United States v. Martha Gonzales

___________

No. 95-2940
___________

United States of America, *
*
Appellee, *
*
v. *
*
Martha Elena Gonzales, also *
known as Marta Gonzales, *
*
Appellant. *

___________
Appeals from the United States
No. 95-3261 District Court for the
___________ District of Minnesota.

United States of America, *
*
Appellee, *
*
v. *
*
Jose Ramiro Valenzuela-Obeso, *
also known as Tony, also known *
as Ramiro Valenzuela, *
*
Appellant. *

___________

No. 95-3263
___________

United States of America, *
*
Appellee, *
*
v. *
*
Juan Manuel Valenzuela-Obeso, *
also known as Kiki, also known *
as Miti, *
*
Appellant. *

___________

No. 95-3370
___________

United States of America, *
*
Appellee, *
*
v. *
*
Patricia Camerina Lopez, *
*
Appellant. *

__________

Submitted: May 17, 1996

Filed: July 26, 1996
__________

Before MAGILL, ROSS, and MURPHY, Circuit Judges.
___________

MAGILL, Circuit Judge.

Defendants in this case were convicted of various counts of
conspiracy to distribute illegal drugs, see 21 U.S.C. § 846; possession,
and aiding and abetting possession, of illegal drugs with intent to
distribute, see 21 U.S.C. § 841(a)(1); and money laundering and conspiracy
to launder money, see 18 U.S.C. §§ 1956(a)(1)(A)(i), (a)(1)(B)(i). On
appeal, they contend that the government violated Brady v. Maryland, 373
U.S. 83 (1963), and the Jencks Act, 18 U.S.C. § 3500, by failing to turn
over to the defense certain evidence. The defendants further challenge a
host

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of evidentiary and other trial rulings made by the district court.1 We
affirm.

I. BACKGROUND

For several years, officers of the Minnesota Bureau of Criminal
Apprehension (BCA) suspected that Juan and Jose Valenzuela-Obeso (Juan and
Jose, respectively) supervised a large drug importation and distribution
organization in Minnesota. During the long investigation, the police
arrested a number of individuals who were involved in the distribution of
heroin for the organization. Several of those arrested cooperated with the
police by providing information that furthered the investigation.

The investigation culminated on March 2, 1994, when the police
executed a number of search warrants. During these searches, officers
seized one pound of 95% pure methamphetamine, 58 pounds of marijuana, 27.8
grams of cocaine, notebooks containing writings that were consistent with
drug notes, and $5000 cash. The officers also discovered several Western
Union cash register receipts, leading the officers to suspect Juan and Jose
and their common-law wives, Patricia Lopez and Martha Gonzales, of money
laundering.

The police also searched a Ford Bronco located in the driveway of one
of the residences. Prior to the search, the officers had a narcotics dog
sniff the vehicle, and the dog showed interest in the rear door area.
Police removed the rear door panel, but found only tools, and not drugs,
within the panel.

Based on the evidence uncovered during the long investigation, the
defendants were charged with several drug trafficking and money laundering
violations. Jose and Juan were charged with conspiracy

1
The Honorable James M. Rosenbaum, United States District
Judge for the District of Minnesota.

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to distribute and possession with intent to distribute heroin, cocaine,
marijuana, and methamphetamine, from January 1, 1990 to March 2, 1994
(Count I). Jose was further indicted on charges of possession with intent
to distribute 365 grams of methamphetamine on March 2, 1994 (Count II), and
use of a juvenile in connection with a drug trafficking offense (Count
VII). Juan was further indicted on charges of aiding and abetting
possession with intent to distribute 58.6 pounds of marijuana (Count III)
and 27.8 grams of cocaine on March 2, 1994 (Count IV), and use of a
juvenile in connection with a drug trafficking offense (Count VI).
Finally, Juan, Lopez, and Gonzales were indicted on charges of conspiracy
to launder money (Count VIII), and Jose was indicted on charges of money
laundering (Count VIII).

