                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit



                             No. 91-2264



United States of America,
                                       Plaintiff-Appellee

                                VERSUS

Rafael Valencia and
Luis Arturo Penaflor,
                                       Defendants-Appellants




             Appeal from the United States District Court
                  For the Southern District of Texas

                           (March 25, 1992)
Before WILLIAMS and WIENER, Circuit Judges, and LITTLE, District
Judge.*



WIENER, Circuit Judge:


     Defendants-Appellants Rafael Valencia and Luis Arturo Penaflor

appeal their convictions on one count of conspiracy to possess with

intent to distribute in excess of one kilogram of heroin and on one

count possession with intent to distribute in excess of 100 grams

of heroin.    Finding no reversible error, we affirm.



                                  I.


     *
      District Judge for the Western District of Louisiana,
sitting by designation.
                                    FACTS

     In     1989,    the   Drug   Enforcement   Agency   (DEA)   began   an

investigation of Javier Carrasco after receiving a tip from a

government informant, Gonzalez Marquez (also known as Rudy Lopez).

Marquez had participated in several telephone conversations and had

met with Carrasco in Arizona to negotiate the sale of 16 kilograms

of heroin.     Valencia was present at the meeting between Carrasco

and Marquez.        Several months later, Carrasco telephoned Marquez

from Mexico to advise him that a two kilo sample of the heroin was

ready for transportation into the Tucson area.             Carrasco gave

Marquez a telephone number to call in Tucson to arrange for the

delivery.    When Marquez made the call, Penaflor answered the phone

and acknowledged Marquez's identity.            Marquez then spoke with

Valencia and asked Valencia if he could read a map.          In response,

Valencia said that Penaflor could read and speak English.          Marquez

then spoke with Penaflor, who informed Marquez that "they"1 would

arrive in Houston on a certain date, and explained that, once they

arrived in Houston, Carrasco's sister-in-law would call Marquez to

give him the hotel room and phone number where Penaflor could be

reached.

     On the appointed date, Carrasco's sister-in-law was contacted

and she provided the expected information. When Marquez called the

hotel room, Valencia answered.        They arranged to meet at the hotel

     1
      Marquez's testimony as to who "they" are is unclear.
Apparently, he expected Carrasco to come to Houston to meet with
him because later, at the meeting, he asked Valencia and Penaflor
why Carrasco did not make the trip. Valencia then explained that
Carrasco had sent Penaflor in his place.

                                      2
room.    Shortly thereafter, Marquez went to the hotel room, and

Valencia and Penaflor were present.

     Valencia left the room and returned about ten minutes later

with a speaker box he had removed from his truck.2    Penaflor hit

the speaker to open it, and Valencia removed a plastic bag and

said, "Here it is and it's good."      Penaflor added, "It smells

good."

     Valencia broke off a piece for Marquez to examine.3     Marquez

explained that he would take the sample, test it, and return later

with the actual purchasers.   According to Marquez, the Defendants

expressed concern about remaining in a strange place with the

heroin, indicating that they did not want to keep the drugs in the

room.

     Later that day, in a tape recorded telephone conversation in

Spanish, Marquez complained to Carrasco that he did not get the two

kilos as promised, and that its purity was only 13 percent.

Marquez said he could give Carrasco only $8,000. Carrasco promised

the additional kilograms in eight days, and instructed Marquez to

give the money to Valencia because Valencia was in charge.

     Two DEA agents posing as buyers accompanied Marquez to the

same hotel.   While one of the agents remained in the car, Marquez

and the other agent met with Valencia and Penaflor in the same room

as before.    Because the agent spoke no Spanish and Valencia spoke

     2
      Marquez recognized the truck as the same one Carrasco had
driven to their earlier meeting in Arizona.
     3
      This piece was later determined in a lab test to be 4.06
grams of heroin.

                                  3
no English, Penaflor acted as interpreter.            The agent inquired as

to the whereabouts of the heroin, and Penaflor informed him that

Valencia would get it. Valencia left the room and returned shortly

with a brown bag under his shirt.

