(caption unavailable)

*District Judge of the Southern District of Texas, sitting
by designation.
**Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
1
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-5626
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT MARTINEZ-GILL and
CARLOS BARRERA HERNANDEZ, a/k/a
"Cale," BERNABE G. MALDONADO, and
MARTIN R. GUERRERO, JR.,
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Western District of Texas
(SA-91-CR-318(4))
_________________________________________________________________
(July 7, 1994)
Before KING and SMITH, Circuit Judges, and KENT,* District Judge.
PER CURIAM:**
The four appellants were convicted of federal drug offenses
after a jury trial. They now bring these direct appeals from
their federal criminal convictions and sentences.

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2
I. BACKGROUND
A. FACTS
We view the record in the light most favorable to the jury
verdicts returned against the appellants in stating the facts of
this case. United States v. Pigrum, 922 F.2d 249, 253 (5th
Cir.), cert. denied, 500 U.S. 936 (1991).
The evidence tended to show the following. Martin R.
Guerrero, Jr., was the owner or part owner of an "ice house" in
San Antonio, Texas, called the Oasis Ice Station in 1989. He was
a convicted felon on lifetime probation at the time, so he was
barred by law from holding a license to sell liquor in Texas.
Bernabe Maldonado, who was romantically involved with Guerrero's
daughter, became the licensed owner of the Oasis in October 1989.
Texas Alcoholic Beverage Commission records listed Carlos
Hernandez as the manager of the Oasis.
1. The Federal Investigation: Part One
Between August 1989 and February 1990, Drug Enforcement
Administration ("DEA") agents in New York and San Antonio
conducted an undercover investigation focused on the fourth
appellant, Robert Martinez-Gill. DEA agent Bryan Averi, who was
working in New York, testified that a confidential informant who
had been in prison with Martinez-Gill provided information to the
DEA that he knew a person in San Antonio (Martinez-Gill) that
could deliver Mexican heroin. The informant was sent to San
Antonio to put Martinez-Gill in touch with Averi. He succeeded,
and the DEA recorded numerous telephone conversations between

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3
Martinez-Gill and Averi and between Martinez-Gill and the
informant. In one conversation between Averi and Martinez-Gill
on October 5, 1989, Martinez-Gill said that someone called "MG"
was interested in a "trade out" in which Averi would provide
$440,000 worth of cocaine in exchange for heroin, and that
someone called "BJ" was MG's spokesman. Martinez-Gill also said
that MG was having troubles with the Internal Revenue Service and
MG owned a concrete company, a lounge, a club, and a limousine
service. At trial, Martinez-Gill himself testified that "MG" was
Guerrero and "BJ" was Maldonado.
On October 6, 1989, agent Averi had another telephone
conversation with Martinez-Gill. Telephone records showed that
Martinez-Gill called Averi using a phone in Maldonado's
apartment. Martinez-Gill told Averi that BJ could bring five
"blocks" to New York, and then BJ himself told Averi that he
could bring five blocks to New York and that MG was leaving the
details of the transaction to him. Later that day Martinez-Gill
called Averi again and said that his superiors "at the ice house"
had agreed to go through with the transaction. He also intimated
that MG was leaving everything in BJ's hands and that BJ was
involved in a romantic relationship with MG's daughter. The
exact details, again, were left for later discussion.
Things did not go as Martinez-Gill had planned. In an
October 17, 1989, telephone conversation with Averi and the
confidential informant, Martinez-Gill said that MG was tied up in
"IRS court" and that everyone was in a "paranoia stage." At one

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point Martinez-Gill even asked, "Are you sure we're not dealing
with the DEA?" Averi testified that he never actually conducted
any drug transaction with Martinez-Gill, BJ, or MG. DEA agent
Thomas Wade testified at trial that he was working undercover in
San Antonio in early 1990 and that he contacted Martinez-Gill
representing himself to be a member of a New York drug-
trafficking organization. Agent Wade met with Martinez-Gill on
February 8, 1990, and Martinez-Gill gave him a small piece of a
substance that field-tested positive for heroin or opiates. Wade
also testified that Martinez-Gill had a beeper and that Martinez-
Gill's beeper number was written in a phone book recovered from
Guerrero at the time of Guerrero's later arrest. Martinez-Gill
was arrested by agent Wade after delivering the small piece of
heroin to him.
The government's investigation also revealed that Guerrero's
next-door neighbors obtained an additional phone line for their
residence at Mrs. Guerrero's request in November 1989, and a
telephone wire was strung running from their kitchen window into
Guerrero's bedroom. Guerrero paid the phone bills for this
telephone line. Telephone records showed that this line was used
to call a certain number in Mexico fifteen times between November
1989 and January 1990; the Mexican number was listed in
Guerrero's personal phone book as belonging to one "Val Lopez."
The government called as a witness Texas Department of Public
Safety ("DPS") officer Wayne Watson, who testified that in June
1989 he and a partner arrested Valentin Lopez Terrazas on

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Interstate 10 east of San Antonio. After stopping Terrazas for
speeding and excessively darkened or tinted windows, Watson
obtained permission to search Terrazas' car and discovered
$40,000 in bundles of small bills as well as traces of marijuana.
Other evidence at trial connected Guerrero and Terrazas.
Onesimo Bernal testified that he had introduced Guerrero and
Terrazas at Guerrero's request. Guerrero asked Bernal to make
the introduction because he wanted to conduct drug trafficking
with Terrazas. Bernal identified a telephone number written in
Guerrero's personal phone book as belonging to Terrazas. Bernal
also testified that he saw Terrazas in San Antonio between June
1988 and sometime in 1990 and that Terrazas told him that he was
in San Antonio to do business with Guerrero.
2. The State Investigation
An important government witness at trial was Carlos Carreon.
He testified that he spent several years in prison in the 1980s
for a drug-related felony, and that while he was in prison he met
Guerrero. While in prison, he discussed drug trafficking with
Guerrero, and after he was released from prison in November 1988,
he went to San Antonio and contacted Guerrero at the Oasis.
There Guerrero introduced him to Hernandez and Maldonado as
members of his drug-trafficking organization and offered him
employment as a drug runner. Carreon testified that he
participated in a distribution of heroin by Maldonado on one
occasion. In early 1989, however, Carreon decided to end his
illegal activities and became a informant for the DPS and local

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1 For clarity's sake, officer Raul Guerrero will be referred
to in this opinion as "Raul Guerrero," while the appellant Martin
Guerrero will be referred to simply as "Guerrero."
6
law enforcement agencies. He worked closely with DPS officers
Raul Guerrero1 and Kenneth Dracoulis, and investigator Jerry
Brown of the Medina County Sheriff's Office.
Investigator Brown testified that he and Raul Guerrero went
undercover and that they met with Hernandez on February 3, 1990,
in a meeting arranged by Carreon. The meeting took place in
Castroville, Texas, west of San Antonio. Brown and Raul Guerrero
paid Hernandez $2600 and received quantities of two substances
that tested positive for heroin and cocaine respectively. Raul
Guerrero testified that he met Hernandez alone on February 9,
1990, and paid him $1250 for some more cocaine. DPS officer
Dracoulis testified that he accompanied Carreon to an apartment
complex in San Antonio on the afternoon of February 9, 1990, and
that Carreon unsuccessfully tried to buy some cocaine from
Maldonado. Dracoulis waited in the car, and he saw Carreon and
Maldonado come out from an apartment. Carreon told Dracoulis
that Maldonado wouldn't sell any drugs to him if he brought
anyone else to the apartment. On February 12, 1990, Brown met
with Hernandez again in Castroville and again bought some heroin
from him for $1300.
The next in this long series of drug transactions occurred
on February 13, 1990. Carreon and Raul Guerrero went to the
Guerreros' home to buy some heroin. Raul Guerrero remained in
the car parked a few houses away, and Carreon went into

