                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-1162
                                   ___________

United States of America,              *
                                       *
             Appellee,                 *
                                       * Appeal from the United States
       v.                              * District Court for the
                                       * District of Nebraska.
Justin Gabriel Hernandez,              *
also known as Jay,                     *
also known as Manuel Hernandez,        *
also known as Joshua Thomas Romero, *
also known as Patrick Joseph           *
Campanella, also known as Justin West, *
also known as Michael Jerry Garcia,    *
also known as Phillip S. Varela,       *
                                       *
             Appellant.                *
                                 ___________

                             Submitted: June 12, 2002

                                  Filed: August 22, 2002
                                   ___________

Before RILEY, BEAM, and MELLOY, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

       Justin Gabriel Hernandez was convicted by a jury of conspiracy to distribute and
possess with intent to distribute methamphetamine, cocaine, and marijuana, in
violation of 21 U.S.C. § 846, and of distribution and possession with intent to
distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The district court1
sentenced him to 360 months' imprisonment. Hernandez appeals his conviction and
sentence, claiming a variety of errors. We affirm.

I.    SUFFICIENCY OF THE EVIDENCE

        Hernandez first argues that the evidence was insufficient to support his
conviction for conspiracy to distribute methamphetamine. Reviewing a jury verdict
for sufficiency of the evidence requires us to review the evidence in the light most
favorable to the verdict, accepting all reasonable inferences as established. United
States v. Jimenez-Villasenor, 270 F.3d 554, 558 (8th Cir. 2001). A conviction by a
jury is reversed only if no reasonable jury could have concluded that the defendant was
guilty beyond a reasonable doubt on each essential element of the charge. Id. "This
standard is a strict one, and a jury verdict should not be overturned lightly." Id.

       To prove that a defendant was a member of a conspiracy to distribute controlled
substances, the government must demonstrate that there was a conspiracy (or
agreement) to distribute controlled substances, that the defendant knew of the
conspiracy, and that he intentionally joined the conspiracy. Id. A defendant's mere
presence and knowledge that someone else who was present intended to sell drugs are
insufficient to establish membership in a conspiracy. Id. However, the government
may prove a conspiracy by circumstantial evidence or by inference from the parties'
actions. Id. Once a conspiracy's existence has been established, slight evidence
connecting a defendant to it may be sufficient to prove the defendant's involvement.
Id.




      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.

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        At trial, Melanie Tucker and Hoyt Matthew Hedgecock, also known as "Matt,"
testified against Hernandez pursuant to agreements to cooperate with the government
in exchange for motions to reduce their sentences. Hernandez contends that:

      the Government's case consisted of the testimony of two cooperating
      witnesses – Mr. Hedgecock and Ms. Tucker – who made vague
      statements as to the nature and extent of Mr. Hernandez's participation in
      the alleged conspiracy. Their testimony was filled with assumptions and
      speculation as to the identities of individuals in Colorado who were
      allegedly supplying drugs and the reasons that Mr. Hernandez was
      associating with them. There were also inconsistencies and statements
      lacking credibility in their testimony.


        Although Hernandez' argument may implicate the credibility of the government's
witnesses, assessments of credibility are the province of the fact-finder. United States
v. Davis, 103 F.3d 660, 674 (8th Cir. 1996). He fails to undermine the sufficiency of
the evidence. For instance, the government presented testimony by Hedgecock that
Hernandez owed a drug distributor from Denver, known as "Jeremy," "a lot of money"
and "so Jeremy sent [Hernandez] out to Nebraska so he could make a little money."
After Hernandez came to Nebraska, he moved in with Hedgecock. Hedgecock
testified that he and Hernandez started getting larger quantities of drugs from Jeremy
because Hernandez was "more trustworthy" than Hedgecock's previous co-distributor.
Hedgecock further testified that Hernandez traveled to Denver several times with either
himself or Tucker to bring drugs back to Nebraska, and that on one occasion, they
obtained from Jeremy approximately a pound of methamphetamine, a half-kilo of
cocaine, and ten pounds of marijuana. Tucker testified that she had accompanied
Hernandez to collect money on various occasions. She also testified that sometime
after she drove Hedgecock to deliver cocaine to a customer, Hernandez told
Hedgecock that he needed to go collect payment from that customer and instructed him
to take a gun. Tucker further testified that she had observed Hernandez getting a
"white powdery substance" out of a safe for Hedgecock. Hedgecock testified that he

