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


    *                                                                           1
     The Hon orable R ichard M ills, United States District Judge for the        The name on the rental agreement was Nancy Nichols, and the
Central District of Illinois, sitting by designation.                       agreement was signed by Shawn Speckman.

                                   1
No. 02-1521                         United States v. Trujillo         3    4       United States v. Trujillo                         No. 02-1521

had rented the vehicle, and because Campos and Rogensues                   that they were transporting the marijuana to Detroit for the
related inconsistent stories regarding their travel plans.2                Trujillos.3
   Thereafter, Trooper Ortiz asked for, and received,                         After confessing to transporting the marijuana for the
permission from Campos to search the vehicle. Upon                         Trujillos, Campos and Rogensues provided various details
conducting his search, Trooper Ortiz discovered 123 pounds                 regarding their past marijuana trips for the Trujillos
of marijuana hidden in duffle bags in the trunk. Accordingly,              (including providing identifying information which allowed
Trooper Ortiz arrested Campos and Rogensues and                            DEA agents in Detroit to confirm the provided information),
transported the two women to the Drug Enforcement                          and they agreed to act as cooperating witnesses and to
Administration (“DEA”) office.                                             participate in a controlled delivery of the marijuana to the
                                                                           Trujillos. Thereafter, DEA Task Force Agent Powell
   Once at the DEA’s office, DEA task force agents                         telephoned DEA Agent Debra Lynch in Detroit in order to set
interviewed Campos and Rogensues separately regarding                      up a controlled delivery. Based upon the information
their transportation of marijuana. DEA Task Force Agent                    provided by DEA Task Force Agent Powell, DEA Agent
Ronald Thurston interviewed Campos. Initially, Campos                      Lynch sought and obtained a search warrant from United
denied any knowledge about the marijuana. However,                         States Magistrate Judge Donald Scheer for the Trujillo’s
Campos eventually admitted that this was approximately her                 home.
fifth or sixth trip transporting marijuana. Specifically,
Campos stated that Anna and Julio Trujillo had contacted her                  On November 15, 1998, Campos and Rogensues returned,
about driving to Arizona in order to meet with some people,                under escort, to Detroit. Once in Detroit, Campos told DEA
pick up loads of marijuana, transport it back to Detroit,                  Agent Lynch that she had been introduced to Anna Trujillo
Michigan, and deliver the marijuana to them.                               through a mutual friend who had made a lot of money
                                                                           transporting marijuana for Anna Trujillo prior to 1998.
   Meanwhile, DEA Task Force Agent Perry Powell was                        Campos also informed DEA Agent Lynch that she and
interviewing Rogensues. Initially, Rogensues told Agent                    Rogensues had driven to and from Arizona in order to
Powell that she and Campos had been approached by a man                    transport marijuana for the Trujillos on five prior occasions.
at a bus station who had asked them to transport the duffle                Moreover, Campos stated that Shawn Speckman had rented
bags for him. However, after hearing Campos crying in the                  cars for their use on the instant trip and also on two or three
next room, Rogensues confessed that the story was a lie                    prior trips.
which she and Campos had made up when they were in the
back of Trooper Ortiz’s squad car. Rogensues then admitted                   In addition, Campos informed the DEA agents that Anna
                                                                           Trujillo had paid her $250.00 to title two cars in her name
                                                                           and, then, to transfer the title back to Trujillo after the cars
    2                                                                      had been purchased. Finally, Campos and Rogensues advised
      Campos told Trooper Ortiz that she and Rogensues were on their
way back to Detroit, Michigan, from Phoenix, Arizona, (where they had
been staying with her aunt) because her mother had suffered a medical          3
emergency. On the other hand , Rogensues informed T rooper O rtiz that           Rogensues testified that she never loo ked in any of the duffle bags
they had been in Phoenix in order to relocate a business there, although   but assumed marijuana was contain ed therein based upon what Campos
she could not specify what type of business, and that she was unaware of   had told her and the amount of money which they were receiving for the
any medical emergency suffered by Camp os’ mother.                         trip.
No. 02-1521                          United States v. Trujillo   5   6       United States v. Trujillo                          No. 02-1521

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

                                                                         5
   4
                                                                           Julio Trujillo has filed a separate appeal with this Court challenging
       This conversation was not tape recorded.                      the sentence imposed up on him by the d istrict court.
No. 02-1521                             United States v. Trujillo   7   8     United States v. Trujillo                    No. 02-1521

probable cause would have still existed to issue the search             back to Trujillo; and (3) evidence of an alleged threat by
warrant.                                                                Trujillo toward Rogensues.
   Furthermore, at the final pretrial conference which occurred           On November 8, 2001, a jury found Trujillo guilty of the
five days prior to the start of trial, Trujillo represented to the      one count charged in the indictment. On April 8, 2002, the
district court that there had been a break-down in her                  district court sentenced Trujillo to seventy-eight months of
relationship with her attorneys. As such, Trujillo asked the            imprisonment. In so doing, the district court denied Trujillo’s
district court to allow attorney John Royal’s motion to                 objection to the amount of marijuana for which she was being
substitute his representation for that of her present counsel           held accountable as relevant conduct and also denied
and, thereafter, to allow her motion to continue the trial so           Trujillo’s objection to a two-level enhancement, pursuant to
that attorney Royal could have adequate time to prepare for             U.S.S.G. § 3B1.1(c), for being an organizer or leader in the
trial.6 At the hearing, attorney Royal informed the district            conspiracy. On April 18, 2002, Trujillo filed a timely notice
court that he desired to represent Trujillo in this matter but          of appeal challenging her conviction and sentence.
only if he had sufficient time to prepare for trial, i.e., sixty
days. The Government objected to a continuance, asserting                                      II. ANALYSIS
that it would be prejudiced by any delay in the start of the
trial. The district court then stated that jury selection would            On appeal, Trujillo has raised seven grounds in support of
proceed as scheduled on November 6, 2001, but that the                  her argument that we should vacate her conviction and either
presentation of the evidence could be delayed until November            outright dismiss the indictment against her or grant her a new
8, 2001. Given the district court’s denial of the motion to             trial, and she has raised one ground in support of her
continue, Attorney Royal did not believe that he had                    argument that, at a minimum, we should remand her case for
sufficient time in which to prepare for trial, and thus, he             re-sentencing. We will address her arguments seriatim.
declined to take the case.
                                                                            A. MOTION TO SUPPRESS
   Finally, on the day prior to the start of the trial, the district
court heard oral arguments on Trujillo’s motion in limine to              Trujillo argues that the search warrant issued by Magistrate
exclude certain evidence, pursuant to Federal Rule of                   Judge Scheer was invalid because the affidavit filed by DEA
Evidence 404(b), which the Government sought to introduce               Agent Lynch in support of the application for the warrant
at trial. Thereafter, the district court excluded some of the           omitted the fact that Campos and Rogensues had given
Government’s evidence but authorized the admission of the               numerous inconsistent versions of the facts surrounding their
rest. Specifically, the district court allowed the Government           marijuana trafficking before naming her and her husband as
to introduce: (1) Campos’ testimony that, at Trujillo’s request,        the ultimate recipients of the narcotics. Trujillo asserts that
she traveled to Arizona and transported marijuana back to               the omission of this critical information regarding the
Detroit on several occasions prior to the beginning of the              credibility and reliability of Campos and Rogensues rendered
charged conspiracy; (2) Campos’ testimony that Trujillo paid            the affidavit fatally defective. Trujillo claims that the omitted
her to title several cars in her name and, then, transfer the title     evidence regarding Campos’ and Rogensues’ lying to law
                                                                        enforcement agents before settling on a story incriminating
                                                                        her should have triggered an evidentiary hearing where she
    6                                                                   would have been able to show that DEA Agent Lynch acted
        Attorney Royal represe nts Trujillo in this appe al.
No. 02-1521                     United States v. Trujillo     9    10   United States v. Trujillo                    No. 02-1521

