                                                                                    United States Court of Appeals
                                                                                             Fifth Circuit
                                                                                           F I L E D
                                     Corrected November 2, 1999
                                                                                            August 5, 1999
               IN THE UNITED STATES COURT OF APPEALS
                                                  Charles R. Fulbruge III
                                                                                                  Clerk
                                FOR THE FIFTH CIRCUIT
                                           _______________

                                             No. 98-20438
                                           _______________



                               UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                                VERSUS

       JORGE GUSTAVO MUNERA-URIBE; SAMUEL MORENO-RAMOS;
       MELQUECEDEC HURTADO MORENO; CARLOS A. RODRIGUEZ-
        ESTUPINAN; SAMUEL VALOIS, a/k/a GERALD EDWIN JAMES,

                                                               Defendants-Appellants.


                                    _________________________

                            Appeals from the United States District Court
                                 for the Southern District of Texas
                                          (H-97-CR-223)
                                  _________________________

                                             August 5, 1999

Before SMITH, WIENER, and                                 A jury found Jorge Munera-Uribe (“Mu-
  BARKSDALE, Circuit Judges.                           nera”), Samuel Moreno-Ramos (“Ramos”),
                                                       Melquecedec Moreno (“Moreno”), Carlos
JERRY E. SMITH, Circuit Judge:*                        Rodriguez-Estupinan (“Rodriguez”), and Sam-
                                                       uel Valois (“Valois”) guilty of possession with
                                                       intent to distribute cocaine, in violation of
   *
     Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
                                                          *
lished and is not precedent except under the lim-           (...continued)
                                    (continued...)     ited circumstances set forth in 5TH CIR. R. 47.5.4.
21 U.S.C. § 841, and of conspiracy to do the          in the Pappas parking lot. This time, Valois
same, in violation of 21 U.S.C. § 846. Defen-         was the passenger of a silver Ford Taurus,
dants appeal their convictions and sentences          which was being driven by his brother, Juan
on a variety of grounds, including sufficiency        Valois.1 In return for the money, Sonny
of the evidence, admissibility of the evidence,       received one kilogram of cocaine. Juan Valois
alleged government misconduct, and incorrect          left the scene in his Taurus, Samuel Valois in
application of the sentencing guidelines. We          the Acura.
affirm.
                                                         Deputy Sheriff William Tipps followed the
                       I.                             Taurus to an apartment complex at 4545 Cook
   On August 11, 1997, at the direction of            Road, where Juan Valois left the car and
Special Agent Michael Dubet of the DEA,               entered apartment 712. Tipps kept an eye on
confidential informant “Sonny” met with Ro-           the apartment throughout the day. Eventually,
sina Vinulla Russo, a codefendant not party to        he saw Samuel and Juan Valois leave the
this appeal, at a Benningan’s Restaurant in           apartment complex together in the Taurus.
Houston, Texas. The purpose of this meeting           They drove to a Fiesta Food Mart, where they
was to discuss the purchase of one kilogram of        met with Ramos. After a ten-minute con-
cocaine. It was agreed that Russo would sell          versation, they shook hands and departed their
Sonny the cocaine for $18,000. The trans-             separate ways.
action would take place on August 13 at the
Westwood Mall.                                            In September, Dubet directed Sonny to
                                                      contact Russo to set up another cocaine pur-
   On August 13, Dubet drove Sonny to the             chase. Sonny and Russo arranged to meet on
Westward Mall. A meeting was held in Rus-             September 18 at Houston’s Restaurant to
so’s gold Acura sedan among Sonny, Russo,             discuss the potential drug transaction. Sonny
and Russo’s boyfriend Valois. At this meet-           arrived at the restaurant first, followed by
ing, a follow-up meeting was arranged, to be          Valois and Russo. Russo and Valois agreed to
held at a Bennigan’s restaurant. Because of           sell Sonny seven kilograms of cocaine for
police presence, this follow-up meeting was           $119,000. After Sonny had shown Russo the
moved to an adjacent Pappas Barbecue res-             money, he was told that he would receive a
taurant.                                              phone call from them later in the day with
                                                      details on how to complete the transaction.
   At Pappas, Dubet, acting undercover, met           This subsequent phone call informed Sonny
with Sonny, Russo, and Valois. A code-                that the drug transaction would be completed
fendant not party to this suit took Dubet into        at an Academy Sporting Goods store.
the restroom and showed him the kilogram of
cocaine that was for sale. Saying he did not            When Russo and Valois had left Houston’s
presently have enough money on him, Dubet             Restaurant (in the Acura), surveillance units
postponed the transaction’s culmination, and
the parties dispersed.
                                                         1
                                                           Juan Valois is not a party to this appeal. He
   Shortly thereafter, Sonny called Valois, in-       will be referred to as “Juan Valois” throughout this
dicating that he had the money. He met Valois         opinion; appellant Samuel Valois will be referred
                                                      to as “Samuel Valois” or simply as “Valois.”

