United States v. Gonzales ( 1997 )


Menu:
  •            IN THE UNITED STATES COURT OF APPEALS
    
                       FOR THE FIFTH CIRCUIT
    
    
                          _______________
    
                            No. 96-20637
                          _______________
    
    
                     UNITED STATES OF AMERICA,
    
                                            Plaintiff-Appellee,
    
                              VERSUS
    
           ENRIQUE GONZALES, JR.; ENRIQUE GONZALES, SR.;
            and WILSON OLIVARES, a/k/a Olivares Wilson,
    
                                            Defendants-Appellants.
    
    
    * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
    
    
                          _______________
    
                            No. 96-20954
                          _______________
    
    
                     UNITED STATES OF AMERICA,
    
                                            Plaintiff-Appellee,
    
                              VERSUS
    
                      ENRIQUE GONZALES, JR.,
    
                                            Defendant-Appellant.
    
    
    
                     _________________________
    
           Appeals from the United States District Court
                 for the Southern District of Texas
                      _________________________
    
                          August 26, 1997
    Before POLITZ, Chief Judge, HIGGINBOTHAM and SMITH, Circuit Judges.
    
    JERRY E. SMITH, Circuit Judge:
    
    
    
         Enrique Gonzales, Sr., Enrique Gonzales, Jr., and Wilson
    
    Olivares challenge their convictions of participation in a drug
    
    trafficking conspiracy.     We affirm.
    
    
    
                                       I.
    
                                       A.
    
         A drug trafficking task force, including officers of the
    
    Department of Public Safety, the Bureau of Alcohol, Tobacco and
    
    Firearms (“ATF”), and the Houston Police Department learned of a
    
    potential   drug   dealer   from   a    confidential   informant,   Jose
    
    Benvides, who advised officers that a man named “Doni” had offered
    
    to sell him a large quantity of cocaine.      Relying on this informa-
    
    tion, the task force planned a sting.       Benvides was instructed to
    
    arrange the transaction, advising Doni that his “cousin” wished to
    
    purchase a large quantity of cocaine. An undercover officer, Oscar
    
    Garcia, posed as Benvides's cousin.      Benvides and Doni agreed that
    
    Garcia would purchase two kilograms of cocaine from Doni for
    
    $44,000, and Doni instructed Benvides and Garcia to meet him at a
    
    bar to execute the transaction.
    
         After Benvides and Garcia arrived at the designated location,
    
    Doni introduced himself to Garcia and asked to see the money.
    
    Garcia displayed $42,000 in “show money” that he had obtained for
    
    the sting. After satisfying himself that the money was sufficient,
    
    
                                       2
    Doni placed a phone call to his associates and confirmed the deal.
    
    Doni's associates returned the call approximately one hour later,
    
    and Doni directed Garcia to the location of the final transaction.
    
    Garcia convinced Doni to ride with Benvides, then notified the task
    
    force of their destination.
    
         When the three men arrived at their destination, a warehouse,
    
    Benvides was taken inside to verify that the cocaine was present.
    
    Meanwhile, Garcia remained outside and met the surveillance team,
    
    arranging a final “bust signal” and handing off the “show money.”
    
    Shortly thereafter, Benvides called to confirm the presence of the
    
    cocaine, and Garcia approached the warehouse.
    
         Before Garcia could enter, Doni asked to see the money again.
    
    Having already handed off the money, Garcia stalled and demanded to
    
    see the drugs first.   Doni was adamant, however, and eventually
    
    Garcia instructed Benvides to retrieve the money from his car,
    
    knowing Benvides would find nothing.   The situation grew volatile.
    
    During this exchange, Doni realized that Garcia was carrying a
    
    pistol and became highly agitated, despite Garcia's reassurances.
    
    Finally, when Doni realized that Benvides could not find the money,
    
    he began to retreat into the warehouse.      Garcia followed Doni,
    
    giving the “bust signal” as he approached the warehouse door.
    
         As Garcia entered the warehouse, he observed Doni gesturing to
    
    someone inside, and he saw Olivares standing beside a pool table.
    
    Olivares immediately reached down beside the pool table and Garcia,
    
    fearful that Olivares was reaching for a weapon, drew his revolver,
    
    and identified himself as a police officer.     Olivares did draw a
    
    
                                    3
    weapon, but replaced it inside the table when confronted by Garcia.
    
          Simultaneously, the surveillance team entered the warehouse
    
    and secured the premises, handcuffing everyone inside.                   While
    
    securing the premises, one member of the surveillance team, Officer
    
    Hans Meisel, discovered a loaded machinegun jutting out from a
    
    missing panel in the pool table.1
    
          The officers learned that Olivares was living in the warehouse
    
    and requested permission to search.            Olivares signed a consent
    
    form, and the officers proceeded to search the warehouse for the
    
    drugs.    Benvides explained that Gonzales, Sr., had escorted him
    
    upstairs to view the cocaine, and he directed the officers to the
    
    location. The drugs had been moved, however, and a narcotics
    
    detection dog was called in to locate the drugs, which were found
    
    inside a brown paper bag that had been placed inside a bag of
    
    concrete.    Fingerprint testing subsequently revealed that a palm
    
    print on the brown paper bag matched those of Gonzales, Jr.                 The
    
    officers confiscated 1,998.4 grams of cocaine.
    
          As Meisel was leaving with the cocaine, Gonzales, Jr., mocked
    
    him, saying “we made you work for that s---, you all thought you
    
    weren't going to find it,” and claiming “all of that is mine.”               In
    
    response to a query by Meisel, Gonzales, Jr., explained that he was
    
    referring to “the coke and the gun.”
    
    
    
    
         1
           An ATF expert testified that the rifle was initially manufactured between
    1980 and 1982 as a semi-automatic weapon but had been modified to perform as a
    machinegun. Furthermore, the home-made machinegun was not registered in the
    National Firearms Registration and Transfer Records.
    
                                           4
                                         B.
    
          The appellants indicted on charges of possession with intent
    
    to distribute in excess of 500 grams of cocaine, in violation of
    
    21 U.S.C. §§ 841(1)(1) and 841(b)(1)(B); conspiracy to possess with
    
    intent to distribute cocaine, in violation of 21 U.S.C. § 846;
    
    using and carrying a firearm during and in relation to a drug
    
    trafficking crime, in violation of 18 U.S.C. § 924(c); and unlawful
    
    possession of a machinegun, in violation of 18 U.S.C. § 922(o).
    
    They filed motions to suppress the cocaine, and Gonzales, Jr.,
    
    moved to suppress his incriminating statements. At the suppression
    
    hearing,   Meisel   testified   that      Gonzales,   Jr.,   had   made   his
    
    incriminating statements voluntarily and without interrogation, and
    
    Garcia corroborated Meisel's account.          The district court denied
    
    the motions to suppress.
    
          The jury convicted on all counts.        The district court denied
    
    motions for judgments of acquittal.          The government gave notice
    
    that it intended to seek the thirty-year sentence enhancement for
    
    using and carrying a machinegun during and in relation to a drug
    
    trafficking offense, in violation of 18 U.S.C. § 924(c).                  The
    
    defendants objected, claiming that this aggravating factor had not
    
    been included in the indictment and could not be considered in the
    
    sentencing decision.     The defendants claimed they were informed at
    
    arraignment that the maximum penalty under § 924(c) was five years
    
    in prison, thus the sentence enhancement would offend due process.
    
    The   district   court   overruled   the    objections   and   adopted    the
    
    presentence reports, sentencing each defendant to 78 months on
    
    
                                         5
    counts    one,   two,   and   four,   to    be    served   concurrently,      and
    
    360 months on count three, to be served consecutively, for a total
    
    sentence of 438 months' imprisonment.
    
