                      UNITED STATES COURT OF APPEALS

                          For the Fifth Circuit



                                  No. 94-41165


                         UNITED STATES OF AMERICA

                                                                         Appellee,

                                     VERSUS

                               JUAN GONZALES and
                              RAMSEY RAMIRO MUNIZ,

                                                                        Appellants.




             Appeal from the United States District Court
                   for the Eastern District of Texas



                                 March 20, 1996



Before REYNALDO G. GARZA, WIENER, and STEWART, Circuit

     Judges.


PER CURIAM:


                                   BACKGROUND

     Appellants, Ramsey Ramiro Muniz and Juan Gonzales, challenge

their   convictions     for     possession    of    cocaine      with    intent   to

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

conspiring    to    possess    cocaine   with      intent   to   distribute,      in


                                         1
violation of 21 U.S.C. §846.         Muniz and Gonzales were arrested in

Lewisville,   Texas,   a    Dallas    suburb,   as   a   result   of   a   DEA

investigation in March 1994.         The DEA was conducting surveillance

of a suspected drug trafficker, Donacio Medina, who arrived in

Dallas on March 10.        Muniz, who allegedly had come to Dallas on

legal business with Gonzales at roughly the same time, picked up

Medina at Love Field and took him to Frisco, Texas.1              Muniz and

Medina were observed by Dallas DEA agents who had been informed by

Houston DEA agents of Medina's trip to Dallas.           DEA Agent Elliott

was supplied with additional information that Medina was with

Appellants at the Ramada Inn in Lewisville.2


      Muniz was a former lawyer and political figure, championing
the rights of Mexican-Americans in the early 1970s, until his
involvement in drug trafficking brought him a prison sentence and
disbarment. After release from prison, Muniz worked as a legal
assistant to various firms, helping them obtain clients.        He
claimed to be in Dallas to find clients for a Corpus Christi
lawyer, Ron Barroso.    Gonzales was an unemployed construction
worker who occasionally served as a driver for Muniz. Gonzales had
driven Muniz to Dallas on March 8 from Houston. Muniz had already
met with Medina in Houston between February 27 and March 8
ostensibly to arrange legal services for a member of Medina's
family. According to Appellants, the events in Dallas relate to
continued discussion of this possibility.
      2
         Elliott confirmed Muniz's and Medina's presence at the
Ramada through telephone calls and interviews with the motel staff.
Elliott also noted a white Mercury Topaz in the parking lot, the
same model in which the cocaine was found. A shadowy figure named
"Hernandez" enters the story at this point. Medina was allegedly
meeting with him at the Classic Inn in Fort Worth around the same
time that negotiations were underway with Gonzales and Muniz.
Muniz argued that he heard someone else with Medina at the Ramada
on the night of March 10 and that person was Hernandez.
Hernandez's name will appear at sporadic points in this opinion
though little is known about him. The relevance of this character
was unknown to anyone except Muniz who tried to subpoena the desk
clerk of the Classic Inn late at trial to verify that Hernandez was
at the Classic Inn. The district court's refusal to enforce that
late request is discussed infra.

                                       2
     On March 11, Agent Elliott and four others set up surveillance

of   Medina's   room   (218)   at   the   Ramada.   That   morning   at

approximately 9:00 AM, the agents observed Medina and Gonzales

leave room 218 and walk down to the lobby.     Muniz joined them there

a few minutes later.    The three went to Owens' Restaurant, next to

the motel, for breakfast. Seated within earshot were Agents Chavez

and Crawford.     Chavez, fluent in Spanish, heard Medina say: "I

don't know them too well, but the deal will go down and there's

going to be a meeting at ten o'clock."3     Appellants and Medina were

in the restaurant about a half hour but the agents heard and

understood no other words.     Appellants and Medina returned to the

motel where Medina loaded his bags into Gonzales's Toyota Camry.

Gonzales with Muniz drove Medina to Love Field. 4      Medina went to

the boarding area and was not seen again.

     On the return to the Ramada, Appellants stopped three times;

twice Gonzales used a pay phone and once he stopped at a service

station but did not exit the vehicle.       Gonzales dropped off Muniz

at the Ramada and went one mile to a nearby La Quinta Inn.       Muniz

was seen entering a white Mercury Topaz which he drove to the La

Quinta as well.   The five DEA agents followed Gonzales and Muniz to

the La Quinta, requesting assistance from local law enforcement.

          3
          Muniz claimed this comment was made in reference to
fundraising efforts to pay for legal representation for Medina's
family member.
      4
       Muniz allegedly planned to return home on the afternoon of
March 11 though Gonzales intended to stay in Dallas. Muniz had
made the plane reservations for Medina and someone named Hernandez.
The name Hernandez was on a slip of paper with flight information
found on Muniz.

                                    3
            Gonzales parked his Camry at the entrance to the La

Quinta.    DEA Agent Crawford met Gonzales at the door of the motel

and introduced himself.      Crawford requested identification from

Gonzales   and,   on   discovering   that   Gonzales    was   not   a   local

resident, asked him his purpose in Dallas. Gonzales claimed he had

come from Houston seeking employment. To Crawford's question as to

whether he was traveling with anyone, Gonzales stated that he had

come alone.    Crawford asked for Gonzales's consent to search the

Camry.    Gonzales assented, but Crawford discovered nothing.

     Agent Elliott arrived and asked Gonzales similar questions.

Gonzales stated that he had come for work and that no one else had

been in his car recently.       Elliott also asked if Gonzales was

familiar with the man driving the white Topaz.            Gonzales denied

knowing him.   Crawford asked for and received permission to search

the white Topaz which Gonzales granted.

