concerning the meaning of certain code words used in [a] drug ring
      based on his personal perceptions.

Miranda, 248 F.3d at 441. An agent with such participation in an investigation
may testify to those opinions under Rule 701. Id.
      Cardona objected to the admission of some of the testimony of U.S.
Customs Senior Special Agent McCarthy.           He claims the testimony was
improperly admitted expert testimony. McCarthy participated extensively in the
Cardona investigation, including interviewing the defendants on various
occasions and reviewing and correcting the transcriptions of Cardona’s tape-
recorded conversations. Under Miranda, the district court did not abuse its
discretion in admitting McCarthy’s lay opinions regarding the conspiracy based
upon his personal perceptions.
      However, a review of the record supports our holding that McCarthy’s
testimony regarding drug-trafficking methods in general was improperly
admitted expert testimony. “The rule is well-established that an experienced
narcotics agent may testify about the significance of certain conduct or methods

                                        27
                                  No. 03-50150

of operation unique to the drug distribution business.” United States v.
Washington, 44 F.3d 1271, 1283 (5th Cir. 1995). While McCarthy’s experience
may have qualified him as an expert, the district court did not qualify him as one
at Cardona’s trial. He testified about drug traffickers’ use of cellular telephones,
vehicles, and cash that went beyond the proper scope of his lay opinion
testimony.   Although the district court abused its discretion in admitting
McCarthy’s testimony regarding the use of those items by drug distribution
businesses in general without qualifying him as an expert, the error was
harmless. The testimony was of minimal assistance in the government’s case
compared to the direct evidence against Cardona, particularly his statements to
fellow inmates, the testimony of codefendants, and taped conversations with his
wife. The portions of McCarthy’s testimony that were improperly admitted did
not substantially prejudice Cardona’s rights.
3.    Informant’s tip
      Cardona argues that the trial court erred when it allowed, over his
objection, a reference to an informant’s tip from Del Rio Police Detective Steve
Hughs which was elicited by Cardona’s counsel on cross-examination. The
testimony was as follows:
      Q:     Agent, there’s no serial number on this marijuana, is there?
      A:     No, sir, just a lab number.
      Q:     No. I mean, when you guys get it, it doesn’t have like
             property of so and so?
      A:     A number is issued to it.
      Q:     You’re not following my question, sir. Does it say “property of
             Jose Cardona” on any of that marijuana?
      A:     No, sir. No, sir, does not. [sic]
      Q:     So, you have no evidence whatsoever as to whether or not this
             is in any way connected to Mr. Cardona?
      A:     Just from the information we had from the initial informants.
Cardona claims this evidence was improper hearsay and violated his Sixth
Amendment confrontation rights.


                                        28
                                  No. 03-50150

      This Court reviews de novo a timely Confrontation Clause objection,
subject to harmless-error analysis. United States v. Acosta, 475 F.3d 677, 680
(5th Cir. 2007). In Crawford v. Washington, the Supreme Court held that
“[w]here testimonial statements are at issue, the only indicium of reliability
sufficient to satisfy constitutional demands is the one the [Sixth Amendment]
actually prescribes: confrontation.” 541 U.S. 36, 68–69 (2004). Even if the
admission of the testimony regarding an informant’s tip were a violation of
Crawford, the error was invited. “If a defendant injects otherwise inadmissible
evidence, the defense cannot later object to such invited error.” Acosta, 475 F.3d
at 683 (internal quotations omitted). This Court has held that cross-examination
that impeached a witness’s credibility opened the door for the government to
introduce testimony that otherwise violated Crawford to rebut the defendant’s
“insinuations.” Id. at 684–85. Detective Hughs’s testimony was not admitted
by the government on direct or redirect, but rather on cross-examination.
Cardona’s own counsel repeatedly asked questions implying that the detective
had no knowledge of Cardona’s interest in the marijuana. When accusing the
detective of having no information of Cardona’s connection to the marijuana,
Cardona invited the witness to provide testimony regarding the informant’s tip.
Because Cardona invited the error, he cannot complain of its admission on
appeal.
4.    Serrano hearsay
      Cardona claims the district court erred by admitting cooperating
codefendant Cerda’s testimony that codefendant Serrano told him that he
received marijuana for Cardona. He claims this was inadmissible hearsay and
a violation of his Sixth Amendment confrontation rights.
      In Crawford, the Supreme Court held that “[w]here testimonial evidence
is at issue . . . the Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.” 541 U.S. at 68.

