764 F.

2d 1514
18 Fed. R. Evid. Serv. 1161

UNITED STATES of America, Plaintiff-Appellee,

v.
Scott RICHARDSON, Rafael Bruno Crespo-Diaz, Reinaldo
Crespo-Diaz, Benjamin Wayne Reese, Defendants-Appellants.
No. 84-3572.

United States Court of Appeals,

Eleventh Circuit.
July 12, 1985.

Stuart I. Hyman, Orlando, Fla., for Richardson.

Raymond L. Goodman, Orlando, Fla., for Rafael Bruno Crespo-Diaz.
Robert A. Leventhal, Orlando, Fla., for Reinaldo Crespo-Diaz.
Jay Paul Cohen, Orlando, Fla., for Reese.
Paul J. Moriarty, Asst. U.S. Atty., Orlando, Fla., for U.S.
Appeals from the United States District Court for the Middle District of
Florida.
Before FAY and JOHNSON, Circuit Judges, and DYER, Senior Circuit
Judge.
JOHNSON, Circuit Judge:

The four appellants in this case were convicted of conspiracy to possess cocaine
with intent to distribute and possession of cocaine with intent to distribute.
These charges grew out of an undercover investigation conducted by the Drug
Enforcement Agency with the help of a confidential informer.

On March 12, 1984, the informer met with appellant Scott Richardson and
received a small amount of cocaine for purposes of distribution. Afterwards,

the informer approached some agents of the DEA and told them about
Richardson, suggesting that the contact might lead to larger sales of drugs. The
agents promised to pay the informer's expense money and possibly a larger sum
after suspects were convicted but they never mentioned any amounts; the
informer had never received more than $1,500 for his cooperation in prior
cases.
3

The informer met again with Richardson later in March and delivered payment
for the cocaine previously given to him. The DEA taped their conversation.
The informer contacted Richardson again in April and offered to "do a pound"
for him. Richardson, while expressing some reservations, said that he would
"check around." He then called an acquaintance, Garry Craddock, to ask if he
could obtain one pound of cocaine. Craddock in turn contacted Benjamin
Reese, a person with whom he had sold cocaine in the past, for the same
purpose. Eventually Craddock and Reese met with several other conspirators,
including Rafael and Reinaldo Crespo-Diaz, where they all agreed to sell a
pound of cocaine for $17,000 of the $22,000 that Richardson would demand
from the buyers. During this same time Richardson carried on a series of
telephone negotiations with the informer, each taped by the DEA, regarding
possible methods of exchanging the drugs and the purchase money while
keeping the drugs and money in separate locations at all times. Craddock also
negotiated regarding the terms of the exchange.

On April 25, 1983, Richardson and Craddock met the informer and DEA Agent
Kevin Behan at a convenience store. Behan remained at the store with the
money while the informer went along with Richardson and Craddock to the
residence of Reinaldo Crespo-Diaz in order to inspect the cocaine. When they
arrived at the house they found Benjamin Reese, Reinaldo Crespo-Diaz, Rafael
Crespo-Diaz, and Nancy Machado-Leon inside. Reese directed Rafael CrespoDiaz to go get the cocaine for inspection and he did so. As the informer
weighed the cocaine, he discussed price with Richardson. Once satisfied of the
weight of the cocaine, the informer stated that he was ready to go back to the
convenience store and retrieve the payment from Behan, who was waiting
there. Richardson sent Reese to go with the informer.

Behan arrested Reese at the convenience store while agents surrounded

Reinaldo's house. Once Behan had arrived at the house he knocked on the door,
identified himself and asked that the occupants open the door. From the rear
lawn of the house another agent could see through a window that Rafael and
Reinaldo Crespo-Diaz were running down a hallway to enter a bathroom.
Seconds later he heard a toilet flush. At this point Behan kicked in the front
door of the house and the officers entered and identified themselves. Reinaldo

Crespo-Diaz signed a DEA consent-to-search form after an agent explained it

to him in Spanish.
6

While a search of the house was in progress, Richardson stood handcuffed on

the front lawn and a search of his person produced two slips of paper
containing the phone numbers of Craddock and an undercover DEA office.
After Behan had given him his Miranda warnings, he explained the extent of
the government's knowledge about Richardson's role in the conspiracy and
stated that his car was subject to forfeiture. At several points, Richardson
responded with a "yes." Behan concluded by suggesting that he talk to a lawyer
about the possibility of cooperating with the government because if he did so he
might "make it easy" on himself and possibly get probation.

The grand jury indicted all six persons involved in the transaction. Craddock
pleaded guilty and became a cooperating witness for the government. Before
trial, all of the defendants requested suppression hearings but the trial court
refused to hold any. After trial the jury acquitted Machado-Leon and convicted
all the other defendants on both counts. The judge sentenced Richardson and
Reese to two concurrent ten-year sentences; Rafael Crespo-Diaz and Reinaldo
Crespo-Diaz each received two consecutive ten-year sentences and the judge
recommended that they be referred to the Immigration and Naturalization
Service for possible deportation following completion of their sentences.