with reckless disregard for the truth in presenting the warrant      hypertechnical– manner, and the court should consider
application to Magistrate Judge Scheer. In short, Trujillo           whether the totality of the circumstances supports a
contends that the affidavit presented by DEA Agent Lynch             finding of probable cause, rather than engaging in
was so condensed that it misled Magistrate Judge Scheer and          line-by-line scrutiny. United States v. Greene, 250 F.3d
rendered him unable to determine whether probable cause              471, 479 (6th Cir. 2001). The magistrate’s determination
existed to issue the warrant.                                        of probable cause is afforded great deference, and that
                                                                     determination should be reversed only if the magistrate
  The Government argues that the district court correctly            arbitrarily exercised his discretion. Id.
denied Trujillo’s motion to suppress because DEA Agent
Lynch’s affidavit was not facially defective and probable          United States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004).
cause existed for the issuance of the warrant. Specifically, the
Government asserts that the affidavit informed Magistrate             “The task of the issuing magistrate is simply to make a
Judge Scheer that Campos and Rogensues had been                    practical, common-sense decision whether, given all the
interviewed separately and provided corroborating details          circumstances set forth in the affidavit before him, including
(details which were verified by DEA agents) as to Trujillo’s       the ‘veracity’ and ‘basis of knowledge’ of persons supplying
residence and informed Magistrate Judge Scheer of the fact         hearsay information, there is a fair probability that contraband
that Julio Trujillo had just been released from prison after       or evidence of a crime will be found in a particular place.”
serving a sentence for a drug conviction.                          Illinois v. Gates, 462 U.S. 213, 238 (1983). “The probable
                                                                   cause requirement . . . is satisfied if the facts and
  Furthermore, the Government contends that the affidavit          circumstances are such that a reasonably prudent person
clearly indicated that the information provided by Campos          would be warranted in believing that an offense had been
and Rogensues was reliable and corroborated. Finally, the          committed and that evidence thereof would be found on the
Government claims that, even had DEA Agent Lynch                   premises to be searched.” Greene v. Reeves, 80 F.3d 1101,
informed Magistrate Judge Scheer of the fact that Campos           1106 (6th Cir. 1996)(citing United States v. Besase, 521 F.2d
and Rogensues had provided inconsistent stories to DEA Task        1306, 1307 (6th Cir. 1975)). Thus, “only the probability, and
Force Agents Thurston and Powell, the affidavit and                not a prima facie showing, of criminal activity is the standard
application would not have been weakened and still would           of probable cause . . . .” United States v. Davidson, 936 F.2d
have been supported by probable cause sufficient to issue the      856, 860 (6th Cir. 1991).
search warrant.
                                                                      In the instant case, we find that the totality of the
  We have previously explained:                                    circumstances presented in DEA Agent Lynch’s affidavit
                                                                   provided Magistrate Judge Scheer with a substantial basis for
  This court reviews the sufficiency of an affidavit to            finding probable cause to search Trujillo’s residence.
  determine “whether the magistrate had a substantial basis        Massachusetts v. Upton, 466 U.S. 727, 733 (1984).
  for finding that the affidavit established probable cause        Accordingly, the district court did not err in denying
  to believe that the evidence would be found at the place         Trujillo’s motion to suppress.
  cited.” United States v. Davidson, 936 F.2d 856, 859 (6th
  Cir. 1991)(quotation omitted). The affidavit should be            As the district court correctly noted, in her affidavit, DEA
  reviewed in a commonsense–rather than a                          Agent Lynch specifically advised Magistrate Judge Scheer
No. 02-1521                     United States v. Trujillo    11    12    United States v. Trujillo                    No. 02-1521

