                  REVISED MAY 1, 2008
       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                   Fifth Circuit

                                                                 FILED
                                                                 April 9, 2008
                                No. 06-51383
                                                           Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff - Appellee
v.

JESUS IGNACIO RAMOS-CARDENAS; JORGE ALBERTO
AGUIRRE-MELECIO; GUILLERMO LOPEZ-QUEZADA;
ROMAN ARGUELLES-AGUIRRE; FRANCISCO MELECIO-ARGUELLES;
RAMON OBREGON-LOPEZ; JOSE MELECIO-ARGUELLES;
JUAN PEDRO HURTADO-GARCIA; GABRIEL MELECIO-ARGUELLES;
FRANCISCO JAVIER AGUIRRE-MELECIO; JAIME
SUAREZ-DE LA ROSA
                               Defendants - Appellants



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


Before KING, STEWART, and PRADO, Circuit Judges.
PER CURIAM:
      Defendants-appellants Jesus Ignacio Ramos-Cardenas, Jorge Alberto
Aguirre-Melecio, Guillermo Lopez-Quezada, Roman Arguelles-Aguirre, Francisco
Melecio-Arguelles, Ramon Obregon-Lopez, Jose Melecio-Arguelles, Juan Pedro
Hurtado-Garcia, Gabriel Melecio-Arguelles, Francisco Javier Aguirre-Melecio,
and Jaime Suarez-De La Rosa appeal their convictions for possession of one
hundred or more kilograms of marijuana with intent to distribute and conspiracy
                                 No. 06-51383

to possess marijuana with intent to distribute. For the following reasons, we
AFFIRM.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      In the early morning hours of November 30, 2005, United States Border
Patrol Agent Santiago Gonzalez, Jr., spotted two groups of individuals—among
them the appellants in this case—walking northbound on U.S. Highway 90 in
southwest Texas. Agent Gonzalez’s vantage point was about a mile away, and
he was using a forward looking infrared scope (“FLIR”), an imaging device that
detects body heat in the dark. He spotted the first group, consisting of nine
individuals, at about 3:30 a.m. Agent Gonzalez saw these individuals cross a
fence and pass what appeared to be two to four backpacks over it, although the
limitations of infrared vision prevented Agent Gonzalez from clearly observing
the precise number or type of bags that were present. He also saw what
appeared to be one of the individuals putting on a backpack. This first group sat
down in a brushy area near a roadside park. The second group, consisting of
four individuals, appeared at about 5:00 a.m. Due to the effect of the rough
terrain on the FLIR, Agent Gonzalez could not tell whether these individuals
were also carrying bags. It was around this time that Agent Gonzalez alerted
other agents, who came to the scene.
      Shortly after 7:00 a.m., Agent Gonzalez saw one of the men, Francisco
Alejandro Huerta-Adriano, emerge from the brush, walk southbound, and
approach a white Ford Expedition SUV driven by Daniel Bennett Diaz. Huerta-
Adriano got into the driver’s seat of the SUV, and Diaz moved to the passenger
seat. Twelve men then approached the SUV in short succession before the SUV
drove off. While there was not enough daylight for Agent Gonzalez to see details
using the FLIR, Diaz later testified that it was light enough for him to see the
faces of the twelve men as they loaded bags of marijuana into the SUV.



                                       2
                                       No. 06-51383

       After the SUV had been loaded, the agents who had been summoned by
Agent Gonzalez pursued the SUV and chased down the twelve men who
remained on foot. Agents Rush Carter and John Pierce arrested the men on foot,
and Agent Carter later testified that it was then light enough for him to see and
recognize individual faces. Agents Shane Jahn and Juan Camacho apprehended
Diaz and Huerta-Adriano after the SUV careened off the road and through a
fence. The SUV contained approximately 197.54 kilograms of marijuana, packed
in potato sacks.1
           All fourteen men were taken into custody and transferred to Drug
Enforcement Administration officers. Officer Jose Rendon photographed the
men, read them their rights, and took their personal histories. Two men,
Gabriel Melecio-Arguelles and Guillermo Antelmo Quintana-Beltran (a
defendant below who is not a party to this appeal), gave inculpatory statements
to the authorities. All fourteen men were later indicted on charges of possession
of one hundred or more kilograms of marijuana with intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and conspiracy to possess
marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B), and 846. Diaz and Huerta-Adriano pleaded guilty before trial,
which, for the remaining twelve defendants, began on May 16, 2006.
       At trial, Diaz testified for the government and identified the defendants
as the individuals who had loaded the marijuana into the SUV. Diaz also
testified that he had entered into a plea agreement with the government, and




