                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-1530
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
Carlos Benitez-Meraz,                    *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: November 17, 1998

                                   Filed: December 7, 1998
                                    ___________

Before BEAM and LAY, Circuit Judges, and SIPPEL,1 District Judge.
                               ___________

LAY, Circuit Judge.

        Carlos Benitez-Meraz was convicted of conspiracy to distribute and possess with
intent to distribute methamphetamine in violation of 21 U.S.C. § 846. At sentencing,
the district court2 found at least 78 ounces of methamphetamine attributable to Meraz.



      1
        The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri, sitting by designation.
      2
      The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
After adjusting his base offense level upward two levels for possession of a firearm, the
court sentenced him to 235 months imprisonment. Meraz appeals both his conviction
and sentence, contending that (1) the district court erred in admitting Rule 404(b)
evidence that Meraz possessed and distributed cocaine along with methamphetamine;
(2) the government’s prosecutor committed prosecutorial misconduct by making
improper comments during opening statements, using improper witnesses, and
vouching for the credibility of a government witness; (3) the cumulative effect of trial
errors and prosecutorial misconduct substantially prejudiced his right to a fair trial; and
(4) the court erred in calculating the amount of methamphetamine attributable to him.
We affirm.

                                            I.

       Law enforcement officers received information from Antonio Moreno, an
individual arrested on drug charges, that Carlos Benitez-Meraz had been one of his
methamphetamine suppliers. Acting on that information, the officers made
arrangements with a government informant, Erin Quintana, to have her purchase
methamphetamine from Meraz. Meraz sold Quintana 6.72 grams of methamphetamine
while law enforcement monitored the sale. Meraz was arrested three days later after
police stopped and searched a car in which he was a passenger and found 13.03 grams
of methamphetamine and guns under his seat, and $3,050 immersed in liquid inside a
beverage container located between the two front seats.

      The government’s witnesses at trial included Antonio Moreno, who was awaiting
sentence on federal drug charges at the time of trial. In addition, they called David
Greigo, another individual involved in the drug trade, and Erin Quintana, both of whom
had non-prosecution agreements with the government.

     Moreno testified that he purchased one pound of methamphetamine and cocaine
from Meraz. Moreno also testified that he had seen Meraz with a gun during one of

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Meraz’ methamphetamine deliveries. Moreno identified the gun at trial as one of the
guns seized during Meraz’ arrest.

        Quintana testified that Meraz delivered four ounces of methamphetamine to
Moreno’s apartment. She also stated in her testimony that she accompanied Meraz to
a trailer park where he collected money while possessing a gun, and that Meraz asked
her to rent a trailer for him where he could store drugs. She further testified that Meraz
threatened her with a gun on one occasion, which she identified at trial as one of the
guns seized during Meraz’ arrest.

        David Greigo testified that he was one of Moreno’s drug suppliers and had seen
Meraz purchase cocaine and approximately three pounds of methamphetamine from an
individual named Jaringas who lived at a trailer park in Lexington, Nebraska. He also
testified that Meraz delivered four ounces of methamphetamine to an individual named
Connie Emery, and attempted to deliver one-half kilogram of methamphetamine and
one kilogram of cocaine to an individual named Rhonda Morrow. It was later
discovered that Greigo was in the United States illegally at the time he testified at trial.

       Based on these facts and other evidence presented at trial, the jury found Meraz
guilty. Meraz now appeals.

                                            II.

A. Admission of Rule 404(b) Evidence

      During trial, the court admitted testimony from Greigo and Moreno that Meraz
possessed and distributed cocaine as well as methamphetamine. The district court
conducted hearings outside the presence of the jury before allowing the cocaine
testimony. The court found the cocaine evidence admissible as proper Rule 404(b)
evidence to prove Meraz’ intent and knowledge. The court instructed the jury at the

                                            -3-
time of Moreno’s and Greigo’s testimony and again at the close of trial about the
limited purposes for which they could use the evidence.

      Meraz argues that the district court abused its discretion by admitting testimony
from Greigo and Moreno that Meraz possessed and distributed cocaine. See Fed. R.
Evid. 404(b). Meraz claims the testimony was unreliable and more prejudicial than
probative because it was uncorroborated and the witnesses were merely seeking to
benefit themselves through their testimony.

      We review the admissibility of other crimes or wrongful acts evidence under the
abuse of discretion standard. United States v. Smith, 49 F.3d 475, 478 (8th Cir. 1995).
We find no error in the district court’s admission of the evidence regarding Meraz’
possession and distribution of cocaine. The court applied the appropriate standard by
considering the four factors for admissibility3 when deciding whether to admit the
evidence. Because the testimony connected Meraz to possession and distribution of
cocaine, it was directly relevant to the issue of his knowledge and intent to distribute
methamphetamine in this case. See United States v. Logan, 121 F.3d 1172, 1178 (8th
Cir. 1997) (recognizing that evidence of prior drug possession “is admissible to show
such things as knowledge and intent of a defendant charged with a crime in which
intent to distribute drugs is an element”). The cocaine transactions took place during
the same time period as the alleged methamphetamine transactions, and two
independent witnesses testified to witnessing cocaine transactions. The district court
could reasonably find that the probative value of the evidence substantially outweighed
its prejudicial effect. Balancing the probative value of evidence concerning other
crimes or wrongs against its potential prejudicial effect is within the broad discretion
of the district court. United States v. Perkins, 94 F.3d 429, 435 (8th Cir. 1996), cert.

