United States v. Westbrook

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 26, 1997
• Docket: 95-50890
• Status: Published

Opinion

REVISED UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

____________

No. 95-50890 ____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LARRY DARNELL WESTBROOK, WAYNE ALLEN BLEDSOE, JR., MICHAEL LYNN PEOPLES, AND A.J. GREEN,

Defendants-Appellants.

Appeals from the United States District Court For the Western District of Texas

August 5, 1997

Before EMILIO M. GARZA, PARKER, and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendants Larry Darnell Westbrook, Wayne Allen Bledsoe, Jr.,

Michael Lynn Peoples, and A.J. Green appeal their convictions for

conspiracy to possess crack cocaine with intent to distribute and

to distribute crack cocaine in violation of 21 U.S.C. §§ 846 and

841(a)(1) (count 1) and Westbrook and Bledsoe appeal their

convictions for money laundering in violation of 18 U.S.C.

§ 1956(a)(1)(B)(i) (count 2). Westbrook also appeals the district

court’s calculation of his offense level under the U.S. Sentencing Guidelines, which resulted in a guideline range of life

imprisonment on count 1. We affirm.

I

After a federal grand jury returned a two-count superseding

indictment against the defendants, the district court selected a

jury to try them on these charges. On September 16, 1994, after a

few days of trial, the court learned that one of the jurors had

reported to various people))including another juror))that she had

been threatened that morning with injury if the jury rendered a

guilty verdict. The court immediately granted the defendants’

motions for a mistrial. On May 1, 1995, the court selected another

jury to try the defendants.

The government’s case against the defendants, who lived in

Temple, Texas, was based on (1) testimony of accomplices to the

defendants, (2) surveillance and seizures by Temple police, and (3)

information from third parties.

Because the defendants challenge the sufficiency of the

evidence, we summarize it here.

A Crack Dealing

Jerry Reed, an accomplice of the defendants, testified that he

sold two ounces of crack to Westbrook in October 1988; that he

asked Westbrook, Bledsoe, and Green to buy two ounces of crack in

1991; that Green delivered crack to him; and that Peoples asked

Reed in 1991 to take Peoples and another to Dallas, Texas to buy

nine ounces of crack. Chuck Jones, another accomplice, testified

that between 1989 and 1990, he sold one to three ounces of crack to

-2- Westbrook five or six times, and sold quarter to half-ounce

quantities of crack to Green and Peoples several times; that after

August 1991, he sold five to nine ounces of crack to Westbrook four

times, and smaller quantities to Green and Peoples two or three

times; that Green was present once when Jones sold Westbrook nine

ounces of crack; that he operated a crack house in Temple, and was

told by Green and three others to get out of town because he was

making all the money.

A third accomplice, Edward Montgomery, Jr., testified that

Westbrook and Green had been partners in the drug business, and

that Bledsoe replaced Green after an arrest; that he drove

Westbrook to Houston four or five times to buy cocaine; that

Westbrook met with a source in Houston, Texas and usually bought

about nine ounces of crack from that source; that Peoples went on

a trip to Houston when Westbrook bought four or five ounces of

crack; that Bledsoe carried the money during a crack-buying

excursion to Houston with Montgomery and another; and that others,

including Green, gave Westbrook money to buy crack for them.

During 1991, the police began to investigate what appeared to

be the defendants’ crack operation. On August 11, 1991, police

raided a motel room after motel staff received complaints about

what seemed to be drug traffic. The police found Bledsoe, Peoples,

Green, and two others in the room. The police took a baggie from

Green containing thirty-seven rocks of crack. A couple of months

later, police stopped Westbrook driving a car belonging to Peoples

after a high-speed chase. Green was in the front passenger seat.

-3- Police seized crack from floor between door and front passenger

seat, and from the floor behind the front passenger seat.

B The First Crack House

Roderick Reeders, an accomplice and convicted crack dealer,

testified that Westbrook and Bledsoe operated several crack houses

in Temple during 1991 and 1992. He stated that Westbrook and

Bledsoe approached him in late 1990 or early 1991 and asked him to

introduce them to his cocaine source in Houston. Reeders then took

them to Houston and bought two ounces of crack for them from his

source. Westbrook and Bledsoe paid Reeders in crack. According to

Reeders, the three returned to Houston the next day and bought

another four or five ounces of crack. Reeders saw Westbrook and

Bledsoe break the crack into rocks. Shortly thereafter, Reeders

and Bledsoe returned to Houston and bought nine to twelve ounces of

crack. Reeders testified that during the next six or seven months,

Reeders and Bledsoe went to Houston about twice a week, and Bledsoe

bought nine ounces of crack each time. Reeders noted that, once in

Temple, Bledsoe and Westbrook cut the crack into rocks and sold

them. After a time, Reeders and Bledsoe went to Houston less often

but bought half and whole kilograms of crack. In 1992, they began

buying powder cocaine and converting it to crack. Eventually,

Westbrook and Bledsoe went to Houston to buy cocaine without

Reeders. Westbrook and Bledsoe initially sold the crack at a city

park in Temple but then opened a crack house at 305 South 18th

Street. Reeders showed Westbrook and Bledsoe how to operate the

crack house and where to put lookouts. According to Reeders,

-4- Westbrook and Bledsoe paid workers $50 a day and small quantities

of crack, and crack house workers sold several thousand dollars of

crack daily and gave the money to Westbrook or Bledsoe.

David Wright, an accomplice, testified that he worked as a

lookout in exchange for crack but began peddling that drug when

Westbrook and Bledsoe told him he could make more money as a

seller. Wright stated that he gave his drug proceeds to someone

else, who hid the money and then gave it to Westbrook and Bledsoe.

Westbrook and Bledsoe supplied the house with two or three ounces

of crack daily. Several times, Peoples and Green brought crack to

the house, which Wright sold for them with the approval of

Westbrook and Bledsoe

Montgomery worked around the house as a lookout in exchange

for crack. According to him, Westbrook and Bledsoe supplied the

workers at the house with crack and handled money from its sale.

He admitted that he stole crack that Westbrook had hidden in garage

next to Westbrook’s residence. In addition, Roderick Walker

testified that he saw Westbrook and Bledsoe possess 4 x 12 inch

packet of powder cocaine in Westbrook’s residence. Allen Robinson

said that Westbrook hassled him after Robinson found some crack in

the alley, sold some of it and smoked the rest. Reeders testified

that crack sold at the house was hidden outside, first next to a

garage and then in an alley across the street.

On February 5, 1992, Temple police raided the South 18th

Street crack house, finding drug paraphernalia. Reeders testified

that just as the police arrived, Westbrook flushed about $500 worth

-5- of crack down the toilet. Eleven months later, relying on a tip

from an informant, officers found $22,500 of crack buried in the

alley across from the crack house. The next month, after another

tip by an informant, police discovered two packages of crack worth

$900 buried in the alley.

The South 18th Street crack house closed after a year and few

months of operation.