       1
        Diaz clarified in his testimony at trial that the marijuana was packaged in knapsacks.
Knapsacks, he explained, are potato sacks that are capable of being carried with or without
straps.    Twenty-two wrapped bundles of marijuana—carried in at least eleven
knapsacks—were recovered from the SUV. Although whether the knapsacks had straps was
disputed, the evidence showed that, at the very least, they had holes suitable for straps.
Moreover, a knapsack can be carried on a person’s back by slinging it over one shoulder or by
holding it with both hands over both shoulders.

                                              3
                                       No. 06-51383

that he hoped to receive a reduced sentence because of his assistance.2 Agent
Gonzalez, Officer Rendon, and other agents and officers related the events
leading up to and including the apprehension of the defendants and their
transfer to DEA custody.
       In addition, Officers Mark Arredondo and Ronaldo Saenz testified to
Gabriel Melecio-Arguelles and Quintana-Beltran’s post-arrest statements, as
these confessing defendants did not testify.               Before trial, the remaining
nonconfessing defendants filed a motion to sever their cases from the two who
had given statements to the authorities. The district court denied this motion,
but granted a motion in limine to exclude the statements as to the nonconfessing
defendants. A subsequent motion to suppress the statements entirely was
denied. Instead, each statement was redacted so as to avoid implicating anyone
other than the speaker, and Officers Arredondo and Saenz were instructed not
to use any plural pronouns, such as “we” or “they,” when relating the statements
to the jury. However, Officer Arredondo twice testified to Gabriel Melecio-
Arguelles’s statement in the plural, stating that Gabriel Melecio-Arguelles told
him that “he arrived in Acuna a week before they crossed.” (Emphasis added).
This drew objections from the other defendants, and the district court cautioned
the jury to disregard that portion of Officer Arredondo’s testimony. The other
defendants moved for a mistrial, but this motion was denied, and testimony
continued without incident. The district court also included an instruction in the
general charge that any out-of-court statement claimed to have been made by a
defendant “should not be considered in any way whatsoever as evidence with



       2
          In addition, Diaz testified to an extensive criminal history, including two burglary
convictions and a conviction for aggravated sexual assault of a child. He also admitted that
he had not been truthful with the authorities at the outset of the case. (He had initially told
the agents that he had been kidnapped at gunpoint by the driver of the SUV.) Finally, Diaz
testified that he had previously transported two loads of marijuana and four loads of cocaine
from Mexico into the United States.

                                              4
                                      No. 06-51383

respect to any other defendant on trial.” At the close of the government’s case,
the district court denied the defendants’ motion for a judgment of acquittal.
       During deliberations, the jury sent out a note to the district court asking,
“Why is Daniel Bennett Diaz the only name on the indictment and not the
names of the defendants?” Following a discussion with all counsel about how to
respond to the note,3 the district court provided the jury with the indictment
listing all the defendants’ names, accompanied by the following instruction:
              When an indictment is prepared, all named defendants
              appear in the style or the name of the case, such as
              United States of America versus John Doe number 1,
              John Doe number 2, John Doe number 3, and [ ] Jane
              Doe number 4.

              The courts often shorten this title so that it reads
              United States of America against John Doe number 1,
              et al. “Et al.” represents the other defendants in the
              indictment.

              In this case, Daniel Bennett Diaz was the first
              defendant listed in the indictment. His guilt has
              already been established by virtue of his plea of guilty.

              The second defendant in the indictment, Francisco
              Alejandro Huerta-Adriano, had also pled guilty.

              The fact that Mr. Diaz’s name appears [ ] on the name
              of the case should not affect your judgment in any way.
              Your job is to determine whether the Government has
              proved beyond a reasonable doubt that Defendants 3
              through 14, as listed in the indictment, committed the
              crimes charged in the indictment . . . .




