United States of America v. Anna Trujillo

*The Honorable R ichard M ills, United States District Judge for the
Central District of Illinois, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0234P (6th Cir.)
File Name: 04a0234p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANNA TRUJILLO,
Defendant-Appellant.
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No. 02-1521
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 00-80676—Paul D. Borman, District Judge.
Argued: March 9, 2004
Decided and Filed: July 22, 2004
Before: MARTIN and CLAY, Circuit Judges; MILLS,
District Judge.*
_________________
COUNSEL
ARGUED: John F. Royal, Detroit, Michigan, for Appellant.
Wayne F. Pratt, UNITED STATES ATTORNEY, Detroit,
2 United States v. Trujillo No. 02-1521
1The name on the rental agreement was Nancy Nichols, and the
agreement was signed by Shawn Speckman.
Michigan, for Appellee. ON BRIEF: John F. Royal, Detroit,
Michigan, for Appellant. Karen M. Gibbs, UNITED
STATES ATTORNEY, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
RICHARD MILLS, District Judge. In this appeal, Anna
Trujillo asks this Court to vacate her conviction and sentence
and to dismiss the indictment against her, to grant her a new
trial, or to remand her case for re-sentencing.
Trujillo contends that she is entitled to the relief which she
seeks because the district court committed several substantive
and procedural errors which, taken either individually or as a
whole, entitle her to a vacation of her conviction and
sentence.
For the following reasons, we AFFIRM the judgment and
the sentence imposed upon Trujillo by the district court.
I. BACKGROUND
On November 14, 1998, Colorado State Police Trooper
Steven Ortiz stopped a vehicle driven by Norma Jean Campos
near Pueblo, Colorado, for speeding and for impeding the
normal flow of traffic. Beth Ann Rogensues was a passenger
in the vehicle. Trooper Ortiz became suspicious of Campos
and Rogensues because neither individual was listed on the
rental agreement provided to Trooper Ortiz by Campos,1
because neither Campos nor Rogensues could identify who

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No. 02-1521 United States v. Trujillo 3
2Campos told Trooper Ortiz that she and Rogensues were on their
way back to Detroit, Michigan, from Phoenix, Arizona, (where they had
been staying with her aunt) because her mother had suffered a medical
emergency. On the other hand , Rogensues informed T rooper O rtiz that
they had been in Phoenix in order to relocate a business there, although
she could not specify what type of business, and that she was unaware of
any medical emergency suffered by Camp os’ mother.
had rented the vehicle, and because Campos and Rogensues
related inconsistent stories regarding their travel plans.2
Thereafter, Trooper Ortiz asked for, and received,
permission from Campos to search the vehicle. Upon
conducting his search, Trooper Ortiz discovered 123 pounds
of marijuana hidden in duffle bags in the trunk. Accordingly,
Trooper Ortiz arrested Campos and Rogensues and
transported the two women to the Drug Enforcement
Administration (“DEA”) office.
Once at the DEA’s office, DEA task force agents
interviewed Campos and Rogensues separately regarding
their transportation of marijuana. DEA Task Force Agent
Ronald Thurston interviewed Campos. Initially, Campos
denied any knowledge about the marijuana. However,
Campos eventually admitted that this was approximately her
fifth or sixth trip transporting marijuana. Specifically,
Campos stated that Anna and Julio Trujillo had contacted her
about driving to Arizona in order to meet with some people,
pick up loads of marijuana, transport it back to Detroit,
Michigan, and deliver the marijuana to them.
Meanwhile, DEA Task Force Agent Perry Powell was
interviewing Rogensues. Initially, Rogensues told Agent
Powell that she and Campos had been approached by a man
at a bus station who had asked them to transport the duffle
bags for him. However, after hearing Campos crying in the
next room, Rogensues confessed that the story was a lie
which she and Campos had made up when they were in the
back of Trooper Ortiz’s squad car. Rogensues then admitted
4 United States v. Trujillo No. 02-1521
3Rogensues testified that she never looked in any of the duffle bags
but assumed marijuana was contain ed therein based upon what Campos
had told her and the amount of money which they were receiving for the
trip.
that they were transporting the marijuana to Detroit for the
Trujillos.3
After confessing to transporting the marijuana for the
Trujillos, Campos and Rogensues provided various details
regarding their past marijuana trips for the Trujillos
(including providing identifying information which allowed
DEA agents in Detroit to confirm the provided information),
and they agreed to act as cooperating witnesses and to
participate in a controlled delivery of the marijuana to the
Trujillos. Thereafter, DEA Task Force Agent Powell
telephoned DEA Agent Debra Lynch in Detroit in order to set
up a controlled delivery. Based upon the information
provided by DEA Task Force Agent Powell, DEA Agent
Lynch sought and obtained a search warrant from United
States Magistrate Judge Donald Scheer for the Trujillo’s
home.
On November 15, 1998, Campos and Rogensues returned,
under escort, to Detroit. Once in Detroit, Campos told DEA
Agent Lynch that she had been introduced to Anna Trujillo
through a mutual friend who had made a lot of money
transporting marijuana for Anna Trujillo prior to 1998.
Campos also informed DEA Agent Lynch that she and
Rogensues had driven to and from Arizona in order to
transport marijuana for the Trujillos on five prior occasions.
Moreover, Campos stated that Shawn Speckman had rented
cars for their use on the instant trip and also on two or three
prior trips.
In addition, Campos informed the DEA agents that Anna
Trujillo had paid her $250.00 to title two cars in her name
and, then, to transfer the title back to Trujillo after the cars
had been purchased. Finally, Campos and Rogensues advised

