                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT

                     ______________________

                         Nos. 95-50177,
                      97-50393 and 97-50407
                     ______________________

                    UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,

                             versus

           JAMES MENDIOLA; ELSA MENDIOLA; JOSE L. CRUZ

                                        Defendants-Appellants.


          Appeal from the United States District Court
                for the Western District of Texas
                          (SA-93-CR-191)

                         October 21, 1997
Before REAVLEY, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:1

     James and Elsa Mendiola were convicted for conspiracy to

manufacture and distribute marijuana; and, together with Jose Luis

Cruz, for possession of marijuana with intent to distribute.     We

AFFIRM Nos. 95-50177 and 97-50407; DISMISS No. 97-50393.

                               I.

     Between September 1992 and mid-1993, James Mendiola, Jerry

Wolf and Francisco Figueroa (later, a key Government witness)



     1
          Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
engaged   in   an   operation   to    grow     and   distribute   high-quality

marijuana.     It was planted initially at the Mendiola residence in

San Antonio, Texas, and then transported to, and replanted at, a

ranch owned by Wolf and Mendiola in Rocksprings, Texas.                     Elsa

Mendiola, the wife of James Mendiola, was involved in the operation

and arranged with her sister for distribution in the Austin, Texas,

area.   Cruz worked as a laborer at the Rocksprings ranch, tending

the marijuana growing operation.               Approximately 800 marijuana

plants were found growing on 24 June 1993 when search warrants were

executed at the residence and the ranch.

     The Mendiolas, Cruz, and Wolf were charged with conspiracy to

manufacture marijuana with intent to distribute, in violation of 21

U.S.C. §§ 846 and 841(a)(1), and with possession of marijuana with

intent to distribute, in violation of 21 U.S.C. 841(a)(1) and 18

U.S.C. § 2 (aiding and abetting).             In mid-1994, a jury found the

Mendiolas and Wolf guilty on both charges; Cruz, on the possession,

but not the conspiracy, charge.            (As discussed in our opinion in

United States v. Guerrero, Nos. 95-50140 and 97-50401, rendered the

same day as this opinion, shortly after the trial in this case,

James   Mendiola    was   tried      and     convicted   for   conspiracy   and

possession with intent to distribute other marijuana.)

     In mid-1997, a new trial was denied the Mendiolas and Cruz.

                                       II.




                                      - 2 -
     Wolf dismissed his appeal.       The Mendiolas and Cruz raise a

number of issues, including insufficient evidence to sustain their

convictions, evidentiary and sentencing rulings, and the denial of

a new trial.    The Mendiolas also raise a double jeopardy claim;

Cruz, the denial of his severance motion.     Following the mid-1994

trial, sentencing and the initial appeal (No. 95-50177) were in

1995. But, while that appeal was pending, the new trial motion was

not filed and denied until 1997.          Pending that ruling, oral

argument on the initial appeal was stayed.       In the interim, one

issue presented in the initial appeal was resolved, as discussed

below.

                                 A.

     The denial of Cruz’s motion to sever is reviewed only for

abuse of discretion.   See Zafiro v. United States, 506 U.S. 534,

541 (1993); United States v. Arzola-Amaya, 867 F.2d 1504, 1516 (5th

Cir.), cert. denied, 493 U.S. 933 (1989).     For “conspiracy cases,

the general rule is that persons indicted together should be tried

together.”   United States v. Fields, 72 F.3d 1200, 1215 (5th Cir.),

cert. denied,   ___ U.S. ___, 117 S. Ct. 48 (1996).    “Severance is

a matter left to the sound discretion of the trial court, and a

defendant is not entitled to severance unless he can demonstrate

specific compelling prejudice that actually results in his having

received an unfair trial.”    United States v. Capote-Capote, 946




                               - 3 -
F.2d 1100, 1104 (5th Cir. 1991), cert. denied, 504 U.S. 942 (1992);

see FED. R. CRIM. P. 14.

