UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 92-2503
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANTONIO PUIG-INFANTE,
a/k/a ALEJANDRO MONTANA,
MARIA ABIGAIL PUIG,
JUAN ERNESTO CASTRO-CUELLAR,
ARACELI CASTRO, PERLA DE LOS SANTOS,
Defendants-Appellants.
______________________________________________
Appeal from the United States District Court for the
Southern District of Texas
______________________________________________
(April 13, 1994)
Before JOHNSON, GARWOOD and JOLLY, Circuit Judges.
GARWOOD, Circuit Judge:
Defendants-appellants were charged with and convicted of
participating in a conspiracy involving the importation of
marihuana from Mexico into the United States. Araceli Castro,
Perla De Los Santos, Maria Abigail Puig (Abigail Puig), Juan
Ernesto Castro-Cuellar (Juan Castro), and Jose Alejandro Puig-
Infante (Jose Puig) were convicted of conspiracy, importation, and
other drug charges. Appellants raise numerous issues on appeal.
We affirm in part, reverse in part, and vacate and remand in part.
Facts and Proceedings Below
The story of this conspiracy begins sometime in 1986 or 1987,
in Monterrey, Mexico, when Don Roman (Roman) entered into an
agreement with Hector Villareal-Rojas (a/k/a Tito) to supply Tito
with marihuana from Mexico. The two agreed that Roman would
arrange for the marihuana to be driven from the interior of Mexico,
across the United States border, and into Houston. Tito arranged
on his own for distribution of the marihuana in Houston once it was
delivered to him.
In 1987, Roman was arrested and his part of the operation was
taken over by one of the delivery drivers, Alejandro Acosta
(Acosta), and his family. Acosta would arrange to transport the
marihuana from the interior of Mexico to the vicinity of Monterrey,
Mexico, where it would be stored while awaiting transportation to
the border city of Nuevo Laredo, Mexico, and ultimately into the
United States through Laredo, Texas. Initially, Acosta was
assisted by his wife, Martha Idalia Garcia-Bernal (a/k/a Martha
Acosta), by his sisters, appellant Araceli Castro, appellant Perla
De Los Santos, and appellant Abigail Puig (collectively, the
sisters), and by his brother-in-law, appellant Juan Castro, as well
as by various minor participants. Acosta's wife, sisters, and
brother-in-law supplied the drivers to transport the marihuana (in
what were known as runs or loads) from Monterrey to Nuevo Laredo,
across International Bridge No. 2 into the United States at Laredo,
through the United States Border Patrol checkpoint station on
Interstate 35, and on to Houston. Additional such runs were made
to Florida, Georgia, and San Antonio, Texas.
2
The organization developed a standard operating procedure.
First, drivers were recruited and briefed on the procedures by one
of the sisters. Aided by friends and relatives, the sisters would
provide the drivers with documents and permits for travel in the
Mexican interior. The drivers would then travel to Sabinas or
Montemorelos, Mexico, where the vehicles were loaded with
marihuana. An amount of marihuana ranging from forty to one
hundred pounds would be divided into two-pound plastic bundles that
were painted black to minimize detection and concealed in the
fenderwells, under the front and rear bumpers, in the spare tire
compartments, and in false gas compartments in the late model
vehicles. The vehicles used for the runs were purchased by the
organization and registered in the name of one of the drivers, to
conceal the true ownership and purpose of their use.
After loading the marihuana, the drivers would return to Nuevo
Laredo, wash their vehicles, and remove their Mexican travel
sticker so that border patrol agents would not realize that they
had been to the interior. From Nuevo Laredo they would cross the
international border into Laredo. Once across the border, the
drivers reported their safe passage to one of the sisters or to
Martha Acosta; they reported again after they passed through the
checkpoint at Cotulla, Texas. The loads were then delivered to
Tito in Houston. After Tito unloaded the vehicles and weighed the
marihuana, either he or the driver reported the number of pounds to
the Acosta sisters in Laredo. The driver would then return to
Laredo, often with cash payments for the load.
Appellant Jose Puig entered the conspiracy shortly after his
3
release from the Webb County Jail on October 14, 1988. In December
of 1988, Alejandro Acosta was arrested; after his arrest he
directed his end of the operation from prison, and Tito began
dealing directly with the sisters. After Acosta's arrest, the
Puigs established a modus operandi somewhat distinct from Perla De
Los Santos and the Castros, picking up their marihuana in different
locations in Mexico and generally delivering the contraband to
Georgia or Florida. Perla De Los Santos and the Castros continued
to make their deliveries to Houston.