    
    
                                          II.
    
         Defendants argue that the evidence was insufficient to support
    
    their    convictions    for   conspiracy,        possession   with   intent    to
    
    distribute, and the firearms offenses.             We disagree.
    
    
    
                                          A.
    
         In a sufficiency challenge, we view the evidence in the light
    
    most favorable to the verdict and afford the government the benefit
    
    of all reasonable inferences.         See United States v. Dean, 
    59 F.3d 1479
    , 1484 (5th Cir. 1995), cert. denied, 
    116 S. Ct. 794
     (1996).
    
    The verdict must be affirmed if a rational trier of fact could have
    
    found the essential elements of the offense beyond a reasonable
    
    doubt.    See United States v. Walters, 
    87 F.3d 663
    , 667 (5th Cir.),
    
    cert. denied, 
    117 S. Ct. 498
     (1996); Dean, 59 F.3d at 1484.
    
    
    
                                          B.
    
         Olivares argues that the evidence was insufficient to prove
    
    that he participated in the conspiracy to distribute cocaine, nor
    
    did it prove that he aided and abetted the substantive offense of
    
    possession with intent to distribute cocaine.              We disagree.
    
    
    
    
                                           6
                                        1.
    
         In order to sustain a conviction for conspiracy to possess
    
    with intent to distribute cocaine, in violation of 21 U.S.C. § 846,
    
    the government must prove three essential elements: (1) that an
    
    agreement existed to violate federal narcotics laws; (2) that the
    
    defendant knew of the existence of the agreement; and (3) that the
    
    defendant voluntarily participated in the conspiracy.         See United
    
    States v. Garcia, 
    86 F.3d 394
    , 398 (5th Cir. 1996), cert. denied,
    
    
    117 S. Ct. 752
     (1997); United States v. Cardenas, 
    9 F.3d 1139
    , 1157
    
    (5th Cir. 1993); United States v. Maltos, 
    985 F.2d 743
    , 746 (5th
    
    Cir. 1992).
    
         The essential elements of conspiracy may be established by
    
    circumstantial evidence.        See United States v. Casilla, 
    20 F.3d 600
    , 603 (5th Cir. 1994); Cardenas, 9 F.3d at 1157.         “The govern-
    
    ment need not prove the essential elements by direct evidence
    
    alone.   The   agreement,   a    defendant’s   guilty   knowledge    and   a
    
    defendant’s participation in the conspiracy all may be inferred
    
    from the 'development and collocation of circumstances.'”           Maltos,
    
    985 F.2d at 746 (citations omitted); Ayala, 887 F.2d at 67.
    
    Therefore, we have consistently held that the jury may infer the
    
    existence of a conspiracy from the presence, association, and
    
    concerted action of the defendant with others.          See Cardenas, 9
    
    F.3d at 1157; Ayala, 887 F.2d at 67.
    
         Nevertheless, Olivares claims that the evidence established
    
    only his “mere presence” at the crime scene, not his participation
    
    in the narcotics conspiracy.       This argument is unavailing.
    
    
                                         7
          Granted, “it is well established that mere presence at the
    
    crime scene or close association with conspirators, standing alone,
    
    will not support an inference of participation in the conspiracy.”
    
    Maltos, 985 F.2d at 746 (emphasis added).             It is equally settled,
    
    however, that “presence or association is a factor that, along with
    
    other evidence, may be relied upon to find conspiratorial activity
    
    by the defendant.”         Cardenas, 9 F.3d at 1157 (emphasis added).2
    
    Olivares's presence at the crime scene, corroborated by physical
    
    evidence discovered there and the testimony of the arresting
    
    officers, was sufficient to support the inference that he was a
    
    member of the conspiracy.
    
          Garcia testified that when he entered the warehouse, he
    
    observed Doni make a hand gesture to someone inside.                         Moreover,
    
    immediately upon entering the warehouse, Garcia observed Olivares
    
    reaching down beside the pool table as if reaching for a weapon.
    
    In response, Garcia identified himself and drew his own revolver,
    
    at which time Olivares replaced his weapon inside the pool table.
    
    Finally, Meisel testified that he discovered a machinegun jutting
    
    out from a missing panel in the pool table.               This evidence supports
    
    an   inference     that   Olivares    was    a   member     of    the   conspiracy,
    
    responding to the hand signals of a co-conspirator in an attempt to
    
    protect the conspiracy by force.            Given this testimony, the jury
    
    reasonably      could   conclude   that     “this   was    a     case   of    culpable
    
    presence as opposed to mere presence.” United States v. Echeverri,
    
    
    982 F.2d 675
    , 678 (1st Cir. 1993).
    
          2
              Accord Casilla, 20 F.3d at 603; Maltos, 985 F.2d at 746.
    
                                            8
                                        2.
    
         Likewise, a defendant may be convicted of aiding and abetting
    
    a criminal offense when he associates with the criminal activity,
    
    participates in it, and acts to help it succeed.          See United States
    
    v. Pedroza, 
    78 F.3d 179
    , 183-84 (5th Cir. 1996); United States v.
    
    Vaden, 
    912 F.2d 780
    , 783 (5th Cir. 1990); see also 18 U.S.C. § 2
    
    (prohibiting aiding and abetting a criminal offense).          A defendant
    
    may be convicted of aiding and abetting the offense of possession
    
    with intent to distribute a controlled substance even if he did not
    
    have actual or constructive possession of the substance.            United
    
    States v. Pena, 
    949 F.2d 751
    , 755 (5th Cir. 1991).
    
         In order to sustain a conviction for possession with intent to
    
    distribute under 21 U.S.C. § 841(a)(1), the government must prove
    
    three essential elements: (1) knowing (2) possession of a con-
    
    trolled substance (3) with intent to distribute it.             See United
    
    States v. Brown, 
    29 F.3d 953
    , 958 (5th Cir. 1994).         The elements of
    
    possession   with   intent   to   distribute   may   be    established   by
    
    circumstantial evidence. Cardenas, 9 F.3d at 1158; Ayala, 887 F.2d
    
    at 68.   Furthermore, intent to distribute may be inferred from a
    
    large quantity of illegal narcotics and the value and quality of
    
    the drugs.   Casilla, 20 F.3d at 603; Cardenas, 9 F.3d at 1158;
    
    Ayala, 887 F.2d at 68.   In the instant case, it is undisputed that
    
    the defendants knowingly possessed the cocaine with the intent to
    
    distribute it. Therefore, the elements of the predicate possession
    
    offense are established.
    
         Likewise, the evidence was sufficient to prove that Olivares
    
    
                                        9
    aided and abetted the possession offense.    The evidence supporting
    
    a conspiracy conviction is generally sufficient to support an
    
    aiding and abetting conviction as well.     Casilla, 20 F.3d at 603;
    
    United States v. Salazar, 
    958 F.2d 1285
    , 1292 (5th Cir. 1992).
    
    The instant case is no exception.    Olivares attempted to draw a
    
    machinegun to protect the conspiracy, which certainly constitutes
    
    an affirmative act designed to help the criminal activity succeed.
    
    See, e.g., United States v. Polk, 
    56 F.3d 613
    , 620 (5th Cir. 1995);
    
    United States v. Jaramillo, 
    42 F.3d 920
    , 923 (5th Cir.), cert.
    
    denied, 
    514 U.S. 1134
     (1995).   Viewing the evidence in the light
    
    most favorable to the verdict, the jury was entitled to conclude
    
    that Olivares had aided and abetted the possession offense.
    
    
    
                                    C.
    