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No. 02-1521 United States v. Trujillo 5
4This conversation was not tape recorded.
DEA Agent Lynch that they would either page or call Julio
Trujillo on his cellular telephone when they got back to
Detroit and that, frequently, they would meet at the Trujillo’s
residence in order to deliver the marijuana.
Campos, Rogensues, and DEA Agent Lynch then went to
the Rexford Police Department which is in close proximity to
the Trujillo’s residence. From there, the Trujillos were paged
several times, but no response was ever received. The next
day, Anna Trujillo telephonically spoke with both Campos
and Rogensues on four occasions which were tape recorded
by DEA agents. During the second of these four
conversations, Anna Trujillo instructed Campos to “bring the
babies in from the cold so that they won’t get cold,” which
Campos understood as an instruction to get the marijuana out
of the car and place it inside Campos’ home. In the third of
these four telephone conversations, Rogensues advised Anna
Trujillo that they had brought the babies in so that they would
not get cold.
In the fourth conversation, Anna Trujillo told Rogensues
that she (Rogensues) and Campos had cost her $250,000.00
and that everyone in the house would have to pay for it.
Rogensues testified that she understood the comment to mean
that Campos and she would have to pay for the marijuana.4
Ultimately, the DEA agents were unsuccessful in their
attempts to establish a controlled delivery of the marijuana to
the Trujillos.
On November 16, 1998, DEA agents searched the Trujillo’s
home pursuant to the warrant issued by Magistrate Judge
Scheer. As a result of the search, DEA agents discovered
personal telephone books, titles to two vehicles in Campos’
name which had previously been used to transport marijuana,
two digital scales, cellular telephones and pagers, and a fax
machine. However, no narcotics were discovered.
6 United States v. Trujillo No. 02-1521
5Julio Trujillo has filed a separate appeal with this Court challenging
the sentence imposed up on him by the district court.
Campos and Rogensues ultimately pleaded guilty to
conspiracy to deliver marijuana pursuant to a plea agreement
which required them to cooperate with the Government. As
a result of their pleas and cooperation, the district court
sentenced Campos and Rogensues to three months in a half-
way house, to three months on electronic tether, and to two
years of supervised release.
On September 19, 2000, a federal grand jury indicted Anna
and Julio Trujillo for conspiracy to possess with the intent to
distribute in excess of one hundred kilograms of marijuana in
violation of 21 U.S.C. §§ 841(a)(1) and 846. Julio Trujillo
pleaded guilty, pursuant to a written plea agreement, to
conspiracy to possess with the intent to distribute in excess of
one hundred kilograms of marijuana. In addition, pursuant to
the terms of the plea agreement, Trujillo agreed to provide
truthful and complete information, in good faith, concerning
all of his knowledge about the marijuana trafficking.
Thereafter, the district court sentenced Julio Trujillo to
eighty-three months of imprisonment.5
Anna Trujillo, however, exercised her constitutional right
to a jury trial. Prior to the start of her trial, Trujillo filed a
motion to suppress the physical evidence obtained as a result
of the search of her residence. Trujillo argued that the
affidavit in support of the search warrant application filed by
DEA Agent Lynch was defective, and therefore, the search
warrant was invalid. On September 6, 2001, after conducting
an evidentiary hearing, the district court denied Trujillo’s
motion to suppress. Specifically, the district court found that
the information contained within DEA Agent Lynch’s
affidavit was sufficient to establish probable cause and also
found that, even if the affidavit had included the information
regarding Campos’ and Rogensues’ prior inconsistent
statements to DEA Task Force Agents Thurston and Powell,

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No. 02-1521 United States v. Trujillo 7
6Attorney Royal represe nts Trujillo in this appe al.
probable cause would have still existed to issue the search
warrant.
Furthermore, at the final pretrial conference which occurred
five days prior to the start of trial, Trujillo represented to the
district court that there had been a break-down in her
relationship with her attorneys. As such, Trujillo asked the
district court to allow attorney John Royal’s motion to
substitute his representation for that of her present counsel
and, thereafter, to allow her motion to continue the trial so
that attorney Royal could have adequate time to prepare for
trial.6 At the hearing, attorney Royal informed the district
court that he desired to represent Trujillo in this matter but
only if he had sufficient time to prepare for trial, i.e., sixty
days. The Government objected to a continuance, asserting
that it would be prejudiced by any delay in the start of the
trial. The district court then stated that jury selection would
proceed as scheduled on November 6, 2001, but that the
presentation of the evidence could be delayed until November
8, 2001. Given the district court’s denial of the motion to
continue, Attorney Royal did not believe that he had
sufficient time in which to prepare for trial, and thus, he
declined to take the case.
Finally, on the day prior to the start of the trial, the district
court heard oral arguments on Trujillo’s motion in limine to
exclude certain evidence, pursuant to Federal Rule of
Evidence 404(b), which the Government sought to introduce
at trial. Thereafter, the district court excluded some of the
Government’s evidence but authorized the admission of the
rest. Specifically, the district court allowed the Government
to introduce: (1) Campos’ testimony that, at Trujillo’s request,
she traveled to Arizona and transported marijuana back to
Detroit on several occasions prior to the beginning of the
charged conspiracy; (2) Campos’ testimony that Trujillo paid
her to title several cars in her name and, then, transfer the title
8 United States v. Trujillo No. 02-1521
back to Trujillo; and (3) evidence of an alleged threat by
Trujillo toward Rogensues.
On November 8, 2001, a jury found Trujillo guilty of the
one count charged in the indictment. On April 8, 2002, the
district court sentenced Trujillo to seventy-eight months of
imprisonment. In so doing, the district court denied Trujillo’s
objection to the amount of marijuana for which she was being
held accountable as relevant conduct and also denied
Trujillo’s objection to a two-level enhancement, pursuant to
U.S.S.G. § 3B1.1(c), for being an organizer or leader in the
conspiracy. On April 18, 2002, Trujillo filed a timely notice
of appeal challenging her conviction and sentence.
II. ANALYSIS
On appeal, Trujillo has raised seven grounds in support of
her argument that we should vacate her conviction and either
outright dismiss the indictment against her or grant her a new
trial, and she has raised one ground in support of her
argument that, at a minimum, we should remand her case for
re-sentencing. We will address her arguments seriatim.
A. MOTION TO SUPPRESS
Trujillo argues that the search warrant issued by Magistrate
Judge Scheer was invalid because the affidavit filed by DEA
Agent Lynch in support of the application for the warrant
omitted the fact that Campos and Rogensues had given
numerous inconsistent versions of the facts surrounding their
marijuana trafficking before naming her and her husband as
the ultimate recipients of the narcotics. Trujillo asserts that
the omission of this critical information regarding the
credibility and reliability of Campos and Rogensues rendered
the affidavit fatally defective. Trujillo claims that the omitted
evidence regarding Campos’ and Rogensues’ lying to law
enforcement agents before settling on a story incriminating
her should have triggered an evidentiary hearing where she
would have been able to show that DEA Agent Lynch acted

