UNITED STATES COURT OF APPEAL
for the Fifth Circuit
____________________________________
No. 92-7685
____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FRANCISCO CASTANEDA-CANTU, and
JOSE ANTONIO TIQUET-RIVERA
Defendants-Appellants.
______________________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
______________________________________________________________
(May 4, 1994)
Before KING and WEINER, Circuit Judges, and DOHERTY,1 District
Judge.
PER CURIAM:
Procedural History
On March 10, l992, a grand jury returned a twenty-five (25)
count indictment against appellants, Francisco Castaneda-Cantu
("Castaneda") and Jose Antonio Tiquet-Rivera ("Tiquet"), and
thirteen (13) others in the Houston Division of the United States
District Court for the Southern District of Texas. The sixty-
five (65) page, twenty-five (25) count indictment stemmed from a
government-sponsored "sting" operation involving the laundering
1
District Judge for the Western District of Louisiana,
sitting by designation.
of funds through Mexico money exchange houses known as "Casas de
Cambio" with funds represented by the federal law enforcement
officers to have been proceeds of unlawful narcotics and firearms
trafficking.
In Count One, all defendants were charged with conspiring to
launder money in violation of 18 U.S.C. § 371. Castaneda was
specifically charged in Counts Two, Three, Five, Seven through
Thirteen, Fifteen, Sixteen and Eighteen with money laundering in
violation of §§ 1956(a)(3) and (2). In Counts Twenty and Twenty-
one Castaneda was charged with failure to file Reports of
International Transportation of Currency or Monetary Instruments
("CMIR") in violation of Title 31 U.S.C. § 5316(a)(l)(A). Tiquet
was specifically charged in Counts Two, Three, Four, Six,
Fourteen and Seventeen with money laundering in violation of 18
U.S.C. §§ 1956(a)(3) and (2). In Count Twenty-five, Tiquet was
charged with possessing Methaqualone with the intent to
distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(C).
Prior to trial Tiquet pled guilty only to Count Twenty-five,
possessing Methaqualone with intent to distribute.
Although the Grand Jury returned the Indictment in the
Houston Division of the Southern District of Texas, the district
court found that none of the defendants, government witnesses or
events alleged in the indictment had any relation to the Houston
Division of the court and transferred the case on a joint defense
2
motion to the McAllen Division. The district judge in McAllen,
Texas recused himself from hearing the case and it was
subsequently transferred to the Corpus Christi Division of the
court. The case was finally transferred to the Brownsville
Division of the court, the Honorable Filemon B. Vela presiding,
where it was tried to a jury. Trial began on July 8, l992 and
continued through July 31, l992. On July 29, l992, the jury
convicted Castaneda of fourteen (14) of the sixteen (16) counts
in which he was charged, including Count One - the conspiracy
charge, and acquitted him of the two (2) counts of failing to
file Reports of International Transportation of Currency or
Monetary Instruments ("CMIR") pursuant to Title 31 U.S.C. §
5316(a)(l)(A). The jury convicted Tiquet of all the remaining
counts in which he was charged, including Count One - the
conspiracy charge.
On October 9, l992, the district court sentenced Castaneda
to 60 months on Count One and 108 months on each of the other
counts, all to run concurrently, a three (3) year term of
supervised release on each count, to run concurrently, and
$700.00 in special assessments. The court also sentenced Tiquet
to 60 months on Count One and 120 months on each of the other
counts, all sentences to run concurrently, a three (3) year term
of supervised release on each count, to run concurrently, and
$400.00 in special assessments.
3
Facts
The charges of money laundering against Francisco Castaneda-
Cantu ("Castaneda") and Jose Antonio Tiquet-Rivera ("Tiquet")
were the result of an investigation lasting approximately two (2)
years by the United States Custom Service in McAllen, Texas of
the importation of large sums of U.S. currency into the United
States from Mexico by the representatives of Casa de Cambio
Colon. In July of l989, Special Agent Vincent Iglio of the
United States Customs Service noticed the Casa de Cambio Colon
was transporting millions of U.S. dollars on a weekly basis into
McAllen, Texas via the McAllen airport and was completing the
required Report of International Transportation of Currency or
Monetary Instruments ("CMIR") which reflected that the couriers
carried money on behalf of Casa de Cambio Colon. The money was
then transferred to various accounts across the United States.
