IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________
No. 98-10110 _______________
UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS
ROBERTO ROBLES, ARTURO HERRERA, and ARTURO GURRUSQUIETTA, Defendants-Appellants. _________________________
Appeals from the United States District Court for the Northern District of Texas (3:97-CR-158-16-P) _________________________
August 26, 1999
Before JOLLY and SMITH, Circuit Judges For some time, government agents had and VANCE, District Judge* been gathering evidence about a substantial conspiracy in the Dallas area to distribute JERRY E. SMITH, Circuit Judge:** marihuana imported from Mexico. Through the testimony of co-conspirators and law Roberto Robles, Arturo Herrera, and enforcement agents, and based on physical Arturo Gurrusquietta were convicted under evidence obtained during government searches 21 U.S.C. § 846 and 18 U.S.C. § 834(b) of and surveillance, the government established marihuana distribution and using a that the conspiracy was run by the de la Torre communications device to facilitate a drug family. crime. Robles and Herrera were convicted under 18 U.S.C. § 1956 for money laundering. 1. We affirm except for Gurrusquietta’s sentence, which we remand for resentencing.
I. A.
* District Judge of the Eastern District of Louisiana, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Miguel de la Torre, an indicted co- his organization. Identifying Robles in the conspirator who pleaded guilty before trial, courtroom, Miguel explained that Robles testified that he headed a marihuana trafficking collected money and weighed marihuana. organization based in Dallas. Someone in Robles began working for the organization in Dallas would send money to a runner in April 1997, after his brother was arrested. Mexico, who would arrange to buy the marihuana and package it for shipment over Robles’s duties included repackaging large the border. Once the marihuana reached bundles of marihuana into one pound units for Laredo, Texas, one of three men in de la resale. He also collected money owed to Torre’s organization would receive the Miguel for marihuana, sometimes on his own marihuana and transfer it to Irving, Texas, and sometimes with Miguel. Again, the where it was stored at de la Torre’s stash government provided recorded telephone house. conversations between Miguel and Robles, establishing that Miguel gave instructions to Miguel paid the runner in Mexico to Robles about money he needed to collect and arrange the purchase and would pay the marihuana that needed to be packaged. person who arranged the border crossing and would pay his three agents in Laredo to Miguel also testified about the role Herrera transport the marihuana from the border to played in the drug organization. Concerned Dallas. He usually used one of three about police surveillance, Miguel contacted companies, Western Union, Tex-Mex Herrera and asked him to see whether the Transfer, and Alas International, to pay the police were investigating him. He told Herrera members of his organization. At trial, he that he was dealing marihuana and that he identified a number of receipts showing thought he was being followed. transfers of money for purposes of buying and distributing marihuana. Herrera told Miguel that he knew of narcotics officers he could pay to protect When he had difficulty receiving his Miguel. He suggested that Miguel pay off marihuana from Mexico, Miguel testified that four narcotics officers at $3,000 a month. he would purchase marihuana from other After speaking with Herrera, Miguel testified sources. In particular, he identified appellant that he did pay Herrera about $3,000. Gurrusquietta and his brother Juan as two of his backup suppliers. He testified that in Again, the government offered recorded March 1997, he made purchases of both 30 telephone conversations that confirm Miguel’s pounds and 100 pounds of marihuana from testimony. In one conversation, Miguel gave Arturo Gurrusquietta. The third purchase, his address, date of birth, and full name to consisting of 110 pounds, occurred in April Herrera so that Herrera could find out whether 1997. Miguel was the target of surveillance. In another conversation, Herrera told Miguel the In the course of these transactions, Miguel results of his search and informed Miguel that had numerous telephone conversations with people Miguel did business with were under both Gurrusquietta brothers. The government investigation, and that one of these people was recorded a number of these conversations and informing the police. In other conversations, played them at trial. The taped conversations Herrera continued to assure Miguel that if he established that Arturo and Miguel discussed paid for protection, he would avoid arrest. amounts of marihuana available for purchase, the return of bad marihuana, packaging and Carmela de la Torre also testified, shipment problems for the marihuana, the corroborating much of Miguel’s testimony. price, and the payment of money for the She stated that she was familiar with many of marihuana. the participants in the organization, and she identified Herrera in the courtroom. When Miguel also testified that Robles worked for listening to taped telephone conversations,
2 Carmela identified Herrera’s voice and was The FBI agents participated in the search heard discussing terms of their police and found the gym bag, three cellular protection payments with him. She also telephones, and tax returns in the car. Inside testified that Miguel would tell her about how the gym bag, the searchers found $43,000 Robles worked for the organization by bundled in rubber bands and wrapped in collecting money and packaging marihuana.1 aluminum foil and a loaded handgun. McSwain testified that the packaging of the 2. money was typical for drug money and that the The government presented evidence cell phones found the vehicle matched numbers describing its surveillance of the de la Torre called by members of the de la Torre organization. In particular, DEA agent Joe organization. Additionally, the search turned Rodriguez explained how he followed a up tax returns for both Gurrusquietta’s. shipment of marihuana from the border to the Arturo Gurrusquietta showed a taxable income de la Torre “stash house” in Angelina, Texas. of $14,192. This tax return would later prove After a lawful search, the agents arrested significant in Arturo Gurrusquietta’s money Aguirre (Carmela’s boyfriend), Miguel de la laundering charge.2 Torre, and another co-conspirator at the Angelina location.
To link Arturo Gurrusquietta to the de la Torre organization, the government presented Agent John McSwain, who testified that agents found out, through their wiretap, that a drug transaction would take place on April 8 at the de la Torre residence. They put the house under surveillance and observed the arrival and then departure of a black Mustang. They followed the Mustang to another house and observed a man later identified as Arturo Gurrusquietta remove a gym bag from the Mustang and place it on the porch. A few minutes later, a silver LeBaron driven by a man later identified as Juan Gurrusquietta arrived. Taking the gym bag and a cellular telephone, Arturo Gurrusquietta got in the LeBaron and drove away.
