IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________________
NO. 91-5799
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
HENRY S. FULLER and ROBERT DUANE FOSTER, Defendants-Appellants.
Appeals from the United States District Court for the Western District of Texas
(October 6, 1992)
Before JONES and WIENER, Circuit Judges, and LITTLE, District Judge.1
LITTLE, District Judge:
Henry Silas Fuller and Robert Dwayne Foster were convicted of
conspiracy to launder money. Fuller was also convicted of
attempting to launder money. In their appeal, Foster and Fuller
assert that the evidence, some of which was wrongfully admitted,
was insufficient to support guilty verdicts. The appellants also
suggest reversible error in the district court's submission of an
instruction on deliberate ignorance. Finally, appellants contest
the district court's determination of the sum subject to the
1 District Judge of the Western District of Louisiana, sitting by designation. offence. This error resulted in an enhanced sentence. Finding no
merit in any argument raised by either appellant, we affirm.
According to the indictment, Fuller and Foster allegedly
conspired to launder money in violation of 18 U.S.C. § 371 and §
1956(a)(B). Fuller was also charged with violating 18 U.S.C. §
1956(a)(3)(B), attempting to launder money represented by a law
enforcement agent to be the proceeds of drug trafficking. Taken in
a light most favorable to the verdict, the following are the facts
of the case.
Fuller, a domiciliary of Austin, Texas and generally a realtor
of some ten years experience, met a bar owner in Del Rio, Texas in
the spring of 1989. Fuller asked bar owner Jose Martiarena if he
knew of anyone with a strong desire to launder money. Martiarena
introduced Fuller to a government informant, Mike Nicholas.
Nicholas in turn introduced Fuller to government agent Alfonso
Martinez. On 16 May 1989 Martinez met with Fuller, Nicholas and
David Ruiz, also a government agent. Martinez was seeking
assistance from Fuller in getting cash in and out of a banking
system in such a way that the cash would be sanitized, i.e., any
illegal taint would be removed and currency reporting forms would
not have to be completed. The meeting in May was conducted in a
hotel room in San Antonio, Texas and was memorialized through video
tape. Fuller bemoaned the fact that a Brazilian based land sale
for $25,000,000 had been upended when the government of Brazil
appropriated his land for agrarian distribution. Fuller was in
need of legitimate funds, as much as $100,000, to finance the cost
2 of a legal attack on the Brazilian uncompensated confiscation. In
anticipation of the receipt of $25,000,000, Fuller had gained
knowledge in the art of moving money from place to place in order
to lessen the impact of taxation. Fuller assumed some expertise in
money management and secrecy by boasting of friendship with a group
that had control over 23 banks. His knowledge would justify a 20%
fee. Certainly the banks could assist Martinez, through Fuller, in
hiding or cleansing money. Another currency cleansing creation of
Fuller's involved a loan to Hemisphere Insurance Company, a
Bahamian based insurance company. Hemisphere was in need of cash
to fund the acquisition of another insurance company. Fuller could
provide Martinez's dollars to Hemisphere in exchange for Hemisphere
debentures. The transaction would be secured by a mortgage on
Texas property owned by Hemisphere. As a quid pro quo for the
loan, the insurance company, for a fee, would also assist in
setting up a corporation offshore into which funds would be
deposited and from which funds could be withdrawn without U. S.
Government regulation. Fuller had the perfect cover. He would
describe the funds to be camouflaged by the insurance company as
part of his legally obtained funds from the Brazilian land
transaction. In fact, he had a photocopy of a check to his order
for the equivalent of $25,000,000, and that would be an impressive
prop. Subsequent to the meeting, Fuller, through Foster, sent
Martinez, through Nicholas, documents that could be used to
effectuate the mortgage proposal.