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Guerrero's residence. Pursuant to standard operating procedures,
Raul Guerrero searched Carreon thoroughly before allowing him to
go to Guerrero's residence to make sure that Carreon did not
already have drugs in his possession. Carreon returned to the
car with some heroin, and Raul Guerrero gave him the money to
take back to Guerrero. Raul Guerrero met with Hernandez again in
Castroville on March 6, 1990, and bought a quantity of heroin
from Hernandez for $2100.
A different line of investigation involved informant Jesus
Saldana. Saldana testified that he worked for Hernandez in late
1989 and early 1990 as a distributor of heroin and that Guerrero
supplied Hernandez with the heroin that Hernandez ultimately
provided to Saldana. Saldana was himself addicted to heroin at
the time and sold heroin to maintain his own heroin habit. In
early 1990, Saldana apparently began to fall into debt to his
suppliers, and he testified that Guerrero put out a contract on
his life. At this point Saldana contacted the DEA, and the DEA
helped him pay his debts to the organization in return for his
cooperation.
The DPS decided to close the noose around Hernandez. Raul
Guerrero met with Hernandez at the Oasis on April 3, 1990. While
they were discussing the possibility that Hernandez might be able
to sell Raul Guerrero eight ounces of heroin, Guerrero drove up
to the ice house in his car, sounded his horn, and motioned to
Hernandez. Hernandez spoke to Guerrero briefly and returned to
the negotiations with Raul Guerrero; Hernandez was decidedly more

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8
cautious in dealing with Raul Guerrero after he spoke with
Guerrero, and he remarked that only a police officer would have
enough money to buy eight ounces of heroin. Nevertheless,
Hernandez agreed to make the sale, and the next day he met Raul
Guerrero in Castroville and gave him the heroin. Hernandez was
arrested at that time. Although Guerrero posted bond, Hernandez
was arrested again about a week later for violating his parole.
3. The Federal Investigation: Part Two
In June 1990, agents of the Federal Bureau of Investigation
("FBI") initiated a "reverse sting" undercover investigation
directed at Guerrero, in which they hoped to sell drugs to and
arrest Guerrero. FBI agent Antonio Franco and cooperating
witness German Ferriola, a Colombian, conducted this
investigation. At the time, Guerrero's drug trafficking
associate Bernal was in federal custody for a drug offense. The
federal investigators were aware that Bernal and Guerrero had had
a dispute concerning some heroin Bernal had supplied to Guerrero.
Guerrero had judged the heroin to be of poor quality and had
thrown it away; he also refused to pay the whole purchase price
to Bernal. This intelligence was to play a large part in the
reverse sting operation.
Ferriola arranged a meeting with Guerrero by phone. On June
21, 1990, Ferriola and Franco met Guerrero at the Oasis, and
Ferriola told Guerrero that he and Franco were there to talk
about a debt Guerrero owed to Bernal. Guerrero was upset at this
news and asked the two men if "Valentin" had sent them. He also

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9
told them that Bernal was in prison and that he had warned Bernal
never to testify or say anything about him. Guerrero said that
he had threatened to kill Bernal and his family if Bernal ever
said anything about him. Eventually, Guerrero demanded to know
who Franco and Ferriola were; Franco showed him a false driver's
license, and Guerrero said words to the effect that he would kill
Franco if he were lying. Guerrero also said that he had already
killed at least ten people. The conversation turned to drug
trafficking, and Guerrero indicated that he did not need any
heroin but that he did need cocaine. The agents told Guerrero
that they had forty-seven kilos of cocaine available, and that
they could immediately sell him two kilos of cocaine for $26,000.
The details of the sale were left for later discussion.
On June 22, 1990, Franco spoke with Guerrero by phone.
Guerrero said that he would send someone to Franco's motel to
pick up the cocaine. He described the courier and told Franco
that the courier would say, "The man sent me." Guerrero said he
would have the courier call Franco to get Franco's location. A
few minutes after Franco's conversation with Guerrero ended,
Franco received a call from someone who said, "The man said for
me to call you." Franco told the unidentified man where his
motel was, and the man said he was on his way. About half an
hour later Maldonado arrived. A video camera and a microphone
were concealed in the room to record the transaction.
When Maldonado arrived at Franco's room he knocked and gave
the password. Franco gave him a car key and told him to take a

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10
package out of the trunk of a car that would arrive shortly.
Franco pointed out the correct car to Maldonado, who left the
room and opened the trunk of the car. When he removed a black
bag from the trunk he was arrested. Guerrero was arrested later
that day.
B. PROCEDURAL HISTORY
Guerrero, Maldonado, Hernandez, and Martinez-Gill were
charged by indictment with one count of conspiring to possess
cocaine and heroin with intent to distribute in violation of 21
U.S.C. §§ 841(a)(1) and 846. The indictment alleged numerous
supporting overt acts. The indictment contained a second count
charging Guerrero and Maldonado with attempting to possess
cocaine with intent to distribute and aiding and abetting each
other in attempting to possess cocaine with intent to distribute
in violation of 21 U.S.C. §§ 841(a)(1) and 846, and in violation
of 18 U.S.C. § 2. The defendants were tried by jury from March
30 to April 2, 1992, and the jury found all defendants guilty as
charged.
On July 9, 1992, the district court sentenced the defendants
as follows: Guerrero, Hernandez, and Martinez-Gill were
sentenced to life imprisonment, and Maldonado was sentenced to
140 months imprisonment and five years supervised release. A
special assessment was also imposed on each defendant. Each
filed a timely notice of appeal.

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II. DISCUSSION
A. MARTIN R. GUERRERO, JR.
Guerrero raises seven issues on appeal.
1. Bias
Guerrero argues that his trial was unfair because the
presiding judge was prejudiced against him. He filed a post-
trial motion to depose the judge to determine his impartiality,
and the judge denied the motion. The only support Guerrero
provides for his claim is a letter the district judge wrote to a
different prisoner expressing the judge's views as to the
seriousness of drug crimes. We considered and rejected this
identical contention in United States v. Devine, 934 F.2d 1325,
1348 (5th Cir. 1991), cert. denied, 112 S. Ct. 954 (1992).
Adhering to our rule that we must follow indistinguishable
decisions of panels of our court unless they are overruled en
banc or by the United States Supreme Court, Campbell v. Sonat
Offshore Drilling, Inc., 979 F.2d 1115, 1121 n.8 (5th Cir. 1992),
we reject Guerrero's argument without further discussion.
2. Right to Call Witnesses
At Guerrero's request, pretrial services officer Mary Meade
was subpoenaed. Meade was responsible for supervising Guerrero
after he was released on bond in connection with the IRS
proceedings against him. Guerrero's trial counsel made a
proffer, indicating that Meade would have testified that Guerrero
told her that he knew that he was being set up by law enforcement
agents for a drug-related arrest and conviction. This would have

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12
tended to negate the intent elements of the crimes with which
Guerrero was charged. The trial judge, however, refused to allow
Meade to testify. The judge stated that Meade's testimony was
inadmissible under 18 U.S.C. § 3153, which governs the
organization and administration of pretrial services, and that
Meade's testimony also would have been inadmissible hearsay.
Guerrero now contends that the trial judge's ruling violated his
Sixth Amendment right to call witnesses in his defense.
The Sixth Amendment guarantees the right to the accused in
all criminal prosecutions "to have compulsory process for
obtaining witnesses in his favor." U.S. CONST. amend. VI. This
right is violated when the government arbitrarily denies a
criminal defendant the right to call a witness who was physically
and mentally capable of testifying to events that he or she
personally observed and whose testimony would have been relevant
and material to the defense. Washington v. Texas, 388 U.S. 14,
23 (1967). If a criminal defendant is denied compulsory process,
he must at least make some plausible showing that the desired
witness's testimony would have been both material and favorable
to the defense. United States v. Valenzuela-Bernal, 458 U.S.
858, 867 (1982). We have held that a defendant's Sixth Amendment
rights are not violated if he is denied the opportunity to call a
witness whose testimony would be merely cumulative. Roussell v.
Jeane, 842 F.2d 1512, 1516 (5th Cir. 1988); Ross v. Estelle, 694
F.2d 1008, 1010 (5th Cir. 1983); Calley v. Callaway, 519 F.2d