C The Second Crack House

After the South 18th Street crack house shut down, the

defendants purportedly opened a second crack house at 903 South

Henderson. Wright testified that he rented this house at Bledsoe’s

request and paid the rent with money from Westbrook and Bledsoe.

According to Reeders, as much as $10,000 worth of crack was sold

daily and crack supplies were hidden either outside the house or at

a residence at 902 South 18th Street which was connected to the

Henderson Street house by a trail. Moreover, Westbrook and Bledsoe

allowed Peoples and Green to sell crack at the South Henderson

house, and Reeders sold for both Peoples and Green there. Wright

testified that he sold crack at the South Henderson house, and that

Bledsoe and Westbrook used many of the same workers there. He also

averred that drugs were hidden near the alley at back of property,

and that he sold crack for Peoples and Green.

On June 22, 1993, police raided the South Henderson house.

Just before they searched the residence, they observed behavior

consistent with drug dealing. According to Walker, who was at the

house during the raid, Westbrook told a certain juvenile to get

-6- something and that juvenile returned with a small bag of what

Walker thought was crack. As the police entered, Walker heard

Westbrook tell the juvenile to get rid of the bag. The police then

found Westbrook with marijuana hidden in his mouth and $700 in

small bills and the juvenile with crack in his mouth and $610 in

small bills. In addition, officers discovered crack scattered on

the floor of the house as well as a car with some of Peoples’

belongings on the premises.

After the raid, the defendants allegedly ended operations at

the South Henderson crack house

D The Third Crack House

Undaunted by the raid on the South Henderson house, Westbrook

and Bledsoe then supposedly rented a third crack house, at 705

South 20th Street. At Bledsoe’s request, the house was leased in

Reeders’ name. Wright testified that Green told him they had a

crack house on South 20th Street and asked Wright to sell crack for

him there. On August 12, 1993, the police raided this crack house.

In the house, officers found crack, containers with crack residue,

and crack paraphernalia. Moreover, on the property surrounding the

house, they discovered crack concealed in container.

Wright stated that Green left shortly before police arrived.

E Other Links

During the trial, the government presented much testimony as

to the defendants’ presence at the various crack houses and similar

locations. A police officer, for instance, testified that he saw

-7- Bledsoe as well as Peoples’ car at the South 18th crack house, and

spotted Westbrook, Bledsoe, and Green at the house at 902 South

18th Street that later testimony revealed was a storage place for

crack sold at Henderson Street crack house. In addition, two

policemen noted that they saw Peoples and Bledsoe at the 902 South

18th Street house. One of these officers also observed Westbrook,

Peoples, Bledsoe, and Green at Westbrook’s residence, where the

police found several guns, currency, drug paraphernalia, drug

ledgers and other documents. Also at the residence, officers

discovered crack in a plastic bag hidden in an adjoining garage as

well as trace amounts of cocaine in the house, in Westbrook’s car,

and on his clothing.

Finally, an analysis of toll records for the cellular phones

and pagers leased by Westbrook, Bledsoe, and Peoples showed many

communications between them from mid-1992 to mid-1993.

F Car Buying

In April 1992, Reeders, Westbrook, Bledsoe, Stevie Brown, and

Marty Trejo went to Teem Hem, a car dealer in Houston who goes by

the moniker Captain H. According to testimony by Reeders and Hem,

Reeders negotiated to buy two Mercedes-Benz cars for Westbrook and

Bledsoe for $19,500 in cash. Hem put title to Westbrook’s car in

Trejo’s name and title to Bledsoe’s car in Brown’s name. Reeders

testified that Westbrook and Bledsoe had the cars registered in the

names of Trejo and Brown because those individuals had jobs and

could explain the source of the money used to buy the cars. Trejo,

a relative of Westbrook, testified that he allowed his name to be

-8- used for Westbrook’s car because Westbrook claimed he had left his

driver’s license in Temple. Trejo stated that he was uncomfortable

knowing that his name was on the title for Westbrook’s car and,

over the next few months, repeatedly asked Westbrook to change the

title. Westbrook even had repairs done in Trejo’s name.

The police routinely saw Westbrook and Bledsoe driving the two

Mercedes. Officers even stopped Bledsoe a couple of times while he

was driving his Mercedes. Also, Walker testified that he saw

Westbrook and Bledsoe drive the cars to the crack house on South

18th Street.

G Cracking Down

After hearing and seeing all the evidence, the jury found the

defendants guilty on both counts. The district court then

sentenced both Westbrook and Bledsoe to life imprisonment on count

1, a concurrent 240 months on count 2, five years supervised

release, a $3000 fine, and a $100 mandatory assessment. Peoples

received 235 months in jail, five years supervised release, a $3000

fine, and a $50 mandatory assessment. Green received 210 months in

jail, five years supervised release, a $3000 fine, and a $50

mandatory assessment.

On appeal, the defendants argue that their rights under the

Speedy Trial Act, 18 U.S.C. § 3161 et seq., were violated and that

insufficient evidence exists supporting their convictions for

conspiracy. In addition, Westbrook and Bledsoe contend that there

was not enough evidence to convict them of money laundering.

Finally, Westbrook maintains that there was insufficient proof to

-9- establish that he possessed a dangerous weapon, and thus the

district court erred in adding two points to his offense level on

count 1. We examine each of these arguments in turn.

II

The district court granted the defendants’ motions for a

mistrial on September 16, 1994, after several days of trial. At

that time, the district court stated that it “expected” that the

defendants would order transcripts from the first trial to prepare

for the second one, but that these transcripts would be delayed

because the court reporter was in the midst of making transcripts

from a two-month criminal trial involving eleven members of the

Branch Davidian sect.1

1 The government claims that the defendants requested transcripts from the first trial on September 16 and, as support, cites to the transcript of the September 16 proceedings. The September 16 transcript, though, was not in the record at the time the government filed its brief. Thus, the government did not follow Local Rule 28.2.3. See 5TH CIR. R. 28.2.3 (providing that “[e]very assertion in briefs regarding matter in the record shall be supported by a reference to the page number of the original record where the matter relied upon is to be found”); FED. R. APP. P. 10(a) (stating that the record on appeal includes “the transcript of proceedings, if any . . .”). Moreover, there is no evidence that the government made any attempt to use Rule 10(b)(3) of the Federal Rules of Appellate Procedure to ensure that the defendants filed a copy of the September 16 transcript. Ultimately, this court had to ask the parties to supplement the record with the transcript after oral argument. More disturbing, though, is that, upon examining the transcript (and the rest of the record), we can find absolutely no basis for the government’s assertion that the defendants asked for the transcripts on September 16. Rather, the district court merely seemed to assume that the defendants (and presumably also the government) would want the transcripts and, on that basis, informed them that there might be a delay. As the district court averred, “I don’t know when this case will be reset . . . . There’s going to be a problem, though, in that it would be expected that you would seek a copy of the transcript of the trial as it progressed this far for use in a second trial. The problem is, as you know, [the

-10- On October 31, 1994, the district court sua sponte scheduled

the new trial for November 28, 1994. Shortly thereafter, Peoples

sought to continue the trial. On November 8, the court granted

Peoples’ motion, finding that the ends of justice outweighed the

interest of the defendant and the public in a speedy trial and that

the failure to grant a continuance would deny counsel for the

defendant reasonable time to prepare. The court also determined

that the time between November 28 and the “first available trial

date after completion of the transcript” would be excluded from

computation under the Speedy Trial Act, and that its order would

apply to all defendants.