I. Governmental Overreaching
8

Richardson and Reese claim that the fundamental fairness guarantee of the due
process clause bars their convictions because the government used a highly
improper relationship with the informer to produce evidence against them.1
They allege that both the choice of investigative targets and the promise of
payment after testimony at trial contributed to this impropriety.

The Constitution does place limits on the government's use of paid confidential
informants. United States v. Garcia, 528 F.2d 580, 586 (5th Cir.), cert. denied,
426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1190 (1976); Williamson v. United
States, 311 F.2d 441 (5th Cir.1962). Particularly when large fees are given to
informers, such arrangements must be treated with suspicion. United States v.
Gray, 626 F.2d 494, 499 (5th Cir.), cert. denied, 449 U.S. 1038, 101 S.Ct. 616,
66 L.Ed.2d 500 (1980). Yet the government may, consistent with those
constitutional limitations, pay for the services of a confidential informant, even
on a case-by-case basis. Financial arrangements with informants normally will
not violate the law if the government agents themselves do not select the person
against whom the informant will direct his or her efforts and do not make the

informant's payment contingent upon the conviction of a particular person.

United States v. Walker, 720 F.2d 1527, 1539 (11th Cir.1983), cert. denied, --U.S. ----, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984).
10

The defendants allege that the government transgressed those limitations in this
case. First, they claim that the agents selected them as targets by approving the
informer's choice of investigative targets before they discussed the fee for the
informer's services. The defendants find this improper because the agents did,
in a sense, select who the informer would concentrate upon before making the
financial arrangements. Yet the agents' decision is better described as an
approval than as a selection. The informer brought up Richardson's name and
the agents only gave him permission to pursue the matter. Such forms of
approval are nearly inevitable in dealings with a paid informant. Because the
agents did not actively select the target of investigation, this informant was
given no improper incentives to obtain a conviction against a particular person.

11

Neither is it critical that the informer anticipated further payment after

completion of his testimony. Under United States v. Gray, 626 F.2d 494 (5th
Cir.), cert. denied, 449 U.S. 1038, 101 S.Ct. 616, 66 L.Ed.2d 500 (1980), the
testimony of an informant paid by contingent fee will not be rejected unless
there is evidence that he or she was promised payment contingent upon the
conviction of a particular person. In this case there was no evidence of a
promise to pay the informant contingent upon the conviction of Richardson or
Reese. The informant testified that he hoped to receive as much as 700 dollars
but did not know the amount he might actually receive or, for that matter,
whether he would be paid anything at all. Cf. United States v. Valle-Ferrer, 739
F.2d 545 (11th Cir.1984) (informant became aware several days before trial of
his eligibility for award of $1,000 per convicted defendant); United States v.
Masri, 547 F.2d 932, 937 (5th Cir.), cert. denied, 431 U.S. 932, 97 S.Ct. 2640,
53 L.Ed.2d 249 (1977) (informant received unexpected payment after trial).

12

Finally, Richardson and Reese contend that, even if these identical contingent
fee arrangements might be acceptable under some circumstances, the unsavory
character of this particular informer should have prevented the government
from giving him any financial incentive to fabricate incriminating testimony.
They each presented evidence of prior drug use and dishonesty on the part of
the informant. Nevertheless, the government cannot be expected to depend
exclusively upon the virtuous in enforcing the law. So long as a reasonable jury
could believe an informant's testimony after hearing relevant impeachment
evidence regarding his or her reliability, the government may rely on such
testimony. See United States v. Valle-Ferrer, 739 F.2d 545 (11th Cir.1984).
The relationship between the government and the paid informant does not

invalidate the convictions in this case.

II. Evidence of Crimes Outside Scope of Indictment
13
14

Appellants Reese and Richardson objected to the introduction of two pieces of

evidence relating to crimes not included within the indictment. The first was
testimony by Garry Craddock, the co-conspirator who testified for the
government, that he and Reese had purchased and distributed cocaine together
several times in the past. Reese objected to the testimony and asked for a
mistrial on that ground. The second piece of evidence was a taped conversation
between Richardson and the informer discussing their small initial drug
transaction. Richardson objected to the admission of this evidence of a past
crime or wrong and Reese moved to sever his trial from Richardson's on the
ground that the evidence against Richardson had prejudiced his defense.
A. Craddock Testimony

15

Rule 404(b) of the Federal Rules of Evidence normally governs the admission
of evidence of past crimes and wrongs. While it is possible that Craddock's
testimony could qualify for admission under Rule 404(b), it actually falls
outside the scope of the rule. Craddock testified that he contacted Reese after
being asked to obtain a pound of cocaine because "I dealt through him before,
buying cocaine." These prior wrongs were not "extrinsic" to the charged crimes
because the evidence concerning prior crimes was inextricably intertwined with
the evidence of the charged crime. It formed an "integral and natural part of the
witness's accounts of the circumstances surrounding the offenses for which the
defendant was indicted." United States v. Costa, 691 F.2d 1358, 1361 (11th
Cir.1982).