that, after being interviewed separately, Campos and               United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997).
Rogensues provided detailed facts of a conspiracy to               Thus, “it is clear that Franks v. Delaware requires that, even
distribute marijuana. Specifically, the affidavit represented      in such an instance of perjury, the warrant will be voided if
that Campos and Rogensues were transporting money to               the false statement is necessary to establish probable cause.
Arizona in exchange for marijuana which they would then            The defendant must prove by a preponderance of the evidence
return to Julio Trujillo whom they contacted via his cellular      that the affiant’s remaining content is insufficient to establish
telephone or pager and who instructed them to deliver the          probable cause.” United States v. Barone, 584 F.2d 118, 121
marijuana to his residence. Moreover, the affidavit stated that    (6th Cir. 1978).
Campos and Rogensues had planned to make five or six more
trips to Arizona for the Trujillos in order to obtain marijuana.      Here, Trujillo has failed to make a strong showing that
Finally, DEA Agent Lynch’s affidavit contained the fact that       DEA Agent Lynch excluded certain facts from her affidavit
a controlled delivery was planned for the same day upon            with an intention to mislead Magistrate Judge Scheer. Mays
which she sought the search warrant. Thus, we believe that         v. City of Dayton, 134 F.3d 809, 816 (6th Cir. 1998). In
DEA Agent Lynch’s affidavit provided probable cause for            addition, we agree with the district court that, even had DEA
Magistrate Judge Scheer to issue the search warrant at issue.      Agent Lynch included in her affidavit the fact that Campos
                                                                   and Rogensues had given prior inconsistent statements before
  As for Trujillo’s challenge to the reliability and credibility   pointing to Trujillo as a co-conspirator, these facts would not
of Campos and Rogensues and the necessity of an evidentiary        have negated a finding of probable cause. Atkins, 107 F.3d at
hearing prior to the issuance of the warrant, the affidavit        1216-17 (denying the defendant’s motion for a Franks
clearly indicated that the information provided by Campos          hearing because alleged material omissions were not essential
and Rogensues was reliable and corroborated. Specifically,         to a probable cause finding); United States v. Martin, 920
DEA Task Force Agents Thurston and Powell were able to             F.2d 393, 398 (6th Cir. 1990)(rejecting the defendant’s
verify with law enforcement authorities in Michigan that the       request for a Franks hearing because the alleged material
Trujillos lived at the address provided by Campos and              omission bearing on the veracity of the principal informant
Rogensues and that Julio Trujillo had recently been released       was not essential to a finding of probable cause). Thus, we
from prison after serving a sentence on a drug charge as stated    affirm the district court’s denial of Trujillo’s motion to
by Campos and Rogensues. Franks v. Delaware, 438 U.S.              suppress.
154, 165 (1978)(noting that “probable cause may be founded
upon . . . information . . . that sometimes must be garnered         B. RULE 404(B) EVIDENCE
hastily.”).
                                                                     Prior to the start of trial, the Government filed a notice
   Finally, as for Trujillo’s claim that DEA Agent Lynch acted     regarding its intent to use certain evidence, pursuant to
with reckless disregard for the truth in omitting certain facts    Federal Rule of Evidence 404(b), at trial. The Government’s
from her affidavit, a defendant is entitled to a Franks hearing    notice engendered a motion in limine by Trujillo seeking an
“if and only if : (1) there is a substantial preliminary showing   order from the district court barring the introduction of the
that specified portions of the affiant’s averments are             Government’s Rule 404(b) evidence. At the conclusion of a
deliberately or recklessly false and (2) a finding of probable     hearing on the motion, the district court allowed in part and
cause would not be supported by the remaining content of the       denied in part Trujillo’s motion, allowing the admission at
affidavit when the allegedly false material is set to one side.”
No. 02-1521                      United States v. Trujillo      13    14   United States v. Trujillo                   No. 02-1521

trial of six of the ten types of evidence proffered by the            opportunity, personal involvement, and unexplained wealth)
Government.                                                           and because the probative value of this evidence was not
                                                                      substantially outweighed by any unfair prejudice. As for
   On appeal, Trujillo has challenged the district court’s order      Campos’ prior marijuana trips for Trujillo, the Government
with regard to three types of the Government’s Rule 404(b)            asserts that the evidence was highly probative to demonstrate
evidence. First, Trujillo argues that the district court erred in     Trujillo’s method of operation, plan, and preparation. As for
allowing the Government to introduce evidence that Campos             the title evidence, the Government claims that the evidence
had traveled to Arizona in order to transport marijuana back          established Trujillo’s consciousness of guilt, unexplained
to Detroit for Trujillo on several occasions prior to the start of    wealth, motive, and actions in furtherance of the conspiracy.
the charged conspiracy. Second, Trujillo asserts that the             Finally, as for the evidence of a threat, the Government
district court erred in allowing the Government to introduce          argues that the evidence was admissible to prove Trujillo’s
evidence that Trujillo had paid Campos to title two                   intent and consciousness of guilt.
automobiles in Campos’ name and, then, transfer the title
back to her because these alleged acts also occurred prior to            Federal Rule of Evidence 404(b) provides in relevant part:
the start of the charged conspiracy. Third, Trujillo contends         “Evidence of other crimes, wrongs, or acts is not admissible
that the district court erred in allowing the Government to           to prove the character of a person in order to show action in
introduce evidence that Trujillo had threatened Rogensues             conformity therewith. It may, however, be admissible for
that, because Campos and Rogensues had cost her                       other purposes, such as proof of motive, opportunity, intent,
$250,000.00, they were going to have to pay for the                   preparation, plan, knowledge, identity, or absence of mistake
marijuana.                                                            or accident . . . .” Id. In determining whether other acts
                                                                      evidence under Rule 404(b) is admissible, this Court employs
  Trujillo argues that the district court erred in allowing the       a three-part test:
Government to introduce these three pieces of Rule 404(b)
evidence because the district court failed to make any factual          First, the district court must decide whether there is
determination that any of the alleged actions actually                  sufficient evidence that the other act in question actually
occurred. In addition, Trujillo claims that the district court          occurred. Second, if so, the district court must decide
erred in admitting this Rule 404(b) evidence because the                whether the evidence of the other act is probative of a
evidence did not assist the jury, because the Government did            material issue other than character. Third, if the evidence
not introduce the evidence for a legitimate purpose (she never          is probative of a material issue other than character, the
placed her intent at issue), and because the evidence was               district court must decide whether the probative value of
simply propensity evidence masquerading as Rule 404(b)                  the evidence is substantially outweighed by its potential
evidence which was unfairly prejudicial to her. Finally,                prejudicial effect.
Trujillo asserts that the district court erred in failing to give a
proper limiting instruction to the jury when it admitted the          United States v. Jenkins, 345 F.3d 928, 937 (6th Cir.
Government’s Rule 404(b) evidence.                                    2003)(citing United States v. Haywood, 280 F.3d 715,
                                                                      719-20 (6th Cir. 2002)). “This court reviews a district court’s
  The Government argues that the district court did not err in        evidentiary determinations under Fed. R. Evid. 404(b) for
admitting the Rule 404(b) evidence because the evidence was           abuse of discretion. A district court is considered to have
admitted for permissible purposes (to show plan, intent,              abused its discretion when this court is left with the definite
No. 02-1521                    United States v. Trujillo    15    16       United States v. Trujillo                            No. 02-1521

