United States v. Rivera-Rodriguez

United States Court of Appeals
For the First Circuit
No. 01-2134

UNITED STATES OF AMERICA,

Appellee,

v.

BASILIO RIVERA-RODRÍGUEZ,

Defendant, Appellant.
__________________
No. 01-2315

UNITED STATES OF AMERICA,

Appellee,

v.

OSCAR E. TRINIDAD-RODRÍGUEZ,

Defendant, Appellant.
___________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Boudin, Chief Judge,

Howard, Circuit Judge,

and Shadur,* Senior District Judge.

Armando Porrata-Doria with whom Nicolas Nogueras, Jr. was on

*
Of the Northern District of Illinois, sitting by designation.
brief for appellant Basilio Rivera-Rodríguez.
Wayne C. Raabe, Department of Justice, Criminal Division,
Narcotic and Dangerous Drug Section, for the United States.
Kenneth I. Seiger, by appointment of the court, for appellant
Oscar Trinidad-Rodríguez.
Wayne C. Raabe, Department of Justice, Criminal Division,
Narcotic and Dangerous Drug Section, for the United States.

January 29, 2003
 BOUDIN, Chief Judge. In this decision, we address the

appeals of Basilio Rivera Rodriguez ("Rivera") and Oscar Trinidad

Rodriguez ("Trinidad") who were convicted along with Elena Corchado

Peralta of conspiring to launder money. 18 U.S.C. §§ 1956(a)(1)(B)

and (h) (2000). The principal conspirator was Corchado's husband,

Ubaldo Rivera Colon ("Colon"), a drug dealer who was the source of

the laundered funds, and who pled guilty and testified at the joint

trial. The Rivera and Trinidad transactions have some resemblance

to each other but are quite distinct from those of Corchado, see

whose appeal is addressed in a separate decision.

At the outset, both Rivera and Trinidad challenge the

sufficiency of the evidence. Because the jury convicted, we

describe the evidence for purposes of this claim of error in the

light most favorable to the government. United States v. Gomez,

255 F.3d 31, 35 (1st Cir. 2001). Colon himself was a major drug

dealer who earned several million dollars in profits smuggling

cocaine into Puerto Rico during the period between 1987 and 1996.

Rivera and Trinidad are accused only of participating in

transactions to launder the proceeds.

As the indictment was framed, the government had to show

that each defendant:

1. conducted "a financial
transaction" involving the proceeds of some
form of unlawful activity, "knowing" that the
proceeds were thus tainted; and

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 2. knew that the transaction was
"designed in whole or in part . . . to conceal
or disguise the nature, the location, the
source, the ownership or the control of the
proceeds . . . ."

18 U.S.C. § 1956(a)(1). The defendant is not required to know what

type of felony spawned the proceeds but only that some felony did

so. Id. § 1956(c)(1). And "knowledge" can be established by

showing that a defendant was "wilfully blind" to facts patently

before him. See United States v. Frigerio-Migiano, 254 F.3d 30, 35

(1st Cir. 2001)

Trinidad. We begin with Trinidad, who engaged with

Colon in several transactions related to speedboat purchases. In

1994, Trinidad, who raced speedboats, was introduced to Colon, who

was also a speedboat enthusiast. Colon and Trinidad testified that

at this meeting Colon held himself out as a legitimate car and

cattle businessman. As a result of their meeting, Colon suggested

that they purchase an expensive speedboat, Budweiser, as a joint

venture.

In May 1994, Colon took $100,000 from a hiding place on

a cattle farm and gave it to Trinidad. Trinidad then gave two

associates $18,000 of the money to purchase two manager's checks

apiece from different banks in the amount of $9,000 each. Trinidad

himself also purchased manager's checks in approximately the same

amount from two different banks. These checks totaling $36,000,

along with other funds contributed by Colon totaling $100,000, were

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deposited in a boat merchant's bank account, and were used to buy

Budweiser.

The title of the boat eventually was placed in Trinidad's

name. Trinidad testified that it was placed in his name because

the two of them had a sports partnership. Trinidad, however, put

up no money for the purchase of the speedboat, and it was Colon

alone who later decided to sell it. However, during a tax

investigation, Trinidad falsely told local agents that he had paid

for the boat.