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13
184, 219 (5th Cir. 1975) (en banc), cert. denied, 425 U.S. 911
(1976).
The trial judge concluded that Guerrero could not call Meade
to the stand to testify as to what Guerrero told her in her role
as his pretrial services officer based on 18 U.S.C. § 3153(c)(1),
which provides that "information obtained in the course of
performing pretrial services functions in relation to a
particular accused shall be used only for the purposes of a bail
determination and shall otherwise be confidential." Such
confidential information "is not admissible on the issue of guilt
in a criminal judicial proceeding unless such proceeding is a
prosecution for a crime" related to the accused's pretrial
release or subsequent failure to appear. 18 U.S.C. § 3153(c)(3).
Other circuits have permitted the prosecution to use information
obtained by pretrial services officers for purposes of
impeachment. E.g., United States v. Wilson, 930 F.2d 616, 619
(8th Cir.), cert. denied, 112 S. Ct. 208 (1991). We have not
discovered any case in which a defendant was precluded from
calling a pretrial services officer at trial solely because of
the operation of § 3153(c), although the Eighth Circuit has
affirmed a district court's decision not to allow a defendant to
call his pretrial services officer merely to show the defendant's
good character. United States v. Meeks, 857 F.2d 1201, 1204 (8th
Cir. 1988) (holding that the district court's refusal to allow
the defendant to call his pretrial release investigator was not
an abuse of discretion).

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14
Guerrero's trial counsel unsuccessfully argued to the trial
court that § 3153 is intended to protect the privacy interest of
the criminal defendant and that a defendant should be allowed to
waive that protection. The legislative history of § 3153
indicates that its drafters intended to protect the relationship
between the pretrial services officer and the particular
defendant. H.R. CONF. REP. NO. 97-792, 97th Cong., 2d Sess. 8
(1982), reprinted in 1982 U.S.C.C.A.N. 2393, 2394. The
conference committee explained that "[d]efendants may be
reluctant to cooperate with pretrial services officers unless
assured of the confidentiality of the information they reveal to
the officers." Id. Arguably, this purpose is not served by
applying the inadmissibility rule of § 3153(c)(3) to the criminal
defendant who wishes to call his pretrial services officer as a
witness at trial.
We need not decide whether the district court's exclusion of
Meade's testimony violated Guerrero's Sixth Amendment right to
compulsory process of witnesses because Guerrero has not shown
that Meade's testimony was material to his defense. As detailed
above, see supra part I.A, the evidence of Guerrero's guilt was
very substantial, if not overwhelming. Additionally, Meade's
testimony would have been cumulative to some extent; Guerrero
himself testified that he was aware that Franco and Ferriola were
probably law enforcement agents. Guerrero's Texas state parole
officer also testified at trial that Guerrero had told him of his
suspicion that law enforcement agents were trying to set him up

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15
and "put him behind bars for good." We conclude that "there is
no reasonable doubt about [Guerrero's] guilt whether or not [the]
additional evidence is considered." Valenzuela-Bernal, 458 U.S.
at 874 n.10 (citing United States v. Agurs, 427 U.S. 97, 112-13
(1976)).
3. Use of Paid Informants as Witnesses
Guerrero next argues that the district court erred in
admitting the testimony of paid informants as evidence against
him, relying on our decision in Williamson v. United States, 311
F.2d 441 (5th Cir. 1962), cert. denied, 381 U.S. 950 (1965).
Williamson, however, was overruled by United States v. Cervantes-
Pacheco, 826 F.2d 310 (5th Cir. 1987) (en banc), cert. denied,
484 U.S. 1026 (1988). Cervantes-Pacheco now governs claims such
as Guerrero's. In Cervantes-Pacheco, we held that the government
may use the testimony of paid informants against criminal
defendants as long as certain procedural safeguards are observed.
The government must not use or encourage the use of perjured
testimony; the government must completely and timely disclose the
fee arrangement to the accused in accordance with Brady v.
Maryland, 373 U.S. 83 (1963); the accused must be given an
adequate opportunity to cross-examine the informant and
government agents about any agreement to compensate the witness;
and the trial court should give a special jury instruction
pointing out the suspect credibility of paid witnesses.
Cervantes-Pacheco, 826 F.2d at 315-16.

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16
As the government points out in its brief, all these
procedural safeguards were provided Guerrero in the instant case.
Guerrero has not accused the government of suborning perjury.
Guerrero's counsel took advantage of the ample opportunity
permitted for cross-examination regarding the benefits received
by the government's paid witnesses. The trial court cautioned
the jury in its instructions to examine and weigh the testimony
of paid witnesses with special care. Guerrero's argument is
without merit.
4. Sufficiency of the Evidence
Guerrero contends that the district court should have
granted him a judgment of acquittal with respect to the count
charging him with conspiracy to possess cocaine and heroin with
intent to distribute. The scope of our review of the sufficiency
of the evidence after conviction by a jury is narrow. We must
affirm if a reasonable trier of fact could have found that the
evidence established guilt beyond a reasonable doubt. United
States v. Mergerson, 4 F.3d 337, 341 (5th Cir. 1993). We must
consider the evidence in the light most favorable to the
government, including all reasonable inferences that can be drawn
from the evidence. Pigrum, 922 F.2d at 253. The evidence need
not exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt, and the
jury is free to choose among reasonable constructions of the
evidence. Id. at 254.

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17
In order to prove conspiracy to possess narcotics with
intent to distribute the government must prove that (1) a
conspiracy to possess narcotics with intent to distribute
existed, (2) the defendant knew of the conspiracy, and (3) the
defendant voluntarily participated in the conspiracy. United
States v. Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir.
1988); see United States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir.
1993), cert. denied, 1994 WL 161926 (U.S. May 31, 1994) (No. 93-
8881). No proof of an overt act is required. Hernandez-
Palacios, 838 F.2d at 1348; Cacace v. United States, 590 F.2d
1339, 1340 (5th Cir. 1979); United States v. Palacios, 556 F.2d
1359, 1364 n.9 (5th Cir. 1977). But see United States v.
Shabani, 993 F.2d 1419 (9th Cir. 1993) (holding that the elements
of a drug conspiracy under 21 U.S.C. § 846 do include an overt
act requirement), cert. granted, 114 S. Ct. 1047 (1994). Among
the factors that may be considered by the factfinder in
determining whether a defendant is guilty of committing a drug
conspiracy crime are "concert of action," presence among or
association with drug conspirators, and "[e]vasive and erratic
behavior." Cardenas, 9 F.3d at 1157. Of course, mere presence
or association alone cannot suffice to establish that a person
has voluntarily joined a conspiracy. United States v. Magee, 821
F.2d 234, 239 (5th Cir. 1987).
Ample evidence supports Guerrero's conspiracy conviction, as
the statement of facts, supra part I.A, demonstrates. We cite
only a few of the most potent pieces of evidence. Guerrero's

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18
wife arranged for a "secret" telephone line to be installed in
the Guerreros' neighbors' house, and the phone was used several
times to call a Mexican telephone number linked to Terrazas,
identified by Bernal as a drug trafficker. Guerrero was
implicated in the telephone conversations involving Martinez-
Gill, Maldonado, and agent Averi. Carreon testified that
Guerrero recruited him to run drugs and that Guerrero introduced
Maldonado and Hernandez to him as members of his drug-trafficking
organization, and Saldana testified that Guerrero and Hernandez
supplied him with heroin. Undercover agent Raul Guerrero
witnessed a conversation between Hernandez and Guerrero
implicating Guerrero in Hernandez's drug trafficking activities.
The evidence was sufficient to support Guerrero's conspiracy
conviction.
5. Effective Assistance of Counsel
Guerrero contends that his trial counsel rendered him
ineffective assistance at trial and alleges that the
representation was tainted by a conflict of interest. The
general rule in this circuit is that a claim of inadequate
representation will not be considered on direct appeal unless it
has first been raised before the district court. United States
v. McCaskey, 9 F.3d 368, 380 (5th Cir. 1993), cert. denied, 114
S. Ct. 1565 (1994). Exception to this rule is made only if the
record is sufficiently developed with respect to the merits of
the claim. Id. at 381.