                                                  2
followed them to Barney’s Billiards, where             wanted to purchase an additional four kilo-
Russo was dropped off. Valois continued on             grams of cocaine from him.2 Moreno agreed
to the Hong Kong Food Market.                          to meet Russo at a Fiesta Supermarket to pick
                                                       up his money. Moreno arrived at the Fiesta in
    There, Officer Craig Thomas of the sheriff's       a brown pickup truck. After he was identified
department saw a black Isuzu Rodeo pull up             by Russo, Moreno was arrested. His pager
to the Acura. The driver of the Rodeo was a            was seized, and it contained Russo’s cell
Hispanic male who appeared to be in his mid-           phone number.
thirties (later identified as Juan Hernandez-
Colon (“Hernandez”), a defendant not party to             When Ramos returned the page, Russo told
this appeal). The passenger of the Rodeo,              him that his money (for the five kilograms of
Ramos, left the Rodeo and entered the Acura,           cocaine he had provided)3 was available.
carrying a blue gym bag with him, later found          Ramos too was told to meet Russo at the
to contain five kilograms of cocaine. The              Fiesta to collect his money. When Ramos
Rodeo and the Acura then went their separate           arrived at the Fiesta, he was identified by
ways from the parking lot.                             Russo and subsequently arrested. As with
                                                       Moreno, Ramos’s pager was found to contain
    The Acura was followed back to Barney’s            Russo’s phone number.
Billiards, where Ramos left the vehicle and
was replaced by Russo. At a Southwestern                  Meanwhile, Thomas had followed the
Bell Telephone training center, Russo exited           Rodeo, seen driven by Hernandez, to an apart-
the Acura and entered a van, which went to             ment complex at 8300 Sandspoint Drive. At
the Academy parking lot, to meet with Sonny            the apartment parking lot, Thomas lost sight of
to complete the drug transaction arranged ear-         Hernandez but did locate the Rodeo and
lier in the day. Valois remained in the Acura          surveyed it for approximately three hours until
and followed Russo to Academy. On arriving             other law enforcement officers arrived.
there, they were arrested.
                                                           Sometime after 9:00 p.m., when the other
   A search of the Acura revealed two blue             officers arrived, Thomas observed a Hispanic
gym bags in the trunk: one containing five             male (later confirmed to be Hernandez) de-
kilograms of cocaine, another containing two.          scend the stairs of the apartment complex from
After reading them their rights in Spanish,            a second floor landing. As Hernandez passed
Dubet interrogated Russo and Valois. He was            the officers, greetings were exchanged in Eng-
told that two of the kilograms were from one           lish. When Hernandez went to the Rodeo and
source (a Colombian known as “Fecho,” later            unlocked its door, Thomas approached him
identified as Moreno), and five from another           and identified himself as a deputy sheriff.
(“Sammy” or “El Negro,” later identified as
Ramos).
                                                          2
                                                            As would be expected in a telephone conversa-
   Russo agreed to page Moreno and Ramos               tion between drug traffickers, the word “cocaine”
to her cellular phone and allowed agents to            was never explicitly used by either Russo or Mo-
record the subsequent conversations. Russo             reno.
told Moreno that she had his money and
                                                          3
                                                              Again, the word “cocaine” was never used.

                                                   3
Thomas informed Hernandez that he had been              tion.”
seen present at a drug transaction earlier in the
day and was therefore suspected of drug traf-              To det ermine the apartment from which
ficking. Hernandez was read his rights, and             Munera and Hernandez had come, Fanning
Hernandez acknowledged them in English.                 asked Munera “which apartment his friend was
                                                        in.” Munera again responded: “no hablo
   After some initial denials, Hernandez con-           ingles.” Fanning pressed Munera to show the
fessed to his involvement in the drug deal. He          officers his friend’s apartment, and he nodded
told the officers that he had delivered drugs for       his head approvingly. He took them to the
his friends “Carlos” and “Jorge,” who lived in          second floor landing from which he and Her-
the apartment complex. He then pointed to               nandez had descended.
the second floor landing, from which he had
descended, as the location of their apartment.             Once there, the officers were presented
                                                        with a choice of two apartments to search:
   While Hernandez was still being ques-                apartments 1714 and 1716. Munera indicated
tioned, DEA Agent Marty Fanning observed                (by pointing with his nose) that apartment
another Hispanic male (later identified as Mu-          1716 was the apartment of his friends. The
nera) descend the same stairs as Hernandez              agents knocked on that door, but no one
had. They noticed Munera make eye contact               answered. They opened the door via a key
with the handcuffed Hernandez and saw him               they had found on Munera. No one was in the
become visibly nervous. They also noticed               apartment. Subsequent investigation would
that Munera was speaking on a cellular phone            reveal that this same key opened the door to
as he passed by, in English. Fanning asked              apartment 1714 as well.
Hernandez whether Munera was one of his
two friends; Hernandez replied “no.”                       Thomas noticed that the lights were on in
                                                        apartment 1714. Peering into its window, he
    Nevertheless, Fanning approached Munera             saw a man seated on a couch (later identified
and asked whether his name was “Jorge.”                 to be Carlos Rodriguez). When the officers
Munera replied “no” and told Fanning that his           knocked on the door, Rodriguez jumped up
name was “Gustavo.” When asked for iden-                and ran out of view. A woman, Ms. Hurtado,
tification, Munera produced a driver’s license          opened the door, and the officers identified
with the name “Jorge Gustavo Munera-Uribe.”             themselves. When asked whether anyone else
When asked why he had lied, Munera looked               was inside the apartment, Hurtado said “no,”
down at the ground and proclaimed “no hablo             immediately heightening the suspicions of the
ingles.” This despite the fact that all prior           officers. The government contends that the
communications between the DEA and Mu-                  officers then asked for and received permission
nera had been in English, along with Munera’s           (from Hurtado) to go inside the apartment and
conversation on his telephone.                          have a look around.

   A pat down of Munera revealed a pager                   The officers entered with weapons drawn
and two cellular phones. At that point, Mu-             and “announced” their presence. Not receiv-
nera was handcuffed and informed that “he               ing any response, they began to “clear” the
was being detained for narcotics investiga-             apartment, searching rooms, hallways, and