16

As in Costa, one co-conspirator in this case cooperated with the authorities and
named another as his source of cocaine, citing previous cocaine dealings with
Reese in order to explain why he had turned to Reese rather than some other
person to obtain the cocaine. Rule 404(b) does not apply because the previous
crimes had to be mentioned in order to present adequately the evidence
concerning the charged crime. The testimony would have been confusing and
incomplete without mention of the prior acts. See United States v. Kerris, 748
F.2d 610 (11th Cir.1984); United States v. Males, 715 F.2d 568 (11th
Cir.1983); United States v. Aleman, 592 F.2d 881 (5th Cir.1979). It was
therefore admissible so long as it meets the usual requirements for admissibility
of evidence, contained in Fed.R.Evid. 401 and 403.

17

The fact that this evidence is inextricably intertwined with other admissible

17

The fact that this evidence is inextricably intertwined with other admissible
evidence establishes its relevance under Rule 401. Moving on to the
comparison of probative and prejudicial effects of this evidence under Rule
403, the obvious similarity between the prior and charged offenses enhances its
probity for proving why Craddock turned to Reese for the pound of cocaine.
On the other side of the balance, Craddock's reference to prior cocaine deals
with Reese consisted of one brief statement. The prosecutor did not ask any
further questions about it and never referred to those incidents again. Finally,
the court cautioned the jury before its deliberations that the defendants were on
trial for the crimes charged and that evidence of past wrongs was relevant only
in establishing the state of mind of the defendant. Given these facts, coupled
with the broad discretion granted to trial courts in weighing prejudice and
probity, United States v. McMahon, 592 F.2d 871, 873 (5th Cir.), cert. denied,
442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 289 (1979), we conclude that the trial
court committed no reversible error in permitting Craddock to testify as he did.

18

B. Prior Transaction between Richardson and Informer

19

In order to rebut Richardson's entrapment defense, the government attempted to

prove his predisposition to commit this crime by presenting to the jury a taped
conversation regarding an earlier sale of cocaine by Richardson. Richardson
contends that these references to past wrongs on his part rendered the tape
inadmissible. Under Fed.R.Evid. 404(b), evidence of past crimes or wrongs is
admissible in order to prove "motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident."2 In order to gain
admission under this rule, evidence must meet two tests. It must be relevant to
some issue other than "bad character" and its prejudicial value must not
substantially outweigh its probative value. United States v. Roe, 670 F.2d 956,
967 (11th Cir.1982), cert. denied, 459 U.S. 856, 103 S.Ct. 126, 74 L.Ed.2d 109
(1982); United States v. Beechum, 582 F.2d 898 (5th Cir.1978), cert. denied,
440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979).

20

The first test simply assures that the taped conversation contributes in some
way to a legitimate purpose for introducing it. The government claims that this
evidence was intended to show Richardson's knowledge of cocaine distribution
and his pre-existing intent to possess and distribute cocaine as charged in the
indictment. Because the tape was plainly relevant to the issues of knowledge
and intent and because the prior act involved the same intent and knowledge at
issue in the charged crimes, it qualifies under the first Beechum test. United
States v. Braithwaite, 709 F.2d 1450 (11th Cir.1983); United States v. Mitchell,
666 F.2d 1385, 1389 (11th Cir.), cert. denied, 457 U.S. 1124, 102 S.Ct. 2943,
73 L.Ed.2d 1340 (1982).

21

As for comparing the probative and prejudicial effects of this evidence, courts
in this Circuit have focused on several specific factors such as the strength of
the government's case on the issues of knowledge and intent, the overall
similarity of the extrinsic and charged offenses, the amount of time separating
them, and whether it appeared at the start of trial that the defendant would
contest the issue of knowledge or intent. United States v. Mitchell, supra. Other
aspects of the extrinsic offense have also proven significant in the
"commonsense assessment" of prejudice and probity. United States v.
Beechum, supra, at 914.

22

In this case there was a plain similarity between the extrinsic and charged
offenses, yet the extrinsic wrong was not a heinous act that would have
produced an irrational response from the jury. United States v. Hewes, 729
F.2d 1302, 1315 (11th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 790, 83
L.Ed.2d 783 (1985). The government did not have overwhelming evidence of
Richardson's predisposition to possess or distribute cocaine or of his knowledge
about such matters, so the evidence had a relatively high incremental value and
was not easily excludable. Further, the government had reason at the start of the
trial to believe that Richardson would argue lack of intent because of his
reliance on the entrapment defense. These circumstances establish the probity
of the taped conversation more forcefully than they establish any possibility of
prejudice. The trial court did not err in admitting this testimony against
Richardson. See also United States v. Tunsil, 672 F.2d 879 (11th Cir.), cert.
denied, 459 U.S. 850, 103 S.Ct. 110, 74 L.Ed.2d 98 (1982).

23

Since the first transaction between Richardson and the informant was not
admissible as evidence against the other defendants, Reese claims that
Fed.R.Crim.P. 8(a) mandated a severance of his trial from Richardson's trial so
long as the government insisted on presenting that evidence. Rule 8(a),
however, only governs the propriety of joinder of offenses at the indictment
stage. No defendant was charged with the illegal transaction between
Richardson and the informant, so joinder of offenses is not at issue here.