Trinidad also aided Colon in similar transactions. On at

least one occasion, he carried $200,000 in cash to Florida as part

of the purchase of another speedboat for Colon. (Trinidad

testified that although he knew he was carrying cash for Colon, he

did not know the amount). Colon also gave Trinidad over $60,000

in cash to pay for boat maintenance and parts. Trinidad also

assisted Colon in the latter's unsuccessful attempt to buy a South

Florida apartment for cash.

On appeal, Trinidad concedes that the evidence sufficed

to show that he knew the transactions he took part in were designed

to conceal the source of the funds involved; the size of the cash

transactions together with the use of $9,000 deposits, just under

the limit for bank reporting, see 31 C.F.R. § 103.22(b)(1) (2002),

bears this out. However, he disputes whether a reasonable jury

could find that he knew that transactions involved illegal

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proceeds. His primary argument is that he did not know that Colon

had been a drug dealer.

Under the statute, it would be enough if a jury could

conclude that some felony--drug dealing is merely the most obvious

candidate--was so obviously the source that Trinidad had to know

it. 18 U.S.C. § 1956(c)(1). Indeed, because governing law equates

willful blindness with knowledge, Frigerio-Migiano, 254 F.3d at 35,

it would suffice for the jury to conclude that Trinidad consciously

averted his eyes from the obvious explanation for the funds; he did

not have to witness drug dealing or hear a confession. And the

jury was free to draw common-sense inferences from the nature of

the transactions and efforts to conceal.

Here, Colon engaged in very large cash transactions

involving Trinidad (the initial purchase and the Florida delivery)

and more than one such venture occurred. With Trinidad's help,

Colon patently splintered the deposits to amounts just under

$10,000, a step serving only to avoid bank reporting. And Colon

placed the boat in Trinidad's name even though Trinidad had

contributed nothing.

Sometimes one of these red-flag events--cash,

concealment, false ownership--can occur even with lawfully derived

income (e.g., to foster tax evasion or the concealment of income

from a spouse). But taken together, the pattern was surely that of

an effort to launder illegally obtained proceeds, or at least a

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jury could reasonably so conclude. The case law is consistent with

this view. See United States v. Hurley, 63 F.3d 1, 12 (1st Cir.

1995), cert. denied, 517 U.S. 1105 (1996); United States v. Carr,

25 F.3d 1194, 1203 (3d Cir. 1994); cert. denied, 513 U.S. 939

(1994).

After his conviction, the court sentenced Trinidad to 63

months' imprisonment. In computing the offense level, the court

imposed a six-level upward adjustment under U.S.S.G. section 2S1.1

because it determined that Trinidad was responsible for the entire

amount of money laundered by Colon's conspiracy.1 The court also

denied a downward departure for aberrant behavior under U.S.S.G.

section 5K2.20 on the ground that Trinidad did not meet the

requisite criteria for such a departure. After challenging both of

these rulings in the lower court, Trinidad appeals them here.

We begin with the upward adjustment. The sentencing

guidelines provide that the offense level for money laundering

convictions be calculated with reference to the amount of money

laundered. U.S.S.G. § 2S1.1. In a conspiracy, the amount

attributed to a defendant includes not only that which he handled

but also the amount he could reasonably have foreseen would be

laundered through the conspiracy. See United States v. White, 116

1
The 2000 edition of the guidelines was in effect at the time
of Trinidad's sentencing, and thus they control our decision here.
See United States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir.
1990) (guidelines in effect at time of sentencing control unless Ex
Post Facto considerations prohibit their use).

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F.3d 948, 951 (1st Cir. 1997); U.S.S.G. § 1B1.3(a)(1) (2000). At

the sentencing hearing, the trial court determined that Trinidad

could reasonably have foreseen the entire amount of funds laundered

by the conspiracy, U.S.S.G. § 1B1.3, which was in excess of $2

million, warranting a six-level increase in Trinidad's base offense

level. See U.S.S.G. § 2S1.1(b)(2)(G).

At the sentencing hearing and on appeal, Trinidad has

argued that he could have reasonably foreseen only the amount of

money implicated in the transactions in which he actually took

part, about $330,000, which would merit only a two-level increase.

U.S.S.G. § 2S1.1(b)(2)(C). The court's determination of the amount

of money attributable to Trinidad is a factual finding that we

review for clear error. United States v. Alicea, 205 F.3d 480, 485

(1st Cir.), cert. denied, 531 U.S. 909 (2000). The government has

the burden of showing by a preponderance of the evidence that

Trinidad could have reasonably foreseen the funds attributed to

him. Id.

