United States v. Burgos

United States Court of Appeals
For the First Circuit

No. 00-1163

UNITED STATES OF AMERICA,

Appellee,

v.

DANIEL BURGOS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, Senior U.S. District Judge]

Before

Selya, Lynch, and Lipez, Circuit Judges.

Joshua L. Gordon for appellant.
Jennifer Hay Zacks, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief, for
appellee.

June 22, 2001
 LIPEZ, Circuit Judge. Daniel Burgos appeals his

convictions and sentence for one count of attempting to possess

with intent to distribute cocaine, in violation of 21 U.S.C. §

846 and § 841(a)(1), and one count of money laundering in

violation of 18 U.S.C. § 1956(a)(1)(A)(i). He makes five

arguments: (1) that the indictment is defective for not

sufficiently alleging proof that the money laundering

transaction affected interstate commerce; (2) that the evidence

was insufficient to convict him on both charges; (3) that the

district court abused its discretion in not severing the two

charges; (4) that the government violated the Speedy Trial Act,

18 U.S.C. § 3161(b), in charging him with money laundering; and

(5) that the district court erred in sentencing him on the

cocaine conviction. For the reasons that follow, we affirm his

convictions on both counts, as well as his sentence.

I. Background

The government's case against Burgos originated with

the arrest of William O'Neil on February 10, 1999 by the Drug

Enforcement Administration. Agreeing to cooperate with the

government that same day, O'Neil arranged with Burgos, in a

recorded telephone call, for Burgos to purchase two kilograms of

cocaine at a price of $22,000 per kilogram. When Burgos arrived

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at the designated meeting place for the transaction, he was

arrested immediately. Burgos had not yet obtained the cocaine

from O'Neil at the time of his arrest and he had not yet had the

opportunity to observe whether O'Neil was in possession of any

cocaine. Burgos was carrying $44,000 in cash when he was

arrested.

The grand jury returned an indictment on February 25,

1999 charging Burgos with attempting to possess with intent to

distribute cocaine. After further investigation, the government

obtained a search warrant for Burgos's residence, which it

executed on March 9. Various documents, including financial and

employment records, were seized at that time. Based on those

records, a superseding indictment was returned on June 17

charging Burgos with money laundering and renewing the drug

charge. Following a three-day trial, a jury convicted him of

both counts on August 18, 1999. The district court sentenced

Burgos in January 2000 to 108 months in prison.

II. Allegations of Interstate Commerce in the Indictment

Burgos argues that the indictment contained

insufficient allegations that his monetary transaction affected

interstate commerce. Because he did not raise this claim below,

we review for plain error. See United States v. Mojica-Baez,

229 F.3d 292, 307 (1st Cir. 2000).

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 The indictment charged that Burgos:

did knowingly and willfully conduct and
attempt to conduct a financial transaction,
to wit, the delivery of $44,000 in cash,
which said cash involved the proceeds of a
specified unlawful activity, that is, the
distribution of a controlled substance, a
violation of Title 21, United States Code,
Section 841(a)(1), with the intent to
promote the carrying on of a specified
unlawful activity, to wit, the distribution
of cocaine, a violation of Title 21, United
States Code, Section 841(a)(1), and that
while conducting and attempting to conduct
such financial transaction knew that the
cash represented the proceeds of unlawful
activity.

The language of the indictment does not allege specifically that

the transaction affected interstate commerce. However,

"financial transaction" is defined as "a transaction which in

any way or degree affects interstate or foreign commerce." 18

U.S.C. § 1956(c)(4)(A). Moreover, the indictment specifically

alleged that the financial transaction at issue was Burgos's

attempt to purchase cocaine for $44,000. It is well-settled

that drug trafficking is an activity that affects interstate

commerce. See United States v. Zorilla, 93 F.3d 7, 8 (1st Cir.

1996); see also United States v. Owens, 167 F.3d 739, 755 (1st

Cir. 1999); United States v. Gonzalez-Maldonado, 115 F.3d 9, 21

(1st Cir. 1997). We conclude, therefore, that the indictment

sufficiently alleged interstate commerce as an element of the

crime, and that Burgos was on notice of that element. Cf.