     Cruz contends that, as a result of the denial of his motion,

inadmissible hearsay statements were admitted against him.                     It is

difficult to determine from his brief exactly which statements he

complains of, but they are apparently the telephonic intercepts of

the co-defendants, which were admitted over his objection.                         He

additionally appears to contend that, in relation to the denial of

a severance and the admission of the intercepts, he was denied his

Sixth Amendment right to confront the witnesses against him.

     Along     this   line,     Cruz    maintains     that,    aside     from     the

intercepts, there is little independent evidence implicating him

for possession with intent to distribute.                We disagree.        In any

event,   a   difference    in    the    amount   of     evidence       “is   clearly

insufficient in itself to justify severance.”                  United States v.

Harrelson, 754 F.2d 1153, 1175 (5th Cir.), cert. denied, 474 U.S.

1034 (1985).

     Cruz’s Sixth Amendment contention is also without merit.

Severance    is   proper   in    such   cases    only    where     a   defendant’s

statement directly incriminates his or her co-defendants without

reference    to   other,   admissible      evidence.          United     States    v.

Beaumont, 972 F.2d 91, 95 (5th Cir. 1992).              The statements of the

co-defendants, which Cruz does not identify with any specificity,

did not directly incriminate Cruz without reference to other


                                       - 4 -
admissible evidence.   In fact, from our review of the record, none

of the intercepts directly implicated Cruz.

     Accordingly, Cruz does not demonstrate the requisite unfair

trial.   Indeed, the jury found the Mendiolas guilty, but acquitted

Cruz, on the conspiracy charge, reflecting that it considered the

evidence separately as to each Appellant.

                                   B.

     The Mendiolas base their double jeopardy claim on the civil

forfeiture proceeding concerning their home, restaurant, and other

assets. As held fairly recently, an in rem civil forfeiture is not

a “punishment” subject to the Double Jeopardy Clause.        United

States v. Ursery, ___ U.S. ___, 116 S. Ct. 2135, 2147 (1996).

Instead, the   proceeding is “a remedial civil sanction, distinct

from potentially punitive in personam civil penalties such as

fines, and does not constitute a punishment under the Double

Jeopardy Clause.”   Id. at 2142.   In the light of Ursery, “[i]n rem

civil forfeitures do not constitute ‘punishment’ for purposes of

the Double Jeopardy Clause, but operate, merely to ‘confiscate

property used in violation of the law, and to require disgorgement

of the fruits of illegal conduct.’” United States v. Perez, 110

F.3d 265, 267 (5th Cir. 1997).

                                   C.

     Testimony by Diane Reyes, a friend of Elsa Mendiola’s sister,

Mari Gaona, was admitted pursuant to FED. R. EVID. 801(d)(2)(E), as


                                 - 5 -
“a statement by a co-conspirator of a party during the course and

in   furtherance   of   the   conspiracy.”   For   such   admission,   the

Government must establish by a preponderance of the evidence that

the declarant and the defendant were involved in a conspiracy and

that the statements were made during, and in furtherance of, the

conspiracy.    Bourjaily v. United States, 483 U.S. 171, 175 (1987).

In determining whether a conspiracy exists, the district court is

free to look at all evidence, including the putative hearsay

statement.    Id. at 175-80.

      The admission of Rule 801(d)(2)(E) evidence is reviewed for

abuse of discretion.      United States v. Triplett, 922 F.2d 1174,

1181 (5th Cir.), cert. denied, 500 U.S. 945 (1991).         And, even if

an abuse of discretion is found, the harmless error doctrine is

applied.     United States v. Skipper, 74 F.3d 608, 612 (5th Cir.

1996).     Determinations that the statements were made by a co-

conspirator and in furtherance of the conspiracy are reviewed only

for clear error.    United States v. Stephens, 964 F.2d 424, 434 (5th

Cir. 1992).    Needless to say, “[w]here there are two permissible

views of the evidence, the factfinder’s choice between them cannot

be clearly erroneous.”        Anderson v. Bessemer City, 470 U.S. 564,

574 (1985).

      The Mendiolas contend that Reyes’ testimony about Gaona’s

statements should not have been admitted because there is no

independent evidence of a concert of action between them and Gaona.