In February 1989, the Drug Enforcement Administration (DEA)
seized a vehicle containing a load of marihuana which was
registered in the name of one of the drivers, Gloria Valles
(Valles). When confronted by the DEA, Valles agreed to become a
paid informant. As part of the arrangement, Valles tape recorded
a number of conversations with the appellants and also assisted the
DEA in introducing into the conspiracy a confidential informant.
In addition to the inroads into the conspiracy made through Valles,
the DEA was also able to secure the cooperation of two other
drivers who worked for the organization,1 as well as to introduce
1
Two drivers employed by the Castros and Perla De Los Santos,
Bruce Coggins (Coggins) and Mario Sergio Cruz (Cruz), agreed to
cooperate with the DEA. Coggins agreed to become a DEA informant
after he was apprehended by United States Customs agents while
trying to cross the International Bridge with a carload of
marihuana. While working with the DEA, Coggins began driving
loads for Jose Puig. During his tenure as a driver for the
organization, Coggins tape recorded several conversations he had
with the Puigs and Castros. Additionally, Coggins introduced an
undercover DEA agent to Juan Castro, who later offered the agent
a job running loads of marihuana. Cruz agreed to become an
informant for the DEA after he was apprehended by Border Patrol
with sixty-three pounds of marijuana in the trunk of the vehicle
he was driving. Thereafter, Cruz tape-recorded several
4
other undercover DEA agents into the conspiracy.
DEA surveillance lasted two years and the investigation
produced a substantial amount of information about the conspiracy.
On August 8, 1991, a grand jury indictment was returned against
appellants Araceli Castro, Perla De Los Santos, Abigail Puig, Jose
Puig, and Juan Castro charging twenty-four violations of Title 21
Controlled Substances Act and Title 18 Racketeering Act.2 The
indictment alleged that the appellants were participants in a
conspiracy lasting from 1987 to 1991. Specifically, all of the
appellants were charged with conspiracy to import in excess of
1,000 kilograms of marihuana, in violation of 21 U.S.C. §§ 963,
952(a) and 960(a)(1), and with conspiracy to possess with intent to
distribute in excess of 1,000 pounds of marihuana, in violation of
21 U.S.C. §§ 846 and 841(a)(1). They were also charged with aiding
and abetting the importation of marihuana, in violation of 21
U.S.C. §§ 952(a) and 960(a)(1); aiding and abetting the possession
of marihuana with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1); and, aiding and abetting money laundering, in
violation of 18 U.S.C. §§ 2, 1956(a)(1)(A)(i). Araceli Castro,
Perla De Los Santos, and Abigail Puig were also charged with
engaging in a Continuing Criminal Enterprise, in violation of 21
U.S.C. § 848. Finally, Juan Castro and Araceli Castro were charged
with knowingly employing a minor to assist them in avoiding
conversations he had with Araceli Castro, Perla De Los Santos,
and Juan Castro.
2
The indictment also charged eleven additional co-
conspirators, each of whom eventually pleaded guilty to the
charges, pursuant to plea agreements.
5
detection and apprehension for the conspiracy to possess with the
intent to distribute and the underlying possession offenses, in
violation of 18 U.S.C. § 2 and 21 U.S.C. § 861(a)(1).
The case was tried before a jury in the United States District
Court for the Southern District of Texas, and on April 2, 1992, the
jury returned a guilty verdict on all counts against all appellants
except Perla De Los Santos. Perla De Los Santos was acquitted on
the Continuing Criminal Enterprise charge, one count of
importation, and one count of possession with intent to distribute,
but was convicted of all remaining charges.
The district court, with one exception noted below, adopted
the findings and recommendations of the presentence investigation
reports (PSRs) for all of the appellants, and sentenced them
accordingly. The court sentenced Perla De Los Santos to concurrent
sentences totalling 240 months, followed by 8 years' supervised
release. Araceli Castro was sentenced to concurrent sentences
totalling 292 months, followed by 5 years' supervised release.