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No. 02-1521 United States v. Trujillo 9
with reckless disregard for the truth in presenting the warrant
application to Magistrate Judge Scheer. In short, Trujillo
contends that the affidavit presented by DEA Agent Lynch
was so condensed that it misled Magistrate Judge Scheer and
rendered him unable to determine whether probable cause
existed to issue the warrant.
The Government argues that the district court correctly
denied Trujillo’s motion to suppress because DEA Agent
Lynch’s affidavit was not facially defective and probable
cause existed for the issuance of the warrant. Specifically, the
Government asserts that the affidavit informed Magistrate
Judge Scheer that Campos and Rogensues had been
interviewed separately and provided corroborating details
(details which were verified by DEA agents) as to Trujillo’s
residence and informed Magistrate Judge Scheer of the fact
that Julio Trujillo had just been released from prison after
serving a sentence for a drug conviction.
Furthermore, the Government contends that the affidavit
clearly indicated that the information provided by Campos
and Rogensues was reliable and corroborated. Finally, the
Government claims that, even had DEA Agent Lynch
informed Magistrate Judge Scheer of the fact that Campos
and Rogensues had provided inconsistent stories to DEA Task
Force Agents Thurston and Powell, the affidavit and
application would not have been weakened and still would
have been supported by probable cause sufficient to issue the
search warrant.
We have previously explained:
This court reviews the sufficiency of an affidavit to
determine “whether the magistrate had a substantial basis
for finding that the affidavit established probable cause
to believe that the evidence would be found at the place
cited.” United States v. Davidson, 936 F.2d 856, 859 (6th
Cir. 1991)(quotation omitted). The affidavit should be
reviewed in a commonsense–rather than a
10 United States v. Trujillo No. 02-1521
hypertechnical– manner, and the court should consider
whether the totality of the circumstances supports a
finding of probable cause, rather than engaging in
line-by-line scrutiny. United States v. Greene, 250 F.3d
471, 479 (6th Cir. 2001). The magistrate’s determination
of probable cause is afforded great deference, and that
determination should be reversed only if the magistrate
arbitrarily exercised his discretion. Id.
United States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004).
“The task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, including
the ‘veracity’ and ‘basis of knowledge’ of persons supplying
hearsay information, there is a fair probability that contraband
or evidence of a crime will be found in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238 (1983). “The probable
cause requirement . . . is satisfied if the facts and
circumstances are such that a reasonably prudent person
would be warranted in believing that an offense had been
committed and that evidence thereof would be found on the
premises to be searched.” Greene v. Reeves, 80 F.3d 1101,
1106 (6th Cir. 1996)(citing United States v. Besase, 521 F.2d
1306, 1307 (6th Cir. 1975)). Thus, “only the probability, and
not a prima facie showing, of criminal activity is the standard
of probable cause . . . .” United States v. Davidson, 936 F.2d
856, 860 (6th Cir. 1991).
In the instant case, we find that the totality of the
circumstances presented in DEA Agent Lynch’s affidavit
provided Magistrate Judge Scheer with a substantial basis for
finding probable cause to search Trujillo’s residence.
Massachusetts v. Upton, 466 U.S. 727, 733 (1984).
Accordingly, the district court did not err in denying
Trujillo’s motion to suppress.
As the district court correctly noted, in her affidavit, DEA
Agent Lynch specifically advised Magistrate Judge Scheer

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No. 02-1521 United States v. Trujillo 11
that, after being interviewed separately, Campos and
Rogensues provided detailed facts of a conspiracy to
distribute marijuana. Specifically, the affidavit represented
that Campos and Rogensues were transporting money to
Arizona in exchange for marijuana which they would then
return to Julio Trujillo whom they contacted via his cellular
telephone or pager and who instructed them to deliver the
marijuana to his residence. Moreover, the affidavit stated that
Campos and Rogensues had planned to make five or six more
trips to Arizona for the Trujillos in order to obtain marijuana.
Finally, DEA Agent Lynch’s affidavit contained the fact that
a controlled delivery was planned for the same day upon
which she sought the search warrant. Thus, we believe that
DEA Agent Lynch’s affidavit provided probable cause for
Magistrate Judge Scheer to issue the search warrant at issue.
As for Trujillo’s challenge to the reliability and credibility
of Campos and Rogensues and the necessity of an evidentiary
hearing prior to the issuance of the warrant, the affidavit
clearly indicated that the information provided by Campos
and Rogensues was reliable and corroborated. Specifically,
DEA Task Force Agents Thurston and Powell were able to
verify with law enforcement authorities in Michigan that the
Trujillos lived at the address provided by Campos and
Rogensues and that Julio Trujillo had recently been released
from prison after serving a sentence on a drug charge as stated
by Campos and Rogensues. Franks v. Delaware, 438 U.S.
154, 165 (1978)(noting that “probable cause may be founded
upon . . . information . . . that sometimes must be garnered
hastily.”).
Finally, as for Trujillo’s claim that DEA Agent Lynch acted
with reckless disregard for the truth in omitting certain facts
from her affidavit, a defendant is entitled to a Franks hearing
“if and only if : (1) there is a substantial preliminary showing
that specified portions of the affiant’s averments are
deliberately or recklessly false and (2) a finding of probable
cause would not be supported by the remaining content of the
affidavit when the allegedly false material is set to one side.”
12 United States v. Trujillo No. 02-1521
United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997).
Thus, “it is clear that Franks v. Delaware requires that, even
in such an instance of perjury, the warrant will be voided if
the false statement is necessary to establish probable cause.
The defendant must prove by a preponderance of the evidence
that the affiant’s remaining content is insufficient to establish
probable cause.” United States v. Barone, 584 F.2d 118, 121
(6th Cir. 1978).
Here, Trujillo has failed to make a strong showing that
DEA Agent Lynch excluded certain facts from her affidavit
with an intention to mislead Magistrate Judge Scheer. Mays
v. City of Dayton, 134 F.3d 809, 816 (6th Cir. 1998). In
addition, we agree with the district court that, even had DEA
Agent Lynch included in her affidavit the fact that Campos
and Rogensues had given prior inconsistent statements before
pointing to Trujillo as a co-conspirator, these facts would not
have negated a finding of probable cause. Atkins, 107 F.3d at
1216-17 (denying the defendant’s motion for a Franks
hearing because alleged material omissions were not essential
to a probable cause finding); United States v. Martin, 920
F.2d 393, 398 (6th Cir. 1990)(rejecting the defendant’s
request for a Franks hearing because the alleged material
omission bearing on the veracity of the principal informant
was not essential to a finding of probable cause). Thus, we
affirm the district court’s denial of Trujillo’s motion to
suppress.
B. RULE 404(B) EVIDENCE
Prior to the start of trial, the Government filed a notice
regarding its intent to use certain evidence, pursuant to
Federal Rule of Evidence 404(b), at trial. The Government’s
notice engendered a motion in limine by Trujillo seeking an
order from the district court barring the introduction of the
Government’s Rule 404(b) evidence. At the conclusion of a
hearing on the motion, the district court allowed in part and
denied in part Trujillo’s motion, allowing the admission at

