                                                            F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
               UNITED STATES COURT OF APPEALS
                                                             JUN 25 2003
                            TENTH CIRCUIT
                                                        PATRICK FISHER
                                                                  Clerk

UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

v.                                            No. 01-1425
                                        (D.C. No. 99-CR-300-S)
HECTOR HINOJOSA Gonzalez, a/k/a              (D. Colorado)
Hector Hinojosa, Antonio Rameorz
and Manuel Gonzalez,

          Defendant - Appellant.


UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                              No. 01-1439
v.                                      (D.C. No. 99-CR-300-S)
                                             (D. Colorado)
MANUEL GUILLERMO CARRILLO,
a/k/a “Psycho,” and “Memo,”

          Defendant - Appellant.


UNITED STATES OF AMERICA,

          Plaintiff - Appellee,               No. 01-1453
                                        (D.C. No. 99-CR-300-S)
v.                                           (D. Colorado)

RAUL ATAYDE, a/k/a “Bam Bam,”

          Defendant - Appellant.
                           ORDER AND JUDGMENT             *




Before HENRY , MURPHY , and O’BRIEN , Circuit Judges.


      The three appellants, Raul Atadye, Manuel Guillermo Carrillo, and Hector

Hinojosa Gonzalez, were part of a Denver-area gang that operated a large-scale

illegal narcotics distribution system. Each was convicted by a federal court jury

of multiple counts of conspiracy to distribute and possess with intent to distribute

cocaine, cocaine base, and methamphetamine in violation of 21 U.S.C. § 841. We

have consolidated their appeals for the purpose of this disposition. Together, they

raise ten issues of alleged error by the district court, attacking both the guilt and

sentencing phases of the trial. For the reasons detailed below, we affirm.


                                 I. BACKGROUND

      The background of this case is well-known to both parties and is laid out in

the district court’s fifty page Memorandum Opinion and Order,      see United States

v. Carrillo, et al. , No. 99-CR-300-S (Dist. Ct. Memorandum Opinion and Order

filed Nov. 20, 2000), and in the transcripts of the proceedings before the district


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.


                                          -2-
court attached by the appellants as brief exhibits. We summarize the facts here

and discuss certain facts in further detail in our subsequent analysis.

      In January 1997, through a joint investigation by the Federal Bureau of

Investigation and the Denver, Colorado Police Department led by Jamie Aikens,

acting in dual capacities as a Denver Police Officer and an F.B.I. Special Agent,

the police learned that Mr. Carrillo, a/k/a “Psycho,” was the founder and leader of

a gang known as the “Mexican Criminal Mafia Sureno 13.” The police further

learned that Mr. Carrillo engaged in violent crimes, including armed robberies to

obtain drugs and drug proceeds, and that Mr. Carrillo obtained his cocaine from

Texas and distributed the drugs in Colorado, Kansas, and Utah. During the

course of the investigation, the police learned that among Mr. Carrillo’s gang

associates in the Sureno 13 gang were Mr. Atadye and Mr. Gonzalez. An

undercover officer later purchased methamphetamine from Mr. Atadye, and

learned that Mr. Gonzalez supplied illegal drugs to Mr. Carrillo.

      In April 1999, upon the government’s motion, United States District Court

for the District of Colorado Judge Zita L. Weinshienk issued two orders

authorizing the interception of wire and electronic wire communications on a

cellular telephone and digital display paging device used by Mr. Atadye.     In May

1999, Judge Weinshienk issued an additional order authorizing the interception of

wire communications on a cellular phone used by Mr. Carrillo.       The investigation


                                           -3-
leading up to the two orders was chronicled in the supporting affidavits of Officer

Aikens, which included factual recitations detailing the use of numerous

confidential informants to gather information concerning the Sureno 13 gang.

Based on information obtained in the over two and a half year investigation, the

government, in September 1999, filed a 35-count indictment against fourteen

defendants connected to Mr. Carrillo’s organization, including Mr. Carrillo, Mr.

Atadye, and Mr. Gonzalez.

         Mr. Carrillo, Mr. Atadye, and Mr. Gonzalez were eventually scheduled for

a joint trial before United States District Court for the District of Colorado Judge

Daniel B. Sparr and a federal court jury. Prior to trial, the three defendants

moved to suppress the government’s evidence derived from the court-ordered

wiretaps. The district court denied the suppression motions. The case went to

trial.