At the hearing, the court ruled that the full amount was

foreseeable:

[I]t would seem to me that it would not
be unreasonable for Mr. Trinidad to see all
the amounts of money being floated around to
inquire a little deeper into [Colon's]
activities and it would seem to me that from
the testimony of [Colon], his car dealership
and his farm were just shams, fronts to be
able to participate in all the laundering
activities that he did. So, I think that he

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 [Trinidad] is responsible for the amount of
money involved in the whole conspiracy . . . .

Admittedly, Trinidad was convicted of participating in a

single money laundering conspiracy with Colon, Corchado, Rivera and

others. But this was obviously one of those so-called single

conspiracies in which Colon remained the constant and most other

participants came and went and engaged in specific transactions

without any agreement on an overall amount of money to be

laundered. The jargon calls this a hub and spoke conspiracy (Colon

being the hub and the others being spokes) but with the added

complications of discontinuous transactions and changes in

membership over time.

The money laundering guideline gives no clue as to how to

decide how much of the conspiracy's laundering to attribute to any

individual member. This task is left to the relevant conduct

guideline which, in a nutshell, makes this the sum of two figures:

(1) how much was involved in transactions in which Trinidad

participated (regardless of whether he knew the exact amount), and

(2) the amounts he reasonably foresaw would be handled in other

transactions undertaken as part of the same "jointly undertaken

criminal activity." U.S.S.G. § 1B1.3(a)(1). Our concern here is

with the latter figure.

There is no direct evidence cited to us--in the pre-

sentence report, in the district judge's findings, or even in the

government's brief--that Trinidad was aware of any money laundering

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transactions beyond those in which he participated. Indeed, the

only useful information on this score from the government was

furnished at oral argument where it reported that Trinidad had

introduced Rivera to Colon and also given Rivera some helpful

deposition testimony in a civil case.2 But it would be quite a

leap to conclude even by a preponderance of the evidence that

Trinidad therefore knew anything about specific transactions that

Rivera had handled, let alone those handled by others.

From the district judge's remarks we think that he

probably had in mind a different theory, namely, that Trinidad must

have conceived from the scale of Colon's expenditures in the

Trinidad-related transactions, and from whatever Trinidad could see

of Colon's style of life, that Colon's drug proceeds and therefore

his laundering operations must have extended well beyond the few

transactions in which Trinidad was employed. In effect, the

district judge was saying, we think, that Trinidad should not have

been surprised to find that Colon was laundering at least $2

million. This may well be a defensible judgement.

However, given the lack of evidence, we are not confident

from the district judge's remarks that he was distinguishing

2
The trial transcript indicates only that Trinidad had worked
as a boat mechanic for Rivera and that he introduced Colon to
Rivera, possibly at a boat race in which Rivera and Colon were both
involved. The false statement referred to is an affidavit offered
by Trinidad in support of Rivera in a civil case in which the
latter was a plaintiff.

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between Colon's operations as a whole and the foreseeable "jointly

undertaken" money laundering--which, alone, is Trinidad's

responsibility. U.S.S.G. § 1B1.3(a)(a). If Trinidad knew that

others were engaged in the same time frame in performing similar

transactions for Colon, that would go very far to satisfy this

concern. Perhaps there is some such evidence or other evidence

that would suggest that Trinidad had some notion of the full scope

of his own conspiracy. But the government has not pointed us to

this evidence and we will not simply assume that it exists.

Admittedly, Trinidad is not attacking here the jury's

implicit finding of a single conspiracy--a concept so vague and

relaxed under governing case law that attacking it would be

difficult. See United States v. Martinez-Medina, 279 F.3d 105,

113-14 (1st Cir.), cert. denied, 122 S. Ct. 2608 (2002). But

foreseeability does not delimit the scope of a conspiracy, which

may extend to activities quite unknown to a low-level participant--

and thereby result in joinder, admission of hearsay, and other

conventional consequences. See id. at 113 & n.3. Under conspiracy

law, it is only one's substantive liability for the crimes of other

conspirators that depends on a foreseeability test, see Pinkerton

v. United States, 328 U.S. 640, 645-48 (1946). No Pinkerton

instruction or amount findings were involved in this case so we

have no idea what amounts from other transactions the jury thought

was foreseeable to Trinidad.