and firm conviction that the district court committed a clear     abuse its discretion in admitting the Government’s Rule
error of judgment in the conclusion it reached upon a             404(b) evidence.7
weighing of the relevant factors.” United States v. Copeland,
321 F.3d 582, 596 (6th Cir. 2003) (internal citations and           C. SUBSTITUTION OF COUNSEL
quotations omitted).
                                                                     Trujillo argues that the district court abused its discretion
   Here, we conclude that the district court did not abuse its    in denying her motion to continue the trial so that her new
discretion in admitting the Government’s Rule 404(b)              attorney could adequately prepare for trial. Moreover,
evidence. Although Trujillo argues that the district court        because she could not obtain new counsel to represent her
failed to make a factual determination that the alleged bad       without the requested continuance, Trujillo asserts that the
acts occurred, a jury could reasonably have concluded that        district court deprived her of her right to counsel of her own
Trujillo committed the prior bad acts based upon Campos’,         choosing and forced her to proceed with the assistance of
Rogensues’, and Speckman’s testimony and based upon the           counsel in whom she had no confidence and who rendered her
evidence discovered at Trujillo’s home pursuant to the search     ineffective assistance. Accordingly, Trujillo contends that she
warrant. Huddleston v. United States, 485 U.S. 681, 690           is entitled to a new trial.
(1988). Therefore, the first step in the Rule 404(b) analysis
is satisfied.                                                       The Government argues that the district court made all of
                                                                  the proper and appropriate inquiries of Trujillo as to her
   Likewise, the second step in the Rule 404(b) inquiry is        dissatisfaction with her attorney and that the district court did
satisfied. Because Trujillo was charged with a specific intent    not abuse its discretion in denying her request for a
crime, Rule 404(b) evidence was admissible to prove her           continuance of the trial. The Government claims that, due to
intent. E.g., United States v. Spikes, 158 F.3d 913, 930 (6th     the lateness of her request, it would have been prejudiced by
Cir. 1998)(“[T]his court has held that Rule 404(b) evidence       a continuance and that the basis for Trujillo’s request for a
is admissible to prove intent if specific intent is a statutory   substitution of counsel was inadequate. Accordingly, the
element of the offense.”). Moreover, we agree with the            Government asserts that the district court did not err in
district court that the Rule 404(b) evidence was admissible for   denying Trujillo’s motion to continue.
proper purposes other than propensity, including plan,
opportunity, motive, and unexplained wealth.
                                                                       7
                                                                        In her appellate brie f, Trujillo contends that, although the district
  Finally, we also agree with the district court that the         court gave a limiting instruction to the jury prior to deliberations, the
evidence of Trujillo’s prior bad acts was not substantially       district court erred in failing to give the jury an appropriate limiting
outweighed by the danger of any unfair prejudicial effect.        instruction when the Rule 404(b) evidence was presented. However,
Fed. R. Evid. 403; United States v. Myers, 123 F.3d 350,          Trujillo did no t lodge a timely objec tion to the district co urt’s failure to
362-63 (6th Cir. 1997). Accordingly, the district court did not   instruct the jury contemporaneously with the admission of the Rule 404(b)
                                                                  evidence, and there is no plain error here. United States v. Stines, 313
                                                                  F.3d 912, 919 (6th Cir. 20 02)(“W here a defendant fails to make a timely
                                                                  objection, stating the specific grounds for his objection, our review is
                                                                  limited to plain error.”); United States v. Miller, 115 F.3d 361, 36 6 (6th
                                                                  Cir. 199 7) (declining to find an abuse of discretion where the district court
                                                                  failed to provide a cautionary instruction at the time of the admission of
                                                                  the Rule 404(b) evidence but did so at the close of the case).
No. 02-1521                     United States v. Trujillo    17    18    United States v. Trujillo                    No. 02-1521

   “A motion for new court-appointed counsel based upon            continue. Accordingly, the district court did not abuse its
defendant’s dissatisfaction with his counsel previously            discretion in denying Trujillo’s motion to continue.
appointed is addressed to the sound discretion of the trial
court.” United States v. White, 451 F.2d 1225, 1226 (6th Cir.        D. IMPROPER BOLSTERING OR VOUCHING
1971). We review a district court’s denial of a motion for a
substitution of counsel for an abuse of discretion. United           Trujillo argues that she is entitled to a new trial because the
States v. Williams, 176 F.3d 301, 314 (6th Cir. 1999). In          Government improperly vouched for and bolstered the
particular, we consider: “(1) the timeliness of the motion,        credibility of Campos and Rogensues. Specifically, Trujillo
(2) the adequacy of the court’s inquiry into the matter, (3) the   asserts that, because the Government had both witnesses
extent of the conflict between the attorney and client and         highlight to the jury the fact that under the terms of their plea
whether it was so great that it resulted in a total lack of        agreements they had to truthfully cooperate or they would be
communication preventing an adequate defense, and (4) the          in breach of their agreements, the jury was improperly left
balancing of these factors with the public’s interest in the       with the impression that the Government had some secret
prompt and efficient administration of justice.” United States     method by which to determine whether Campos and
v. Mack, 258 F.3d 548, 556 (6th Cir. 2001); Williams, 176          Rogensues were telling the truth. Trujillo also claims error
F.3d at 314; United States v. Jennings, 83 F.3d 145, 148 (6th      based upon Rogensues’ testimony that she agreed to submit
Cir. 1996).                                                        to a polygraph examination.

   Here, these four factors weigh in favor of a conclusion that       In addition, Trujillo contends that the Government’s error
the district court did not abuse its discretion in denying         in improperly vouching for and bolstering Campos’ and
Trujillo’s motion to continue. First, the motion for               Rogensues’ testimony was exacerbated by the prosecutor’s
substitution of counsel and the motion for a continuance were      rebuttal argument to the jury. Trujillo claims that the
untimely, coming only three days prior to the scheduled start      prosecutor’s reference to the “truthful testimony” agreements
of the trial. Jennings, 83 F.3d at 148 (motion to continue         in which Campos and Rogensues had entered was improper
made the day before trial); Williams, 176 F.3d at 314 (motion      because the statement was intended to convey to the jury the
to continue made two weeks before trial). Second, the record       prosecutor’s opinion that the witnesses’ testimony was
establishes that the district court made an adequate inquiry       truthful. Finally, Trujillo argues that the district court erred
into the crux of Trujillo’s dissatisfaction with her attorney.     in failing to give an appropriate cautionary instruction to the
                                                                   jury.
   Third, Trujillo admitted that her dissatisfaction was based
upon her counsel’s failure to obtain a suppression of the             The Government argues that it did not improperly bolster
evidence seized from her home as a result of the search            or vouch for Campos’ or Rogensues’ credibility when the
warrant. Because the district court was not going to allow her     prosecutor referred to the witnesses’ plea agreements. On the
to reopen the suppression issue, this factor weighs in favor of    contrary, the Government notes that the prosecutor limited the
a denial of the motion to continue. Fourth, given the              questioning of Campos and Rogensues to the existence of
administrative hurdles and costs involved in ensuring the          their plea agreements and did not suggest the prosecutor’s
attendance of the Government’s witnesses for the trial, the        personal assurance or belief as to the veracity or credibility of
public’s interest in the prompt and efficient administration of    either witness. Furthermore, the Government asserts that
justice weighed in favor of denying Trujillo’s motion to           Rogensues’ reference to her willingness to take a polygraph
No. 02-1521                      United States v. Trujillo     19    20   United States v. Trujillo                    No. 02-1521

examination was an unsolicited statement which the district            Q. Did you receive consideration from the government in
court properly determined to be a “non-issue” because                     exchange for your plea?
Rogensues never took a polygraph test. Finally, the
Government claims that the district court’s failure to give a          A. Yes.
cautionary instruction does not constitute plain error,
especially in light of the overwhelming proof submitted at             Q. Was there a consideration from the government in
trial establishing Trujillo’s guilt.                                      exchange for truthful cooperation in the case?