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United States v. Cefaratti, 221 F.3d 502, 507 (3d Cir. 2000)

("[A]n indictment that charges a legal term of art sufficiently

charges the component parts of that term." (internal quotation

marks omitted)); United States v. Kovach, 208 F.3d 1215, 1219

(10th Cir. 2000) (finding that the indictment adequately charged

the interstate commerce element by using the word

"organization," a term of art defined by statute as an entity

that affects interstate commerce); United States v. Wicks, 187

F.3d 426, 428 (4th Cir. 1999) (same). Indeed, Burgos does not

claim in his brief that he lacked notice of this element.

Moreover, even assuming that the charging language was in error,

Burgos has not even attempted to show the prejudice required by

the plain error standard. See United States v. Balgyga, 233

F.3d 674, 682 (1st Cir. 2000). Thus, we reject Burgos's claim

that his conviction should be reversed because of an error in

the indictment.

III. Sufficiency of the Evidence

In assessing Burgos's challenges to the sufficiency of

the evidence, we must determine whether the evidence taken in

the light most favorable to the prosecution supports the guilty

verdicts. See id.

A. Attempt to Possess with Intent to Distribute Cocaine

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 Burgos was convicted of attempting to possess cocaine

with intent to distribute it, in violation of 21 U.S.C. §

841(a)(1)1 and 21 U.S.C. § 846.2 He argues that a rational jury

could not have convicted him because there was no actual cocaine

involved in the transaction between him and O'Neil. The

government concedes that Burgos was arrested before he came into

possession of any cocaine, and that O'Neil did not have any

cocaine with him when he met Burgos to complete the transaction.

Contrary to Burgos's assertion, neither O'Neil nor

Burgos had to possess cocaine at the time of the contemplated

transaction to satisfy the elements of this crime. "To prove

attempt, the government must establish both an intent to commit

the substantive offense and a substantial step towards its

commission." United States v. Argencourt, 996 F.2d 1300, 1303

(1st Cir. 1993) (internal quotation marks omitted). The step

towards completion of the crime "must be more than mere

preparation." Id. (internal quotation marks omitted).

1 21 U.S.C. § 841(a)(1) provides, in pertinent part, that
"it shall be unlawful for any person knowingly or intentionally
. . . to manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense, a controlled
substance."
2 21 U.S.C. § 846 provides: "Any person who attempts or
conspires to commit any offense defined in this subchapter shall
be subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the attempt
or conspiracy."

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Nonetheless, an individual accused of attempt to possess cocaine

"does not have to get very far along the line toward ultimate

commission of the object crime in order to commit the attempt

offense." United States v. Doyon, 194 F.3d 207, 211 (1st Cir.

1999).

A rational jury could have found easily that Burgos

demonstrated an intent to commit the substantive offense of

possessing cocaine with intent to distribute it. Law

enforcement officers testified that Burgos arranged the

transaction with O'Neil over the course of six telephone calls.

Shortly before the agreed-upon meeting time, surveillance

officers observed Burgos leave his home in a car, closely

followed by an individual in another car. The drug agents

testified that the presence of this second car was consistent

with the practice of bringing security to a narcotics

transaction. The officers then observed Burgos arrive at the

location that he and O'Neil had specified carrying $44,000 in

cash, a sum corresponding to the price and quantity of cocaine

he had agreed to purchase - two kilograms at $22,000 each.

Burgos approached O'Neil and was immediately arrested. This

evidence establishes Burgos's criminal intent and further

constitutes a substantial step towards commission of the

substantive offense of possessing cocaine. Whether he or O'Neil

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did in fact possess cocaine at some point during the transaction

is irrelevant.

B. Money Laundering

Burgos was convicted of money laundering in violation

of 18 U.S.C. § 1956(a)(1)(A)(i).3 He claims that the government

failed to prove that his attempt to exchange $44,000 in cash for

two kilograms of cocaine had a sufficient link to interstate

commerce. As we have already noted, section 1956 defines

"financial transaction" as "a transaction which in any way or

degree affects interstate or foreign commerce." 18 U.S.C. §

1956(c)(4)(A) (emphasis added). In interpreting this provision,

we have held that "[a] minimal effect on interstate commerce is

sufficient to support a conviction." Owens, 167 F.3d at 755.