Although businesses such as Casa de Cambio's ostensibly made
their profit from trading on the exchange rate between the United
States dollar and the Mexican peso, the agents suspected, based
on the volume of cash, that the money actually was booty which
had been smuggled into Mexico from an illegal activity in the
United States and was being "laundered" by the Casa de Cambio
Colon to appear to be the proceeds of trading on the dollar/peso
exchange rate.
The Customs Service consequently initiated a complex and
4
costly undercover investigation into the importation of the U.S.
currency. Two (2) Custom Service undercover agents were involved
in the operation. The first, Ventura Cerda, known undercover as
Vincente Serna, posed as a drug and weapons trafficker to see
whether the Casa de Cambio Colon would agree to launder money.
Special Agent J.J. Munoz, known undercover as Jessie Martinez,
joined Agent Cerda in the operation.
Agents Cerda and Munoz set up an undercover operation in
which they established three (3) businesses which appeared on the
surface to be legitimate. The three (3) were Choza Rica Exports,
Archer Enterprises and Impex Enterprises. Bank accounts at First
City Texas Bank, McAllen, Texas and Barkley's Bank U.K. London,
England were opened. Agent Cerda testified that he played the
role of a drug and weapons smuggler, posing as a representative
of a criminal organization that needed to launder the proceeds of
its illegal narcotics trafficking and weapons smuggling.
On October 26, l989, Special Agent Ventura Cerda telephoned
the office of Casa de Cambio Colon in Monterrey, Mexico and spoke
to Rogelio Rodriguez, the owner of the Casa de Cambio Colon,
regarding their money laundering services. Subsequently, Agent
Cerda discussed the possibility of money laundering with
Rodriguez. Although Rodriguez was hesitant to become involved,
he eventually agreed to make a referral to another person who
could take care of the "dirty money." Rodriguez also inquired
5
what percentage Agent Cerda was willing to pay for the laundering
service.
On February 4, l99l, Agent Cerda received a telephone call
from Francisco Castaneda-Cantu, who identified himself as an
employee of the Casa de Cambio Libra in Monterrey. Castaneda
indicated that Rodriguez had instructed him to call Agent Cerda
concerning Cerda's money problems. This led to a meeting in Rio
Grande City, Texas, on February 5, l99l, between Agent Cerda,
Castaneda, Tiquet and Gonzalez (also a defendant). At this
meeting, Tiquet identified himself as the owner of Casa de Cambio
Libra while Gonzalez represented himself to be the attorney for
the Casa de Cambio Libra. A deal was struck wherein the three
(3) agreed to launder money for Agent Cerda at the following
commission rates: 5% for $50,000.00 to $75,000.00, 4% for over
$75,000.00 to $150,000.00 and 3% for over $150,000.00. Agent
Cerda testified that he told the trio the monies were the
proceeds of illegal narcotics trafficking and weapons smuggling.
Shortly after this meeting, Rodriguez telephoned Cerda to confirm
he referred Tiquet, Castaneda and Gonzales and to vouch for their
abilities.
On February 19, l99l, the first in a series of money
laundering transactions began. On that day, Agent Cerda met with
Tiquet and Hector Espinoza, also a defendant, at Pendergrass
Electronics in McAllen, Texas. The money was laundered under the
6
following plan: Tiquet and Espinoza met Agent Cerda at a
location in McAllen, Texas, received the U.S. currency, and
telephoned Castaneda in Mexico to confirm the receipt of the
money. Castaneda then wire transferred an amount of money equal
to the amount received by Tiquet and Espinoza from the accounts
of the Casa de Cambio Colon in the First City Bank of Texas, to
undercover accounts given by Agent Cerda. Tiquet and Espinoza
were then to either smuggle the cash received from Agent Cerda
across the Mexican border or deposit it into the accounts of Casa
de Cambio Colon at the First City Texas Bank. Castaneda
generated a fictitious receipt for the money which indicated that
the wire transferred money originated from a pesos for dollars
exchange in Monterrey, Mexico. This scheme created a paper trail
that made it appear as if the money going into Agent Cerda's
account originated from a pesos for dollars exchange in
Monterrey, Mexico rather than from illegal activities in the
United States. For these services Tiquet, Castaneda and Espinoza
charged Agent Cerda a fee as per the rates described at the
initial meeting.