      3
       Evidence of other crimes or wrongful acts is admissible if it is: (1) relevant to
a material issue; (2) proved by a preponderance of the evidence; (3) higher in probative
value than in prejudicial effect; and (4) similar in kind and close in time to crime
charged. United States v. Logan, 121 F.3d 1172, 1178 (8th Cir. 1997).

                                          -4-
denied, ___ U.S. ___, 117 S. Ct. 1004 (1997); United States v. Brown, 956 F.2d 782,
786 (8th Cir. 1992). In this case, any such prejudice was minimized by the district
court’s instructions to the jury that it could consider the cocaine testimony only to
evaluate Meraz’ intent or knowledge and not to determine his guilt or innocence. Thus,
the district court did not abuse its discretion by admitting evidence of Meraz’
possession and distribution of cocaine.

B. Prosecutorial Misconduct

        Meraz claims the government’s prosecutor committed prosecutorial misconduct
by making improper statements during opening statement, misleading the jury, and
vouching for the credibility of a government witness. He claims that each error requires
reversal individually, and that the cumulative effect of the prosecutorial misconduct
combined with the admission of the aforementioned Rule 404(b) evidence denied him
a fair trial. We find his arguments are without merit.

       This court has established a two-part test for whether a prosecutor’s conduct
constitutes reversible prosecutorial misconduct: (1) the prosecutor’s remarks or conduct
must have been improper, and (2) such remarks or conduct must have prejudicially
affected the defendant’s substantial rights so as to deprive the defendant of a fair trial.
United States v. Johnson, 968 F.2d 768, 770 (8th Cir. 1992). Courts consider three
factors to determine the prejudicial effect of prosecutorial misconduct: (1) the
cumulative effect of such misconduct; (2) the strength of the properly admitted
evidence; and (3) the curative actions taken by the trial court. United States v.
Hernandez, 779 F.2d 456, 460 (8th Cir. 1985). Applying these factors, we conclude
the government’s prosecutor did not commit prosecutorial misconduct that warrants
reversal.



1. Opening Statements

                                           -5-
       Meraz claims the district court abused its discretion by denying his request for
a mistrial after the prosecutor stated in her opening statement that she believed a gun
found during Meraz’ arrest was stolen.4 We disagree. Even if this statement was
improper, it did not prejudicially effect Meraz’ right to a fair trial. No evidence or
testimony was presented during trial that Meraz stole the gun or knew it was stolen,
and no mention of a stolen gun was ever made again during trial. The district court also
instructed the government to make no further reference to whether the gun was stolen.

       Likewise, the prosecutor did not commit prosecutorial misconduct by telling the
jury in her opening statement that “[l]aw enforcement found David Greigo, I believe
it was December of 1996, and at the time they talked to him he was in the state
penitentiary in Lincoln.” Tr. 55:12-14. Meraz claims this comment was improper
because Greigo was an illegal alien “allowed to remain without prosecution as long as
he ‘assisted’ law enforcement.” Appellant’s Br. at 11. We review the prosecutor’s
statement for plain error because Meraz did not object at trial. United States v.
Abrams, 108 F.3d 953, 955 (8th Cir. 1997). We fail to see how this statement is
improper or plain error because the prosecutor merely explained to the jury where and
when law enforcement contacted Greigo.

2. Misleading the Jury

      Meraz argues that the prosecutor misled the jury by failing to disclose that
Greigo was an illegal alien and by failing to correct Greigo’s testimony that he did not
expect to receive any benefit from his testimony through his non-prosecution
agreement. We review for plain error because Meraz made no objection at trial.
Abrams, 108 F.3d at 955. We find no error. Meraz’ arguments are unavailing because



      4
       The prosecutor stated during her opening statement, “Ms. Porter consents to the
search of her car and found in the car are 13.03 grams of methamphetamine under the
front passenger seat. There are two guns, a .357 Smith & Wesson gun and a nine
millimeter Browning gun that I believe was stolen.” Tr. 53:22-54:1.

                                          -6-
Greigo admitted during his testimony to signing a non-prosecution agreement and later
agreed with defense counsel’s characterization of his agreement as “a good thing.” Tr.
109:22-110:4. Furthermore, the prosecution was unaware during trial of his illegal
alien status, and his non-prosecution agreement with law enforcement was unrelated
to his illegal alien status.