24

The only basis for Reese's claim is the failure to sever under Fed.R.Crim.P. 14.
Under that rule, a defendant must show that the prejudicial evidence precluded
the jury from independently assessing guilt as to each defendant. The grant or
denial of a Rule 14 severance motion lies within the sound discretion of the trial
court and a court abuses that discretion only when the movant suffers
compelling prejudice. United States v. Russell, 703 F.2d 1243 (11th Cir.1983);
United States v. Berkowitz, 662 F.2d 1127, 1132 (5th Cir. Unit B 1981).

25

In this case, the only possible source of prejudice to Reese was the material

25

In this case, the only possible source of prejudice to Reese was the material
used to rebut a co-defendant's entrapment defense. Identical evidence was
admitted under circumstances similar to this case in United States v. Pirolli, 742
F.2d 1382 (11th Cir.1984), where the testimony rebutting one co-defendant's
entrapment defense did not necessitate severance. As in Pirolli, none of the
attorneys suggested that Reese knew of the March transaction. The prosecution
never alluded to the evidence as part of its case against Reese and the court
instructed the jury to consider separately the evidence against each individual
defendant. Reese's attorney stressed through cross-examination of government
witnesses that Reese was not involved at all in the March transaction. The
introduction of the tape therefore produced no compelling prejudice against
Reese and the trial court did not abuse its discretion in refusing to grant the
motion to sever.

III. Admission of Tapes

26

Richardson objected at trial to the admission of all taped conversations between

himself and the informer because the prosecution allegedly had not established
the proper predicate before introducing the tapes. The preferred practice in this
Circuit is for the government to go forward with evidence regarding the
competence of the tape machine operator, the fidelity of the equipment, the
absence of any alterations to the tape and the identity of the speakers. United
States v. Biggins, 551 F.2d 64 (5th Cir.1977). Nevertheless, the trial court has
broad discretion to allow tapes into evidence without such a showing by the
offering party so long as there is independent assurance of accuracy. United
States v. Shabazz, 724 F.2d 1536 (11th Cir.1984); United States v. Hughes, 658
F.2d 317 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71
L.Ed.2d 463 (1982); United States v. Greenfield, 574 F.2d 305 (5th Cir.), cert.
denied, 439 U.S. 860, 99 S.Ct. 178, 58 L.Ed.2d 168 (1978); see United States v.
Gorel, 622 F.2d 100 (5th Cir.1979), cert. denied, 445 U.S. 943, 100 S.Ct. 1340,
63 L.Ed.2d 777 (1980).

27

The government agent in this case testified about his extensive experience in
operating tape recording devices and the regular maintenance performed on the
recorders used by the DEA. He explained the procedures he used for recording
and preserving the tapes and each of the relevant prosecution witnesses
identified the speakers in the recordings. Hence, the government came forward
with some evidence regarding the competence of the machine operator, the lack
of any alterations to the tape and the identity of the speakers. It only lacked
evidence regarding the fidelity of the particular machine in question. The
government carried much of its burden under Biggins in this case.

28

In addition, independent indicia of accuracy were available here. Agent Behan

affirmed that the tapes contained an accurate rendition of the conversations he

had heard. See United States v. Hughes, supra. The government established
chain of custody. Furthermore, Richardson's attorney was able to cross-examine
Behan thoroughly regarding his operation of the recorder. Since this
independent evidence of accuracy existed to bolster the government's nearadequate showing under Biggins, the district court's decision to allow the tapes
into evidence was not an abuse of discretion.3
IV. Sufficiency of Evidence and Variance Between Indictment and Proof
29
30

Evidence will support a guilty verdict whenever a reasonable jury, choosing

among reasonable constructions of the evidence, could have found that the
defendant was guilty beyond a reasonable doubt. United States v. Bell, 678
F.2d 547 (5th Cir.1982) (Unit B en banc), aff'd on other grounds, 462 U.S. 356,
103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). Both Reese and Richardson challenge
the sufficiency of the evidence supporting their convictions for possession with
intent to distribute cocaine, while Richardson claims that the evidence was also
insufficient to convict him of conspiracy to possess with intent to distribute
cocaine. Richardson also complains of an alleged variance between the
indictment and the proof at trial.
A. Constructive Possession

31

While there was no evidence that either Reese or Richardson physically

handled the cocaine, the conviction was still supported by adequate evidence so
long as the evidence showed "constructive possession." In order to establish
constructive possession, the government must prove that a person not in actual
contact with the cocaine knew the identity of the substance and exercised
dominion and control over it. United States v. Ramos, 666 F.2d 469 (11th
Cir.1982); United States v. Littrell, 574 F.2d 828, 834-35 (5th Cir.1978).