From February 19, l99l until February 13, l992, a number of
transactions, which were detailed in the indictment, took place
involving Tiquet and Castaneda as well as the other 13 defendants
named in the indictment. These transactions took place in "out
of the way" locations and Tiquet and Castaneda received a
substantial fee for each money laundering transaction based on
7
the amount of money laundered. Defendants, Castaneda and Tiquet,
were subsequently indicted by the grand jury in a twenty-five
(25) count indictment on March 10, l992 and subsequently
convicted on July 29, l992 after a nineteen (19) day jury trial.
Castaneda and Tiquet both moved for a Judgment of Acquittal
at trial pursuant to Rule 29(b)2 of the Federal Rules of Criminal
Procedure, at both the close of the government's case and at the
conclusion of all evidence. Their motions were based upon the
government's alleged failure to prove beyond a reasonable doubt
that Castaneda or Tiquet knew or believed that the money being
laundered was the proceeds of illegal drug or weapons trafficking
sales. Each argued that he believed the money in question came
from a variety of sources including "the exchange of furniture,
cars, warehouse, and all" the sale of televisions, Mayan figures
and artifacts from Guatemala, stolen tires, heavy equipment, used
telephones and "refrigerators and those machines." The court
denied both motions pursuant to FRCP 29(b) and the case was
subsequently presented to the jury who found sufficient evidence
to convict both Castaneda and Tiquet on multiple counts.
2
Although unclear after a thorough review of the record
and briefs filed by each defendant, this court will assume for
purposes of this appeal that both defendants' motions pursuant to
Fed. R. Civ. Pro. 29(b) on sufficiency of the evidence applied
only to the substantive counts charged, and not to Count One
based on 18 U.S.C. § 371, conspiracy.
8
Discussion
Castaneda and Tiquet appeal the decision of the jury in this
case, as well as certain rulings made by the district court, and
appeal the sentences that the district court imposed. We will
address each argument that Castaneda and Tiquet raise on appeal.
Castaneda and Tiquet first contend that the district court
erred in failing to grant their FRCP 29(b) motion, arguing the
government presented insufficient evidence to prove beyond a
reasonable doubt that Castaneda and Tiquet knew the money being
laundered was the product of specified unlawful activity, in this
case, illegal drug or weapons sales. This Court's standard of
review of the district court's denial for a Motion for Judgment
for Acquittal, pursuant to Federal Rule of Criminal Procedure
29(b), is de novo. United States v. Restrepo, 994 F.2d 173, 182
(5th Cir. l993). "The well-established standard in the circuit
for reviewing a conviction allegedly based on insufficient
evidence is whether a reasonable jury could find that the
evidence establishes the guilt of the defendant beyond a
reasonable doubt." Id. We review the evidence in the light most
favorable to the government to determine whether the government
proved all elements of the crimes alleged beyond a reasonable
doubt. United States v. Skillern, 947 F.2d 1268, 1273 (5th Cir.
l99l), cert denied 112 S.Ct. 1509 (l992). In such a review, the
evidence does not have to exclude every reasonable hypothesis of
9
innocence. United States v. Leed, 98l F.2d 202, 205 (5th Cir.
1993), cert denied 113 S.Ct. 2971 (l993).
To convict the defendants of a violation of 18 U.S.C.
§ 1956(a)(3) as charged in Counts Two - Nineteen, requires that
the government prove beyond a reasonable doubt that the
defendants: (l) conducted or attempted to conduct a financial
transaction; (2) involving property represented by a law
enforcement agent to be the proceeds of specified unlawful
activity; (3) with the intent to conceal or disguise the nature,
location, source, ownership, or control of the property; and (4)
believed the proceeds were the product of a specified unlawful
activity. United States v. Fuller, 974 F.2d 1474, 1478 (5th Cir.
l992) cert denied U.S. , 114 S.Ct. 112 (l993); United
States v. Arditti, 955 F.2d 33l, 339 (5th Cir.) cert denied,
U.S. , 113 S.Ct. 599 (l992). Pursuant to §§ 1956(c)(7)(A) and
(D) both drug trafficking and weapons smuggling are specified
unlawful activities.
Tiquet and Castaneda challenge the sufficiency of the
evidence with regard to the second and fourth elements of 18
U.S.C. § 1956(a)(3), which are logically inter-related. More
specifically, defendants challenge whether the laundered money
was represented by the agents to be the proceeds of specified
unlawful activity and whether both defendants believed the
proceeds were from those sources.
10
The only issue for review before this Court on this
challenge made by defendants is whether the government introduced
sufficient evidence to prove that Agent Cerda represented to
defendants, and that defendants believed the funds they were
laundering were the proceeds of a specified unlawful activity.