                                                    4
closets for hidden persons.                            to Rodriguez and to convince him to confess.
                                                       Munera did this, and Rodriguez finally admit-
   In one closet, an officer noticed a clear bag       ted that he too had been paid to guard cocaine
on a shelf containing what appeared to be co-          in apartment 1714.
caine, and a gym bag on the floor. The officer
made a mental note of this observation and                                   II.
proceeded with his search. Upon coming to                  Ramos, Moreno, and Rodriguez claim in-
the apartment’s bedroom, the officers found            sufficient evidence to convict. If a rational
Rodriguez hiding under a bed.                          jury could have found them guilty beyond a
                                                       reasonable doubt based, then the evidence in
   The officers seized Rodriguez and returned          question was sufficient. United States v.
him to the living room. Thereafter, they asked         Gourley, 168 F.3d 165, 168 (5th Cir. 1999).
for and received permission (from Hurtado) to          In undertaking this analysis, we view the evi-
conduct a more thorough search, during which           dence and all reasonable inferences therefrom
they retrieved the clear plastic bag and duffle        in the light most favorable to the verdict. Id.
bag from the closetSSboth were found to                at 168-69.
contain several kilograms of cocaine.
                                                           “There are three elements to possession
   A DEA agent fluent in Spanish was sum-              with the intent to distribute cocaine base:
moned to the scene. He advised Hernandez,              (1) knowing (2) possession of the drugs in
the first of the three Sandspoint defendants to        question (3) with intent to distribute them.”
be arrested, of his rights. Hernandez admitted         United States v. Suarez, 155 F.3d 521, 524-25
his role in the co caine conspiracy: He had            (5th Cir. 1998). To affirm on this charge, we
helped a Colombian deliver cocaine in the              must find that the evidence was sufficient to
Rodeo.                                                 show that each of these elements has been sat-
                                                       isfied. United States v. Miller, 146 F.3d 274,
   The same agent then advised Rodriguez and           280 (5th Cir. 1998).
Munera of their rights. Both of them initially
denied knowledge of the cocaine. The agent                 For a conviction of conspiracy under § 846,
told Munera that things would be easier for            the evidence must be sufficient show that
him if he cooperated and told the truth. He            (1) at least two people had an agreement to
added that if Munera helped “bring in some             traffic in drugs; (2) the defendants were aware
other people,” he might get a break. Munera            of this agreement; and (3) the defendants
continued, however, to deny everything. Mu-            knowingly and voluntarily participated in the
nera and Rodriguez were taken to DEA head-             implementation of this agreement. United
quarters for processing.                               States v. Medina, 161 F.3d 867, 872 (5th Cir.
                                                       1998). Mere presence at a crime scene, or
    While there, Munera asked to speak to the          close association with conspirators, standing
DEA agent who had questioned him pre-                  alone, cannot rise to knowing participation in
viously, because he “wanted to tell the truth.”        a conspiracy as a matter of law. United States
Munera confessed that he and Rodriguez had             v. Maltos, 985 F.2d 743, 746 (5th Cir. 1992).
been paid by a Colombian to guard the cocaine
in the apartment. Munera then offered to talk             Because defendants do not challenge the


                                                   5
existence of an agreement, a finding that the               Lastly, Ramos was seen cavorting with
evidence was sufficient to convict of pos-               Valois. This constitutes further evidence that
session of cocaine with intent to distribute             Ramos and Valois were drug-dealing partners,
goes a long way in affirming the conspiracy              adding to the reasonableness of the jury’s
convictions: A guilty state of mind, combined            verdict of guilty.
with incriminating act ivity on the cocaine
distribution charge, proxies for the knowing                 Ramos unsuccessfully attempts to compare
and voluntary participation element of the               his situation to that in United States v. Sa-
conspiracy charge. Thus, if the substantive              cerio, 952 F.2d 860 (5th Cir. 1992), in which
charge of possession with intent to distribute           we held that two defendants associated with a
cocaine survives challenge, the defendants can           automobile containing cocaine could not be
escape a conspiracy conviction only if they are          considered drug dealing coconspirators. See
able to demonstrate that they thought they act-          id. at 864. But in Sacerio, police officers
ed alone, pursuant to no particular agreement            needed to conduct three searches of the ve-
with anyone else.                                        hicle in question before they were able to find
                                                         the cocaine. Id. During one such search,
                     A.                                  rather than appear nervous or concerned, one
   The evidence was easily sufficient to sup-            defendant actually fell asleep. Id. Given that
port Ramos’s convictions. He was the one                 there was scant reason to believe that defen-
who placed in Valois’s Acura the blue sports             dants in Sacerio knew that there were drugs in
bag later found to contain five kilograms co-            their car, we could not find that their behavior
caine. Although there was no direct proof that           (namely, driving an automobile that happened
Ramos knew cocaine was in the bag, such an               to contain a hidden stash of cocaine) con-
inference is reasonably drawn, especially in             stituted knowing participation in a drug con-
light of the large quantity of cocaine in                spiracy. Id.
question.
                                                            The instant case is different. Ramos per-
    Additionally, Ramos responded to a page              sonally carried a bag containing several kilo-
from codefendant Russo telling him to meet               grams of cocaine from one car to another.
her to pick up his portion of the proceeds from          While not everyone can be expected to know
the sale of his cocaine. Of course, as would be          everything that is hidden in a car he happens to
expected in a transaction among drug dealers,            be driving, it is reasonable to expect an indi-
the word “cocaine” was never explicitly used,            vidual to know the contents of a gym bag he is
but Russo explained to the police that cocaine           carryingSSespecially when it is weighed down
was the subject of the call. The jury had be-            by several pounds of contraband..
fore it only the transcript of this phone call and
evidence regarding its context (namely, that                                     B.
the call was made by Russo for the purpose of               Although admittedly creating a closer case,
telling Ramos that his proceeds from that day’s          the evidence is sufficient to sustain the verdicts
cocaine deal were available). Under these cir-           against Moreno as well. The government’s
cumstances, the jury had no reason to believe            main evidence against Moreno is the fact that
that the call concerned anything other than              he too responded to Russo’s page regarding
cocaine.                                                 the pick up of drug money. The ensuing tele-