     Muniz had parked at a different section of the La Quinta Inn

parking lot.   He locked the car and headed away from the hotel past

two restaurants toward a Honda dealership.             He looked over his

shoulder at the parking lot as he walked off.           He also saw Agent

Chavez and waved at him.     On his own admission, Muniz had seen the

marked police cars there, suspected possible trouble, and sought to

get to a phone and talk to a lawyer.

     Agents Chavez and Cash pursued Muniz, intercepting him at the

Honda dealership.      They stopped him, identified themselves and

requested identification from him.          Muniz was unable to produce

anything but his business card.          The agents requested and were


                                     4
granted permission to pat down Muniz for weapons.                       Muniz twice

denied having driven a car despite Agent Chavez's statement that he

had seen Muniz in the white Topaz.5                Agent Cash had a few more

questions to which Muniz explained his legal business in Dallas,

told of his arrival in Dallas, denied knowing about the white car,

and stated that a man named Hernandez had driven him to the La

Quinta.          In response to other questions, Muniz confirmed that

Gonzales was the man in the Camry and claimed that he (Muniz), was

no longer "in the business."

      To escape a growing crowd, the agents suggested that the

conversation be continued at the La Quinta.                    Muniz voluntarily

consented to go with them to the La Quinta.                 There, Cash conferred

with Elliott as to what had been learned from Muniz.                Crawford went

to   assist       Chavez.    Cash    again     questioned    Gonzales    about   his

residence         and   purpose     in   Dallas.      Gonzales     repeated      his

explanation, stating that he had driven to Dallas early that

morning.6

      Upon request by the agents, Muniz went and sat on a grassy

area near the Topaz.7         The court found no evidence of coercion in

the agents' request.         Chavez, meanwhile, discovered that the white

Topaz was rented in the name of Gonzales and was three days


         5
        Muniz asserted that these fabrications emerged from his
state of panic.
     6
      Gonzales left Dallas and drove to his home in Mathis, Texas,
on a family matter on March 9 but returned to Dallas on March 11.
             7
          According to Appellants, one hour passed before the
investigation culminated in the discovery of the cocaine.

                                           5
overdue.8          Chavez asked if he could search Muniz for the key.

Muniz reportedly assented.               Chavez found the key in Muniz's sock.

Muniz did not respond when asked why he had put the key in his

sock.           Crawford    took   the   keys    and   requested   permission   from

Gonzales to open the trunk to which Gonzales stated that that was

not a problem.9

     Before Crawford could open the trunk, a police canine unit

arrived and the dog alerted to the trunk of the Topaz.                     Crawford

asked Muniz if he had anything to say about the car, but Muniz

again said nothing.           Inside the trunk were 40 kilograms of 88% pure

powder cocaine in boxes.               Appellants were given Miranda warnings

and then formally arrested.

     Appellants            filed   a   pretrial   motion   to   suppress   evidence

gathered after the stops, namely the contents of the Topaz and its

keys found on Muniz. After an evidentiary hearing, the trial court

denied that motion for the reasons stated in oral and written

rulings. The court also denied Muniz's at-trial request to enforce

a subpoena for the desk clerk of the Classic Inn to come verify a

registration record for a man named Hernandez.                     Appellants were

convicted and the court sentenced Muniz to life in prison and

Gonzales to 168 months.10              Their timely appeals are now before the

            8
        Gonzales rented the Topaz on March 5, 1994, from Budget
Rental Car in Houston, Texas.
        9
       Muniz claims that the agent first requested his permission
to open the vehicle but that he refused.
        10
        Both defendants had prior drug convictions. Muniz's two
prior drug offenses resulted in a sentence enhancement to life
imprisonment.

                                             6
Court.



                                          DISCUSSION

       Gonzales and Muniz argue that the motions to suppress should

have been granted and that evidence of possession and conspiracy

was insufficient to support the convictions.                      Muniz additionally

argues that the court wrongfully failed to enforce his subpoena,

that        the     enhanced      sentence    was     unconstitutional      and   also

impermissible because the government failed to give proper notice

that    it        would   seek    an   enhanced     sentence   based   on   the   prior

convictions.11            These issues will be dealt with in turn.



A.     The Appellants' Motions to Suppress.

       Prior to trial, appellants filed separate motions to suppress.

Gonzales claimed that the stop, arrest, search and interrogation

and    the        seizure    of   items    and    papers   were    effected   without

reasonable suspicion or probable cause. Muniz also alleges that he

was arrested without probable cause; that any detention exceeded

the scope of a permissible detention based on reasonable suspicion;

and that the seizure of the key and eliciting of statements were

illegal.           The government does not assume that the stops were

       11
        Gonzales also attacks the reliability of the narcotics dog
in one paragraph, arguing that no probable cause existed because of
the dog's unreliability. The court found the dog to be reliable,
rejecting the evidence of Gonzales at the suppression hearing. The
government supports its arguments based on consent and reasonable
suspicion and scarcely mentions the issue of the dog on this
appeal. Because Gonzales has shown no clear error in the district
court's finding on the reliability of the drug dog, we will not
disturb the finding.

                                              7
investigative detentions but asserts that the encounters were at

least initially consensual, that the searches were by consent, and

that even if the encounters were Terry stops, reasonable suspicion

existed to detain the Appellants.         The government also contests

Appellants' standing to challenge the search of the Topaz.         At the

suppression hearing, Gonzales did not testify or articulate any

factual dispute and provided expert testimony only as to the

reliability of the drug dog.      Muniz conceded that he had no privacy

interest in the vehicle but complained that the statements elicited

from him and the search resulting in the keys were both unlawful.