The specified unlawful activity involved in this case was the
sale and distribution of narcotics and dangerous drugs and the
illegal sale, importation and exportation of weapons.
Sufficiency of the Evidence
The essence of defendants' argument is that Agent Cerda
represented too much. Defendants claim that Agent Cerda
presented himself as a smuggler in general rather than a
trafficker only in specified unlawful activities. Defendants
claim that he represented that there were multiple sources of the
funds to be laundered, including but not limited to:
televisions, Mayan figures and artifacts from Guatemala, stolen
tires, heavy equipment, used telephones, etc. Therefore,
defendants argue the record does not support what the government
alleges defendants ultimately believed about the "nature" of the
proceeds sought to be laundered through the Casa de Cambio Colon.
The government contends that the only sources of funds ever
discussed with the defendants were the proceeds of drug
11
trafficking and weapons smuggling. Further, the government
argues that the record reveals that the argued references to
other sources of funds were taken out of context by defendants
and those references merely referred to possible legitimate
sources which could have been used to show that the money from
the various transactions originated in Mexico.
Defendants further argue that Agent Cerda used ambiguous
terms with double and triple meanings and never directly stated
that he was in the business of either illegal sales of drugs or
weapons or both. Defendants argue specific terms were never
used rather only very general terms such as "Italians",
"contrabandista" and "marihuano" were used, which defendants
argue are general terms which could mean a variety of things
depending on the part of the country from which you come.
However, at trial Agent Munoz testified that he had lived in the
Rio Grande Valley all his life and the term "contrabandista"
meant someone who smuggles drugs. Agent Cerda testified
"marihuano" could mean someone who sells or smokes marijuana.
Defendants argue the general term "contrabandista", used by
Agent Cerda to imply smuggling guns and drugs or both, also could
apply to smuggling many items such as electronics, or clothing
and this coupled with Agent Cerda's assertions about the source
of the funds is insufficient as a matter of law to prove either
that the proceeds laundered were the proceeds of illegal drug
12
sales or illegal weapon sales or that either Castaneda or Tiquet
knew or believed that he was laundering these types of funds.
Law enforcement agents do not have to make express
representations that the funds to be laundered were proceeds of
specified unlawful activity. "It is enough that the government
prove that an enforcement officer or other authorized person made
the defendant aware of circumstances from which a reasonable
person would infer that the property was drug proceeds." United
States v. Kaufmann, 985 F.2d 884, 893 (7th Cir.), cert denied,
U.S. 113 S.Ct. 2350 (l993). Further, this Court notes that
when evaluating the representations made by law enforcement
agents, language used by a law enforcement agent that might be
ambiguous to a person unfamiliar with illicit activity may not be
ambiguous to a person involved in an illicit activity. United
States v. Breque, 964 F.2d 38l, 387 (5th Cir. l992), cert denied,
U.S. 113 S.Ct. 1253 (l993).
The facts surrounding this issue of the case were testified
to at trial in great detail by Agent Cerda and Agent J.J. Munoz,
and through some 200 tape recorded conversations by and between
the undercover agents and the defendants. The record is replete
with testimony which refutes defendants' assertions that they
were not aware of the source of the money sought to be laundered
by Agent Cerda. Cerda testified that in the first face-to-face
meeting with defendants on February 5, l99l, he told both Tiquet
13
and Castaneda that he was the "middle man for certain
individuals, for the Italians, as a matter of fact, that were
involved in the smuggling of arms and narcotics into and out of
the United States."
Subsequently, in two (2) meetings in February of l99l, Agent
Cerda told Tiquet that, "these men work -- they work in real big
amounts -- real big -- they're -- they're in a little of every
thing, [unclear] be it weed, I mean, arms or what . . ." Agent
Cerda further told Tiquet that, "these Italians, this of -- of
guns, they're fine [unclear] . . . There's going to be many,
well they're smugglers of the first kind . . . Nothing but guns."
Agent Cerda told Tiquet that his clients have "some arms . . .
Automatic ones. That I know well that they're hot, understand
me?"
On May 21, l99l, while traveling in Agent Cerda's car, Agent
Cerda discussed with Castaneda and another defendant charged in
the indictment, that Agent Cerda's clients trafficked in weapons.
Agent Cerda then stopped to show Castaneda and the other
defendant two (2) assault rifles, an AK-47 and an M-16.