On November 23, the defendants filed a joint motion requesting

transcripts from the first trial. On November 30, the district

court granted the motion as to certain witnesses. On December 9,

Green submitted the authorization form ordering the transcripts.

On February 10, the court reporter completed and filed the

transcripts. On February 13, the district court sua sponte set

trial for May 1, 1995. On April 4, 7, and 14, the government filed

petitions for writs of habeas corpus ad testificandum; the district

court decided these petitions on, respectively, April 5, 13, and

17.

On April 28, Green filed a motion to dismiss the indictment,

alleging that his Speedy Trial Act rights had been violated. Green

contended that he had not been tried within seventy days as

court reporter] is emersed [sic] in transcribing the Branch Davidian trial.” None of the defendants replied to this statement.

-11- required by 18 U.S.C. § 3161(e), and asked that his indictment be

dismissed. See 18 U.S.C. § 3161(e) (“If the defendant is to be

tried again following a declaration by the trial judge of a

mistrial or following an order of such judge for a new trial, the

trial shall commence within seventy days from the date the action

occasioning the retrial becomes final.”) No other defendant joined

the motion. In his motion, Green argued that time both before and

after the February 13 order had not been excluded, and that

unexcluded time from the date of the mistrial to the date of the

second trial was well in excess of seventy days.

The court considered Green’s motion on May 1, the day of

trial. During arguments on the motion, Green effectively conceded

that much of the delay in going to trial was due to the defendants’

desire for transcripts from the first trial. Thus, Green stated

that he was only “focusing” on the delay after the transcripts were

completed (i.e., after February 10), which amounts to about

seventy-nine days. The district court denied Green’s motion on the

basis that this period was “a reasonable exclusion time.” After

this ruling, the following exchange occurred between the district

court and counsel for Peoples:

THE COURT: . . . Any other matters we need to take up before we bring in the jury?

MR. SWANTON: Judge, I want to say something on the record. May I assume that your ruling with respect )) since we have multiple Defendants, that one objection by one Defendant will apply to all and we don’t need to join in those objections?

THE COURT: Yes. And you certainly don’t need to all stand up and say you have no objection when something is offered. I’ll just make eye contact, and if I don’t see anybody turning red or standing up, then we’ll assume there are no objections.

-12- On appeal, all the defendants argue that the district court

erred in denying Green’s motion to dismiss the indictment for

violation of the Speedy Trial Act. While this court reviews facts

supporting a ruling under the Speedy Trial Act for clear error, we

review legal conclusions de novo. United States v. Ortega-Mena,

949 F.2d 156, 158 (5th Cir. 1991).

While all of the defendants contend that they were tried more

than seventy days from the date of the mistrial, they disagree on

how many days actually elapsed under the Speedy Trial Act. Peoples

argues that the relevant time period is from February 10, the date

the transcripts were completed, to May 1, the day of the trial

(about seventy-nine days). Westbrook seems to suggest that most of

the time from September 16 to May 1 is nonexcludable. Bledsoe

suggests that the period is from February 13, the date of the

district court order setting the May 1 trial date, and May 1 (about

seventy-six days). However, he also states, in a footnote, that

“[a]n argument can be made” that the relevant period is February 10

to May 1 and that there were an additional seven days of

nonexcludable time before February 10 (a total of about eighty-six

days). Green focuses on the time between the date the transcripts

were completed and May 1, but also considers the sixty-odd days

before the defendants requested the transcripts (a total of about

139 days).

In response, the government contends that only Green moved to

dismiss the indictment on the basis of a violation of the Speedy

-13- Trial Act and that the May 1 trial began within seventy days under

the Speedy Trial Act.

A

The government claims that Westbrook, Bledsoe, and Peoples

cannot assert a Speedy Trial Act violation because they did not

join Green’s motion to dismiss the indictment on speedy trial

grounds. In reply, the three defendants argue that they did join

Green’s motion. Alternatively, they contend that, where the

government prosecutes two or more defendants together, if one

defendant moves to dismiss under the Speedy Trial Act, the other

defendants need not explicitly join that motion in order to assert

a Speedy Trial Act violation on appeal.

The record is clear that Westbrook, Bledsoe, and Peoples did

not explicitly join Green’s motion. Westbrook, Bledsoe, and

Peoples suggest that the fact that the district court consented to

the suggestion of Peoples’ counsel that “one objection by one

Defendant will apply to all” means that they joined Green’s motion.

However, this is not persuasive. A fair reading of the transcript

indicates that the district court simply agreed to permit an

objection by one defendant at trial to cover all the defendants.

Moreover, the district court had earlier denied motions by Peoples

and Green to adopt motions filed by their codefendants. The court

noted that its “general practice . . . is to deny such motions due

to the confusion that results in a multi-defendant case.” Hence,

Westbrook, Bledsoe, and Peoples did not explicitly or implicitly

join Green’s motion.

-14- 18 U.S.C. § 3162(a)(2) states that “[f]ailure of the defendant

to move for dismissal prior to trial or entry of a plea of guilty

or nolo contendere shall constitute a waiver of the right to

dismissal under this section.” This provision does not mention any

exception. In possible conflict with § 3162(a)(2), Rule 12(f) of

the Federal Rules of Criminal Procedure provides that “[f]ailure by

a party to raise defenses or objections or to make requests which

must be made prior to trial, at the time set by the court . . ., or

prior to any extension thereof made by the court, shall constitute

waiver thereof, but the court for cause shown may grant relief from

the waiver” (emphasis added). Moreover, as the defendants point

out, a number of circuits, including this one, have permitted a

defendant to raise a district court error on appeal as long as one

of his codefendants objected below.

As a threshold issue, we determine that Rule 12(f) arguably

applies here. First, the Federal Rules of Criminal Procedure apply

in the federal courts of appeals. See FED. R. CRIM. P. 1 (noting

that “[t]hese rules govern the procedure in all criminal

proceedings in the courts of the United States”); FED. R. CRIM. P.

54(a) (stating that “[t]hese rules apply to all criminal

proceedings . . . in the United States Court of Appeals”); cf. FED.

R. CIV. P. 1 (noting that “[t]hese rules govern the procedure in

the United States district courts in all suits of a civil nature”).

Second, Rule 12(b) lists five categories of defenses, objections,

and requests which “must be raised prior to trial . . . .,” one of

which includes “defenses and objections based on defects in the

-15- institution of the prosecution . . . .” An allegation of a speedy

trial violation is such a defense and objection. Thus, we

determine that an allegation of a speedy trial violation is a

defense, objection, or request “which must be made prior to trial.”