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and Hernandez kept drugs and money in the safe, and that Hernandez kept larger
quantities of drugs in the attic. Tucker testified that, upon Hernandez' instruction she
had wired drug money from Hernandez to Jeremy in Denver.

       Law enforcement officers stopped Tucker and Hernandez in Nebraska after they
returned from Denver with a substantial quantity of methamphetamine they had
obtained from Jeremy. Tucker testified that just prior to being stopped, they delivered
methamphetamine to Dan Zeiger. Upon leaving Zeiger's residence, Hernandez put a
trash bag and scale in the trunk of the car driven by Tucker, and he rode as a passenger.
Hernandez told Tucker that they "needed to drive to Omaha . . . and see if [another
person] wants the rest of this." When officers searched the vehicle, they found
methamphetamine in the trunk.

       The record generally suggests that Hernandez acted as an intermediary between
those who were higher than him in the drug operation and those who were beneath
him. A reasonable jury could have concluded that Hernandez was guilty of conspiring
to distribute controlled substances beyond a reasonable doubt.

II.   DENIAL OF BILL OF PARTICULARS

       Hernandez next argues that the district court erred when it overruled his motion
for a bill of particulars. Federal Rule of Criminal Procedure 7(f) states:

      The court may direct the filing of a bill of particulars. A motion for a bill
      of particulars may be made before arraignment or within ten days after
      arraignment or at such later time as the court may permit. A bill of
      particulars may be amended at any time subject to such conditions as
      justice requires.

A bill of particulars serves to inform the defendant of the nature of the charge against
him with sufficient precision to enable him to prepare for trial, to avoid or minimize

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the danger of surprise at trial, and to enable him to plead his acquittal or conviction in
bar of another prosecution for the same offense when the indictment is too vague and
indefinite. United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976). "To establish
reversible error from the denial of a motion for a bill of particulars, a defendant must
show that he was actually surprised at trial and suffered prejudice from the denial."
United States v. Fleming, 8 F.3d 1264, 1265 (8th Cir. 1993).

       Here, the district court denied Hernandez' first motion for a bill of particulars
because Hernandez had failed to comply with the terms of the court's progression
order. However, upon Hernandez' counsel submitting to the government questions
covering essentially the same information requested in the bill of particulars, the
government provided counsel with detailed responses. In comparing the responses
submitted to Hernandez' counsel with the record, we find that the responses provided
counsel with information that precluded surprise, and that Hernandez fails to establish
that he was actually prejudiced by the denial.

III.   ALLEGED GOVERNMENTAL SUPPRESSION OF FAVORABLE
       EVIDENCE

      Next, Hernandez argues that the government suppressed evidence favorable to
him in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that the trial court
erred when it determined no such violation had occurred. "To prove a Brady violation,
a defendant must show that the prosecution suppressed the evidence, the evidence was
favorable to the accused, and the evidence was material to the issue of guilt or
punishment." United States v. Duke, 50 F.3d 571, 577 (8th Cir. 1995). Evidence is
material if there is a reasonable probability that the outcome of the proceeding would
have been different if the evidence had been disclosed. Kyles v. Whitley, 514 U.S.
419, 433-34 (1995). A "reasonable probability" is one that is sufficient to undermine
confidence in the outcome of the proceeding. Clemmons v. Delo, 124 F.3d 944, 949
(8th Cir. 1997).