Muniz also testified as to alleged coercive behavior on the part of

the agents. The district court orally denied both motions, stating

that there was reasonable suspicion to make the stop, that there

was probable cause to make the arrest later, that the dog was

reasonably reliable and that the consents given to search were

voluntary.

     Subsequently, the court issued a written order on Muniz's

motion, finding inter alia the following facts: 1) prior to March

11, 1994, the agents suspected that appellants were involved in

illegal   drug   activity;   2)   Agent   Chavez   determined   that   the

restaurant conversation was regarding a drug deal, based on his law

enforcement experience; 3) Muniz was not in custody until the

actual arrest, no reasonable person of Muniz's intelligence would

have thought he was, he was never told he had to answer questions

or could not leave the area, and he was aware of his right to

refrain from giving consent; 4) the search and questioning of Muniz


                                     8
were voluntary; 5) the agents were dressed in civilian clothes and

displayed no weapons; 6) Muniz denied knowledge of the car; 7) and

Muniz was not arrested until after the discovery of the cocaine.

The court issued no written order on Gonzales's motion.

     Appellate review of a district court's ruling on a motion to

suppress based on testimony at a suppression hearing is subject to

the clearly erroneous standard.       U.S. v. Cooper, 43 F.3d 140, 144

(5th Cir. 1995).   Questions of law are of course reviewed de novo,

but questions of fact are accepted unless the district court's

findings were clearly erroneous, or influenced by an incorrect view

of the law.   U.S. v. Muniz-Melchor, 894 F.2d 1430, 1433 (5th Cir.),

cert. denied 495 U.S. 923 (1990).      Furthermore, the evidence must

be viewed in the light most favorable to the party prevailing

below, except where such a view is either not consistent with the

district court's findings or is clearly erroneous considering the

evidence as a whole.   U.S. v. Shabazz, 993 F.2d 431, 435 (5th Cir.

1993).     We affirm the lower court's denial of the Appellants'

motions.



     1.     Appellants' standing to challenge the search of the
            Topaz.

     The government contends that appellants lack standing to

challenge the search of the Topaz.      Muniz conceded at the hearing

that he lacked standing to challenge the rental car search, that he

had no expectation of privacy in the rental car.           Thus, this

discussion will focus on Gonzales.         The government argues that

although Gonzales leased the rental car, the fact that he did not

                                  9
drive the car to the La Quinta and willingly gave the car keys to

Muniz eliminated his expectation of privacy in the car.              U.S. v.

Nunn, 525 F.2d 958, 959 (5th Cir. 1976) (court found lack of

standing for owner of truck who was not driving it when it was

seized with illegal immigrants lying in the truck's open bed).

     The government concedes that it did not raise the issue of

standing before the district court but argues for an exception to

waiver.   U.S. v. Amuny, 767 F.2d 1113, 1121 (5th Cir. 1985).              It

offers this Circuit's exception to the waiver rule for situations

where "no facts are adduced [by the defendant] at the hearing from

which the government could reasonably have inferred the existence

of the defendant's standing."      U.S. v. Cardona, 955 F.2d 976, 981-

982 (5th Cir.), cert. denied 113 S.Ct 381 (1992) (exception to

waiver allowed when defendant had no ownership interest in the

vehicle and did not focus on the search of the car at the hearing).

The government's   argument   is    based    on    the   facts   noted   above

(Gonzales turned over the keys and let Muniz drive to the La

Quinta) and the fact that Gonzales did not assert standing at the

hearing or testify at the hearing.          The government thus contends

that it was not presented with facts from which it could infer that

Gonzales had an expectation of privacy in the Topaz.

     The question before the Court is whether facts were adduced

from which the government could have inferred that Gonzales was

claiming a privacy interest.       Such a claim would have required a

response on the part of the government.           Gonzales leased the car,

drove it around extensively, and, as the government notes, was


                                    10
asked by the agents if they could search the vehicle.         According to

the government, Gonzales raised none of these fact concerns in a

brief or testimony. Gonzales did however inquire about the vehicle

on cross-examination and not just in regard to the drug dog.          This

should have triggered a government response; thus, the government

waived the issue. Gonzales has standing to challenge the search of

the Topaz.



     2.    Nature of the initial encounters between appellants and
           agents.

     The district court made a specific finding with regard to

Muniz that the initial part of the encounter was a mere consensual

encounter, unregulated by the Fourth Amendment.            This finding of

fact is subject to reversal only if clearly erroneous.            U.S. v.

Butler, 988 F.2d 537, 541 (5th Cir.), cert. denied 126 L.Ed.2d 359

(1993).   No specific finding on this question was made with regard

to Gonzales.   Analysis of the initial part of the Gonzales's stop

is nonetheless necessary in determining the propriety of the

court's   general   denial    of    Gonzales's    motion    to   suppress.

Appellants   contend   that   the   stops   amounted   to    investigative

detention without reasonable suspicion.          The government contends

that the facts surrounding the encounter, viewed in the light most

favorable to the prevailing party, show that the initial part of

the encounters were consensual.

     Gonzales argues that he did not feel free to go and that the

initial stop was an investigative detention.           An agent stopped

Gonzales at the door to the La Quinta, identified himself and asked

                                    11
Gonzales for identification.           Then the agent asked Gonzales's

purpose to be in Dallas and asked permission to search Gonzales's

Toyota Camry.      The agent also stated that the car that Gonzales was

traveling in was suspected of being used to transport drugs.