For reasons we have already discussed, a rational jury

could have found that Burgos attempted to purchase two kilograms

of cocaine for $44,000 cash. The government presented

additional evidence from which a jury could have inferred that

3 18 U.S.C. § 1956(a)(1)(A)(i) provides, in part, that
money laundering is committed whenever a person, "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 . . . with the
intent to promote the carrying on of specified unlawful
activity." (Emphasis added.) Although Burgos was arrested
before he completed the financial transaction in which he had
planned to exchange cash for cocaine, § 1956 applies to such
attempted transactions.

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the cash was derived from Burgos's involvement in trafficking

narcotics. For example, financial and employment records seized

during a search of Burgos's home indicated that his family's

expenditures far exceeded the legitimate income produced by him

and his wife. Plastic bags containing marijuana residue were

also found during the search. Government witnesses further

testified that O'Neil told Burgos when they arranged the

transaction that the person delivering the cocaine to O'Neil had

just arrived from New York and was impatient to return there.

Therefore, the facts of the transaction as Burgos believed them

to be establish the element of interstate commerce. See United

States v. Dworken, 855 F.2d 12, 16 (1st Cir. 1988) (stating that

a person is guilty of an attempt to commit a crime if, "under

the circumstances as he believes them to be," the act is a

substantial step in a course of conduct planned to culminate in

a crime (quoting American Law Institute, Model Penal Code §

5.01(1)(c)(1985))). Additional evidence indicated that most of

the cocaine in the area of Springfield, Massachusetts at the

time of Burgos's arrest came from New York, and that both the

cocaine and the money used to purchase it would thus be likely

to travel across state lines.

It is a well-settled proposition that "drug trafficking

is precisely the kind of economic enterprise that substantially

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affects interstate commerce." Zorilla, 93 F.3d at 8. We have

held in other cases that involvement in the drug trade satisfies

the "effect on interstate commerce" prong of the money

laundering statute. See, e.g., Owens, 167 F.3d at 755

(affirming the conviction where there was evidence that the

money involved in the transaction was generated by a drug

enterprise transporting cocaine and cash between Providence and

Boston); Gonzalez-Maldonado, 115 F.3d at 21 (affirming

conviction under § 1956 where the jury could have inferred that

the defendant engaged in telephone conversations that were part

of illegal drug activity and not a legitimate business).

Therefore, we reject Burgos's claim that there was insufficient

proof of a link between his attempted financial transaction and

interstate commerce.

IV. Severance

The district court denied Burgos's motion to sever the

two counts of the superseding indictment in a written memorandum

and order. We review that determination for manifest abuse of

discretion. See United States v. DeLeon, 187 F.3d 60, 63 (1st

Cir. 1999).

Federal Rule of Criminal Procedure 14 provides: "If it

appears that a defendant or the government is prejudiced by a

joinder of offenses or of defendants in an indictment or

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information or by such joinder for trial together, the court may

order an election or separate trials of counts, grant a

severance of defendants or provide whatever other relief justice

requires." Fed. R. Crim. P. 14 (emphasis added). We will

overturn a court's exercise of its discretion in considering a

motion for severance "only upon a demonstration of manifest

abuse." United States v. Boylan, 898 F.2d 230, 246 (1st Cir.

1990). "This is a difficult battle for a defendant to win.

There is always some prejudice in any trial where more than one

offense or offender are tried together - but such 'garden

variety' prejudice, in and of itself, will not suffice." Id.

Burgos must demonstrate that the allegedly improper joinder

"likely deprived [him] of a fair trial." United States v.

Bartelho, 129 F.3d 663, 678 (1st Cir. 1997) (internal quotation

marks omitted). Burgos's claim falls far short of this

standard.

Burgos argues that the jury may have been improperly

led to convict him of both charges because the evidence relating

to one charge tended to prove that he was of bad character

generally. Under similar circumstances, we have found this sort

of vaguely articulated prejudice to be insufficient:

"[Appellant's] bare allegation that, if the jury were to believe

that he was involved in one bank robbery, then it might also

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(improperly) be led to believe from that fact alone that he was

involved in the other, is simply not enough." United States v.