       3
         One suggestion, which was objected to by Ramos-Cardenas, was to provide the jury
with a copy of the indictment listing the names of all of the men who had been indicted, but
crossing out the names of Diaz and Huerta-Adriano, who had pleaded guilty.

                                             5
                                  No. 06-51383

Only Gabriel Melecio-Arguelles objected to this solution. In its general charge
to the jury, the district court also included an instruction that an accomplice’s
guilty plea “is not evidence of the guilt of any other person.”
      On May 19, 2006, after about three hours of deliberation, the jury returned
guilty verdicts for all of the defendants on both counts charged in the indictment.
The district court imposed sentences to run concurrently for both counts ranging
from sixty to sixty-three months in prison, with either four or five years of
supervised release. Each defendant was also charged a $200 special assessment.
The district court entered judgments as to each defendant individually, and each
defendant herein filed a timely notice of appeal.
                               II. DISCUSSION
                                        A.
      The following defendants challenge their convictions on sufficiency of the
evidence grounds:      Ramon Obregon-Lopez, Francisco Melecio-Arguelles,
Guillermo Lopez-Quezada, Jorge Alberto Aguirre-Melecio, Roman Arguelles-
Aguirre, Jaime Suarez-De La Rosa, Francisco Javier Aguirre-Melecio, and Jesus
Ignacio Ramos-Cardenas. In addition, Juan Pedro Hurtado-Garcia and Jose
Melecio-Arguelles argue that the district court erroneously denied their motions
for a new trial because, they contend, the verdict was against the weight of the
evidence.
      In order to prove possession of marijuana with intent to distribute, the
government must prove beyond a reasonable doubt the (1) knowing possession
(2) of marijuana (3) with intent to distribute. United States v. Resio-Trejo, 45
F.3d 907, 911 (5th Cir. 1995). Conspiracy to possess marijuana with intent to
distribute requires proof beyond a reasonable doubt additionally of (1) the
existence of an agreement 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). Possession may be

                                        6
                                  No. 06-51383

actual or constructive, may be joint among several defendants, and may be
proven by direct or circumstantial evidence. See United States v. Vergara, 687
F.2d 57, 61 (5th Cir. 1982). Further, the intent to distribute may be inferred
from the possession of a large quantity of the drug. United States v. Prieto-
Trejas, 779 F.2d 1098, 1101 (5th Cir. 1986).
      A district court’s decision to grant or deny a motion for a new trial is
reviewed for a clear abuse of discretion. United States v. Robertson, 110 F.3d
1113, 1116 (5th Cir. 1997). “The trial judge may weigh the evidence and may
assess the credibility of the witnesses during its consideration of the motion for
new trial.” Id. at 1117. But the “court may not reweigh the evidence and set
aside the verdict simply because it feels some other result would be more
reasonable.” Id. at 1118. Rather, the “evidence must preponderate heavily
against the verdict, such that it would be a miscarriage of justice to let the
verdict stand.” Id. (citations omitted).
      When reviewing the sufficiency of the evidence for the purposes of a
motion for acquittal, our task is merely to “determine whether . . . a rational jury
could have found the essential elements of the offense beyond a reasonable
doubt. We are concerned only with whether the jury made a rational decision,
not whether its verdict was correct on the issue of guilt or innocence.” United
States v. Frye, 489 F.3d 201, 207 (5th Cir. 2007) (internal citations and quotation
marks omitted). To this end, we “review the evidence and the reasonable
inferences which flow therefrom in the light most favorable to the verdict.” Id.
(internal quotation marks omitted). In reviewing the sufficiency of the evidence,
we do not weigh evidence or assess the credibility of witnesses, and the jury is
free to choose among reasonable constructions of the evidence. United States
v. Ibarra, 286 F.3d 795, 797 (5th Cir. 2002). It “is not necessary that the
evidence exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt.” Resio-Trejo, 45 F.3d at