     The heroin was removed from the bag, and the agent began

testing and weighing it.         The agent protested that the heroin was

not very good, but both Defendants responded that it was "excellent

stuff."      The Defendants expressed concern when they were informed

that they would only be receiving $8,000 for what amounted to 239.2

grams   of    heroin.     Attempts    were   made   to   reach     Carrasco   by

telephone, and someone at his number assured Valencia to his

satisfaction that $8,000 was the agreed price.

     The     Defendants   also    informed   the    agent   that    they   would

personally be delivering the remaining kilograms of heroin on

behalf of Carrasco in several weeks.           Penaflor, still concerned

about the price shortage, argued with Valencia. As Marquez and the

agent were leaving, some discussion took place about the additional

kilos, and Penaflor stated, "Well, on that one I'm going to make

more money."

     Even though Marquez subsequently exchanged numerous telephone

conversations with both Valencia and Penaflor over a period of

several months, the DEA agents finally concluded that the agreed 16

kilo transaction was never going to take place.               One of the DEA

agents testified at trial, over the Defendants' hearsay objection,

that the agents decided to arrest the Defendants after hearing from

an informant that Carrasco was on the run because of an argument


                                       4
with some narcotics traffickers.          The agent admitted that he did

not know whether the report was accurate, but that the DEA had

acted on the information.


                                    II.

                                PROCEEDINGS

       Valencia, Penaflor and Carrasco were indicted for conspiring

to possess with intent to distribute in excess of one kilogram of

heroin, in violation of 21 U.S.C. §§        841(a)(1), 841(b)(1)(A), and

846.    Valencia and Penaflor were also indicted for possession with

intent to distribute in excess of one hundred grams of heroin, in

violation of §§ 841(a)(1) and 841(b)(1)(B).        Valencia and Penaflor

were tried together by a jury, and were convicted on both counts.

Each was sentenced to 188 months of imprisonment on each count, to

run concurrently, plus five years of supervised release on each

count, to run concurrently, and deportation upon release from

confinement.

       Both Defendants timely appealed their convictions.


                                   III.

                                 ANALYSIS

A.     The Taped Conversation

       At trial, the government sought to introduce into evidence and

play for the jury an authenticated tape recording of the telephone

conversation between Marquez and Carrasco that took place after

Marquez first met with Valencia and Penaflor in the Houston hotel

room.    The conversation was in Spanish, but an English transcript


                                     5
had been prepared, the accuracy of which was originally questioned

by the Defendants.        After conference and a review by the official

court translators, the parties stipulated to the accuracy of a

revised    version   of    the    English         transcript.      The    Defendants'

attorneys joined in the government's request to play the tape,

contending that the jury should hear the participants' tone of

voice.    The district court disagreed.                  After polling the jury and

learning    that   one    spoke      Spanish       and    one   understood   "street"

Spanish, the court concluded that the jury would be more confused

than assisted, and that a limiting instruction requiring the jury

to credit the official transcribed version over what they might

think    they   heard     on   the    tape     would       be   fruitless.        As   an

alternative, the court allowed copies of the transcript to be given

to the jury members, and the transcript to be read into the record

in English with Marquez reading his part of the conversation and

the prosecutor reading Carrasco's part.

     On appeal, the Defendants urge that the district court erred

in refusing to allow the tape to be played to the jury.                            They

contend here, as they did at trial, that the jury could have

benefitted from hearing the oral demeanor of the participants, the

hesitation in the voices, pauses, laughter, and other non-verbal

traits that     cannot     adequately        be    transferred     to    paper.        The

Defendants contend that Carrasco's oral demeanor demonstrates his

hesitance or reluctance.




                                          6
       This is an issue of first impression in this circuit.             In

United States v. Onori,4 we considered the appropriateness of

allowing a transcript of a taped conversation to be admitted as

substantive evidence. We have also considered cases concerning the

accuracy of the translation of a foreign language tape.5           We have

not, however, had to decide the propriety of admitting the English

translation of a foreign language tape as evidence while excluding

the tape itself, or to consider the relevance of a foreign language

tape       under   such   circumstances.   After   careful   consideration,

however, we conclude that here the district court did not err in

refusing to play the tape for the jury.