McSwain and other FBI agents followed the LeBaron on a highway. They contacted two Texas Department of Public Safety officers and asked them to conduct a traffic stop. They informed the officers of their observations and that they had reason to believe narcotics were in the vehicle. The officers conducted a traffic stop based on the LeBaron’s abrupt lane change, then obtained consent to search the vehicle. 2 Arturo Gurrusquietta moved to exclude the evidence obtained during this search as unsupported by probable cause. Without holding 1 The court overruled Robles's objection to a hearing, the court reviewed the search in camera this testimony as inadmissible hearsay. and denied the motion.
3 Officer Joseph Emmett testified that he charged with conspiracy to commit money knew Herrera because they worked at the laundering in violation of 18 U.S.C. § 1956(h). same school. Herrera asked him to check for the names of people for outstanding warrants. A jury found all three appellants guilty of Despite being turned down, Herrera continued the drug conspiracy charges. Robles and to ask Emmett to check on names. Gurrusquietta were also convicted of one count, and Herrera was convicted of three Much of the government’s case depended counts, of using a communication device to on wiretap and physical evidence. Agent facilitate drug trafficking. Herrera and Arturo Canedo, fluent in Spanish, testified that Gurrusquietta were convicted on their money he listened to all the tapes made in the laundering counts, and Gurrusquietta was wiretaps and translated them into English. He convicted on his conspiracy to commit money described how the agents would try to identify laundering count. Herrera, however, was voices based on the conversations and the acquitted of his accessory to possession of numbers from which the calls originated. marihuana count. Other agents testified that they seized drug papers, money transfer receipts, scales, and II. other drug paraphernalia during warrant Robles and Herrera (but not Gurrusquietta) searches of seven different locations. A attack the sufficiency of the evidence for their number of witnesses testified as custodians of drug conspiracy convictions; Robles and telephone, pen register, wire transfer, shipping, Herrera challenge the sufficiency of the and pager records.3 evidence for their use of a communication device convictions. Herrera challenges the B. sufficiency of the evidence for his money Thirty-one defendants were indicted for laundering conviction, and Gurrusquietta conspiracy to import and distribute marihuana makes a similar challenge to his conspiracy to in violation of 21 U.S.C. § 846. None of the launder money conviction (but not his appellants was charged in the second count. substantive money laundering convictions). Subsequently, the indictment was twice superseded; the last superseding indictment Appellants also allege that several errors charged only twenty-one defendants and were made at trial. Robles makes several maintained basic conspiracy charges against all evidentiary challenges, arguing that Carmela’s three appellants. Additionally, Robles and testimony relating Miguel’s description of Gurrusquietta were charged with one count, Robles’s role was inadmissible hearsay and and Herrera was charged with three counts, of that (2) pen register and wiretap records did using a communication device to facilitate a not qualify for the business records exception drug-trafficking crime in violation of to the hearsay rule. He also objects that the 18 U.S.C. § 834(b). prosecutor’s statement of personal belief in Robles’s guilt prejudiced his trial. Herrera was also charged with one count of accessory after the fact to possession with Herrera attacks the district court’s refusal intent to distribute marihuana in violation of to sever his trial from the co-defendants’. He 18 U.S.C. § 3. Herrera was charged with one also alleges error occurred when the court count, and Gurrusquietta was charged with refused to allow him to call certain witnesses two counts, of money laundering in violation and to cross-examine certain government of 18 U.S.C. § 1956. Gurrusquietta was also witnesses. Relatedly, Herrera attacks his trial counsel for allegedly rendering ineffective assistance by failing to move for a judgment 3 Robles challenges the admission of this of acquittal at the close of evidence. evidence under the business records exception to Gurrusquietta argues that the court reversibly the hearsay rule, arguing that the government laid erred in failing to suppress evidence obtained insufficient foundation. during the April 8, 1997, traffic stop, because
4 the warrantless search was not supported by 1. probable cause. To convict of conspiracy under § 846, the government must prove beyond a reasonable Robles and Gurrusquietta challenge their doubt (1) the existence of an agreement sentences. Robles argues that the court clearly between two or more persons to violate a erred when it enhanced his sentence for use of federal drug statute; (2) that each conspirator a firearm and attributed 1,000 pounds of knew of the conspiracy; (3) that each marihuana to him. Gurrusquietta points out conspirator intended to join the conspiracy; that there is no evidence that he was involved and (4) that each conspirator did participate in in the distribution of the 1,000 kilograms the conspiracy. United States v. Ramirez, 145 attributed to him. F.3d 345, 350 (5th Cir. 1998). The government must prove more than knowledge We affirm the sufficiency of the evidence of a conspiracy or association with for all of the convictions and affirm all the trial conspirators. United States v. Grassi, 616 rulings. We dismiss, without prejudice, F.2d 1295, 1301 (5th Cir. 1980). When Herrera’s claim of ineffective assistance of combined with other circumstantial evidence, counsel. We affirm Robles’s sentencing knowledge and association may be used to enhancements, but we reverse and remand the prove an agreement to join a conspiracy. Id. calculation of the amounts of marihuana at 1301-02. Additionally, the government is attributed to Gurrusquietta. not required to prove knowledge of all details of the conspiracy or each of its members, A. provided that the defendant has knowledge of When reviewing a challenge to the the essentials of the conspiracy. United States sufficiency of the evidence, we review the v. Alvarez, 625 F.2d 1196, 1198 (5th Cir. evidence and all inferences reasonably drawn 1980). An agreement may be inferred from a from it in the light most favorable to the “concert of action,” voluntary participation verdict. Glasser v. United States, 315 U.S. 60 may be inferred from a “collocation of (1942). The conviction must be affirmed if circumstances,” and knowledge may be any rational trier of fact could have found the inferred from “surrounding circumstances.” essential elements of the charged offense Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir. beyond a reasonable doubt. Jackson v. 1988). Virginia, 443 U.S. 307 (1979).4 To establish a violation of using a communication device to facilitate a drug 4 Robles also invites us to review for felony, the government must prove: (1) factual insufficiency under Tibbs v. Florida, 457 knowing and intentional (2) use of a telephone U.S. 31, 37 (1982). Under a review for factual insufficiency, we may reverse if we find the jury’s verdict against the great weight of the evidence. In (...continued) this case, we “sit[] as a ‘thirteenth juror’ and CRIM. P. 33, which permits a district court to set disagree[] with the jury’s resolution of the aside a conviction that is against the weight of the conflicting testimony.” Id. at 42. We may reverse evidence. See United States v. Robertson, for a new trial if the government is free to seek 110 F.3d 1113, 1118 (5th Cir. 1997). We review another conviction and the defendant may again such determinations only for abuse of discretion. seek acquittal. In Tibbs, the Court reviewed a state See United States v. Lopez, 803 F.2d 969, 977 court proceeding in which the courts had (9th Cir. 1986). unambiguous authority to grant a new trial for verdicts going against the great weight of the Such error, however, must be preserved by a evidence. motion for a new trial. Because we find the evidence supporting Robles’s conviction both The authority for federal courts to reverse for legally and factually sufficient, we do not have to factual insufficiency, however, is based on FED. R. consider whether he sufficiently preserved error to (continued...) be entitled to this level of review.