Juan Castro was sentenced to concurrent sentences totalling 285
months, followed by 10 years' supervised release.3 Abigail Puig
was sentenced to concurrent sentences totalling 292 months,
followed by 10 years' supervised release. Finally, after modifying
the PSR's finding regarding the amount of marihuana attributable to
Jose Puig under the Sentencing Guidelines, the court sentenced Jose
Puig to concurrent sentences totalling of 292 months, followed by
3
The district court ordered that all of Juan Castro's
sentences run concurrent with the remaining time on his December
19, 1991, conviction in separate proceedings in the Western
District of Texas for marihuana trafficking.
6
10 years' supervised release. Following sentencing, the
appellants each timely filed a notice of appeal to this court.
Discussion
On appeal, appellants assert numerous claims of error,
including the following contentions: (1) the existence of a
material variance between the indictment and the proof adduced at
trial; (2) the government's failure to adequately prove certain of
the money laundering charges; (3) the failure of the court to make
proper findings under the Sentencing Guidelines; (4) the improper
enhancement of sentences for prior convictions; (5) the
insufficiency of evidence to support the conviction for employment
of a minor to assist in drug trafficking; (6) the insufficiency of
the evidence to support conviction for importation of marihuana;
(7) the inclusion of prejudicial, explanatory parentheticals in
transcripts of tape recorded conversations; and (8) improper
judicial comments at trial. We consider these issues in this
order.
I. Material Variance
Araceli Castro, Perla De Los Santos, Abigail Puig, and Jose
Puig argue that a material variance existed between the single
conspiracy alleged in the indictment and the evidence adduced at
trial. The appellants contend that the evidence proved the
existence not of a single, overarching conspiracy, but of several
separate and distinct conspiracies. Jose Puig, Abigail Puig, and
Perla De Los Santos claim that the evidence demonstrated not a
single organization with a common goal, but instead two separate
marihuana importing and distributing networks that operated
7
independently of each other, one run by the Castros and Perla De
Los Santos, the other run by the Puigs. Araceli Castro claims that
the evidence established the existence of four or five distinct
networks competing for business.
"A material variance occurs when a variation between proof and
indictment occurs, but does not modify an essential element of the
offense charged." United States v. Thomas, 12 F.3d 1350, 1357 (5th
Cir. 1994). "We will not reverse a conviction for such a variance
in the evidence unless 1) the defendant establishes that the
evidence the government offered at trial varied from what the
government alleged in the indictment, and 2) the variance
prejudiced the defendant's substantial rights." United States v.
Jackson, 978 F.2d 903, 911 (5th Cir. 1992) (citing United States v.
Richerson, 833 F.2d 1147 (5th Cir. 1987) and Berger v. United
States, 55 S.Ct. 629 (1935)), cert. denied, 113 S.Ct. 2429 (1993).
A. Variance
The indictment charged two conspiracies lasting from 1987
through the date of the indictment: conspiracy to import marihuana
in violation of 21 U.S.C. § 963, and conspiracy to possess
marihuana with intent to distribute it in violation of 21 U.S.C. §
846. To establish conspiracy the government must prove beyond a
reasonable doubt (1) the existence of an agreement between two or
more persons to violate the narcotics laws, (2) that each alleged
conspirator knew of the conspiracy and intended to join it, and (3)
that each alleged conspirator did participate in the conspiracy.
United States v. Maseratti, 1 F.3d 330, 337 (5th Cir. 1993), cert.
denied, 114 S.Ct. 1096 (1994); United States v. Carter, 953 F.2d
8
1449, 1454 (5th Cir.), cert. denied, 112 S.Ct 2980 (1992). In
determining whether the government proved a single conspiracy as
charged, we examine the following factors: 1) whether there was a
common goal, 2) the nature of the scheme, and 3) whether the
participants in the various dealings overlapped. Jackson, 978 F.2d
at 911. "We must affirm the jury's finding that the government
proved a single conspiracy unless the evidence and all reasonable
inferences, examined in the light most favorable to the government,
would preclude reasonable jurors from finding a single conspiracy
beyond a reasonable doubt." United States v. DeVarona, 872 F.2d
114, 118 (5th Cir. 1989).
Here, the government produced evidence that the sisters used
common sources of supply, the same method of importation, some of
the same drivers, and a common stash house in Houston. Moreover,
Tito, the buyer in Houston, testified that he received loads from
all three sisters: approximately forty loads from the Puigs,
thirty from the Castros, and twenty from De Los Santos. In sum,
the jury was presented with evidence from which it could reasonably
infer that the defendants were involved in a single conspiracy
between 1987 and 1991. Hence, the appellants failed to establish
a fatal variance between indictment and proof.