32

There was ample evidence to convict Reese on a constructive possession

theory. According to the informer, Reese told Rafael Crespo-Diaz to go outside
the apartment and bring the cocaine inside. That was an indisputable exercise of
dominion and control. The conversation in the room, in which Reese
participated, indicated that Reese knew the identity of the substance. While it is
true, as Reese says, that other witnesses contradicted the informer's account of
who actually sent for the cocaine, the jury could have reasonably resolved the
factual dispute in favor of the government. After conviction, the sufficiency of
evidence is measured after all inferences and credibility choices have been
resolved in favor of the government. United States v. Morano, 697 F.2d 923,
927 (11th Cir.1983); United States v. Bell, supra. The evidence supports

Reese's conviction for possession with intent to distribute.

33

There is less direct evidence to suggest that Richardson ever exercised

dominion and control over the cocaine. But Count II of the indictment charged
Richardson with "aiding and abetting" in the possession of cocaine with intent
to distribute, in violation of both 21 U.S.C.A. Sec. 841(a) (West 1981) and 18
U.S.C.A. Sec. 2 (West 1969). Hence, the government had only to show that he
willfully associated himself with the enterprise to possess the cocaine and
contributed to its success. United States v. Payne, 750 F.2d 844, 860 (11th
Cir.1985); United States v. Hewitt, 663 F.2d 1381 (11th Cir.1981). Unlike the
defendant in United States v. Jackson, 526 F.2d 1236 (5th Cir.1976), who was
acquitted of possession charges because of insufficient evidence, Richardson
did something beyond arranging a meeting between buyer and seller and
learning about their plans. In a series of phone calls to the informer, he
attempted to make arrangements that would keep the cocaine and the money in
separate locations at all times, fearing that he and his co-conspirators would
lose possession of the cocaine before they received payment. That action could
be construed by a reasonable juror as a material aid in the secure possession of
the cocaine. In this regard, Richardson resembles the defendant in United States
v. Harris, 713 F.2d 623, 627 (11th Cir.1983), whose conviction for possession
of cocaine was supported by evidence that he had provided facilities for a
meeting and acted as conduit between a willing buyer and a willing seller.

34

The evidence in this case would support a reasonable jury in the belief that
Richardson was knowingly associated with a criminal venture to possess
cocaine with intent to distribute and participated in it as something he wished to
bring about. The evidence of possession was sufficient, therefore, to sustain the
conviction.

35

B. Conspiracy to Possess with Intent to Distribute

36

Richardson also challenges the sufficiency of the evidence to convict him of

conspiracy to possess cocaine with intent to distribute, in violation of 21
U.S.C.A. Sec. 846 (West 1981). The evidence, he says, shows at most a
buyer/seller relationship between himself and Craddock. There was no common
design or purpose joining him with anyone other than government agents, for
his plan was simply to buy a pound of cocaine from Craddock and resell it to
the informer at a profit.

37

While this is one plausible construction of the evidence, it is also possible to

conclude that Richardson and the other co-conspirators understood themselves

to be involved together in a single venture. Craddock, Reese and the other coconspirators did agree that they would receive $17,000 from Richardson, who
would in turn receive $22,000 from the informer, yet those arrangements could
be construed as a division of profits rather than a sale and resale. Craddock and
Richardson both negotiated with Behan regarding the method of transferring
the money and the cocaine. There were no parallel negotiations regarding a
transfer from Craddock to Richardson. Significantly, all of the co-defendants
were present during the final transaction in the home of Reinaldo Crespo-Diaz
and both Richardson and Reese participated actively. The jury, on the basis of
these facts, could have found that Richardson and his co-defendants were
involved in a single criminal venture even though they expected to participate in
different ways and receive different amounts of the profits. The evidence of an
agreement between Richardson and his co-defendants to violate the narcotics
laws was sufficient to sustain Richardson's conspiracy conviction.
C. Variance Between Indictment and Proof
38

In a related challenge, Richardson claims that the evidence at trial varied from
the conspiracy as charged in the indictment. The indictment charged that the six
co-defendants "did knowingly and willingly conspire, combine, confederate,
cooperate, and agree together with persons whose names are to the Grand Jury
known and unknown...." The evidence at trial focused on the conspiracy among
the six named conspirators and never mentioned any other persons.

39

Richardson claims first of all that the indictment did not charge the named
persons with conspiring with each other; rather, it charged each of them with
conspiring with unnamed persons. This is an improbable reading of the
indictment, however, because it says that the named persons agreed "together"
with unnamed persons. This language implies an agreement between the named
as well as the unnamed persons. In order for the indictment to mean what
Richardson suggests, it would have to describe six separate conspiracies, which
is an unlikely interpretation given that the indictment extends to only one date
and one geographic area.