                                                     6
phone conversation between Moreno and Rus-                Munera claims that his arrest at the Sands-
so was, however, more incriminating than that          point apartment parking lot was unconstitu-
between Ramos and Russo, for Moreno’s                  tional because it lacked probable cause. Ab-
phone call discussed the possibility of provid-        sent an exception, the fruits of an arrest lack-
ing additional amounts of cocaine for sale.            ing probable cause must be suppressed, which
Moreno indicated to Russo that he could not            in this case would include Munera’s state-
provide any more cocaine until he received his         ments, the personal property found on him (the
money from the day’s earlier transaction.              telephones, pager, and keys to apartments
Again, the transcript of this call is devoid of        1714 and 1716), and arguably even the co-
any specific mention of cocaine by name, but           caine seized in apartment 1714 (to the extent
it does constitute quite damning evidence in           Munera can show that it would not have been
light of Russo’s characterization of the pur-          uncovered but for his purportedly illegal ar-
pose of the call. The transcript of this record-       rest). United States v. Webster, 162 F.3d 308,
ed conversation, in conjunction with its atten-        324 (5th Cir. 1998), petition for cert. filed
dant circumstances, is by itself sufficient to         (U.S. Apr. 29, 1999) (No. 98-9212).
support the jury’s verdicts against Moreno be-
yond a reasonable doubt.                                   Probable cause exists if “the totality of facts
                                                       and circumstances within a police officer’s
                      C.                               knowledge at the moment of the arrest are suf-
   The evidence is sufficient to sustain the           ficient for a reasonable person to conclude that
verdict rendered against Rodriguez. He was             the suspect had committed or was committing
found in one of the two apartments from                an offense.” United States v. Ho, 94 F.3d 932,
which Munera and Hernandez had exited.                 935-36 (5th Cir. 1996). Additionally, imputed
When police knocked on the apartment door,             to the arresting officer’s knowledge are all the
Rodriguez ran from view and hid under a bed.           facts and circumstances known to all law en-
The apartment in question contained over               forcement officials. Webster, 162 F.3d at 331.
eleven kilograms of cocaine, and eventually,
Rodriguez admitted that he had been paid to                The following were the facts and circum-
guard it. All of this is sufficient to establish       stances of Munera’s arrest: The police had
Rodriguez’s guilt in the substantive offense           just followed t he Rodeo, involved in a drug
and in the conspiracy beyond a reasonable              transaction, to an apartment complex. The
doubt.                                                 driverSSHernandezSShad just been arrested
                                                       and had told police that he had been delivering
                      III.                             drugs for his friends Carlos and Jorge, who
    Rodriguez and Munera claim a long list of          lived in the complex. Hernandez pointed to a
Fourth and Fifth Amendment violations. We              second-floor landing as the location of his
review the district court’s findings of fact on        friends’ apartment. This landing was also the
these issues for clear error and its interpre-         location whence Hernandez came prior to his
tation and application of law de novo. United          arrest.
States v. Carrillo-Morales, 27 F.3d 1054,
1060 (5th Cir. 1994).                                     Munera was observed descending from the
                                                       landing. Police watched him make eye contact
                      A.                               with Hernandez, who was then in handcuffs,


                                                   7
and thereafter become visibly nervous. Police          constitute “statements” for Miranda purposes.
asked Hernandez whether Munera was one of              See United States v. Doe, 465 U.S. 605, 612
the friends he had spoken of; Hernandez                (1984); Fisher v. United States, 425 U.S. 391,
answered in the negative.                              410 (1976). There are at least two reasons,
                                                       however, why the acquisition of these state-
    When asked by Fanning whether his name             ments in the absence of Miranda warnings
was “Jorge,” Munera replied “no.” When                 does not undermine the jury’s verdicts against
asked to produce identification, Munera turned         Munera.
over his driver’s license, which portrayed his
name to be “Jorge Gustavo Munera-Uribe.”                  Firstly, as the government notes, any
When asked why he had lied, Munera pro-                Miranda error is harmless in that the evidence
claimed “no hablo ingles,” despite the fact that       gathered therefrom was not necessary to
all previous communication had been in Eng-            finding Munera guilty beyond a reasonable
lish and that police had overheard Munera              doubt. See United States v. Paul, 142 F.3d
speaking in English on a cellular phone as he          836, 843 (5th Cir. 1998). In addition to the
passed them by. A pat down of Munera re-               circumstances of his arrest (his recognition of
vealed a pager and a second cellular phone.            Hernandez, his lying about his name, his lying
Pagers and cell phones have been held by other         about his ability to speak English, and his pos-
circuits to constitute tools of the drug trade.        session of instrumentalities of the drug trade),
United States v. Cleveland, 106 F.3d 1056,             there is Munera’s subsequent confession, made
1061 (1st Cir. 1997); United States v. Sasson,         after he had been read his rights.
62 F.3d 874, 886 (7th Cir. 1995). Under these
circumstances, the police had probable cause              Additionally, the “fruits” of his purportedly
to believe that Munera was involved in the             unlawfully acquired statement would have
drug conspiracy with Hernandez, and thus               been inevitably discovered by the police any-
their arrest of Munera at that point was               way: The o fficers were already aware of the
entirely lawful.                                       landing from which Munera had descended,
                                                       and they would most likely have searched
                       B.                              apartment 1714 regardless of Munera’s ges-
   Regardless of the lawfulness of his arrest,         tures (which were misleadingly directed
Munera asserts that the “statement” he made            toward apartment 1716). See Nix v. Williams,
to police at the Sandspoint apartment should           467 U.S. 431, 448 (1983); United States v.
have been suppressed. It is undisputed that            Lamas, 930 F.2d 1099, 1102 (5th Cir. 1991).
Munera was not informed of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966),                  Secondly, police may dispense with Miran-
until well after the search of apartment 1714.         da warnings when necessary for their pro-
Nevertheless, the police asked him to show             tection. New York v. Quarles, 467 U.S. 649,
them where his “friends’” apartment was,               655 (1984); Webster, 162 F.3d at 332. The
prompting Munera to lead the officers to the           dangers that law enforcement officials face
second floor landing, and thereafter pointing          from drug dealers and the like are well known,
with his nose to apartment 1716.                       and it was important for the officers to identify
                                                       precisely the apartment in which Munera’s
   Munera is correct in noting that his gestures


                                                   8
cohorts could be found.4 The facts of the                 cers had strong reason to believe that drugs
instant case call for the application of this             and drug dealers were located in either apart-
“safety exception” to Miranda, and thus it is             ment 1714 or 1716. The officers testified that
of no consequence that the officers failed to             they “fear[ed] for their safety when Rodriguez
apprise Munera of his rights.                             bolted” from the living room, and they feared
                                                          that “Rodriguez may have been armed or was
                      C.                                  trying to flee.” Additionally, they feared that
   Rodriguez challenges the legality of the               Rodriguez might be attempting to destroy
search of apartment 1714 on the ground that               evidence.
the officers lacked a warrant. See United
States v. Richard, 994 F.2d 244, 248 (5th Cir.               Moreover, whether exigent circumstances
1993). We find the lack of a warrant                      exist is a question of fact for the district court,
unproblematic in this case, as it fits squarely           whose findings we review for clear error. Id.
within the well-est ablished “exigent                     Given that the officers needed to protect
circumstances” exception to the warrant                   against both the destruction of contraband and
requirement.5 See Kirkpatrick v. Butler, 870              potential harm to themselves, the court was
F.2d 276, 281 (5th Cir. 1989).                            not clearly erroneous in finding exigency.6