                                       29
                                  No. 03-50150

The Supreme Court declined to define “testimonial,” but it determined that “it
applies at a minimum to prior testimony at a preliminary hearing, before a
grand jury, or at a former trial; and to police interrogations.” Id. There is no
basis to conclude that Serrano’s statements to Cerda were in any way
testimonial. Therefore, Cardona’s Sixth Amendment rights are not at issue.
      “The hearsay exception for statements against interest applies only where
(1) the declarant is unavailable; (2) the statement tends to subject the defendant
to criminal liability, such that a reasonable person in his position would not have
made the statement unless he believed it to be true; and (3) the statement is
corroborated by circumstances clearly indicating its trustworthiness.” United
States v. Dixon, 413 F.3d 520, 525 (5th Cir. 2005). Cardona objected when Cerda
was first asked for whom Serrano was working. The admission of the testimony
that Serrano received marijuana for Cardona is therefore reviewed for abuse of
discretion.
      Serrano was a codefendant and unavailable to testify, given the
incriminating nature of his statement that he received shipments of marijuana
for Cardona. The circumstances during which the statement was made clearly
indicated its trustworthiness. Serrano had recruited Cerda to assist him in
receiving shipments of marijuana at Cardona’s trailer.              Under those
circumstances, this Court cannot hold that the district court abused its
discretion in admitting the statements.
L.    Jury Instructions
      Cardona claims the district erred in failing to provide the accomplice jury
instruction with regard to four witnesses against him: Benevides, Fuentes,
Guerra, and Sparkman. All four had been in custody with Cardona, but none
were his accomplices. The record indicates the district court gave Fifth Circuit
Pattern Jury Instruction 1.08 regarding the credibility of witnesses and
Instruction 1.15 regarding codefendant accomplices who have entered a plea

                                        30
                                  No. 03-50150

agreement. There is no indication that the district court failed to provide the
proper instructions as Cardona claims.
M.    Improper Prosecutorial Remark
      Cardona argues that he was denied a fair trial when the prosecutor was
allowed to refer to him as “the devil.” When a defendant fails to make a
contemporaneous objection to a prosecutor’s alleged improper remark, this Court
reviews any such remark for plain error. United States v. Mares, 402 F.3d 511,
515 (5th Cir. 2005).
      When reviewing a claim of an improper prosecutorial remark, this Court
first asks whether the prosecutor made an improper remark and then asks
whether the remark affected the substantive rights of the defendant. United
States v. Munoz, 150 F.3d 401, 414–15 (5th Cir. 1998). To determine whether
the remark affected substantive rights, this Court looks at “(1) the magnitude
of the statement’s prejudice, (2) the effect of any cautionary instructions given,
and (3) the strength of the evidence of the defendant’s guilt.” Id. at 415 (internal
quotation omitted).
      During opening statements, the prosecutor told the jury that it would hear
what some witnesses would expect the government to do in return for their
truthful testimony. The prosecutor concluded: “Throughout the trial you won’t
hear the United States apologizing for having to make those deals with the
sinners who are paying their penance so that we can convict the person that we
believe to be the devil here today.” There was no objection. During its rebuttal
at closing arguments, the prosecutor stated:
      When I began this trial, I told you I wouldn’t make any apologies for
      making the deals with the sinners that I made on behalf of the
      United States to convict that man, the devil. And I’m not going to
      start now. They’re bad people. And I certainly wouldn’t want to
      invite them home to your houses, just like [defense counsel]
      wouldn’t want to invite them home to his. They’ll be in jail for a
      while.

                                        31
                                  No. 03-50150

There was no objection.
      The prosecutor’s remarks cannot be characterized as simply a
colloquialism because he appeared to be referring to Cardona in each statement.
We assume without deciding that referring to a defendant as “the devil” is
improper. Under the high burden of plain error, however, we hold that such
references did not affect Cardona’s substantial rights.        Although such a
statement, made during Easter week, as Cardona notes, would negatively
impact the jury, the specific wording of the statement was designed to explain
the plea agreements that the government made with unsavory characters that
testified against Cardona. The statements were minimized by the context in
which they were made and would be of little prejudice. Although no cautionary
instructions were given, Cardona did not object to the remarks.             Most
importantly, the analysis of the sufficiency of the evidence of Cardona’s
convictions under the same plain-error standard of review indicates that
Cardona’s substantial rights were not affected by the prosecutor’s remarks.
N.    Giglio/Brady
      Cardona claims that he was not provided information regarding Garcia’s
indictment for a separate drug charge in violation of Giglio v. United States, 405
U.S. 150 (1972) and Brady v. Maryland, 373 U.S. 83 (1963). However, this claim
was not raised at the district court level and there is no record available to
review his claim. “Such Brady challenges present fact-based judgments that
cannot be adequately first made on appellate review. That is why Brady
challenges must be brought to the district court’s attention, winnowed by the
trial judge, and made part of the record through a motion for a new trial.” United
States v. Gonzales, 436 F.3d 560, 580 (5th Cir. 2006). Therefore, we will not
reverse Cardona’s conviction on the basis of his Brady/Giglio claim.
                              III. CONCLUSION


                                       32
                            No. 03-50150

     Cardona’s convictions and sentence are AFFIRMED. Kelly Cardona’s
convictions are AFFIRMED.     Whittington’s conviction is AFFIRMED.
Whittington’s sentence is VACATED and REMANDED for resentencing.




                                 33