Next, we note that Rule 12(f) and § 3162(a)(2) conflict over

whether courts can permit a defendant to make a Speedy Trial Act

objection if he failed to raise such an objection before trial (or

at least before a plea of guilty or nolo contendere); Rule 12(f)

explicitly allows courts to grant relief from any waiver, but

§ 3162(a)(2) does not. Although we have found no case recognizing

this conflict, it can be easily resolved under existing authority.

A statute that takes effect after the effective date of a federal

rule repeals the rule to the extent that it actually conflicts.

Jackson v. Stinnett, 102 F.3d 132, 135 (5th Cir. 1996). Rule 12(f)

was added to the Federal Rules on April 22, 1974 and made effective

on December 1, 1975. Section 3162(a)(2) was enacted on January 3,

1975 and made effective “to all cases commenced by arrest or

summons and all informations or indictments filed, on or after July

1, 1980.” Thus, § 3162(a)(2) trumps Rule 12(f).

Even so, the three defendants contend that, under caselaw in

this circuit and elsewhere, they did not waive any violation of

their speedy trial rights. The defendants rely, for example, on

several cases not involving the Speedy Trial Act in which the court

of appeals permitted defendants to appeal points that were raised

below only by codefendants. See United States v. Cassity, 631 F.2d

461 (6th Cir. 1980) (search and seizure); United States v. Love,

-16- 472 F.2d 490 (5th Cir. 1973) (search and seizure); United States v.

Lefkowitz, 284 F.2d 310 (2d Cir. 1960) (erroneous instruction).

These courts have recognized that little reason may exist to refuse

to permit codefendants to appeal such points because (1) at least

one defendant properly raised the issue now on appeal and ensured

that the district court would consider it (at least with regard to

the defendant who raised it), (2) identical challenges mounted by

similarly situated codefendants would not have changed the district

court’s ruling, and (3) if one defendant succeeded in convincing

the district court to grant his motion, his codefendants would then

simply have filed the same motion. Westbrook, Bledsoe, and Peoples

also note that the Speedy Trial Act provides that, if one

codefendant seeks an adjournment excludable under the act, the

request is imputed to all codefendants. Similarly, they argue, if

one defendant moves for dismissal of the indictment for violation

of the act, all the defendants should implicitly be regarded as

joining in the motion.

We have sometimes allowed a defendant to preserve a district

court error as long as one of his codefendants objected below. See

United States v. White, 589 F.2d 1283, 1290 (5th Cir. 1979)

(holding that objection to instructions by codefendant’s counsel is

sufficient to preserve any error); Love, 472 F.2d at 496 (holding

that the failure of one codefendant’s counsel “to move to suppress

the evidence or to object to its introduction should be excused

because such a motion or objection would have been a useless

formality” given fact that other codefendant’s counsel had made

-17- motion to suppress); see also United States v. Pardo, 636 F.2d 535,

541 (D.C. Cir. 1980) (“We recognize that in certain situations, it

may be redundant and inefficient to require each defendant in a

joint trial to stand up individually and make every objection to

preserve each error for appeal.”); Cassity, 631 F.2d at 466 (“Under

these circumstances, we hold the remaining appellants did not waive

their fourth amendment objections by neglecting to perform the

useless and purely formal act of joining Cassity in moving to

suppress.”); United States v. Bagby, 451 F.2d 920, 927 (9th Cir.

1971) (ruling that objection to instructions by codefendant’s

counsel preserves any error); cf. United States v. Alvarez, 584

F.2d 694, 697 (5th Cir. 1978) (ruling that since “[t]he trial court

had already ruled adversely to defendant’s contention . . . there

was no need for the defense to make the assuredly futile gesture of

repeating its objection”); Lefkowitz, 284 F.2d at 313 n.1 (ruling

that “[w]e do not regard the failure of Dryja’s counsel to except

as barring Dryja from seeking reversal for error in the charge;

Lefkowitz’s exception called the matter to the judge’s attention

and further exception would have been fruitless”).2 Only one

2 In United States v. Harris, 104 F.3d 1465 (5th Cir. 1997), petition for cert. filed (U.S. May 21, 1997) (No. 96-9169), the defendant argued on appeal that the district court’s jury instructions were erroneous. In district court, a codefendant had objected to the instructions but the defendant declined to challenge them, telling the district court “I don’t have any objections to the charge.” We then held that the defendant had not preserved the issue for appeal and thus only examined the instruction for plain error. If the defendant states that he will not object to something and then, on appeal, reverses course and raises such an objection, this court should generally apply a plain error standard. Id. at 1472. There may be times, however, as recognized by this court in

-18- appellate case, United States v. Cassity, appears even indirectly

to rely on the “for cause shown” exception of Rule 12(f) in

permitting a defendant to preserve an error that a codefendant

raised below; the rest simply cite existing caselaw as authority.

However, we have found no case allowing a defendant to make such an

argument in the speedy trial context))and rightly so. Section

3162(a)(2) not only preempts Rule 12(f), but the plain language of

§ 3162(a)(2) provides that failure to move for dismissal for a

speedy trial violation “shall constitute a waiver of the right to

dismissal under this section” (emphasis added). The Speedy Trial

Act provides no exception to this waiver provision, and we may not

read one in. In sum, Westbrook, Bledsoe, and Peoples waived their

Speedy Trial Act claims by failing to join Green’s motion to

dismiss the indictment.

B

The remaining question is whether Green’s May 1, 1995 trial

date was within seventy days of the date “the action occasioning

the retrial becomes final,” which in this case is September 16,

1994, the date the district court declared a mistrial.3 The

Love and White where the failure to join a codefendant’s objection may nevertheless preserve the issue for appeal. 3 When the district court declares a mistrial and one of the parties files a certain kind of appeal, the court of appeals’ disposition of the appeal, rather than the declaration of the mistrial itself, is “the action occasioning the retrial.” United States v. Kington, 875 F.2d 1091, 1108-09 (5th Cir. 1989) (discussing situations where disposition of appeal of declaration of mistrial is “the action occasioning the retrial”). However, there was no appeal here))interlocutory or otherwise))relating to the district court’s declaration of mistrial. Therefore, “the

-19- starting point for computing this seventy-day period is September

17. See Government of Virgin Islands v. Duberry, 923 F.2d 317, 320

n.8 (3d Cir. 1991) (excluding days on which triggering events occur

for purposes of calculating time under Speedy Trial Act); Kington,

875 F.2d at 1109 (not counting the day that action occasioning

retrial became final when computing time under Speedy Trial Act);

cf. Ortega-Mena, 949 F.2d at 158 (stating, in case not involving

mistrial, that the first day of seventy-day period was the day

following defendants’ indictments). The period of delay “resulting

from any pretrial motion, from the filing of the motion through the

conclusion of the hearing on, or other prompt disposition of, such

motion” is not used in computing the seventy-day limit. 18 U.S.C.