   Exigent circumstances justify an exception                Exigent circumstances do not, however,
to the warrant requirement if officers have               enable the police to conduct a full-fledged
“cause to believe either that evidence in the             search. Instead, they are permitted to conduct
house may be destroyed or removed, or that
the lives of police officers or other persons
may be endangered by persons inside of the                   6
                                                                Rodriguez asserts that the district court did
house.” Kirkpatrick, 870 F.2d at 281 (foot-               not make a factual finding of exigency. This
note omitted). Each of these exigencies was               contention is incorrect, as the district court explic-
present.                                                  itly noted that “[t]he officers engaged in a proper
                                                          protective sweep to look for and to locate Rod-
   Based on their surveillance and the con-               riguez-Estupinan, who they believed was still in the
fessions of Hernandez and Munera, the offi-               apartment and could pose a threat to the officers’
                                                          safety.”

   4                                                          Rodriguez also asserts that a finding of exi-
     As mentioned, in this case, Munera originally
led police to the wrong apartment number. This            gency under these circumstances (that is, following
could have had disastrous consequences for the            the arrests of Munera and Hernandez) is incorrect
officers, should criminal occupants of 1714 have          as a matter of law, relying on Maryland v. Buie,
decided to ambush the officers as they searched the       494 U.S. 325 (1990). Rodriguez misconstrues
wrong apartment. It was precisely to guard against        when the exigency attached: It did not attach when
such risks that the officers needed to know what          the arrests of Munera and Hernandez were made,
room Munera’s comrades were in.                           but rather when officers witnessed Rodriguez flee
                                                          from the living room. Had Rodriguez not fled, but
   5
    Although there is evidence that Hurtado may           instead remained in plain view, and if the officers
have consented to the initial search of apartment         had secured apartment 1714, then a warrantless
1714, we decline to resolve this issue on such a          arrest (absent consent) might have been inappropri-
disputed factual ground.                                  ate. But those are not the facts of this case.

                                                      9
only a “protective sweep,” limited to searching          Rodriguez, whose suspicious act of bolting
those areas where a suspect might be hiding.             from view alarmed the officers. In sum, the
See Kirkpatrick, 870 F.2d at 282. The record             district court did not commit clear error in
reflects that this is exactly what they did.             reaching its determination that exigent circum-
   Rodriguez argues next that any exigency               stances justified the warrantless search of
was created by the officers, and this precludes          apartment 1714.
them from engaging in a warrantless search on
this basis. In support of this, Rodriguez refers                                D.
us to United States v. Richard, 994 F.2d 244,               Rodriguez independently challenges the
248 (5th Cir. 1993). The facts of Richard do             seizure of a clear plastic bag containing co-
parallel, to some extent, those here: Police             caine found in the closet of apartment 1714.
had announced their presence outside of an               He rejects the government’s assertion of the
apartment door and thereafter feared what the            doctrine of “plain view,” arguing that Thomas,
apartment’s occupants might be doing. Id. at             who came upon the cocaine, “could not be
246-47, 248. We did not find police-created              sure that the white powder residue found was
exigency as a matter of law in Richard, but              cocaine.” Rodriguez cites United States v.
rather we merely affirmed the finding of                 Buchanan, 70 F.3d 818, 826 n.6 (5th Cir.
police-created exigency under the clear-error            1995), in which we noted that “the mere
standard of review. Id. at 248-50.                       presence of white powder residue in a plastic
                                                         bag, by itself, will [not] always give rise to
    In the instant case, the court held precisely        probable cause.”
the opposite, and did so without error in light
of the particular facts and circumstances. Un-              The white powder was easily in Thomas’s
like the situation in Richardson, where “[t]he           plain view; the only question is whether he had
agents had secured [the room] from the out-              probable cause to believe that it constituted
side, successfully and covertly,” id. at 249, in         cocaine. See id. at 826. As we explained in
this case the police were trying to figure out           Buchanan, whether such probable cause exists
which of two apartments was the one con-                 depends on the “totality of the circumstances.”
taining contraband and coconspirators.                   Id. This was not a case of the “mere presence
                                                         of white powder in a plastic bag, by itself,” id.,
    Additionally, we have no evidence regard-            but rather of white powder found in an apart-
ing how well secured the apartments were or              ment already suspected of containing drugs
what their means of ingress and egress were.             and under suspicious circumstances (namely,
Further still, the events of Richardson trans-           Rodriguez's flight and Hurtado's deception).
pired in the morning, whereas the events of the          For these reasons, Thomas had probable cause
matter before us transpired in the more treach-          to believe that the white powder was indeed
erous setting of nighttime. Lastly, in Richard-          cocaine.
son the police at least knew that the apart-
ment’s occupants were not attempting to flee,                Secondly, the doctrine of inevitable dis-
id.; in the case before us, the police witnessed         covery dispenses with Rodriguez’s argument
Hernandez’s attempted escape. Thus, if the               in that the officers obtained voluntary consent
creation of exigency can be attributed to any            to search the apartment (from Hurtado) fol-
particular person, responsibility would lie with         lowing Rodriguez’s arrest. See Nix, 467 U.S.


