United States v. Munera-Uribe

United States Court of Appeals
Fifth Circuit
F I L E D
August 5, 1999
Charles R. Fulbruge III
Clerk
Corrected November 2, 1999
IN THE UNITED STATES COURT OF APPEALS
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
BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
A jury found Jorge Munera-Uribe (“Mu-
nera”), Samuel Moreno-Ramos (“Ramos”),
Melquecedec Moreno (“Moreno”), Carlos
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.

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

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

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4
Thomas informed Hernandez that he had been
seen present at a drug transaction earlier in the
day and was therefore suspected of drug traf-
ficking. Hernandez was read his rights, and
Hernandez acknowledged them in English.
After some initial denials, Hernandez con-
fessed to his involvement in the drug deal. He
told the officers that he had delivered drugs for
his friends “Carlos” and “Jorge,” who lived in
the apartment complex. He then pointed to
the second floor landing, from which he had
descended, as the location of their apartment.
While Hernandez was still being ques-
tioned, DEA Agent Marty Fanning observed
another Hispanic male (later identified as Mu-
nera) descend the same stairs as Hernandez
had. They noticed Munera make eye contact
with the handcuffed Hernandez and saw him
become visibly nervous. They also noticed
that Munera was speaking on a cellular phone
as he passed by, in English. Fanning asked
Hernandez whether Munera was one of his
two friends; Hernandez replied “no.”
Nevertheless, Fanning approached Munera
and asked whether his name was “Jorge.”
Munera replied “no” and told Fanning that his
name was “Gustavo.” When asked for iden-
tification, Munera produced a driver’s license
with the name “Jorge Gustavo Munera-Uribe.”
When asked why he had lied, Munera looked
down at the ground and proclaimed “no hablo
ingles.” This despite the fact that all prior
communications between the DEA and Mu-
nera had been in English, along with Munera’s
conversation on his telephone.
A pat down of Munera revealed a pager
and two cellular phones. At that point, Mu-
nera was handcuffed and informed that “he
was being detained for narcotics investiga-
tion.”
To det ermine the apartment from which
Munera and Hernandez had come, Fanning
asked Munera “which apartment his friend was
in.” Munera again responded: “no hablo
ingles.” Fanning pressed Munera to show the
officers his friend’s apartment, and he nodded
his head approvingly. He took them to the
second floor landing from which he and Her-
nandez had descended.
Once there, the officers were presented
with a choice of two apartments to search:
apartments 1714 and 1716. Munera indicated
(by pointing with his nose) that apartment
1716 was the apartment of his friends. The
agents knocked on that door, but no one
answered. They opened the door via a key
they had found on Munera. No one was in the
apartment. Subsequent investigation would
reveal that this same key opened the door to
apartment 1714 as well.
Thomas noticed that the lights were on in
apartment 1714. Peering into its window, he
saw a man seated on a couch (later identified
to be Carlos Rodriguez). When the officers
knocked on the door, Rodriguez jumped up
and ran out of view. A woman, Ms. Hurtado,
opened the door, and the officers identified
themselves. When asked whether anyone else
was inside the apartment, Hurtado said “no,”
immediately heightening the suspicions of the
officers. The government contends that the
officers then asked for and received permission
(from Hurtado) to go inside the apartment and
have a look around.
The officers entered with weapons drawn
and “announced” their presence. Not receiv-
ing any response, they began to “clear” the
apartment, searching rooms, hallways, and