During this discussion, another agent arrived. Shortly thereafter,

Gonzales lied about the Topaz.

       Muniz     merely   assumes     that   the    initial    stop   was   an

investigative detention. Two agents caught up with Muniz as he was

approaching a car dealership. Muniz had seen agents in the parking

lot of the La Quinta and had left the scene.           They stopped him and

patted him down; the court found that Muniz consented to the frisk

for weapons. The agents asked for identification and posed several

questions to him about his purpose in Dallas and about the white

car.     As a crowd formed, the agents allegedly asked Muniz to

accompany them to the La Quinta.             According to the government,

Muniz voluntarily consented to go with them to the La Quinta.

There, Muniz was questioned again and allegedly agreed to another

frisk.       That search resulted in the find of the Topaz keys in

Muniz's sock.

       The     relevant   test   in   determining    whether    the   initial

encounters described above were actually investigative detentions,

enunciated in Florida v. Bostick, 501 U.S. 429, 434 (1991), is

whether a reasonable person in the circumstances presented would

feel free to disregard the agents and go about his or her business.

The government offers the following facts in defense of the court's

finding: 1) the agents wore no uniforms and displayed no weapons;


                                       12
2) the agents did not overwhelm appellants in numbers; 3) the

agents identified themselves truthfully and asked permission to

speak with appellants; 4) the encounters occurred in a public open

place and appellants' movements were not blocked; 5) no threats

were made.    According to the government, the circumstances, when

viewed in their totality, support a conclusion that the initial

conversations were not seizures.

      There is no indication from the facts of the initial stop of

Gonzales that the agents made any display of authority beyond

identifying themselves or attempted to control Gonzales's movement.

In U.S. v. Galberth, 846 F.2d 983, 989 (5th Cir.), cert. denied 488

U.S. 865 (1988), this Circuit upheld a lower court finding that an

encounter    was   consensual    where      the   police    merely   identified

themselves, requested identification and asked questions. See also

U.S. v. Encarnacion-Galvez, 964 F.2d 402, 410 (5th Cir.) (encounter

consensual where police just identified themselves, requested proof

of   citizenship,    but   did   not     attempt    to     block   movement   of

defendant), cert. denied 506 U.S. 945 (1992);              U.S. v. Valdiosera-

Godinez, 932 F.2d 1093, 1099 and n.2 (5th Cir.) (neither the fact

that the DEA agents identified themselves nor the presence of other

officers automatically converted encounters into an investigatory

detention), cert. denied 124 L.Ed.2d 275 (1993).                   There is one

troubling element: the officers informed Gonzales that the car he

was driving was suspected of being used to transport drugs.                This

may have pushed the encounter, which was initially consensual, to

being a Terry stop.


                                       13
     This Circuit, in Galberth, 846 F.2d at 990 n.11, noted that a

statement by a law enforcement officer that an individual is

suspected of illegal activity is persuasive evidence that the

fourth amendment has been implicated. See also Valdiosera-Godinez,

932 F.2d at 1099 (citing U.S. v. Berry, 670 F.2d 583, 597 (5th Cir.

Unit B 1982) (statement by officer that "'individuals are suspected

of smuggling drugs'" is a factor to be given great weight in

determining whether the stop was investigative detention).     The

statement by the agent in the instant case about Gonzales's car

being suspected may have implicated the Fourth Amendment. However,

as discussed below, the agents likely had reasonable suspicion to

detain him at that point anyway and the stop still appears, at its

initial phase, to have been consensual.

     The situation with Muniz is only slightly more problematic.

The police initially caught up with Muniz and then asked to frisk

him. Apparently, Muniz voluntarily agreed to be frisked and get in

the car. See discussion infra.   There is no evidence of coercion.

He disputes this characterization but, viewed in the light most

favorable to the government, the record supports the finding of the

trial court that the stop of Muniz was at least initially a

consensual encounter.



     3.   Consent to the searches of person and automobile.

     Appellants challenge the legality of the searches performed by

the agents of the Topaz and of Muniz's person.      The government

contends that the court properly found in its oral and written


                                 14
rulings that Gonzales and Muniz voluntarily consented to the

searches of their persons and vehicles.              The government maintains

that the searches were voluntary regardless of how the encounters

were classified.      The district court's finding that the government

had met its burden of proving by a preponderance of the evidence

that appellants' consent was voluntary is reviewed only for clear

error.    Cooper, 43 F.3d at 144.             Additionally, "'where the judge

bases a finding of consent on the oral testimony at a suppression

hearing, the clearly erroneous standard is particularly strong

since the judge had the opportunity to observe the demeanor of the

witnesses.'" U.S. v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993)

(citing U.S. v. Sutton, 850 F.2d 1083, 1086 (5th Cir. 1988), cert.

denied 124 L.Ed.2d 647 (1993)).

     This    Court    considers    six    factors    in   determining   whether

consent is given voluntarily: the defendant's custodial status, the

presence of coercive police procedures, the extent and level of the

defendant's cooperation with the police, the defendant's awareness

of his right to refuse consent, the defendant's intelligence, and

the defendant's belief that no incriminating evidence would be

found. No single factor is dispositive. The question of voluntary

consent     is   a   fact   to    be   discerned     from   the   totality   of

circumstances.       Cooper, 43 F.3d at 144.

     The government has a winning argument in favor of voluntary

consent under the six-factor test.              As discussed above, arguably

Appellants were not detained at any time until their actual arrest.