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19
The facts underlying Guerrero's claim are as follows. It
appears that Guerrero's initial counsel was Alan Brown, who filed
Guerrero's waiver of personal appearance at arraignment and plea
of not guilty on September 25, 1991. Guerrero's trial counsel,
Nancy Barohn, also filed pleadings on Guerrero's behalf; for
instance, on October 9, 1991, she filed a motion for disclosure
of exculpatory evidence. On October 24, 1991, the government
filed a sealed motion for an evidentiary hearing regarding a
possible conflict of interest between Brown and Guerrero, based
on Brown's prior representation of Martinez-Gill and on
information that Hernandez had told undercover investigators that
Brown himself offered to provide cocaine to Hernandez. Barohn
filed a sealed response opposing disqualification of Brown and
requesting Guerrero's trial to be severed from that of his
codefendants.
In February 1992, the district judge held a hearing on the
government's motion and refused to disqualify Brown. In March
1992, the case was reassigned to District Judge Walter S. Smith.
Shortly thereafter the government moved for another evidentiary
hearing on the potential need to disqualify Brown, citing a pro
se pleading filed by Guerrero complaining generally of "conflicts
of interest." This time Brown and Barohn responded by seeking to
withdraw as Guerrero's counsel. Barohn supported her request by
contending that she had frequently associated with Brown and that
she had shared confidential information with Brown regarding
Guerrero's case. Barohn also contended that she had acted as

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20
Brown's attorney in opposing the government's original motion to
disqualify Brown and that her attorney-client relationship with
Brown could hinder her representation of Guerrero. Judge Smith
granted Brown's motion to withdraw and denied Barohn's motion to
withdraw, concluding that she had not shown a real conflict of
interest. Barohn renewed her motion to withdraw at the beginning
of the trial, which commenced on March 30, 1992. The court
denied her motion, stating that the motion had been waived
because Barohn was thirty minutes late and missed the
presentation of pretrial matters, and further that the court
considered the motion frivolous.
Barohn represented Guerrero throughout the trial; Brown was
never called as a witness, and Hernandez's alleged statement that
Brown had offered to provide him with cocaine was never
mentioned. After trial, Guerrero asked the court to disqualify
Barohn, and Barohn filed another motion to withdraw as counsel of
record. The court granted Barohn's motion.
We decline to resolve Guerrero's ineffective assistance
claim on direct appeal because the record is insufficiently
developed with respect to the merits of the claim. In
particular, we find ourselves unable to evaluate Guerrero's
conflict of interest claim at this stage in the proceedings. It
is well-established that a defendant claiming ineffective
assistance of counsel must ordinarily demonstrate that counsel's
actions were objectively unreasonable and that the defendant was
prejudiced as a result. Strickland v. Washington, 466 U.S. 668,

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21
690, 693-94 (1984); McCaskey, 9 F.3d at 381. Under Cuyler v.
Sullivan, 446 U.S. 335, 350 (1980), however, we will presume
prejudice if the defendant can show that the representation
suffered from an actual conflict of interest that adversely
affected his lawyer's performance.
The peculiar nature of the conflict asserted by Guerrero
prevents us from analyzing his claim on this record. Ordinarily,
conflicts of interest involve simultaneous representation of
codefendants or successive representation of codefendants and
trial witnesses. Beets v. Collins, 986 F.2d 1478, 1492 (5th
Cir.) (Higginbotham, J., concurring), reh'g en banc granted, 998
F.2d 253 (5th Cir. 1993). The conflict alleged by Guerrero does
not fit these classic patterns. Nor does Guerrero show any
adverse effects stemming from this alleged conflict. The record
makes clear, however, that Barohn believed that her
representation would suffer from a conflict of interest, and on
the first day of trial she stated before the court, "I do want
the record to reflect that I have failed to participate as a
deliberate matter because I have felt definitely constrained from
going forward in view of the conflicting situation I believe
myself in with Mr. Guerrero." Although the government vigorously
contends that we can resolve Guerrero's claim against him on
direct appeal, we conclude that Guerrero should be allowed to
investigate and develop his conflict of interest claim in future
proceedings under 28 U.S.C. § 2255.

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22
6. Entrapment
Guerrero contends that the court below erred in failing to
require the federal agents to act fairly and lawfully in
obtaining evidence in and prosecuting this case, and further that
he was a victim of entrapment. His entrapment defense is plainly
without merit; entrapment is an affirmative defense that requires
the defendant to show that he was induced by a government agent
to commit a criminal act that he was not predisposed to commit.
United States v. Pruneda-Gonzalez, 953 F.2d 190, 197 (5th Cir.),
cert. denied, 112 S. Ct. 2952 (1992). The defendant bears the
threshold burden of establishing (1) that he lacked the
predisposition to commit the crime and (2) that the government's
inducement amounted to more than just an opportunity to commit
the crime. Id. Only if the defendant meets this burden must the
government come forward with proof beyond a reasonable doubt that
the defendant was predisposed to commit the crime. Id. Guerrero
cites no evidence that would shift the burden onto the
government, so his entrapment argument must fail.
We conclude that Guerrero has also failed to show that his
conviction violates due process because of "outrageous conduct"
on the part of the government. This nebulous claim, whose
existence was first suggested by the Supreme Court in United
States v. Russell, 411 U.S. 423 (1973), is exceedingly difficult
to prove. We have indicated that a due process violation will be
found only in the rarest and most outrageous circumstances.
United States v. Arditti, 955 F.2d 331, 343 (5th Cir.), cert.

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23
denied, 113 S. Ct. 597 (1992); United States v. Allibhai, 939
F.2d 244, 248 (5th Cir.), cert. denied, 112 S. Ct. 967 (1991).
Guerrero has not demonstrated that any such circumstances
attended his investigation, arrest, and conviction.
Guerrero's conviction is AFFIRMED.
7. Sentencing
Guerrero raises one challenge to the sentence imposed on him
by the district court. He was sentenced in July 1992, and we
consider his sentence in light of the version of the sentencing
guidelines effective at the time he was sentenced unless this
rule would violate the Ex Post Facto Clause of the Constitution.
United States v. Mills, 9 F.3d 1132, 1136 n.5 (5th Cir. 1993). A
sentencing court's factual findings must be supported by a
preponderance of the evidence, and we review such findings under
the clearly erroneous standard. The sentencing court's
interpretations of the guidelines, being conclusions of law, are
reviewed de novo. McCaskey, 9 F.3d at 372.
The district court adopted the factual findings and
application of the sentencing guidelines recommended in
Guerrero's presentence investigation report ("PSR"). The PSR
recommended increasing Guerrero's base offense level by three
levels under § 2J1.7 of the sentencing guidelines because he had
committed the offenses of conviction while on release from
another federal charge. Guerrero contends that this adjustment
should not have applied to him. The nature of Guerrero's
challenge is unclear; he has simply quoted the objection made by