40

Therefore, the proof at trial varied from the terms of the indictment only to the
extent that it encompassed fewer conspirators than were included in the
indictment. A variance mandates reversal only when it substantially prejudiced
a defendant's rights. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79
L.Ed. 1314 (1935); United States v. Ard, 731 F.2d 718, 725 (11th Cir.1984).
The fact that proof at trial encompasses fewer conspirators than are named in
the indictment does not normally cause any substantial prejudice to the
defendant, because the existence of the conspiracy, rather than the identity of

the conspirators, is the most important element in proving conspiracy and is the
most important information to convey to the defendant. United States v. Davis,
679 F.2d 845, 851-52 (11th Cir.1982), cert. denied, 459 U.S. 1207, 103 S.Ct.
1198, 75 L.Ed.2d 441 (1983). Since the identity of the alleged conspirators was
revealed in the indictment and the number of conspirators and the time and
place of the conspiracy all fell within limits set forth in the indictment, see
United States v. Davis, supra, the variance in this case does not constitute
grounds for reversal.
V. Admission of Products of Search
41

Each of the four appellants requested suppression hearings before trial. Reese,
Rafael Crespo-Diaz and Reinaldo Crespo-Diaz all alleged that evidence
obtained in the search of the house by the DEA agents was tainted and
inadmissible. Richardson challenged the admission into evidence of a short list
of phone numbers gained through a search of his person at the time of the
arrest. The trial court refused to hold any evidentiary hearings apart from the
trial and denied all of the motions to suppress.

42

The trial court properly denied the requests of Richardson, Reese and Rafael
Crespo-Diaz for suppression of evidence obtained during the search of the
house because they never alleged an interest in the property sufficient to confer
on them standing to challenge the legality of the search. No allegation of
ownership or other legitimate expectation of privacy appeared in their motions
to suppress or at trial. According to United States v. Sneed, 732 F.2d 886 (11th
Cir.1984), a trial court may refuse a defendant's request for a suppression
hearing and motion to suppress if the defendant fails to allege facts that, if
proved, would require the grant of relief. Most prominent among such
allegations for the Sneed court was standing. Hence, the trial court did not err
with regard to Richardson, Reese or Rafael Crespo-Diaz in refusing to exclude
the evidence obtained during the search of the house or to hold a separate
evidentiary hearing on this matter.

43

Each of these three defendants in their motions to suppress did allege standing
to challenge the search of their persons. Yet allegations of standing alone will
not suffice to obtain an evidentiary hearing or the suppression of evidence. A
motion to suppress must in every critical respect be sufficiently definite,
specific, detailed, and nonconjectural to enable the court to conclude that a
substantial claim is presented. United States v. Smith, 546 F.2d 1275 (5th
Cir.1977); United States v. Poe, 462 F.2d 195, 197 (5th Cir.1972), cert. denied,
414 U.S. 845, 94 S.Ct. 107, 38 L.Ed.2d 83 (1973). In short, the motion must
allege facts which, if proven, would provide a basis for relief. A court need not

act upon general or conclusory assertions founded on mere suspicion or

conjecture, and the court has discretion in determining the need for a hearing.
United States v. Harrelson, 705 F.2d 733 (5th Cir.1983). Once a defendant has
failed to make a proper pretrial request for suppression, the opportunity is
waived unless the district court grants relief for good cause shown.4
Fed.R.Crim.P. 12(b)(3), 12(f).
44

These three defendants alleged, in connection with the search of their persons,
that they were arrested without probable cause and without a search warrant.5
Neither the motions nor the accompanying legal memoranda alleged any facts
to support the contention that the government agents lacked probable cause to
make the arrests. Two of the legal memoranda made the further allegation that
certain property of the defendants (for Richardson, a wallet; for Reese, personal
papers) was reduced to the exclusive control of the arresting officers, meaning
that the officers were allegedly obliged to obtain a search warrant before
inspecting the seized property. The memoranda cited United States v. Johnson,
588 F.2d 147 (5th Cir.1979), for this proposition. This second contention forms
no basis for a hearing or suppression, however, because it is based on a
mistaken reading of the Johnson case. Johnson involved luggage of an arrestee
found in the trunk of the arrestee's automobile at the time of the arrest. The
wallet and papers belonging to the defendants here were actually found on their
persons during a valid search incident to an arrest. Such searches may properly
extend to personal property such as a wallet found on the person of the arrestee.
United States v. Sonntag, 684 F.2d 781 (11th Cir.1982); United States v.
Castro, 596 F.2d 674 (5th Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 448, 62
L.Ed.2d 375 (1979).

45

Richardson, Reese and Rafael Crespo-Diaz therefore relied on a flawed legal

theory and on a conclusory statement that the arrest was carried out without
probable cause. They failed to make factual allegations which could form the
basis for exclusion of evidence. Thus, the trial court properly exercised its
discretion in refusing to grant the motions or to conduct an evidentiary hearing.

46

Reinaldo Crespo-Diaz likewise failed to present a legally sufficient motion to

suppress. He did allege a possessory interest in the premises that were searched,
an important fact in determining standing to assert Fourth Amendment claims.
See United States v. Garcia, 741 F.2d 363, 365-66 (11th Cir.1984); United
States v. Rackley, 742 F.2d 1266, 1270 (11th Cir.1983). Yet the motion stated
little about the particulars of this search, mentioning only that the search was
warrantless and without probable cause, that "unlawful and trespassory
surveillance" occurred, and that his consent was not voluntary. The supporting
memorandum of law recited the holdings of cases from several circuits

describing exigent circumstances sufficient to justify a warrantless search; the

memorandum never described the circumstances leading to entry of the house
by the government agents in this case. Neither did it describe the scope of the
search carried out by the agents or the circumstances of the "consent" alluded to
in the motion. Given the nearly complete lack of factual allegations in the
motion and supporting materials filed by Reinaldo Crespo-Diaz, the trial court
did not abuse its discretion in denying the motion and refusing to hold an
evidentiary hearing.
VI. Post-arrest Statements
47