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No. 02-1521 United States v. Trujillo 13
trial of six of the ten types of evidence proffered by the
Government.
On appeal, Trujillo has challenged the district court’s order
with regard to three types of the Government’s Rule 404(b)
evidence. First, Trujillo argues that the district court erred in
allowing the Government to introduce evidence that Campos
had traveled to Arizona in order to transport marijuana back
to Detroit for Trujillo on several occasions prior to the start of
the charged conspiracy. Second, Trujillo asserts that the
district court erred in allowing the Government to introduce
evidence that Trujillo had paid Campos to title two
automobiles in Campos’ name and, then, transfer the title
back to her because these alleged acts also occurred prior to
the start of the charged conspiracy. Third, Trujillo contends
that the district court erred in allowing the Government to
introduce evidence that Trujillo had threatened Rogensues
that, because Campos and Rogensues had cost her
$250,000.00, they were going to have to pay for the
marijuana.
Trujillo argues that the district court erred in allowing the
Government to introduce these three pieces of Rule 404(b)
evidence because the district court failed to make any factual
determination that any of the alleged actions actually
occurred. In addition, Trujillo claims that the district court
erred in admitting this Rule 404(b) evidence because the
evidence did not assist the jury, because the Government did
not introduce the evidence for a legitimate purpose (she never
placed her intent at issue), and because the evidence was
simply propensity evidence masquerading as Rule 404(b)
evidence which was unfairly prejudicial to her. Finally,
Trujillo asserts that the district court erred in failing to give a
proper limiting instruction to the jury when it admitted the
Government’s Rule 404(b) evidence.
The Government argues that the district court did not err in
admitting the Rule 404(b) evidence because the evidence was
admitted for permissible purposes (to show plan, intent,
14 United States v. Trujillo No. 02-1521
opportunity, personal involvement, and unexplained wealth)
and because the probative value of this evidence was not
substantially outweighed by any unfair prejudice. As for
Campos’ prior marijuana trips for Trujillo, the Government
asserts that the evidence was highly probative to demonstrate
Trujillo’s method of operation, plan, and preparation. As for
the title evidence, the Government claims that the evidence
established Trujillo’s consciousness of guilt, unexplained
wealth, motive, and actions in furtherance of the conspiracy.
Finally, as for the evidence of a threat, the Government
argues that the evidence was admissible to prove Trujillo’s
intent and consciousness of guilt.
Federal Rule of Evidence 404(b) provides in relevant part:
“Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident . . . .” Id. In determining whether other acts
evidence under Rule 404(b) is admissible, this Court employs
a three-part test:
First, the district court must decide whether there is
sufficient evidence that the other act in question actually
occurred. Second, if so, the district court must decide
whether the evidence of the other act is probative of a
material issue other than character. Third, if the evidence
is probative of a material issue other than character, the
district court must decide whether the probative value of
the evidence is substantially outweighed by its potential
prejudicial effect.
United States v. Jenkins, 345 F.3d 928, 937 (6th Cir.
2003)(citing United States v. Haywood, 280 F.3d 715,
719-20 (6th Cir. 2002)). “This court reviews a district court’s
evidentiary determinations under Fed. R. Evid. 404(b) for
abuse of discretion. A district court is considered to have
abused its discretion when this court is left with the definite

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No. 02-1521 United States v. Trujillo 15
and firm conviction that the district court committed a clear
error of judgment in the conclusion it reached upon a
weighing of the relevant factors.” United States v. Copeland,
321 F.3d 582, 596 (6th Cir. 2003) (internal citations and
quotations omitted).
Here, we conclude that the district court did not abuse its
discretion in admitting the Government’s Rule 404(b)
evidence. Although Trujillo argues that the district court
failed to make a factual determination that the alleged bad
acts occurred, a jury could reasonably have concluded that
Trujillo committed the prior bad acts based upon Campos’,
Rogensues’, and Speckman’s testimony and based upon the
evidence discovered at Trujillo’s home pursuant to the search
warrant. Huddleston v. United States, 485 U.S. 681, 690
(1988). Therefore, the first step in the Rule 404(b) analysis
is satisfied.
Likewise, the second step in the Rule 404(b) inquiry is
satisfied. Because Trujillo was charged with a specific intent
crime, Rule 404(b) evidence was admissible to prove her
intent. E.g., United States v. Spikes, 158 F.3d 913, 930 (6th
Cir. 1998)(“[T]his court has held that Rule 404(b) evidence
is admissible to prove intent if specific intent is a statutory
element of the offense.”). Moreover, we agree with the
district court that the Rule 404(b) evidence was admissible for
proper purposes other than propensity, including plan,
opportunity, motive, and unexplained wealth.
Finally, we also agree with the district court that the
evidence of Trujillo’s prior bad acts was not substantially
outweighed by the danger of any unfair prejudicial effect.
Fed. R. Evid. 403; United States v. Myers, 123 F.3d 350,
362-63 (6th Cir. 1997). Accordingly, the district court did not
16 United States v. Trujillo No. 02-1521
7In her appellate brie f, Trujillo contends that, although the district
court gave a limiting instruction to the jury prior to deliberations, the
district court erred in failing to give the jury an appropriate limiting
instruction when the Rule 404(b) evidence was presented. However,
Trujillo did no t lodge a timely objection to the district co urt’s failure to
instruct the jury contemporaneously with the admission of the Rule 404(b)
evidence, and there is no plain error here. United States v. Stines, 313
F.3d 912, 919 (6th Cir. 20 02)(“W here a defendant fails to make a timely
objection, stating the specific grounds for his objection, our review is
limited to plain error.”); United States v. Miller, 115 F.3d 361, 36 6 (6th
Cir. 199 7) (declining to find an abuse of discretion where the district court
failed to provide a cautionary instruction at the time of the admission of
the Rule 404(b) evidence but did so at the close of the case).
abuse its discretion in admitting the Government’s Rule
404(b) evidence.7
C. SUBSTITUTION OF COUNSEL
Trujillo argues that the district court abused its discretion
in denying her motion to continue the trial so that her new
attorney could adequately prepare for trial. Moreover,
because she could not obtain new counsel to represent her
without the requested continuance, Trujillo asserts that the
district court deprived her of her right to counsel of her own
choosing and forced her to proceed with the assistance of
counsel in whom she had no confidence and who rendered her
ineffective assistance. Accordingly, Trujillo contends that she
is entitled to a new trial.
The Government argues that the district court made all of
the proper and appropriate inquiries of Trujillo as to her
dissatisfaction with her attorney and that the district court did
not abuse its discretion in denying her request for a
continuance of the trial. The Government claims that, due to
the lateness of her request, it would have been prejudiced by
a continuance and that the basis for Trujillo’s request for a
substitution of counsel was inadequate. Accordingly, the
Government asserts that the district court did not err in
denying Trujillo’s motion to continue.