5 (3) to facilitate a drug felony. United States v. conspiracy, including collecting money, Dixon, 132 F.3d 192, 200 (5th Cir. 1997). repackaging the marihuana for sale, and Because the evidence supporting the finding an adequate stash house. The evidence sufficiency of the drug conspiracy convictions is sufficient whether we review for legal or is almost identical to the evidence supporting factual sufficiency. Therefore, we affirm these communication device convictions, we Robles’s conviction of conspiring to distribute will examine these sufficiency challenges in violation of § 846 and of using a together. communication device to facilitate a drug crime in violation of § 834(b). a. Robles asserts that the evidence only b. supports his mere “presence and association” (i) with Miguel de la Torre, but not that he agreed Because Herrera failed to move for to join Miguel’s drug trafficking conspiracy. acquittal at the close of evidence, he did not Instead, he claims that he and Miguel spent preserve his objection to sufficiency of the time together socially for the purpose of dating evidence, so we review only for plain error. women. Even though Miguel testified that We may find plain error “only when the Robles “worked for him,” he also stated that appellant shows that (1) there is an error, (2) Robles would often wait outside when Miguel the error is plain, and (3) the error affects her went to collect money. Therefore, Robles substantial rights.” United States v. Ravitch, argues that he never agreed with Miguel that 128 F.3d 865, 869 (5th Cir. 1997) (citing he would work for him or with the United States v. Olano, 507 U.S. 725, 732 organization for the overall objective of (1993). Even if we find such an error, distributing and selling marihuana. however, we will not “exercise [our] discretion to correct such error[] unless the error Robles’s argument is unpersuasive. Miguel seriously affects the fairness, integrity, or testified that Robles would collect money and public reputation of judicial proceedings.” Id. repackage marihuana on behalf of the organization. Miguel’s testimony is “Error is defined as a deviation from a legal corroborated by recorded conversations rule in the absence of a valid waiver.” United between Robles and Miguel discussing States v. Calverley, 37 F.3d 160, 162 (5th Cir. problems with repackaging, collecting money, 1994) (en banc). “Plain is synonymous with and even the problems of locating a new stash ‘clear’ or ‘obvious’ and ‘at a minimum’ house. Carmela’s testimony also corroborated contemplates an error which was ‘clear under Miguel’s testimony by confirming that Robles current law’ at the time of the trial.” Id. worked for Miguel by collecting money for the Finally, “affecting substantial rights” is organization. Robles has offered no basis to understood to mean that the error “must affect disbelieve Miguel’s and Carmela’s testimony the outcome of the proceeding.” Id. at 164. as “incredible,” and basic credibility judgments are left to the jury. Even though Robles’s role (ii) in the conspiracy is relatively minor, he can be Essentially, Herrera claims that he acted held liable for it once it is shown he has only to dupe the de la Torre organization into voluntarily agreed to participate. United paying him money for police protection. States v. Gonzales, 866 F.2d 781, 788 (5th There is no evidence that Herrera transported, Cir. 1989). sold, distributed, or bought any marihuana. The only evidence of his involvement consists For similar reasons, Robles cannot claim of taped telephone conversations in which that he did not know that he was using a Herrera told Miguel that the police had communication device to facilitate a drug marked an “X” on the location of his house crime. Numerous recorded telephone and in which he asked for money to bribe conversations showed that he spoke to Miguel police officers. and Carmela about matters at the heart of the
6 Because there is no evidence that Herrera Herrera’s situation is not exactly analogous. actually acted to gain police protection for the While there is no evidence that he knew the de la Torres, he argues that there is no details or extent of the de la Torre conspiracy, evidence he intended to join the drug there is evidence that he knew enough about conspiracy by paying off police officers or that their activities to know they would want police he actually paid any bribes that would protection. Therefore, unlike the situation in constitute participation in the conspiracy. the “lookout cases” cited by Herrera, there is There is no evidence that Herrera was even in no question that he knew the nature and the position to pay bribes to police officers. purpose of the de la Torre conspiracy and that there was sufficient evidence to support the Herrera does not contest the evidence “knowledge” element of his conspiracy supporting the first element for a conspiracy conviction. By asking for (over the telephone) conviction: There is overwhelming evidence and accepting money to protect that that a conspiracy to distribute marihuana conspiracy, Herrera can be inferred to have existed. Instead, he focuses his assaults on the known he was taking money from an illegal last three elements: knowledge of the drug conspiracy. conspiracy, intention to join the conspiracy, (b) and participation in the conspiracy. He argues Miguel and Carmela testified that they that the court committed plain error in regard believed Herrera was providing them with to each of these latter three elements. protection from the police through bribes. Additionally, the government offered the (a) testimony of a Dallas police officer who Herrera asserts that his minimal role in the recounted Herrera’s efforts to get him to conspiracy is akin to that of a passive search for names of people under “lookout,” and he points us to cases in which investigation. The jury reasonably could have we found insufficient evidence to support inferred that Herrera did intend to pay bribes conspiracy convictions for alleged “lookouts.” or otherwise provide protection to the de la For instance, we have refused to infer Torre organization by finding out whether participation in a conspiracy by a defendant members of the organization were targets of who joined conspirators at a restaurant and police investigations. Therefore, under plain “seemed very watchful of the comings and error review, the government has provided goings in the restaurant, turning his head from sufficient evidence to support the “intention” left to right.” United States v. Jackson, 700 element of a conspiracy conviction. F.2d 163, 184 (5th Cir. 1983). “Without evidence that he knew the nature or purpose of the meeting or even that a large amount of (c) money was present,” we reversed the Herrera has a better argument when he conviction. Id. at 185. asserts that there is no evidence of some further act by him (i.e., paying bribes) to satisfy the “participation” element of a conspiracy conviction. While the evidence establishes that Herrera asked for (over the telephone) and received money that he said would be used to bribe officers, he maintains that the utter lack of evidence that he acted to do anything means that the “participation” element is not supportable.