On 21 June 1989, Martinez and Nicholas met in a San Antonio
3 hotel with Fuller and Foster. This conclave was also the subject
of a video and audio recordation. Foster described himself to
agent Martinez as a well-drilling fund raiser and real estate
broker. Foster sent Martinez financial statements on three related
insurance companies, Hemisphere, Benefax and Bowman. Foster was
acquainted with the management of these companies and with offshore
corporations and banking operations. At this time the loan to
Hemisphere Insurance Company or Benefax was discussed, as well as
the creation of a Martinez controlled Bermuda based bank account
into which and from which Martinez could direct funds. Foster and
Fuller both confirmed a fee arrangement ranging from a flat 20% to
a declining sliding scale depending upon the volume of funds
handled by Foster and Fuller. For example, the commission would
drop to 12 1/2% on funds administered in the amount of $1,000,000
or more per month. Foster and Fuller were specifically advised
that the funds were acquired by illegal activities. Therefore,
loss of the funds by Foster-Fuller would place Martinez in a hot
spot. Martinez could not go to court because he would be unable to
disclose the source of his funds.
After the meeting of 21 June 1989, Martinez communicated by
telephone with Fuller. The next communication between Fuller and
Martinez occurred on 1 May 1990, when Fuller, in response to a
message from Martinez, called Martinez. Over the next sixty days,
there were four telephone calls between the two. The third face to
face meeting between Martinez and Fuller took place on 28 June
1990, again at the Embassy Suites Hotel in San Antonio, Texas. The
4 third person at that meeting was an undercover San Antonio
policeman. Foster, according to Fuller, was working offshore and
could not attend the meeting. The laundering scheme was reviewed.
Martinez gave $97,500 cash to Fuller. Fuller would carry the money
to Foster. The funds would be deposited in a Hemisphere Insurance
Company account in Bermuda. The corporation would then transfer
the funds to a corporate account to be controlled by Martinez.
Hemisphere would issue its debenture and Foster and Fuller would
received a commission. Fuller prepared an accounting statement
showing the costs, including fees, to which the $97,500 payment was
exposed. Martinez's participation was evidenced by his cash
delivery of $97,500 and his message to Fuller that he would get
possession of the debentures on Sunday. After Fuller accepted the
money and immediately prior to his intended departure, he was
arrested. Among his possessions was a passport with markings
evidencing recent and frequent trips to Brazil. Martinez knew that
Fuller needed as much as $100,000 to finance his lawsuit in Brazil.
Martinez said his clients were Colombians, but the money itself had
no "white dust" on it.
Fuller testified that he knew the money was drug driven but
that he intended to steal the money from Martinez. Fuller needed
money to fund his Brazilian lawsuit and to get even with drug
traffickers who had enticed his son down the dark side of the path.
Fuller also testified that he told Foster that the Martinez money
had come from South America. Foster testified that he was unaware
that the Martinez funds were anything other than legally obtained.
5 SUFFICIENCY OF THE EVIDENCE
We review the evidence, and all reasonable inferences to be
drawn therefrom, supporting a conviction in the light most
favorable to the verdict. United States v. Tripplett, 922 F.2d
1174, 1177 (5th Cir. 1991), cert. denied, 111 S.Ct. 2245 (1991).
We ask whether a rational jury could have found each defendant
guilty beyond a reasonable doubt. Every reasonable theory of
innocence need not be excluded. All credibility choices are
decided in favor of the government. United States v. Montemayor,
703 F.2d 109, 115 (5th Cir. 1983), cert. denied, 464 U.S. 822
(1983); United States v. Green, 964 F.2d 365 (5th Cir. 1992);
United States v. Breque, 964 F.2d 381 (5th Cir.), reh'g denied en
banc, 1992 U.S. App. LEXIS 18664 (5th Cir. 1992).
I. FULLER'S CONVICTION
Fuller calls into question the sufficiency of evidence to
convict him on the attempt to conduct a transaction proscribed by
18 U.S.C. § 1956(a)(3)(B). This statute criminalizes the
laundering of funds received from an unlawful activity. It is well
settled that mere preparation alone will not suffice to support
conviction for conducting a financial transaction affecting
interstate commerce. There must be a substantial step taken toward
the commission of a crime. Fuller accepted drug money from an
undercover agent and moved to depart from the hotel room. Fuller
claims that these acts, acceptance of funds and an attempt to exit
the building, do not amount to an attempt to conduct a financial
transaction.