At trial, the government put on overwhelming evidence of the
defendants' guilt. First, the government introduced at trial the physical
evidence seized during the March 2, 1994 searches. Further, four mid-level
heroin dealers testified that they bought their heroin from Jose and Juan.
Each described in detail how the transactions took place. Two other
witnesses testified that they were "runners" in the Obeso organization,
delivering heroin for Jose and Juan. One of the runners, Rolando Penalver-
Tamarit, participated with police in a controlled delivery of cash back to
Jose. Finally, Eldon Fontana, a twenty-four-year veteran with the Hennepin
County Sheriff's Department, testified that the notebooks seized contained
notations that, in several important respects, were fully consistent with
drug notes; i.e., those notations made by drug dealers while tallying the
amount of drugs bought and sold and money taken in.

The government also introduced considerable evidence demonstrating
that the defendants had committed money laundering violations. During
trial, a number of Western Union money transfer applications (MTAs) were
introduced, showing that between February 1991 and March 1994,
approximately $497,484 was wired via Western

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Union. The money transfers were sent in various names, including Martha
Gonzales, Patricia Lopez, Juan Valenzuela, and Jose Valenzuela. The money
was primarily sent to California, although several transfers went to Mexico
and Arizona.

The government provided testimony linking the MTAs to the defendants.
Cynthia Pose, an employee at a drug store from where several of the money
transfers originated, identified Gonzales as someone who had sent money via
Western Union. She further testified that Gonzales had provided different
names and addresses when she sent money. Further, Debra Springer, a
handwriting expert who analyzed the writing on the MTAs, testified as to
how many documents were produced by each defendant. As to Lopez, she noted
that four documents were conclusively produced by her; that as to nineteen
others, there were some indications that Lopez had produced them; and that
for thirteen others, Lopez at least filled out the information section of
the transfer form. She further testified that Gonzales definitely produced
three documents, that it was highly probable that she produced twelve
others, and that it was probable that she produced nineteen others.
Springer determined conclusively that at least one document was produced
by Jose.

Special Agent Paul Wheeler of the Internal Revenue Service, a money
laundering expert, testified that the transactions at issue fit several
money laundering patterns and that several factors, such as the amount of
money sent per transaction, the use of certain false information on the
send forms, and the use of several different Western Union locations, were
all consistent with money laundering. Wheeler further testified that he
reviewed the tax returns of the defendants and concluded that the sums
transferred far exceeded the lawful incomes of the defendants.

During the trial, the government failed to turn over, or delayed in
turning over, certain evidence to the defense. The

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first such piece of evidence was a prior statement made by one of the
prosecution's witnesses, Greg Bauer. Bauer had been an informant with the
police beginning in 1991. During trial, defense counsel requested that any
prior statements made by Bauer concerning the defendants be turned over to
the defense pursuant to the Jencks Act. The government assured counsel
that Bauer had made no prior statements implicating the defendants.
However, before Bauer was cross-examined, the government learned that in
1992, Bauer had in fact made oral statements indicating that the defendants
had been engaged in illegal activity as far back as 1990. The government
did not turn this evidence over to the defense counsel, who subsequently
tried to impeach Bauer concerning his apparent recent fabrication regarding
the defendants. When Bauer told counsel that he had in fact previously
implicated the defendants, thus bolstering his testimony, counsel for Juan
and counsel for Lopez moved for a mistrial. The court denied this motion
when the defendants refused to waive their double jeopardy rights.

The government also delayed turning over reports that case agent Mike
Zasada had compiled regarding the informants in the case. Many of these
reports detailed the legal problems of several of the informants. The
material was not turned over to the defense until April 10, 1995, after
several of the informants had already testified.

The third piece of evidence that defendants claim should have been
turned over concerned the search of the Bronco. At the time of the search,
the officers believed that the rear door panel could have been an after-
market change in the vehicle, added to facilitate drug smuggling. Because
the officers were unable to substantiate this belief, however, the
government presented no evidence concerning this theory. The evidence
presented to the jury related only to the fact that the rear panel
contained a space large enough to transport drugs. During a break in
trial, the

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government did learn that the rear door panel was not an after-market
change. The government did not relay this knowledge to the defense,
although defense counsel gained this information from an independent source
during trial. Counsel moved for a mistrial, which was denied.