       The issue in this case is not whether the transcript can be

admitted into evidence without the tape.           Because of the unusual

nature of this case, however, that issue is a predicate to our

analysis of the Defendants' argument that the tape should have been

played as it would have been helpful to the jury.              There is no

question that a transcript of a taped conversation is beneficial to

a jury, and is generally used to assist the jury as it listens to

the tape in court.6         In Cruz, the Eleventh Circuit explained that

       Onori makes clear that transcripts may be used as substantive
       evidence


       4
      535 F.2d 938 (5th Cir. 1976); see also United States v.
Sutherland, 656 F.2d 1181 (5th Cir. 1981); United States v. Cruz,
765 F.2d 1020 (11th Cir. 1985).
       5
      See, e.g., United States v. Llinas, 603 F.2d 506 (5th Cir.
1979), cert. denied, 444 U.S. 1079 (1980); Onori, 535 F.2d at
948-49.
       6
        Onori, 535 F.2d at 947.

                                       7
to aid the jury in determining the real issue presented,
the content and the meaning of the tape recordings.
     It is therefore incorrect to think of the     trans
                                                   cript
                                                   s as
                                                   simpl
                                                   y an
                                                   "aid
                                                   "--as
                                                   bette
                                                   r
                                                   light
                                                   i n g
                                                   fixtu
                                                   r e s
                                                   i   n
                                                   t h e
                                                   court
                                                   room
                                                   would
                                                   be an
                                                   "aid"
                                                   t   o
                                                   t h e
                                                   jury'
                                                   s
                                                   visio
                                                   n of
                                                   witne
                                                   sses-
                                                   -and
                                                   n o t
                                                   a   s
                                                   evide
                                                   n c e
                                                   o   f
                                                   a n y
                                                   kind.
                                                   They
                                                   a r e
                                                   evide
                                                   n c e
                                                   and,
                                                   like
                                                   other
                                                   evide
                                                   nce,
                                                   m a y
                                                   b   e
                                                   admit
                                                   t e d
                                                   for a

                      8
                                                                             limit
                                                                             e   d
                                                                             purpo
                                                                             s   e
                                                                             only.
                                                                             7

Cruz and Onori instruct that a transcript is admissible because it

is helpful in understanding the tape recording from which it was

derived.8       We find nothing in Cruz or Onori, however, that would

prohibit    a    court    from    excluding   the    tape    itself   from   being

introduced into evidence while allowing the transcript.                 In fact,

we are aware of at least two cases in which English translation

transcripts of foreign language tapes were introduced while the

tapes themselves were not.9           In neither of those cases, however,

did the parties object to the introduction of the transcripts

without the tapes.10

     Because       we    have    concluded    that   an     English   translation

transcript can be introduced into evidence without admitting and

playing the underlying foreign language tape for the jury, we must

now determine whether here the district court abused its discretion


     7
      Cruz, 765 F.2d at 1023 (quoting Onori, 535 F.2d at 947).
     8
      The Cruz court did give some credence to the Defendants'
arguments: when listening to a foreign language recording, the
jury can "detect changes in voice modulation and note any
hesitancies or other characteristics which might give meaning to
the tape recordings." Cruz, 765 F.2d at 1024.
     9
      See United States v. Rizk, 842 F.2d 111 (5th Cir.), cert.
denied 488 U.S. 832 (1988); United States v. Rengifo, 789 F.2d
975 (1st Cir. 1986).
     10
      In Rizk, the defendant never requested that the tape be
played at trial. For this reason, we rejected his assertion that
he was prejudiced because the jury did not listen to the tapes.
Rizk, 842 F.2d at 112.

                                         9
when it refused to allow the tape to be played for the jury

following requests to do so from both the government and the

Defendants.