6 In order to convict under 18 U.S.C. § 1956, the government
must prove beyond a reasonable doubt that the defendant involved
himself in a financial transaction with property represented by the
undercover agent to be the product of a specified unlawful
activity. A specified unlawful activity, according to the statute,
includes "dealing in narcotic or other dangerous drugs" punishable
by imprisonment for not more than one year. 18 U.S.C. §§
1956(c)(7)(A) and 1961(1). The government must also prove beyond
a reasonable doubt that the defendant knew the illicit source of
the funds and that the laundering was done with the intent to
conceal or disguise the nature, location, source, ownership or
control of the property. 18 U.S.C. § 1956(a)(3)(B). This circuit
has adopted a two-step test for proof of attempt:
We have stated a two-step test for finding criminal attempt. "To be guilty of an attempt, the defendant (1) must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempted," and (2) "must have engaged with conduct which constitutes a substantial step towards commission of the crime." United States v. Briscoe, 742 F.2d 842, 846 (5th Cir. 1984)(citations omitted). In order to establish a violation of 18 U.S.C. § 1956, the government must prove that the defendant (1) knowingly conducted a financial transaction ("financial transaction" in this context means "the movement of funds by wire or other means . . . which in any way or degree affects interstate or foreign commerce.") 18 U.S.C. § 1956(c)(4) (2) which involved the proceeds of unlawful activity and (3) with the intent to promote or further that unlawful activity.
United States v. Salazar, 958 F.2d 1285, (5th Cir. 1992).
Fuller does not dispute that he knew the source of the funds
and that he intended to conceal or disguise the source of the
funds. What Fuller does dispute is the sufficiency of the evidence
7 that equates his actions with "conducts" or "transaction" as those
terms are defined in 18 U.S.C. § 1956(a)(3)(B). Fuller also
disputes that the evidence is sufficient to link him with a
financial transaction. The statute defines, but not in exclusive
terms, the words "conducts," "transaction," and "financial
transaction" as follows:
(2) the term "conducts" includes initiating, concluding, or participating in initiating, or concluding a transaction;
(3) the term "transaction" includes a purchase, sale, loan, pledge, gift, transfer, delivery, or other disposition, and with respect to a financial institution includes a deposit, withdrawal, transfer between accounts, exchange of currency, loan, extension of credit, purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument, or any other payment, transfer, or delivery by, through, or to a financial institution, by whatever means effected;
(4) the term "financial transaction" means a transaction involving the movement of funds by wire or other means or involving one or more monetary instruments, which in any way or degree affects interstate or foreign commerce, or a transaction involving the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree;
18 U.S.C. § 1956(c)(2)(3)(4).
Fuller would like the law to measure only his receipt of funds
and his walk to the hotel door. Nothing in the statute requires
such a restrictive reading. Fuller's entire relationship with the
undercover agents must be, and was, the subject of jury evaluation.
At three lengthy meetings, held over a fourteen month period,
Fuller described in great detail methods that he could administer
to cleanse the drug funds so that deposit and withdrawal reporting
requirements could be avoided. Not only did Fuller suggest the
8 methods of law avoidance, but also he initiated steps towards
perfection of plans to accomplish the illegal purpose. Fuller
talked with insurance company executives, obtained financial data
on accomplices to the scheme of laundering, and sent this material
to the undercover agent. He prepared a detailed financial
statement showing the source and application of funds when received
from the undercover agent. He travelled widely in Texas in
pursuance of factual data to support the benefits to be received by
the undercover agent from the Fuller-created laundering schemes.
What did Fuller need to launder the money? He needed a solid
plan, one that oozed with commercial merit, he needed the money,
and he needed to transmit the money to the entity to perform the
laundering function. What did Fuller do to accomplish the feat?
He prepared a plan, he refined it after communicating with an
intended recipient of the money, he demonstrated the commercial
reasonableness of the plan to the undercover agent, he received the
money, and was on his way to deliver the money to the sanitizing
agent in a foreign situs when he was arrested. If he had made
delivery of the money the crime would have been perfected.