After hearing the evidence, the jury returned a verdict of guilty on
all counts except Count VII, which charged Jose with the use of a juvenile
in connection with a drug trafficking crime. The court further entered a
judgment of acquittal on Count VI, which charged Juan with the use of a
juvenile in connection with a drug trafficking crime. As a result of the
convictions, Juan received a sentence of 292 months imprisonment, 10 years
of supervised release, and a $200 special assessment; Jose received a
sentence of 292 months imprisonment, 5 years of supervised release, and a
$150 special assessment; and Lopez and Gonzales each received a sentence
of 30 months imprisonment, 3 years of supervised release, and a $50 special
assessment.

Defendants raise several issues on appeal. Juan, Jose, and Lopez
contend that the district court erred in not granting a mistrial based on
the government's failure to turn over certain evidence. Juan further
contends that the district court erred in calculating the amount of heroin
attributable to him for sentencing and that the court erred in admitting
the testimony of the informants because the informants were not made
available to defense counsel prior to trial. Lopez and Gonzales contend
that there was insufficient evidence to convict them of conspiracy to
launder money; that the court erred in admitting the testimony of the
handwriting expert; that the Western Union documents should have been
inadmissible at trial as hearsay; and that the court erred in instructing
the jury on willful blindness and in failing to charge the jury according
to their theory of defense.

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 II. BRADY AND JENCKS ACT VIOLATIONS

Juan, Jose, and Lopez contend that the government violated Brady and
the Jencks Act by failing to turn over certain evidence covered by these
provisions. Because of this violation, they contend, the district court
should have granted their motion for a mistrial or a new trial. We
disagree.

A. Brady

Under Brady, supra, the government is required to disclose any
evidence that is both "favorable to an accused" and is "material either to
guilt or to punishment." Brady, 373 U.S. at 87. In most circumstances,
evidence favorable to the accused is material only "'if there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.'" Kyles
v. Whitley, 115 S. Ct. 1555, 1565 (1995) (quoting United States v. Bagley,
473 U.S. 667, 682 (1985) (opinion of Blackmun, J.)).2 The defendant must
demonstrate that he was denied a fair trial, by "showing that the favorable
evidence could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict." Id. at 1566.

Brady applies whether or not the accused has specifically requested
the covered information, see Kyles, 115 S. Ct. at 1565 (citing Bagley, 473
U.S. at 682), and it applies to both exculpatory evidence and impeachment
evidence, see Bagley, 473 U.S. at 676. In analyzing a Brady claim, we do
not consider the

2
Where the prosecution knowingly uses perjured testimony, a
standard of materiality more favorable to the accused applies.
In such a situation, the conviction must be set aside if "there
is any reasonable likelihood" that the false testimony affected
the verdict. See Kyles, 115 S. Ct. at 1565 n.7 (quoting United
States v. Agurs, 427 U.S. 97, 103 (1976)). In this case, there
is no assertion that the prosecution knowingly used perjured
testimony, and so the "reasonable probability" standard applies.

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suppressed evidence item-by-item, but rather we must determine whether the
suppressed evidence, viewed collectively, undermines confidence in the
verdict. See Kyles, 115 S. Ct. at 1567.

There are several limitations to Brady. First, Brady does not
require the government to disclose inculpatory evidence. See United States
v. Roach, 28 F.3d 729, 734 (8th Cir. 1994) (requested information must be
exculpatory); United States v. Carper, 942 F.2d 1298, 1300 n.1 (8th Cir.),
cert. denied, 502 U.S. 993 (1991). Second, in this Circuit, the rule of
Brady is limited only to the discovery, after trial, of information which
had been known to the prosecution but unknown to the defense. See United
States v. Manthei, 979 F.2d 124, 127 (8th Cir. 1992) (quoting Nassar v.
Sissel, 792 F.2d 119, 121 (8th Cir. 1986)). Where the prosecution delays
disclosure of evidence, but the evidence is nonetheless disclosed during
trial, Brady is not violated. See United States v. Boykin, 986 F.2d 270,
276 n.6 (8th Cir.) (quoting Nassar, 792 F.2d at 121), cert. denied, 114 S.
Ct. 241 (1993). Finally, the government need not disclose evidence
available to the defense from other sources or evidence already possessed
by the defendants. See United States v. Jones, 34 F.3d 596, 600 (8th Cir.
1994), cert. denied, 115 S. Ct. 1701 (1995).