On June 4, l99l, Castaneda introduced Agent Cerda to David
Torres-Sancedo, who was also charged in the indictment. During
this meeting Agent Cerda explained that his clients were
"marijuana dealers" and later told Castaneda he had access to M-
14
16s in "big amounts." On June 5, l99l, Agent Cerda told
Castaneda that his clients "move a tremendous amount of --
they're in arms . . . ." On December 26, l99l, Castaneda called
Agent Munoz, and during the course of the conversation, Agent
Munoz referred to his clients as "dopers." On January 3, l992,
Agent Munoz met with Castaneda and twice referred to his clients
as "dopers" and told Castaneda that Agent Cerda's clients dealt
in weapons such as rifles and machine guns. A bit later in the
conversation Castaneda told Agent Munoz he wanted a gun.
Consequently, a jury could have reasonably inferred that
Castaneda believed the monies to be laundered were the proceeds
of illegal drug and weapon trafficking.
Further testimony reveals that Tiquet discussed supplying
and actually sold narcotics to Agent Cerda. Tiquet told Agent
Cerda that "we move a lot of pills" referring to the Mandrex
pills and further discussed the possibility of selling Agent
Cerda one (l) ton of cocaine. On February 4, l992 Tiquet sold
Agent Cerda 1,000 Mandrex pills for $2,000.00.
From these transactions and Agent Cerda's testimony a jury
could reasonably infer that Tiquet also believed Agent Cerda's
representations that the money to be laundered was from a
specified illegal activity, i.e., illegal drug sales and illegal
gun sales or both.
15
Law enforcement agents involved in "sting" operations are
not required under § 1956(a)(3) to describe the source of funds
to be laundered before each money laundering transaction. This
court in Arditti, 955 F.2d at 339 held:
"To hold that a government agent must recite the alleged
illegal source of each set of property at the time he
attempts to transfer it in a 'sting' operation would make
enforcement of the statute extremely and unnecessarily
difficult; 'legitimate criminals,' whom undercover agents
must imitate, undoubtedly would not make such recitations
before each transaction."
Lastly, the context in which all of these representations
were made is not to be discounted. The record reflects that
either Tiquet, Castaneda or both defendants took steps to ensure
that the money provided to them by Agent Cerda appeared to
originate from a pesos for dollars exchange in Mexico. In order
to create this impression the cash was transported to Mexico,
money was wire transferred to Agent Cerda's undercover accounts
and fraudulent facts and documents were created purporting to
evidence a pesos for dollars exchange in Mexico. The meetings
between the undercover agents and the defendants took place in
"out of the way locations", and Tiquet and Castaneda both
received a substantial fee for each money laundering transaction.
Therefore, the service Tiquet and Castaneda were providing and
16
the circumstances under which it was being provided also could
have contributed to a reasonable person's inferring that the
monies laundered were the proceeds of illegal drug and weapons
sales. Kaufmann, 985 F.2d at 893 (7th Cir.), 113 S.Ct. 2350
(l993).
Therefore, we find that the record contains sufficient
evidence for a reasonable jury to have found that the defendants
believed the funds they were transferring were the proceeds of a
specified illegal activity, i.e., illegal drug or firearm sales
or both.
Multiple Conspiracy Instruction
Both Castaneda and Tiquet claim that the district court
committed reversible error by failing to give the requested Fifth
Circuit Pattern Jury Instruction for Multiple Conspiracies3 and
therefore, conviction on Count One for both Castaneda and Tiquet
must be reversed.
3
The requested jury instruction was as follows: Multiple
Conspiracies: You must determine whether the conspiracy charged
in the indictment existed, and, if it did, whether the defendant
was a member of it. If you find that the conspiracy charged in
the indictment did not exist, then you must return a verdict of
not guilty, even though you find that some other conspiracy
existed. If you find that a defendant was not a member of the
conspiracy charged in the indictment, then you must find the
defendant not guilty, even though the defendant may have been a
member of some other conspiracy. See: United States Fifth
Circuit District Judges' Association, Pattern Jury Instructions -
Criminal Cases (l990), at 92.
17
The basis of both Castaneda's and Tiquet's argument is that
because Castaneda conducted certain transactions without Tiquet's
knowledge, there was necessarily more than one (l) conspiracy and
therefore, the district court committed reversible error by not
giving the requested instruction. We disagree.