   “‘Improper vouching occurs when a prosecutor supports the           A. Yes.
credibility of a witness by indicating a personal belief in the
witness’s credibility thereby placing the prestige of the office     J.A. 280. Likewise, during her direct examination, the
of the United States Attorney behind that witness. [I]mproper        prosecutor asked Rogensues the following questions, and
vouching involves either blunt comments or comments that             Rogensues gave the following answers:
imply that the prosecutor has special knowledge of facts not
in front of the jury . . . .’” United States v. Martinez, 253 F.3d     Q. What were the charges against you in that case?
251, 253-54 (6th Cir. 2001)(quoting United States v. Francis,          A. Conspiracy to deliver marijuana.
170 F.3d 546, 550 (6th Cir. 1999)). On the other hand,
“‘[b]olstering occurs when the prosecutor implies that the             Q. How did you plead?
witness’s testimony is corroborated by evidence known to the
government but not known to the jury.’” Id. at 254 (quoting            A. Guilty.
Francis, 170 F.3d at 551). “Whether improper vouching
amounts to prosecutorial misconduct and whether it renders             Q. Why was that?
the trial fundamentally unfair are mixed questions of law and
fact reviewable de novo.” United States v. Tocco, 200 F.3d             A. Downward departure for testimony today.
401, 422 (6th Cir. 2000); United States v. Clark, 982 F.2d
965, 968 (6th Cir. 1993).                                                                        ***
  In the present case, we find that the prosecutor did not             Q. Could you tell the jurors what your agreement was
improperly vouch for or bolster Campos’ or Rogensues’                     with regard to cooperation?
credibility. Accordingly, no prosecutorial error occurred
which entitles Trujillo to a new trial.                                A. That I would tell the truth. I would be here for pretrial,
                                                                          trial, anything concerning this case, that I admit to a lie
  During her direct examination, the prosecutor asked                     detector test.
Campos the following questions, and Campos gave the
following answers:                                                                                ***

  Q. Did you plea pursuant to a plea agreement?                        A. I would submit to one – to one, which I will.

  A. Yes.
No. 02-1521                    United States v. Trujillo    21    22    United States v. Trujillo                    No. 02-1521

J.A. 452, 500-01. Finally, during the prosecutor’s rebuttal       did not prejudice Trujillo, and we also conclude that Trujillo
argument, she made the following statement to the jury:           has failed to satisfy the plain error standard with regard to the
                                                                  district court’s failure to give the jury an appropriate limiting
  Beth Ann Rogensues and Norma Jean Campos are not                instruction. Accordingly, Trujillo is not entitled to a new trial
  free. Three months halfway house away from the                  based upon her claims of prosecutorial misconduct.
  children, three months on tether, two years probation,
  and they didn’t – they told you during the direct                 E. ADMISSION OF                 PRIOR      INCONSISTENT
  examination that they didn’t come here, and they didn’t              STATEMENTS
  agree they would get on the stand and say whatever the
  government wanted them to say. They promised to be                During the trial, both Campos and Rogensues testified that
  truthful and provide complete information. Truthful and         they had given statements to DEA Task Force Agents
  complete information concerning all individuals with            Thurston and Powell during their post-arrest interviews in
  whom they conspired to distribute marijuana, but not            which they admitted transporting marijuana for Trujillo and
  limited to Julio or Anna Trujillo. That’s what they told        her husband. Campos and Rogensues also testified that they
  you during their examination.                                   provided details to DEA Task Force Agents Thurston and
                                                                  Powell concerning where they delivered the marijuana upon
J.A. 203.                                                         returning to Detroit, where the Trujillos lived, and the fact
                                                                  that Rogensues kept a ledger detailing each trip that she and
  As the above citations to the record make clear, the            Campos had made in order to transport marijuana for the
prosecutor did not offer any personal observations or opinions    Trujillos.
as to the veracity of either Campos or Rogensues, nor did she
place the prestige of the Government behind their credibility.       On cross-examination, Trujillo’s counsel attacked the
Rather, the prosecutor’s questions and comments merely            truthfulness of Campos’ and Rogensues’ testimony and
encompassed the terms of Campos’ and Rogensues’ plea              attempted to impeach them with their prior inconsistent
agreements which this Court has held to be permissible.           statements which they gave to Trooper Ortiz and to DEA
Francis, 170 F.3d at 550. Thus, the Government did not            Task Force Agents Thurston and Powell before settling on the
engage in any improper vouching.                                  story which they testified to at trial implicating Trujillo.
  Likewise, the Government did not engage in any improper           The Government then called DEA Task Force Agents
bolstering. Again, as the above citations to the record reveal,   Thurston and Powell in order to rehabilitate Campos and
the prosecutor did not imply that either Campos’ or               Rogensues with the statements which Campos and Rogensues
Rogensues’ testimony was corroborated by any evidence             had made to them during their post-arrest interviews which
known to the Government but not presented to the jury.            were consistent with their trial testimony implicating Trujillo.
Martinez, 253 F.3d at 254. Thus, there was no improper            Trujillo’s counsel objected to DEA Task Force Agents
bolstering.                                                       Thurston and Powell’s testimony regarding Campos’ and
                                                                  Rogensues’ prior consistent statements on hearsay grounds.
  Finally, we conclude that the district court correctly          Fed. R. Evid. 802. The Government responded that the
characterized Rogensues’ unsolicited testimony regarding her      agents’ testimony was admissible because the agents’
willingness to submit to a polygraph test as a non-issue which    testimony was offered to rebut Trujillo’s charge of recent
No. 02-1521                         United States v. Trujillo        23    24    United States v. Trujillo                     No. 02-1521