         Gonzales, Jr., argues that the evidence was insufficient to
    
    support his convictions for unlawful possession of a machinegun and
    
    aiding and abetting the use of a firearm during and in relation to
    
    a drug trafficking crime.   We disagree.
    
    
    
                                    1.
    
         Gonzales, Jr., claims that the evidence was insufficient to
    
    support his conviction for unlawful possession of a machinegun, in
    
    violation of 18 U.S.C. § 922(o), because the government failed to
    
    prove beyond a reasonable doubt that Gonzales did not possess the
    
    
    
    
                                    10
    machinegun prior to May 19, 1986.             His claim is meritless.3
    
          The statute provides that it shall be unlawful for any person
    
    to transfer or possess a machinegun, but there is an exception for
    
    “any lawful transfer or lawful possession of a machinegun that was
    
    lawfully possessed before the date this subsection takes effect.”
    
    18 U.S.C. § 922(o)(2)(B).          Gonzales, Jr., argues that the statute
    
    requires the government to demonstrate, beyond a reasonable doubt,
    
    that the defendant did not lawfully possess the machinegun before
    
    the effective date of the statute.             We disagree.
    
          The Due Process Clause requires the government to prove only
    
    the essential elements of the offense beyond a reasonable doubt.
    
    See In re Winship, 
    397 U.S. 358
    , 361-64 (1970).               The exception for
    
    lawfully possessed machineguns is an affirmative defense, however,
    
    not an element of the offense.          Therefore, the government is under
    
    no duty to disprove this affirmative defense; on the contrary, the
    
    burden was on Gonzales, Jr., to establish this affirmative defense.
    
    See United States v. Just, 
    74 F.3d 902
    , 904 (8th Cir. 1996).4
    
    Having failed to prove that he lawfully possessed the machinegun
    
    prior to May 19, 1986, Gonzales, Jr., has failed to establish his
    
    affirmative defense, and the government is under no obligation to
    
    prove the negative.
    
    
    
    
          3
               Gonzales, Sr., raises the same argument.
              4
             See also United States v. Green, 
    962 F.2d 938
    , 941 (9th Cir. 1992)
    (noting that “a defendant who relies on an exception to a statute made by a
    proviso or distinct clause, whether in the same section of the statute or
    elsewhere, has the burden of establishing and showing that he comes within the
    exception”) (quoting United States v. Guess, 
    629 F.2d 573
    , 576 (9th Cir. 1980)).
    
                                             11
                                     2.
    
         Gonzales, Jr., next argues that the evidence was insufficient
    
    to support the machinegun conviction because the government did not
    
    prove that Gonzales knew the weapon had been modified to fire as an
    
    automatic weapon. To obtain a conviction under 18 U.S.C. § 922(o),
    
    the government must prove that the defendant knew the firearm was
    
    a machinegun.   See Staples v. United States, 
    114 S. Ct. 1793
    , 1804
    
    (1994); United States v. Brantley, 
    68 F.3d 1283
    , 1289 (5th Cir.
    
    1995), cert. denied, 
    116 S. Ct. 964
     (1996), and cert. denied,
    
    
    116 S. Ct. 1334
     (1996).
    
         The jury reasonably could infer that the firearm intentionally
    
    had been converted into an automatic weapon and that Gonzales, Jr.,
    
    was aware of the modification.        Indeed, Gonzales, Jr., brashly
    
    claimed to be the owner of the machinegun.     It defies credibility
    
    to suggest that the owner of a machinegunSSalbeit a modified semi-
    
    automatic rifle converted into a machinegunSSdid not realize that
    
    the rifle was an automatic weapon.
    
    
    
                                     3.
    
         Gonzales, Jr., next claims that the evidence was insufficient
    
    to prove that he aided and abetted the use of a firearm during and
    
    in relation to a drug trafficking crime.         Gonzales bootstraps
    
    himself to the argument raised by Olivares, claiming that the
    
    evidence was insufficient to prove that Olivares was a voluntary
    
    participant in the drug trafficking conspiracy.         Ipso facto,
    
    although Olivares “used” the machinegun by brandishing it when
    
    
                                     12
    Garcia entered the warehouse, Gonzales argues that this use of the
    
    machinegun was not an act “in relation to” the conspiracy, because
    
    Olivares was not a member of the conspiracy.   We disagree.
    
         Given that the evidence was sufficient to demonstrate that
    
    Olivares was a member of the conspiracy, this claim must also fail.
    
    Olivares plainly brandished the weapon to protect the conspiracy,
    
    and this act obviously “facilitates or furthers the drug crime.”
    
    Smith v. United States, 
    508 U.S. 223
    , 232 (1993).
    
    
    
                                    D.
    
         Gonzales, Sr., argues that the evidence was insufficient to
    
    support his convictions for aiding and abetting the possession of
    
    a machinegun and aiding and abetting the use of a firearm during
    
    and in relation to a drug trafficking crime.        On both issues,
    
    Gonzales claims that the government failed to produce even a shred
    
    of evidence suggesting that he either knew of or used the firearms,
    
    precluding his conviction as an aider and abettor.
    
         We need not rely upon aider and abettor liability, however,
    
    because Gonzales, Sr., is also liable for the foreseeable acts of
    
    his co-conspirators, in accordance with the Pinkerton doctrine.
    
    Under the rule of Pinkerton v. United States, 
    328 U.S. 640
     (1946),
    
    “a party to a conspiracy may be held responsible for a substantive
    
    offense committed by a coconspirator in furtherance of a conspiracy
    
    even if the party does not participate in or have any knowledge of
    
    the substantive offense.”   United States v. Jensen, 
    41 F.3d 946
    ,
    
    955-56 (5th Cir. 1994) (citations omitted); Dean, 59 F.3d at 1489.
    
    
                                    13
    Accordingly, a defendant may be convicted under § 924(c) based on
    
    a co-conspirator's possession of a weapon during a drug trafficking
    
    crime, even if the defendant was unaware of the firearm possession.
    
    Dean, 59 F.3d at 1489; accord United States v. Mendoza-Burciaga,
    
    
    981 F.2d 192
    , 198 (5th Cir. 1992).         Based on the same principle,
    
    the Pinkerton doctrine also imposes vicarious criminal liability on
    
    defendants for co-conspirators' violations of § 922(o).
    
           There is no question that Gonzales, Sr., was a “father figure”
    
    in the drug trafficking conspiracy.         Benvides stated that when he
    
    entered the warehouse to inspect the cocaine, Gonzales, Sr.,
    
    escorted him upstairs and showed him the cocaine.            Based on this
    
    damning   testimony   and   the   circumstantial       evidence,   the   jury
    
    reasonably could conclude that Gonzales, Sr., was a member of the
    
    drug   conspiracy.    Accordingly,       under   the   Pinkerton   doctrine,
    
    Gonzales, Sr., is vicariously responsible for the use of a firearm
    
    during and in relation to a drug trafficking crime and for the
    
    possession of an unlawful machinegun.
    
    
    
                                       III.
    
           Defendants filed motions to suppress in the district court,
    
    and all three motions were denied following a suppression hearing.
    
    Gonzales, Sr., and Olivares argue that the warehouse was searched
    
    without a warrant or effective consent, and Gonzales, Jr., claims
    
    that the incriminating statements he made incident to arrest were
    
    the fruits of an unconstitutional custodial interrogation.               Both
    
    claims are meritless.
    
    
                                        14
                                    A.
    
         We review findings of fact rendered in a suppression hearing
    
    only for clear error, but conclusions of law are reviewed de novo.
    
    See United States v. Cardenas, 
    9 F.3d 1139
    , 1147 (5th Cir. 1993).
    