     Whether to allow the tape to be played for the jury or

introduced into evidence, like most evidentiary matters, is soundly

within the discretion of the trial court.11                It bears repeating

that, to be relevant in the determination of a case, the evidence

must aid the jury in its decision making process.12               Even though

evidence is relevant, however, it may be excluded if the trial

court finds that its probative value is substantially outweighed by

danger of unfair prejudice or confusion, or if such evidence would

be misleading to the jury.13

     Notwithstanding      the   Defendants'      contention    that   the   jury

should listen      to   the   tape   to    examine   the   participants'    oral

demeanor, the district court concluded that the tape would not aid

the jury.14      The court emphasized that the Defendants and the

government had stipulated to the accuracy of the transcript and

that, at the request of the Defendants, during voir dire of the

jury panel the court instructed the potential jurors who understood

Spanish to disregard their understanding of Spanish in favor of the

     11
      Addison v. United States, 317 F.2d 808, 815 (5th Cir.
1963), cert. denied, 376 U.S. 905 (1964).
     12
          Fed.R.Evid. 401.
     13
          Fed.R.Evid. 403.
     14
      The district court commented, "Well, if it was in Chinese,
I don't think I'd get the flavor from it; and I don't think this
jury will get any more flavor than they can from the transcript."


                                          10
official English translation presented to them during the course of

the trial. Under those circumstances, the court concluded that the

jurors,   presented     with   a   Spanish      language   tape     and   with   an

instruction   to   disregard       its    words   in   favor   of    an   English

translation, would be unaided by the tape.

     When   both   a    tape   and   a    transcript    are    admitted,    or    a

transcript is used by the jury as an aid when listening to the

tape, the jury is generally given a limiting instruction that if it

encounters a discrepancy between the tape and the transcript, the

tape controls.15       Of course, such a limiting instruction is only

useful when the jury can understand the tape itself.16              And, in this

case, the limiting instruction would have been the obverse:                  that

when the Spanish speaking jurors encountered a discrepancy, the

transcript, not the tape, controls.

     Moreover, the district court also expressed concern that the

tape could result in the jury being misled or confused because two

of the jurors could speak Spanish.            They might be tempted, reasoned


     15
      United States v. Larson, 722 F.2d 139, 145 (5th Cir.
1983), cert. denied, 466 U.S. 907 (1984).
     16
      The court in In re Audibility of Certain Recorded
Conversations (United States v. Gerena), 691 F.Supp. 588, 592
(D.C. Conn. 1988), in commenting on the futility of such limiting
instructions, stated, "Where the tapes are in a language other
than English, however, such instructions have an air of the
unreal, not to say the surreal. Transcripts in a language other
than English will almost invariably be useless to the jury; the
jury will need translations.   And a jury cannot very well follow
the tapes where they conflict with translations if the jury does
not understand the language of the tapes." See also, United
States v. Camargo, 908 F.2d 179, 193 (7th Cir. 1990). Of course,
in the instant case, most of the difficulty is derived from the
fact that two of the jurors could understand Spanish.

                                         11
the   court,     to    provide   their     own   gloss   on    the   translation,

irrespective of the court's earlier admonishment during voir dire

or any other limiting instruction the court might provide.                      The

court concluded that excluding the tape entirely should alleviate

the concern that the Defendants had exhibited when they requested

the voir dire instruction initially.                We are not convinced, under

the facts of this case, that the tape itself would not have aided

the jury in its deliberations.           Rather, we agree with the court in

Gerena, which observed that

      [i]n most cases little or no purpose would be served by
      playing to a jury in a United States courtroom a tape of a
      conversation in a language other than English.          It is
      arguable, however, that the particular circumstances of a case
      would make it material and relevant to play such a tape to a
      jury that does not understand the substance of the
      conversation to show the mood or tone of the speakers, or the
      general context or ambiance of their conversation.17

      Regardless of our disagreement on that point, however, we do

not find that the district court abused its discretion.                         The

Defendants have asserted that by listening to the tape the jurors

would be able to infer from the "oral demeanor" that Carrasco was

reluctant or hesitant.        The transcribed translation, as stipulated

to by the parties, indicates no reluctance or hesitance.                        Even

though we understand the Defendants' argument that the "entire"

conversation was not represented by the transcript, we note that

the   tape     was    authenticated   by      Marquez,   who   was   one   of   the

participants, and that he and the government's attorney read the

transcript into the record.              The tape was not admitted into


      17
           691 F.Supp. at 607 n.9.