-- 23 of 47 --

2 All references to the sentencing guidelines in this
opinion are to the version effective November 1, 1991, unless
otherwise indicated.
24
his counsel at the sentencing hearing, and that objection is
singularly opaque. Having reviewed the written objections to the
PSR filed by Guerrero's counsel, we conclude that he argued
essentially that the drug conspiracy for which Guerrero was
convicted spanned a long period of time, much of which was
outside the period Guerrero was on release on bond in conjunction
with the tax-related proceedings against him.
We review the relevant guideline and related statutory
provision. The sentencing guidelines provide:
If an enhancement under 18 U.S.C. § 3147 applies, add 3
levels to the offense level for the offense committed while
on release as if this section were a specific offense
characteristic contained in the offense guideline for the
offense committed while on release.
United States Sentencing Commission, Guidelines Manual, § 2J1.7
(Nov. 1991).2 Section 3147 of Title 18, United States Code,
provides:
A person convicted of an offense while released under
this chapter [i.e., pending trial, sentencing, or appeal]
shall be sentenced, in addition to the sentence prescribed
for the offense toSQ
(1) a term of imprisonment of not more than ten
years if the offense is a felony; or
(2) a term of imprisonment of not more than one
year if the offense is a misdemeanor.
A term of imprisonment imposed under this section shall be
consecutive to any other sentence of imprisonment.
Guerrero does not dispute the accuracy of his PSR, which
states that he was arrested for attempted income tax evasion on
October 6, 1989, and that he began to serve a two-year sentence

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25
for the tax offense after his arrest for the instant drug
offenses. This is apparently the basis for the PSR's conclusion
that sufficient evidence existed to support the finding that
Guerrero committed the drug offenses while on release from other
federal charges. The district court expressly approved the PSR's
recommendation that § 2J1.7 should apply, finding that Guerrero
committed a portion of the drug offenses while on release in the
tax case.
A PSR generally bears sufficient indicia of reliability to
be considered by the trial court as evidence in making the
factual determinations required by the sentencing guidelines.
United States v. Gracia, 983 F.2d 625, 629 (5th Cir. 1993);
United States v. Robins, 978 F.2d 881, 889 (5th Cir. 1992). A
district court may rely on the presentence investigation report's
construction of the evidence to resolve a factual dispute, rather
than relying on the defendant's version of the facts. Robins,
978 F.2d at 889. At sentencing, the government introduced a
certified copy of the order setting Guerrero's conditions of
release in conjunction with the tax proceedings against him,
demonstrating that some of Guerrero's drug-related offense
conduct was committed while Guerrero was on release. The
district court's factual findings and application of § 2J1.7 were
not in error.
Guerrero's sentence is AFFIRMED
B. BERNABE G. MALDONADO
Maldonado raises essentially two issues on appeal.

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26
1. Sufficiency of the Evidence
Maldonado's theory is that the government failed to prove
the existence of a single conspiracy between or among the named
defendants to possess with intent to distribute cocaine and
heroin as charged in count one of the indictment. He contends
that the government's evidence demonstrated only a series of
distinct and independent drug transactions involving Hernandez
only, or at most Hernandez and Guerrero. He also contends that
the evidence related to the investigation involving Martinez-Gill
was insufficient to support a finding that Maldonado committed
all the elements of conspiracy with respect to the attempted
cocaine-for-heroin transaction. Finally, he argues that the
government's evidence regarding the events leading to Maldonado's
arrest did not prove Maldonado's guilt of conspiracy beyond a
reasonable doubt.
Maldonado's argument is without merit. His contention that
the government did not prove that he belonged to the single
overarching conspiracy alleged in the indictment is actually a
claim of material variance between the offense charged in the
indictment and the proof relied upon at trial. See United States
v. Hernandez, 962 F.2d 1152, 1159 (5th Cir. 1992) ("[A] variance
between the offense charged in the indictment and the proof
relied upon at trial constitutes reversible error if it affects
the substantial rights of the defendant."). We have held that
whether evidence establishes a single or multiple conspiracies is
a fact question for the jury to decide. United States v.

-- 26 of 47 --

27
Ellender, 947 F.2d 748, 759 (5th Cir. 1991). The district court
followed the practice, which we have approved, see Hernandez, 962
F.2d at 1159, of using a special jury instruction to remind the
jury that the government had to prove the defendants were members
of the conspiracy charged in the indictment. Whether the
evidence shows the existence of one or multiple conspiracies
depends on such factors as (1) the existence of a common goal or
purpose; (2) the nature of the scheme; and (3) overlapping of
participants in the various dealings. Id. In the instant case,
the evidence showed that Guerrero was a pivotal figure in the
drug trafficking activities proved by the government and had
extensive dealings with the various participants (with the
exception of Martinez-Gill). The existence of such a pivotal
figure may satisfy the requirement of overlapping participants in
the various dealings. Id. We agree with the government that the
activities of the conspirators demonstrated that they shared a
common purposeSQcooperation for the purpose of turning a profit
from their illegal drug traffickingSQand that the transactions
proved by the government all fit the nature of the alleged
scheme, to distribute illegal drugs.
We AFFIRM Maldonado's conviction.
2. Sentencing
Maldonado contends that the district court should have
reduced his total offense level by four levels because the
evidence showed that he was a minimal participant in the crimes
of conviction. Under U.S.S.G. § 3B1.2, offenders who are

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28
substantially less culpable than other participants in the
offense may receive reductions of two, three, or four levels.
The decision whether to apply § 3B1.2 is a determination that is
heavily dependent upon the facts of the particular case.
U.S.S.G. § 3B1.2 comment. (backg'd). The district court's denial
of a reduction under § 3B1.2 is therefore entitled to great
deference and should not be disturbed except for clear error.
Devine, 934 F.2d at 1340. A finding of fact is clearly erroneous
when, although there is enough evidence to support it, the
reviewing court is left with a firm and definite conviction that
a mistake has been committed. United States v. United States
Gypsum Co., 333 U.S. 364, 395 (1948); Henderson v. Belknap (In re
Henderson), 18 F.3d 1305, 1307 (5th Cir. 1994).
The government contends that the evidence at trial clearly
showed Maldonado to be a more important figure in the conspiracy
than a mere courier. The evidence concerning the negotiations
between Martinez-Gill and agent Averi indicated that Maldonado
enjoyed some authority in arranging the details of the cocaine-
for-heroin transaction. Maldonado was intimately involved with
the conspiracy's attempt to buy cocaine from undercover agents
Franco and Ferriola. Carreon testified that he was introduced to
Maldonado by Guerrero as a member of Guerrero's drug-trafficking
organization. We have noted that a district court should not
award a minor participation adjustment simply because a defendant
does less than other participants; the defendant must have done
so little as to be "peripheral to the advancement of the illicit

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29
activity." United States v. Thomas, 932 F.2d 1085, 1092 (5th
Cir.), cert. denied, 112 S. Ct. 428 (1991). The district court's
conclusion that Maldonado was not entitled to a reduction under §
3B1.2 was not clearly erroneous.
Maldonado's sentence is AFFIRMED.
C. CARLOS BARRERA HERNANDEZ
Hernandez raises several challenges to his conviction and
sentence.
1. Double Jeopardy, Collateral Estoppel
and Due Process
Hernandez makes three arguments based on the following
facts. Hernandez filed a pre-trial motion to dismiss the
indictment on double jeopardy grounds, which the district court
denied. The government concedes that Hernandez was charged in
July 1991 with distributing over 100 grams of heroin on April 4,
1990, and that Hernandez was convicted of that charge prior to
the trial in the instant case. The indictment under which
Hernandez and his codefendants were tried in the instant case
listed Hernandez's distribution of heroin on April 4, 1990, as an
overt act in furtherance of the conspiracy, and the government
proved Hernandez's distribution of heroin on that date at trial.
Hernandez argues that the instant prosecution violated his right
to be free from double jeopardy and that the district court
therefore erred in denying his motion to dismiss the indictment.
We review the district court's denial of a motion to dismiss an
indictment on the ground of double jeopardy de novo, accepting
the underlying factual findings of the district court unless