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

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

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

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

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cohorts could be found.4 The facts of the
instant case call for the application of this
“safety exception” to Miranda, and thus it is
of no consequence that the officers failed to
apprise Munera of his rights.
C.
Rodriguez challenges the legality of the
search of apartment 1714 on the ground that
the officers lacked a warrant. See United
States v. Richard, 994 F.2d 244, 248 (5th Cir.
1993). We find the lack of a warrant
unproblematic in this case, as it fits squarely
within the well-est ablished “exigent
circumstances” exception to the warrant
requirement.5 See Kirkpatrick v. Butler, 870
F.2d 276, 281 (5th Cir. 1989).
Exigent circumstances justify an exception
to the warrant requirement if officers have
“cause to believe either that evidence in the
house may be destroyed or removed, or that
the lives of police officers or other persons
may be endangered by persons inside of the
house.” Kirkpatrick, 870 F.2d at 281 (foot-
note omitted). Each of these exigencies was
present.
Based on their surveillance and the con-
fessions of Hernandez and Munera, the offi-
cers had strong reason to believe that drugs
and drug dealers were located in either apart-
ment 1714 or 1716. The officers testified that
they “fear[ed] for their safety when Rodriguez
bolted” from the living room, and they feared
that “Rodriguez may have been armed or was
trying to flee.” Additionally, they feared that
Rodriguez might be attempting to destroy
evidence.
Moreover, whether exigent circumstances
exist is a question of fact for the district court,
whose findings we review for clear error. Id.
Given that the officers needed to protect
against both the destruction of contraband and
potential harm to themselves, the court was
not clearly erroneous in finding exigency.6
Exigent circumstances do not, however,
enable the police to conduct a full-fledged
search. Instead, they are permitted to conduct
4 As mentioned, in this case, Munera originally
led police to the wrong apartment number. This
could have had disastrous consequences for the
officers, should criminal occupants of 1714 have
decided to ambush the officers as they searched the
wrong apartment. It was precisely to guard against
such risks that the officers needed to know what
room Munera’s comrades were in.
5 Although there is evidence that Hurtado may
have consented to the initial search of apartment
1714, we decline to resolve this issue on such a
disputed factual ground.
6 Rodriguez asserts that the district court did
not make a factual finding of exigency. This
contention is incorrect, as the district court explic-
itly noted that “[t]he officers engaged in a proper
protective sweep to look for and to locate Rod-
riguez-Estupinan, who they believed was still in the
apartment and could pose a threat to the officers’
safety.”
Rodriguez also asserts that a finding of exi-
gency under these circumstances (that is, following
the arrests of Munera and Hernandez) is incorrect
as a matter of law, relying on Maryland v. Buie,
494 U.S. 325 (1990). Rodriguez misconstrues
when the exigency attached: It did not attach when
the arrests of Munera and Hernandez were made,
but rather when officers witnessed Rodriguez flee
from the living room. Had Rodriguez not fled, but
instead remained in plain view, and if the officers
had secured apartment 1714, then a warrantless
arrest (absent consent) might have been inappropri-
ate. But those are not the facts of this case.

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

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

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12
defenseSSa critical predicate were we to
fashion a remedy for him under the Con-
vention.7 We accordingly reject this argument.
IV.
Munera contends that Fanning perjured
himself on the stand and that the government
knowingly sponsored this perjury. If true,
such a finding on our part would merit a
reversal of Munera’s conviction. Munera
carries the burden of proof on this tall accu-
sation. See United States v. Lochmondy,
890 F.2d 817, 822 (6th Cir. 1989).
To prevail, Munera must demonstrate that
(1) Fanning’s testimony was actually false, id.
at 822; and (2) that the government “know-
ingly sponsored” it, United States v. Harrison,
103 F.3d 986, 989 (D.C. Cir. 1997). Incon-
sistent testimony, by itself, does not meet this
burden. See United States v. Bortnovsky,
879 F.2d 30, 33 (2d Cir. 1989).
According to Munera, at the suppression
hearing Fanning testified that he knew to head
for apartment 1714, because “Officer Thomas
had watched Jorge Munera-Uribe walk from
his apartment complex, from the door, the
1714.” When pressed with the question “Is it
possible that you saw him come from the land-
ing where there were two apartments 1714
and 1716?”, Fanning responded: “It is
possible.” He then elaborated, stating:
We did not know the apartment
doorSSI must correct myself. Officer
Thomas said he saw some, the landing
up there, that we wereSSthat’s when we,
that was the reason for taking Jorge
Munera-Uribe up to the landing, is for
him to knock on the door or show us
the door that his friend was in, Carlos.
When asked whether Munera did indeed show
him the door he had come out of, Fanning
testified: “No, he didn’t.”
At trial, Fanning testified that “to determine
what apartment these two individuals [Munera
and Hernandez] had come from . . . [he] asked
Mr. Munera-Uribe which apartment his friend
was in.” Fanning continued, explaining that
Munera pointed to apartment 1716 for them.
Contrary to Munera’s characterization,
Fanning’s suppression hearing and trial tes-
timony are not “in direct conflict.” Munera
blazons the fact that in his suppression hearing
testimony, Fanning failed to mention that Mu-
nera gestured toward the landing for the of-
ficersSSindicating the apartment from which he
came. But Fanning was never specifically
asked that and was available to Munera’s at-
torney for cross-examination. Instead, Fan-
ning was asked whether Munera accurately
identified apartment 1714 for himSSMunera
did not (instead motioning with his nose to
apartment 1716), and Fanning testified as
such.
At trial, Fanning reiterated that he turned to
Munera for help in locating the correct apart-
ment, and that Munera pointed the officers
toward apartment 1716. This hardly consti-
tutes perjury: Fanning’s testimony at the
deposition (or suppression hearing?) was at
most incompleteSSit did not, however, con-
7 See Faulder v. Johnson, 81 F.3d 515, 520
(5th Cir. 1996); United States v. Lombera-Camor-
linga, 170 F.3d 1241, 1244 (9th Cir. 1999) (“Up-
on a showing that the Vienna Convention was
violated by a failure to inform the alien of his right
to contact his consulate, the defendant in a criminal
proceeding has the initial burden of producing
evidence showing prejudice from the violation of
the Convention.”).