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No. 02-1521 United States v. Trujillo 17
“A motion for new court-appointed counsel based upon
defendant’s dissatisfaction with his counsel previously
appointed is addressed to the sound discretion of the trial
court.” United States v. White, 451 F.2d 1225, 1226 (6th Cir.
1971). We review a district court’s denial of a motion for a
substitution of counsel for an abuse of discretion. United
States v. Williams, 176 F.3d 301, 314 (6th Cir. 1999). In
particular, we consider: “(1) the timeliness of the motion,
(2) the adequacy of the court’s inquiry into the matter, (3) the
extent of the conflict between the attorney and client and
whether it was so great that it resulted in a total lack of
communication preventing an adequate defense, and (4) the
balancing of these factors with the public’s interest in the
prompt and efficient administration of justice.” United States
v. Mack, 258 F.3d 548, 556 (6th Cir. 2001); Williams, 176
F.3d at 314; United States v. Jennings, 83 F.3d 145, 148 (6th
Cir. 1996).
Here, these four factors weigh in favor of a conclusion that
the district court did not abuse its discretion in denying
Trujillo’s motion to continue. First, the motion for
substitution of counsel and the motion for a continuance were
untimely, coming only three days prior to the scheduled start
of the trial. Jennings, 83 F.3d at 148 (motion to continue
made the day before trial); Williams, 176 F.3d at 314 (motion
to continue made two weeks before trial). Second, the record
establishes that the district court made an adequate inquiry
into the crux of Trujillo’s dissatisfaction with her attorney.
Third, Trujillo admitted that her dissatisfaction was based
upon her counsel’s failure to obtain a suppression of the
evidence seized from her home as a result of the search
warrant. Because the district court was not going to allow her
to reopen the suppression issue, this factor weighs in favor of
a denial of the motion to continue. Fourth, given the
administrative hurdles and costs involved in ensuring the
attendance of the Government’s witnesses for the trial, the
public’s interest in the prompt and efficient administration of
justice weighed in favor of denying Trujillo’s motion to
18 United States v. Trujillo No. 02-1521
continue. Accordingly, the district court did not abuse its
discretion in denying Trujillo’s motion to continue.
D. IMPROPER BOLSTERING OR VOUCHING
Trujillo argues that she is entitled to a new trial because the
Government improperly vouched for and bolstered the
credibility of Campos and Rogensues. Specifically, Trujillo
asserts that, because the Government had both witnesses
highlight to the jury the fact that under the terms of their plea
agreements they had to truthfully cooperate or they would be
in breach of their agreements, the jury was improperly left
with the impression that the Government had some secret
method by which to determine whether Campos and
Rogensues were telling the truth. Trujillo also claims error
based upon Rogensues’ testimony that she agreed to submit
to a polygraph examination.
In addition, Trujillo contends that the Government’s error
in improperly vouching for and bolstering Campos’ and
Rogensues’ testimony was exacerbated by the prosecutor’s
rebuttal argument to the jury. Trujillo claims that the
prosecutor’s reference to the “truthful testimony” agreements
in which Campos and Rogensues had entered was improper
because the statement was intended to convey to the jury the
prosecutor’s opinion that the witnesses’ testimony was
truthful. Finally, Trujillo argues that the district court erred
in failing to give an appropriate cautionary instruction to the
jury.
The Government argues that it did not improperly bolster
or vouch for Campos’ or Rogensues’ credibility when the
prosecutor referred to the witnesses’ plea agreements. On the
contrary, the Government notes that the prosecutor limited the
questioning of Campos and Rogensues to the existence of
their plea agreements and did not suggest the prosecutor’s
personal assurance or belief as to the veracity or credibility of
either witness. Furthermore, the Government asserts that
Rogensues’ reference to her willingness to take a polygraph

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No. 02-1521 United States v. Trujillo 19
examination was an unsolicited statement which the district
court properly determined to be a “non-issue” because
Rogensues never took a polygraph test. Finally, the
Government claims that the district court’s failure to give a
cautionary instruction does not constitute plain error,
especially in light of the overwhelming proof submitted at
trial establishing Trujillo’s guilt.
“‘Improper vouching occurs when a prosecutor supports the
credibility of a witness by indicating a personal belief in the
witness’s credibility thereby placing the prestige of the office
of the United States Attorney behind that witness. [I]mproper
vouching involves either blunt comments or comments that
imply that the prosecutor has special knowledge of facts not
in front of the jury . . . .’” United States v. Martinez, 253 F.3d
251, 253-54 (6th Cir. 2001)(quoting United States v. Francis,
170 F.3d 546, 550 (6th Cir. 1999)). On the other hand,
“‘[b]olstering occurs when the prosecutor implies that the
witness’s testimony is corroborated by evidence known to the
government but not known to the jury.’” Id. at 254 (quoting
Francis, 170 F.3d at 551). “Whether improper vouching
amounts to prosecutorial misconduct and whether it renders
the trial fundamentally unfair are mixed questions of law and
fact reviewable de novo.” United States v. Tocco, 200 F.3d
401, 422 (6th Cir. 2000); United States v. Clark, 982 F.2d
965, 968 (6th Cir. 1993).
In the present case, we find that the prosecutor did not
improperly vouch for or bolster Campos’ or Rogensues’
credibility. Accordingly, no prosecutorial error occurred
which entitles Trujillo to a new trial.
During her direct examination, the prosecutor asked
Campos the following questions, and Campos gave the
following answers:
Q. Did you plea pursuant to a plea agreement?
A. Yes.
20 United States v. Trujillo No. 02-1521
Q. Did you receive consideration from the government in
exchange for your plea?
A. Yes.
Q. Was there a consideration from the government in
exchange for truthful cooperation in the case?
A. Yes.
J.A. 280. Likewise, during her direct examination, the
prosecutor asked Rogensues the following questions, and
Rogensues gave the following answers:
Q. What were the charges against you in that case?
A. Conspiracy to deliver marijuana.
Q. How did you plead?
A. Guilty.
Q. Why was that?
A. Downward departure for testimony today.
* * *
Q. Could you tell the jurors what your agreement was
with regard to cooperation?
A. That I would tell the truth. I would be here for pretrial,
trial, anything concerning this case, that I admit to a lie
detector test.
* * *
A. I would submit to one – to one, which I will.

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No. 02-1521 United States v. Trujillo 21
J.A. 452, 500-01. Finally, during the prosecutor’s rebuttal
argument, she made the following statement to the jury:
Beth Ann Rogensues and Norma Jean Campos are not
free. Three months halfway house away from the
children, three months on tether, two years probation,
and they didn’t – they told you during the direct
examination that they didn’t come here, and they didn’t
agree they would get on the stand and say whatever the
government wanted them to say. They promised to be
truthful and provide complete information. Truthful and
complete information concerning all individuals with
whom they conspired to distribute marijuana, but not
limited to Julio or Anna Trujillo. That’s what they told
you during their examination.
J.A. 203.
As the above citations to the record make clear, the
prosecutor did not offer any personal observations or opinions
as to the veracity of either Campos or Rogensues, nor did she
place the prestige of the Government behind their credibility.
Rather, the prosecutor’s questions and comments merely
encompassed the terms of Campos’ and Rogensues’ plea
agreements which this Court has held to be permissible.
Francis, 170 F.3d at 550. Thus, the Government did not
engage in any improper vouching.
Likewise, the Government did not engage in any improper
bolstering. Again, as the above citations to the record reveal,
the prosecutor did not imply that either Campos’ or
Rogensues’ testimony was corroborated by any evidence
known to the Government but not presented to the jury.
Martinez, 253 F.3d at 254. Thus, there was no improper
bolstering.
Finally, we conclude that the district court correctly
characterized Rogensues’ unsolicited testimony regarding her
willingness to submit to a polygraph test as a non-issue which
22 United States v. Trujillo No. 02-1521
did not prejudice Trujillo, and we also conclude that Trujillo
has failed to satisfy the plain error standard with regard to the
district court’s failure to give the jury an appropriate limiting
instruction. Accordingly, Trujillo is not entitled to a new trial
based upon her claims of prosecutorial misconduct.
E. ADMISSION OF PRIOR INCONSISTENT
STATEMENTS
During the trial, both Campos and Rogensues testified that
they had given statements to DEA Task Force Agents
Thurston and Powell during their post-arrest interviews in
which they admitted transporting marijuana for Trujillo and
her husband. Campos and Rogensues also testified that they
provided details to DEA Task Force Agents Thurston and
Powell concerning where they delivered the marijuana upon
returning to Detroit, where the Trujillos lived, and the fact
that Rogensues kept a ledger detailing each trip that she and
Campos had made in order to transport marijuana for the
Trujillos.
On cross-examination, Trujillo’s counsel attacked the
truthfulness of Campos’ and Rogensues’ testimony and
attempted to impeach them with their prior inconsistent
statements which they gave to Trooper Ortiz and to DEA
Task Force Agents Thurston and Powell before settling on the
story which they testified to at trial implicating Trujillo.
The Government then called DEA Task Force Agents
Thurston and Powell in order to rehabilitate Campos and
Rogensues with the statements which Campos and Rogensues
had made to them during their post-arrest interviews which
were consistent with their trial testimony implicating Trujillo.
Trujillo’s counsel objected to DEA Task Force Agents
Thurston and Powell’s testimony regarding Campos’ and
Rogensues’ prior consistent statements on hearsay grounds.
Fed. R. Evid. 802. The Government responded that the
agents’ testimony was admissible because the agents’
testimony was offered to rebut Trujillo’s charge of recent