    In reviewing a ruling on a motion to suppress, we view the evidence
    
    in the light most favorable to the party that prevailed in the
    
    district court, considering the evidence offered at the suppression
    
    hearing as well as the evidence admitted at trial.     Id.
    
    
    
                                    B.
    
         A search conducted without a warrant is unreasonable per se
    
    and therefore unconstitutional under the Fourth Amendment, unless
    
    it is conducted pursuant to consent or under exigent circumstances.
    
    See United States v. Richard, 
    994 F.2d 244
    , 247 (5th Cir. 1993).
    
    The Supreme Court has long held that “one of the specifically
    
    established exceptions to the requirements of both a warrant and
    
    probable cause is a search that is conducted pursuant to consent.”
    
    Schneckloth v. Bustamonte, 
    412 U.S. 218
    , 219 (1973).
    
         In order to satisfy the consent exception, the government must
    
    establish that consent to search was freely and voluntarily given
    
    and that the individual who gave consent had authority to do so.
    
    See United States v. Jenkins, 
    46 F.3d 447
    , 451 (5th Cir. 1995).
    
    The government must prove by a preponderance of the evidence that
    
    consent was voluntary and effective. See United States v. Hurtado,
    
    
    905 F.2d 74
    , 75 (5th Cir. 1990).
    
         Gonzales, Sr., and Olivares argue that the search of the
    
    
                                    15
    warehouse was unconstitutional for two reasons: first, Olivares did
    
    not have authority to consent to the search; and second, Olivares'
    
    consent was not voluntary.       We disagree.
    
    
    
                                           1.
    
         When the government seeks to justify a warrantless search on
    
    the theory that consent was lawfully obtained from a third party,
    
    rather than from the person whose property was searched or seized,
    
    the government bears the burden of proving that the third party
    
    had either actual or apparent authority to consent.                To establish
    
    that a third party had actual authority to consent, the government
    
    must demonstrate “mutual use of the property by persons generally
    
    having joint access or control for most purposes.”                 United States
    
    v. Matlock, 
    415 U.S. 164
    , 171 n.7 (1974).                 To establish that a
    
    third   party   had   apparent   authority     to    consent,      however,   the
    
    government need demonstrate only that the officers reasonably
    
    believed that the third party was authorized to consent.                      See
    
    Illinois v. Rodriguez, 
    497 U.S. 177
    , 188 (1990).
    
         At   the   suppression      hearing,     Meisel      testified    that   the
    
    surveillance team entered the warehouse and secured the premises,
    
    then immediately asked to speak to the owner of the warehouse.
    
    When the defendants explained that the owner was not present, the
    
    officers asked    whether     anyone    was   in    the   “care,    custody   and
    
    control” of the warehouse.       Olivares volunteered, explaining that
    
    he lived on the premises and was in control of the warehouse.
    
    Accordingly,     Meisel requested consent to search, and Olivares
    
    
                                           16
    signed a consent form authorizing the officers to search the
    
    warehouse.
    
          The owner of the warehouse, Jesse Garcia, testified at the
    
    suppression hearing and confirmed that Olivares had been living in
    
    the warehouse for about two or three months prior to the arrest.
    
    Garcia also testified that Olivares was employed at the warehouse
    
    and enjoyed complete access to the warehouse.              Accordingly, the
    
    government    contends    that   Olivares    possessed     both   actual    and
    
    apparent authority to consent to the search.
    
          Viewing the evidence introduced at the suppression hearing in
    
    the light most favorable to the government, the record supports the
    
    conclusion that Olivares possessed “joint access or control” of the
    
    warehouse, by virtue of the authority delegated to him by Garcia,
    
    and thus had actual authority to consent to the search.                    At a
    
    minimum, however, Olivares had apparent authority, as the officers
    
    reasonably believed that he had authority.             Police officers are
    
    entitled to rely on the representations of persons regarding their
    
    authority to consent when the circumstances do not render such
    
    reliance unreasonable.       See Rodriguez, 497 U.S. at 188.5
    
    
    
                                          2.
    
          Olivares contends that his consent was involuntary.                   The
    
    
    
         5
           Olivares testified that he actually lived in a small brown house adjacent
    to the warehouse, rather than in the warehouse itself. This claim is irrelevant.
    First, Jesse Garcia testified that Olivares occasionally lived in the warehouse,
    worked in it, and enjoyed unlimited access to it. More importantly, Olivares
    represented himself as a resident of the warehouse and claimed that he possessed
    “care, custody and control” over it.
    
                                          17
    ultimate determination whether consent was voluntary is a question
    
    of fact to be determined from the totality of the circumstances; no
    
    single factor is dispositive.        Schneckloth v. Bustamonte, 
    412 U.S. 218
    , 227 (1973).         The evidence introduced at the suppression
    
    hearing, when viewed in the light most favorable to the government,
    
    adequately demonstrates that the officers did not coerce Olivares
    
    into giving his consent.
    
    
    
                                          C.
    
         Gonzales, Jr., argues that the district court erred in failing
    
    to suppress the incriminating statements he made during the arrest,
    
    claiming that they were the product of a custodial interrogation.
    
    We disagree.
    
         As   Meisel   was    leaving    with    the    cocaine,   Gonzales,   Jr.,
    
    voluntarily said, “we made you work for that s---, you all thought
    
    you weren't going to find it,” and claimed “all of that is mine.”
    
    Gonzales concedes that this statement was voluntary, and he does
    
    not contest its admissibility.              In response to a question by
    
    Meisel, however, Gonzales further explained that he had been
    
    referring to “the coke and the gun.”               Because this incriminating
    
    statement was offered in response to a question by a police officer
    
    without the benefit of Miranda warnings, Gonzales claims it was
    
    inadmissible.
    
         It is axiomatic that “the Fifth Amendment privilege against
    
    self-incrimination       prohibits   admitting       statements   given    by   a
    
    suspect during 'custodial interrogation' without a prior warning.”
    
    
                                          18
    Illinois v. Perkins, 
    496 U.S. 292
    , 296 (1990).                The Supreme Court
    
    has defined “custodial interrogation” as “'questioning initiated by
    
    law enforcement officers after a person has been taken into custody
    
    . . . .'”        Id. (quoting Miranda v. Arizona, 
    384 U.S. 436
    , 444
    
    (1966) (emphasis added)).           Gonzales, Jr., was in custody when he
    
    made the incriminating statements concerning the cocaine and the
    
    firearm,6 but his comments were not a response to “questioning
    
    initiated by law enforcement officers.”            To the contrary, Gonzales
    
    voluntarily initiated the colloquy, eliciting a response from
    
    Meisel. Accordingly, Meisel's request for clarification was not a
    
    “custodial interrogation” for purposes of the Miranda doctrine.
    
          Meisel did not coerce Gonzales into his confession; instead,
    
    Gonzales freely and voluntarily boasted about his crimes, and
    
    Meisel simply requested that Gonzales clarify his statement.                This
    
    spontaneous      colloquy    does    not    constitute   an    “interrogation.”
    
    “'Interrogation,' as conceptualized in Miranda, must reflect a
    
    measure of compulsion above and beyond that inherent in custody
    
    itself.”      Rhode Island v. Innis, 
    446 U.S. 291
    , 300 (1980).          No such
    
    coercion is evident in the instant case.           To the contrary, Gonzales
    
    spontaneously initiated the dialogue with Meisel, thereby waiving
    
    his right to remain silent.7
    
    
         6
           A suspect is “in custody” for purposes of Miranda when he is placed under
    formal arrest or when a reasonable person in the position of the suspect would
    understand the situation to constitute a restraint on freedom of movement to the
    degree that the law associates with formal arrest. United States v. Galberth,
    
    846 F.2d 983
    , 986 n.1 (5th Cir. 1988); United States v. Bengivenga, 
    845 F.2d 593
    ,
    596 (5th Cir. 1988) (en banc).
          7
              The term “interrogation” refers to “[a] practice that the police should
                                                                     (continued...)
    