Perhaps recognizing the force of this argument, the government claims that merely accepting the money and promising to provide police protection gave the conspirators a
7 “sense of safety.” By aiding the conspiracy in (4) with the intent to conceal the nature, this way, the government claims, Herrera location, source, ownership or control of the “participated” in a way that satisfies the fourth proceeds. United States v. Garza, 118 F.3d element of the conspiracy statute. 278, 284 (5th Cir. 1997). The government argues that Herrera’s actions meet these Irrespective of the validity of this argument, requirements. First, the recorded and even though there was not substantial conversations support the inference that evidence regarding Herrera's bribery attempts, Herrera accepted $3,000 from the de la Torre there was ample evidence from which the jury organization, thereby fulfilling the “financial could infer that he actually had tried to find transaction” element. Second, the out whether Miguel was under investigation. conversations revealed that Herrera knew Officer Joseph Emmett testified that Herrera about the de la Torre organization’s illegal attempted to enlist his aid in identifying police drug trafficking activities, and the jury could surveillance targets. Emmett explained that have inferred from these conversations that Herrera would ask him a couple times a week Herrera realized any money he received would to check police records for certain names and be the proceeds from those illegal activities. that Herrera would provide Emmett the names Third, Herrera’s conversations also revealed and birthdates of certain individuals. Emmett his promise to use the $3,000 to bribe Dallas further testified that despite his repeated police officers, thereby fulfilling the “intention refusals, Herrera persisted in asking him to do to promote” element. such checks through the spring of 1997. The government also reiterates that Herrera We cannot say the jury committed plain did not move for a judgment of acquittal at the error when it construed these actions as close of evidence and failed to preserve his “participation” for purposes of the conspiracy objection to the sufficiency of the evidence for charge. We therefore affirm the sufficiency of his money laundering conviction. Therefore, evidence for Herrera’s drug conspiracy and we review for plain error and will reverse only communication device convictions,5 based on if it would be a manifest miscarriage of justice his “participation” in trying to find out to allow the verdict to stand. United States v. information about his co-conspirators. We Bailey, 111 F.3d 1229, 1235 (5th Cir. 1997). find no plain error and affirm Herrera’s conviction for conspiracy and communication (i) device violations. Herrera claims that the $3,000 he received from the de la Torre organization does not 2. constitute a “financial transaction” within the a. meaning of § 1956. He points out that the To convict of money laundering under statute defines a “financial transaction” as “a § 1956, the government must prove that the transaction which in any way or degree affects defendant (1) knowingly conducted a financial interstate or foreign commerce . . . .” transaction that affects interstate or foreign § 1956(c)(4)(A). The statute t hen defines a commerce; (2) which involved the proceeds of “transaction” as a “purchase, sale, loan, an unlawful activity; and (3) with the intent to pledge, gift, transfer, delivery, or other promote or further that unlawful activity, or disposition” or some action involving a financial institution or its facilities. § 1956(c)(3). Therefore, as we have pointed 5 Almost all the evidence against Herrera out, a “financial transaction” must at least be a is based on his recorded conversations with Miguel “transaction” as defined in § 1956(c)(3). See de la Torre. His detailed telephone conversations United States v. Puig-Infante, 19 F.3d 929, with Miguel about checking his name and social 938 (5th Cir. 1994). security number for possible police investigations suffices to support his use of communication There is some disagreement over which device to facilitate a drug crime. transaction is the actual “money laundering”
8 transaction at issue. Herrera asserts that only his alleged bribe payments constitute the In Puig-Infante, the defendant received money laundering transaction and that his money in exchange from the sale of marihuana. acceptance of $3,000 from the de la Torres This appeared to be a transaction, but there should not be considered the “laundering” was no indication that the money she received transaction. Thus, he argues that the absence was the proceeds of unlawful activity. She of evidence that any bribe payments were then transported the money interstate by car. made is relevant to his money laundering We held that while the transportation of conviction. money interstate involved the proceeds of an unlawful activity, the act of transporting was The statute does not make any distinction, not a transaction for purposes of § 1956. Id. however, between a party who gives the proceeds of an illegal activity and one who As we will explain, the jury could infer that receives them. As we have explained, the the transfer of $3,000 from Miguel to Herrera question is whether the “transaction involved involved the proceeds of an unlawful activity. the proceeds of unlawful activity.” Puig- The only remaining question, then, is whether Infante, 19 F.3d at 939. this purely cash transaction meets the definition of a transaction affecting interstate commerce.