                                         12
evidence, even on a proffer, so it does not form a part of the

record on appeal.        Moreover, the Defendants have failed to direct

our attention to any point in the transcript at which we might find

such evidence of oral demeanor on the tape were it available to us.

     Furthermore, in his testimony on direct examination, Marquez

clarified    many    terms    and   parts    of   the   conversation.        The

Defendants'       attorneys   cross-examined       Marquez   on    the   taped

conversation, and also called on Marquez to clarify idioms and

references in the conversation, but never once did either inquire

as to Carrasco's "oral demeanor" or the tone of the conversation,

even though such testimony would have been well within Marquez's

purview.18

          The district court also expressed concern that whatever

relevance the tape may have had was substantially outweighed by the

danger that it would confuse or mislead the jury.               The Defendants

requested that the court admit the tape and give the jury a

limiting instruction, similar in content to the one given the jury

venire,    that    the   jurors   should    disregard   their    knowledge   of

Spanish, to the extent they had any, in favor of the transcript.

The court, however, voiced doubts as to the efficacy of such an

instruction.

     Just as we did not necessarily agree with the district court's

conclusion that the tape would not be helpful to the jury, we do

not necessarily agree that playing the tape would have confused or

     18
      See United States v. Aiello, 864 F.2d 257 (2d Cir. 1988);
Cf. United States v. Allibhai, 939 F.2d 244 (5th Cir. 1991),
cert. denied, 117 L.Ed.2d 133 (1992).

                                      13
misled the jury.          In fact, we note with more than a passing

interest that one witness in this case spoke no English, yet she

was allowed to testify before the jury in Spanish while her

testimony was simultaneously translated into English by an official

court translator.         Frankly, we fail to discern the difference

between the playing of the foreign language tape to the jury and

the testimony of this foreign language witness.               Both instances

appear to present the same potential to confuse or mislead the

jury--that the two Spanish speaking jurors may confuse the two

versions or fail to accept the English version as "official"; and

that those two jurors may unduly influence their fellow jurors who

do not speak Spanish.

       But despite this apparent contradiction, we do not find that

the district court abused its discretion in refusing to allow the

tape to be played.         We have long noted the particular discretion

that    a     district   court   is   allowed   in   determining   just   which

evidentiary matters have the real potential of confusing the jury.19

The court may reasonably have concluded that the probative value of

the witness's testimony far outweighed any possibility that the

jury would be confused or misled by the fact that her testimony was

given in Spanish, while just as reasonably reaching the opposite

conclusion with respect to the tape.20

       19
            United States v. Edelman, 873 F.2d 791, 795 (5th Cir.
1989).
       20
      There is no record of any objection at trial to the
testimony of this witness in Spanish. The relevance of the
witness's testimony is not before us. We note only that the
situations are analogous and seem to present the same dangers.

                                        14
     Although one could plausibly argue that the better, more

consistent approach would have been to have the jury listen to the

tape, just as the jury listened to the Spanish speaking witness, we

cannot say that under the circumstances of this case the district

court abused its discretion by refusing to play the tape for the

jury.


B.   The Jury Instructions

     In one of two counts to the indictment, the Defendants were

charged with possession with intent to distribute in excess of 100

grams of heroin, but in the other count, they were charged with

conspiring to possess with intent to distribute in excess of one

kilogram of heroin.   The DEA, however, only recovered 239 grams of

heroin in their meeting with Valencia and Penaflor. The Defendants

requested, and the court agreed, to include a jury instruction on

the "lesser included offense" of conspiracy to possess with intent

to distribute in excess of 100 grams of heroin.            After closing

arguments, however, the court omitted any reference to a 100-gram

conspiracy.   Both Defendants objected to the court's failure to

give the instruction.   The Defendants now complain that they were

deprived of   their   constitutional   rights   to   a   fair   trial   and

effective assistance of counsel when the district court failed to

give the requested jury instruction.      Specifically, they insist

that the court's decision not to give the 100-gram instruction,

without prior notice of such change, was a violation of Rule 30 of

the Federal Rules of Criminal Procedure, which requires the court



                                 15
to "inform counsel of its proposed action upon the requests [for

jury instructions] prior to their arguments to the jury."