                                                    10
at 448; Lamas, 930 F.2d at 1102. Thus, even              to consentSSis irrelevant to this inquiry. See
if Thomas did not have probable cause to be-             id.
lieve that the white powder was cocaine, he
validly seized and examined it following his re-                                F.
ceipt of permission to search the apartment.                 Rodriguez argues that the court erred in
See United States v. Kirk, 111 F.3d 390, 392             failing to suppress a statement he made to a
(5th Cir. 1997).                                         DEA agent, because “no evidence was
                                                         presented that defendant waived his Miranda
                        E.                               warning at the time he was questioned and that
   Rodriguez denies that the officers received           he was not informed of his right to
valid consent to search apartment 1714. Be-              communicate with consular or diplomatic
cause the plain view doctrine allows the intro-          officers o f his country as required by Vienna
duction into evidence of the cocaine in the              Convention treaty and INS regulation.” It is
clear plastic bag, the only evidence that could          black letter law that a defendant’s waiver of
be excluded via this argument is the cocaine             his Miranda rights must be knowing,
contained in the closet’s gym bag.                       intelligent, and voluntary. United States v.
                                                         Collins, 40 F.3d 95, 98 (5th Cir. 1994). This
    As Rodriguez correctly explains, for con-            is a question of fact for the district court that
sent to be valid, it must be freely and volun-           we review for clear error. Id. at 99.
tarily given by someone with authority to con-           Government witnesses test ified that
sent. Illinois v. Rodriguez, 497 U.S. 177, 181           (1) Rodriguez was read his rights, in Spanish,
(1990). Rodriguez concedes that the consent              and (2) Rodriguez affirmatively requested to
by Hurtado was given freely and voluntarily;             make a statement to the DEA and was
his dispute is over whether she had authority            permitted to do so. From this evidence, the
to consent to a search of the apartment.                 district court could and did properly conclude
                                                         that Rodriguez’s statements did not run afoul
   Hurtado identified herself as a resident of           of Miranda.
apartment 1714. Defendants have introduced
no evidence challenging this. So, the officers               Rodriguez presses, however, that his
came to the objectively reasonable conclusion            Miranda warnings were not repeated at the
that Hurtado had the authority to consent to a           DEA holdover jail cell where his confession
search. See United States v. DeLeon-Reyna,               was tendered. But because the DEA agents
930 F.2d 396, 399 (5th Cir. 1991) (per                   did not recommence questioning of Rodriguez
curiam) (en banc) (holding that “officers' belief        at the jail, a second set of warnings was not
that they had consent, in light of all the cir-          required; instead, Rodriguez voluntarily
cumstances,” comports with Fourth Amend-                 initiated the telling of his story. See Moore v.
ment if “objectively reasonable”).                       Dugger, 856 F.2d 129, 133 (11th Cir. 1988).

   The court did not commit clear error in                  Rodriguez’s Vienna Convention argument
ratifying the officers’ conclusions. The extent          is meritless in light of existing precedent. Al-
of Hurtado’s knowledge of Rodriguez’s                    though his rights under the Convention may
wrongdoingSSsomething Rodriguez considers                have been violated, he has not adequately ex-
important in ascertaining Hurtado’s authority            plained how this may have prejudiced his


                                                    11
defenseSSa critical predicate were we to                         We did not know the apartment
fashion a remedy for him under the Con-                          doorSSI must correct myself. Officer
vention.7 We accordingly reject this argument.                   Thomas said he saw some, the landing
                                                                 up there, that we wereSSthat’s when we,
                     IV.                                         that was the reason for taking Jorge
   Munera contends that Fanning perjured                         Munera-Uribe up to the landing, is for
himself on the stand and that the government                     him to knock on the door or show us
knowingly sponsored this perjury. If true,                       the door that his friend was in, Carlos.
such a finding on our part would merit a
reversal of Munera’s conviction. Munera                       When asked whether Munera did indeed show
carries the burden of proof on this tall accu-                him the door he had come out of, Fanning
sation. See United States v. Lochmondy,                       testified: “No, he didn’t.”
890 F.2d 817, 822 (6th Cir. 1989).
                                                                 At trial, Fanning testified that “to determine
    To prevail, Munera must demonstrate that                  what apartment these two individuals [Munera
(1) Fanning’s testimony was actually false, id.               and Hernandez] had come from . . . [he] asked
at 822; and (2) that the government “know-                    Mr. Munera-Uribe which apartment his friend
ingly sponsored” it, United States v. Harrison,               was in.” Fanning continued, explaining that
103 F.3d 986, 989 (D.C. Cir. 1997). Incon-                    Munera pointed to apartment 1716 for them.
sistent testimony, by itself, does not meet this
burden. See United States v. Bortnovsky,                         Contrary to Munera’s characterization,
879 F.2d 30, 33 (2d Cir. 1989).                               Fanning’s suppression hearing and trial tes-
                                                              timony are not “in direct conflict.” Munera
   According to Munera, at the suppression                    blazons the fact that in his suppression hearing
hearing Fanning testified that he knew to head                testimony, Fanning failed to mention that Mu-
for apartment 1714, because “Officer Thomas                   nera gestured toward the landing for the of-
had watched Jorge Munera-Uribe walk from                      ficersSSindicating the apartment from which he
his apartment complex, from the door, the                     came. But Fanning was never specifically
1714.” When pressed with the question “Is it                  asked that and was available to Munera’s at-
possible that you saw him come from the land-                 torney for cross-examination. Instead, Fan-
ing where there were two apartments 1714                      ning was asked whether Munera accurately
and 1716?”, Fanning responded: “It is                         identified apartment 1714 for himSSMunera
possible.” He then elaborated, stating:                       did not (instead motioning with his nose to
                                                              apartment 1716), and Fanning testified as
                                                              such.
   7
     See Faulder v. Johnson, 81 F.3d 515, 520
                                                                 At trial, Fanning reiterated that he turned to
(5th Cir. 1996); United States v. Lombera-Camor-
linga, 170 F.3d 1241, 1244 (9th Cir. 1999) (“Up-
                                                              Munera for help in locating the correct apart-
on a showing that the Vienna Convention was                   ment, and that Munera pointed the officers
violated by a failure to inform the alien of his right        toward apartment 1716. This hardly consti-
to contact his consulate, the defendant in a criminal         tutes perjury: Fanning’s testimony at the
proceeding has the initial burden of producing                deposition (or suppression hearing?) was at
evidence showing prejudice from the violation of              most incompleteSSit did not, however, con-
the Convention.”).