§ 3161(h)(1)(F). The day that a pretrial motion is filed and the

day on which the motion is decided by the court are likewise

excluded. Kington, 875 F.2d at 1106. All defendants who are

joined for trial generally fall within the speedy trial computation

of the latest codefendant and the excludable delay of one

codefendant may be attributed to all defendants. United States v.

Bermea, 30 F.3d 1539, 1567 (5th Cir. 1994), cert. denied, __ U.S.

__, 115 S. Ct. 1113, 130 L. Ed. 2d 1077 (1995). We exclude from

computation any delay resulting from a continuance if the district

court granted the continuance on the basis of the “ends of

action occasioning retrial” must be the declaration of mistrial itself. See United States v. Menzer, 29 F.3d 1223, 1227 (7th Cir.) (noting that, where no party appealed declaration of mistrial, “there is no dispute that following the mistrial . . ., the government had seventy days in which to retry the defendant”), cert. denied, 513 U.S. 1002, 115 S. Ct. 515, 130 L. Ed. 2d 422 (1994).

-20- justice,” and the court sets forth its reasons for so finding. 18

U.S.C. § 3161(h)(8)(A).

The government argues that all the time from September 16 to

February 10, 1995 (the date the court reporter completed and filed

the transcripts) is excludable because the defendants’ caused this

delay by asking for these transcripts on September 16. However, as

discussed above, there is no evidence in the record that the

defendants requested the transcripts until they filed a motion for

those documents on November 23. Within the September 16-February

10 period, Peoples sought a continuance on November 4, which the

district court granted on November 8 as to all defendants. While

the time that had elapsed before Peoples’ motion (from September 17

to November 3) is not excludable, the five days from November 4 to

November 8 are excludable under § 3161(h)(1)(F). In addition, the

defendants (including Green) filed a joint motion on November 23

requesting transcripts, which the district court granted in part on

November 30. These eight days are also excludable under

§ 3161(h)(1)(F). However, the period from November 9 to November

22 is nonexcludable.

In his motion for a continuance, Peoples’ counsel stated that

he needed more time for trial preparation and also noted that he

“anticipates that all defense counsel of record will file a joint

motion for the transcript of the preceding trial of this cause

which would in all likelihood necessitate a further delay in the

present trial setting.” The district court accepted this argument,

and determined that a continuance would be necessary to ensure that

-21- Peoples’ counsel had sufficient time to prepare for trial. In its

order, after making the required ends-of-justice finding under 18

U.S.C. § 3161(h)(8)(A), the district court excluded the time

between November 28 (which was then the scheduled trial date) and

the new trial date, which the court stated would be “the first

available trial date after completion of the transcript.” The

transcript was completed and filed February 10. On February 13,

the district court sua sponte set the trial for May 1, and the

trial began on that date.

The district court’s November 8 continuance was an open-ended

one in the sense that it lacked a specific ending date. While the

circuits have split over whether a district court may grant an

open-ended continuance under § 3161(h)(8)(A),4 this circuit has

4 Compare United States v. Gambino, 59 F.3d 353, 358 (2d Cir. 1995) (stating that “[t]he length of an exclusion for complexity must be . . . limited in time”), cert. denied, __ U.S. __, 116 S. Ct. 1671, 134 L. Ed. 2d 776 (1996), and United States v. Jordan, 915 F.2d 563, 565 (9th Cir. 1990) (holding that Speedy Trial Act “requires that an ‘ends of justice’ continuance be specifically limited in time”) with United States v. Twitty, 107 F.3d 1482, 1489 (11th Cir. 1997) (ruling that “[a]n open-ended continuance may be granted to serve the ends of justice”); United States v. Spring, 80 F.3d 1450, 1458 (10th Cir.) (ruling that in “rare cases” it will not be possible to set a specific ending date for a continuance and “an open-ended continuance for a reasonable period is permissible”), cert. denied, __ U.S. __, 117 S. Ct. 385, 136 L. Ed. 2d 302 (1996); United States v. Jones, 56 F.3d 581, 586 (5th Cir. 1995) (holding that district courts may grant open-ended continuances except that continuances for any substantial length of time are extraordinary and must be adequately justified by the circumstances); United States v. Lattany, 982 F.2d 866, 868 (3d Cir. 1992) (holding that “open-ended continuances to serve the ends of justice are not prohibited if they are reasonable in length”), cert. denied, 510 U.S. 829, 114 S. Ct. 97, 126 L. Ed. 2d 64 (1993); and United States v. Rush, 738 F.2d 497, 508 (1st Cir. 1984) (noting that “it is inevitable that in some cases, like the present one, a court is forced to order an (h)(8) continuance without knowing exactly how long the reasons supporting the continuance

-22- held that a district court may sometimes grant such continuances.

Jones, 56 F.3d at 585-86. In Jones, we noted that situations may

exist “in which it is impossible, or at least quite difficult, for

the parties or the court to gauge the length of an otherwise

justified continuance.” Id. at 586. “In such circumstances, the

district court may decide to continue the trial indefinitely, at

least until the defendant or the government is able to propose a

more specific trial date or until there exists enough additional

information for the district court to set one.” Id. However, if

the continuance is “for any substantial length of time [it must be]

extraordinary and . . . adequately justified by the circumstances

of the particular case.” Id.

In this case, the district court had been expecting the

defendants to request transcripts from the first trial from the

date it granted a mistrial on September 16. Moreover, the district

court had formal notice that the defendants would ask for the

transcripts as early as November 4, the date on which Peoples filed

his request for a continuance. Given the uncertainty over when the

transcripts would finally be ready (and, more generally, over

Peoples’ need for additional time to prepare for trial), the

district court lacked sufficient information on November 8 to set

a specific trial date. Thus, it was perfectly reasonable for the

district court to grant an open-ended continuance that extended

will remain valid”), cert. denied, 470 U.S. 1004, 105 S. Ct. 1355, 84 L. Ed. 2d 378 (1985).

-23- until the first available trial date after the transcripts were

ready.

In addition, the continuance only lasted about five months,

and the trial itself occurred just two-and-a-half months after the

court reporter completed and filed the transcripts the defendants

had requested. Such a relatively short period of time is not

unreasonable. See, e.g., Twitty, 107 F.3d at 1489 (holding that

five-month open-ended continuance based on ends of justice did not

violate Speedy Trial Act); Lattany, 982 F.2d at 874-76 (ruling that

one-year delay resulting from district court’s grant and then

extension of open-ended ends-of-justice continuance was not

unreasonable where defendant changed counsel several times and

various counsel requested continuances to permit them to prepare

for trial); United States v. Davenport, 935 F.2d 1223, 1236 (11th

Cir. 1991) (determining that seven-month ends-of-justice

continuance giving two defendants additional time to prepare for

trial was reasonable delay that could be attributed to co-

defendant); cf. Jones, 56 F.3d at 584-85 (noting that where

district court “memorialized” its previous “silent grant” of

defendant’s motion for a continuance more than a year after he

filed the motion, defendant’s motion only requested a two-month

continuance, and continuance reflected the district court’s

“oversight rather than deliberation,” defendant’s speedy trial

rights were violated).