Juan, Jose, and Lopez first argue that the government violated Brady
by not disclosing that Bauer had previously implicated them in the heroin
distribution scheme. Because they did not know this, defendants contend,
they walked into a trap on cross-examination as they tried to impeach
Bauer's current testimony as a recent fabrication.

This argument misapplies Brady's two-part test. Under Brady, before
we look at the effect at trial of the nondisclosure, we determine the
nature of the evidence itself: is the evidence inculpatory or exculpatory?
If the evidence is inculpatory, then Brady is not violated, regardless of
the effect at trial of the

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nondisclosure. See Roach, 28 F.3d at 734. In this case, the Bauer
statement is clearly inculpatory. The statement does not demonstrate that
appellants are innocent of the crime for which they have been accused.
Rather, the statement is at the other end of the spectrum: it shows that
appellants have been involved in drug trafficking as far back as 1990,
corroborating the testimony of the other witnesses in this case. Thus,
3
nondisclosure of this evidence does not violate Brady.

Juan, Jose, and Lopez also contend that the delayed disclosure of
both the Zasada files and the results of the inquiry regarding the Bronco
violates Brady, thereby justifying a mistrial. This argument is foreclosed
by Boykin and Manthei, which hold that where disclosure of exculpatory
evidence is delayed, but the evidence is nonetheless disclosed during
trial, Brady is not violated. See Boykin, 986 F.2d at 276 n.6; Manthei,
979 F.2d at 127.

B. Jencks Act

The Jencks Act requires the government to produce any statements made
by a government witness that are in the government's possession and relate
to the subject matter of the witness's testimony after the witness has
testified on direct appeal. See 18 U.S.C. § 3500(b); Fed. R. Crim. P.
26.2. A witness's statements include all statements written or signed, or

3
Nevertheless, appellants argue that the nondisclosure had a
serious effect at trial: if Bauer's earlier statements had been
known, then counsel for appellants would have avoided this issue
on cross-examination. However, Brady was not intended as a
constitutional cure-all for errors in criminal trials. While
Brady helps ensure that defendants receive a fair trial by
requiring prosecutors to disclose material exculpatory evidence,
it does not purport to ensure a fair trial in toto. While
situations similar to the one presented here may implicate other
constitutional provisions, such as the Fifth Amendment's due
process guarantees generally, and perhaps the Sixth Amendment's
right to confrontation, Brady is not implicated.

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otherwise adopted or approved by the witness; verbatim transcriptions of
the witness's oral statements; and the witness's grand jury testimony. See
18 U.S.C. § 3500(e); Fed. R. Crim. P. 26.2.

Juan, Jose, and Lopez contend that the government's failure to
disclose Bauer's prior oral declarations violated the Jencks Act. We
disagree. When Bauer earlier implicated the defendants, he did so orally.
He did not "adopt or approve" the declaration, nor was the declaration
transcribed. Because oral, untranscribed, nonadopted assertions are not
"statements" within the meaning of the Jencks Act, see 18 U.S.C. § 3500(e);
United States v. Taylor, 599 F.2d 832, 839 n.2 (8th Cir. 1979), the
nondisclosure of the Bauer declaration did not violate the Jencks Act.4

Jose further contends that the delayed disclosure of the Zasada file
violates the Jencks Act. Jose's brief fails, however, to go beyond this
cursory and summary assertion. There is no specific assignment of error;
indeed, there is no discussion whatsoever of why the delayed disclosure
violated the Jencks Act. Rule 28(a)(6) of the Federal Rules of Appellate
Procedure requires an appellant's brief to "contain the contentions of the
appellant on the issues presented, and the reasons therefor, with citations
to the authorities, statutes, and parts of the record relied on." Fed. R.
App. P. 28(a)(6). Failure to abide by this provision on an