                                               19
          Consequently, when a suspect spontaneously makes a statement,
    
    officers may request clarification of ambiguous statements without
    
    running afoul of the Fifth Amendment. Under similar circumstances,
    
    the Seventh Circuit has held that such requests for clarification
    
    of   enigmatic   statements     are   not   prohibited    by   Miranda.      See
    
    Andersen v. Thieret, 
    903 F.2d 526
    , 532 (7th Cir. 1990).              Likewise,
    
    in the instant case, “[t]he police officer's question was a neutral
    
    response, intended to clarify [Gonzales's] puzzling declaration;
    
    it was not coercive interrogation that Miranda seeks to prevent.”
    
    Id. at 532.      Meisel did not “interrogate” Gonzales, Jr., and did
    
    not violate the Fifth Amendment.
    
          Under these circumstances, the Miranda doctrine is inapposite.
    
    “Fidelity to the doctrine announced in Miranda requires that it be
    
    enforced strictly, but only in those types of situations in which
    
    the concerns that powered the decision are implicated.”                Berkemer
    
    v. McCarty, 
    468 U.S. 420
    , 437 (1984).          This is not such a case, and
    
    the district court did not err in denying the motion to suppress.
    
    
    
                                          IV.
    
          The defendants claim that the prohibition against possession
    
    of an unlawful machinegun, 18 U.S.C. § 922(o), is unconstitutional
    
    under United States v. Lopez, 
    514 U.S. 549
     (1995).                      To the
    
    
    (...continued)
    know is reasonably likely to evoke an incriminating response from a suspect.”
    Innis, 446 U.S. at 301; Gladden v. Roach, 
    864 F.2d 1196
    , 1198 (5th Cir. 1989).
    Meisel took no affirmative steps to “evoke an incriminating response,” but merely
    asked the suspect to clarify his spontaneous incriminating statement.        This
    request for clarification does not rise to the level of an “interrogation” for
    purposes of the Miranda doctrine.
    
                                           20
    contrary, we recently held that § 922(o) is constitutional.                 See
    
    United States v. Knutson, 
    113 F.3d 27
     (5th Cir. 1997).
    
    
    
                                          V.
    
          Gonzales, Jr., and Gonzales, Sr., urge us to hold that their
    
    indictments were fatally defective because they did not expressly
    
    charge the    defendants     with   using   a   machinegun   during   and    in
    
    relation to a drug trafficking crime.            See 18 U.S.C. § 924(c).8
    
    Because the defendants were not charged with using a machinegun,
    
    they entreat this court to vacate their thirty-year sentences for
    
    using a machinegun in violation of § 924(c).            In a similar vein,
    
    Olivares claims the arraignment proceedings were unconstitutional
    
    because he was not afforded fair notice of the charges against him.
    
    Therefore, Olivares also urges us to vacate his sentence.                    We
    
    decline these invitations.
    
    
    
                                          A.
    
          An indictment is constitutionally sufficient if it enumerates
    
    each element of the offense, notifies the defendant of the charges,
    
    and provides him with a double jeopardy defense against future
    
    prosecutions.      See Hamling v. United States, 
    418 U.S. 87
    , 117
    
    (1974); United States v. Nevers, 
    7 F.3d 59
    , 62 (5th Cir. 1993).
    
    The defendants claim that the indictment did not enumerate every
    
    
         8
           Section 924(c)(1) provides that any person who uses or carries a firearm
    during or in relation to a drug trafficking crime shall be imprisoned for five
    years, in addition to the punishment provided for the drug trafficking offense.
    If the firearm is a machinegun, however, the defendant shall be sentenced to an
    additional 30 years' imprisonment. See 18 U.S.C. § 924(c)(1).
    
                                          21
    element of the offense as required by Hamling, because it did not
    
    expressly charge them with using a machinegun.        We recently held
    
    that the thirty-year sentence for machinegun use is a sentence
    
    enhancement, however, rather than a separate offense.           See United
    
    States v. Branch, 
    91 F.3d 699
    , 738-40 (5th Cir. 1996), cert.
    
    denied, 117 S. Ct. 1466-67 (1997).        Accordingly, it need not be
    
    charged in the indictment in order to be constitutional.              Id.
    
    at 740.
    
         In addition, the defendants argue that they were deprived of
    
    fair notice of the charges against them, in violation of Hamling,
    
    because they were not expressly charged with using a machinegun.
    
    This claim is also meritless.       An indictment provides fair notice
    
    if it states the specific facts and circumstances surrounding the
    
    offense in sufficient detail to inform a defendant of the charges.
    
    See Hamling, 418 U.S. at 117-18; Nevers, 7 F.3d at 63.          Moreover,
    
    we will not invalidate an indictment for purely technical errors,
    
    but only for errors that mislead the defendant to his prejudice.
    
    See Nevers, 7 F.3d at 63.
    
         The defendants were fully apprised that they had been charged
    
    with using a firearm during and in relation to a drug trafficking
    
    crime, in violation of § 924(c).           Insofar as the indictment
    
    included all the elements of the offense, it adequately notified
    
    the defendants of the charges against them.         Indeed, insofar as
    
    they were charged under § 924(c)(1), they may be charged with
    
    knowledge   of   the   machinegun   enhancement,   which   is   expressly
    
    mandated by the plain language of the statute.       While a statutory
    
    
                                        22
    citation in the indictment cannot substitute for a statement of the
    
    elements of the offense, it may reinforce other references in the
    
    indictment to establish notice of the charges.         United States v.
    
    Campos-Asencio, 
    822 F.2d 506
    , 508 (5th Cir. 1987).
    
         Finally,    the   defendants   simultaneously   were   charged   with
    
    possession of an unlawful machinegun in violation of § 922(o).
    
    Therefore, they cannot credibly claim that they were surprised by
    
    the invocation of the machinegun sentence enhancement after trial,
    
    and they have suffered no prejudice.
    
    
    
                                        B.
    
         Olivares contends that the failure to charge the defendants
    
    with using a machinegun rendered the arraignment unconstitutional,
    
    because he did not receive fair notice of the charges against him
    
    at the arraignment.     We find no merit in this claim.
    
         An arraignment must be conducted in open court and must
    
    consist of reading the indictment to the defendant or stating the
    
    substance of the charge to him.          See FED. R. CRIM. P. 10.     “The
    
    interests at issue are the defendant's right to know of the charges
    
    and the right to have adequate information from which to prepare a
    
    defense.”   United States v. Correa-Venture, 
    6 F.3d 1070
    , 1073 (5th
    
    Cir. 1993).     Because the machinegun enhancement is not an element
    
    of the offense, and need not be included in the indictment, it is
    
    not a necessary element of the arraignment under rule 10. Olivares
    
    knew he was charged with violations of § 924(c), and he possessed
    
    adequate information to prepare his defense.           The Due Process
    
    
                                        23
    Clause requires no more.
    
          Indeed, since the thirty-year sentence for use of a machinegun
    
    is merely a sentence enhancement, rather than a separate offense,
    
    the Due Process Clause is satisfied if, as here, the defendant is
    
    notified of the sentence enhancement prior to sentencing, rather
    
    than trial.    See United States v. Anderson, 
    987 F.2d 251
    , 257 (5th
    
    Cir. 1993).
    