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30
clearly erroneous. United States v. DeShaw, 974 F.2d 667, 669
(5th Cir. 1992).
Hernandez premises his double jeopardy claim on Grady v.
Corbin, 495 U.S. 508 (1990), and its progeny such as United
States v. Rodriguez, 948 F.2d 914 (5th Cir. 1991), and Ladner v.
Smith, 941 F.2d 356 (5th Cir. 1991). The Grady line of cases,
however, has been overruled by United States v. Dixon, 113 S. Ct.
2849 (1993). Wright v. Whitley, 11 F.3d 542, 545-46 (5th Cir.
1994). After Dixon, double jeopardy analysis once again focuses
on the "offense" for which the defendant is being prosecuted and
punished, rather than on the conduct subject to the criminal
prohibition. United States v. Cruce, 21 F.3d 70, 73 n.3 (5th
Cir. 1994). Accordingly, the test established by the Court in
Blockburger v. United States, 284 U.S. 299 (1932), is the only
hurdle the prosecution must overcome to avoid a double jeopardy
bar. United States v. Singleton, 16 F.3d 1419, 1442 (5th Cir.
1994). When considering whether multiple punishments constitute
impermissible "multiple punishments for the same offense," we
compare the criminal statutes at issue and inquire whether each
provision requires proof of an additional fact that the other
does not. Id. (citing Blockburger, 284 U.S. at 304).
Convictions for both conspiracy and the substantive offense
that is the object of the conspiracy generally do not constitute
double jeopardy, even when prosecuted under separate indictments.
United States v. Marden, 872 F.2d 123, 125 (5th Cir. 1989). In
the instant case, the count charging the offense of conspiracy

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31
required the government to prove that Hernandez voluntarily
joined a conspiracy, which is not an element of the offense of
heroin distribution. At the same time, the offense of heroin
distribution requires the government to prove that the defendant
distributed heroin, see 21 U.S.C. § 841(a)(1) ("[I]t shall be
unlawful for any person knowingly or intentionally . . . to . . .
distribute . . . a controlled substance."), which is not an
element of the offense of conspiracy. The government may
therefore prosecute both crimes without running afoul of the
Double Jeopardy Clause. See United States v. Garcia, 589 F.2d
249, 251 (5th Cir.) (concluding that the government may prosecute
a defendant for both conspiracy to possess marijuana with intent
to distribute and possession of marijuana with intent to
distribute), cert. denied, 442 U.S. 909 (1979). Hernandez's
double jeopardy claim is without merit.
Hernandez next raises a collateral estoppel argument based
on the celebrated case of Ashe v. Swenson, 397 U.S. 436 (1970).
In Ashe, the defendant was charged with robbing a participant in
a poker game; the Court held that the prosecution was barred by
the Double Jeopardy Clause because the defendant had previously
been acquitted of robbing a different participant in the same
poker game and because the acquittal was necessarily based on the
theory that the defendant was not one of the robbers. Id. at
445. Ashe is not applicable to Hernandez's case. As we observed
in Rodriguez, the Ashe inquiry is whether the second prosecution
is collaterally estopped because it requires relitigation of a

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32
factual issue that was necessarily resolved in the first
prosecution. Rodriguez, 948 F.2d at 917; see also Wright, 11
F.3d at 546 ("[T]he Ashe holding only bars relitigation of a
previously rejected factual allegation where that fact is an
ultimate issue in the subsequent case."). As Justice Scalia
stated in Dixon, the collateral estoppel effect of the Double
Jeopardy Clause "may bar a later prosecution for a separate
offense where the Government has lost an earlier prosecution
involving the same facts," but the government may still bring
separate prosecutions and win them both. 113 S. Ct. at 2860.
Finally, Hernandez contends that the successive prosecutions
cited above violate his substantive due process right to
fundamental fairness and freedom from arbitrary and unreasonable
government action. The contention is without merit. The cases
cited by Hernandez do not support an extension of substantive due
process doctrine to these facts. The protections of substantive
due process have for the most part been accorded to matters
related to marriage, family, procreation, and bodily integrity.
Albright v. Oliver, 114 S. Ct. 807, 812 (1994) (plurality
opinion). The Supreme Court has recently "decline[d] to use the
Due Process Clause as a device for extending the double jeopardy
protection to cases where it otherwise would not extend."
Dowling v. United States, 493 U.S. 342, 354 (1990). We likewise
decline the invitation.

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33
2. Sufficiency of the Evidence

-- 33 of 47 --

34
Hernandez contends that there was insufficient proof that he
had any connection to any of his co-defendants and their conduct.
He adds that the government proved only that he dealt with law
enforcement agents, and that "[i]t is axiomatic that a criminal
cannot conspire with undercover law enforcement officials."
Mergerson, 4 F.3d at 346 n.9.
We reject Hernandez's claim. The evidence showed that
Hernandez was introduced to Carreon by Guerrero as a member of
Guerrero's drug trafficking organization. The evidence also
showed that Hernandez consulted with Guerrero during the heroin
negotiations that took place at the Oasis on April 3, 1990.
Saldana testified that he received heroin from Hernandez, who in
turn had received it from Guerrero. We conclude that the jury
could have relied upon these pieces of evidence, together with
Hernandez's presence at the Oasis and close association with his
codefendants, to find Hernandez guilty as charged beyond a
reasonable doubt. See Cardenas, 9 F.3d at 1157 ("[P]resence or
association is a factor that, along with other evidence, may be
relied upon to find conspiratorial activity by the defendant.").
3. Cumulative Errors
Hernandez makes a last-ditch effort to obtain reversal of
his conviction based on the cumulative effect of "numerous"
errors that occurred at his trial. We have noted that a party
who offers "only a bare listing of alleged grounds for a new
trial, without citing supporting authorities or references to the
record," is considered to have abandoned those claims on appeal.

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35
United States v. Ballard, 779 F.2d 287, 295 (5th Cir.), cert.
denied, 475 U.S. 1109 (1986). Hernandez does not make even this
inadequate showing.
Hernandez's conviction is AFFIRMED.
4. Sentencing
Hernandez raises a number of challenges to the life sentence
imposed on him by the district court. We need discuss only his
claim that he was erroneously sentenced as a career offender
under U.S.S.G. § 4B1.1.
The career offender guideline was promulgated to implement
28 U.S.C. § 994(h), which provides:
The [Sentencing] Commission shall assure that the
guidelines specify a sentence to a term of imprisonment at
or near the maximum term authorized for categories of
defendants in which the defendant is eighteen years old or
older andSQ
(1) has been convicted of a felony that isSQ
(A) a crime of violence; or
(B) an offense described in [any of 21 U.S.C. §§
841, 952(a), 955, 959, or 955a)]; and
(2) has previously been convicted of two or more prior
felonies, each of which isSQ
(A) a crime of violence; or
(B) an offense described in [any of 21 U.S.C. §§
841, 952(a), 955, 959, or 955a].
Section 4B1.1 of the guidelines, however, does not precisely
track the language of 28 U.S.C. § 994(h) in defining who is a
"career offender" for purposes of enhanced punishment. Section
4B1.1 provides:
A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time of the instant offense,
(2) the instant offense of conviction is a felony that is
either a crime of violence or a controlled substance
offense, and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.