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No. 02-1521 United States v. Trujillo 23
8The district court also allowed DE A Agent Lynch to offer testimony
concerning the prio r consistent statements given to her by Campos and
Roge nsues.
fabrication by Campos and Rogensues, and thus, the
testimony did not constitute hearsay. Fed. R. Evid.
801(d)(1)(B). The Government cited three cases to the
district court in support of its position: United States v.
Hebeka, 25 F.3d 287 (6th Cir. 1994); United States v. Smith,
746 F.2d 1183 (6th Cir. 1984); and United States v. Hamilton,
689 F.2d 1262 (6th Cir. 1982). After reviewing the cases
cited by the Government, the district court overruled
Trujillo’s objection and allowed DEA Task Force Agents
Thurston and Powell to testify regarding Campos’ and
Rogensues’ statements which were consistent to the
testimony which Campos and Rogensues had given at trial.
Accordingly, DEA Task Force Agent Powell testified that,
during her interview, Rogensues stated that she was
delivering the marijuana which had been seized from the
rental vehicle to Julio Trujillo; that the Trujillos had delivered
the rental vehicle to Campos and her to be used in
transporting the marijuana from Arizona to Detroit; that
Campos and she had completed five prior marijuana trips for
the Trujillos; and that she was able to remember the dates of
those marijuana trips because she kept a daytime ledger in
which she noted the states through which Campos and she
had driven, the miles logged, the hours each drove, and the
total time it took to complete the trips. Similarly, DEA Task
Force Agent Thurston testified that, during her interview,
Campos told him that she had completed seven trips to
Arizona in order to obtain marijuana which she then delivered
to the Trujillos in Detroit.8
On appeal, Trujillo reasserts her argument that DEA Task
Force Agents Thurston’ and Powell’s testimony constituted
inadmissible hearsay, and therefore, the district court
committed prejudicial error by allowing them to testify
24 United States v. Trujillo No. 02-1521
regarding Campos’ and Rogensues’ prior consistent
statements. Trujillo argues that the cases cited by the
Government and relied upon by the district court are no
longer good law in light of the United States Supreme Court’s
holding in Tome v. United States, 513 U.S. 150 (1995), and
this Court’s holding in United States v. Toney, 161 F.3d 404
(6th Cir. 1998). Trujillo contends that Campos’ and
Rogensues’ motive to lie arose when they were arrested by
Trooper Ortiz in Colorado, and thus, under the holdings of
Tome and Toney, the district court committed reversible error
in allowing the Government to rehabilitate Campos and
Rogensues via DEA Task Force Agents Thurston and
Powell’s testimony.
The Government claims that the district court did not err in
allowing DEA Agents Thurston and Powell to offer testimony
in an attempt to rehabilitate Campos and Rogensues because
the agents’ testimony was offered to rebut Trujillo’s charge of
recent fabrication. In essence, the Government contends that
Trujillo opened the door to this testimony by implying during
the cross-examination of Campos and Rogensues that they
were lying and that they had been improperly influenced by
their plea agreements with the Government.
Federal Rule of Evidence 801(d)(1)(B) provides: “A
statement is not hearsay if . . . [t]he declarant testifies at the
trial or hearing and is subject to cross-examination concerning
the statement, and the statement is . . . consistent with the
declarant’s testimony and is offered to rebut an express or
implied charge against the declarant of recent fabrication or
improper influence or motive . . . .” Id. “A district court’s
determination of whether evidence constitutes hearsay under
the Federal Rules of Evidence is a conclusion of law that is
reviewed de novo.” Cox v. Treadway, 75 F.3d 230, 238 (6th
Cir. 1996)(citing Hancock v. Dodson, 958 F.2d 1367, 1371
(6th Cir. 1992)).
In the instant case, the district court committed error when
it employed the wrong test in resolving Trujillo’s hearsay