fabrication by Campos and Rogensues, and thus, the                         regarding Campos’ and Rogensues’ prior consistent
testimony did not constitute hearsay. Fed. R. Evid.                        statements. Trujillo argues that the cases cited by the
801(d)(1)(B). The Government cited three cases to the                      Government and relied upon by the district court are no
district court in support of its position: United States v.                longer good law in light of the United States Supreme Court’s
Hebeka, 25 F.3d 287 (6th Cir. 1994); United States v. Smith,               holding in Tome v. United States, 513 U.S. 150 (1995), and
746 F.2d 1183 (6th Cir. 1984); and United States v. Hamilton,              this Court’s holding in United States v. Toney, 161 F.3d 404
689 F.2d 1262 (6th Cir. 1982). After reviewing the cases                   (6th Cir. 1998). Trujillo contends that Campos’ and
cited by the Government, the district court overruled                      Rogensues’ motive to lie arose when they were arrested by
Trujillo’s objection and allowed DEA Task Force Agents                     Trooper Ortiz in Colorado, and thus, under the holdings of
Thurston and Powell to testify regarding Campos’ and                       Tome and Toney, the district court committed reversible error
Rogensues’ statements which were consistent to the                         in allowing the Government to rehabilitate Campos and
testimony which Campos and Rogensues had given at trial.                   Rogensues via DEA Task Force Agents Thurston and
                                                                           Powell’s testimony.
   Accordingly, DEA Task Force Agent Powell testified that,
during her interview, Rogensues stated that she was                           The Government claims that the district court did not err in
delivering the marijuana which had been seized from the                    allowing DEA Agents Thurston and Powell to offer testimony
rental vehicle to Julio Trujillo; that the Trujillos had delivered         in an attempt to rehabilitate Campos and Rogensues because
the rental vehicle to Campos and her to be used in                         the agents’ testimony was offered to rebut Trujillo’s charge of
transporting the marijuana from Arizona to Detroit; that                   recent fabrication. In essence, the Government contends that
Campos and she had completed five prior marijuana trips for                Trujillo opened the door to this testimony by implying during
the Trujillos; and that she was able to remember the dates of              the cross-examination of Campos and Rogensues that they
those marijuana trips because she kept a daytime ledger in                 were lying and that they had been improperly influenced by
which she noted the states through which Campos and she                    their plea agreements with the Government.
had driven, the miles logged, the hours each drove, and the
total time it took to complete the trips. Similarly, DEA Task                 Federal Rule of Evidence 801(d)(1)(B) provides: “A
Force Agent Thurston testified that, during her interview,                 statement is not hearsay if . . . [t]he declarant testifies at the
Campos told him that she had completed seven trips to                      trial or hearing and is subject to cross-examination concerning
Arizona in order to obtain marijuana which she then delivered              the statement, and the statement is . . . consistent with the
to the Trujillos in Detroit.8                                              declarant’s testimony and is offered to rebut an express or
                                                                           implied charge against the declarant of recent fabrication or
  On appeal, Trujillo reasserts her argument that DEA Task                 improper influence or motive . . . .” Id. “A district court’s
Force Agents Thurston’ and Powell’s testimony constituted                  determination of whether evidence constitutes hearsay under
inadmissible hearsay, and therefore, the district court                    the Federal Rules of Evidence is a conclusion of law that is
committed prejudicial error by allowing them to testify                    reviewed de novo.” Cox v. Treadway, 75 F.3d 230, 238 (6th
                                                                           Cir. 1996)(citing Hancock v. Dodson, 958 F.2d 1367, 1371
                                                                           (6th Cir. 1992)).
    8
     The district court also allowed DE A Agent Lynch to offer testimony      In the instant case, the district court committed error when
concerning the prio r consistent statements given to her by Campos and     it employed the wrong test in resolving Trujillo’s hearsay
Roge nsues.
No. 02-1521                          United States v. Trujillo         25    26     United States v. Trujillo                            No. 02-1521

objection. As noted by Trujillo, the district court neither cited            not believable to suggest that, a day or two after Campos and
to nor referenced Toney or Tome in reaching its decision to                  Rogensues were stopped with more than fifty kilograms of
overrule Trujillo’s hearsay objection. As such, the district                 marijuana in their car and were subsequently arrested, they
court never rendered a factual finding as to when Campos and                 did not have a motive to lie, regarding the source of the
Rogensues formed a motive to lie.9 Thus, the question which                  marijuana, in order to get lenient treatment.11 See United
we must answer is whether the district court properly                        States v. Esparza, 291 F.3d 1052, 1055 (6th Cir.
admitted this evidence despite the district court’s flawed                   2002)(finding testimony made at the time of an arrest
reasoning.                                                                   inadmissible because “Esparza had the same motive to lie at
                                                                             the time of his statement to the officer as he did at the trial,
   In order for DEA Task Force Agents Thurston’s and                         and so his statement was not admissible to rebut a charge of
Powell’s testimony not to be considered hearsay under Rule                   recent fabrication.”). Accordingly, we find that the district
801(d)(1)(B): (1) Campos and Rogensues had to testify and                    court erred in admitting the hearsay statements in question.
been subject to cross-examination; (2) Trujillo had to
expressly or impliedly charge recent fabrication or improper                   Nevertheless, we also find that this error does not warrant
influence or motive by Campos and Rogensues during their                     a reversal. In order to merit a reversal, this error must be
testimony; (3) the Government had to offer a prior consistent                shown not to have been harmless, i.e., that it was more
statement that was consistent with the Campos and Rogensues                  probable than not that the error materially affected the verdict.
challenged in-court testimony; and, (4) Campos’ and                          United States v. Hernandez, 227 F.3d 686, 696 (6th Cir.
Rogensues’ prior consistent statements must have been made                   2000). We conclude that the district court’s admission of the
prior to the time that their supposed motive to lie arose.10                 hearsay statements constituted harmless error.
Toney, 161 F.3d at 407; Tome, 513 U.S. at 167. The only
factor which is at issue in the instant appeal is the last one, i.e.           First, the error was harmless because the inadmissible
whether the statements which Campos and Rogensues made                       hearsay testimony was effectively impeached. After DEA
to DEA Task Force Agents Thurston and Powell which were                      Task Force Agent Thurston gave his testimony recounting the
consistent with their trial testimony were made before they                  hearsay statements made by Campos and Rogensues,
had formed a “motive to lie.”                                                Trujillo’s counsel, at length, impeached the credibility of the
                                                                             stories given by Campos and Rogensues to DEA Task Force
  Based upon our review of the record, we conclude that                      Agent Thurston. See J.A. at 569. DEA Task Force Agent
Campos’ and Rogensues’ prior consistent statements were                      Thurson admitted that Campos and Rogensues were in the
made after they had formed their motive to lie. It is simply                 room together at one point when the details of their stories