                                           7
                                  No. 06-51383

911 (internal quotation marks omitted). Nonetheless, the government must do
more than show that the defendants “could have been guilty.” United States v.
Sacerio, 952 F.2d 860, 863 (5th Cir. 1992). Therefore, if “the evidence tends to
give equal or nearly equal circumstantial support to guilt and to innocence, . . .
reversal is required . . . .” United States v. Ortega Reyna, 148 F.3d 540, 543 (5th
Cir. 1998) (internal quotation marks omitted).
      In this case, the evidence shows that the defendants were observed by law
enforcement officials continuously from the time they walked to the roadside
park on Highway 90 through the time of their apprehension, arrest, and booking.
Diaz positively identified the defendants as the individuals that loaded the
knapsacks of marijuana into the car. And, although Diaz may not be an ideal
witness, his testimony that at 7:00 a.m. it was light enough to see the faces of
the men who were loading marijuana into the SUV was corroborated by that of
Agent Carter, who stated that at “that point the daylight was good.” Further,
the jury heard all of the impeachment evidence, yet still apparently credited
Diaz’s testimony in this case.
      Agent Gonzalez testified that he could see two to four packs through the
FLIR, which is intended to detect body heat, not necessarily baggage. He also
testified that there may have been more bundles than he could discern using the
FLIR. Agent Gonzalez’s testimony is corroborated by that of Diaz, who testified
that he saw the defendants loading the knapsacks into the SUV, and also by the
photograph of approximately eleven knapsacks of marijuana recovered from the
SUV. This evidence, combined with the fact that the defendants were under
constant surveillance by law enforcement officials from the time that they were
spotted on Highway 90 through the time of their arrest, is sufficient to support
the jury’s verdict in this case. The district court did not err in determining that
the weight of the evidence supported the jury’s verdict. Thus, we affirm the
district court’s denial of the motions for acquittal and motions for a new trial.

                                        8
                                         No. 06-51383

                                                B.
       Some of the defendants also argue that their rights under the Sixth
Amendment’s Confrontation Clause were violated by admission of the post-
arrest statements given by codefendants Gabriel Melecio-Arguelles and
Quintana-Beltran, even though the jury was instructed that any out-of-court
statement could only be considered as evidence against the speaker, and not the
other defendants.4 “Alleged violations of the Confrontation Clause of the Sixth
Amendment are reviewed de novo, but are subject to a harmless error analysis.”5
United States v. Jimenez, 464 F.3d 555, 558 (5th Cir. 2006) (quoting United
States v. Bell, 367 F.3d 452, 465 (5th Cir. 2004)) (internal brackets omitted).
       The Confrontation Clause provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with witnesses against him
. . . .” U.S. CONST. amend. VI. The Supreme Court has explained that “the
principal evil at which the Confrontation Clause was directed was the . . . use of

       4
         Specifically, the following defendants challenge the district court’s denial of their
objections to the admission of the out-of-court statements given by Gabriel Melecio-Arguelles
and Quintana-Beltran, as well as the district court’s denial of their subsequent motions for a
mistrial, or, in the alternative, a new trial: Juan Pedro Hurtado-Garcia, Francisco
Melecio-Arguelles, Guillermo Lopez-Quezada, Jose Melecio-Arguelles, Jorge Alberto
Aguirre-Melecio, Roman Arguelles-Aguirre, Jaime Suarez-De La Rosa, Francisco Javier
Aguirre-Melecio, and Jesus Ingacio Ramos-Cardenas. In addition, the following defendants
challenge the district court’s denial of their pretrial motions for severance, which were based
on the theory that they would be prejudiced if tried with the confessing defendants without
being able to cross-examine them: Jaime Suarez-De La Rosa, Juan Pedro Hurtado-Garcia,
Jose Melecio-Arguelles, and Jorge Alberto Aguirre-Melecio. We find no merit in Obregon-
Lopez’s argument that the district court abused its discretion in failing to sever the cases of the
defendants based on their hometowns in Mexico.
       5
         We recognize that some of our cases indicate that the proper standard of review for
possible “Bruton violations” is abuse of discretion (“Bruton” refers to Bruton v. United States,
391 U.S. 123 (1968), a Confrontation Clause case discussed herein). E.g., United States v.
Walker, 148 F.3d 518, 522 (5th Cir. 1998); United States v. Fletcher, 121 F.3d 187, 197 (5th
Cir. 1997); United States v. Beaumont, 972 F.2d 91, 95 (5th Cir. 1992). The confusion here
seems to stem from the fact that we employ an abuse of discretion standard when reviewing
denials of motions for severance, and it is common for defendants to seek a severance on the
ground that a codefendant has given a statement that inculpates them. See United States v.
Basey, 816 F.2d 980, 1004 (5th Cir. 1987).