Taylor, 54 F.3d 967, 973 (1st Cir. 1995). Although Taylor

involved a defendant prosecuted for two counts of bank robbery

for two separate incidents, while Burgos was prosecuted for two

separate crimes arising from the same incident, the reasoning of

Taylor applies with equal force here.

Moreover, as the district court noted in its written

memorandum and order denying Burgos's motion for severance,

proof of the two charges necessarily involved proof of much the

same conduct. Count two of the indictment, charging money

laundering, charged that the "specified unlawful activity"

involved in the transaction was the attempted distribution of

cocaine. Therefore, to convict Burgos of money laundering, the

government had to prove that he had attempted to distribute

cocaine to satisfy the "specified unlawful activity" element of

the crime. See 18 U.S.C. § 1956(a)(1)(A)(i) (criminalizing

attempting to conduct a financial transaction "which in fact

involves the proceeds of specified unlawful activity . . . with

the intent to promote the carrying on of specified unlawful

activity") (emphasis added). Furthermore, proof of the drug

charge required an explanation of the agreed-upon purchase price

for the cocaine, as well as a description of the cash Burgos was

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carrying at the time of his arrest. Because proof of the two

charges involved some of the same evidence and the same

witnesses, and Burgos did not make an adequate showing of

prejudice from joinder of the two counts, the district court was

well within its discretion in denying the motion to sever.

Burgos makes one final argument on the severance issue.

The government introduced substantial evidence at trial

concerning Burgos's assets, earnings, and expenditures. Bank

records indicated that Burgos made deposits into his checking

account during the years 1996 to 1999 that far exceeded the

modest wages earned by Burgos and his wife. Other evidence,

including receipts, showed that Burgos had also purchased

expensive jewelry, cars, and a vacation. He claims that this

evidence regarding his financial condition would not have been

admissible at a trial of only the drug charge because Federal

Rule of Evidence 404(b) would have prevented the government from

introducing such evidence if it tended only to prove his bad

character.

That evidentiary rule provides:

Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show action in conformity
therewith. It may, however, be admissible
for other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake
or accident.

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Fed. R. Evid. 404(b) (emphasis added). The evidence of Burgos's

financial condition was admissible to prove the government's

case on the drug charge under this "other purposes" prong of

Rule 404(b). Evidence of large sums of unexplained cash is

relevant to demonstrating an individual's involvement in illegal

drug activities. See United States v. Figueroa, 976 F.2d 1446,

1454 (1st Cir. 1992); United States v. Newton, 891 F.2d 944, 948

(1st Cir. 1989). Moreover, Burgos's history of trafficking in

narcotics was probative of his knowledge and intent in arranging

the transaction with O'Neil. See United States v. Spinosa, 982

F.2d 620, 628 (1st Cir. 1992) (approving admission of evidence

of past drug crimes as "probative of the fact that [the

defendant] was not merely an innocent driver who was involved in

the transaction by accident"); United States v. Hadfield, 918

F.2d 987, 994 (1st Cir. 1990) ("We have often upheld the

admission of evidence of prior narcotics involvement in drug

trafficking cases to prove knowledge and intent."). Given this

probative value of the evidence, it was admissible so long as

its probative value was not "substantially outweighed" by the

risk of prejudice. Fed. R. Evid. 403. See also Hadfield, 918

F.2d at 995 (affirming admission of past criminality where such

evidence "was prejudicial - but not unduly so"). We defer to

the district court's calculation of the probative and

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prejudicial value of this evidence. "Only rarely - and in

extraordinarily compelling circumstances - will we, from the

vista of a cold appellate record, reverse a district court's on-

the-spot judgment concerning the relative weighing of probative

value and unfair effect." Freeman v. Package Machinery Co., 865

F.2d 1331, 1340 (1st Cir. 1988). This is not such a

circumstance.4

V. Violation of the Speedy Trial Act

Burgos argues that his rights under the Speedy Trial

Act, 18 U.S.C. § 3161(b), were violated because he was not

indicted on the money laundering charge until June 17, 1999,

more than four months after his arrest on the cocaine charge in

February. The Speedy Trial Act ("the Act") provides: "Any

information or indictment charging an individual with the

commission of an offense shall be filed within thirty days from

the date on which such individual was arrested or served with a

summons in connection with such charges." 18 U.S.C. § 3161(b)