Fuller cites U. S. v. Ramirez, 954 F.2d 1035 (5th Cir.), cert.
denied, 112 S.Ct. 3010 (1992), as this circuit's rule that mere
possession of money does not support "the inference that the
defendant transferred, delivered, moved or otherwise disposed of
the money as required by the statute." Id. at 1040. In Ramirez,
this court overturned a conviction of money laundering when drug
money was found in a house belonging to a co-conspirator. The
9 government had failed to show that the co-conspirator was involved
in any way in a financial transaction with the money. The Ramirez
holding is inapposite to this case. Fuller developed a procedure
to launder funds derived from illegal sources. There is no
constructive possession of money here. Fuller arranged a plan to
circumvent currency reporting requirements and accepted cash to
complete the plan. He was not an innocent dupe as was a co-
conspirator in the Ramirez case. The evidence is overwhelming. A
jury could easily conclude that Fuller was the mastermind of an
intricate international plot concocted by him to conceal the source
of large sums of drug money. Only Fuller's testimony supports his
theory that he intended to fleece Martinez out of his money. The
jury's determination will not be disturbed.
II. FOSTER'S CONVICTION
Foster regards the indictment and evidence as insufficient to
support his conviction for conspiracy to launder funds represented
to be the proceeds of an unlawful activity. The indictment,
according to Foster, is deficient in that there is no assertion by
the Government that its agent warranted to Foster that the money
for laundering came from an unlawful activity. The indictment
charged that Fuller and Foster "willfully, knowingly and unlawfully
conspired, combined, confederated and agreed together, and with
each other, to commit an offense against the United States in
violation of Title 18, United States Code, Section 371, that is to
say, they conspired to launder money, in violation of Title 18,
United States Code, Section 1956(a)(3)(B)." The indictment
10 described each of the specific elements of the offense, including
the requirement that the Government agent certify the illegal
source of the funds that are the subject of the laundering scheme.
The indictment is not invalid. A challenge similar to that
raised by Foster was brought forth in United States v. Graves, 669
F.2d 964 (5th Cir. 1982). Graves claimed that an indictment for
conspiracy to violate the Dyer Act was insufficient in that the
indictment neglected to mention that Graves knew that the trucks
were stolen and were valued at more than $5,000. In ruling on
Graves' meritless argument, the court noted, as we do, that the
defendant was charged with conspiracy to violate the law, not with
a substantive violation of the law itself. In such a case, "the
sufficiency of the indictment must be measured with regard to a
conspiracy to violate a federal law rather than with regard for the
substantive violations Graves conspired to commit." Id. at 968.
The court in Graves went on to describe a sufficient indictment for
conspiracy:
An indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs the defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.
Id. at 968 (quoting with approval United States v. Bailey, 444 U.S.
394, 414 (1980)). The indictment of Foster clearly contains all of
the elements of the statute and directly notifies him of the
charges he is called upon to defend. We reject the argument that
the indictment is defective.
Foster also argues that the evidence is insufficient to
11 support his conviction. Foster, having attended only one of the
three meetings between Fuller and Martinez claims that he was never
informed by Martinez that the Martinez funds were from the illegal
sale of drugs. Supported by citations previously reported, we ask
whether a rational jury could have found beyond a reasonable doubt
that Foster was aware of the source of the Martinez funds. Or, as
we stated in U.S. v. Arditti, 955 F.2d 331, 339 (5th Cir.), reh'g
denied, 1992 U.S. App. LEXIS 13930 and 1992 U.S. App. LEXIS 13931
(5th Cir. 1992):
In this case, it is enough that sufficient evidence was presented that the jury could have found beyond a reasonable doubt that (the Government agent) represented, and (the defendant) understood, that the funds they were laundering were the proceeds of the specified illegal activities.
Viewing the evidence in a light favorable to the verdict, we find
sufficient evidence to support the conclusion that Foster knew the
funds came from an illegal source. At the meeting of 21 June 1989,
agent Martinez rejected the Foster researched transaction of a
Texas land purchase, the land having been encumbered with a lease
of questionable value. But agent Martinez expressed interest in
offshore banking. Foster and Fuller explained the creation of an
offshore account into which the Martinez money would be deposited.