                                                9
                                  No. 06-51383

ex parte communications as evidence against the accused.”             Crawford v.
Washington, 541 U.S. 36, 50 (2004). Thus, in the context of a multi-defendant
trial, “the pretrial confession of one [defendant] cannot be admitted against the
other[s] unless the confessing defendant takes the stand.” Richardson v. Marsh,
481 U.S. 200, 206 (1987).
      Here, though, the jury was instructed not to consider the post-arrest
statements of Gabriel Melecio-Arguelles and Quintana-Beltran as evidence
against any defendant other than the speaker. “Ordinarily, a witness whose
testimony is introduced at a joint trial is not considered to be a witness ‘against’
a defendant if the jury is instructed to consider that testimony only against a
codefendant”; thus, the general rule is that when a codefendant’s prior statement
is admitted with an instruction that it be considered as evidence against only the
codefendant, and not the other defendants, the other defendants have not
suffered a violation of their Confrontation Clause rights. Id. In Bruton v. Smith,
however, the Supreme Court recognized an exception to this rule for codefendant
statements that “expressly implicat[e]” another defendant. 391 U.S. 123, 124 n.1
(1968). The Court found that there is too great a risk that the jury will consider
“the powerfully incriminating extrajudicial statements of a codefendant” as
evidence of the other defendant’s guilt, even when a limiting instruction is given.
Id. at 135–36.
      The Supreme Court has twice considered the scope of Bruton.                In
Richardson v. Marsh, the Court determined that a defendant’s Confrontation
Clause rights were not violated by the admission of a codefendant’s confession
that was redacted to omit any reference to the other defendant, as well as any
indication that anyone other than the codefendant and an identified third party
(who was not on trial) participated in the crime. 481 U.S. at 202–03. As to the
other defendant, the codefendant’s confession in Richardson “was not
incriminating on its face, and became so only when linked with evidence

                                        10
                                   No. 06-51383

introduced later at trial . . . .” Id. at 208. The Court reasoned that when a
codefendant’s statement only gives rise to this type of “inferential incrimination,”
it is less likely that the jury will be unable to follow the instruction to disregard
it in assessing the defendant’s guilt. Id.
      Next, in Gray v. Maryland, the Court determined that a defendant’s
Confrontation Clause rights were violated by the admission of a codefendant’s
confession that was redacted by replacing the defendant’s name with blank
spaces and, when read into evidence at trial, the word “deleted” or “deletion.”
523 U.S. 185, 188 (1998). The Court explained that “a jury will often react
similarly to an unredacted confession and a confession redacted in this way, for
the jury will often realize that the confession refers specifically to the
defendant[,]” and warned that “the obvious deletion may well call the jurors’
attention specially to the removed name.” Id. at 193. The Court conceded that
the jury would have had to use inference to connect the redacted statement to
the defendant, and further conceded that Richardson had “placed outside the
scope of Bruton’s rule those statements that incriminate inferentially[,]” but
distinguished Richardson—which, the Court explained, “must depend in
significant part upon the kind of, not the simple fact of, inference”—on the basis
that the accusation made by the redacted confession was “more vivid than
inferential incrimination, and hence more difficult to thrust out of mind.” Id. at
195–96 (internal quotation marks omitted).
      At issue here are the post-arrest statements given by Gabriel Melecio-
Arguelles and Quintana-Beltran.         The district court ordered that these
statements be redacted to eliminate all reference to defendants other than the
speaker, and the jury was instructed not to consider the statements as evidence
against any defendant other than the speaker. We think it clear that the
admission of such statements into evidence poses no threat to the other
defendants’ Confrontation Clause rights under Richardson. However, when the