         Following the trial, the jury convicted Mr. Carrillo, Mr. Atadye, and Mr.

Gonzalez of (1) conspiracy to distribute cocaine and cocaine base and

methamphetamine in violation of 21 U.S.C. § 846; (2) distribution and possession

with intent to distribute one or more controlled substances in violation of 21

U.S.C. § 846; and (3) the use of a communications facility to facilitate

commission of drug offenses in violation of 21 U.S.C. § 843(b). Each of the




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three defendants was sentenced to a prison term in excess of three hundred

months; the three defendants now appeal.



                                 II. DISCUSSION

      The consolidated appeals combine to raise ten issues of alleged error,

arguing that Judge Sparr erred by: (1) denying the motions to suppress because

the government failed to satisfy the necessity requirements of 18 U.S.C. § 2518(c)

and (3)(c); (2) denying Mr. Atadye’s motion to dismiss the indictment for

outrageous conduct in violation of his due process rights; (3) refusing to conduct

additional wiretap hearings; (4) admitting evidence that Mr. Gonzalez threatened

a trial witness; (5) admitting certain testimony at trial by a Police Officer

Ramirez; (6) denying Mr. Carrillo’s request for a continuance; (7) permitting the

trial to continue after the prosecutor suggested at closing argument that certain,

specified, individual jurors examine transcripts of wiretapped conversations; (8)

permitting Mr. Carrillo to be convicted and sentenced on what are termed by Mr.

Carrillo’s counsel as “unfounded allegations” of which Mr. Carrillo was allegedly

unaware; (9) permitting a government witness with a history of mental health

illness to testify against the defendants; and (10) by permitting a conviction and

sentence in part based on testimony by a witness who worked with Mr. Carrillo




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that the witness was a “bounty hunter,” which allegedly violated Mr. Carrillo’s

due process rights. We address each contention in turn.



       1.      Motion to Suppress

       The appellants argue that the affidavits supporting the applications for the

three wiretaps failed to satisfy the “necessity” requirements set forth in 18 U.S.C.

§ 2518(1)(c) and (3)(c), under which the supporting affidavits must have had “a

full and complete statement as to whether or not other investigative procedures

have been tried and failed or why they reasonably appear to be unlikely to

succeed if tried or to be too dangerous.”       Id. “[W]e review for an abuse of

discretion a district court’s determination that a wiretap was necessary.”     United

States v. Ramirez-Encarnacion     , 291 F.3d 1219, 1222 n.1 (10th Cir. 2002). “[W]e

review de novo whether a ‘full and complete statement’ was submitted meeting

section 2518(1)(c)’s requirements.”         Id. (internal quotation marks omitted). “A

defendant bears the burden of proving that a wiretap is invalid once it has been

authorized.”   Id. Applying these standards, we have reviewed the district court’s

order and the several hundred pages of underlying affidavits and, for substantially

the same reasons as those set forth at pages 15-45 of the district court’s

November 20, 2000 Memorandum Opinion and Order, we conclude that the

district court did not err in denying the motion to suppress.


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      2.     Motion to Dismiss the Indictment

      The appellants, particularly Mr. Atayde, argue that the district court erred

in denying the motion to dismiss the indictment, asserting that the government

continued the investigation for the improper purpose of increasing their sentences,

and that this conduct was so outrageous as to deny them due process of law.

“[Criminal] defendants have the burden of proving outrageous government

conduct . . . and we review this issue de novo, with factual findings reviewable

under the clearly erroneous standard.” United States v. Diaz, 189 F.3d 1239,

1245 (10th Cir. 1999) (internal quotation marks and citations omitted).

       Although we have acknowledged the existence of such a defense, we have

also acknowledged that the defense rarely will be established. In Diaz, we held

“[t]he defendants have a very high hurdle to clear: ‘The outrageous conduct

defense . . . is an extraordinary defense that will only be applied in the most

egregious circumstances. In order to prevail, the defendant must show that the

challenged conduct violated notions of ‘fundamental fairness’ and is ‘shocking to

the universal sense of justice.’” Id. at 1245 (quoting United States v. Pedraza, 27

F.3d 1515, 1521 (10th Cir. 1994) (internal quotation marks omitted). We have

never overturned a conviction on the ground of outrageous government conduct.