                                                         12
tradict anything he later told the court.               Rodriguez’s theory of the case: He had ar-
                                                        gued that the presence of a large force of
   Secondly, even if Fanning can be said to             armed police officers gathered on his balcony
have perjured himself, Munera has brought               alarmed him and caused him to flee. To char-
nothing to our attention purporting to show             acterize the image conjured up by Rodriguez’s
that the government sanctioned such testi-              explanation as a “gestapo” force is not extra-
mony, the second vital element of his claim.            ordinary. We do not find the word “gestapo”
For these reasons, there was no error                   to be so inflammatory as to destroy the fair-
                                                        ness of a trial. In fact, the term has taken on a
                        V.                              generic meaning in modern usage and no
   According to Rodriguez, the federal prose-           longer refers solely to the secret police of Nazi
cutor made improper comments at closing that            Germany. See WEBSTER’S THIRD NEW INTER-
deprived him of a fair trial. Rodriguez bears           NATIONAL DICTIONARY 952 (1986).
the burden of establishing that these comments
did in fact deprive him of a fair trial. United             The second comment is also an accurate
States v. Bermea, 30 F.3d 1539, 1562 (5th Cir.          portrayal of events: Rodriguez indeed fled af-
1994). In determining whether he was de-                ter the officers knocked on his door. Although
prived of a fair trial, we consider whether the         use of the expression “gone on the knock”
comments, taken as a whole within the context           does not exactly help Rodriguez’s cause, it is
of the trial, prejudicially affected substantive        well within the prosecutor’s prerogative to use
rights. United States v. Rasco, 123 F.3d 222,           such expressions in his role as an advocate.
229 (5th Cir. 1997). The offending comments             The prosecutor need not avoid honest, truthful
were as follows:                                        characterizations of the facts helpful to his
                                                        argument.
   1. “Mr. Ash [Rodriguez’s attorney]
   would have you think that the Gestapo                    Lastly, telling the jurors that “the officers
   had showed up at the door to 1714 at                 and agents had no reason . . . to lie” does not
   8300 Sandspoint, that it was this mas-               constitute the impermissible use of a prosecu-
   sive show of force that caused poor                  tor’s status to bolster the testimony of a wit-
   [Rodriguez] to jump from the couch,                  ness, but only presents a permissible summary
   run to the back of the apartment, hide               of the evidence. Rodriguez suggested that the
   under a mattress.”                                   police were being untruthful in their testimony;
                                                        the prosecutor could fairly respond to this sug-
   2. “If you recall the testimony, [Rod-               gestion by making note of the fact that there
   riguez] was gone on the knock.”                      was nothing in the record supporting this accu-
                                                        sation.     See United States v. Vaccaro,
   3. “[T]he officers and agents had no                 115 F.3d 1211, 1216 (5th Cir. 1997), cert.
   reason to get on the stand here and lie to           denied, 118 S. Ct. 689 (1998).
   you.”
                                                                              VI.
None of this deprived Rodriguez of a fair trial.           Section 3B1.2 of the Sentencing Guidelines
                                                        instructs the court to grant a downward ad-
   The first comment accurately captured                justment for defendants whose roles in a crim-


                                                   13
inal offense are “minor.” Rodriguez and Ra-              that the court improperly denied him the bene-
mos challenge the decision not to grant them             fit of this provision.
such an adjustment. We review for clear error.
United States v. Valencia-Gonzalez, 172 F.3d                 Valois bears the burden of establishing that
344, 346 (5th Cir. 1999).                                all five conditions are met. See United States
                                                         v. Vasquez, 161 F.3d 909, 912 (5th Cir. 1998).
                       A.                                This is an issue of fact to be determined by the
   Rodriguez was responsible for “guarding               court. United States v. Torres, 114 F.3d 520,
16.52 kilograms of cocaine (worth nearly                 527 (5th Cir.), cert. denied, 118 S. Ct. 316
$200,000).” [What is this quoting?] Such a               (1997). Accordingly, we review for clear
large responsibility does not suggest a minor            error. United States v. Wilson, 105 F.3d 219,
role. Indeed, under our precedent, a defendant           222 (5th Cir. 1997).
whose role is “limited to holding or delivering
drugs” is not ordinarily entitled to a minor role           Only satisfaction of the fifth condition is
adjustment. See United States v. Edwards, 65             before us, with the government apparently
F.3d 430, 434 (5th Cir. 1995). Rodriguez has             conceding that the other four have been met.
furnished us with no precedent suggesting                The fifth condition requires that “the defendant
that, under the facts of this case, we or any            has truthfully provided to the Government all
other circuit has held that a minor role                 information and evidence the defendant has
adjustment is in order.                                  concerning the offense or offenses that were
                                                         part of the same course of conduct or of a
                      B.                                 common scheme or plan.” U.S.S.G. § 5C1.2.
   Ramos assisted in the delivery of cocaine
on August 13 and September 18. On Au-                       According to the government, Valois had
gust 13, he was observed carrying a blue gym             (1) failed to admit that he accompanied Russo
bag containing cocaine into Hernandez’s car.             on the August 13 cocaine pickup; (2) lied
Later that day, he came to Fiesta to collect             about the delivery of drug proceeds to Ramos
money for the drugs he had provided. Again,              later that day; and (3) denied being with Russo
given Edwards, we cannot say the court                   when she met Moreno on September 18 to
committed clear error by failing to afford Ra-           obtain two of the seven kilograms involved in
mos minor role status in light of these facts.           that day’s transaction. Valois counters by
As with Rodriguez, Ramos supplies us with no             arguing that he recited all the facts he knew to
countervailing caselaw suggesting that a minor           the best of his recollection. He adds that none
role adjustment would be appropriate under               of the government’s examples of untruthful-
these circumstances.                                     ness is “specific enough to determine, even by
                                                         a preponderance of the evidence, that Valois
                    VII.                                 was not being honest . . . .”
   Under the “safety valve” provision of the
Sentencing Guidelines, a court must sentence                As a matter of law, Valois argues, he can-
defendants below statutory mandatory mini-               not be denied relief under § 5C1.2, because
mums (and in accord with the lower applicable            “the record does not contain specific findings
Sentencing Guidelines range) if five conditions          of, or support for, the government’s allega-
are met. U.S.S.G. § 5C1.2. Valois asserts                tions of untruthfulness.” In support of this


                                                    14
proposition, he refers us to United States v.            nied, 118 S. Ct. 721 (1998). Our standard of
Miranda-Santiago, 96 F.3d 517, 527-30 (1st               review on this issue is “more deferential than
Cir. 1996).                                              that of clear error.” Id.