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13
tradict anything he later told the court.
Secondly, even if Fanning can be said to
have perjured himself, Munera has brought
nothing to our attention purporting to show
that the government sanctioned such testi-
mony, the second vital element of his claim.
For these reasons, there was no error
V.
According to Rodriguez, the federal prose-
cutor made improper comments at closing that
deprived him of a fair trial. Rodriguez bears
the burden of establishing that these comments
did in fact deprive him of a fair trial. United
States v. Bermea, 30 F.3d 1539, 1562 (5th Cir.
1994). In determining whether he was de-
prived of a fair trial, we consider whether the
comments, taken as a whole within the context
of the trial, prejudicially affected substantive
rights. United States v. Rasco, 123 F.3d 222,
229 (5th Cir. 1997). The offending comments
were as follows:
1. “Mr. Ash [Rodriguez’s attorney]
would have you think that the Gestapo
had showed up at the door to 1714 at
8300 Sandspoint, that it was this mas-
sive show of force that caused poor
[Rodriguez] to jump from the couch,
run to the back of the apartment, hide
under a mattress.”
2. “If you recall the testimony, [Rod-
riguez] was gone on the knock.”
3. “[T]he officers and agents had no
reason to get on the stand here and lie to
you.”
None of this deprived Rodriguez of a fair trial.
The first comment accurately captured
Rodriguez’s theory of the case: He had ar-
gued that the presence of a large force of
armed police officers gathered on his balcony
alarmed him and caused him to flee. To char-
acterize the image conjured up by Rodriguez’s
explanation as a “gestapo” force is not extra-
ordinary. We do not find the word “gestapo”
to be so inflammatory as to destroy the fair-
ness of a trial. In fact, the term has taken on a
generic meaning in modern usage and no
longer refers solely to the secret police of Nazi
Germany. See WEBSTER’S THIRD NEW INTER-
NATIONAL DICTIONARY 952 (1986).
The second comment is also an accurate
portrayal of events: Rodriguez indeed fled af-
ter the officers knocked on his door. Although
use of the expression “gone on the knock”
does not exactly help Rodriguez’s cause, it is
well within the prosecutor’s prerogative to use
such expressions in his role as an advocate.
The prosecutor need not avoid honest, truthful
characterizations of the facts helpful to his
argument.
Lastly, telling the jurors that “the officers
and agents had no reason . . . to lie” does not
constitute the impermissible use of a prosecu-
tor’s status to bolster the testimony of a wit-
ness, but only presents a permissible summary
of the evidence. Rodriguez suggested that the
police were being untruthful in their testimony;
the prosecutor could fairly respond to this sug-
gestion by making note of the fact that there
was nothing in the record supporting this accu-
sation. See United States v. Vaccaro,
115 F.3d 1211, 1216 (5th Cir. 1997), cert.
denied, 118 S. Ct. 689 (1998).
VI.
Section 3B1.2 of the Sentencing Guidelines
instructs the court to grant a downward ad-
justment for defendants whose roles in a crim-