See Pedraza, 27 F.3d at 1521 n.3 (noting this fact); see generally United States v.


                                         -7-
Scull, 321 F.3d 1270 (10th Cir. 2003) (a recent decision of this court rejecting a

defendant’s outrageous conduct claim).

      In United States v. Mosley, 965 F.2d 906 (10th Cir. 1992), we identified

factors typically associated with such a defense: (1) excessive government

involvement in the creation of a crime; or (2) significant government coercion to

induce a crime. Government involvement would be excessive, we held, if the

government engineered and directed the criminal enterprise from start to finish.

See id. at 911. The appellants do not contend that the government created the

crime or induced them to sell drugs. When a defendant cannot show the

government induced his conduct, this court has rejected the outrageous conduct

defense. See United States v. Johnson, 130 F.3d 1420, 1430 (10th Cir. 1997)

(“The government did not induce Johnson to become involved in drug distribution

for the first time, nor did it substantially coerce him into committing the crime.”).

      Mr. Atayde cites Mosley in support of his argument that the government

should not have continued to purchase drugs from him. However, in Mosley and

its progeny, we have made clear that Mosley was not intended to preclude the

type of undercover operation at issue in this case:

      It is not outrageous for the government to infiltrate an ongoing
      criminal enterprise, or to induce a defendant to repeat, continue, or
      even expand previous criminal activity. In inducing a suspect to
      repeat or expand his criminal activity, it is permissible for the
      government to suggest the illegal activity, provide supplies and
      expertise, and act as both a supplier and buyer of illegal goods.

                                         -8-
Pedraza, 27 F.3d at 1521 (emphasis supplied and internal citations omitted).

      Nor has Mr. Atayde denied that he sold the drugs in question. The

appellants’ argument that they, as criminal defendants, cannot be prosecuted for

crimes that they concede that they committed, is somewhat remarkable. The

Supreme Court has acknowledged that the prosecution is entitled to decide when

enough evidence has been gathered and when to file charges. See United States

v. Lovasco, 431 U.S. 783, 792-93 (1977) (“The decision to file criminal charges,

with the awesome consequences it entails, requires consideration of a wide range

of factors in addition to the strength of the Government’s case, in order to

determine whether prosecution would be in the public interest.”). In rejecting

substantially this same argument, we have stated:

      Law enforcement officials are often justified in increasing the scope
      of criminal activity in a sting operation, especially when attempting
      to ensnare those persons higher up on the distribution ladder who are
      ultimately responsible for the supply of drugs.

United States v. Lacey, 86 F.3d 956, 965 (10th Cir. 1996) (emphasis supplied).

This appears to be precisely what the government was doing in this case. The

undercover officer had an established relationship with Mr. Atayde, who worked

at Mr. Carrillo’s direction. The government was using that relationship in an

attempt to gather evidence against Mr. Carrillo and his suppliers. Mr. Atayde

concedes that the government “may have had the legitimate purpose of furthering

                                         -9-
the investigation with regard to others,” Aplt Atayde Br. at 54, but nonetheless

argues that by charging him with the transactions, the government committed

outrageous conduct. However, because of Mr. Atayde’s close relationship to Mr.

Carrillo, it seemingly would have been difficult to impossible to arrest Mr.

Atayde without aborting the investigation. Thus, continued dealing with Mr.

Atayde appears to have been necessary to further the investigation of the others

involved in the conspiracy.

      Mr. Atayde cites United States v. Harris, 997 F.2d 812, 819 (10th Cir.

1993), for the proposition that it would be outrageous conduct for the government

to “rely on a known addiction to carry out multiple transactions with the primary

purpose of stacking charges. . . .” But these are not the facts before us. Mr.

Atayde does not claim to be a drug addict, much less claim that the government

knew him to be an addict.

      The government may not carry out the transactions for the purpose of

“stacking charges.” Id. In Harris, we held that “[a]bsent a specific investigatory

purpose,” the government could not “continue to conduct these transactions ad

infinitum thereby constantly increasing the charges, which necessarily increases

the attendant mandatory sentence length.” Id. at 818-19 (italics in original).