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 Under the guidelines, Trinidad is responsible for the

entire $2 million only to the extent that he could foresee that

Colon was using this single conspiracy or joint undertaking to

launder all of his drug money (why this would be so or even likely

is unclear) or, perhaps more plausibly, that the specific

conspiracy or joint undertaking in which he (Trinidad) was involved

was large enough to encompass $2 million. See U.S.S.G. § 1B1.3.

Evidence in the present record, or otherwise, may bear on this

question (possibilities are suggested above); but the burden of

proof is on the government and we have not yet been pointed to the

necessary evidence.

Trinidad also challenges the sentencing court's ruling

that he was not entitled to a downward departure for aberrant

behavior. A denial of a downward departure is generally non-

reviewable. See United States v. Pierro, 32 F.3d 611, 619 (1st

Cir. 1994), cert. denied, 513 U.S. 1119 (1995). The exception to

this rule are cases in which the lower court's failure to depart

stemmed from a misapprehension of its authority under the

guidelines. Id. Here, Trinidad argues that the district court did

misunderstand its authority under the guideline in question.

The pertinent guideline provides: "A sentence below the

applicable guideline range may be warranted in an extraordinary

case if the defendant's criminal conduct constituted aberrant

behavior. . . ." U.S.S.G. § 5K2.20. There are certain categorical

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exclusions (e.g., for a defendant with a prior conviction) but

apparently they are not applicable to Trinidad. The commentary

adds this:

"Aberrant behavior" means a single criminal
occurrence or single criminal transaction that
(A) was committed without significant
planning; (B) was of limited duration; and (C)
represents a marked deviation by the defendant
from an otherwise law-abiding life.

Id., comment. (n.1). It also lists some non-exclusive factors that

may bear on the discretionary choice.3

In denying Trinidad's request for a downward departure,

the trial court said that it was not authorized to grant a downward

departure on the present facts until there is a "clear indiction"

that a "combination" of elements was sufficient to justify a

departure. The district court did not spell out what it meant; but

a controversy under this rubric ("combination of factors") pre-

existed this guideline, was the subject of case law, and is

addressed in the guideline's history. Almost certainly this is

the context for the district court's reference.

Until the November 2000 edition of the guidelines, no

guideline specifically addressed aberrant behavior. Instead, case

law developed, pearl-like, around a single longstanding sentence in

3
"In determining whether the court should depart on the basis
of aberrant behavior, the court may consider the defendant's (A)
mental and emotional conditions; (B) employment record; (C) record
of prior good works; (D) motivation for committing the offense; and
(E) efforts to mitigate the effects of the offense." Id. comment
(n.2).

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an introductory comment to the effect that departures were not

precluded for "single acts of aberrant behavior." See U.S.S.G. ch.

1 pt. (A)(4)(d) (2000). Case law, referred to in the amendment

that added section 5K2.20 to the 2000 edition of the guidelines,

had produced a splintering of views among the circuits as to how

strictly the phrase "single act" should be read; some courts looked

for a single and spontaneous occurrence; others, including this

circuit, rejected any very narrow requirement, saying that

aberrancy should be based upon a totality of the circumstances.

See U.S.S.G. App. C 603; United States v. Grandmaison, 77 F.3d 555,

563 (1st Cir. 1996).

In the 2000 amendment adding section 5k2.20, the

Commission declared that "the amendment addresses the circuit

conflict but does not adopt in toto either the majority or minority

circuit view on this issue." U.S.S.G. App. C 603. Instead, taking

together the new guideline itself, its commentary, and the

amendment's lengthy "reason for amendment," the Commission adopted

what is effectively a multi-part scheme: first, the defendant must

meet all of the express qualifications in application note 1 (the

indented text quoted above) and not be excluded by any of the

express exclusions in the guideline itself (which are here

irrelevant); and second, once aberrant behavior is found to exist,

the court may weigh a series of considerations including those

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specifically identified (non-exclusively) in application note 2

(quoted above in the footnote).

Further, the "reasons for amendment" make clear that the

Commission intended "to relax slightly" the very strict view taken

by some circuits as to the requirement of a single act but to

reject the "totality of circumstances" approach adopted by other

circuits as "overly broad and vague." Id. The first purpose was

served by adopting in place of "simple act" the phrases "single

criminal occurrence and "single criminal transaction," with the

caution that they be limited to offenses with all three

characteristics set forth in application note 1. Id. The second

purpose was served by the structured requirement of application

note 1 (and by the exclusions in the guideline itself).