    9
      “The district court’s determination of when the mo tive to lie arose
is a factual finding, which we review under the ‘clearly erroneous’               11
                                                                                    W ithin two days of being arrested and giving custodial statements,
standard.” Toney, 161 F.3d at 408.                                           Campos and Rogensues attempted to cooperate with the p olice in
    10
                                                                             arranging for the delivery of the marijuana to Trujillo an d her husba nd in
      The fact that the Govern ment prese nted the evidence of Ca mpo s’     a manner which would have incriminated b oth. E.g., J.A. at 331 (o n cross-
and Rogensues’ prior consistent statements through DEA Task Force            examination, Trujillo’s counsel asked, “And then you ended up coming
Agents Thurston and Powell’s testimony rather than from Campo s and          back here, and you were arraigned after you were unable to set up the
Rogensues them selves is o f no co nsequence. Hebeka, 25 F.3d at 293.        Trujillos, correct?,” to which Campos respond ed, “Yes.”).
No. 02-1521                     United States v. Trujillo    27    28    United States v. Trujillo                     No. 02-1521

were clarified–which indicates that their stories differed           F. MOTION FOR A MISTRIAL
earlier–thereby, impeaching Campos’ and Rogensues’ stories.
                                                                     Prior to the start of trial, the district court ruled that there
  In addition, DEA Task Force Agent Thurston was unable            could be no mention of any marijuana found in the possession
to deny Trujillo’s attorney’s assertion that Campos had been       of Thomas Hysell where the Government could not prove that
so distressed upon her arrest that she was crying when she         the marijuana recovered from him came from Trujillo’s home.
was in custody. Id. More importantly, DEA Task Force               Because Hysell did not testify at trial, the district court’s
Agent Thurston agreed that Campos’ and Rogensues’ stories          order resulted in the exclusion of any reference to the
only implicated Trujillo in a very minor role when compared        marijuana obtained from him after he had met Speckman at
to that of her husband, Julio. See J.A. at 573-74.                 the Trujillo’s home on the night of November 16th.
  Second, the error was harmless because Trujillo’s counsel          During the trial, the prosecutor questioned Speckman about
effectively impeached the two witnesses whose testimony was        what had transpired when Hysell visited Trujillo’s residence
buttressed by the inadmissible hearsay. Trujillo’s counsel         just before DEA agents searched the residence pursuant to a
impugned the motives of Campos and Rogensues during his            search warrant–allegedly trying to imply that Hysell had
examination of them and which the jury could have recalled         purchased marijuana from Trujillo. After Trujillo’s counsel
upon hearing DEA Task Force Agent Thurston’s testimony.            objected, the district court cautioned the prosecutor not to let
                                                                   the witness testify regarding the marijuana seized from
   Third, the Government presented other significant               Hysell.
admissible evidence which confirmed Trujillo’s involvement
in marijuana trafficking activities. For example, Shawn               Subsequently, while DEA Agent Anthony Bryndza was
Speckman’s testimony indicated Trujillo’s involvement in           testifying, the prosecutor inadvertently tendered an exhibit
drug trafficking activities, and DEA Agent Lynch testified as      consisting of marijuana taken from Hysell the night that he
to having found, at Trujillo’s residence, “phone books with        went to Trujillo’s home and met with Speckman. The
names, . . . two scales, in addition to a cellular telephone and   prosecutor’s reference to the exhibit caused Bryndza to refer
pager, fax machine, all have information and phone numbers         to the marijuana and attribute it to Hysell. Trujillo’s counsel
linking to the crime.” J.A. at 356.                                immediately moved for a mistrial, but the district court denied
                                                                   the motion, admonished the witness, and instructed the jury
   Accordingly, in light of the other admissible evidence          to disregard any references to the exhibit or testimony
presented by the Government during the trial and Trujillo’s        regarding the marijuana attributed to Hysell.
attorney’s effective impeachment of DEA Task Force Agent
Thurston, Campos, and Rogensues, it is not probable that,            Trujillo argues that the district court abused its discretion
even without the improper admission of the prior consistent        in denying her motion for a mistrial based upon the
statements of Campos and Rogensues, Trujillo would have            Government’s witnesses’ references to the marijuana obtained
been acquitted. As such, the district court’s improper             from Hysell in violation of the district court’s order excluding
admission of DEA Task Force Agents Thurston’s and                  this evidence. Trujillo contends that the prosecutor’s
Powell’s hearsay statements was harmless and does not              violation of the district court’s order was flagrant and highly
require a reversal of Trujillo’s conviction.                       prejudicial. Accordingly, Trujillo asserts that the prosecutor’s
                                                                   improper implication to the jury that she lived at a house
No. 02-1521                     United States v. Trujillo    29    30    United States v. Trujillo                     No. 02-1521