Here, however, the well-documented purpose of the continued dealings with Mr.

Atayde was to gather evidence against Mr. Carrillo and his suppliers. See id. at


                                        -10-
819 (holding that the multiple transactions in that case served a “legitimate

investigatory function.”). The district judge made a factual finding that the

government’s investigation was motivated by the “legitimate purpose” of

identifying the sources of narcotics. Gonzalez Rec. vol. 12, at 19-20. Given the

standard of review, and the documented evidence of the government’s attempts to

use the additional evidence towards a legitimate purpose, we hold that the district

court’s ruling was not erroneous. 1



      3.     Not Conducting Additional Wiretap Hearings

      During the trial, Mr. Carrillo filed a motion alleging that trial testimony

showed that the Colorado National Guard illegally participated in the wiretap

investigation, and asking that the court allow him to call two witnesses outside

the jury’s presence. The district court granted the motion and heard testimony

from two members of the Colorado Air National Guard. The witnesses testified

that they were assigned to provide support to the Metro Gang Task Force as part

of a counter-drug program, that they had no administrative duties, that they did

not monitor the wiretaps, and that were not present in the room where the

wiretaps were being recorded. One of the witnesses testified that her main task


      1
        We decline in this order and judgment to delineate what set of facts would
constitute a violation by the government of the rule against stacking. We leave
resolution of that question for another day.

                                         -11-
was to transcribe tapes that were given to her. At the close of the two witnesses’

testimonies, the court stated, “I am not going to rehear the wiretap motion. It’s

already been decided.” Gonzalez Rec. vol. 33, at 3944.

       On appeal, Mr. Carrillo argues that the district court should have conducted

further hearings. However, because neither Mr. Carrillo nor the other two

appellants identify evidence in the record showing that they made this request to

the district court, our review is for plain error.    See, e.g. , United States v. Brown ,

376 F.3d 1151, 1155 (10th Cir. 2003). We may “use our discretion to reverse

unobjected-to error on plain error review if we find four elements: (1) error; (2)

that is plain (3) that affects substantial rights, and (4) that seriously affects the

fairness, integrity, or public reputation of judicial proceedings.”      Id. (internal

quotation marks omitted). We do not see how the district court erred, but even if

we did, the error is certainly not one that seriously affects the fairness, integrity

or public reputation of judicial proceedings.



       4.      Admitting Evidence that Mr. Gonzalez Threatened a Witness

       Next, the appellants argue that they were prejudiced by the testimony of

Mark Jones, a cooperating defendant who testified that Mr. Gonzalez threatened a

witness named Brandy Jones, including suggesting that Mr. Jones “shoot her,”

Rec. vol. 23, 1892-93, and making a gesture with his hand in the form of a pistol


                                               -12-
at a court hearing.   The district court, over Mr Gonzalez’s objection, admitted Mr.

Jones’s testimony on the grounds that evidence of the threats could be evidence of

consciousness of guilt. The parties agree that we review the district court’s

decision for abuse of discretion.   See United States v. Smith , 629 F.2d 650, 651

(10th Cir. 1980). Applying that standard, we do not overturn the district court’s

ruling. See id. at 651-52 (“[e]vidence of threats to a prosecution witness is

admissible as showing consciousness of guilt if a direct connection is established

between the defendant and the threat”).



               5.     Admitting Officer Ramirez’s Testimony

         Officer Adolpho Ramirez testified at trial regarding his understanding of

terms heard on a recorded conversation. At various points during Officer

Ramirez’s testimony, counsel for one or more of the defendants objected, citing,

among other grounds, hearsay. The district court overruled the objections. We

review the ruling on the admissibility of Mr. Ramirez’s testimony aware that

evidentiary rulings are ordinarily committed to “the sound discretion of the trial

court,” and that we “accord heightened deference to a trial court’s ruling on a

hearsay question.”    United States v. Chatman , 994 F.2d 1510, 1515 (10th Cir.

1993).