Presumably, the Commission appreciated that the third

required characteristic--"marked deviation . . . from an otherwise

law-abiding life"--is itself quite open-ended. But the first two

are not open-ended: they require a lack of significant planning and

limited duration. It is impossible to see how Trinidad's conduct,

which embraced a reasonably elaborate scheme of multiple deposits

and transfers in the first transaction (Budweiser) followed later

by two more transactions (the second boat and the unsuccessful

apartment purchase) could be called a "single" criminal occurrence

or transaction done without significant planning and of limited

duration. Even if we assume arguendo that the Budweiser scheme

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alone might barely qualify, Trinidad's continued engagement was

hardly of limited duration.

Thus, whatever the district court meant by its remark,

the downward departure was not available to Trinidad. In all

likelihood, the court meant that until the current guideline is

changed, the totality of the circumstances test--in the sense

intended by our pre-amendment decision in Grandmaison, is not

available. In this, the district court is certainly right.

Grandmaison and cases like it do survive the amendment but only in

a limited and different respect, namely, in the slight relaxation

of the "single act" requirement--a relaxation itself not sufficient

to embrace Trinidad's multiple transactions. Of course, depending

on the government's foreseeability evidence, he may still end up

with a lighter sentence.

Rivera. Basilio Rivera-Rodriguez operated a business

called BVF Construction. The government's evidence focused on a set

of transactions made by Colon and Rivera through that business. In

the first of these, which took place in June 1995, Colon gave

Rivera upwards of $105,000 (of which $89,000 was in cash) to

deposit in a BVF bank account. Rivera then purchased a manager's

check in the amount of $105,000, which was then given to a boat

company--with other compensation--as payment for a 46-foot racing

boat. Colon then took possession of the boat. Later, in November,

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Rivera wrote checks from the BVF account to Colon for $2,900 in

unspecified boat expenses.

In the second set of transactions, Colon in August 1995

wrote a check to BVF Construction for $130,000. On the same day,

Colon's father wrote a check for $65,000 to BVF, drawing upon his

son's drug money. This money was deposited in a BVF account, where

it stayed, untouched, until November 1995, when Rivera wrote checks

to Colon for nearly the full amount deposited--$192,900.

The government argues that Rivera's BVF corporation

effectively served as a clearing house for Colon's drug funds.

Thus, when Colon decided to purchase the boat, he did it with money

channeled through BVF so as to muddy the trail of the purchase.

Similarly, by depositing $195,000 in the BVF account and

withdrawing it later, the government argues that Colon hoped to

give that money a patina of legitimacy.

At trial, inconsistent stories were told as to the

purpose of the transactions. Colon testified that he had given

funds to BVF to invest in the construction of ATM bank branches,

and that he then withdrew some of the funds when he needed to make

other purchases. Colon admitted that no bank branches were ever

built. Evidence was also given that Rivera--who did not testify at

trial--had said in a deposition in a civil case that the payments

to Colon were for labor that Colon had performed. But again, Colon

testified that he had never performed any labor for Rivera or BVF.

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 Rivera objects on appeal that there was no evidence that

he conspired or that he knew that the transactions were intended to

disguise the source of funds or that he knew that the funds were

the proceeds of drug dealing or any other unlawful activity. On

the contrary, the pattern was a classic example of money

laundering. See United States v. Martinez-Medina, 279 F.3d 105,

116 (1st Cir. 2002); B. Williams & F. Whitney, Federal Money

Laundering: Crimes and Forfeitures § 5.1.6.11, at 167 (1999).

In one case, a huge cash payment into a business, for no

demonstrated legitimate reason, was followed by the use of the

funds to purchase property for the original depositor. In the

other case, an outsider's money was run into the business and then

backed out to the depositor, again with no apparent reason except

to provide a seemingly legitimate source.

From these facts, a reasonable jury could conclude that

the obvious, and only plausible, explanation was that Colon was

trying to disguise the origin of his proceeds by making it appear

that the money had come to him from a legitimate business; that

the obvious explanation for this conduct was that the funds were

illegally derived, most likely from drug dealing; and that these

facts were necessarily apparent to Rivera. As for "conspiracy," an

agreement between Colon and Rivera can plainly be inferred from the

fact that the transactions occurred at all, even though the

conversations and quid pro quo are unknown to us.