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No. 02-1521 United States v. Trujillo 25
9“The district court’s determination of when the mo tive to lie arose
is a factual finding, which we review under the ‘clearly erroneous’
standard.” Toney, 161 F.3d at 408.
10The fact that the Government presented the evidence of Campos’
and Rogensues’ prior consistent statements through DEA Task Force
Agents Thurston and Powell’s testimony rather than from Campo s and
Rogensues them selves is o f no co nsequence. Hebeka, 25 F.3d at 293.
objection. As noted by Trujillo, the district court neither cited
to nor referenced Toney or Tome in reaching its decision to
overrule Trujillo’s hearsay objection. As such, the district
court never rendered a factual finding as to when Campos and
Rogensues formed a motive to lie.9 Thus, the question which
we must answer is whether the district court properly
admitted this evidence despite the district court’s flawed
reasoning.
In order for DEA Task Force Agents Thurston’s and
Powell’s testimony not to be considered hearsay under Rule
801(d)(1)(B): (1) Campos and Rogensues had to testify and
been subject to cross-examination; (2) Trujillo had to
expressly or impliedly charge recent fabrication or improper
influence or motive by Campos and Rogensues during their
testimony; (3) the Government had to offer a prior consistent
statement that was consistent with the Campos and Rogensues
challenged in-court testimony; and, (4) Campos’ and
Rogensues’ prior consistent statements must have been made
prior to the time that their supposed motive to lie arose.10
Toney, 161 F.3d at 407; Tome, 513 U.S. at 167. The only
factor which is at issue in the instant appeal is the last one, i.e.
whether the statements which Campos and Rogensues made
to DEA Task Force Agents Thurston and Powell which were
consistent with their trial testimony were made before they
had formed a “motive to lie.”
Based upon our review of the record, we conclude that
Campos’ and Rogensues’ prior consistent statements were
made after they had formed their motive to lie. It is simply
26 United States v. Trujillo No. 02-1521
11W ithin two days of being arrested and giving custodial statements,
Campos and Rogensues attempted to cooperate with the p olice in
arranging for the delivery of the marijuana to Trujillo and her husba nd in
a manner which would have incriminated b oth. E.g., J.A. at 331 (o n cross-
examination, Trujillo’s counsel asked, “And then you ended up coming
back here, and you were arraigned after you were unable to set up the
Trujillos, correct?,” to which Campos respond ed, “Yes.”).
not believable to suggest that, a day or two after Campos and
Rogensues were stopped with more than fifty kilograms of
marijuana in their car and were subsequently arrested, they
did not have a motive to lie, regarding the source of the
marijuana, in order to get lenient treatment.11 See United
States v. Esparza, 291 F.3d 1052, 1055 (6th Cir.
2002)(finding testimony made at the time of an arrest
inadmissible because “Esparza had the same motive to lie at
the time of his statement to the officer as he did at the trial,
and so his statement was not admissible to rebut a charge of
recent fabrication.”). Accordingly, we find that the district
court erred in admitting the hearsay statements in question.
Nevertheless, we also find that this error does not warrant
a reversal. In order to merit a reversal, this error must be
shown not to have been harmless, i.e., that it was more
probable than not that the error materially affected the verdict.
United States v. Hernandez, 227 F.3d 686, 696 (6th Cir.
2000). We conclude that the district court’s admission of the
hearsay statements constituted harmless error.
First, the error was harmless because the inadmissible
hearsay testimony was effectively impeached. After DEA
Task Force Agent Thurston gave his testimony recounting the
hearsay statements made by Campos and Rogensues,
Trujillo’s counsel, at length, impeached the credibility of the
stories given by Campos and Rogensues to DEA Task Force
Agent Thurston. See J.A. at 569. DEA Task Force Agent
Thurson admitted that Campos and Rogensues were in the
room together at one point when the details of their stories

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No. 02-1521 United States v. Trujillo 27
were clarified–which indicates that their stories differed
earlier–thereby, impeaching Campos’ and Rogensues’ stories.
In addition, DEA Task Force Agent Thurston was unable
to deny Trujillo’s attorney’s assertion that Campos had been
so distressed upon her arrest that she was crying when she
was in custody. Id. More importantly, DEA Task Force
Agent Thurston agreed that Campos’ and Rogensues’ stories
only implicated Trujillo in a very minor role when compared
to that of her husband, Julio. See J.A. at 573-74.
Second, the error was harmless because Trujillo’s counsel
effectively impeached the two witnesses whose testimony was
buttressed by the inadmissible hearsay. Trujillo’s counsel
impugned the motives of Campos and Rogensues during his
examination of them and which the jury could have recalled
upon hearing DEA Task Force Agent Thurston’s testimony.
Third, the Government presented other significant
admissible evidence which confirmed Trujillo’s involvement
in marijuana trafficking activities. For example, Shawn
Speckman’s testimony indicated Trujillo’s involvement in
drug trafficking activities, and DEA Agent Lynch testified as
to having found, at Trujillo’s residence, “phone books with
names, . . . two scales, in addition to a cellular telephone and
pager, fax machine, all have information and phone numbers
linking to the crime.” J.A. at 356.
Accordingly, in light of the other admissible evidence
presented by the Government during the trial and Trujillo’s
attorney’s effective impeachment of DEA Task Force Agent
Thurston, Campos, and Rogensues, it is not probable that,
even without the improper admission of the prior consistent
statements of Campos and Rogensues, Trujillo would have
been acquitted. As such, the district court’s improper
admission of DEA Task Force Agents Thurston’s and
Powell’s hearsay statements was harmless and does not
require a reversal of Trujillo’s conviction.
28 United States v. Trujillo No. 02-1521
F. MOTION FOR A MISTRIAL
Prior to the start of trial, the district court ruled that there
could be no mention of any marijuana found in the possession
of Thomas Hysell where the Government could not prove that
the marijuana recovered from him came from Trujillo’s home.
Because Hysell did not testify at trial, the district court’s
order resulted in the exclusion of any reference to the
marijuana obtained from him after he had met Speckman at
the Trujillo’s home on the night of November 16th.
During the trial, the prosecutor questioned Speckman about
what had transpired when Hysell visited Trujillo’s residence
just before DEA agents searched the residence pursuant to a
search warrant–allegedly trying to imply that Hysell had
purchased marijuana from Trujillo. After Trujillo’s counsel
objected, the district court cautioned the prosecutor not to let
the witness testify regarding the marijuana seized from
Hysell.
Subsequently, while DEA Agent Anthony Bryndza was
testifying, the prosecutor inadvertently tendered an exhibit
consisting of marijuana taken from Hysell the night that he
went to Trujillo’s home and met with Speckman. The
prosecutor’s reference to the exhibit caused Bryndza to refer
to the marijuana and attribute it to Hysell. Trujillo’s counsel
immediately moved for a mistrial, but the district court denied
the motion, admonished the witness, and instructed the jury
to disregard any references to the exhibit or testimony
regarding the marijuana attributed to Hysell.
Trujillo argues that the district court abused its discretion
in denying her motion for a mistrial based upon the
Government’s witnesses’ references to the marijuana obtained
from Hysell in violation of the district court’s order excluding
this evidence. Trujillo contends that the prosecutor’s
violation of the district court’s order was flagrant and highly
prejudicial. Accordingly, Trujillo asserts that the prosecutor’s
improper implication to the jury that she lived at a house