                                          -13-
       “A witness may base his testimony upon his perceptions of conversations

and, thus, may clarify conversations that are abbreviated, composed of unfinished

sentences and punctuated with ambiguous references to events that were clear

only to the conversation participants.”   United States v. Sneed , 34 F.3d 1570,

1581 (10th Cir. 1994). “The accuracy of those perceptions is a question for the

jury.” Id. Accordingly, the district court did not abuse its discretion by leaving it

to the jury to weigh Officer Ramirez’s testimony.



       6.     Denial of Mr. Carrillo’s Continuance Request

       In January 2001, five weeks prior to the scheduled February 20, 2001 joint

trial date, Mr. Carrillo, then represented by counsel (his third in less than two

years), moved to represent himself. In the hearing on this motion, Mr. Carrillo

stated to the district court that he would not use self-representation as an excuse

to “attempt to delay or obstruct these proceedings.” Carrillo Rec. vol. 7, at 37.

Nonetheless, at the pre-trial conference, Mr. Carrillo moved to continue the trial

on the ground that he needed additional time to review discovery materials. The

district court denied the motion.

       We review denial of a motion to continue a trial “for abuse of discretion,

assigning error only if the district court’s decision was arbitrary or unreasonable

and materially prejudiced the [defendant].”          United States v. McNeely , 69 F.3d


                                              -14-
1067, 1076 (10th Cir. 1995) (internal quotation marks omitted). On appeal, Mr.

Carrillo concedes that he had “indicated he would be able to proceed pro se on the

scheduled trial date,” but alleges that his inability to obtain access to certain

documents while incarcerated required a continuance. Aplt Carrillo’s Br. at 43.

Given Mr. Carrillo’s previous assertion to the district court and our deferential

standard of review, we hold that the district court’s denial of the motion for

continuance was not an abuse of discretion.



       7.     The Prosecutor Suggestion at Closing Argument

       During the discussion by the prosecutor in closing argument of whether Mr.

Gonzalez delivered cocaine to Mr. Carrillo, the prosecutor told the jury, “And if

you have any doubt about that, ladies and gentlemen, I am going to ask juror No.

1 in the corner there, just remember May 18th. Okay. That’s your job. May

18th. Go back and look at the calls from May 18th.” Gonzalez Rec. vol. 32 at

3658. The prosecutor then suggested, “I am going to ask you to remember certain

transcript numbers, so juror No. 2, your job is to–,”        id. at 3659, whereupon the

district court interrupted, stating, “Let’s not individualize the jurors, please.”    Id.

Although Mr. Carrillo did not object at trial on this point, Mr. Carrillo argues that

we should reverse the convictions because the prosecutor’s comments “showed an

obvious error of prosecutorial misconduct, and one that would undermine the


                                              -15-
fairness of the trial and result in a miscarriage of justice.” Aplt Carrillo’s Br. at

47 (internal quotation omitted).

       Generally, “[t]his court reviews     de novo whether prosecutorial misconduct

occurred, which is a mixed question of law and fact.”         United States v. Toles , 297

F.3d 959, 972 (10th Cir. 2002) (italics in original). However, here our review is

for plain error since no objection was lodged at trial on this point.     See Brown ,

376 F.3d at 1155. The government clearly “erred in singling out a juror by name

during closing arguments,”     Toles , 297 F.3d at 972, but given the district court’s

corrective remark and the overwhelming evidence of the appellants’ guilt

presented to the jury, we hold that the error did not “seriously affect[] the

fairness, integrity, or public reputation of judicial proceedings,”     Brown , 376 F.3d

at 1155. We therefore may not reverse on this issue.         See id.



       8.     “Unfounded Allegations” Claim

       Mr. Carrillo argues that we should remand for re-sentencing because he

lacked notice of “unfounded allegations” made by the prosecutor at sentencing,

against which he was unprepared to defend. Aplt Carrillo’s Br. at 49. At the

sentencing hearing, the guideline range was established as 360 months to life

imprisonment. In addressing the court, the prosecutor observed that Mr. Carrillo

was apparently insulted by her description of him as a “small fish,” and the


                                             -16-
prosecutor clarified that she did not think that Mr. Carrillo was “small fish” in

Colorado. Carrillo Rec. vol. 8, at 26-27. The court later made clear that it would

not rely upon this comment:

      as far as his offense being called a small fish in court, that’s a matter
      that has to do with potentially inappropriate comments by the
      prosecutor. Unfortunately, it is not a matter which – for which he
      has any redress at this point in time, but I will say it’s not a matter
      that the Court would consider under any circumstances. The
      prosecutor’s opinion of the defendant’s relative standing in the
      hierarchy of crime in the United States is not this Court’s – for this
      Court nor is it for the government to make those opinions clear to the
      Court. And my position is that you are not attempting to argue that
      one way or another.