Further, both defendants contend that because there was no
Multiple Conspiracy instruction given and the district court gave
a Pinkerton4 instruction,5 the convictions on the money
laundering counts are necessarily "tainted." Again, we disagree.
Both defendants were indicted in Count I for participating
in a single conspiracy to launder funds represented by government
agents to be the proceeds of illegal narcotics and weapons
4
Pinkerton v. United States, 328 U.S. 640, 647-48 (l946).
5
The court instructed the jury - Now, with respect to the
substantive count. Remember, Count One is not a substantive
count, that's a conspiracy. I'll tell you a conspirator is
responsible for a conspiracy by his fellow conspirator if he was
a member of the conspiracy when the offense was committed and if
the offense was committed in furtherance of the conspiracy.
Therefore, if you first found (sic) that the defendant that you
have under consideration guilty of the conspiracy charged in
Count One, if you first find the defendant that you have under
consideration is guilty of Count One and if you find beyond a
reasonable doubt that while he was a member of that conspiracy
his fellow conspirators committed the offense that you have under
consideration in the substantive counts in furtherance of or as a
foreseeable consequence of that conspiracy, you may find him
guilty of the count that you have under consideration even though
he may not have participated in any of the acts that constitutes
the acts in all of the Counts Two through Nineteen. See: United
States Fifth Circuit District Judges' Association Pattern Jury
Instructions - Criminal Cases (l990) at 93.
18
trafficking. However, both of the defendants argue that the
record contains evidence that numerous separate conspiracies
developed between the agents, Tiquet, Castaneda and various other
defendants named in the indictment. In particular, Castaneda
argues that a separate conspiracy developed when Castaneda agreed
to go behind Tiquet's back to launder funds supplied by Agent
Cerda, such that by April, l99l, Castaneda was in competition
with Tiquet to launder Agent Cerda's funds. Therefore, Castaneda
in particular, argues that the post-April, l99l agreements to
launder Agent Cerda's funds among Castaneda and other parties
were not part of the overall conspiracy charged in Count One.
The government argues that there was one (l) and only one (l)
overall conspiracy, that both defendants were party to this
overall conspiracy, and regardless of who was actually laundering
the money, when or how, the goal of the overall conspiracy
remained the same: laundering Agent Cerda's money for a fee.
Defendants' particular objections will be addressed separately.
Tiquet
Tiquet requested an instruction on Multiple Conspiracies and
therefore, the standard of review for failure to give the
requested instruction is abuse of discretion. Arditti, 955 F.2d
at 339. This Court has repeatedly held that "a defendant is
entitled to a Multiple Conspiracy instruction if he specifically
and timely requests such an instruction and his theory has legal
19
and evidentiary support." United States v. Stowell, 947 F.2d
1251, 1258 (5th Cir. l99l) cert denied, 112 S.Ct. 1269 and cert
denied, 113 S.Ct. 292 (l992).
A multiple conspiracy instruction "is generally required
where the indictment charges several defendants with one (l)
overall conspiracy, but the proof at trial indicates that some of
the defendants were only involved in separate conspiracies
unrelated to the overall conspiracy charged in the indictment."
United States v. Greer, 939 F.2d 1076, 1088 (5th Cir. l99l)
(quoting United States v. Anguiano, 873 F.2d 1314, 1317 (9th
Cir.) cert denied, ll0 S.Ct. 416 (l989)) (emphasis added),
opinion reinstated in part by 968 F.2d 433 (5th Cir. l992) (en
banc), cert denied, 113 S.Ct. 1390 (l993). As Tiquet timely
requested a multiple conspiracy instruction, this Court will
review only whether Tiquet's assertion has any evidentiary
support within the record.
Tiquet was not involved in the "behind the back"
transactions which Castaneda claims formed a separate conspiracy
and is the basis for Castaneda's argument that a Multiple
Conspiracy instruction should have been given by the Court.
Rather, Tiquet argues that there are numerous examples of the
agents and the defendants operating behind the backs of each
other, in separate schemes to launder money. As previously
stated, Count One of the indictment charged an overall conspiracy
20
to launder the funds of the agents involved in the government
"sting" operation. The remaining substantive counts of the
indictment charge and name Tiquet only as a participant in those
substantive counts in which he directly participated. Tiquet,
does not argue that evidence introduced at trial showed that he
was involved only in a separate non-charged conspiracy and not in
the overall conspiracy charged in Count One. Further, Tiquet was
not convicted on any substantive count other than those
substantive counts in which he was named and in the overall
conspiracy charged in Count One. The record does not support
Tiquet's argument that he was not involved in the overall
conspiracy but in other non-charged conspiracies. Consequently,
this Court finds the failure to give the requested instruction
was not an abuse of discretion and therefore, does not require a
reversal.