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No. 02-1521 United States v. Trujillo 29
frequented by individuals who possessed marijuana entitled
her to a new trial, and therefore, the district court erred in
denying her motion for a mistrial.
The Government argues that, contrary to Trujillo’s
assertion otherwise, the complained of remarks were not
flagrant. In fact, the Government notes that the references to
the marijuana possessed by Hysell were made by a witness,
not the prosecutor, and therefore, the witness’ comments
should not be attributed to it. Accordingly, the Government
claims that the district court did not abuse its discretion in
denying Trujillo’s motion for a mistrial.
“We review for abuse of discretion the district court’s
denial of a motion for mistrial.” United States v. Yang, 281
F.3d 534, 549 (6th Cir. 2002). “An abuse of discretion exists
when the reviewing court is firmly convinced that a mistake
has been made.” United States v. Carroll, 26 F.3d 1380, 1383
(6th Cir. 1994). Deference is given to the district court
because “[t]he trial judge is in the best position to determine
the nature of the alleged jury misconduct . . . [and] is also in
the best position to determine appropriate remedies for any
demonstrated misconduct.” United States v. Copeland, 51
F.3d 611, 613 (6th Cir. 1995).
As we have previously explained:
When reviewing claims of prosecutorial misconduct, we
determine first whether the statements were improper.
See United States v. Krebs, 788 F.2d 1166, 1177 (6th Cir.
1986). If they appear improper, we then look to see if
they were flagrant and warrant reversal. See United
States v. Carroll, 26 F.3d 1380, 1388 (6th Cir. 1994). To
determine flagrancy, the standard set by this Court is: 1)
whether the statements tended to mislead the jury or
prejudice the defendant; 2) whether the statements were
isolated or among a series of improper statements; 3)
whether the statements were deliberately or accidentally
before the jury; and 4) the total strength of the evidence
30 United States v. Trujillo No. 02-1521
against the accused. United States v. Monus, 128 F.3d
376, 394 (6th Cir. 1997)(citing United States v. Cobleigh,
75 F.3d 242, 247 (6th Cir. 1996)); Carroll, 26 F.3d at
1385 (citing United States v. Leon, 534 F.2d 667, 679
(6th Cir. 1976)). To reverse a conviction because of an
improper non-flagrant statement, a reviewing court must
determine that: 1) the proof of the defendant’s guilt is not
overwhelming; 2) the defense counsel objected; and 3)
the trial court failed to cure the impropriety by failing to
admonish the jury. Monus, 128 F.3d at 394; Carroll, 26
F.3d at 1385-86 (citing United States v. Bess, 593 F.2d
749, 757 (6th Cir. 1979)).
Francis, 170 F.3d at 549-50.
In the case sub judice, we find that the district court did not
abuse its discretion in denying Trujillo’s motion for a
mistrial. Although the reference to the marijuana recovered
from Hysell was improper because it violated the district
court’s pre-trial order, we do not believe the reference was
flagrant or requires a reversal. Our review of the record leads
us to believe that reference was accidental, did not mislead
the jury or prejudice Trujillo, and was an isolated statement.
Moreover, immediately after the improper statement by
Bryndza, the district court properly admonished the jury, and
we cannot say that the other evidence of Trujillo’s guilt is so
insubstantial that a reversal is required in light of this
improper reference. Accordingly, the district court did not
abuse its discretion in denying Trujillo’s motion for a
mistrial.
G. CUMULATIVE ERROR
Trujillo argues that, even if no single assignment of error is
sufficient to warrant a new trial, the totality of errors deprived
her of her constitutional right to a fair trial. Accordingly,
Trujillo asks us to grant her a new trial based upon a theory of
cumulative error.

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No. 02-1521 United States v. Trujillo 31
The Government argues that, because Trujillo has failed to
demonstrate that the district court committed any individual
errors, her claim of cumulative error fails. In any event, the
Government claims that Trujillo has failed to demonstrate that
Trujillo was deprived of her right to a fair trial as a result of
any of the district court’s rulings.
In order to obtain a new trial based upon cumulative error,
a defendant must show that the combined effect of
individually harmless errors was so prejudicial as to render
his trial fundamentally unfair. United States v. Parker, 997
F.2d 219, 221 (6th Cir. 1993). This is so because “errors that
might not be so prejudicial as to amount to a deprivation of
due process when considered alone . . . may cumulatively
produce a trial setting that is fundamentally unfair.” United
States v. Hernandez, 227 F.3d 686, 697 (6th Cir. 2000)(citing
Walker v. Engle, 703 F.2d 959, 963 (6th Cir. 1983))(internal
quotation marks omitted).
However, the only error committed by the district court was
in admitting some hearsay statements made by DEA Task
Force Agents Thurston and Powell. We have found this error
to be harmless, and Trujillo has failed to identify any other
error committed by the district court which could be
combined with this harmless error in order to support a
finding of cumulative error and which would rise to the level
of fundamental unfairness. United States v. Rivera, 900 F.2d
1462, 1471 (10th Cir. 1990)(holding that “a cumulative-error
analysis should evaluate only the effect of matters determined
to be error, not the cumulative effect of non-errors.”). In
short, there is no showing in the record in this case that
Trujillo was denied a fundamentally fair trial. United States
v. Ashworth, 836 F.2d 260, 267 (6th Cir. 1988). Accordingly,
Trujillo is not entitled to a new trial based upon her claim of
cumulative error.
32 United States v. Trujillo No. 02-1521
H. ORGANIZER/LEADER ENHANCEMENT
Finally, Trujillo argues that, at a minimum, she is entitled
to a new sentencing hearing because the district court erred in
enhancing her offense level by two levels, pursuant to
U.S.S.G. § 3B1.1(c), for being an organizer or leader in the
conspiracy. Trujillo asserts that the evidence presented
during her trial clearly established that the leader of the
conspiracy was her husband, Julio, and that the only actions
which she allegedly took in furtherance of the conspiracy was
to rent cars for Campos and Rogensues to be used in the
transportation of marijuana. Accordingly, Trujillo asks the
Court to remand this matter for re-sentencing with directions
to the district court that she not receive a two-level
enhancement for being an organizer or leader.
The Government contends that the evidence presented at
trial proved that Trujillo exercised control over Campos and
Rogensues. Accordingly, the Government claims that the
district court did not err in enhancing Trujillo’s base offense
level by two pursuant to U.S.S.G. § 3B1.1(c).
Title 18 U.S.C. § 3742(e) provides that courts of appeals
“shall accept the findings of fact of the district court unless
they are clearly erroneous and shall give due deference to the
district court’s application of the guidelines to the facts.” Id.;
United States v. Jackson-Randolph, 282 F.3d 369, 389-90
(6th Cir. 2002). U.S.S.G. § 3B1.1(c) provides that “[i]f the
defendant was an organizer, leader, manager, or supervisor in
any criminal activity other than described in (a) or (b),
increase by 2 levels.” Id. (emphasis in original). Thus, the
Sentencing Guidelines provision “requires a sentencing court
to enhance a sentence [by] two levels if the court finds that
the accused served in a managerial or supervisory role during
the criminal activity.” Jones v. United States, 161 F.3d 397,
399 (6th Cir. 1998).
In the present case, the evidence presented by the
Government at trial clearly established that Trujillo exercised

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No. 02-1521 United States v. Trujillo 33
control, supervision, and management over Campos and
Rogensues. Trujillo recruited Campos to transport the
marijuana across the country for her; she provided
transportation for Campos to do so; she provided instruction
as to who and where to meet in order to obtain the marijuana;
and she instructed Campos and Rogensues concerning how to
handle the marijuana upon their return to Detroit, i.e., she
instructed them to “bring in the babies from the cold so that
they won’t get cold” which Campos understood as coded
language instructing her to bring the marijuana into Campos’
house. Accordingly, based upon the evidence presented at
trial, we find that the district court did not clearly err in
denying Trujillo’s objection to the two-level enhancement
which she received, pursuant to U.S.S.G. § 3B1.1(c), for
being an organizer or leader of the charged conspiracy.
III. CONCLUSION
Accordingly, for the reasons set forth above, we AFFIRM
the judgment and the sentence imposed upon Trujillo by the
district court.

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