                                   - 6 -
They further contend that there was no evidence that they entered

into a conspiracy with Gaona, and that the Government failed to

prove that Gaona was a member of the conspiracy for which they were

convicted.      Cruz contends likewise that there was no independent

evidence of either a concert of action between him and Gaona, or

that   Gaona    was   a   member    of    a   conspiracy   that    involved    him.

Moreover, Cruz contends also that there was no evidence that he was

involved in a conspiracy with Reyes and that the statements made by

Reyes were not made in furtherance of a conspiracy involving her

and Cruz.

       At trial, Appellants objected on several grounds, including

that, as an unindicted co-conspirator, the statements made by Gaona

were inadmissible.        Counsel for Cruz objected on the basis that

Reyes’ testimony had nothing to do with Cruz.                      After lengthy

argument,      the    district     court      overruled    all    objections   and

determined later that the Government had shown by a preponderance

of the evidence that a conspiracy existed, that the defendants

against whom the statements were offered were members of the

conspiracy, and that the statements were made in furtherance of

that conspiracy.

       “Statements     made   by    a    non-testifying     co-conspirator     are

admissible against the defendant if there is ‘independent evidence

of a concert of action’ in which the defendant was a participant.”

United States v. Asibor, 109 F.3d 1023, 1033 (5th Cir.), cert.


                                         - 7 -
denied, ___ U.S. ___, 1997 WL 525549 (Oct. 6, 1997).                      There was

ample   independent,       non-hearsay     evidence    that      Appellants        were

participants in the marijuana growing and distribution conspiracy

and that Gaona was involved.              Our focus for this challenge is

whether the “government introduced sufficient independent evidence

of the existence of a conspiracy, in which the defendant was a co-

conspirator....”      United States v. Dawson, 576 F.2d 656, 658 (5th

Cir. 1978), cert. denied, 439 U.S. 1127 (1979).                  The record shows

that a marijuana growing and distribution operation was run by

James Mendiola and Wolf; that Cruz cared for the marijuana at the

Rocksprings     ranch;     and   that    Elsa    Mendiola     was    aware    of    the

operation and assisted in the distribution with her sister, Gaona.

Additionally, there was testimony from an FBI Agent who observed an

exchange of a package believed to be marijuana between Gaona and

Wolf.       Accordingly,     Appellants’        challenge   regarding        lack    of

independent concert of action is meritless.

       As   noted,   the   Government’s     burden    is    to      establish      by a

preponderance of the evidence that the declarant (Gaona) and the

defendants were involved in a conspiracy and that the statements

were    made   during,     and    in    furtherance     of,      the    conspiracy.

Bourjaily, 483 U.S. at 175.             As also noted, Appellants contend

there was no evidence they entered into a conspiracy with Gaona,

and that the Government failed to prove that she was a member of

the conspiracy for which the Mendiolas were convicted.                             This


                                        - 8 -
contention is without merit.          There was independent evidence that

Gaona was involved in a conspiracy to distribute marijuana grown by

the Mendiolas and cared for by Cruz.                  Reyes testified that Gaona

told her that marijuana was being grown at the Rocksprings ranch;

that   marijuana    had    come    from    the    Mendiolas’     residence;       that

marijuana was delivered to her in Austin from the Mendiolas; and

that Wolf and she in turn sold it for $2000 per pound.                     There was

also   testimony    from    another       witness      that   Elsa    Mendiola    sold

marijuana to Gaona.

       As noted, Cruz contends also that there was no evidence that

he was involved in a conspiracy with Reyes, and that the statements

made   by   Reyes   were    not    made    in    furtherance     of    a   conspiracy

involving    her    and    Cruz.     But,       the   focus   concerning      a   Rule

801(d)(2)(E) admission is on the declarant, Gaona, not Reyes.

                                          D.

       The Mendiolas challenge the sufficiency of the evidence on

conspiracy and, with Cruz, on possession with intent to distribute.