Castaneda
Castaneda along with a Mr. Alaniz elected to go, in the
government's words, "behind Tiquet's back" and developed separate
deals to launder Agent Cerda's funds, with various other parties.
However, Castaneda did not request the Multiple Conspiracy
instruction, supra. Accordingly, the standard of review as to
Castaneda is plain error. United States v. Barakett, 994 F.2d
ll07, 1112 (5th Cir. l993), cert denied 114 S.Ct. 701 (l994).
Castaneda's argues he did request the instruction as he
21
argues the district court ruled that defendants could "piggy
back" onto jury instructions requested by co-defendants. In
support, Castaneda cites the district court's statement that
"What adheres to the benefit of one (l) defendant will adhere to
the benefit of all defendants". However, in reviewing the
complete record, we find the portion of the district court's
statement quoted by defendant is not complete and is taken out of
context. When viewed in toto and in context it is clear the
cited statement applied to motions of co-defendants and not to
requested jury instructions.6
6
The language cited by defendant is not complete and is
taken out of context. The complete statement of the district
court is as follows:
There are several motions filed in this case. We will take
up motions filed, as we have them listed for each respective
defendant.
As with regard motions that will adhere to the benefit of
all defendants, there have been several of you who have
filed motions to that effect, that will be granted. What
adheres to the benefit of one (l) defendant will adhere to
the benefit of all defendants.
One ruling of the Court should likewise affect you accord-
ingly and, if not, you tell me why not when we get there.
Record Vol. 9, page 7.
Much later when addressing the question of jury
instructions, the district court stated:
Remember that if you have favored me with any requested
instructions and had them filed that you don't have to
object to anything I do inconsistent therewith. You
preserve your exception in there (sic) regard. You can
object to anything further that you see fit to so do. Fair?
Record Vol. 32, p. 1215.
22
Under the plain error standard, only error "which when
examined in the context of the entire case, is so obvious and
substantial that failure to notice and correct it would affect
the fairness, integrity or public reputation of the judicial
proceedings" requires reversal (quoting United States v.
Vontsteen, 950 F.2d 1086, 1092 (5th Cir.) (en banc), cert denied
U.S. , 1122 S.Ct. 3039 (l992)).
In essence, Castaneda argues that because there was evidence
introduced at the trial of a separate transaction involving
Castaneda and others, it was error for the district court to
refuse to instruct the jury on Multiple Conspiracies. Castaneda
argues this separate transaction was a separate conspiracy and
therefore, the Multiple Conspiracy charge was required. This
Court disagrees. The government charged an overall conspiracy in
Count One and the substantive acts in the latter counts.
Castaneda does not argue that the evidence introduced at trial
showed that he was involved only in a separate non-charged
transaction and not in the overall conspiracy charged in Count
One. Castaneda does not refute the fact that he might have been
involved in the charged overall conspiracy, at least before
April, l99l, he merely argues he also was involved in the
separate transactions charged in the counts representing the
substantive acts which comprised the conspiracy. Such a
situation does not require a Multiple Conspiracy charge on a
plain error review. Consequently, this Court finds the failure
23
to give the requested instruction was not plain error. It was
"not so obvious and substantial that failure to notice and
correct it would affect the fairness, integrity or public
reputation of judicial proceedings" and therefore, does not
require a reversal.
Pinkerton Instruction
Both Castaneda and Tiquet argue that if the court failed to
properly instruct the jury on multiple conspiracies, it would
logically follow that the substantive offense convictions, based
on Pinkerton, are "tainted." As we have found that the district
court did not err in refusing the request for a Multiple
Conspiracy instruction, and after reviewing the record as a
whole, this Court finds the district court's giving of a
Pinkerton instruction does not rise to the level of plain error
or an abuse of discretion and, in fact, the Pinkerton instruction
was essentially superfluous. We, therefore, cannot say that the
district court erred in its refusal to give a Multiple Conspiracy
instruction to the jury or in its giving of a Pinkerton
instruction.
Sentencing Guideline Issues
A sentence imposed under the Federal Sentencing Guidelines
will be upheld unless a defendant can demonstrate that it was
24
imposed in violation of the law, was imposed because of an
incorrect application of the guidelines, or was outside the range
of applicable guidelines and is unreasonable. United States v.