(emphasis added). The purpose of this rule "is to ensure that

4
Even if, as Burgos argues, the evidence of his financial
condition had been admissible only on the money laundering
charge, that would not have been a basis for mandatory
severance. See, e.g., United States v. Neal, 36 F.3d 1190, 1207
(1st Cir. 1994) (noting that "[t]rial courts are granted
discretion under Rule 14 to take whatever steps are deemed
necessary to minimize prejudice" and affirming district court's
denial of motion to sever where the district court instead chose
to minimize the jury's exposure to the challenged evidence).

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the defendant is not held under an arrest warrant for an

excessive period without receiving formal notice of the charge

against which he must prepare to defend himself." United States

v. Meade, 110 F.3d 190, 200 (1st Cir. 1997) (citations omitted).

As the government argues persuasively, the plain

wording of the Act does not apply here. The Act imposes a 30-

day time limit between an arrest and an indictment only where

the arrest was "in connection with" the charges in the

indictment. 18 U.S.C. § 3161(b). Burgos was arrested on the

cocaine charge and does not dispute that he was indicted for

that charge within the 30-day period prescribed by the Act.

Thus, the money laundering count in the superseding indictment

did not charge him with the crime for which he was arrested.

Under these circumstances, there is no violation of the Act.

See, e.g., Meade, 110 F.3d at 201 (finding no violation of the

Act because the prosecution at issue, commenced with an

indictment instead of an arrest, "simply did not trigger §

3161(b)'s arrest-to-indictment limitation"); Acha v. United

States, 910 F.2d 28, 30 (1st Cir. 1990) (finding no violation of

the Act and noting, "'[t]he right to a speedy trial on a charge

is triggered by arrest only where the arrest is the beginning of

continuing restraints on defendant's liberty imposed in

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connection with the formal charge on which defendant is

eventually tried.'") (quoting United States v. Stead, 745 F.2d

1170, 1172 (8th Cir. 1984)); United States v. Heldt, 745 F.2d

1275, 1280 (9th Cir. 1984).

VI. Sentencing

Finally, Burgos argues that the district court erred

in sentencing him to 108 months in prison in the absence of a

jury finding as to the quantity of cocaine he attempted to

possess. He points to the Supreme Court's recent decision in

Apprendi v. New Jersey, 530 U.S. 466 (2000), to support this

claim. Burgos says that "no detectable amount of cocaine was

proven at trial" because O'Neil did not actually have cocaine in

his possession when he met Burgos to complete their agreed-upon

transaction. Thus, Burgos argues, the relevant quantity of

cocaine for purposes of sentencing should be zero kilograms, not

two kilograms as the district court found. Because Burgos did

not argue this claim below, we review for plain error. See

Mojica-Baez, 229 F.3d at 307. Finding no Apprendi error, we

affirm.

Burgos does not have a successful Apprendi claim

because his sentence of 108 months falls within the 20-year

maximum sentence for the crime he committed. 21 U.S.C. § 846

provides for the same penalties for an attempt or conspiracy to

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possess cocaine as for the substantive offense. Accordingly, 21

U.S.C. § 841(b)(1)(C), which sets a maximum sentence of 20

years, is the relevant statute for the sentence Burgos received.

Burgos's sentence of 108 months does not even approach this

statutory maximum for two kilograms of cocaine, a fact that

Burgos concedes in his brief. Thus, Apprendi does not apply.

See United States v. Baltas, 236 F.3d 27, 41 (1st Cir. 2001)

("[W]e hold that no constitutional error occurs when the

district court sentences the defendant within the statutory

maximum, regardless that drug quantity was never determined by

the jury beyond a reasonable doubt.").

VII. Conclusion

For the reasons we have explained, we discern no error

in the proceedings below. We affirm Burgos's convictions and

sentence.

Affirmed.

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