    
    
                                          VI.
    
          Olivares argues that the provision of § 924(c) mandating a
    
    thirty-year sentence enhancement for using or carrying a machinegun
    
    during and in relation to a drug trafficking crime is a cruel and
    
    unusual punishment, prohibited by the Eighth Amendment. This is an
    
    issue of first impression in this circuit.
    
    
    
                                           A.
    
          The Eighth Amendment prohibits sentences that are grossly
    
    disproportionate to the crime.          See Solem v. Helm, 
    463 U.S. 277
    ,
    
    288 (1983).9     This constitutional principle is tempered, however,
    
    by the corollary proposition that the determination of prison
    
    sentences is a legislative prerogative that is primarily within the
    
    province of legislatures, not courts.              See Rummel v. Estelle,
    
         9
           In Solem, the Court explained that claims of disproportionate punishment
    should be analyzed by considering three objective factors: (1) the gravity of the
    offense and the severity of the punishment; (2) the sentences imposed on other
    criminals in the same jurisdiction; and (3) the sentences imposed for commission
    of the same offense in other jurisdictions. See Solem, 463 U.S. at 290-92.
    Although the Solem criteria were articulated in a challenge to a state sentence,
    federal courts have applied a similar analysis in reviewing federal sentences.
    See United States v. O'Banion, 
    943 F.2d 1422
    , 1432 (5th Cir. 1991).
    
                                           24
    
    445 U.S. 263
    , 274-76 (1980). Indeed, in its most recent pronounce-
    
    ment concerning the proportionality doctrine, the Supreme Court
    
    reconsidered the constitutional foundation of the principle that
    
    disproportionate punishments are prohibited by the Eighth Amend-
    
    ment.        See Harmelin v. Michigan, 
    501 U.S. 957
     (1991).10            It is
    
    evident,       therefore,   that   the   contours   of   the   proportionality
    
    principle are less than pellucid.
    
          The Supreme Court has equivocated on the historical pedigree
    
    and proper scope of the Eighth Amendment proportionality doctrine,
    
    but it has never retreated from the fundamental principle that the
    
    determination of sentences is primarily a legislative prerogative.
    
    See Harmelin, 501 U.S. at 998 (opinion of Kennedy, J.). Therefore,
    
    the courts must grant “substantial deference to the broad authority
    
    that legislatures necessarily possess in determining the types and
    
    limits of punishments for crimes.”            Solem, 463 U.S. at 290; accord
    
    Harmelin, 501 U.S. at 999 (opinion of Kennedy, J.) (citing cases).
    
    Accordingly, we may not substitute our own judgment concerning the
    
    appropriateness of a particular sentence.            See Solem, 463 U.S. at
    
    290 n.16; accord United States v. O'Banion, 
    943 F.2d 1422
    , 1433
    
    (5th Cir. 1991).
    
          Whatever the precise contours of the proportionality doctrine,
    
    therefore, it is firmly established that successful challenges to
    
    
            10
             Compare Harmelin, 501 U.S. at 962-94 (opinion of Scalia, J.) (arguing
    that the Eighth Amendment does not permit proportionality review by the courts)
    with id. at 997-1005 (opinion of Kennedy, J.) (arguing that the Eighth Amendment
    permits “narrow” proportionality review) and id. at 1009-27 (opinion of White,
    J.) (arguing that proportionality review is central to the Eighth Amendment).
    See also McGruder v. Puckett, 
    954 F.2d 313
    , 315-16 (5th Cir. 1992) (discussing
    the evolution of the proportionality doctrine and its culmination in Harmelin).
    
                                             25
    the proportionality of punishments should be “exceedingly rare.”
    
    See, e.g., Harmelin, 501 U.S. at 1001 (opinion of Kennedy, J.);
    
    Solem, 463 U.S. at 289; Hutto v. Davis, 
    454 U.S. 370
    , 374 (1982);
    
    Rummel, 445 U.S. at 272.        This is not such an extraordinary case.
    
    
    
                                           B.
    
          We have concluded that the proportionality principle survives,
    
    in the aftermath of Harmelin, only in a very circumscribed form.
    
    When adjudicating an Eighth Amendment proportionality challenge,
    
    we must first make a threshold comparison between the gravity of
    
    the charged offense and the severity of the sentence.               Only if we
    
    conclude that the sentence is “grossly disproportionate” to the
    
    offense may we proceed to consider whether it offends the Eighth
    
    Amendment, under the test announced in Solem.            If we conclude that
    
    the sentence is not “grossly disproportionate,” our inquiry is
    
    finished, and we must defer to the will of Congress.              See McGruder
    
    v. Puckett, 
    954 F.2d 313
    , 316 (5th Cir. 1992).11
    
    
          11
             See, e.g., Smallwood v. Johnson, 
    73 F.3d 1343
    , 1347 (5th Cir.), cert.
    denied, 
    117 S. Ct. 212
     (1996); United States v. Fisher, 
    22 F.3d 574
    , 579-80 (5th
    Cir. 1994); Bradford v. Whitley, 
    953 F.2d 1008
    , 1012 (5th Cir. 1992). While we
    have stated, on at least one occasion, that Harmelin repudiated the
    proportionality doctrine entirely, see United States v. Cooks, 
    52 F.3d 101
    , 105
    (5th Cir. 1995), that suggestion is contrary to McGruder, the governing
    interpretation of Harmelin in this circuit.      See McGruder, 954 F.2d at 316
    (holding that the proportionality doctrine survived Harmelin); Bradford, 953 F.2d
    at 1012 (observing that Harmelin preserved the proportionality doctrine but
    substantially modified the analysis).
          In McGruder, we held that the plurality opinion authored by Justice Kennedy
    constituted the least common denominator among a majority of the Harmelin Court,
    and we adopted its methodology as the rule governing claims of disproportionate
    punishment in this circuit. See McGruder, 954 F.2d at 316. Under that analysis,
    the essence of the inquiry is the nexus between the offense and the punishment,
    and “intrajurisdictional and interjurisdictional analyses are appropriate only
    in the rare case in which a threshold comparison of the crime committed and the
                                                                   (continued...)
    
                                           26
          To determine whether a sentence is “grossly disproportionate,”
    
    we look to Rummel v. Estelle, 
    445 U.S. 263
     (1980), as a benchmark.12
    
    In Rummel, the defendant had been sentenced to life imprisonment
    
    following his conviction for obtaining $120.75 by false pretenses,
    
    pursuant to a “recidivist statute” providing a mandatory sentence
    
    of life imprisonment for any defendant convicted of three felonies.
    
    Noting that the line-drawing function inherent in the determination
    
    of punishment is a matter within the discretion of the legislature,
    
    the Court held that the life sentence was not so grossly dispropor-
    
    tionate as to offend the Eighth Amendment.             Id. at 284-85.
    
          In McGruder, we observed that Rummel provides a litmus test
    
    for claims that a particular sentence is “grossly disproportion-
    
    ate.”    See McGruder, 954 F.2d at 317.           McGruder was convicted of
    
    burglary and sentenced to life imprisonment without possibility of
    
    parole under a habitual offender statute.               We held that, when
    
    measured   against    Rummel,   McGruder's        sentence   was    not   grossly
    
    disproportionate, observing that McGruder's convictions for armed
    
    robbery, escape, and burglary were more severe than the forgery and
    
    fraud offenses for which Rummel had been convicted.             Insofar as the
    
    Supreme Court had held Rummel's sentence constitutional under the
    
    Eighth   Amendment,    we   concluded      that    McGruder's      sentence    was
    
    
    
    (...continued)
    sentence imposed leads to an inference of gross disproportionality.”      Harmelin,
    501 U.S. at 957 (opinion of Kennedy, J.).
          12
             We have observed that Rummel survived the subsequent decision in Solem
    and controls in all cases that are not “clearly distinguishable” from Rummel.
    See Smallwood, 73 F.3d at 1347; Burt v. Puckett, 
    933 F.2d 350
    , 352 (5th Cir.
    1991).
    