Richardson claims that the affirmations he made to Agent Behan after his arrest
violated his constitutional rights as set forth in Miranda v. Arizona, 384 U.S.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court in this case denied
Richardson's motion for an evidentiary hearing to determine the voluntariness
of his statements to Agent Behan. We do not decide whether a request for a
hearing to determine voluntariness of statements, like a request for a
suppression hearing under the Fourth Amendment, must be requested in
specific and non-conclusory terms, or whether Richardson made an adequate
motion in this case. Nor do we address the issue of whether evidence at trial
established the admissibility of the evidence and obviated the need for a
hearing.6 For even assuming that the trial court erred in admitting these postarrest statements of Richardson, the error was harmless beyond a reasonable
doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705
(1967).

48

The jury heard about Richardson's post-arrest statements through the testimony
of Agent Behan, who described the discussion on the front lawn briefly and in
abstract terms:

49 [by Assistant United States Attorney] What happened there sir? What did you
Q.
say? What did he say?
50 I started saying, "You know I know this about you on such and such a date." He
A.
said, "Yes, sir, that is true." I said, "on this date you did this, this and this." And he
said, "Yes, that's true." "And on this date you used your Lincoln Continental, and
now you are under arrest." Answer, "Yes, I did." I said, "You are in a real bad
position." And I advised him--what I suggested to him was that he get with his
lawyer as soon as possible and discuss with his lawyer his possible cooperation with
the Government.
51

This rendition of Richardson's statements gave the jury little incriminating

evidence. While Richardson affirmed that he had committed certain acts, the
jury never knew whether those acts were legal or illegal. Neither could they
ascertain whether the acts, if illegal, were the same acts charged in the
indictment. Furthermore, Richardson relied at trial on the defense of
entrapment and conspiring with government agents alone. Hence, he conceded
that he had been involved in a drug transaction and contested only his criminal
intent and his participation in the conspiracy as charged in the indictment. The
post-arrest statements of Richardson did not tend to establish any contested
issue of fact and the government did not benefit from its introduction in this
abstract form. The admission of the statements was, therefore, not capable of
undermining any existing reasonable doubt and was harmless error.
VII. Jury Instructions
52

Two appellants challenge the trial court's failure to give jury instructions as
requested. Richardson challenges the court's refusal to give his "theory of
defense" charge, which stated that one cannot illegally conspire with
government agents and set forth the doctrine of entrapment. Reese claims that
the court failed to read a proffered instruction regarding his right not to testify.
A trial court's refusal to give a requested instruction warrants reversal only if
the proffered instruction is substantially correct, is not actually addressed by
the court's instructions, and is important to the defense. United States v.
Walker, 720 F.2d 1527, 1540-41 (11th Cir.1983).
A. Theory of the Defense

53

The instruction requested by Richardson regarding conspiracy with government

agents and entrapment was substantially correct and important to his defense.
The government asserts, however, that the trial judge did address each of these
topics even though he did not employ Richardson's precise formulations. Our
review of the record confirms that the trial court properly instructed the jury
regarding these matters.7 The fact that the two possible defenses were not
discussed together and were not attributed to Richardson in the court's
instructions does not demonstrate any failure by the court to address the matters
covered by the proffered instruction. Closing arguments of counsel will suffice
to identify which defendants rely on which defenses. The court acted within its
discretion in rejecting Richardson's "theory of the defense" instruction.
B. Right Not to Testify

54

Both Reese and Nancy Machado-Leon declined to testify at trial, and each of

them submitted instructions reminding the jury that no adverse inference could
be drawn from their refusal. The court used Machado-Leon's submission, which
referred to the defendant as "she" and "her" on five occasions,8 and did not use
the nearly identical submission of Reese. Reese now claims that because the
instruction used the feminine gender, the jury might have drawn adverse
conclusions from his refusal to testify because they were reminded only of the
rights of Machado-Leon.
55

The jury must be told to draw no adverse inference from a refusal to testify;
defendants may have that instruction as of right. Carter v. Kentucky, 450 U.S.
288, 301, 101 S.Ct. 1112, 1119, 67 L.Ed.2d 241 (1981). But as long as the jury
is told at the proper time not to draw adverse inferences from any defendant's
refusal to testify, the function of the instruction is served; the court need not
explicitly instruct the jury that each of the defendants has the same right. The
charge rendered by the trial court did not imply that Machado-Leon had any
rights not possessed by Reese, and the jury was not likely to believe such an
outlandish proposition. Indeed, the charge referred several times in the abstract
to "a defendant." Under these circumstances, the use of feminine language in
the instruction was not error.