For such challenges, the evidence is viewed in the light most

favorable to the verdict, accepting all credibility choices and

reasonable inferences made by the jury; and, it is sufficient if a

rational juror could have found that it established guilt beyond a

reasonable doubt.         E.g., United States v. Montoya-Ortiz, 7 F.3d

1171, 1173 (5th Cir. 1993).                Toward that end, “[i]t is not

necessary that the evidence exclude every reasonable hypothesis of


                                      - 9 -
innocence or be wholly inconsistent with every conclusion except

that of guilt....         A jury is free to choose among reasonable

constructions of the evidence.”                Id.   (quoting United States v.

Bell, 678 F.2d 547, 549 (5th Cir. 1982), aff’d, 462 U.S. 356

(1983).

      As noted, concerning the insufficiency claims as to both

charges, a key Government witness was Figueroa.                 Figueroa, who was

also a key player in the operation, engaged in a marijuana growing

and   dealing   relationship       with    James     Mendiola     and   Wolf.       He

testified that he had a drug dealing relationship with James

Mendiola;   that   Wolf       oversaw    the     growing     operation;     that   the

marijuana began growing at the Mendiola residence and was then

transferred to the Rocksprings ranch; and that Cruz was a laborer

in charge of caring for the plants.              James Mendiola also showed him

marijuana that was growing. Figueroa testified also that, once the

marijuana was transferred from the residence to the ranch, James

Mendiola would go to the ranch to make sure the plants were

perfect; that Cruz lived both at the Mendiola residence and at the

Rocksprings ranch; and that Elsa Mendiola was aware of the growing

operation, because she witnessed the loading of marijuana on a

truck.

                                          1.

      “To   establish     a    conspiracy       under   21    U.S.C.    §   846,   the

government must prove that a conspiracy existed, that each co-


                                        - 10 -
defendant knew of the conspiracy, and that each co-defendant

voluntarily    joined     in    it.”      Montoya-Ortiz,       7   F.3d    at   1173

(internal quotation marks and citation omitted).                The elements for

conviction under § 846 “may be proved by circumstantial evidence

and   ‘[c]ircumstances         altogether       inconclusive,      if    separately

considered,   may,   by    their     number     and    joint   operation    ...   be

sufficient to constitute conclusive proof.’” United States v.

Broussard, 80 F.3d 1025, 1031 (5th Cir.), cert. denied, ___ U.S.

___, 117 S. Ct. 264 (1996) (quoting United States v. Roberts, 913

F.2d 211, 218 (5th Cir. 1990), cert. denied, 500 U.S. 955 (1991)).

      Approximately 450 marijuana plants were found growing at the

Mendiolas’ residence, with over 300 plants found growing at the

Rocksprings ranch.      Also, the Mendiolas were overheard in numerous

intercepted telephone calls discussing marijuana purchases and

deliveries in coded language.

      James   Mendiola    was    a     leader    and   organizer    of    the   grow

operation.    Moreover, an undercover FBI Agent testified that James

Mendiola informed him that he grew seedless marijuana and offered

to sell it to the Agent.

      In addition, as noted, Elsa Mendiola was present when a

shipment of marijuana was loaded aboard a truck; and, as also

noted, she used code in discussing drugs on the telephone, and,

sold marijuana to her sister, Gaona, for distribution in Austin

(the sister discussed in part II. C. supra).


                                       - 11 -
     In    sum,    there   was   more     than       sufficient    evidence   for    a

reasonable    juror   to   find,       beyond    a    reasonable    doubt,    that a

conspiracy existed, and that the Mendiolas were aware of, and

voluntarily participated in, it.

                                         2.

     Under 21 U.S.C. § 841(a)(1), the Government must prove three

elements: (1) knowing (2) possession of a controlled substance (3)

with intent to distribute it.           See United States v. Brown, 29 F.3d

953, 958 (5th Cir.), cert. denied, 513 U.S. 1021 (1994).                            Of

course,    these    elements     may    be    established     by    circumstantial

evidence.    United States v. Cardenas, 9 F.3d 1139, 1158 (5th Cir.

1993), cert. denied, 511 U.S. 1134 (1994).                For example, intent to

distribute may be inferred from the quantity, value, and quality of

the drugs involved.        United States v. Casilla, 20 F.3d 600, 603

(5th Cir.), cert. denied, 513 U.S. 892 (1994); Cardenas, 9 F.3d at

1158.