According to the government, they were not told they could not


                                         15
leave.      Nor is their evidence of coercion.              There is a chain of

consent leading down to the finding of the key pieces of evidence.

Gonzales was asked if the officers could inspect the Topaz and he

apparently consented.          As stated above, Muniz apparently allowed

the initial frisk, went with officers to the La Quinta and allowed

the search of his person.             As for intelligence and awareness of

right to refuse consent, the government wisely notes that Muniz was

a former attorney who undoubtedly was aware that he did not need to

consent to the officers' requests.12                There is no evidence that

Gonzales was of below average intelligence. Additionally, Gonzales

himself had a prior record and experience with law enforcement

procedures.      The government did not inform either of Appellants

that    they   need    not   consent.        However,   there   is    no     absolute

requirement that the government establish that the Appellants knew

they could refuse; it is merely one of the factors. Cooper, 43 F.3d

at 148.     Thus, the government has met its burden of proof on the

first five elements.

       Whether the Appellants believed no evidence would be found is

not difficult to discern.         Appellants' actions are consistent with

the government's theory that both Appellants wanted to distance

themselves from the Topaz.            That Muniz allowed the second search

suggests     that     he   believed   that    the   Topaz   keys     would    not   be

discovered since they had not been discovered on the first search.

Gonzales apparently believed he could avoid association with the

       12
       The lower court found in its suppression ruling that Muniz
had considerable experience in the criminal law and the criminal
justice system as a lawyer and convict.

                                         16
car as well since Muniz was the one last seen driving it.       Thus,

each may have believed that no evidence connected to them could be

found.     No single factor of the six is dispositive,13 so even if

this factor is weak, the court did not err in finding the existence

of voluntary consent.    This is especially true given the amount of

deference shown to the lower court's ability to view the demeanor

of the witnesses.



     4.     Reasonable suspicion for investigative detention.

     Though we believe that the searches were by consent, for

completeness's sake, we will address the Appellants' arguments that

the stops were investigative detentions.     Appellants analyze the

events, asserting that the stops were investigative detentions made

improperly without reasonable suspicion.      The government argues

that even if the stops are classified as Terry stops, the agents

were justified in their actions.

     At the time the agents stopped Gonzales and Muniz, the agents

knew the following about them: 1) they were connected with the

activity of Medina, a suspected drug trafficker with whom the DEA

was negotiating a drug sale; 2) On March 11, Medina met with

Gonzales and Muniz and stated that he did not know the other

parties to the deal but that the deal would still occur at 10:00

AM; 3) Medina left town before 10:00 that morning, with the other

two presumably remaining to complete the deal (they were the last

two to meet with Medina before he left town);       4) Gonzales and

     13
          Cooper, 43 F.3d at 144.

                                    17
Muniz stopped to use pay phones as they headed from Love Field to

the Ramada; and 5) they moved one mile from the Ramada to the La

Quinta.    With regard to Muniz, the government also observed him

enter the parking lot and then leave when he realized there were

officers there.       He was seen watching over his shoulder at the

parking lot. The government argues that the above facts are enough

to create a "reasonable suspicion" that illegal behavior was

occurring.

      In U.S. v. Simmons, 918 F.2d 476, 481 (5th Cir. 1990), two DEA

agents in New Orleans stopped and questioned two passengers exiting

a flight from Los Angeles without specific prior knowledge about

either passenger. One appeared intoxicated, the other nervous, and

both were coming from a known a drug source city.            This Court held

that these facts along with an improbable answer from one as to why

he   was   in   New   Orleans   were   enough   to   allow   for   reasonable

suspicion. Id.

      In our estimation, the instant case presented the DEA agents

with enough reasonable suspicion to merit detention after the

initial consensual encounters.         Given both Agent Chavez' 20 years

experience with the DEA and the presence of Medina, Chavez was

probably rational in concluding that the transaction discussed at

Owens' restaurant involved narcotics. The consistent actions after

Medina left would have contributed to the reasonable suspicions of

the agents leading to the questions and searches.




                                       18
        5.        Conclusion

        The district court did not err in denying the motion to

suppress. The stops were at least initially consensual encounters.

From the initial consensual encounters came additional information

to justify investigative detention.               The amount of information the

agents had seems to make their suspicions reasonable.                      Had the

agents lacked reasonable suspicion, the voluntary consent given

with regard to the searches would still allow the evidence to come

in.14    Appellants were not under arrest until the discovery of the

cocaine in          the   trunk   at   which    time   probable   cause   obviously

existed.15 The evidence on behalf of consent both in the encounters

and the searches is strong enough that the lower court made no

clear error in denying the motions to suppress.



        B.        Sufficiency of the evidence for convictions of conspiracy
                  and possession.

        Gonzales and Muniz challenge the sufficiency of the evidence

on which they were convicted of conspiracy to possess cocaine with

intent to distribute and the completed substantive offense.                   When

considering a challenge based on sufficiency of the evidence, the


             14
           The consent obtained in such circumstances is not
invalidated by the absence of reasonable suspicion as long as the
six factors, when considered as a whole, support the district
court's finding. Kelley, 981 F.2d at 1471; Shabazz, 993 F.2d at
439 n.10. See consideration of consent supra.
        15
        Our conclusion that the stops were at most investigative
detentions with reasonable suspicion and that the searches
performed were by consent obviates all but cursory disposal of the
Appellants' contention that the stops were arrests without probable
cause prior to the actual arrests.

                                           19
reviewing court must consider all of the evidence in the light most

favorable to the verdict and determine whether a rational trier of

fact could have found all the elements of the offense beyond a

reasonable doubt.      U.S. v. Chavez, 947 F.2d 742, 744 (5th Cir.