4
Although not clearly enunciated, appellants appear to
contend that, because the district court ordered the government
to turn over all statements made by Bauer, both oral and written,
all such statements are therefore converted into Jencks
statements. We disagree. The Jencks Act is quite specific as to
its scope of coverage. If a document falls outside that scope,
Jencks is not applicable, even where the district court has
nonetheless ordered disclosure. In such a situation, defendants
will need to rely on other protections, such as those afforded to
defendants who can demonstrate that they were prejudiced by the
government's failure to comply with a court discovery order.
However, defendants in this case did not avail themselves of such
remedies.

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issue is deemed to be an abandonment of that issue. See Jasperson v.
Purolator Courier Corp., 765 F.2d 736, 740 (8th Cir. 1985); see also
Primary Care Inv., Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208, 1212
(8th Cir. 1993). Therefore, we do not consider this argument.

III. MONEY LAUNDERING CONVICTIONS

A. Western Union Documents

Gonzales and Lopez contend that the MTAs were hearsay and should not
have been admitted into evidence. The district court's decision to admit
evidence is reviewed only for abuse of discretion, and "absent a clear and
prejudicial abuse of discretion, the district court's ruling will be
affirmed." United States v. Johnson, 28 F.3d 1487, 1498 (8th Cir. 1994),
cert. denied, 115 S. Ct. 768 (1995).

Under Rule 801(d)(2), certain statements are considered to be
admissions by the party-opponent and thus do not constitute hearsay. See
Fed. R. Evid. 801(d)(2). Such statements include admissions made by the
party herself and those made by a coconspirator of a party during the
course and in furtherance of the conspiracy. See id.

The MTAs can be broken down into two categories: (1) the MTAs for
which the government presented handwriting evidence5 identifying the
sender, and (2) all the other MTAs. The first category of MTAs presents
a straightforward admission by the party-opponent. Because the government
established an adequate foundation, see Fed. R. Evid. 901(b)(1)-(3), upon
which the jury

5
Gonzales and Lopez challenge the admission of the
handwriting evidence. Having reviewed their claims, we conclude
that the district court did not abuse its discretion in admitting
this evidence. See Johnson, 28 F.3d at 1487 (standard of
review).

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could find that the documents were sent by one of the named defendants in
this case, see id., the portion of the MTAs filled out by the defendants
constitutes an admission by a party-opponent, and is not hearsay.

Although the government could not positively identify the senders of
the MTAs in the second category, we conclude that these MTAs constitute
admissions by party-opponents, because they were statements made by
coconspirators.6 To take advantage of this provision, the government must
show, by a preponderance of the evidence, that a conspiracy existed, that
the defendants and the declarant were members of the conspiracy, and that
the declaration was made during the course and in furtherance of the
conspiracy. See United States v. Helmel, 769 F.2d 1306, 1312 (8th Cir.
7
1985). The government submitted voluminous evidence tying all of these
documents, even those sent by unidentified declarants, to the conspiracy,
see Mem. in Opp'n to Defs.' Motion to Exclude Western Union Money Transfer
"Send" Documents, reprinted in Appellee's Addendum, Ex. B, and thus the
district court did not abuse its

6
Although identifiability of the declarant would be helpful,
it is not required. Where "the statement itself and the
surrounding circumstances provide sufficient evidence of
reliability, unidentifiability will not be particularly
important." United States v. Cruz, 910 F.2d 1072, 1081 n.10 (3d
Cir. 1990), cert. denied, 498 U.S. 1039 (1991). The burden is on
the government to prove that "the unknown declarant was more
likely than not a coconspirator." United States v. Helmel, 769
F.2d 1306, 1313 (8th Cir. 1985).
7
Because the district court did not make an explicit finding
that a conspiracy existed, the clearly erroneous standard of
review is not applicable and the appellate court must decide
whether the record supports a finding of conspiracy. See Cruz,
910 F.2d at 1081 n.11. We note that the district court's failure
to make an explicit finding on this issue is not reversible
error, because "the necessary threshold finding [that a
conspiracy existed] is implicit in the court's decision to send
the case to the jury." Id. Therefore, if the record contains
sufficient evidence of a conspiracy (i.e., a preponderance), an
appellate court can infer that the district court found that a
conspiracy existed. See id.