frequented by individuals who possessed marijuana entitled           against the accused. United States v. Monus, 128 F.3d
her to a new trial, and therefore, the district court erred in       376, 394 (6th Cir. 1997)(citing United States v. Cobleigh,
denying her motion for a mistrial.                                   75 F.3d 242, 247 (6th Cir. 1996)); Carroll, 26 F.3d at
                                                                     1385 (citing United States v. Leon, 534 F.2d 667, 679
   The Government argues that, contrary to Trujillo’s                (6th Cir. 1976)). To reverse a conviction because of an
assertion otherwise, the complained of remarks were not              improper non-flagrant statement, a reviewing court must
flagrant. In fact, the Government notes that the references to       determine that: 1) the proof of the defendant’s guilt is not
the marijuana possessed by Hysell were made by a witness,            overwhelming; 2) the defense counsel objected; and 3)
not the prosecutor, and therefore, the witness’ comments             the trial court failed to cure the impropriety by failing to
should not be attributed to it. Accordingly, the Government          admonish the jury. Monus, 128 F.3d at 394; Carroll, 26
claims that the district court did not abuse its discretion in       F.3d at 1385-86 (citing United States v. Bess, 593 F.2d
denying Trujillo’s motion for a mistrial.                            749, 757 (6th Cir. 1979)).
  “We review for abuse of discretion the district court’s          Francis, 170 F.3d at 549-50.
denial of a motion for mistrial.” United States v. Yang, 281
F.3d 534, 549 (6th Cir. 2002). “An abuse of discretion exists         In the case sub judice, we find that the district court did not
when the reviewing court is firmly convinced that a mistake        abuse its discretion in denying Trujillo’s motion for a
has been made.” United States v. Carroll, 26 F.3d 1380, 1383       mistrial. Although the reference to the marijuana recovered
(6th Cir. 1994). Deference is given to the district court          from Hysell was improper because it violated the district
because “[t]he trial judge is in the best position to determine    court’s pre-trial order, we do not believe the reference was
the nature of the alleged jury misconduct . . . [and] is also in   flagrant or requires a reversal. Our review of the record leads
the best position to determine appropriate remedies for any        us to believe that reference was accidental, did not mislead
demonstrated misconduct.” United States v. Copeland, 51            the jury or prejudice Trujillo, and was an isolated statement.
F.3d 611, 613 (6th Cir. 1995).                                     Moreover, immediately after the improper statement by
                                                                   Bryndza, the district court properly admonished the jury, and
  As we have previously explained:                                 we cannot say that the other evidence of Trujillo’s guilt is so
                                                                   insubstantial that a reversal is required in light of this
  When reviewing claims of prosecutorial misconduct, we            improper reference. Accordingly, the district court did not
  determine first whether the statements were improper.            abuse its discretion in denying Trujillo’s motion for a
  See United States v. Krebs, 788 F.2d 1166, 1177 (6th Cir.        mistrial.
  1986). If they appear improper, we then look to see if
  they were flagrant and warrant reversal. See United                G. CUMULATIVE ERROR
  States v. Carroll, 26 F.3d 1380, 1388 (6th Cir. 1994). To
  determine flagrancy, the standard set by this Court is: 1)         Trujillo argues that, even if no single assignment of error is
  whether the statements tended to mislead the jury or             sufficient to warrant a new trial, the totality of errors deprived
  prejudice the defendant; 2) whether the statements were          her of her constitutional right to a fair trial. Accordingly,
  isolated or among a series of improper statements; 3)            Trujillo asks us to grant her a new trial based upon a theory of
  whether the statements were deliberately or accidentally         cumulative error.
  before the jury; and 4) the total strength of the evidence
No. 02-1521                     United States v. Trujillo     31    32    United States v. Trujillo                     No. 02-1521

  The Government argues that, because Trujillo has failed to          H. ORGANIZER/LEADER ENHANCEMENT
demonstrate that the district court committed any individual
errors, her claim of cumulative error fails. In any event, the         Finally, Trujillo argues that, at a minimum, she is entitled
Government claims that Trujillo has failed to demonstrate that      to a new sentencing hearing because the district court erred in
Trujillo was deprived of her right to a fair trial as a result of   enhancing her offense level by two levels, pursuant to
any of the district court’s rulings.                                U.S.S.G. § 3B1.1(c), for being an organizer or leader in the
                                                                    conspiracy. Trujillo asserts that the evidence presented
  In order to obtain a new trial based upon cumulative error,       during her trial clearly established that the leader of the
a defendant must show that the combined effect of                   conspiracy was her husband, Julio, and that the only actions
individually harmless errors was so prejudicial as to render        which she allegedly took in furtherance of the conspiracy was
his trial fundamentally unfair. United States v. Parker, 997        to rent cars for Campos and Rogensues to be used in the
F.2d 219, 221 (6th Cir. 1993). This is so because “errors that      transportation of marijuana. Accordingly, Trujillo asks the
might not be so prejudicial as to amount to a deprivation of        Court to remand this matter for re-sentencing with directions
due process when considered alone . . . may cumulatively            to the district court that she not receive a two-level
produce a trial setting that is fundamentally unfair.” United       enhancement for being an organizer or leader.
States v. Hernandez, 227 F.3d 686, 697 (6th Cir. 2000)(citing
Walker v. Engle, 703 F.2d 959, 963 (6th Cir. 1983))(internal           The Government contends that the evidence presented at
quotation marks omitted).                                           trial proved that Trujillo exercised control over Campos and
                                                                    Rogensues. Accordingly, the Government claims that the
   However, the only error committed by the district court was      district court did not err in enhancing Trujillo’s base offense
in admitting some hearsay statements made by DEA Task               level by two pursuant to U.S.S.G. § 3B1.1(c).
Force Agents Thurston and Powell. We have found this error
to be harmless, and Trujillo has failed to identify any other         Title 18 U.S.C. § 3742(e) provides that courts of appeals
error committed by the district court which could be                “shall accept the findings of fact of the district court unless
combined with this harmless error in order to support a             they are clearly erroneous and shall give due deference to the
finding of cumulative error and which would rise to the level       district court’s application of the guidelines to the facts.” Id.;
of fundamental unfairness. United States v. Rivera, 900 F.2d        United States v. Jackson-Randolph, 282 F.3d 369, 389-90
1462, 1471 (10th Cir. 1990)(holding that “a cumulative-error        (6th Cir. 2002). U.S.S.G. § 3B1.1(c) provides that “[i]f the
analysis should evaluate only the effect of matters determined      defendant was an organizer, leader, manager, or supervisor in
to be error, not the cumulative effect of non-errors.”). In         any criminal activity other than described in (a) or (b),
short, there is no showing in the record in this case that          increase by 2 levels.” Id. (emphasis in original). Thus, the
Trujillo was denied a fundamentally fair trial. United States       Sentencing Guidelines provision “requires a sentencing court
v. Ashworth, 836 F.2d 260, 267 (6th Cir. 1988). Accordingly,        to enhance a sentence [by] two levels if the court finds that
Trujillo is not entitled to a new trial based upon her claim of     the accused served in a managerial or supervisory role during
cumulative error.                                                   the criminal activity.” Jones v. United States, 161 F.3d 397,
                                                                    399 (6th Cir. 1998).
                                                                     In the present case, the evidence presented by the
                                                                    Government at trial clearly established that Trujillo exercised
No. 02-1521                   United States v. Trujillo   33

control, supervision, and management over Campos and
Rogensues. Trujillo recruited Campos to transport the
marijuana across the country for her; she provided
transportation for Campos to do so; she provided instruction
as to who and where to meet in order to obtain the marijuana;
and she instructed Campos and Rogensues concerning how to
handle the marijuana upon their return to Detroit, i.e., she
instructed them to “bring in the babies from the cold so that
they won’t get cold” which Campos understood as coded
language instructing her to bring the marijuana into Campos’
house. Accordingly, based upon the evidence presented at
trial, we find that the district court did not clearly err in
denying Trujillo’s objection to the two-level enhancement
which she received, pursuant to U.S.S.G. § 3B1.1(c), for
being an organizer or leader of the charged conspiracy.
                   III. CONCLUSION
  Accordingly, for the reasons set forth above, we AFFIRM
the judgment and the sentence imposed upon Trujillo by the
district court.