1991).   Direct and circumstantial evidence are given equal weight,

and the evidence need not exclude every reasonable hypothesis of

innocence.    U.S. v. Dean, 59 F.3d 1479, 1484 (5th Cir. 1995), cert.

denied 133 L.Ed.2d 696 (1996).

      To establish a drug conspiracy under 21 U.S.C. §§ 841(a)(1)

and   846,   the   government   must    prove:     1)   the    existence    of    an

agreement between two or more persons to violate federal narcotics

laws; 2) the defendant's knowledge of the agreement; and 3) the

defendant's voluntary participation in the agreement.                      U.S. v.

Gallo, 927 F.2d 815, 820 (5th Cir. 1991).           Circumstantial evidence

will suffice to demonstrate the existence of a conspiracy.                       Id.

The existence of the agreement, the defendant's knowledge, and the

defendant's participation in the conspiracy may be inferred from

the "'development and collocation of circumstances.'"                 Id. (citing

U.S. v. Lentz, 823 F.2d 867, 888 (5th Cir.), cert. denied 484 U.S.

957 (1987)).       Mere presence at the scene of the crime or close

association    with    co-conspirators      will    not       alone   support     an

inference of conspiracy but are factors that the jury may consider

in finding conspiratorial activity.          Id.

      To convict a defendant of possession of cocaine with intent to

distribute under 21 U.S.C.      § 841(a)(1), the government must prove

beyond a reasonable doubt that the defendant (1) knowingly (2)


                                       20
possessed cocaine (3) with intent to distribute it.    Id.   Proof of

possession will usually depend on inference and circumstantial

evidence.     Id.      When evidence is sufficient to establish the

defendant's participation in a conspiracy to possess narcotics, the

defendant will be deemed to possess the drugs through the co-

conspirator's possession.

     This opinion will briefly consider the evidence against each

defendant.



     1.     Gonzales

     Gonzales and Muniz were acquainted prior to the events of

March 1994.    Gonzales had served as Muniz's driver on occasion.

The two of them met with Medina, a suspected drug trafficker, in

Houston.    Gonzales, though unemployed during this time, rented the

white Topaz and failed to return the car on time.   After going home

for a family emergency, Gonzales returned to the Dallas area

despite the fact the Muniz was leaving by airplane.    Gonzales was

at the March 11 morning meeting with Medina at which the "deal" was

discussed.    Gonzales made several phone calls from pay phones on

his return from the airport.

     When questioned by the agents at the La Quinta Inn, Gonzales

claimed he had come to Dallas to seek employment despite the

absence of any evidence of a job search.       Gonzales lied to the

agents when he asked whether he had any passengers in his vehicle

recently and whether he had been to the airport.    Gonzales had in

fact given the keys of the white Topaz to Muniz shortly before


                                   21
Muniz drove it from the Ramada Inn and after the cocaine had been

placed in the car.        The jury also had evidence of Gonzales's prior

convictions on the issue of intent.

       While much of the evidence above amounts to mere presence or

association        with   more    culpable       figures,     the   totality     of

circumstances would allow the jury to infer participation in the

conspiracy.        U.S. v. Dean, 59 F.3d at 1484.           The jury chose not to

believe Gonzales's claim that he was on a job search.                   Gonzales's

presence      at    the   March    11    meeting     when    combined     with   his

fabrications regarding the vehicle and delivery of the keys to

Muniz after the cocaine was already in the vehicle are sufficient

evidence to sustain the convictions.



       2.     Muniz

       The circumstances incriminating Muniz are obviously similar to

those above.        He met with Medina in Houston, was present at the

March 11 meeting where Medina set the time for the "deal" and lied

about not having driven the Topaz.              In addition the following items

of evidence are present: 1) Muniz had a level of reported income

that    was    inconsistent       with    his     frequent    statewide     travel,

suggesting income from illicit sources; 2) Muniz met and spoke with

Medina on more occasions than Gonzales, including one meeting on

the night before the arrests (the Topaz, driven by Muniz, was at

the Ramada, Medina's hotel); 3) Muniz drove the Topaz after the

cocaine had been placed in the car; 4) Muniz, watching over his

shoulder, left the area of the La Quinta after spotting law


                                         22
enforcement officers; 5) Muniz hid the keys to Topaz in his socks,

though he allowed the agents to search him.

     While none of the above are conclusive proof of conspiracy and

possession, again it is the totality of circumstances that would

allow a jury to find guilt beyond a reasonable doubt.    Control of

the vehicle coupled with the attempt to flee the scene and the lies

about use of the vehicle are enough for the jury to conclude that

Muniz possessed the contraband within.    U.S. v. Carrillo-Morales,

27 F.3d 1054, 1064-1065 (5th Cir. 1994), cert. denied 130 L.Ed.2d

1119 (1995).    From there, one can build the entire conspiracy.

Gonzales possessed the cocaine through his co-conspirator Muniz and

both of them worked together on the "deal."    The jury did not have

to believe Muniz's story that he was in Dallas on legal business or

that he left the hotel area looking for a pay phone though he

passed two restaurants before being stopped.   The evidence against

the two is sufficient to support the convictions.



C.   Muniz's subpoena request.

     Muniz appeals the lower court's denial of his request at trial

for the court to enforce the defense subpoena issued to the desk

clerk at the Classic Inn in Fort Worth.   Muniz claims the court's

failure to enforce the subpoena is a violation of his Sixth

Amendment right to compulsory process and Fifth Amendment right to

due process.   According to Muniz, the desk clerk was in possession

of certain registration records that would allegedly corroborate

Muniz's narration of the events.      The lower court denied the


                                 23
request, which was made at the end of the defense's case-in-chief.