Herrera avers that even if his acceptance of the $3,000 is the transaction at issue, the record is devoid of evidence establishing how the $3,000 cash payment he received affected interstate or foreign commerce. He maintains that the government has failed to meet its burden to show even a de minimis effect on interstate commerce. See United States v. Westbrook, 119 F.3d 1176 (5th Cir. 1997). He points out that in cases in which courts have affirmed money laundering convictions, the “laundering” transactions have at least been conducted via wire or the mails and that such money was then deposited into bank accounts. See United States v. Alford, 999 F.2d 818, 824 (5th Cir. 1993).
This court has emphasized the importance of the interstate or foreign commerce requirement of the financial transaction element. For instance, we refused to allow the government to meet its “financial transaction” burden merely by proving that cash was transported interstate by an automobile. See Puig-Infante, 19 F.3d at 937. We similarly refused to permit a jury to infer a “financial transaction” from evidence that cash was discovered in a defendant’s home. See United States v. Ramirez, 954 F.2d 1035, 1039-40
9 (5th Cir. 1992).6 conceal” element. He argues that there is no evidence that he used the money to promote In neither of these cases, however, was the the de la Torre’s unlawful activity. Indeed, all reviewing court bound by the plain error of the agents conducting the de la Torre probe standard. Under plain error review, we ask admitted that they had no evidence that only if there would be a manifest miscarriage Herrera did anything at all with the money he of justice to allow the verdict to stand. Such received. They do point, however, to a manifest injustice occurs only if “the record Herrera’s statements in his recorded is devoid of evidence pointing to guilt, or . . . conversations. Herrera characterizes his because the evidence on a key element of the statements in these conversations as boasts and offense was so tenuous that a conviction deceptions and argues that those statements would be shocking.” Bailey, 111 F.3d alone are not sufficient to support his money at 1235. Under the limited review allowed by laundering conviction. the plain error standard, the jury did not commit plain error by inferring that the cash The government submitted recorded transaction between de la Torre and Herrera conversations in which where Carmela told had a substantial effect on interstate commerce Miguel that Herrera had accepted money from for purposes of the financial transaction their organization to bribe officers. Under element of § 1956. plain error review, this evidence is sufficient to support a reasonable jury’s inference that (ii) Herrera accepted the money with the intention Herrera further argues that the government of using it to promote the drug conspiracy did not meet its burden of proving that he through bribery. knew that the money he received came out of the proceeds of de la Torre’s drug activities. 3. The government did not ask Miguel to explain To demonstrate a conspiracy to commit whether the money he used to pay Herrera money laundering, the government must prove resulted from drug proceeds or was generated (1) the existence of a conspiratorial agreement, through other means. We cannot say, (2) one co-conspirator knowingly commits an however, that there is plain error in allowing overt act by participat ing in a financial the inference, from the voluminous evidence transaction, (3) that the financial transaction presented about the scale and scope of the de involves the proceeds of an unlawful activity, la Torre organization, that Miguel and and (4) that the conspirator participating in the Carmela generated most of their income from transaction had the intent to promote or their drug trafficking business. further that unlawful activity. United States v. Fierro, 38 F.3d 761, 768 (5th Cir. 1994). (iii) Alternatively, a conspirator may be held Herrera charges that the absence of responsible if he had the intent to conceal or evidence about how he disposed of the money disguise the nature, the location, source, is fatal to the “intent to promote” or “intent to ownership, or control of the proceeds of specified unlawful activity. § 1956(a).
6 Gurrusquietta does not challenge his In a similar case, the Tenth Circuit substantive money laundering conviction. refused to allow the government to establish an Instead, he argues that the government did not interstate commerce nexus based on a purely cash present sufficient evidence to support his transfer. The court chided the government because it “did not introduce a shred of evidence showing conviction for conspiring to commit money the origin or destination of the specific $200 in laundering. Specifically, he asserts that the Federal Reserve Notes that constituted the single government never showed that he agreed to alleged money laundering transaction. . . .” United join in a money laundering conspiracy. At States v. Grey, 56 F.3d 1219, 1225 (10th Cir. best, he claims that the government has only 1995). shown that he associated with individuals who
10 received money via wire transfers from Texas his trial counsel. Gurrusquietta raises a to Mexico. A person’s close association with challenge to the admission of evidence seized a conspirator is not enough to prove his during the April 8, 1997, traffic stop. intentional and knowing participation in the conspiracy. United States v. Magee, 821 F.2d 1. 