Even though the offshore corporation would use a wholly owned
subsidiary as the account owner, only Martinez, or his designee,
would have authority to make deposits and withdrawals. As Foster
described the transaction, the account would look like a Hemisphere
Insurance Company account, but the sole control over the account
would vest in Martinez. All that would be required for the Bermuda
12 based account would be a minimum balance. Even large deposits and
withdrawals would not attract attention. The money would be paid
to Foster and Fuller, the commission extracted, and the net
proceeds delivered to the insurance company. Foster recognized the
risk of the transaction when he said, in discussing commissions:
The terms are the same whether it's a hundred thousand or a hundred million, you're in trouble. It's what you did, not how much you did.
But Martinez wasn't as concerned about the commission and the
danger of being detected as he was about the security of his
client's money.
Martinez: You feel, you may feel that I, am not going as fast as you want me to go, but I have to make sure that the money is secure. Yeah, the people down south, they don't want any excuses. . . . Okay, let me, let me just make sure you guys understand something, where I'm coming from. In these situations that I'm dealing with, some of these Colombians that I have to get the money to, sometimes deal with other people. They're gonna deal with the person that gives them the best deal. So if I want to get their money to run it through the system that we talked about right here, I've got to have, I've got to have a reasonable way to, a price for them. If not, they'll just go to somebody else and there's a lot of people out there that already helping them, and I have to compete with them and, and sometimes it's a little hard. But they also, you know, your also talking about large amounts of money in hard cash. Twelve percent sounds within reason, and it all depends what, how much the Colombian is going to give me that particular time . . . but you got to remember you know, the funds, you know, it's, if they leak out, the illegal, the illegality of the funds, the funds are illegal if they get lost, my recourse is very limited, you know that legally.
Foster: I'll ride shotgun. How's that, I'll ride shotgun.
13 Martinez: Those are the sources of the funds, you know. . . . And I don't need any Colombians on my ass.
Fuller: Well, I don't think there's anyone involved now that doesn't understand what's, you know, what we're doing, I mean it's just totally, what we're doing is not legal and the main thing is, is to watch everyone's backs. And if one person gets caught well, he keeps his mouth shut and that's it and the best way for him not to know is not to ever meet anybody.
Martinez: Do we deliver it (the money) to you?
Fuller: Yeah, but you'll have a debenture.
Martinez: I'll tell you what, you know, I'll tell you guys an honest story. This happened to me, dealing with those Colombians, you know, this is common, you know, dealing with these Colombians, you know, this is common you know, dealing with Colombians, this happened to me. I went to, I called, they called me from down south and said, he says, Al, this is, you know, we got, we got some for you to pick up, I said, well, how much do you have? And he says 127. So I figured 127,000, and, and I misread them. So I have a small car and I, and, the Colombians I go pick them up and I pick up in the parking lots because I get there and I pick it up quick and disappear and I have my partners with me. So I say, so, so I get there and, God damn Colombian comes out, he says, I says, he says, well, here, you got it? And I say, I got the packages, he says, okay, I say, well let's transfer it to my car, he says quick. So he starts bring out the suitcases, and I have a little car, before I know it I've got suitcases tied all over the damn car and got some in the back, and I got 1.5 million bucks. I says, oh, it took me two weeks to get rid of that stuff. They followed me day in and day out. . . . I finally had, you know, it took me two weeks to get it back to them on this one, I said, hey, you know I can't move it that fast. . . .
Foster: God dang. . . .
Martinez: These Colombians that I deal with, they developed a trust in me enough that they'll
14 release 1.5 million bucks to me. And of course they know quite a bit about me too, you know, but you know, by the same token, knock on wood, I've been fortunate and never lost any of their money, and I don't plan to, if I do, I'm going to have to make good or I'm going to have a very good explanation why some money gets lost.
Foster: Well, you know, the front has got to look right too. It's just like, I saw on the news the other day that, that big bust with 80 million worth of cocaine and the "carrier" has got a California driver's license, he rents a truck in Florida and he's speeding heading to California. Now that, I mean,
Martinez: He's looking for it.
Foster: There's something wrong, there's something wrong here.
Rarely does a jury have the opportunity to see and hear the
event at issue. Usually, the testimony of a witness to an event
imparts that witnesses' personality in the reproduction. But in
this case, the video tape recorded the entire event and made each
juror an armchair witness, not hobbled by another's recollection.