     Along this line, the elements for aiding and abetting a

criminal offense, in violation of 18 U.S.C. § 2, are association

with criminal activity, participation in it, and acting to help it

succeed.     See United States v. Pedroza, 78 F.3d 179, 183-84 (5th

Cir. 1996); United States v. Vaden, 912 F.2d 780, 783 (5th Cir.

1990).      “Association    means      that     the    defendant    shared    in   the

criminal intent of the principal....              Participation means that the

defendant engaged in some affirmative conduct designed to aid the

                                       - 12 -
venture....      Although relevant, mere presence and association are

insufficient to sustain a conviction of aiding and abetting.”

United States v. Salazar, 66 F.3d 723, 729 (5th Cir. 1995).

       Approximately    450    plants       were    seized   at    the   Mendiolas’

residence;      approximately        315,     at     the     Rocksprings     ranch.

Additionally, there was evidence regarding the premium price and

high   quality    of   the    seedless      marijuana      being    grown   by    the

Mendiolas; that James Mendiola actively offered to sell marijuana;

that Elsa Mendiola witnessed loading marijuana shipments; that she

was engaged in a distribution scheme with her sister in Austin;

that Cruz tended and cared for the marijuana at the Rocksprings

ranch; and that he was seen at the ranch the majority of the time

(indeed,   he    was   the    only   person        there   when    the   search   was

conducted).      There was also testimony that, when Cruz was not

working at the ranch, he lived at the Mendiola residence.                    And, a

money order receipt and an emergency notification card bearing

Cruz’s name and the address for the Mendiolas’ residence were found

at that residence.

       The jury could reasonably find, beyond a reasonable doubt,

that the Mendiolas and Cruz possessed marijuana with intent to

distribute.

                                         E.

       A sentence will be upheld “unless it was imposed in violation

of law; imposed as a result of an incorrect application of the



                                      - 13 -
sentencing guidelines; or outside the range of the applicable

sentencing guideline and is unreasonable.”       United States v.

Montoya-Ortiz, 7 F.3d 1171, 1179 (5th Cir. 1993) (quoting United

States v. Haymer, 995 F.2d 550, 552 (5th Cir. 1993)).

                               1.

     Appellants contend that the court erred in calculating their

offense level based upon a finding that there were 771 marijuana

plants at the residence and ranch.      We accept such sentencing

findings unless they are clearly erroneous.   E.g.,   United States

v. Sotelo, 97 F.3d 782, 799 (5th Cir.), cert. denied, ___ U.S. ___,

117 S. Ct. 620 (1996); United States v. Robins, 978 F.2d 881, 889

(5th Cir. 1992); United States v. Otero, 868 F.2d 1412, 1414 (5th

Cir. 1989).   And, due deference is given to the district court’s

application of the Sentencing Guidelines to those findings.    Id.

Robins, 978 F.2d at 889.

     Moreover, “a presentence report generally bears sufficient

indicia of reliability to be considered as evidence by the trial

court in making factual determinations required by the Guidelines.”

Robins, 978 F.2d at 889.   And, the district court is well within

its province “to rely on a presentence report’s construction of

evidence to resolve a factual dispute, rather than relying on the

defendant’s version of the facts.”     Id. (internal citations and

quotations omitted).



                              - 14 -
     The presentence report, adopted by the district court, stated

that the offense involved a total of 771 growing marijuana plants.

There   was   testimony   from   the    Agents   conducting   the   searches

regarding the number of plants seized, their stage of growth, and

their root structure.     They testified further that plants were not

picked or counted unless they appeared to be viable and capable of

growth. Additionally, there was testimony from a Government expert

regarding the grow operation and the nature of the plants.

     During oral argument for this appeal, counsel for James

Mendiola contended that an FBI Special Agent simply “guessed”

during sentencing at the number of plants seized at the residence.

However, the Agent testified at trial that 455 plants were seized

at that site.     Based on our review of the record, we cannot say

that the plant quantity finding was clearly erroneous.

                                       2.

     Cruz contends that the district court erred by including the

plants seized at the Mendiola residence in calculating his base

offense level.     But, the court had the discretion to consider

amounts that were part of a common plan or scheme to distribute.