                                         11
                                  No. 06-51383

substance of Melecio-Arguelles’s statement was related to the jury, Officer
Arredondo used the pronoun “they.” Specifically, Officer Arredondo twice stated
that Gabriel Melecio-Arguelles admitted to him that “they crossed.” (From the
context, it is clear that the reference is to crossing the Rio Grande from Mexico
into Texas.)   The question remains whether this testimony constituted a
violation of the Confrontation Clause.
      We first note that Officer Arredondo corrected his apparently inadvertent
misstatement and did not use any plural pronouns in his remaining testimony.
We note further that the statement “they crossed” uses an indefinite pronoun
and does not make any direct reference to the other defendants. This is not the
same type of obvious redaction that the Gray Court feared might cause a jury to
conclude that a specific reference to other defendants was intended. In addition,
the statement that “they crossed” the Rio Grande, is not, in and of itself, facially
incriminating. Even if “they” is taken to refer to the other defendants, these
defendants were not charged with illegal entry or importation, so the statement
that “they crossed” the river does not directly implicate them in a charged crime.
      It is true, however, that the statement “they crossed” might serve to
incriminate the other defendants by inference. The government’s theory of the
case was that thirteen individuals transported marijuana across the United
States–Mexico border in the early morning hours of November 30, 2005, and
delivered it to Diaz at the roadside park. Within this context, Gabriel Melecio-
Arguelles’s statement incriminates the other defendants if certain inferences are
drawn: that the “they” who crossed the river with Gabriel Melecio-Arguelles
were engaged in the transportation of marijuana, and that “they” referred to the
other defendants.
      Nonetheless, we do not think that the use of the word “they” two times in
Officer Arredondo’s testimony gives rise to the same kind of inferences that the
Court found offensive to the Confrontation Clause in Gray. There, the Court

                                         12
                                   No. 06-51383

took issue with statements “that, despite redaction, obviously refer[red] directly
to someone, often obviously the defendant, and which involve[d] inferences that
a jury could ordinarily make immediately, even were the confession the very first
item introduced at trial.” Gray, 523 U.S. at 196. Here, though, the use of an
indefinite pronoun does not so obviously refer to specific individuals, and we see
nothing in the statement “they crossed” that gives rise to inferences so strong
that they would be made immediately if the statement were the first item
introduced at trial. The inferences here are more indirect, and the statement
simply does not convey the same type of “vivid” accusation that the Court found
troubling in Gray. Rather, this seems to be an instance where the statement
does not offend the Confrontation Clause because it only becomes incriminating,
if at all, “when linked with evidence introduced later at trial.” Richardson, 481
U.S. at 208.
      Furthermore, Gray itself suggests that the use of an indefinite pronoun
such as “they” is acceptable in this type of situation. In Gray, the Court noted
that additional redaction of a statement that uses blank spaces or the word
“delete” is usually possible, and gave the following example:
               The witness who read the confession told the jury that
               the confession (among other things) said,
                  “Question: Who was in the group that beat Stacy?
                  “Answer: Me, deleted, deleted, and a few other
                  guys.”

               Why could the witness not, instead, have said:
                 “Question: Who was in the group that beat Stacy?
                 “Answer: Me and a few other guys.”

Gray, 523 U.S. at 196. If the use of the indefinite phrase “a few other guys” in
the above example (which, we note, directly implicates the “few other guys” in
the crime charged) is acceptable under the Confrontation Clause, then we fail to
see why it was not acceptable in this case to use the phrase “they crossed,” which


                                        13
                                       No. 06-51383

is arguably more indefinite than “a few other guys” (in that it does not identify
the gender of the other individuals) and does not directly implicate anyone in the
crimes charged.6
       We note that subsequent to its decisions in Bruton, Richardson, and Gray,
the Supreme Court decided another Confrontation Clause case, Crawford v.
Washington, which held that the Sixth Amendment bars the admission of
testimonial hearsay against a criminal defendant unless the witness is
unavailable and the defendant had a prior opportunity for cross-examination.7
541 U.S. at 68. Crawford involved the admission of an unavailable witness’s
out-of-court statement in a single-defendant trial, and thus did not speak
directly to the issue before us. Id. at 38. However, while Crawford certainly
prohibits the introduction of a codefendant’s out-of-court testimonial statement
against the other defendants in a multiple-defendant trial, it does not signal a
departure from the rules governing the admittance of such a statement against
the speaker-defendant himself, which continue to be provided by Bruton,
Richardson, and Gray. See United States v. Vasilakos, 508 F.3d 401, 407–08 (6th
Cir. 2007) (applying Bruton and finding no violation of the Confrontation Clause
in the reading of a codefendant’s redacted statement); United States v.
Rodríguez–Durán, 507 F.3d 749,768–70 (1st Cir. 2007) (separately analyzing