234, 238 (5th Cir. 1987). a. We review the admission of evidence for Essentially, the government need only abuse of discretion. See United States v. establish that Gurrusquietta agreed to be part Coleman, 997 F.2d 1101, 1104 (5th Cir. of a conspiracy that would conduct financial 1993). Even if such an abuse occurred, we transactions with the proceeds from illegal will not reverse unless the error had a actions in furtherance of the conspiracy. The “substantial and injurious effect or influence in evidence establishes that Gurrusquietta had determining the jury’s verdict.” Lowery, 135 been a supplier to the de la Torre organization F.3d 957, 959 (5th Cir. 1998). since 1994 and knew the organization used wire payments to agents in Mexico to Carmela de la Torre testified that Miguel purchase marihuana. told her that Robles worked for their organization. Specifically, she explained that These payments over the wires meet the Miguel would tell her that he needed to financial transaction element of § 1956, and borrow the car to go with Robles to collect the use of money from the distribution of payments from drug sales. Id. Robles drugs in Dallas satisfied the “illegal proceeds” objected to this testimony as inadmissible element. The evidence also supported an hearsay. inference that the money was used for the purpose of purchasing marihuana, thereby Rule 801(d)(2)(E), FED. R. EVID., permits satisfying the “promoting in furtherance of the the admission of a “statement of a conspirator conspiracy” element. of a party during the course and in furtherance of the conspiracy.” To introduce such Gurrusquietta’s claim that he merely statements, the government must demonstrate associated with the conspirators is misleading. by a preponderance of the evidence that the The jury was entitled to infer from (1) his speaker made the statement in the course of substantial involvement in the supply of the conspiracy and in furtherance of it. United marihuana to the organization and (2) his States v. Narviz-Guerra, 148 F.3d 530, 536 brother’s agreement to send $15,000 to (5th Cir. 1998). Mexico for marihuana purchases that he agreed to participate in the money laundering There is no doubt that Carmela, Miguel, conspiracy. and Robles were members of a conspiracy. Carmela served as a telephone contact point B. and would need to know who was Appellants allege that the district court participating in the organization. Additionally, made a number of prejudicial errors. she testified that Miguel told her about Specifically, Robles attacks the admission of Robles’s role in the context of explaining why Carmela’s testimony and the admission of he was borrowing the car. This testimony telephone and pen register records seems to satisfy the requirement that the authenticating the wiretapped conversations. statement be made in the furtherance of the Herrera alleges that the court erred by refusing conspiracy, because Miguel explained that he (1) to allow witnesses to testify whether any needed the car to go and collect money from officers had been bribed; (2) to allow Herrera’s drug sales. The court did not abuse its counsel to cross-examine federal agents; and discretion in admitting this testimony under the (3) to sever Herrera’s trial from that of the rule 801(d)(2)(E) co-conspirator exception to other conspirators. Herrera also invites us to review, on direct appeal, the effectiveness of
11 the hearsay rule.7 b. Robles objects to the admission of “pen register” and wiretap orders from the Southwestern Bell Company(“SWB”), arguing that the government did not lay sufficient foundation to admit them under the business records exception to the hearsay rule. See FED. R. EVID. 803(6). The rule requires the government to lay foundation for business record evidence through the testimony of a witness who can attest to the procedures used to create and maintain the records within the business. United States v. Hutson, 821 F.2d 1015, 1020 (5th Cir. 1987). Robles charges that Mary Powell, a witness from the parent company (“SBC”), was a custodian who could certify that the records were correct.
Powell was an employee of SBC and worked in an office specializing in complying with “court orders.” She testified that the records were created by an employee of SWB in the regular course of business and that she personally maintained many of the records in her office. Although she did not personally create the records used in evidence, her testimony confirmed that the procedures for maintaining the records submitted into evidence occurred in the regular course of business. This testimony is sufficient to qualify for the rule 803(6) exception to the hearsay rule. See Hutson, 821 F.2d at 1020.
c. During her closing argument rebuttal, the prosecutor said, “Members of the jury, the five individuals that are before you today are involved in drug dealing in one way or another.” According to Robles, this is a statement of personal belief regarding guilt 7 that deeply prejudiced his case. Moreover, even if the admission was in error, Robles has not shown that the statement A prosecutor may not personally vouch for substantially influenced the verdict. After all, the the credibility of witnesses, but he may argue government introduced evidence of Robles’s reasonable inferences drawn from the conversations with Miguel discussing various matters related to the drug-trafficking scheme, evidence. United States v. Munoz, 150 F.3d including (1) the status of payment collections; (2) 401, 414-15 (5th Cir. 1998). The prosecutor’s the packaging of marihuana for sale; and (3) new statement here could be reasonably inferred locations for a stash house. This evidence would from the evidence she presented and does not render the admission of Carmela’s testimony vouch for the credibility of any witness. harmless. Moreover, Robles does not show how this
12 brief statement prejudices any of his substantial The government did not have to prove that rights to a degree meriting reversal. The Herrera actually paid the bribes to the police government offered substantial evidence, officers. Rather, the statute simply requires including recorded conversations in which the jury to find that Herrera accepted the Robles discussed drug-trafficking matters, to $3,000 “with the intent to promote the support his conviction. It is hard to see how carrying on of specified unlawful activity,” i.e., this statement could have made a difference in the drug-trafficking conspiracy. the verdict. The government offered substantial 2. evidence, in the form of recorded a. conversations between Miguel and Herrera, Herrera sought to present witnesses who establishing that Herrera promised Miguel to would testify that no police officers had been use the $3,000 to pay off police officers. bribed as a result of his payments. He Given the strength of this evidence supporting petitioned the court to allow the Dallas police the jury’s finding that Herrera intended to pay chief or deputy chief to testify that no evidence bribes, we do not think the exclusion of of bribes had been found as a result of an witnesses testifying that no actual bribe internal investigation. The government payments were made could have substantially objected, and the district court excluded these affected the jury’s determination. Therefore, witnesses, ruling that their testimony was the court