3. Vouching for Witness Credibility

        Meraz claims that the prosecutor improperly vouched for Erin Quintana’s
credibility while questioning her about her non-prosecution agreement on re-direct
examination. After defense counsel cross-examined Quintana about the benefits she
would receive by signing the non-prosecution agreement, the prosecutor referred
Quintana to the agreement on re-direct examination and asked her whether it obligated
her to testify truthfully.5 The prosecutor also asked Quintana whether she understood


      5
       Meraz complains about the following line of questioning:

            Q. (Prosecutor) In Exhibit 5, conditional nonprosecution agree-
     ment, did you also promise in that agreement to truthfully disclose all
     information with respect to the activities of yourself and all others and in
     all matters about which you have knowledge relating to the distribution of
     controlled substances in the federal District of Nebraska?

           A. (Quintana) Yes.

          Q. Did you also promise to truthfully testify if subpoenaed before the
    grand jury, or any trial, or any other court proceeding?

           A .Yes.

           Q. Did you also promise not to commit any crimes whatsoever?

           A. Yes.

           Q. Did you also understand that should you commit any crimes, or

                                         -7-
 that she would be subject to prosecution if the United States Attorney’s Office, in its
 sole discretion, determined that she had provided false, misleading, or incomplete
 information. Meraz claims that the prosecutor improperly vouched for Quintana
 through this line of questioning because it implied to the jury that the prosecutor
 believed Quintana was testifying truthfully and placed the integrity of the government
 behind her. We disagree.

         Improper vouching may occur when the government: (1) refers to facts outside
 the record or implies that the veracity of a witness is supported by outside facts that are
 unavailable to the jury; (2) implies a guarantee of truthfulness; or (3) expresses a
 personal opinion about the credibility of a witness. United States v. Santana, 150 F.3d
 860, 863 (8th Cir.1998). In this case, however, the prosecutor merely asked about an
 agreement that had been received into evidence by the district court and would be
 available to the jury during deliberations. The prosecutor did not imply that Quintana
 was telling the truth, but rather asked Quintana about the terms of the agreement and
 if she understood the potential consequences if she failed to comply with them. As this
 court recently stated, “‘[e]vidence of the existence, the terms, and the witness’s
 understanding of a plea or witness immunity agreement is not vouching.’” Id. (quoting
 United States v. Beasley, 102 F.3d 1440, 1450 (8th Cir. 1996), cert. denied, __ U.S.
 __, 117 S. Ct. 1856 (1997)).




      should it be judged by the United States Attorney’s Office in its sole
      discretion that you have given false, incomplete or misleading testimony or
      information, or otherwise violated any provision of this agreement, you
      shall thereafter be subject to any prosecution for any federal criminal
      violation of which this office has knowledge, including but not limited to
      perjury and obstruction of justice?

             A. Yes.

Tr. 380:20-381:16.

                                            -8-
C. Amount of Methamphetamine Attributable to Meraz

       Meraz asserts that the district court erred in calculating the quantity of
methamphetamine attributable to Meraz for sentencing purposes. We review a district
court’s drug quantity calculations for clear error. Santana, 150 F.3d at 864. We
reverse the district court’s calculation “only if our examination of the entire record
‘definitely and firmly convinces us that a mistake has been made.’” Id. (citations
omitted.)

       At sentencing, the trial court attributed 78 ounces of methamphetamine to Meraz.
It then converted the 78 ounces of methamphetamine into marijuana using the
conversion tables contained in the sentencing guidelines because multiple substances
were involved, and arrived at 4422.6 kilograms of marijuana. This attribution meant
that Meraz’ base offense level was set at level 34 under the federal sentencing
guidelines. See United States Sentencing Commission, Guidelines Manual, §§
2D1.1(a)(3), 2D1.1(c)(3) (Nov. 1998). The court then adjusted his base offense level
upward two levels for possession of a firearm. Id. § 2D1.1(b)(1). Meraz challenges
the district court’s attribution, arguing that the district court’s finding was not supported
by reliable evidence. We disagree.

       Meraz does not dispute that the 19.75 grams of cocaine seized during his arrest
and sold to Quintana were properly attributable to him. However, he disputes the
district court’s reliance on trial testimony to find him accountable for a total of 78
ounces of methamphetamine. Meraz’ argument is meritless because the district court’s
calculation was supported by the testimony of Greigo and Moreno. This court has
clearly held that the district court is not limited to the actual amount of drugs seized
when imposing a sentence, but can consider witness testimony and determine its
credibility when calculating the total amount of drugs involved in the conspiracy.
United States v. Wessels, 12 F.3d 746, 753-54 (8th Cir. 1993), cert. denied, 513 U.S.




                                            -9-
831 (1994); United States v. Duckworth, 945 F.2d 1052, 1054 (8th Cir. 1991).
Furthermore, witness credibility is an issue for the sentencing judge that is “virtually
unreviewable on appeal.” United States v. Karam, 37 F.3d 1280, 1286 (8th Cir. 1994),
cert. denied, 513 U.S. 1156 (1995). In this case, the trial testimony attributed at least
78 ounces of methamphetamine to Meraz. Therefore, we conclude that the district
court’s findings regarding the quantity of methamphetamine involved were reasonably
supported by the evidence and are not clearly erroneous.

                                          III.

      For the reasons stated above, we affirm Meraz’ conviction and sentence.

      A true copy.

             Attest:

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




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