    Miranda-Santiago does not support Va-                    Although he participated in the same de-
lois’s position. There, the government prof-             fense as did his codefendants, Moreno argues
fered no direct evidence tending to show that            that he is entitled to the two-level reduction of
the defendant in question was being deceitful.           § 3E1.1 because “he did not testify at trial nor
Id. at 529. Instead, the government asserted             did he deny the allegations of the indictment
that the defendant must have known more than             during the trial.” Moreno attempts to fit his
he was revealing in light of the fact that he            litigation strategy into the narrow exception to
“shared living quarters with other codefen-              § 3E1.1 recognized for those defendants who
dants.” Id. Such “mere conjecture” cannot be             raise solely legal defenses. See U.S.S.G.
the basis for denying the benefit of § 5C1.2.            § 3E1.1, comment.
Id.
                                                             The court did not err in holding that More-
   In Valois’s case, the government did not              no has failed to carry his burden of proof on
offer up “mere conjecture,” but concrete evi-            this issue: There is absolutely no evidence in
dence tending to show Valois’s untruthfulness            the record indicating acceptance of responsi-
(such as statements from Valois’s codefen-               bility on the part of Moreno, who had an op-
dants). The court held a hearing on the matter           portunity to present such evidence pretrial but
specifically and came to the conclusionSSafter           passed it up, failing to distinguish himself from
considering all the evidenceSSthat Valois was            his codefendants’ full-fledged defense. See
being untruthful. Thus, the court did not en-            Thomas, 120 F.3d at 575. So, Moreno cannot
gage in “speculation” or “mere conjecture” in            avail himself of § 3E1.1. Id.
concluding that Valois was undeserving of
§ 5C1.2. Id. More importantly, the court did                                   IX.
not commit clear error in sentencing Valois,                 Ramos and Rodriguez challenge the calcu-
for Valois failed to carry his burden and dem-           lations regarding the amount of cocaine for
onstrate the applicability of § 5C1.1 in light of        which they were individually responsible.
the government’s countervailing evidence.                These calculations are important, because the
                                                         base offense level (and thus the length of
                      VIII.                              imprisonment) for non-violent drug offenders
    Moreno complains that the court improp-              is set in accordance with the quantity of drugs
erly denied him a decrease in his sentence for           involved. See United States v. Brito, 136 F.3d
acceptance of responsibility. Section 3E1.1(a)           397, 415 (5th Cir.), cert. denied, 118 S. Ct.
of the Sentencing Guidelines instructs a court           1817 (1998); U.S.S.G. § 2D1.1(c). We re-
to decrease a defendant’s offense level by two           view for clear error. Brito, 136 F.3d at 415.
if “the Defendant clearly demonstrates accep-
tance of responsibility for his offense.” More-             “For a defendant involved in a drug traf-
no bears the burden of establishing acceptance           ficking conspiracy, the quantity includes both
of responsibility. United States v. Thomas,              the drugs with which the defendant was di-
120 F.3d 564, 575 (5th Cir. 1997), cert. de-             rectly involved and the drugs that can be


                                                    15
attributable to him through the conspiracy.”                   Rodriguez disputes the attribution to him of
Id.                                                        five kilograms of cocaine from the Septem-
                                                           ber 18 transaction. The government intro-
   The defendant will not necessarily be                   duced circumstantial evidence linking him to
   held responsible for the full amount of                 these drugs: Hernandez testified that he ob-
   drugs involved in the conspiracy, rather                tained the five kilograms from the Sandspoint
   the defendant will only be held account-                apartment, and Rodriguez admitted to guard-
   able for those amounts of drugs that he                 ing the cocaine stored there. Putting these
   knew or reasonably could have known                     two facts together, the court couldSSand
   or believed were involved in the conspir-               didSSreasonably conclude that Rodriguez
   acy. In order to calculate this amount, a               should have known about this quantity of
   court may consider the co-conspirator’s                 drugs. The court did not commit clear error in
   role in the conspiracy, his relationship to             attributing them to Rodriguez for sentencing
   the other conspirators, and any other in-               purposes.
   formation with “sufficient indicia of
   reliability.”                                              AFFIRMED.

Id. (citations omitted).

   The court felt that it had sufficiently reliable
information tying Ramos and Rodriguez to
more than fifteen kilograms of cocaine each
and based the sentence on that quantity. Our
review of the record reveals no error.

   Ramos disputes the attribution to him of
five kilograms of cocaine from the Septem-
ber 18 transaction and one kilogram from the
August 13 transaction. With regard to the five
kilograms, the government introduced state-
                                                              8
ments from Hernandez in which Hernandez                         (...continued)
claims that Ramos asked him for a ride to the              sional fashion that the cocaine came from Ramos.
gas station so he could deliver the five kilo-             Such testimony is not specific enough to contain
grams. Hernandez also stated that he helped                “sufficient indicia of reliability.” Id. The only
Ramos put the five kilograms into a bag and                thing in the record to bolster this assertion is the
thereafter did indeed drive Ramos to the gas               ten-minute evening encounter between Ramos and
                                                           the Valois brothers. Although the one-kilogram
station. The court couldSSand didSSproperly
                                                           cocaine transaction of earlier that day may very
base its determination on this uncontradicted              well have been the subject matter of this meeting,
evidence.8                                                 the court could not properly come to such a conclu-
                                                           sion based on this meager evidence alone. Thus,
                                                           the court should have found Ramos responsible for
   8
     As to the one kilogram of cocaine from Au-            sixteen kilograms of cocaine, not seventeen. This
gust 13, the agents seemed to testify in conclu-           does not affect the sentence, however, because the
                                   (continued...)          relevant threshold is fifteen kilograms.

                                                      16