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14
inal offense are “minor.” Rodriguez and Ra-
mos challenge the decision not to grant them
such an adjustment. We review for clear error.
United States v. Valencia-Gonzalez, 172 F.3d
344, 346 (5th Cir. 1999).
A.
Rodriguez was responsible for “guarding
16.52 kilograms of cocaine (worth nearly
$200,000).” [What is this quoting?] Such a
large responsibility does not suggest a minor
role. Indeed, under our precedent, a defendant
whose role is “limited to holding or delivering
drugs” is not ordinarily entitled to a minor role
adjustment. See United States v. Edwards, 65
F.3d 430, 434 (5th Cir. 1995). Rodriguez has
furnished us with no precedent suggesting
that, under the facts of this case, we or any
other circuit has held that a minor role
adjustment is in order.
B.
Ramos assisted in the delivery of cocaine
on August 13 and September 18. On Au-
gust 13, he was observed carrying a blue gym
bag containing cocaine into Hernandez’s car.
Later that day, he came to Fiesta to collect
money for the drugs he had provided. Again,
given Edwards, we cannot say the court
committed clear error by failing to afford Ra-
mos minor role status in light of these facts.
As with Rodriguez, Ramos supplies us with no
countervailing caselaw suggesting that a minor
role adjustment would be appropriate under
these circumstances.
VII.
Under the “safety valve” provision of the
Sentencing Guidelines, a court must sentence
defendants below statutory mandatory mini-
mums (and in accord with the lower applicable
Sentencing Guidelines range) if five conditions
are met. U.S.S.G. § 5C1.2. Valois asserts
that the court improperly denied him the bene-
fit of this provision.
Valois bears the burden of establishing that
all five conditions are met. See United States
v. Vasquez, 161 F.3d 909, 912 (5th Cir. 1998).
This is an issue of fact to be determined by the
court. United States v. Torres, 114 F.3d 520,
527 (5th Cir.), cert. denied, 118 S. Ct. 316
(1997). Accordingly, we review for clear
error. United States v. Wilson, 105 F.3d 219,
222 (5th Cir. 1997).
Only satisfaction of the fifth condition is
before us, with the government apparently
conceding that the other four have been met.
The fifth condition requires that “the defendant
has truthfully provided to the Government all
information and evidence the defendant has
concerning the offense or offenses that were
part of the same course of conduct or of a
common scheme or plan.” U.S.S.G. § 5C1.2.
According to the government, Valois had
(1) failed to admit that he accompanied Russo
on the August 13 cocaine pickup; (2) lied
about the delivery of drug proceeds to Ramos
later that day; and (3) denied being with Russo
when she met Moreno on September 18 to
obtain two of the seven kilograms involved in
that day’s transaction. Valois counters by
arguing that he recited all the facts he knew to
the best of his recollection. He adds that none
of the government’s examples of untruthful-
ness is “specific enough to determine, even by
a preponderance of the evidence, that Valois
was not being honest . . . .”
As a matter of law, Valois argues, he can-
not be denied relief under § 5C1.2, because
“the record does not contain specific findings
of, or support for, the government’s allega-
tions of untruthfulness.” In support of this