The jury could reasonably conclude that Martinez led Foster to
believe that the funds to be laundered were the product of an
illicit activity.
DELIBERATE IGNORANCE INSTRUCTION
Foster and Fuller each object to the deliberate ignorance
instruction related to the charge of conspiracy to launder money.
The court instructed the jury that:
You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what otherwise would have been obvious to him. While knowledge on the part of the defendant can not be established merely by demonstrating that the defendant was negligent, careless or foolish. Knowledge can be
15 inferred if the defendant deliberately blinded himself to the existence of a fact.
Foster and Fuller believe that the government agent is required by
statute to represent to them that the money was the product of an
illegal activity. Allegedly, the deliberate ignorance instruction
compromises the statutory instruction. They also claim that the
instruction is in error in a conspiracy case. Foster and Fuller
assert that in a conspiracy case there must be evidence of a
conscious agreement between the parties. The deliberate ignorance
instruction, according to appellants, undercuts the heavy burden
placed upon the government to prove a conspiracy.
In U. S. v. Daniel, 957 F.2d 162 (5th Cir. 1992), a defendant
complained that the trial court should not have given an
instruction on deliberate ignorance. The court first addressed the
issue of standard of review:
The standard of review of a claim that a jury instruction was inappropriate is "whether the courts charge, as a whole, is a correct statement of the law and whether it clearly instructs jurors as to the principles of law applicable to them." United States v. Lara-Velasquez, 919 F.2d 946, 950 (5th Cir. 1990) quoting from United States v. Stacey, 896 F.2d 75, 77 (5th Cir. 1990). This court has consistently upheld such an instruction as long as sufficient evidence supports its insertion into the charge.
Id. at 169. The giving of the deliberate ignorance instruction was
not reversible error. Appellants insist that the instruction was
wrongfully given because the jury could believe that the Government
was only required to prove that the defendants should have known of
the source of funds. We disagree. There is ample evidence that
both defendants, in fact, knew that the source of the funds was
16 drug sales. The instruction could not have misled the jury as to
the proper standard. The jury instruction that dealt specifically
with 18 U.S.C. § 1956(a)(3)(B) made clear to the jury that the
Government had to prove that the undercover agent made a
representation. Taken as a whole, the instructions were proper and
there was no error in giving the deliberate ignorance instruction.
See U.S. v. Breque, 964 F.2d 381 (5h Cir.), reh'g denied en banc,
1992 U.S. App. LEXIS 18664 (5th Cir. 1992) for an in depth analysis
of the deliberate ignorance instruction in a case involving
conspiracy and attempt to launder drug funds.
AGENT'S EXPLANATION OF VIDEOTAPE RECORDINGS
The appellants complain that the videotapes of the three
meetings with the undercover agent were improperly embellished when
the agent was allowed to explain and interpret the argot or
seemingly secret jargon of the alleged criminals. For example, the
undercover agent was permitted to advise the jury of the meaning
and import of the witnesses' recorded words. The undercover agent
was allowed to explain the term "move around" money; to explain the
prominence of the Bahamas in drug money laundering schemes; to
explain the money owners' reason for avoiding the completion of
currency declaration forms; to explain the meaning of money
laundering; to explain currency transaction reporting requirements;
to explain the significance of small bills in money laundering of
proceeds from narcotic sales; to explain that Colombia is a country
well known for its international drug trafficking. All of the
admissions were in the nature of self serving testimony from one
17 not qualified to give expert testimony, so say the appellants. The
appellants cite this circuit's opinion in U. S. v. Hall, 653 F.2d
1002 (5th Cir. 1991) as authority for their demands that their
convictions be reversed. On examination, Hall will not support the
defendant's theory for reversal. We need but quote from the Hall
decision to distinguish the testimony in that case from this.