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discretion in admitting these documents.

B. Jury Instructions

Lopez and Gonzales further contend that the district court erred when
it charged the jury on willful blindness and by failing to charge the jury
on the defendants' theory of defense.8 To support both claims, the
defendants assert that although they knew that they were sending money via
Western Union, they did not know that the Western Union transactions were
conducted to promote criminal activity.

A willful blindness instruction "is appropriate when the defendant
asserts a lack of guilty knowledge, but the evidence supports an inference
of deliberate ignorance." United States v. Duncan, 29 F.3d 448, 450 (8th
Cir. 1994) (internal quotations omitted). In reviewing the district
court's decision to give a willful blindness instruction, "we must review
the evidence and any reasonable inference from that evidence in the light
most favorable to the government." Id. (internal quotations omitted). The
district court's decision to give a willful blindness instruction is
reviewed only for clear error. See id.

In this case, the government offered sufficient evidence to warrant
a willful blindness instruction. First, neither Lopez nor

8
The relevant part of the instruction proposed by defendants
states:

Marta (sic) Gonzales acknowledges sending several money
orders, she denied that she had knowledge that funds
she sent represented proceeds of drug dealing. She
also maintains that she did not agree to send the money
orders, to conceal or disguise that nature, source, or
ownership of the money, and that she never made any
agreement to wire money to promote the drug dealing.

XIII Trial Tr. at 99.

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Gonzales took any steps to learn the source of the money sent, even though
the sums sent far exceeded the legitimate incomes of them and their
husbands. More importantly, both defendants were connected to transactions
in which they did not use their correct names or addresses on the documents
when wiring money. The district court did not err in giving this
instruction.

The defendants' challenge to the district court's refusal to give a
particularly-worded "theory of defense" instruction is reviewed only for
abuse of discretion. See United States v. Lynch, 58 F.3d 389, 391 (8th
Cir. 1995). A defendant is entitled to a theory of defense instruction
only if the instruction contains a correct statement of the law and the
evidence supports the instruction. See United States v. Meyer, 808 F.2d
1304, 1306-07 (8th Cir. 1987). In this case, the instruction requested by
the defendants, see supra note 8, is not supported by the evidence at
trial. The district court did not err in refusing to give this
instruction.

C. Sufficiency of Evidence

Gonzales and Lopez contend that there was insufficient evidence to
convict them of conspiracy to launder money. In reviewing the sufficiency
of the evidence to support a guilty verdict, "we look at the evidence in
the light most favorable to the verdict and accept as established all
reasonable inferences supporting the verdict." United States v. Barrett,
74 F.3d 167, 168 (8th Cir. 1996). We then uphold the verdict if it is
supported by substantial evidence. See id.

There was overwhelming evidence in this case to support the guilty
verdict. The MTAs demonstrated that defendants transferred large sums of
money via Western Union. A handwriting expert connected the defendants to
a number of these transactions. Further, the government offered expert
testimony both that the

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transactions at issue fit several money laundering patterns, including the
use of fake names and addresses, and that the sums transferred far exceeded
the lawful incomes of the defendants and their husbands. This is ample
evidence to support the convictions.

IV. CONCLUSION

We conclude that the government did not violate Brady or the Jencks
Act in this case. Further, the district court did not err in the
evidentiary rulings challenged on appeal, and there was sufficient evidence
to convict the defendants of money laundering. The other issues raised on
appeal, that the district court erred in calculating the amount of heroin
attributable to Juan and that the testimony of the informants should not
have been admitted, are without merit. Accordingly, we affirm the decision
of the district court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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