This Court will review the decision to deny the subpoena request

under an abuse of discretion standard.        U.S. v. Ojebode, 957 F.2d

1218, 1222 (5th Cir. 1992), cert. denied 122 L.Ed.2d 683 (1993);

U.S. v. Bowman, 636 F.2d 1003, 1013 (5th Cir. 1981).

     The Fifth and Sixth Amendments guarantee a defendant the

rights to a fair trial and compulsory process but those rights are

not absolute.    Butler, 988 F.2d at 540.    When requesting a court to

subpoena a witness, a defendant such as Muniz has the duty to

demonstrate the necessity of the witness's testimony.            U.S. v.

Ramirez, 765 F.2d 438, 441 (5th Cir. 1985), cert. denied 88 L.Ed.2d

786 (1986); U.S. v. Webster, 750 F.2d 307, 329-330 (5th Cir. 1984),

cert. denied 85 L.Ed.2d 855 (1985); U.S. v. Moore, 917 F.2d 215,

230 (6th Cir. 1990), cert. denied 113 L.Ed.2d 654 (1991).            The

government may respond by demonstrating that the facts upon which

the defense relies are inaccurate, or that the evidence sought is

immaterial,     irrelevant,   cumulative    or   otherwise   unnecessary.

Webster, 750 F.2d at 329-330.

     The hotel clerk would have verified the hotel registration

card which showed that a man named Danny Hernandez had stayed at

the Classic Inn from March 6-10.16      Muniz, in an attempt to account

for all of his time in the Lewisville area, hoped that the jury

could infer the following: that D. Hernandez was the Hernandez on

the slip of paper found on Muniz on which Muniz had written airline


     16
       Government evidence would have shown that Danny Hernandez
provided no identification at the Inn and provided a false address.

                                   24
reservations for "Medina, Hernandez", that D. Hernandez was an

unknown person who allegedly called out to Medina on March 10 at

the Ramada Inn and that Hernandez and Medina had access to the

white Topaz.    Muniz stated that he did not know Hernandez but that

Hernandez was the owner and driver of the white Topaz.                   Muniz

attempted to account for his numerous phone calls (30+) from the

hotel as well as the other above-described events.               Muniz also

claimed that the evidence would have corroborated Muniz's testimony

that he called the Classic Inn and spoke to Medina about their

alleged legitimate business before the Owens' meeting.

       The   lower   court   denied        Muniz's   request   because    the

registration records regarding Danny Hernandez lacked relevance and

could possibly confuse the jury.       The court pointed to the absence

of any proof that the Danny Hernandez who stayed at the Classic Inn

was the Hernandez about whom Muniz had spoken, especially given the

common nature of the surname Hernandez, and the lack of any proof

that Muniz had made a telephone call to Hernandez at the Classic

Inn.    Danny Hernandez who stayed at the Classic Inn checked out a

day before Muniz allegedly made a plane reservation for him.

Additionally, had Muniz been able to connect Medina and Hernandez

together with the white Topaz, this would hardly make either of

these two figures or Muniz look less culpable.

       The lower court did not abuse its discretion in refusing to

enforce the subpoena request.          Muniz failed to prove that the

evidence was relevant. Even assuming the registration records were

relevant, evidence that a Danny Hernandez had stayed at the Classic


                                      25
Inn would have misled the jury given that there was no evidence

that this D. Hernandez was the Hernandez referred to by Muniz.



D.   The lawfulness of Muniz's sentence.

     Muniz contests the lawfulness of the enhanced sentence he

received on two grounds.   He argues that the government failed to

comply with the formal requirements of 21 U.S.C. § 851(a) and that

21 U.S.C. § 851(e)'s provision precluding collateral attacks on

previous convictions if five years or older is unconstitutional.

The sufficiency of a § 851(a) information and the constitutionality

of § 851(e) are questions of law that will be reviewed de novo.

U.S. v. Steen, 55 F.3d 1022, 1025 (5th Cir.), cert. denied 133

L.Ed.2d 500 (1995).



     1.   Sufficiency of an Information under 21 U.S.C. §851(a)

     Muniz received a life sentence based on the enhancement

provisions of 21 U.S.C. § 841(b) because of his two prior drug

convictions.   Several months prior to trial, the government filed

a "Notice of Prior Convictions" for the purpose of informing court

and defendant that the government would seek to use the two prior

convictions to seek an enhanced sentence.   Such notice is required

by 21 U.S.C. § 851(a).   21 U.S.C § 851 states:

     (a)(1)   No person who stands convicted of an offense
     under this part shall be sentenced to increased
     punishment by reason of one or more prior convictions,
     unless before trial, * * * the United States attorney
     files an information with the court (and serves a copy of
     such information on the person or counsel for the person)
     stating in writing the previous convictions to be relied
     upon.

                                26
The notice given by the government stated

        Notice is given that in accordance with Title 21,
     United States Code, § 851, the United States intends to
     prove that RAMSEY RAMIRO MUNIZ, Defendant herein, has two
     prior convictions by two different courts for felony drug
     offenses, and as such, if convicted of a violation of 21
     U.S.C. 841(a)(1), the penalty range shall be a fine of
     not more than $8,000,000 and imprisonment for a mandatory
     term of life without release.

The notice then described the specific convictions (one in the

Southern District of Texas involving 1,100 pounds of marijuana and

the other in the Western District of Texas involving 822 pounds).