United States v. Ponce, 917 F.2d 841, 844 (5th Cir. 1990) (per

curiam), cert. denied, 499 U.S. 940 (1991); United States v.

Sarasti, 869 F.2d 805, 806 (5th Cir. 1989).           Moreover, under the

Guidelines, the court may consider as relevant conduct occurrences

which did not result in a conviction in determining the actual


                                  - 15 -
guideline range.      See United States v. Taplette, 872 F.2d 101, 106

(5th Cir.), cert. denied, 493 U.S. 841 (1989). As reflected supra,

there was ample evidence to link Cruz to both the Rocksprings ranch

and the Mendiola residence. Accordingly, the court did not clearly

err by including the plants seized at the latter.

                                            3.

     While this appeal was pending, Guidelines § 2D1.1(c) was

amended by replacing the one kilogram per plant ratio with an

instruction to base the sentence upon the greater of the actual

weight of the usable marijuana, or 100 grams per plant.                             See

U.S.S.G. App. C, Amendment 516 (Nov. 1, 1995) (amending the notes

and commentary to U.S.S.G. § 2D1.1). This amendment may be applied

retroactively by the district court.                  United States v. Boe,         117

F.3d 830, 831 (5th Cir. 1997).                    Appellants contend, and the

Government concedes, that the amendment may affect their sentences.

     A   motion     pursuant      to   18    U.S.C.    §   3582(c)(2)    “permits    a

district court to reduce a term of imprisonment when it is based

upon a sentencing range that has subsequently been lowered by an

amendment to the Sentencing Guidelines, if such a reduction is

consistent with the policy statements issued by the Sentencing

Commission.”       Boe, 117 F.3d at 831.            The “district court has the

discretion    to    deny   a     section     3582(c)(2)     motion,     even   if   the

retroactive amendment has lowered the guideline range.”                        United

States   v.   Ursery,      109    F.3d      1129,   1137-38    (6th     Cir.   1997).


                                         - 16 -
Consequently, our affirmance of the sentences is without prejudice

to   Appellants    seeking   a   reduction   in   sentence   pursuant     to §

3582(c)(2) and Amendment 516.

                                     4.

      Appellants maintain that the district court erred in applying

Guideline    §    2D1.1(b)(1)    (increase   offense   level   by   two    for

possession of dangerous weapon) because the seized-firearms were

neither possessed during, nor connected to, the commission of any

offense.    The increase should be given if a weapon was present,

unless it is clearly improbable that it was connected to the

offense.    United States v. Sparks, 2 F.3d 574, 587 (5th Cir. 1993)

(citing § 2D1.1, comment. (n.3)), cert. denied, 510 U.S. 1056

(1994).    In this regard, the analysis of the term “use” of a weapon

in Bailey v. United States, ___ U.S. ___, 116 S. Ct. 501 (1995),

was limited to 18 U.S.C. § 924(c)(1); contrary to Appellants’

contention, it has no application in the present context.                  See

United States v. Castillo, 77 F.3d 1480, 1499 n.34 (5th Cir.),

cert. denied, ___ U.S. ___, 117 S. Ct. 180 (1996).

      The evidence established that four handguns, including one

found in a briefcase used by Elsa Mendiola, and one shotgun were

found at the Mendiolas’ residence, where 455 plants were found.

Additionally, a shotgun and one rifle were found at the ranch,

where 316 plants were found.




                                   - 17 -
     The sentencing enhancement “for weapon possession reflects the

increased    danger   of   violence    when      drug   traffickers     possess

weapons.”    U.S.S.G. § 2D1.1, comment (n.3).           Moreover, “the mere

presence of [a] gun, loaded or not, can escalate the danger.”

United States v. Mitchell, 31 F.3d 271, 277 (5th Cir.), cert.

denied, 513 U.S. 977 (1994).     The evidence clearly established the

presence of the weapons at the marijuana growing operations. The

finding that the weapons were “connected” to the offenses was not

clearly erroneous; restated, it was not clearly improbable that

they were connected to the offense.

                                      F.