                                           -5-
       Hernandez contends that after the car driven by Tucker and registered in her
name was searched and drugs were located, Tucker advised the officer that Hernandez
had an ownership interest in the car. He therefore argues that when the government
opposed his motion to suppress based on Hernandez having no ownership interest in
the car and, therefore, no standing to challenge the search, the government improperly
withheld information as to the officer's knowledge of Hernandez' ownership interest.
We need not parse this argument too deeply because Hernandez has shown no
reasonable probability that the outcome of the motion to suppress hearing would have
been different had the officer's knowledge been revealed. Tucker initially gave an
officer consent to search the passenger compartment and, given that she was driving
the vehicle and that it was registered in her name, the officer was justified in relying
upon her consent. During that search, the officer arguably obtained probable cause to
search the vehicle further when he located marijuana seeds and pieces of marijuana
leaves in the passenger compartment. See United States v. Payne, 119 F.3d 637, 642
(8th Cir. 1997) ("Police may search a car without a warrant if they have probable cause
to believe that the car contains contraband or evidence. In such circumstances, the
police may search every part of the car and its contents that may conceal the object of
the search."). Therefore, even if Hernandez had an ownership interest in the car, and
even if the government should have revealed that interest to defense counsel when
Hernandez failed to provide such information himself, thus giving him standing to
challenge the search, Hernandez has failed to demonstrate a reasonable probability that
the outcome of the motion to suppress hearing would have been different.

IV.   EXPERT TESTIMONY REGARDING FINGERPRINT ANALYSIS

      Hernandez also argues that the district court erred in allowing Robert Citta's
expert testimony that a latent fingerprint found on a battery confiscated as evidence
matched that of Hernandez. We review for abuse of discretion a court's decision to
admit expert testimony. United States v. Larry Reed & Sons P'ship, 280 F.3d 1212,
1215 (8th Cir. 2002). Expert scientific testimony is generally admissible when it is

                                          -6-
reliable and will assist the trier of fact. Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 592-93 (1993); Larry Reed & Sons P'ship, 280 F.3d at 1215 (citing Federal Rule
of Evidence 702). The Supreme Court has indicated that various factors bear on a trial
court's decisions as to admissibility of such expert testimony. Daubert, 509 U.S. at
593-94. Those factors include, whether a theory or technique can be and has been
tested, whether it has been subjected to peer review and publication, the known or
potential rate of error and existence and maintenance of standards controlling the
technique or theory's operation, and whether the technique or theory has been generally
accepted within a relevant scientific community. Id.

        Hernandez, citing United States v. Llera Plaza, Nos. CR. 98-362-10, CR. 98-
362-11, 98-362-12, 2002 WL 27305, at *18 (E.D. Pa. Jan. 7, 2002), 179 F. Supp. 2d
492, vacated, withdrawn from publication, and superseded on reconsideration by 188
F. Supp. 2d 549 (E.D. Pa. 2002), contends that no evidence was presented that satisfied
Daubert's peer review factor. In Llera Plaza, the district court initially determined that,
because fingerprint identification does not satisfy Daubert, "expert witnesses [would]
not be permitted to . . . present 'evaluation' testimony as to their 'opinion' (Rule 702)
that a particular latent print is in fact the print of a particular person." 2002 WL 27305,
at *18. However, the court shortly thereafter vacated that decision and chose another
course. Llera Plaza, 188 F. Supp. 2d at 575-76. In its latter decision, the court
concluded expert testimony regarding fingerprint evidence should, subject to sufficient
trial court oversight, be regarded as satisfying Daubert and Kumho Tire Co. v.
Carmichael, 526 U.S. 137 (1999).

      Moreover, given the posture of the testimony in this particular case and the
overall record, the expert testimony was not determinative to the outcome. We
therefore find the court did not abuse its discretion in admitting Citta's testimony.