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 Of course, payments by anyone--including a drug dealer--

to a business and payments back out may be legitimate in context:

Colon could have sent a check to a mutual fund and received

dividends in exchange. It is the details--the cash, the near

equivalence of dollars in and out, and above all the lack of

legitimate motive--that distinguish this case. E.g., United States

v. Carr, 25 F.3d 1194, 1203 (3d Cir. 1994), cert. denied, 513 U.S.

939 (1994). It is not logically impossible for there to have been

some legitimate explanation for the transactions; but one who is

caught with a smoking gun and a dead victim can hardly complain if,

absent some explanation, the jury draws the natural inferences from

the facts.

In addition to challenging the sufficiency of the

evidence, Rivera makes several other claims. First, he contends

that the trial court failed to give a limiting instruction to the

jury with respect to the testimony of a government witness, Nelson

Biaggi. Biaggi was the attorney for the bank where BVF

Construction kept its accounts. Rivera had previously sued the

bank, and Biaggi was present at a deposition in that case where

Rivera made statements relevant to this prosecution. On appeal,

Rivera claims that the judge should have instructed the jury as to

Biaggi's pecuniary interest in the outcome of Rivera's criminal

case.

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 Although Rivera (unsuccessfully) objected to Biaggi's

testimony when he testified, his counsel never asked the judge to

charge the jury regarding the testimony. As such, we review the

failure to give the instruction only for plain error. United

States v. Vega-Figueroa, 234 F.3d 744, 757 (1st Cir. 2000). No

error, let alone a plain one, occurred here. Rivera presents no

evidence here that Biaggi would have profited from Rivera's

conviction, and the trial judge stated at the sentencing hearing

that he found that no such link was present. Rivera's citation to

United States v. Frank, 494 F.2d 145 (2d Cir.), cert. denied 419

U.S. 828 (1974), is inapposite: there, the witness in a criminal

case was the plaintiff in a related pending civil case against the

defendant and so stood to gain from his testimony. Id. at 158-59.

Rivera also challenges--in a three sentence argument--

the decision of the trial judge to proceed with the sentencing

hearing despite the fact that only Rivera's sentencing attorney,

and not his trial attorney, was present. Although represented,

Rivera apparently did not object to this decision below and thus

the test is again plain error. In all events, Rivera neither

explains how he was prejudiced nor points us to case law supporting

his position. This cursory treatment of the issue amounts to a

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forfeit. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990),

cert. denied, 474 U.S. 1082 (1990).4

Finally, Rivera argues that the district court erred by

declining to give him a downward departure for aberrant behavior

and a downward adjustment for being a minor participant under

U.S.S.G. sections 5K2.20 and 3b1.2, respectively, and by applying

a five-level enhancement based on the amount of laundered funds

pursuant to § 2S1.1(b). None of these claims was raised at the

sentencing hearing, and so we review only for plain error.

The district court's refusal to allow a downward

departure for aberrant behavior is quickly dealt with: we may

review such a decision only if "the district court acted in the

mistaken belief that it lacked the ability to depart." See United

States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994). The transcript

of the sentencing hearing shows that the judge explicitly stated

that he understood that he had the authority to depart but

concluded that the departure was not warranted. As for the refusal

to grant a downward adjustment for minor participant status, the

district court found that Rivera was one of "the prime sources" of

the money laundering and Rivera fails to show why this was error,

let alone plain error.

4
His counsel at sentencing did complain that he had not seen
a copy of the pre-sentence report but apparently the court pointed
out that it had been sent to trial counsel and counsel at
sentencing made no request for an adjournment.

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 As for upward adjustments in offense level, there was a

three-level adjustment because Rivera knew or believed that drug

proceeds were involved, U.S.S.G. § 2S1.1(b)(1), and a further two-

level increase because the amount exceeded $200,000. Id. § 2S1.1

(b)(2)(C). Plain error aside, we think (for reasons indicated

above) that Rivera did know or believe that drug funds were

involved. As to amount, Rivera--unlike Trinidad--was held liable

only for the amount that passed through the BVF Construction

accounts.

Trindad's conviction is affirmed but his sentence is

vacated and the matter remanded for resentencing consistent with

this opinion. Rivera's conviction and sentence are both affirmed.

It is so ordered.

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