To bolster its case, the government called its final witness, DEA agent John Donald. Donald did not participate in the investigation leading to Hall's arrest and prosecution, and was in no way connected with the development of the case against Hall. The sole purpose of his testimony was to respond to defense counsel's suggestion that the government had been unable to obtain corroborating physical evidence against Hall because Hall was innocent of the offenses charged. Donald testified in general terms about the various procedures used by the DEA in its narcotics investigations. In sum, Donald described the various investigative techniques and testified that it is not always possible to conduct a "controlled buy" and seizure of narcotics during the course of an investigation, particularly where the conspiracy under investigation has already terminated by the time the investigation is commenced or the subject of the investigation is insulated in the higher echelons of the narcotics conspiracy.
In essence, Donald testified as a kind of quasi-expert on DEA investigative procedures, and his testimony was limited to the general and quite hypothetical descriptions of accepted practice that are typical of the expert witness. He testified to no facts bearing on any manner on the prosecution of Christopher Hall or on the investigation leading to that prosecution. His testimony had no tendency whatsoever to make the existence of any fact of consequence to the government's case in chief either more or less probable than it would have been without his testimony.
Hall, 653 F.2d at 1005, 1006. The undercover agent in this case,
Martinez, presented relevant evidence. He testified as to facts
directly bearing on the investigation and ultimate arrest of both
Foster and Fuller. He was professionally qualified to testify as
18 to the usual meanings, in the words of drug money laundering, of
terms used by the parties to the conversations. The Martinez
testimony was relevant and admissible. FED. R. EVID. 402.
THE SENTENCE
Appellants find fault with the district judge's assessment of
the amount involved in the offense. The district judge concluded
that $2,097,000 was the amount of money involved in the offense and
this finding produced a six level upward adjustment to the base
level offense. The district court applied a base offense level of
twenty as required by U.S.S.G. § 2S1.1(a)(2), and a six level
upward adjustment for the specific offense characteristic because
the funds to be laundered under the scheme exceeded $2,000,000.
U.S.S.G. § 2S1.1(b)(G). In making its determination of the amount
involved, the trial court cited the negotiations of the 21 June
1989 meeting during which the defendants discussed the ease with
which $1,000,000 a month could be laundered. The court also
observed that placing the amount at $2,097,000 was conservative and
modest. The actual sum could have been as high as $25,000,000.
Our standard of review of factual findings upon which a sentence is
based has been succinctly stated in a recent opinion:
The district court's findings about the quantity of drugs on which a sentence should be based are factual findings which we review for clear error. United States v. Rivera, 898 F.2d 442, 445 (5th Cir. 1990). A finding will not satisfy this deferential standard "`when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541-42, 92 L.Ed. 746 (1948)); see also United
19 States v. Sanders, 942 F.2d 894, 897 (5th Cir. 1991) ("a factual finding is not clearly erroneous as long as it is plausible in light of the record read as a whole"). The district court is not limited to considering the amount of drugs seized or specified in the charging instrument. United States v. Sarasti, 869 F.2d 805, 806 (5th Cir. 1989), but may consider amounts that were part of a common plan or scheme to distribute. United States v. Ponce, 917 F.2d 841, 844 (5th Cir. 1990) (per curiam), cert. denied, ____ U.S. ____, 111 S.Ct. 1398, 113 L.Ed.2d 453 (1991); United States v. Byrd, 898 F.2d 450, 452 (5th Cir. 1990). The ultimate sentence will be upheld so long as it results from a correct application of the Guidelines to factual findings that are not clearly erroneous. Rivera, 898 F.2d at 445; United States v. Buenrostro, 868 F.2d 135, 136-37 (5th Cir. 1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990).
U.S. v. Mitchell, 964 F.2d 454 (5th Cir. 19 June 1992). The
district court was guided by United States v. Richardson, 925 F.2d
112, 116 (5th Cir. 1991), cert. denied, 111 S.Ct. 2686 (1991) when
it made the factual determination as to the amount of money that
the defendants were "reasonably capable" of laundering. The
analysis by the district judge was well within the bounds of
reason. Fuller had the perfect cover, the Brazil land sale for
$25,000,000. That sum would provide the shade of validity to
launder the drug money from the clients of the government agent.
We find no clear error in the analysis by the district court.
There are no factual inaccuracies presented to question the court's
logical conclusions.
All of the arguments of appellants have been reviewed and
refuted. We AFFIRM the convictions and sentences with respect to
each defendant.