did not commit reversible error when irrelevant and would not serve to impeach any it excluded Herrera’s profferred witnesses. government witnesses: “I don’t believe that’s relevant to any issue in the case other than you b. just want to establish nobody was bribed, and Herrera also sought to cross-examine nobody said that anybody was bribed. I just federal agents about statements Herrera made don’t see—that’s not an element of anything at the time of arrest. In those statements, that’s been charged.” Herrera explained that he had made up his bribery story to get money from Miguel and Herrera responds that the issue of whether that he had taken no action to pay bribes to he bribed anyone is relevant to the “financial police officers. The government filed a motion transaction” and “furtherance of unlawful in limine to exclude this evidence as conduct” element of his money laundering inadmissible hearsay. charge. As we have stated, the “financial transaction” element at issue is not Herrera’s The court asked Herrera to present an alleged bribe payments. Rather, for purposes applicable exception to the hearsay rule that of the financial transaction element of his would allow Herrera to cross-examine the money laundering conviction, Herrera’s witnesses about his post-arrest statements. receipt of the $3,000 in illegally generated Herrera offered none. Without a valid proceeds from the de la Torre organization exception to the hearsay rule, officers fulfills that element of the statute. testifying about Herrera’s statements to them would be testifying about an “out of court It is true, however, that whether Herrera statement” offered for the truth of the matter actually paid the bribes is relevant to whether asserted. Therefore, the court did not abuse he “intended to promote unlawful conduct” for its “wide latitude to impose reasonable limits purposes of § 1956. Therefore, the district on cross-examination” when it refused to court erred when it ruled that whether any admit hearsay evidence at trial. officer was bribed is “not an element of anything that’s been charged.” c. Herrera claims he should have been granted We must still consider, however, whether a severance. Rule 8(b), FED. R. CRIM. P., the excluded testimony prejudiced Herrera’s allows a court to join defendants in the same defense to such a degree requiring reversal. indictment “if they are alleged to have
13 participated in the same series of acts or to cure any risk of prejudice.” Zafiro, transactions constituting an offense or 506 U.S. at 539 (citing Richardson v. Marsh, offenses.” To protect defendants, however, 481 U.S. 200, 211 (1987)). The Court then FED. R. CRIM. P. 14 authorizes a severance if found no abuse of discretion in a denial of it appears the defendant “is prejudiced by a severance, even where each defendant had joinder o f offenses or of defendants in an accused the other defendant of the crime. The indictment.” A court should use rule 14 only Zafiro Court concluded that with the proper “if there is a serious risk that a joint trial would instructions, the jury could give separate compromise a specific trial right of one of the consideration to each individual defendant defendants, or prevent the jury from making a without prejudicing his co-defendant where the reliable judgment about guilt or innocence.” government offered evidence supporting guilt Zafiro v. United States, 506 U.S. 534, 539 for all the defendants. See id. at 541. (1993). We review denial of a severance for abuse of discretion. United States v. Pofahl, In the instant case, the court gave a limiting 990 F.2d 1456, 1483 (5th Cir. 1993). instruction telling the jury to consider each defendant’s guilt separately without imputing Herrera avers that he was highly prejudiced the guilt of one defendant to another. as a result of being tried with twenty co- Following Zafiro, and in the absence of a more defendants against whom the government specific example of prejudice, we defer to the provided wiretapped conversations depicting district court’s sound discretion over motions their involvement in the drug trafficking for severance.8 conspiracy. Essentially, Herrera argues that the cumulative effect of being tried with d. individuals who have been directly implicated Herrera’s counsel did not move for in the drug conspiracy highly prejudiced his judgment of acquittal at the close of all the ability to highlight his own very different evidence. Therefore, he did not preserve alleged role in the conspiracy. Herrera’s objections to the sufficiency of the evidence for his conspiracy, telephone use, and Herrera’s generalized claims of prejudice money laundering convictions. On the basis of do not show reversible error. The Zafiro this failure alone, Herrera’s appellate counsel Court did state that “[w]hen many defendants asks this court to find that Herrera received are tried together in a complex case and they ineffective assistance of counsel pursuant to have markedly different degrees of culpability, Strickland v. Washington, 466 U.S. 668 [the] risk of prejudice is heightened,” Zafiro, (1984). Following Washington, we will not 506 U.S. at 539. The case cited as an example reverse based o n an ineffective assistance of of this kind of prejudice involved a single trial counsel claim unless (1) the counsel’s of thirty-two defendants who themselves were performance is deficient and (2) the errors are part of eight different conspiracies. See so prejudicial as to deprive the defendant of a Kotteakos v. United States, 328 U.S. 750 fair trial. Belyeu v. Scott, 67 F.3d 535 (5th (1946). Cir. 1995).
Here, however, the government alleged only one conspiracy and only one organization of drug conspirators. Herrera dealt directly 8 with the head of this organization and Herrera does point to United States v. discussed matters related to protecting a single Cortinas, 142 F.3d 242 (5th Cir. 1998), in which we reversed a denial of severance where the form of drug trafficking. government had introduced, against co-defendants, “highly inflammatory evidence” of a shooting of a Additionally, the Zafiro Court emphasized 14-year-old boy. Id. at 248. No such similarly that though courts may determine that separate “inflammatory” evidence was offered here that trials are necessary, “less drastic measures, might have enraged the jury and motivated it to such as limiting instructions, often will suffice impute guilt to unrelated co-defendants.