                                          27
    likewise constitutional, holding that his life sentence was not
    
    “grossly disproportionate” as a matter of law.             Id.
    
          As our analysis in McGruder demonstrates, Rummel establishes
    
    a benchmark for claims of disproportionate punishment under the
    
    Eighth Amendment.      See Smallwood v. Johnson, 
    73 F.3d 1343
    , 1347-48
    
    (5th Cir.), cert. denied, 
    117 S. Ct. 212
     (1996).              We acknowledge
    
    that the distinction between constitutional sentences and grossly
    
    disproportionate punishments is an inherently subjective judgment,
    
    defying bright lines and neutral principles of law.13 Nevertheless,
    
    we can say with certainty that the life sentence approved in Rummel
    
    falls on the constitutional side of the line, thereby providing a
    
    litmus test for claims of disproportionate punishment in violation
    
    of the Eighth Amendment.
    
    
    
                                          C.
    
          Measured    against    the   Rummel    benchmark,     the   thirty-year
    
    sentence enhancement for using or carrying a machinegun during and
    
    in relation to a drug offense is plainly constitutional.                First,
    
    the gravity of the offense is substantially greater than were the
    
    crimes punished in Rummel. We have recognized that machineguns are
    
    uniquely associated with drug trafficking and crimes of violence,
    
    posing a grave threat to the public.           See United States v. Kirk,
    
    
    105 F.3d 997
    , 1000-02 (5th Cir. 1997) (opinion of Higginbotham, J.)
    
    
    
          13
             As Justice Scalia observed in criticizing the proportionality doctrine,
    “the standards seem so inadequate that the proportionality principle becomes an
    invitation to imposition of subjective values.”      Harmelin, 501 U.S. at 986
    (opinion of Scalia, J.).
    
                                          28
    (discussing the threat posed by machineguns and the drug trade),
    
    petition for cert. filed, 
    65 U.S.L.W. 3756
     (U.S. May 5, 1997)
    
    (No. 96-1759). Like the convictions for armed robbery in McGruder,
    
    use of a machinegun during and in relation to a drug trafficking
    
    offense is a crime of violence per se, warranting severe penalties.
    
    See McGruder, 954 F.2d at 316-17. Measured against the convictions
    
    for fraud and forgery that formed the basis of Rummel's sentence,
    
    which pale in comparison to the violent crimes in the instant case,
    
    we are satisfied that the gravity of the offense warrants a severe
    
    punishment.14
    
          Furthermore, the severity of the punishment is not excessive,
    
    as evidenced by a comparison to the Rummel benchmark.               In Rummel,
    
    the Court upheld the constitutionality of a life sentence imposed
    
    on a non-violent criminal pursuant to a recidivist statute.                  See
    
    Rummel, 445 U.S. at 285.           Likewise, in McGruder we upheld the
    
    constitutionality of a life sentence without possibility of parole
    
    under a habitual offender statute.          See McGruder, 954 F.2d at 317.
    
    In contrast, the sentence enhancement at issue in the instant case
    
    merely imposes a sentence of thirty years for using or carrying a
    
    machinegun during and in relation to a drug trafficking offense.15
    
         14
            The Supreme Court has observed that “[a]s the criminal laws make clear,
    non-violent crimes are less serious than crimes marked by violence or the threat
    of violence.” Solem, 463 U.S. at 292-93.
          15
             Proportionality review is particularly problematic when it is invoked
    to draw quantitativeSSrather than qualitativeSSdistinctions among punishments.
    For example, the Supreme Court has applied the proportionality doctrine to review
    the constitutionality of capital punishment, because “'[t]he penalty of death
    differs from all other forms of criminal punishment.'” Rummel, 445 U.S. at 272
    (quoting Furman v. Georgia, 
    408 U.S. 238
    , 306 (1972) (opinion of Stewart, J.)).
    In contrast, the Court has been reluctant to apply the proportionality doctrine
                                                                   (continued...)
    
                                           29
          Accordingly, the thirty-year sentence enhancement for using or
    
    carrying a machinegun during and in relation to a drug trafficking
    
    crime is not “grossly disproportionate” to the gravity of the
    
    offense, when it is measured against the Rummel benchmark.                   The
    
    gravity of the offense is greater, and the penalty less severe,
    
    than were the life sentences upheld against Eighth Amendment
    
    challenges in Rummel and McGruder. Consequently, our inquiry is at
    
    an end.16
    
    
    
                                          VII.
    
          Claiming that the machinegun was not admitted into evidence at
    
    trial, Gonzales, Jr., argues that the district court reversibly
    
    erred by allowing jurors to inspect it during deliberations.
    
    Following the verdict, the district court denied Gonzales's motion
    
    for judgment of acquittal.
    
    
    
                                           A.
    
          This court takes a dim view of permitting jurors to consider
    
    
    (...continued)
    to prison terms, because “our decisions recognize that we lack clear objective
    standards to distinguish between sentences for different terms of years.”
    Harmelin, 501 U.S. at 1001 (opinion of Kennedy, J.). Under these circumstances,
    we must be particularly deferential to legislative determinations of sentences.
    See Hutto v. Davis, 
    454 U.S. 370
    , 373-74 (1982) (per curiam).
          16
             See Solem, 490 U.S. at 290 n.16 (“In view of the substantial deference
    that must be accorded legislatures and sentencing courts, a reviewing court
    rarely will be required to engage in extended analysis to determine that a
    sentence is not constitutionally disproportionate.”); United States v. Martinez,
    
    967 F.2d 1343
    , 1347-48 (9th Cir. 1992); see also United States v. Duerson,
    
    25 F.3d 376
    , 384 (6th Cir. 1994) (citing United States v. Elder, Nos. 91-5605,
    91-5606, 
    1992 WL 42346
     (6th Cir. Mar. 3, 1992) (unpublished) (holding the
    machinegun sentence enhancement constitutional)); United States v. Santos,
    
    64 F.3d 41
    , 45-47 (2nd Cir. 1995) (holding the silencer sentence enhancement
    under § 924(c) constitutional), vacated on other grounds, 
    116 S. Ct. 1038
     (1996).
    
                                           30
    items that were not properly admitted into evidence. “It is firmly
    
    established in this circuit that a defendant is entitled to a new
    
    trial when extrinsic evidence is introduced into the jury room
    
    'unless there is no reasonable probability that the jury's verdict
    
    was influenced by the material that improperly came before it.'”
    
    United States v. Luffred, 
    911 F.2d 1011
    , 1014 (5th Cir. 1990)
    
    (citation omitted); accord United States v. Ruggiero, 
    56 F.3d 647
    ,
    
    652 (5th Cir.), cert. denied, 
    116 S. Ct. 397
    , and cert. denied,
    
    
    116 S. Ct. 486
     (1995).        There is a rebuttable presumption of
    
    prejudice; consequently, the conviction must be reversed unless the
    
    government establishes that the error was harmless.           Ruggiero,
    
    56 F.3d at 652; Luffred, 911 F.2d at 1014.       We need not reach this
    
    issue, however, if the machinegun was properly admitted into
    
    evidence.
    
    
    
                                      B.
    