      In evaluating a claim that the trial court violated Rule 30,

we   review   the    record   to   determine      whether   there   has   been

"substantial compliance" with the requirement of advance notice,

and whether the Defendants have been prejudiced by the violation.21

      The district court explained to counsel after the jury charge

that he declined to give the requested jury instruction because he

believed that the amount was not relevant to the charge.                  The

district court was correct.         Quantity is not an element of the

crimes proscribed by 21 U.S.C. §§ 841(a)(1) or 846, and only need

be   proved   when   the   government     seeks    an   enhanced    penalty.22

Furthermore, it is within the judge's discretion to include a

special issue to the jury concerning the amount of contraband

involved.23

      21
      United States v. Robertson, 659 F.2d 652, 658-59 (5th Cir.
1981). The government argues that Defendants failed to preserve
properly their objection because they did not complain in the
trial court of a lack of prior notice and did not request
reargument. Therefore, they assert that the convictions can only
be overturned for "plain error." Fed.R.Crim.P. 30 and 52(b). We
disagree. The record clearly indicates that the Defendants made
known to the court their specific objections to the court's
decision to omit the proffered instruction. We do not think it
was necessary for the Defendants to also complain in precise
terms that they lacked prior notice of the court's decision or to
request reargument in order to preserve their objection for
appeal.
      22
      United States v. Brown, 887 F.2d 537, 540 (5th Cir. 1989);
United States v. Gordon, 876 F.2d 1121, 1125 (5th Cir. 1989);
United States v. Morgan, 835 F.2d 79, 81 (5th Cir. 1987).
      23
      United States v. Campuzano, 905 F.2d 677 (2d Cir.), cert.
denied, 111 S.Ct. 363 (1990); United States v. Owens, 904 F.2d
411 (8th Cir. 1990).

                                     16
      The Defendants argue that they were entitled to the 100-gram

instruction because it is a "lesser included offense" to that of

conspiring to possess with intent to distribute in excess of one

kilogram and that the evidence was insufficient to prove that they

were involved in a conspiracy with respect to more than 239 grams.

We disagree for two reasons.                First, the Defendants are only

entitled to a lesser included instruction if 1) the elements of the

lesser offense are a subset of the elements of the charged offense;

and 2) the evidence at trial is such that a jury could rationally

find the Defendants guilty of the lesser offense, yet acquit on the

greater.24     As we pointed out above, quantity is not an element of

the   crimes     charged.        The   only       difference   between   the   two

instructions         is   the   quantity        involved,   therefore,   the   two

"offenses" are in fact the same.                 In reality, the district court

could have issued an instruction that included no quantity at all.25

Therefore, the court's reference to the quantity in the jury

instructions was more on the order of a special issue.26 It was not

an instruction on an element of the crime.

      Second, our review of the record convinces us that there was

more than enough evidence for a rational jury to find beyond a

reasonable doubt that both Defendants were guilty of conspiring to

possess with intent to distribute in excess of the greater amount--


      24
           United States v. Browner, 889 F.2d 549, 551 (5th Cir.
1989).
      25
           See Campuzano, 905 F.2d at 679.
      26
           Cf. id.

                                           17
one kilogram.      The district court expressed the same belief when

considering the Defendants' objection to the charge.    Furthermore,

the government presented no evidence, and suggested no theory, that

there was a separate conspiracy to deliver only the 239 grams of

heroin.      Other than the delivery itself, neither Defendant has

alleged any evidence that would have supported a conspiracy for the

lesser amount.

     Penaflor has challenged his conviction on the ground of

insufficiency of the evidence.     Valencia, on the other hand, does

not challenge the sufficiency of the evidence against him on either

of the two counts for which he was convicted.          He maintains,

however, that this has no effect on his omitted instruction claim

because the standards for assessing the two are "diametrically

opposed."     He correctly asserts that in evaluating the sufficiency

of the evidence, an appellate court must sustain the conviction if,

viewing the evidence in the light most favorable to the government,

a reasonable trier of fact could have found that the evidence

established guilt beyond a reasonable doubt.27     But, he observes,

the inquiry is reversed when the defendant complains that the court

has failed to give an instruction to the jury:        A defendant is

entitled to an instruction on his defensive theory if there is any

foundation in the evidence.28       Presumably, Valencia's defensive



     27
      United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982)
(en banc), aff'd 462 U.S. 356 (1983).
     28
          United States v. Cordova-Larios, 907 F.2d 40, 42 (5th Cir.
1990).