14 “The general rule in this circuit is that a agent interventionSSand because the federal claim of ineffective assistance of counsel agents themselves did not have sufficient cannot be resolved on direct appeal when the probable causeSSthe court should have claim has not been raised before the district suppressed all evidence from this search. court since no opportunity existed to develop the record on the merits of the allegations.” A warrantless arrest must be supported by United States v. Higdon, 832 F.2d 312, probable cause. United States v. Shugart, 313-14 (5th Cir. 1987). Review is undertaken 117 F.3d 838, 846 (5th Cir.), cert. denied, only when the record allows a fair evaluation 118 S. Ct. 433 (1997). Probable cause exists of the claim. Id. when the totality of facts and circumstances within a police officer’s knowledge at the Herrera claims that his trial counsel’s failure moment of arrest are sufficient for a to move for acquittal at the close of evidence reasonable person to conclude that the suspect is obvious from the record and adequately had committed, or was in the process of developed for review. Still, we have allowed committing, an offense. Id. Because we find these types of claims on direct appeal only in that the challenged search was consented to cases in which the trial attorney had been given after a legitimate traffic stop, we do not a chance to respond to the allegations9 or consider whether probable cause existed to where government conduct was allegedly sustain a warrantless search. responsible for the ineffective assistance.10 Herrera’s trial counsel has not been given the The police testified that they stopped opportunity to explain his alleged error, and Gurrusquietta’s vehicle because it was there is no evidence to consider in the following a vehicle too closely, then swerved ineffective assistance of counsel record other and almost hit a police car. The government than the mere failure to move for an acquittal. claims that, having been lawfully stopped, This is hardly a developed record. Gurrusquietta consented to the search, thereby Accordingly, we dismiss the ineffective obviating the probable cause requirement. assistance claim without prejudice. Gurrusquietta does not contest that he was 3. stopped pursuant to a legitimate traffic stop or Gurrusquietta challenges the failure to that he consented to the search. Rather, he suppress evidence seized during the police contends that probable cause was still search of his car on April 8, 1997. He was necessary, because the state police would have observed by federal agents picking up a gym never stopped him were it not for the bag from a car that had previously been at the suspicions of the federal agents. In other de la Torre residence. The agents then words, because the traffic stop was motivated followed him on the highway, contacted state by federal agents’ suspicions of a drug police, and asked them to stop him for a traffic transaction, the stop itself must be supported violation. by probable cause to pass muster under the Fourth Amendment. After stopping him pursuant to a traffic violation, the police asked for and received Unfortunately for Gurrusquietta, we have consent to search the car. Gurrusquietta now upheld a search conducted pursuant to a traffic claims that because the state police officers stop motivated by suspicions but not would not have stopped him but for the federal supported by probable cause. Because we review only the objective reasonableness of a search, we will not consider the subjective 9 United States v. Phillips, 664 F.2d 971, motives of the officer conducting the search. 1040-42 (Former 5th Cir. Dec. 1981). See United States v. Castro, 166 F.3d 728, 734 (5th Cir. 1998) (en banc). 10 United States v. Martinez-Perez, 941 F.2d 295, 301-02 (5th Cir. 1991). In Castro, we upheld a search conducted
15 after a legitimate traffic stop, even though the that he actually used a gun as part of the drug government admitted that the stop had been conspiracy. Under the clear error standard of motivated by suspicions of drug trafficking. review, though, the court was entitled to Therefore, this court squarely rejected the disbelieve Robles’s “I was just bragging” view advanced by Gurrusquietta here (and in defense. We affirm the two-level gun the Castro panel opinion) that because the enhancement. traffic stop was a “ruse,” any subsequent search had to be supported by probable cause. 2. Castro, 166 F.3d at 734. a. According to U.S.S.G. § 1B1.3, a For this reason, the district court did not err defendant is liable for the amount of drugs when it refused to suppress evidence seized reasonably foreseeable to him during the life of during the April 8 search of Gurrusquietta’s the conspiracy. The court accepted the PSR's car. The traffic stop was legitimate, and the calculation that Robles should be attributed subsequent search was conducted only after 1,000 pounds of marihuana. the officers received the consent of the passengers. No probable cause was needed to support this search.
D. We review the application of sentencing guidelines to factual findings and the factual findings themselves for clear error. In making findings of fact for sentencing purposes, a court need only be convinced by a preponderance of evidence. Shugart, 117 F.3d 838, 848 (5th Cir.), cert. denied, 118 S. Ct. 433 (1997).
1. Robles’s sentence was enhanced two levels pursuant to U.S.S.G. § 2D1.1(b)(1) for possessing a dangerous weapon. Robles argues that there is no evidence that he possessed any weapon at all, much less one that was connected to the drug conspiracy. We review this frontal assault on factual findings for clear error.
The district court relied primarily on recorded conversations in which Robles recounted stories about using a firearm during drug transactions. These conversations also revealed Miguel de la Torre's instructing Robles to purchase a firearm for use during drug transactions. The court also enhanced Robles’s sentence because an empty gun box with ammunition was found at his home.
Robles responds that he was only bragging about using a gun during the recorded conversations and that there is no evidence
16 The PSR made this calculation in an The government concedes this is clear error unusual manner. First, it relied on Miguel de and requests a remand for resentencing. We la Torre’s testimony that his organization therefore vacate Gurrusquietta’s sentence and moved between 20,000 to 25,000 pounds of remand for resentencing under a guideline marihuana during a 78-week period. More range consistent with the amounts attributed to specifically, the PSR found that Miguel had him. sold and distributed about 1,000 pounds of marihuana between April 14 and May 9, 1997, The judgments of conviction and sentence thus averaging about 250 kilograms a week. are AFFIRMED, except that Gurrusquietta’s Because the PSR found that Robles worked sentence is VACATED and REMANDED for closely with Miguel over the last two months resentencing. of the conspiracy, the PSR found that Robles should be attributed at least 1,000 pounds for this period, because all the drugs moved by the organization were reasonably foreseeable to him.
Robles replies that it is improper to average the marihuana moved over the 78-week period to calculate the amount attributable during the last two months, because Miguel made far fewer transactions during that period. In fact, Robles claims there is no evidence that any marihuana transactions occurred during the period cited by the PSR.
According to the PSR, however, the final amount attributed to Robles was based on “further investigation by case agents” rather than on simple averaging. In its initial recommendation, the PSR noted that it had calculated the amounts attributable to Robles based on “wire communications, video and physical surveillance, debriefings with co- defendants, arrest and seizure of money and wire transfer records.” We infer that the PSR’s reference to “further investigation” in the addendum means that the PSR’s 1,000- pound calculation is based on more than mere averaging. Therefore, the court did not commit clear error when it adopted this section of the PSR.
b. Gurrusquietta was held responsible for more than 1,000 kilograms of marihuana, subjecting him to an enhanced sentence requiring a 240-month mandatory minimum. The evidence at trial and in the PSR, however, plainly stated Gurrusquietta was only responsible for 668.15 kilograms.