                                           -7-
V.    MOTION FOR CONTINUANCE

        Hernandez next argues that the trial court erred when it overruled his motion to
continue. He indicates that the government notified defense counsel four days before
trial that it would be calling an expert witness to present testimony regarding the
common practices used by dealers at various levels of drug distribution organizations.
However, at trial, the government never actually called that individual to testify but
failed to notify defense counsel of its decision until late into the trial. We review a
district court's denial of a motion for continuance for abuse of discretion and reverse
only if the movant was prejudiced thereby. United States v. Velasquez, 141 F.3d 1280,
1282 (8th Cir. 1998). Although in the matter before us the witness was never actually
called to testify, Hernandez contends that he was prejudiced by having to sacrifice
defense counsel's valuable trial preparation time to prepare for that witness. While we
certainly appreciate the preciousness of time preceding trial and do not want to
promote failures to observe courtesy, Hernandez fails to demonstrate actual prejudice.
See id. In other words, he has not shown what would have been done but for the false
start, nor how such omission would have led to a different result. Thus, we find that
the court's denial of Hernandez' motion for continuance does not amount to an abuse
of discretion.

VI.   APPRENDI ISSUES

       Hernandez next argues that the indictment failed to specify an exact quantity of
methamphetamine and cocaine mixtures or any quantity of marijuana and therefore
violates Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Court held
that any fact, other than a prior conviction, that"increases the penalty for a crime
beyond the prescribed statutory maximum" must be included in the indictment and
proven to the jury beyond a reasonable doubt. Id. at 490. However, the indictment
need not allege an exact drug quantity but must merely set forth ranges of quantities
relevant to the varying statutory maximums. United States v. Hollingsworth, 257 F.3d

                                          -8-
871, 878 (8th Cir. 2001), overruled on other grounds by United States v. Diaz, Nos. 00-
2188, 00-2317, 2002WL 1477158, at *3 (8th Cir. July 11, 2002).

      Here, the indictment charged Hernandez with conspiracy to distribute and
possess with intent to distribute 500 grams or more of a mixture or substance
containing a detectable amount of methamphetamine, 500 grams or more of a mixture
or substance containing a detectable amount of cocaine, and an unspecified amount of
marijuana. Because the indictment specified a drug quantity range set forth in 21
U.S.C. § 841(b) that allows a maximum sentence of life imprisonment, Hernandez was
not sentenced in violation of Apprendi.

      Hernandez goes on to argue that the indictment was defective because it failed
to specifically cite 21 U.S.C. § 841(b). However,

             [a]n indictment is legally sufficient on its face if it contains all of
      the essential elements of the offense charged, fairly informs the defendant
      of the charges against which he must defend, and alleges sufficient
      information to allow a defendant to plead a conviction or acquittal as a
      bar to a subsequent prosecution. An indictment will ordinarily be held
      sufficient unless it is so defective that it cannot be said, by any reasonable
      construction, to charge the offense for which the defendant was
      convicted.

Fleming, 8 F.3d at 1265 (citations omitted). Here, 21 U.S.C. § 841(b) is the penalty
provision for offenses set forth in section 841(a), and, by cross-reference, section 846.
As Hernandez acknowledges, the indictment alleges he violated 21 U.S.C. §§ 841(a)(1)
and 846, and, as we previously discussed, the indictment referenced drug quantity
ranges of methamphetamine and cocaine and some quantity of marijuana. Although
the indictment did not specifically cite section 841(b), the pertinent drug quantities
fulfilled the essential elements requirement necessary to satisfy Fleming and Apprendi.



                                           -9-
       Finally, Hernandez argues that, because the indictment did not specify an exact
drug quantity, the maximum drug quantity he should have been held responsible for
at sentencing was 500 grams, and that the district court improperly enhanced his
sentence for possessing a dangerous weapon during the course of the conspiracy to
distribute controlled substances and for his role as a manager in the conspiracy.
However, "Apprendi does not forbid a district court from finding the existence of
sentencing factors, including drug quantity, by a preponderance of the evidence; rather,
it prevents courts from imposing sentences greater than the statutory maximum based
on such findings." Diaz, 2002 WL 1477158, at *2. Because the indictment charged
drug quantities that carried the potential of yielding a life sentence, and because the
drug quantities and enhancements were supported by the record, Hernandez' sentence
of thirty years' imprisonment did not violate Apprendi.

VII. CONCLUSION

      For the reasons we have stated, we affirm.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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