Id. at 29 (emphasis supplied). The prosecutor then agreed that her “opinion

about [Mr. Carrillo] personally is irrelevant.” Id. In rejecting the prosecution’s

request for a life sentence, the court instead imposed a sentence of 720 months.

In doing so, the court made clear that the sentence was based upon “the

aggravated factors involved in this offense,” including Mr. Carrillo’s role as a

leader and organizer, the significant quantities of controlled substances (4,651

kilograms), Mr. Carrillo’s possession of firearms in committing the crimes, and

Carrillo’s significant criminal history (Category VI).

      Because Mr. Carrillo did not object before the sentencing court on this

issue, our review, as discussed above, is for plain error. The record is clear that

the sentencing court disregarded the prosecutor’s remarks in imposing the


                                         -17-
sentence. We therefore do not see how the prosecution’s suggestion affected Mr.

Carrillo’s “substantial rights, or seriously affects the fairness, integrity, or public

reputation of judicial proceedings.”     Brown , 376 F.3d at 1155.



       9.      Testimony by Witness with History of Mental Health Illness

       Mr. Carrillo further contends that the trial court denied him due process by

admitting the testimony of co-defendant Emiliano Licon, who admitted on cross-

examination that he uses alcohol and various illegal drugs, experiences problems

with his memory, suffers from depression, and has been prescribed a variety of

medications for his psychological problems.         See Rec. vol. 22 at 1652-1704. Mr.

Carrillo argues that Mr. Licon’s psychological problems rendered Mr. Licon

unstable, and appears to suggest that the problems rendered Mr. Licon’s testimony

inadmissible.

            Because Mr. Carrillo has failed to point to record evidence that he

objected to Mr. Licon’s testimony, our review, as explained above, is for plain

error. Mr. Carrillo’s argument misses the mark because Mr. Licon’s mental health

issues go not to admissibility, but to weight.      See United States v. Allen J., 127

F.3d 1292, 1294 (10th Cir. 1997) (“[T]he drafters of Rule 601 considered mental

capacity not to be a question of competence, but to be a question particularly

suited to the [trier of fact] as one of weight and credibility.”) (internal quotation


                                             -18-
marks omitted); see also Fed. R. Evid. 601 Advisory Committee’s Notes (stating

that mental incapacity goes to the weight and credibility of the witness). Indeed,

the district court permitted cross-examination on the mental health issues,       see

Gonzalez Rec. vol. 22 at 1651-58, 1686-1704, instructed the jury that they could

consider “the cross-examination of the witness going to his mental state” in

assessing the “credibility of this witness’s testimony,”       id. at 1732, and permitted

Mr. Carrillo to call one of Mr. Licon’s examining doctors, who testified regarding

Mr. Licon’s cognitive functioning and treatment.           Accordingly, we hold that the

admission of Mr. Licon’s testimony was not error.



       10.    “Bounty Hunter” Comment

       The last of the appellants’ arguments is Mr. Carrillo’s contention that the

testimony of government witness Mario Rueda that Mr. Rueda works as a “bounty

hunter” violated Mr. Carrillo’s due process rights. Again, because Mr. Carrillo did

not raise an objection at trial, our review is for plain error. Here, we need not

address this claim in much depth. Mr. Carrillo nowhere explains how the district

court’s permitting Mr. Rueda to offer this answer, which we note was given in

response to Mr. Carrillo’s cross-examination, constituted error. Accordingly, we

hold that the district court, in permitting the guilt and sentencing phases of the

trial to proceed after Mr. Rueda’s comment, did not commit plain error.


                                             -19-
                                III. CONCLUSION

      For the reasons detailed above, we    AFFIRM the decision of the district

court. Appellants’ motion to supplement the record on appeal filed October 3,

2002, is granted.



                                                    Entered for the Court


                                                    Robert H. Henry
                                                    Circuit Judge




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