Parks, 924 F.2d 68, 71 (5th Cir. l99l).
The district court's sentence will be upheld on appeal so
long as it results from a correct application of the guidelines
to factual findings that are not clearly erroneous. United
States v. McCaskey, 9 F.3d 368, 372 (5th Cir. l993).
The finding will be clearly erroneous when the reviewing
court is left with a definite affirmed conviction that a mistake
has been committed. United States v. Shaw, 894 F.2d 689, 691
(5th Cir. l990).
Further, a sentencing court's factual findings must be
supported by a preponderance of the evidence. Id. We review the
issues de novo, United States v. Soliman, 954 F.2d 1012, 1013
(5th Cir. l992).
Both Castaneda and Tiquet argue that the district court
clearly erred in increasing each defendants' base level offense
by three (3) in accordance with § 2Sl.l(b)(l) of the Federal
Sentencing Guidelines which provides:
25
Specific Offense Characteristics:
(l) If the defendant knew or believed that the funds were
the proceeds of an unlawful activity involving the
manufacture, importation, or distribution of narcotics or
other controlled substances, increase by three (3) levels.
As this Court found that a reasonable jury could have found
beyond a reasonable doubt that both Castaneda and Tiquet knew or
believed that the source of the money being laundered was the
result of either illegal drug or weapons sales, consequently, the
district court did not err when it found that each defendant
could be assessed an increase of three (3) levels in his base
offense level pursuant to § 2Sl.l(b)(l) of the Federal Sentencing
Guidelines.
Secondarily, defendants argue that the application of U.S.C.
§ 2Sl.l(b)(l) violates the expo facto clause of the Constitution.
A sentencing court must apply the version of the guidelines
effective at the time of sentencing unless application of that
version would violate the Ex Post Facto Clause of the
Constitution. United States v. Mills, 9 F.3d ll32, 1136 n. 5
(5th Cir. l993).
The Federal Sentencing Guidelines were amended in l99l to
26
include § 2Sl.l(b)(l) and this circuit held in United States v.
Breque, 964 F.2d 38l, 389 (5th Cir. l992) that the three (3)
level "sting" adjustment provided in § 2Sl.l(b)(l) was a
substantive change in the guidelines that could not apply to pre-
November l, l99l, conduct and belief.
This Court notes, however, that in the case of both
defendants, each was charged with at least one (l) count
subsequent to the November l, l99l inclusion in the guidelines of
§ 2Sl.l(b)(l).7
The district court "grouped" the money laundering counts
together in accordance with United States Sentencing Guidelines,
§ 3Dl.3(d)8 and in accordance with 18 U.S.C. § 3553(a)(4).9
7
Tiquet, charged in Count XVII for activity on January 9,
l992 and Castaneda, charged in Count XV for activity on December
20, l99l, Count Sixteen, on January 3, l992 and Count Seventeen
on January 10, l992.
8
Groups of closely related counts. All counts involving
substantially the same harm shall be grouped together into a
single Group. Counts involve substantially the same harm within
the meaning of this rule: (d) when the offense level is
determined largely on the basis of the total amount of harm or
loss, the quantity of substance involved or some other measure of
aggregate harm, or if the offense behavior is ongoing or
continuous in nature and the offense guideline is written to
cover such behavior.
Offenses covered by the following guidelines are to be
grouped under this subsection: Section 2Sl.l.
9
18 U.S.C. § 3553(a)(4) states:
Imposition of a Sentence:
27
Accordingly, we AFFIRM the district court's assessment of a
three (3) level increase pursuant to § 2Sl.l(b)(l) of the Federal
Sentencing Guidelines and therefore, AFFIRM the district court's
sentence of both defendants.
Conclusion
Finding no error, we AFFIRM the district court on all issues
raised on appeal.
(a) Factors to be considered in imposing a sentence -
The court shall impose a sentence sufficient, but
not greater than necessary, to comply with the
purposes set forth in paragraph (2) of this
subsection. The court, in determining the
particular sentence to be imposed, shall consider
(4) the kinds of sentence and the sentencing
range established for the applicable category
of offense committed by the applicable
category of defendant as set forth in the
guidelines that are issued by the Sentencing
Commission pursuant to 28 U.S.C. § 994(a)(l)
and that are in effect on the date the
defendant is sentenced . . .
28