       6
         That is not to say that it would not have been preferable for Officer Arredondo to
relate Melecio-Arguelles’s statement entirely in the singular. This is undoubtedly the safer
course, as codefendant statements that give absolutely no indication that anyone else
participated in the crime are more likely to fall within the class of statements that do not
offend the Confrontation Clause. See Richardson, 481 U.S. at 203. Repeated use of an
indefinite pronoun may, in some circumstances, give rise to a Confrontation Clause violation.
See United States v. Williams, 429 F.3d 767, 773–74 (8th Cir. 2005) (suggesting, but ultimately
not deciding, that redacting a statement by substituting “someone” for the numerous
references to the defendant’s name may violate the Confrontation Clause).
       7
        Crawford overruled Ohio v. Roberts, 448 U.S. 56 (1980), which conditioned the
admission of hearsay evidence on whether it fell under a firmly rooted hearsay exception or
was trustworthy. Crawford, 541 U.S. at 60 (citing Roberts, 448 U.S. at 66).

                                              14
                                      No. 06-51383

admission of an out-of-court statement for Bruton error and Crawford error);
United States v. Williams, 429 F.3d 767, 773 n.2 (8th Cir. 2005) (“We note that
Crawford did not overrule Bruton and its progeny . . . .”) (citations omitted);
United States v. Lung Fong Chen, 393 F.3d 139, 150 (2d Cir. 2004) (“[W]e see no
indication that Crawford overrules Richardson or expands the holding of
Bruton.”).
                                             C.
       Finally, some of the defendants argue that the district court erred in
responding to the jury note during deliberations.8 The jury asked, “Why is
Daniel Bennett Diaz the only name on the indictment and not the names of the
defendants?” Apparently the jury was referring not to the indictment, but to the
jury instructions, which were styled “United States of America v. Daniel Bennett
Diaz, et[] al.” In response, the district court submitted a copy of the indictment
to the jury, along with a note explaining that the first two individuals listed on
the indictment, Diaz and Huerta-Adriano, had pleaded guilty, and that the jury’s
job was to determine if the government had proved the guilt of the other
defendants beyond a reasonable doubt. Because Gabriel Melecio-Arguelles
objected to the district court’s response to the jury note, which can be considered
a jury instruction, we review for abuse of discretion, subject to harmless error
analysis. United States v. Nguyen, 493 F.3d 613, 619, 622 (5th Cir. 2007). For
the defendants who did not object, we review for plain error. United States v.
Gray, 96 F.3d 769, 775 (5th Cir. 1996). Regardless of what standard is used, we
find no reversible error in the district court’s response to the jury note.
       The general rule is that “evidence about the conviction of a coconspirator
is not admissible as substantive proof of the guilt of a defendant.” United States



       8
        These defendants are Gabriel Melecio-Arguelles, Jose Melecio-Arguelles, Jorge Alberto
Aguirre-Melecio, and Guillermo Lopez-Quezada.