     While    their   convictions     and    sentences     were    on   appeal,

Appellants obtained information relating to Moises Perez, an FBI

informant and witness, and relating to a Special Agent, who also

testified.    The Government dismissed charges in an unrelated case

in which Perez was to be a witness because they allegedly had lost

confidence in him.

     The information revealed that Perez had entered a plea of no

contest to the offense of organized crime in Texas state court,

which was never given to Appellants prior to trial and that,

consequently, Perez may have testified falsely at their trial.

Additionally,     information   that       the   Special   Agent    had   been

investigated by the FBI’s Office of Professional Responsibility was

never revealed.


                                 - 18 -
     As a result, Appellants moved for a new trial; the motion was

denied    without   a   hearing.2   (The     Government   submitted   to   the

district court for in camera inspection the materials relating to

the investigations of the Special Agent.)

     Impeachment evidence, which is primarily at issue here, is

covered by the disclosure requirements of Brady v. Maryland, 373

U.S. 83 (1963).     See Wilson v. Whitley, 28 F.3d 433, 435 (5th Cir.

1994), cert. denied, 513 U.S. 1091 (1995) (citing United States v.

Bagley, 473 U.S. 667, 676 (1985)).           The Court has held: “When the

‘reliability of a given witness may well be determinative of guilt

or innocence,’ nondisclosure of evidence affecting credibility

falls within [Brady’s] general rule.” Giglio v. United States, 405

U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269

(1959)).    Brady rulings are reviewed de novo.            United States v.

Green, 46 F.3d 461, 464 (5th Cir.), cert. denied, 515 U.S. 1167

(1995).




     2
          Pursuant to FED. R. APP. P. 4(b), Cruz’s appeal from the
new trial denial (No. 97-50393) was untimely.       On remand, the
district court determined that the untimely filing was not due to
excusable neglect.    See FED. R. APP. P. 4(b) (“upon showing of
excusable neglect the district court may ... extend the time for
filing a notice of appeal.”).      We review an excusable neglect
determination for abuse of discretion. See United States v. Clark,
51 F.3d 42, 43 n.5 (5th Cir. 1995). We cannot say that the court
abused its discretion when it determined that Cruz’s attorney’s
failure to properly read Rule 4(b) constituted inexcusable neglect.
Accordingly, Cruz’s appeal in No. 97-50393 is DISMISSED.

                                    - 19 -
       Brady    violations    require     reversal     only   if    there   is    a

“reasonable probability” that the outcome of the trial would have

been different had the evidence been disclosed.                 See Bagley, 473

U.S. at 682.      Such “reasonable probability” is established only

when the failure to disclose “could reasonably be taken to put the

whole case in such a different light as to undermine confidence in

the verdict.”      Kyles v. Whitley, 514 U.S. 419, 435 (1995).

       The challenge at hand focuses on withheld impeachment evidence

regarding      Perez   and   the   Special    Agent.      “In      assessing    the

materiality of undisclosed impeachment evidence, ‘we must consider

the nature of the impeachment evidence improperly withheld and the

additional evidence of the defendant’s guilt independent of the

disputed testimony.’” Wilson v. Whitley, 28 F.3d 433, 439 (5th Cir.

1994) (quoting United States v. Weintraub, 871 F.2d 1257, 1262 (5th

Cir.   1989))    cert.   denied,    513    U.S.   1091   (1995).        There    is

overwhelming evidence of the Mendiolas’ guilt, independent of the

evidence in issue that could be obtained from Perez or the Special

Agent.   Consequently, there is no Brady violation; a new trial was

properly denied.       (In connection with his new trial motion, James

Mendiola sought the disqualification of the Assistant United States

Attorney who tried the case.              Obviously, there being no error

regarding the new trial denial, we do not reach this issue.)

                                      III.




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     For the foregoing reasons, Cruz’s appeal from the new trial

denial (No. 97-50393) is DISMISSED; the Mendiolas’ appeal from such

denial   (No.   97-50407)   is   AFFIRMED;   and   the   convictions     and

sentences   (No.   97-50177)     are   AFFIRMED,   without   prejudice    to

Appellants moving for a reduction in sentence.




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