We also emphasize that Green requested, accepted, and

benefitted from the five-month delay occasioned by the continuance.

-24- Peoples’ motion for the continuance specifically asked that “the

trial proceedings be continued and be reset for the first available

date following preparation of the transcript[s].” The district

court then gave Peoples exactly the relief he sought; the court

continued proceedings until further notice and “reset [the trial]

for the first available trial date after completion of the

transcript.” Peoples’ motion is imputed to Green for purposes of

computation of time under the Speedy Trial Act, so Green

effectively joined the motion. Moreover, Green did not object to

the continuance at the time the district court granted it, and he

did not even allege a violation of his speedy trial rights until

the day of trial. See Twitty, 107 F.3d at 1489 (suggesting that

defendant’s failure to object to open-ended continuance cuts

against defendant’s argument that the delay occasioned by

continuance was not excludable under the Speedy Trial Act). The

district court also made the findings and statement of reasons

required by § 3161(h)(8);5 it simply declined to set a specific

ending date for the continuance because it was unclear when the

transcripts would be available. Under these circumstances, Green

may not seek “to turn the benefit he accepted into an error that

would undo his conviction . . . .” United States v. Eakes, 783

5 At oral argument, Green contended that the district court did not make a finding under § 3161(h)(8)(A) why the seventy-nine days between the completion of the transcripts and the trial date should be excluded under the Speedy Trial Act. The court, though, specifically found that the ends of justice would be served by “allowing the Defendant additional time to prepare this case” and that “the Defendant [should not be denied] reasonable time necessary for effective preparation.” This finding applies to all the time covered by the continuance.

-25- F.2d 499, 503 (5th Cir.), cert. denied, 477 U.S. 906, 106 S. Ct.

3277, 91 L. Ed. 2d 567 (1986). “The Speedy Trial Act entitles

criminal defendants to adequate time for preparing a defense, but

that right may not be used as a two-edged sword in this fashion.”

Id.; see also Kington, 875 F.2d at 1108 (endorsing “the sensible

maxim that defendants ought not to be able to claim relief on the

basis of delays which they themselves deliberately caused”); United

States v. Mentz, 840 F.2d 315, 331 (6th Cir. 1988) (concluding that

delay caused by defendant’s plea vacillation stopped speedy trial

clock because otherwise defendant “would have successfully worked

both sides of the street lulling the court and prosecution into a

false sense of security only to turn around later and use the . . .

leisurely pace of the case as grounds for dismissal”); United

States v. Pringle, 751 F.2d 419, 434 (1st Cir. 1984) (holding that

delay created by defendant in mistakenly agreeing to a “waiver” of

his speedy trial rights is excludable); cf. United States v.

Willis, 958 F.2d 60, 64 (5th Cir. 1992) (holding that defendant did

not mislead or sandbag the district court and thus cause delay

because the district court erroneously induced defendant to “waive”

his speedy trial rights without identifying an applicable exception

for this under the Speedy Trial Act or performing an ends-of-

justice analysis under § 3161(h)(8)). Therefore, we determine that

the period from November 28 to May 1 is excludable under the Speedy

Trial Act.

In sum, we determine that the periods from November 4 to

November 8, 1994 and November 23, 1994 to May 1, 1995 are

-26- excludable under the Speedy Trial Act. Conversely, the periods

from September 17 to November 3, 1994 and November 9 to November 22

are nonexcludable. As only sixty-two nonexcludable days elapsed

between the date the district court declared a mistrial and the

date of the second trial, Green’s prosecution did not violate the

Speedy Trial Act. Accordingly, we reject all of the defendants’

speedy trial claims.

III

Next, the defendants raise various arguments challenging the

sufficiency of the evidence supporting their convictions or

sentences. Our review for sufficiency of the evidence following a

conviction is narrow. United States v. Lopez, 74 F.3d 575, 577

(5th Cir.), cert. denied, __ U.S. __, 116 S. Ct. 1867, 134 L. Ed.

2d 964 (1996). We will affirm if a rational trier of fact could

have found that the evidence established the essential elements of

the offense beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 2789, 62 L. Ed. 2d 126 (1979). We

must consider the evidence, all reasonable inferences drawn

therefrom, and all credibility determinations in the light most

favorable to the prosecution. Glasser v. United States, 315 U.S.

60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942). The evidence

need not exclude every reasonable hypothesis of innocence or be

wholly inconsistent with every conclusion except that of guilt, and

the jury is free to choose among reasonable constructions of the

evidence. United States v. Salazar, 66 F.3d 723, 728 (5th Cir.

1995). If the evidence, though, gives equal or nearly equal

-27- circumstantial support to a theory of guilt and a theory of

innocence, we will reverse the conviction, as under these

circumstances a reasonable jury must necessarily entertain a

reasonable doubt. United States v. Sanchez, 961 F.2d 1169, 1173

(5th Cir.), cert. denied, 506 U.S. 918, 113 S. Ct. 330, 121 L. Ed.

2d 248 (1992).

Bledsoe, Peoples, and Green (though not Westbrook) contend

that insufficient evidence supports their conspiracy convictions.

To convict a defendant of conspiracy under 21 U.S.C. § 846, the

government must prove beyond a reasonable doubt: (1) the existence

of an agreement to violate the drug laws and that each co-

conspirator (2) knew of, (3) intended to join, and (4) voluntarily

participated in the conspiracy. United States v. Abadie, 879 F.2d

1260, 1265 (5th Cir.), cert. denied, 493 U.S. 1005, 110 S. Ct. 569,

107 L. Ed. 2d 563 (1989). To be a conspiracy, an express, explicit

agreement is not required; a tacit agreement is enough. United

States v. Greenwood, 974 F.2d 1449, 1457 (5th Cir. 1992), cert.

denied, 508 U.S. 915, 113 S. Ct. 2354, 124 L. Ed. 2d 262 (1993).

A person may be guilty as a co-conspirator even if he plays only a

minor role, United States v. Prieto-Tejas, 779 F.2d 1098, 1103 (5th

Cir. 1986), and he need not know all the details of the unlawful

enterprise or know the exact number or identity of all the co-

conspirators, so long as he knowingly participates in some fashion

in the larger objectives of the conspiracy. United States v.

Fernandez-Roque, 703 F.2d 808, 814-15 (5th Cir. 1983). Because

-28- secrecy is the norm in an illicit conspiracy, the elements of the

offense may be established solely by circumstantial evidence.

United States v. Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir.

1988). Although mere presence at the scene of the crime or close

association with a co-conspirator will not support an inference of

participation in a conspiracy, a common purpose and plan may be

inferred from a “development and a collocation of circumstances.”