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36
"Controlled substance offense" is defined in U.S.S.G. § 4B1.2 n.1
to include the offenses of aiding and abetting, conspiring, and
attempting to commit such offenses. Under U.S.S.G. § 4B1.1, a
defendant who meets the definition of "career offender" as set
forth in that section must be assigned a minimum offense level
based on the statutory maximum sentence for the instant offense
(e.g., if the statutory maximum sentence is life imprisonment,
the defendant's minimum offense level is thirty-seven).
Additionally, the defendant's criminal history category is
automatically upgraded to Category VI.
The problem pointed out by Hernandez is that U.S.S.G. §
4B1.1 sweeps more broadly than 28 U.S.C. § 994(h). The statutory
definition of defendants that should be subject to enhanced
punishment includes defendants convicted under 21 U.S.C. §
841(a), which punishes the substantive offenses of manufacturing,
distributing, dispensing, or possessing with intent to
manufacture, distribute, or dispense a controlled substance. The
statutory definition does not include defendants (such as
Hernandez) convicted under 21 U.S.C. § 846 for conspiring to
commit an offense listed in 21 U.S.C. § 841(a). Thus, U.S.S.G. §
4B1.1 prescribes a more serious penalty for Hernandez than he
would otherwise receive under the guidelines, even though he does
not come within the statutory definition of career offenders that
the Sentencing Commission is directed to treat most harshly by 28
U.S.C. § 994(h).

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37
Another panel of our court recently considered the identical
argument and, following the lead of the Court of Appeals for the
District of Columbia Circuit in United States v. Price, 990 F.2d
1367 (D.C. Cir. 1993), held that § 4B1.1 is invalid to the extent
that its scope reaches beyond the crimes actually listed in 28
U.S.C. § 994(h). United States v. Bellazerius, 1994 WL 266747
(5th Cir. June 17, 1994) (Nos. 93-3157 and 93-3168). Under
Bellazerius, § 4B1.1 should not have applied to Hernandez. We
therefore VACATE Hernandez's sentence and REMAND his case to the
district court for resentencing.
D. ROBERT MARTINEZ-GILL
Martinez-Gill raises several challenges to his conviction
and sentence.
1. Sufficiency of the Evidence
Martinez-Gill contends that the evidence adduced against him
at trial was insufficient to support his conviction for
conspiracy to possess cocaine and heroin with intent to
distribute. He argues that the only evidence implicating him in
illegal activities actually exculpated him of the crime of
conspiracy because no agreement to possess cocaine and heroin was
ever reached with him as a party; like Maldonado, he complains
that he was prejudiced by a material variance between the offense
charged in the indictment and the proof relied upon by the
government at trial. We reject his argument just as we have
rejected Maldonado's, see supra part II.B.1.

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38
Whether evidence establishes a single or multiple
conspiracies is a fact question for the jury to decide.
Ellender, 947 F.2d at 759. We have already observed that the
district court gave the jury a special instruction to minimize
the danger that the defendants would be convicted for any
conspiracy other than the one alleged in the indictment. We must
affirm a jury's finding that the government proved a single
conspiracy unless the evidence and all reasonable inferences,
examined in the light most favorable to the government, would
preclude a rational jury from finding a single conspiracy beyond
a reasonable doubt. United States v. DeVarona, 872 F.2d 114, 118
(5th Cir. 1989).
Several pieces of evidence tended to prove Martinez-Gill's
membership in the single overarching conspiracy alleged by the
government. Martinez-Gill told agent Averi on more than one
occasion that "MG" had approved of his arranging a trade of
heroin for cocaine, and he also described his cohorts as being
his superiors "at the ice house." These telephone conversations
connected Martinez-Gill to the drug trafficking conspiracy that
operated out of the Oasis Ice Station in 1989 and 1990. Even
more probative of Martinez-Gill's guilt of the conspiracy charged
was the evidence of Martinez-Gill's close contact with Maldonado,
an integral member of the conspiracy and close associate of
Guerrero. Martinez-Gill even used the telephone in Maldonado's
apartment to contact agent Averi in New York, and Maldonado
himself told Averi that he (Maldonado) could personally bring the

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39
heroin to New York and that Guerrero was leaving the details of
the transaction to Maldonado to work out. Viewed in the light
most favorable to the government, this evidence is sufficient to
support the guilty verdict returned against Martinez-Gill for the
conspiracy charged in the indictment.
The factors we have identified in cases such as Hernandez,
962 F.2d at 1159, as relevant to the determination of whether the
government has proved a single or multiple conspiracies do not
offer Martinez-Gill solace. The first factor, whether a common
goal has been shown, is easily satisfied by showing that the
alleged coconspirators shared the same general goal, such as
passing a large number of counterfeit bills over a period of
time. United States v. Richerson, 833 F.2d 1147, 1153 (5th Cir.
1987) (citing United States v. Lloyd, 425 F.2d 711, 712 (5th Cir.
1970)); see id. (noting that this court has recognized such broad
"common goals" as to make this factor almost "a mere matter of
semantics"). The defendants' cooperation for the purpose of
making money from drug trafficking shows their common purpose.
Likewise, the nature of the alleged scheme was simply the
distribution of illegal drugs for profit, with Guerrero serving
as a key supplier for his couriers and the Oasis Ice Station
serving as a central headquarters. Having Martinez-Gill obtain a
New York source of large amounts of cocaine fits the nature of
the scheme alleged by the government. The last factor, the
overlapping of participants, id. at 1154, is satisfied in this
case by Martinez-Gill's self-proclaimed connections with

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40
Guerrero, the pivotal figure in this conspiracy, and Maldonado,
one of his closest associates.
Martinez-Gill's contention that a material variance
prejudiced his substantial rights is without merit.
2. Double Jeopardy and Collateral Estoppel
Martinez-Gill next contends that the district court erred in
denying his pretrial motion to dismiss the indictment on double
jeopardy grounds. As we stated in part II.C.1, supra, we review
the district court's denial of the motion to dismiss on double
jeopardy grounds de novo, accepting the district court's factual
findings unless clearly erroneous. DeShaw, 974 F.2d at 669.
Martinez-Gill was arrested on February 8, 1990, for selling
heroin to agent Wade. Over a year before the indictment for
conspiracy in the instant case was filed, Martinez-Gill was
indicted for distributing heroin on February 8, 1990, in
violation of 21 U.S.C. § 841(a)(1). Martinez-Gill ultimately
pleaded guilty to the distribution charge; he claims that he did
so because the government planned to introduce tapes of his
conversations with agent Averi into evidence if the case went to
trial. Like Hernandez, Martinez-Gill relies on Grady v. Corbin,
495 U.S. 508 (1990), overruled by United States v. Dixon, 113 S.
Ct. 2849 (1993).
Martinez-Gill's challenge, like that of Hernandez, is
without merit. A defendant may ordinarily be convicted for both
conspiracy and the substantive offense that is the object of the
conspiracy, even if the convictions are obtained under separate

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41
indictments. Marden, 872 F.2d at 125. Martinez-Gill's case
comes within the general rule for the same reasons that
Hernandez's case does, see supra part II.C.1. Nor is this case
appropriate for application of the collateral estoppel doctrine
of Ashe v. Swenson because it does not present "a later
prosecution for a separate offense where the Government has lost
an earlier prosecution involving the same facts." Dixon, 113 S.
Ct. at 2860 (emphasis omitted).
Martinez-Gill's double jeopardy and collateral estoppel
claims are without merit.
3. Breach of Plea Agreement
Martinez-Gill next contends that the government breached a
term of his plea agreement in his earlier conviction for heroin
distribution by introducing into evidence the tapes of Martinez-
Gill's telephone conversations with agent Averi. He also argues
that the district court should have held an evidentiary hearing
regarding this claim. We note that Martinez-Gill's plea
agreement from the heroin distribution prosecution contains no
promise by the government not to use the taped conversations
against Martinez-Gill in future prosecutions. The government
also points out that Martinez-Gill affirmed at his plea colloquy
in the earlier prosecution that no special promises outside the
plea agreement had been made by the government. Finally, it does
not appear that Martinez-Gill objected to admission of the taped
conversations during the instant trial or ever brought his
concern to the attention of the district court.