Muniz argues that the notice given is inadequate because it is not

called an "Information" as referenced in the statute and does not

state the government will "rely upon" the convictions mentioned in

the notice.

     Muniz's requirements are beyond those of the statute.          It is

true that the prosecution must comply with § 851's procedural

requirements or the district court cannot enhance a defendant's

sentence.   Id. at 1025. The essential question, though, is whether

timely notice (before trial) has been given of which convictions

will be relied on so that a defendant has an opportunity to

respond.    Id. at 1027; U.S. v. Gonzalez-Lerma, 14 F.3d 1479, 1485

(10th Cir.), cert. denied 128 L.Ed.2d 484 (1994).       More than one

Circuit, including this one, has observed that § 851 does not state

the form in which the "information" is to appear.       Steen, 55 F.3d

at 1027 (information with misstated priors sufficient because

defendant   not   prejudiced);   Gonzalez-Lerma,   14   F.3d   at    1485

(information sufficient though defendant alleged mistakes on date

and place of convictions); U.S. v. Belanger, 970 F.2d 416, 419 (7th

                                  27
Cir. 1992) (information which failed to specify prior convictions

sufficient when particular conviction were named in a later pre-

trial document).

     Muniz does not claim that the notice was untimely or that the

information was incomplete.            His criticism is reserved for the

title and wording.      Because notice was timely given and the facts

contained were accurate, the information was sufficient under

Steen.      As   is   evident   from    the   "Notice"   quoted   above,   the

government informed the defendant that it would use the prior

convictions, identified those convictions and did so in a timely

manner.   § 851 is mentioned specifically in the notice.            That the

information was titled "Notice" instead of "Information" and did

not use the words "rely on" is of no significance since the

defendant was aware of the convictions that would be used in

connection with an § 851 sentence enhancement.             The Government's

Notice satisfied the requirements of 21 U.S.C. § 851.



     2.     Constitutionality of 21 U.S.C. § 851 (e).

     Muniz attacks § 851 (e) as an unconstitutional violation of

his rights to equal protection of the laws, due process, and his

right not to be subjected to double jeopardy.            Muniz claimed that

although the two prior convictions mentioned above arose out of

guilty pleas in separate jurisdictions, they involved a single

conspiracy.      Muniz maintained that the Double Jeopardy Clause

barred consideration of both convictions separately for enhancement

purposes.


                                        28
     The governemt in this case argues that § 851 (e) has a

rational basis and should be found constitutional. Also, the

government claims that Muniz fails to make out a double jeopardy

claim given the temporal and geographical gap between conspiracies.

     21 U.S.C. § 851 (e) states:

     No person who stands convicted of an offense under this
     part may challenge the validity of any prior conviction
     alleged under this section which occurred more than five
     years before the date of the information alleging such
     prior conviction.

Four circuits have held this provision constitutional.     U.S. v.

McChristian, 47 F.3d 1499, 1503 (9th Cir. 1995); U.S. v. Arango-

Montoya, 61 F.3d 1331, 1338 (7th Cir. 1995); U.S. v. Jenkins, 4

F.3d 1338, 1343 (6th Cir. 1993), cert. denied 128 L.Ed.2d 197

(1994); U.S. v. Williams, 954 F.2d 668, 673 (11th Cir. 1992).

     The Sixth, Seventh and Eleventh Circuits held that § 851 (e)

is a reasonable limitation on defendants to effectuate the purposes

of sentence enhancement for recidivists and to eliminate a host of

problems with respect to ancient or destroyed records.   Jenkins, 4

F.3d at 1343; Arango-Montoya, 61 F.3d at 1338; Williams, 954 F.2d

at 673.    In McChristian, the Ninth Circuit ruled that the only

constitutional challenge permitted under § 851 (e) is a claim that

a conviction was invalid because no counsel was appointed to

represent the defendant.   47 F.3d at 1402; Arango-Montoya, 61 F.3d

at 1336.   No other constitutional attack on § 851 (e) survived the

Supreme Court's holding in Custis v. U.S., 114 S.Ct. 1732 (1994),

that Congress could totally eliminate collateral attacks on prior

convictions with regard to sentence enhancement if that body so


                                 29
chose.    Except in the limited circumstance in which the prior

conviction was obtained in violation of the right to have counsel

appointed, a defendant has no constitutional right to challenge

prior convictions used to enhance a currently imposed sentence.

Id. at 1737-39.

     The Court stated that when Congress wants defendants to have

a right to collateral attack, such is stated in the statute.     The

Court offered § 851 as an example of Congress authorizing such

attacks when it chose to.   Id.   The government acknowledges in this

case that the Supreme Court in Custis was reviewing not the drug

enhancement provisions of 851 (e) but similar provisions in the

Armed Career Criminal Act, 18 U.S.C. § 924 (e).     Nonetheless, the

Supreme Court's logic and statement regarding § 851 in Custis and

the decisions of our fellow circuits convince us that § 851's five

year limit on collateral attacks is not unconstitutional.          A

defendant has no right to make a collateral attack under these

circumstances unless no counsel was appointed for them. Muniz does

not make such a claim and his constitutional attack is thus

untenable.17



                             CONCLUSION

     This Court AFFIRMS the district court's denials of Appellants'

motions to suppress and AFFIRMS in every respect Appellants'


     17
       Because we hold that 21 U.S.C. § 851(e)'s five year limit
constitutional, we do not reach the issue of whether one of the
underlying convictions was actually in violation of the Double
Jeopardy Clause.

                                  30
convictions and sentences.




                             31