                                   18
theory is that if he is guilty of any offense, it is of a

conspiracy with regard to just the 239 grams delivered.

     We reject Valencia's argument for two reasons. First, we find

nothing in the jurisprudence that would allow us to accept the

proposition that guilt of a lesser included offense is a defense to

the greater offense. Second, we find no foundation in the evidence

for Valencia's defensive theory, if indeed it is a defensive theory

at all.

     The Defendants further complain that their right to effective

assistance of counsel was violated because closing arguments were

presented without the benefit of knowing a lesser-included offense

charge would not be given.           It is not enough, however, to show

merely a violation; the Defendants must demonstrate an actual

resulting prejudice that would affect the outcome of the case.29

Valencia argues that had his attorney known of the court's decision

before     argument,   she   would     have   concentrated   on   Valencia's

innocence rather than on the amount of drugs involved in the

conspiracy.     But the record confirms that counsel did argue to the

jury that the evidence did not support a conspiracy conviction, and

suggested that Marquez's testimony was fabricated or "embellished."

Valencia even suggested that the agents misidentified him, and that

Defendants did not know that the substance they were carrying was

heroin.       Furthermore,   as   we    noted   above,   Valencia   has   not

challenged the sufficiency of the evidence with respect to the



     29
          Strickland v. Washington, 466 U.S. 668, 687 (1984).

                                       19
charge of conspiracy to possess with intent to distribute in excess

of one kilogram.

     Penaflor's      argument    was   completely     void   of   any   comments

concerning a lesser-included conspiracy.            He simply argued that he

was not a participant in any conspiracy.            Any error in misleading

Penaflor's counsel was harmless.

     We cannot see how the outcome of the case would have been

different   had    the   court   given   the   jury   the    requested    lesser

included instruction, even if the Defendants had been entitled to

such a charge. The evidence was clearly sufficient to convict both

Defendants on both counts, and the Defendants were not deprived of

effective assistance of counsel.         The district court substantially

complied with the advance notice requirement of Rule 30, and did

not err when it failed to include the lesser included instruction

in the jury charge.


C.   The Hearsay Statements

     During the trial, one of the two DEA agents involved in the

investigation testified that after waiting for months the DEA had

finally decided to arrest the Defendants because "I was told by the

informant that had made some calls to associates of Javier Carrasco

that Javier Carrasco couldn't be found in Mexico.                 He was on the

run is what the terms was used because he had some arguments with

other narcotics traffickers in Mexico.              Whether it was true, I

don't know."      The Defendants objected at that time and continue to

assert on appeal that the agent's comments were inadmissible

hearsay.    We disagree.     These comments were offered, not for the

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truth of the matters asserted--the agent himself maintained that he

did not know if the statements were true--but to explain why, after

waiting nine or ten months following the drug transaction, the DEA

decided to arrest the Defendants.           That is the basis on which the

district   court   allowed   the     statements.        We    agree    that   the

statements were not hearsay and therefore were admissible.


                                     III.

                                  CONCLUSION

      The district court did not abuse its discretion in admitting

the   English   transcript   of    the     tape   of   the   Spanish   language

telephone conversation into evidence while refusing to allow the

tape itself to be played for the jury.            Neither did the district

court err when, despite its earlier indication to the contrary, it

omitted a proffered instruction on a lesser included offense

because mere lesser quantity is not a lesser included offense; and

there was sufficient evidence to support conviction on the one-

kilogram conspiracy charge.         Finally, the court did not err in

allowing a DEA agent to recount a conversation with an informant to

explain why the DEA waited months to arrest the Defendants.                   The

statements were not hearsay because they were not offered to prove

the truth of their content, only that the action of the DEA was

made in reliance on the statements irrespective of their truth.

      For the foregoing reasons, the judgment of the district court

is AFFIRMED.




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