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42
Ordinarily a defendant may not refute his own testimony
given under oath when pleading guilty. United States v. Fuller,
769 F.2d 1095, 1099 (5th Cir. 1985). We have indicated that a
defendant who wishes to undermine his testimony at a plea
colloquy is entitled to a hearing only if he offers specific
factual allegations supported by the affidavit of a reliable
third person. Id. Martinez-Gill has not met this test; indeed,
it does not appear that he ever even requested a hearing from the
district court. Additionally, Martinez-Gill's failure to object
to the admission of the tapes into evidence waives his right to
complain on appeal. United States v. Williams, 998 F.2d 258, 262
(5th Cir. 1993), cert. denied, 114 S. Ct. 940 (1994); see also
FED. R. EVID. 103 (providing that a timely objection to a ruling
admitting evidence is a prerequisite to complaining of any error
on appeal but permitting courts to take notice of plain error).
4. Effective Assistance of Counsel
Martinez-Gill challenges the effectiveness of his trial
counsel based on counsel's failure to object to the admission of
the taped conversations between Martinez-Gill and agent Averi and
his failure to pursue an interlocutory appeal from the denial of
Martinez-Gill's motion to dismiss based on double jeopardy. He
also complains of his counsel's failure in the earlier
prosecution for distribution of heroin to procure a written
assurance from the government that the tapes would not be used
against Martinez-Gill in any future prosecutions.

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We do not reach the allegation of ineffective assistance of
counsel with respect to counsel's actions during Martinez-Gill's
prior prosecution for heroin distribution because the record from
that proceeding is not before us. Thus, the record is
insufficiently developed with respect to the merits of Martinez-
Gill's claim to permit review of that claim on direct appeal.
See McCaskey, 9 F.3d at 380-81. Likewise, the record is not
sufficiently developed to allow us to evaluate Martinez-Gill's
claim based on counsel's failure to object to admission of the
taped conversations. Martinez-Gill is free to develop his claims
in future proceedings under the habeas corpus statute.
5. Severance
Martinez-Gill contends that the district court committed
reversible error in denying his pretrial motion for severance.
We review the denial of a motion for severance for abuse of
discretion. United States v. Arzola-Amaya, 867 F.2d 1504, 1516
(5th Cir.), cert. denied, 493 U.S. 933 (1989). To demonstrate an
abuse of discretion, the defendant must bear the heavy burden of
showing that he suffered specific and compelling prejudice
against which the district court was unable to afford protection
and that this prejudice resulted in an unfair trial. United
States v. Dillman, 15 F.3d 384, 393-94 (5th Cir. 1994); see also
Zafiro v. United States, 113 S. Ct. 933, 938 (1993) ("[A]
district court should grant a severance under Rule [of Criminal
Procedure] 14 only if there is a serious risk that a joint trial
would compromise a specific trial right of one of the defendants,

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or prevent the jury from making a reliable judgment about guilt
or innocence.").
Martinez-Gill claims that the denial of his motion for
severance effectively denied him his right against self-
incrimination. He attempts to support his claim by pointing out
that Guerrero had previously been convicted of murder and that
Hernandez had previously been convicted of attempted murder. In
his view, the joint trial somehow compelled Martinez-Gill not
only to testify but also to testify to facts favorable to his
codefendants and unfavorable to his own defense. He insists at
the same time, however, that all his testimony was true and
correct. He does not explain why he did not simply refuse to
testify; he does not cite any record evidence for the proposition
that he testified out of fear, nor does it appear that this was
ever the basis for his motion for severance before the district
court. We conclude that Martinez-Gill has not shown any abuse of
discretion by the district court.
Martinez-Gill's conviction is AFFIRMED.
6. Sentencing
We next consider Martinez-Gill's contentions that the
district court erred in imposing a life sentence on him.
According to Martinez-Gill's PSR, he would ordinarily be
sentenced under the guidelines according to a total offense level
of thirty and a criminal history category of IV, yielding a
sentence range of 135 to 168 months. However, the government
filed a sentencing enhancement information before trial notifying

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Martinez-Gill that the government intended to seek enhanced
punishment pursuant to 21 U.S.C. § 841(b)(1)(A). Under that
provision, a life sentence is mandatory if it is proved (1) that
the offense of conviction involved one kilogram or more of a
substance containing heroin or five kilograms or more of a
substance involving cocaine, and (2) that the defendant already
has two final convictions for felony drug offenses. 21 U.S.C. §§
841(b)(1)(A)(i), (ii). Under 21 U.S.C. § 846, this penalty also
applies to defendants convicted of conspiracy to commit a crime
listed in § 841(a), such as conspiracy to commit possession of a
controlled substance with intent to distribute. Martinez-Gill
does not dispute that he had two prior felony drug convictions at
the time of the instant conviction; he contends that the
government failed to prove that the requisite amounts of heroin
or cocaine were properly attributable to him for sentencing
purposes.
In order to sentence Martinez-Gill to a mandatory life
sentence of imprisonment under 21 U.S.C. §§ 841(b)(1)(A) and 846,
the district court had to find by a preponderance of the evidence
that Martinez-Gill actually possessed or conspired with his
coconspirators to possess over a kilogram of cocaine or over five
kilograms of cocaine during the offense of conviction. United
States v. Mergerson, 4 F.3d 337, 346 (5th Cir. 1993) (applying
the foregoing test rather than any provision of the sentencing
guidelines). It is uncontested that Martinez-Gill was proved to
have possessed only about nine grams of heroin himself, so if the

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sentence is to be upheld the evidence must support a finding that
Martinez-Gill conspired to possess the threshold amounts of
heroin or cocaine. The government identifies two possible
methods of attributing the necessary amount of drugs to Martinez-
Gill. First, the government relies on the taped telephone
conversations involving Martinez-Gill, Maldonado, and agent
Averi, contending that they indicate an agreement between
Martinez-Gill, Maldonado, and Guerrero to possess five to eight
kilograms of heroin, to be swapped for cocaine. Second, the
government relies on the total amounts of cocaine and heroin
distributed and possessed by all members of the conspiracy,
arguing that all such amounts should be attributed to Martinez-
Gill, even if possessed or distributed after Martinez-Gill's
arrest.
The government's first argument, which is based on the
amount of drugs Martinez-Gill, Maldonado, and agent Averi
negotiated in their telephone conversation, is hampered by a
statement in Martinez-Gill's PSR that the five "blocks" of heroin
under discussion referred to five ounces rather than five
kilograms. This defect, however, is not fatal. Agent Averi
testified at trial at length about his negotiations with
Martinez-Gill and Maldonado, and he clearly stated that the
"blocks" of drugs being discussed were kilograms, not ounces.
Although a criminal cannot conspire with law enforcement
officials, id. at 346 n.9, Martinez-Gill negotiated the swap of
five kilograms of heroin not only with DEA agent Averi but also

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with coconspirator Maldonado, who agreed to transport the heroin
to New York. Additionally, Averi promised to give Maldonado two
and a half blocks of cocaine for each block of heroin that
Maldonado brought to New York, so the conspirators also agreed to
possess substantially more than five kilograms of cocaine once
the transaction was completed. In short, this is not a case like
Mergerson, in which the government introduced insufficient
evidence to support a finding that Mergerson had conspired with
anyone (except government agents) to possess sufficient drugs to
trigger § 841(b)(1)(A). Id. at 346 & n.9.
We conclude that the district judge, who presided over both
Martinez-Gill's trial and his sentencing, did not clearly err in
determining that the mandatory life sentence of § 841(b)(1)(A)
should apply to Martinez-Gill.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the convictions and
sentences of Guerrero, Maldonado, and Martinez-Gill. We AFFIRM
Hernandez's conviction but VACATE his sentence and REMAND for
resentencing.

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