VIII. Sentencing
56

The judgment and commitment orders entered by the court against Reinaldo
and Rafael Crespo-Diaz stated that "It Is Further Recommended that after
completion of the above sentences defendant be referred to the Immigration and
Naturalization Service for possible deportation." Both Reinaldo and Rafael
Crespo-Diaz contend that this recommendation constituted a part of the
sentence not within the statutory limits of 21 U.S.C.A. Sec. 841(b)(1)(A) (West
1981), and therefore should be vacated by this Court.

57

The trial court did not enter an order of deportation or recommend deportation;
it merely recommended that the appellants be referred to the INS for possible
deportation according to law. Persons convicted of violations of narcotics laws
may be subject to deportation, even if the trial court makes no recommendation
at all. 8 U.S.C.A. Sec. 1251(a)(11) (West 1970). Hence, the trial court did not
act improperly or impose on the appellants a sentence beyond the statutory
confines, and this Court will not vacate the sentences. Nelson v. United States,
709 F.2d 39, 40 (11th Cir.1983).

IX. Conclusion
58

None of the appellants have established the existence of any reversible error in

the trial below. Accordingly, the judgments of conviction entered against the
appellants by the district court are AFFIRMED.

The defendants denominate their claim as one of "entrapment as a matter of

law." While there might be situations in which the uncontroverted evidence
presented at trial establishes entrapment as a matter of law, see Sherman v.
United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), the defense
here is more properly understood as governmental overreaching because the
arrangements with the confidential informer do not establish as a matter of law
the defendants' lack of predisposition

There is a possibility that evidence of predisposition constitutes evidence of a

pertinent trait of a defendant's character that the accused places into issue by
making an entrapment defense, and therefore admissible under Rule 404(a)(1).
See United States v. Sonntag, 684 F.2d 781, 787-88 (11th Cir.1982)
(government's failure to produce evidence related to defendant's predisposition
not a violation of discovery order covering all prior acts probative of knowledge
or intent, a Rule 404(b) category, because predisposition evidence is admissible
under Rule 404(a)(1)). Most courts, however, have analyzed the admissibility
of predisposition evidence under Rule 404(b). United States v. Moore, 732 F.2d
983 (D.C.Cir.1984); United States v. Jimenez, 613 F.2d 1373 (5th Cir.1980);
United States v. Biggins, 551 F.2d 64, 68 (5th Cir.1977). See also United States
v. Daniels, 572 F.2d 535 (5th Cir.1978) (excluding predisposition evidence
under Rule 403, no mention of Rule 404(b)). Because predisposition deals with
a state of mind at a particular time and Rule 404(a)(1) deals with "character" in
a more general sense, we resolve the question under Rule 404(b). See United
States v. Webster, 649 F.2d 346, 350 (5th Cir.1981) (en banc) ("predisposition
is a state of mind, not a character trait.")

Richardson also complains that the government never elicited testimony to the
effect that the informer consented to the taping of his conversations; without
consent, he says, these taped conversations could have violated 18 U.S.C.A.
Sec. 2511 (West 1970). See United States v. Davanzo, 699 F.2d 1097 (11th
Cir.1983). However, the paid informer actively and knowingly participated in
the recording and other efforts of the DEA and thereby voluntarily consented to
the recording
Finally, Richardson challenges the admission of the tapes as a violation of
Fed.R.Evid. 403. The tapes were the best evidence of the transactions in
question and did not raise issues other than those inextricably intertwined with
the acts charged in the indictment. The trial court therefore acted well within its

discretion in admitting the tapes into evidence.

4

The defendants never attempted to show good cause for their failure to make an
adequate motion prior to trial
The motions and accompanying memoranda also allege that the government
agents searched the house based on information obtained through illegal
surveillance and through a confidential informant. Assuming without deciding
that these allegations would be sufficient to obtain an evidentiary hearing, they
were made in connection with the search of the house rather than the search of
the defendants. As already discussed, these defendants failed to allege standing
to challenge the search of the house

Neither do we decide whether the use of the post-arrest statements was

improper under Fed.R.Crim.P. 11(e)(6). That rule makes inadmissible "any
statement made in connection with any offer to plead guilty or nolo contendere
to the charged crime or any crime." According to United States v. Herman, 544
F.2d 791 (5th Cir.1977), statements are inadmissible if made at any point
during a discussion in which the defendant seeks to obtain concessions from the
government in return for a plea. Richardson made his statements close to the
time when Agent Behan urged him to make it easy on himself by cooperating.
Because we find that the introduction of Richardson's statements was harmless
error, we do not address the admissibility of his statements under this rationale

The court informed the jury that "There can be no conspiracy involving only
the Defendant and Government agents and informers because it takes two to
conspire, and the Government agent or Government informer is not a true
conspirator." The court also gave a page-long charge regarding entrapment

The court instructed the jury as follows:

It is the Constitutional right of a Defendant in a criminal trial that she may not
be compelled to testify. The decision as to whether she should testify is left to
the Defendant acting on the advice and assistance of her attorney. You must not
draw any inference of guilt from the fact she does not testify, and this fact must
not be discussed by you or enter into your deliberations in any way. In deciding
whether or not to testify a Defendant may choose to rely on the state of the
evidence or upon the failure, if any, of the Prosecution to prove every essential
element of the charge against her.