         When the machinegun was first introduced by the government,
    
    defense counsel raised a chain of custody objection, and the court
    
    reserved a ruling on the question pending the remaining testimony.
    
    The issue did not arise again until the jury requested the weapon,
    
    at which time defense counsel renewed his objection, claiming that
    
    the weapon had never been admitted into evidence. On the contrary,
    
    the government responded that the chain of custody had been proven.
    
    After   considering   these   arguments,   the   court   overruled   the
    
    objection and permitted the jury to inspect the machinegun.
    
         This decision was tantamount to an implicit ruling that the
    
    
                                      31
    chain of custody had been proven and the evidence was admissible.
    
    We review the admission of evidence only for abuse of discretion.
    
    See United States v. Royal, 
    972 F.2d 643
    , 648 (5th Cir. 1992).
    
    After reviewing the record, we are satisfied that the government
    
    introduced sufficient testimony to establish the chain of custody,
    
    and the court did not abuse its discretion by admitting the
    
    machinegun into evidence.17
    
          The instant case is distinguishable from Luffred, therefore,
    
    because the machinegun was properly admitted into evidence before
    
    it was submitted to the jury during deliberations.             Consequently,
    
    the weapon was not “extrinsic evidence,” and Luffred is inapposite.
    
    Whereas the Luffred jury inadvertently obtained extrinsic evidence,
    
    in the instant case the court expressly ordered that the machinegun
    
    be submitted to the jury. Under these circumstances, the court did
    
    not abuse its discretion in permitting the jury to inspect the
    
    machinegun.
    
    
    
                                          C.
    
          Even assuming arguendo that the district court erred in
    
    submitting the machinegun to the jury, the error was harmless.               In
    
    determining whether the introduction of extrinsic evidence was
    
    harmless, we must consider its content, the manner in which it came
    
    before the jury, and the weight of the evidence offered against the
    
    
    
         17
            Although we are satisfied that the weapon was admissible, we express no
    opinion as to whether the district court abused its discretion by reserving its
    ruling on the chain of custody objection until jury deliberations had commenced,
    as Gonzales, Jr., does not raise this issue on appeal.
    
                                          32
    defendant.    Ruggiero, 56 F.3d at 653; Luffred, 911 F.2d at 1014.
    
          The government introduced overwhelming evidence to prove that
    
    the machinegun had been used during and in relation to the drug
    
    trafficking crime, including the testimony of Garcia, who con-
    
    fronted Olivares      as   he   drew   the    machinegun,   and   Meisel,   who
    
    discovered the weapon in the pool table.           Likewise, the government
    
    introduced the statement of Gonzales, Jr., who claimed to be the
    
    owner of the machinegun following his arrest.
    
          Moreover, an ATF agent identified the weapon and testified
    
    that the semi-automatic rifle had been modified into an automatic
    
    weapon.    Finally, a photograph of the machinegun was submitted to
    
    the jury.      Under these circumstances, there is no reasonable
    
    possibility that the introduction of the machinegun influenced the
    
    verdict.18
    
    
    
                                           VII.
    
          Gonzales, Jr., argues that the district court erred in denying
    
    his motion for new trial on the basis of newly discovered evidence,
    
    alleging that the government did not disclose exculpatory evidence
    
    before trial, as required by Brady v. Maryland, 
    373 U.S. 83
     (1963).
    
    We reject this argument.
    
    
    
         18
            Gonzales, Jr., cites Luffred for the proposition that the mere fact that
    the jury requests to consider extrinsic evidence renders it per se prejudicial.
    Luffred, 911 F.2d at 1014. Luffred must be limited to its unique facts, however.
    The extrinsic material at issue there was a chart that illustrated a series of
    transactions, implying relationships that were not supported by the evidence.
    In contrast, the machinegun at issue in the instant case was physical evidence,
    and its submission did not introduce any inherently inadmissible or prejudicial
    material into the jury's deliberations.
    
                                            33
                                    A.
    
         We review Brady determinations de novo.     United States v.
    
    Green, 
    46 F.3d 461
    , 464 (5th Cir.), cert. denied, 
    115 S. Ct. 2629
    
    (1995).     Brady violations require reversal only if there is a
    
    “reasonable probability” that the outcome of the trial would have
    
    been different if the evidence had been disclosed to the defendant.
    
    See United States v. Bagley, 
    473 U.S. 667
    , 682 (1985).    A “reason-
    
    able probability” is established only when the failure to disclose
    
    the evidence “could reasonably be taken to put the whole case in
    
    such a different light as to undermine confidence in the verdict.”
    
    Kyles v. Whitley, 
    514 U.S. 419
    , 435 (1995). Although this standard
    
    does not require the defendant to establish that he would have been
    
    acquitted had the evidence been disclosed, he must establish that
    
    the suppression of exculpatory evidence by the government “'under-
    
    mines confidence in the outcome of the trial.'”          Id. at 434
    
    (quoting Bagley, 473 U.S. at 678).
    
    
    
                                    B.
    
         Donaciano Ortega (“Doni”), who pleaded guilty prior to trial,
    
    allegedly told the police he did not believe that Gonzales, Jr.,
    
    had been involved in the drug conspiracy. Based on this statement,
    
    Gonzales, jr., claimed the government had suppressed exculpatory
    
    evidence.
    
         Assuming arguendo that the alleged statement was exculpatory,
    
    it does not merit a new trial, as Gonzales, Jr., suffered no
    
    
    
    
                                    34
    prejudice.19     First, the district court noted that other witnesses
    
    testified    that   Gonzales,    Jr.,      was   not   a   member   of    the   drug
    
    trafficking conspiracy. We have consistently held that there is no
    
    Brady violation where        undisclosed evidence is merely cumulative.
    
    See Spence v. Johnson, 
    80 F.3d 989
    , 995 (5th Cir.), cert. denied,
    
    
    117 S. Ct. 519
     (1996).20
    
          Furthermore, the evidence against Gonzales, Jr., was over-
    
    whelming.      Fingerprints on the paper bag containing the cocaine
    
    belonged    to   Gonzales,    Jr.     He     made   incriminating        statements
    
    following the arrest, claiming ownership of the cocaine and the
    
    machinegun.      Olivares testified that Gonzales, Jr., had owned the
    
    machinegun.      Given the weight of this evidence, the exclusion of
    
    one equivocal statement by a co-conspirator does not undermine
    
    confidence in the verdict, Kyles, 514 U.S. at 434-35, as there is
    
    no reasonable probability that Gonzales would have been acquitted
    
    if the exculpatory testimony had been admitted, Bagley, 473 U.S.
    
    at 682.
    
          The judgments of conviction and sentence are AFFIRMED.
    
    
    
    
         19
            At a hearing on the motion for new trial, the government hotly contested
    the charge that it had concealed exculpatory information, insisting that Doni did
    not exculpate Gonzales from the conspiracy. Furthermore, Doni admitted that his
    opinion was not based on personal knowledge. The district court found that the
    conflicting evidence was inconclusive, and it was not persuaded that Doni had
    made exculpatory statements obligating the government to disclose the testimony.
    Because we conclude that Gonzales has failed to demonstrate prejudice, however,
    we need not consider whether the contested statements were subject to Brady.
          20
             See also Westley v. Johnson, 
    83 F.3d 714
    , 725 (5th Cir. 1996) (finding
    no Brady violation where statements included in a suppressed offense report were
    contained in other records and testimony), cert. denied, 
    117 S. Ct. 773
     (1997);
    Allridge v. Scott, 
    41 F.3d 213
    , 218 (5th Cir. 1994) (holding that the failure to
    disclose cumulative evidence could not have affected the outcome of the trial).
    
                                            35