                                             15
                                  No. 06-51383

v. Leach, 918 F.2d 464, 467 (5th Cir. 1990) (citations omitted). That being said,
it clearly was not error for the district court to state in the response to the jury
note that Diaz had pleaded guilty, as this fact was already properly before the
jury: evidence of a testifying coconspirator’s conviction is admissible (and
commonly used) for impeachment purposes, and the fact of Diaz’s plea was
referenced by both the government and the defense while he was on the stand.
See id. at 467 & n.4; United States v. Baez, 703 F.2d 453, 455 (10th Cir. 1983) (“If
the codefendant testifies, . . . either the government or the defense may elicit
evidence of a guilty plea for the jury to consider in assessing the codefendant’s
credibility as a witness.”).
      The disclosure of Huerta-Adriano’s guilty plea to the jury presents a more
difficult question, as unlike Diaz, Huerta-Adriano did not testify at trial. The
defendants rely primarily on United States v. Hansen, 544 F.2d 778 (5th Cir.
1977), to argue that the disclosure of this plea was error. In Hansen, we found
reversible error where the district court informed the jury venire prior to voir
dire that a codefendant had already pleaded guilty. Id. at 779. The codefendant
had made his plea before the trial began and had never been seen by the
prospective jury members, so “[t]here was no need to explain his absence.” Id.
at 780.
      We first note that Hansen is distinguishable from this case in several
respects. For one, the district court here was responding to a question from the
jury during deliberations, and did not simply inject the issue of the
coconspirator’s plea into the proceedings on its own accord, as was the case in
Hansen. And though the jury note specifically named only Diaz, and not Huerta-
Adriano, the district court no doubt anticipated that the jury would be confused
by the presence of any name on the indictment that did not correspond to the
defendants who were on trial, not just Diaz’s. See United States v. Johnson, 455
F.2d 311, 316 (5th Cir. 1972) (finding no error where “[t]he court was attempting

                                        16
                                   No. 06-51383

to satisfy the predictable confusion and curiosity of the jury when confronted
with the fact that [a codefendant who had pleaded guilty] was indicted as the
others had been but was not on trial . . . .”).
      An additional consideration is that unlike the codefendant in Hansen,
Huerta-Adriano was not entirely absent from the trial. Rather, it was not until
after voir dire was concluded, and shortly before the jury was seated, that
Huerta-Adriano’s attorney informed the district court (outside the presence of
the jury) that Huerta-Adriano would be pleading guilty.            We have “long
recognized that in some instances it is necessary for a trial court to explain a co-
defendant’s absence.” Hansen, 544 F.2d at 780. While the best course on such
an occasion is undoubtedly “a simple explanation that the case [is] proceeding
against the [other defendants] only and the jury should not be concerned with
any other party,” the district court’s explanation here was preferable to
“leav[ing] the jury full of curiosity, conjecture, and uncertainty.” Id.
      Notwithstanding these distinctions, we admit that we are troubled by the
district court’s disclosure of Huerta-Adriano’s guilty plea to the jury. Ultimately,
though, we decline to decide whether this was error, as the error, if any, was
harmless. Even if a jury instruction was given in error, “we will not reverse if
we determine, based on the entire record, that the challenged instruction could
not have affected the outcome of the case.” Nguyen, 493 F.3d at 623 (internal
quotation marks omitted); see also United States v. Blevins, 960 F.2d 1252 (4th
Cir. 1992) (invoking the harmless error doctrine where guilty pleas of non-
testifying coconspirators were mentioned at trial). Here, there was substantial
evidence of the defendants’ guilt, as recounted earlier. In addition, the district
court instructed the jury that the guilty plea of an alleged accomplice is not
evidence of any other defendant’s guilt. The “almost invariable assumption” is
that jurors follow such instructions, Richardson, 481 U.S. at 206, and there is
no reason to deviate from this general rule here. By the time the jury was

                                         17
                                        No. 06-51383

informed that Huerta-Adriano had pleaded guilty, it had already learned that
another defendant had pleaded guilty (Diaz), and that two others had given
inculpatory statements to the authorities (Gabriel Melecio-Arguelles and
Quintana-Beltran). If we are to assume that the jury, in determining whether
the other defendants were guilty, was able to follow the district court’s
instructions and disregard the fact that three defendants had already admitted
their guilt in one form or another, we see no reason not to assume that the jury
was also able to disregard the fact that a fourth defendant had pleaded guilty.9
                                   III. CONCLUSION
       For the foregoing reasons, we AFFIRM the defendants’ convictions.




       9
         We also note that because the jury was not informed of Huerta-Adriano’s guilty plea
until after the close of evidence and closing arguments, the prosecutor never had a chance to
emphasize the plea or argue that it was relevant to the question of the other defendants’ guilt.
See Leach, 918 F.2d 467 (one factor to consider is whether there was an “improper emphasis
or use of the plea as substantive evidence”). In addition, we further note that Gabriel
Melecio-Arguelles, the defendant who properly reserved this point of error by objecting at trial,
was also one of the defendants who gave an inculpatory post-arrest statement.

                                              18