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15
proposition, he refers us to United States v.
Miranda-Santiago, 96 F.3d 517, 527-30 (1st
Cir. 1996).
Miranda-Santiago does not support Va-
lois’s position. There, the government prof-
fered no direct evidence tending to show that
the defendant in question was being deceitful.
Id. at 529. Instead, the government asserted
that the defendant must have known more than
he was revealing in light of the fact that he
“shared living quarters with other codefen-
dants.” Id. Such “mere conjecture” cannot be
the basis for denying the benefit of § 5C1.2.
Id.
In Valois’s case, the government did not
offer up “mere conjecture,” but concrete evi-
dence tending to show Valois’s untruthfulness
(such as statements from Valois’s codefen-
dants). The court held a hearing on the matter
specifically and came to the conclusionSSafter
considering all the evidenceSSthat Valois was
being untruthful. Thus, the court did not en-
gage in “speculation” or “mere conjecture” in
concluding that Valois was undeserving of
§ 5C1.2. Id. More importantly, the court did
not commit clear error in sentencing Valois,
for Valois failed to carry his burden and dem-
onstrate the applicability of § 5C1.1 in light of
the government’s countervailing evidence.
VIII.
Moreno complains that the court improp-
erly denied him a decrease in his sentence for
acceptance of responsibility. Section 3E1.1(a)
of the Sentencing Guidelines instructs a court
to decrease a defendant’s offense level by two
if “the Defendant clearly demonstrates accep-
tance of responsibility for his offense.” More-
no bears the burden of establishing acceptance
of responsibility. United States v. Thomas,
120 F.3d 564, 575 (5th Cir. 1997), cert. de-
nied, 118 S. Ct. 721 (1998). Our standard of
review on this issue is “more deferential than
that of clear error.” Id.
Although he participated in the same de-
fense as did his codefendants, Moreno argues
that he is entitled to the two-level reduction of
§ 3E1.1 because “he did not testify at trial nor
did he deny the allegations of the indictment
during the trial.” Moreno attempts to fit his
litigation strategy into the narrow exception to
§ 3E1.1 recognized for those defendants who
raise solely legal defenses. See U.S.S.G.
§ 3E1.1, comment.
The court did not err in holding that More-
no has failed to carry his burden of proof on
this issue: There is absolutely no evidence in
the record indicating acceptance of responsi-
bility on the part of Moreno, who had an op-
portunity to present such evidence pretrial but
passed it up, failing to distinguish himself from
his codefendants’ full-fledged defense. See
Thomas, 120 F.3d at 575. So, Moreno cannot
avail himself of § 3E1.1. Id.
IX.
Ramos and Rodriguez challenge the calcu-
lations regarding the amount of cocaine for
which they were individually responsible.
These calculations are important, because the
base offense level (and thus the length of
imprisonment) for non-violent drug offenders
is set in accordance with the quantity of drugs
involved. See United States v. Brito, 136 F.3d
397, 415 (5th Cir.), cert. denied, 118 S. Ct.
1817 (1998); U.S.S.G. § 2D1.1(c). We re-
view for clear error. Brito, 136 F.3d at 415.
“For a defendant involved in a drug traf-
ficking conspiracy, the quantity includes both
the drugs with which the defendant was di-
rectly involved and the drugs that can be

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16
attributable to him through the conspiracy.”
Id.
The defendant will not necessarily be
held responsible for the full amount of
drugs involved in the conspiracy, rather
the defendant will only be held account-
able for those amounts of drugs that he
knew or reasonably could have known
or believed were involved in the conspir-
acy. In order to calculate this amount, a
court may consider the co-conspirator’s
role in the conspiracy, his relationship to
the other conspirators, and any other in-
formation with “sufficient indicia of
reliability.”
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-
ments from Hernandez in which Hernandez
claims that Ramos asked him for a ride to the
gas station so he could deliver the five kilo-
grams. Hernandez also stated that he helped
Ramos put the five kilograms into a bag and
thereafter did indeed drive Ramos to the gas
station. The court couldSSand didSSproperly
base its determination on this uncontradicted
evidence.8
Rodriguez disputes the attribution to him of
five kilograms of cocaine from the Septem-
ber 18 transaction. The government intro-
duced circumstantial evidence linking him to
these drugs: Hernandez testified that he ob-
tained the five kilograms from the Sandspoint
apartment, and Rodriguez admitted to guard-
ing the cocaine stored there. Putting these
two facts together, the court couldSSand
didSSreasonably conclude that Rodriguez
should have known about this quantity of
drugs. The court did not commit clear error in
attributing them to Rodriguez for sentencing
purposes.
AFFIRMED.
8 As to the one kilogram of cocaine from Au-
gust 13, the agents seemed to testify in conclu-
(continued...)
8 (...continued)
sional fashion that the cocaine came from Ramos.
Such testimony is not specific enough to contain
“sufficient indicia of reliability.” Id. The only
thing in the record to bolster this assertion is the
ten-minute evening encounter between Ramos and
the Valois brothers. Although the one-kilogram
cocaine transaction of earlier that day may very
well have been the subject matter of this meeting,
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
sixteen kilograms of cocaine, not seventeen. This
does not affect the sentence, however, because the
relevant threshold is fifteen kilograms.

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