United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.) (en

banc) (quoting Glasser, 315 U.S. at 80, 62 S. Ct. at 469), cert.

denied, 440 U.S. 962, 99 S. Ct. 1508, 59 L. Ed. 2d 777 (1979).

Once the government has produced evidence of an illegal conspiracy,

it need only introduce “slight evidence” to connect an individual

defendant to the common scheme. United States v. Krenning, 93 F.3d

1257, 1265 (5th Cir. 1996) (internal quotation marks omitted). As

long as it is not factually insubstantial or incredible, the

uncorroborated testimony of a co-conspirator, even one who has

chosen to cooperate with the government in exchange for non-

prosecution or leniency, may be constitutionally sufficient

evidence to convict. United States v. Lindell, 881 F.2d 1313, 1322

(5th Cir. 1989), cert. denied, 493 U.S. 1087, 110 S. Ct. 1152, 107

L. Ed. 2d 1056 (1990).

The defendants offer somewhat different arguments regarding

the sufficiency of the evidence regarding conspiracy. Bledsoe

makes two points. First, Bledsoe claims that reasonable doubt

exists on whether he was part of a conspiracy because the police

did not find him in possession of any drugs other than marijuana.

-29- However, there was voluminous testimony by many of Bledsoe’s co-

conspirators that Bledsoe was part of the defendants’ crack-selling

conspiracy. Second, Bledsoe attacks the credibility of the

witnesses against him, arguing generally that the witnesses were

liars and that they had the incentive to testify against him to

avoid being charged themselves. However, Bledsoe had ample

opportunity at trial to impeach the witnesses against him by

attacking their credibility. Moreover, he did not offer a single

witness in his defense. Obviously, the jury considered the

witnesses testifying against Bledsoe more credible than Bledsoe

himself. Considering the proof presented and construing the jury’s

credibility determinations in the light most favorable to the

government, we do not disagree. A rational jury could certainly

have found that the evidence presented against Bledsoe established

the elements for conspiracy.

Peoples takes a slightly different tack. He asserts that even

if he sold drugs on the same premises as the other defendants, he

operated independently of them. Peoples also notes that he was

never apprehended in actual possession of crack. However, police

seized thirty-seven rocks of crack from Green in a motel room

rented by Peoples and in which Peoples was present. Motel staff

had also observed what seemed to be drug traffic coming in and out

of the room. In June 1993, Peoples was present in front of a crack

house in which police found Westbrook present as well as crack.

The police also observed Westbrook, Bledsoe, Green, and Peoples

associating at the crack houses or at other locations where the

-30- crack was stored. In addition, Reeders and Wright testified that

they sold crack for Peoples with the permission of Westbrook and

Bledsoe.

Given this proof, Peoples cannot show that a rational jury

could have found that he did not play a role in the conspiracy.

The government has produced much more than the “slight evidence” it

needs to connect Peoples to the alleged scheme; the evidence

strongly suggests that Peoples’ participated in the conspiracy in

some capacity.

Green attacks the credibility of the government’s witnesses,

arguing that their testimony was so incredible that no rational

jury could have convicted him of conspiracy. Specifically, Green

asserts that the co-conspirators who testified against him were

crack addicts, had criminal records, were liars, testified

inconsistently, and/or cooperated with the government to avoid

prosecution themselves. At trial, Green presented a witness who

testified that Reed would do anything to avoid a life sentence.

Green’s mother also testified, suggesting that Green had held a

number of jobs and did not seem to have much money.

Numerous witnesses, though, including police officers,

testified in detail as to Green’s involvement in the conspiracy.

In addition, there was evidence that police actually seized a large

amount of crack from Green. Examining the evidence offered by the

government and Green, we believe there is sufficient credible

evidence to support the jury’s verdict.

-31- Therefore, we determine that sufficient evidence exists to

uphold Bledsoe, Peoples, and Green’s convictions for conspiracy.

Westbrook and Bledsoe challenge the district court

determination that sufficient evidence supported their convictions

for money laundering in connection with the purchase of two used

Mercedes Benzes. First, Westbrook contends that no evidence exists

indicating that his purchase of his Mercedes was made with drug

money. Second, Westbrook argues that there is insufficient

evidence that he intended to conceal or disguise the nature of the

unlawful proceeds. Third, Westbrook and Bledsoe aver that there is

no evidence that their alleged money laundering had any connection

to interstate commerce.

The applicable money-laundering statute provides:

Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity . . . knowing that the transaction is designed in whole or in part . . . to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity . . . shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than twenty years, or both.

18 U.S.C. § 1956(a)(1).

Evidence that a defendant’s cash outflow in a financial

transaction exceeds his legitimate income is sufficient to show

that the transaction “involves the proceeds of specified unlawful

activity,” even if the defendant claims income from other sources.

-32- United States v. Webster, 960 F.2d 1301, 1308 (5th Cir.), cert.

denied, 506 U.S. 927, 113 S. Ct. 355, 121 L. Ed. 2d 269 (1992).

Here, Westbrook and Bledsoe spent $20,000 cash for two Mercedes.

However, there was no evidence that Westbrook had any legitimate

income; indeed, he did not file any income tax returns during the

applicable period. Moreover, ample evidence exists that Westbrook

was involved in extensive drug dealing. Thus, a reasonable jury

could infer that Westbrook bought his Mercedes using drug money.

To convict Westbrook of money laundering, the government

needed to show that he concealed or disguised the nature, the

location, the source, the ownership, or the control of the drug

money used to buy the Mercedes. There is evidence of such

concealment. First, even though Westbrook ultimately possessed the

Mercedes and drove around in it, Reeders negotiated for the car and

paid for it. Second, Trejo signed the papers for the car. Third,

Reeders stated that Westbrook and Bledsoe had the cars registered

in the names of Trejo and Brown because those individuals had jobs

and could explain the source of the money used to buy the cars.

Fourth, Trejo requested that Westbrook take Trejo’s name off the

title of the Mercedes, but Westbrook refused. Fifth, Westbrook

used Trejo’s name when he brought the Mercedes to a shop for

repairs. All of these actions could convince a reasonable jury

that Westbrook, in purchasing the Mercedes, concealed the nature,

location, source, ownership, or control of the drug money used to

buy it.

-33- Finally, to show that Westbrook and Bledsoe’s Mercedes

purchases violated 18 U.S.C. § 1956, the government must provide

proof of some effect on interstate commerce. See 18 U.S.C.

§ 1956(c)(4) (noting that “the term ‘financial transaction’ means

. . . a transaction which in any way or degree affects interstate

or foreign commerce . . . involving the transfer of title to any

. . . vehicle”). The use of the words “in any way or degree”

suggests that the link to interstate or foreign commerce need only

be slight. Indeed, before United States v. Lopez, 514 U.S. 549,

115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), courts held that this

language only required evidence that the individual transaction at

issue had a de minimis effect on interstate commerce. See, e.g.,

United States v. Peay, 972 F.2d 71, 74 (4th Cir. 1992), cert.

denied, 506 U.S. 1071, 113 S. Ct. 1027, 122 L. Ed. 2d 172 (1993).

Moreover, after Lopez, courts have recognized that this de minimis

standard continues in effect. United States v. Leslie, 103 F.3d

1093, 1100 (2d Cir.), cert. denied, __ U.S. __, 117 S. Ct. 1713, __

L. Ed. 2d __ (1997); United States v. Grey, 56 F.3d 1219, 1224-25

(10th Cir. 1995). This is because § 1956 regulates activities

that, in the aggregate, have a substantial effect on interstate

commerce. See Lopez, 514 U.S. at __, 115 S. Ct. at 1629 (stating

that “where a general regulatory statute bears a substantial

relation to commerce, the de minimis character of individual

instances arising under that statute is of no consequence”); cf.

Perez v. United States, 402 U.S. 146, 154, 91 S. Ct. 1357, 1361, 28

L. Ed. 2d 686 (1971) (holding that Commerce Clause authorizes

-34- Congress to punish any particular criminal action, even without

proof of a relation to interstate commerce, when the activity is

part of a “class of activities” determined by Congress to affect

interstate commerce); United States v. Staples, 85 F.3d 461, 463

(9th Cir.) (rejecting Lopez challenge to 21 U.S.C. § 860, which

deals with drug trafficking in a school zone), cert. denied, __

U.S. __, 117 S. Ct. 318, 136 L. Ed. 2d 233 (1996). In sum, the

government can meet its burden on the interstate commerce element

of § 1956 merely by showing that the Mercedes purchases had a

minimal effect on interstate commerce.

In United States v. Gallo, 927 F.2d 815, 822 (5th Cir. 1991),

the defendant was arrested while transporting about $300,000 in

cash on an interstate highway. Evidence existed that this sum was

the proceeds of a cocaine sale and that the defendant knew it. The

defendant challenged his conviction under § 1956 on the grounds

that his transportation of the money did not affect interstate

commerce. We rejected his argument, holding that, since Congress

has generally made clear in 21 U.S.C. § 801 that drug trafficking

affects interstate commerce, transportation of drug proceeds (even

if purely intrastate) affects interstate commerce. We explicitly

reserved judgment, though, on a case in which the connection

between money and drugs was not so clear.

In light of Gallo, we think that the government has shown that

Westbrook and Bledsoe’s purchases of the two Mercedes had a de

minimis effect on interstate commerce. First, Congress has

determined in § 801 and elsewhere that narcotics trafficking, as a

-35- class of activities, affects interstate commerce. Second, the

government presented much evidence that Westbrook and Bledsoe

conspired to sell crack, that they bought the two Mercedes with

proceeds from their crack sales, and that all cocaine distributed

in the United States is manufactured outside the country. Third,

the Mercedes purchases facilitated Westbrook and Bledsoe’s crack-

selling conspiracy. The evidence indicates that this conspiracy

generated large amounts of surplus cash. Narcotics traffickers

generally try to launder drug proceeds to make it more difficult

for law enforcement to trace the illegal activity, prosecute them,

forfeit their assets, and assess back taxes. H.R. Rep. No. 746,

99th Cong., 2d Sess. 16 (1986). Here, Westbrook and Bledsoe’s

purchases of the two Mercedes through Trejo and Brown “cleaned” a

large amount of drug proceeds, making it easier for the two

defendants to continue the conspiracy. In addition, there is

proof that Westbrook and Bledsoe used the two Mercedes as part of

their conspiracy. For instance, the police testified that they

routinely saw Westbrook and Bledsoe drive the two Mercedes, and

Walker testified that he observed Westbrook and Bledsoe drive the

cars to a crack house. Thus, we find that sufficient evidence

exists that Westbrook and Bledsoe’s purchases of the two Mercedes

affected interstate commerce “in any way or degree.”

Accordingly, we determine that there is enough proof in the

record to support Westbrook and Bledsoe’s convictions for money

laundering.

C

-36- Westbrook argues that the district court’s two-point increase

in his offense level on count 1 for possession of a dangerous

weapon lacked sufficient evidentiary support. This increase

helped ensure that Westbrook received a guideline range of life

imprisonment on count 1 under the U.S. Sentencing Guidelines. The

district court’s imposition of the two-level enhancement is a

factual determination that we review for clear error. United

States v. Rodriguez, 62 F.3d 723, 724 (5th Cir. 1995).

Section 2D1.1(b)(1) of the U.S. Sentencing Guidelines provides

that “[i]f a dangerous weapon (including a firearm) was possessed,

increase [the offense level] by 2 levels.” The relevant

application note states that “[t]he enhancement for weapon

possession reflects the increased danger of violence when drug

traffickers possess weapons. The adjustment should be applied if

the weapon was present, unless it is clearly improbable that the

weapon was connected with the offense.” Id. comment. (n.3).

There was much evidence in the district court suggesting that

Westbrook possessed firearms in connection with his drug

trafficking. First, Wright stated that he saw Westbrook and

Bledsoe carrying “Uzis.” Second, an anonymous caller reported to

the Temple police on February 16, 1993 that she saw Westbrook,

Bledsoe, and others carrying guns in the 900 block of South 18th

Street, a location near a crack house operated by the defendants.

Third, there was testimony about two 9 mm handguns at a crack house

and about Bledsoe carrying a TEC-9 9 mm pistol, though this was not

directly connected to Westbrook. Fourth, and most significantly,

-37- the police found three weapons in the residence occupied by

Westbrook and his mother: a .32 caliber pistol under a cushion of

the couch in the living room, and a TEC-9 9 mm pistol and a .45

caliber pistol in the closet of one of the bedrooms. It is unclear

who owned the guns or whether Westbrook occupied the bedroom in

question. Westbrook claims that, “at one time or another,” various

other people lived in the house. He also notes that Reeders, a

main government witness, testified that he had never seen Westbrook

with a gun. In addition, the police found no drugs in the house.

However, it is undisputed that Westbrook lived in the house; police

found documents belonging to Westbrook in the house; and police

uncovered a drug ledger and drug paraphernalia in the house as well

as crack hidden in a neighbor’s garage (which one witness connected

to Westbrook).

On balance, sufficient evidence exists to indicate that

Westbrook possessed a firearm in connection with his drug

trafficking. While it is possible that Westbrook did not possess

the weapons for use in his crack business, any other explanation

for the guns found in his home is highly improbable (for example,

that his mother or someone who had formerly stayed in the house

secreted all the weapons). In the drug business, guns are tools of

the trade, United States v. Martinez, 808 F.2d 1050, 1057 (5th

Cir.), cert. denied, 481 U.S. 1032, 107 S. Ct. 1962, 95 L. Ed. 2d

533 (1987), and there was ample evidence that Westbrook possessed

dangerous weapons in connection with the sale of crack. Therefore,

-38- the district court did not clearly err in adding two points to

Westbrook’s offense level.

IV

For the foregoing reasons, we AFFIRM the district court’s

judgments of conviction as well as its sentences.

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