B. Prejudice
Even if the appellants could establish that some of the proof
at trial varied from the allegations in the indictment, they must
still prove that such a variance prejudiced their substantial
rights. In our cases addressing the prejudice to a defendant
resulting from variance between the allegations in the indictment
9
and some of the proof adduced at trial, our concern is that "the
indictment notifies a defendant adequately to permit him to prepare
his defense, and does not leave the defendant vulnerable to a later
prosecution because of failure to define the offense with
particularity." United States v. Hernandez, 962 F.2d 1152, 1159
(5th Cir. 1992) (citing United States v. Lokey, 945 F.2d 825,
832-33 (5th Cir. 1991), and United States v. Richerson, 833 F.2d
1147, 1155 (5th Cir. 1987)).In those cases where we have considered
an alleged variance between a single-conspiracy indictment and
certain evidence arguably showing multiple conspiracies, "this
concern focuses on the danger of transference of guilt, i.e., the
danger that despite demonstrating his lack of involvement in the
conspiracy described in the indictment, a defendant may be
convicted because of his association with, or conspiracy for other
unrelated purposes with, codefendants who were members of the
charged conspiracy." Hernandez, 962 F.2d at 1159 (citations
omitted).
This concern, however, may be eliminated when the trial court
gives the jury an instruction warning against the transference of
guilt. See United States v. Guerra-Marez, 928 F.2d 665 (5th Cir.)
(noting that a precautionary instruction regarding transference of
guilt "provid[ed] adequate safeguards for the rights of the
individual defendants"), cert. denied, 112 S.Ct. 322 (1991); cf.
Kotteakos v. United States, 66 S.Ct. 1239 (1946) (overturning
convictions where indictment charged one conspiracy, proof
established multiple conspiracies, and judge failed to give
cautionary instruction). Such an instruction "forcefully reminds
10
the jury that it must acquit the defendant if it concludes that he
was not a member of a conspiracy charged against him, even if it
finds that he was a member of an uncharged conspiracy." Hernandez,
962 F.2d at 1159. In the case sub judice, the district court gave
the jury a comprehensive multiple conspiracy instruction. The
court instructed the jury
"that proof of several separate conspiracies is not proof
of a single overall conspiracy charged in the indictment,
unless one of the several conspiracies which is proved is
a single conspiracy which the indictment charges. What
you must do is determine whether the single conspiracy
charged in the indictment exists between two or more
conspirators. If you find that no such conspiracy
existed, then you must acquit the defendant as to that
charge or charges. However, if you are satisfied that
such a conspiracy existed, you must determine who were
the members of that conspiracy.
If you find that a particular defendant is a member
of another conspiracy, not the one charged in the
indictment, then you must acquit the defendant. In other
words, to find a defendant guilty you must find that he
was a member of the conspiracy charged in the indictment
and not some separate conspiracy."
The court's instruction safeguarded the appellants from the danger
that they could be convicted for the overarching conspiracy alleged
in the indictment solely by virtue of their participation in any
one of a number of multiple conspiracies.
We find that there was no material and prejudicial variance
between the indictment and the proof adduced at trial.
II. Money Laundering
Jose Puig, Abigail Puig, Araceli Castro, and Perla De Los
Santos contend that the evidence was insufficient to support their
convictions for money laundering under 18 U.S.C. §
1956(a)(1)(A)(i). In reviewing challenges to sufficiency of the
evidence, this Court views the evidence in the light most favorable
11
to the jury verdict and affirms if a rational trier of fact could
have found that the government proved all essential elements of the
crime beyond a reasonable doubt. See United States v. Ruiz, 987
F.2d 243, 259 (5th Cir.), cert. denied, 114 S.Ct. 163 (1993). All
credibility determinations and reasonable inferences are to be
resolved in favor of the jury's verdict. See id. To secure a
conviction under section 1956(a)(1), the government must prove that
the defendant 1) conducted or attempted to conduct a financial
transaction, 2) which the defendant then knew involved the proceeds
of unlawful activity, 3) with the intent to promote or further
unlawful activity.4 United States v. Ramirez, 954 F.2d 1035, 1039
(5th Cir.), cert. denied, 112 S.Ct. 3010 (1992).
A. Jose Puig and Abigail Puig
The Puigs' conviction on count seventeen (17) under section
1956(a)(1) arises out of a marihuana run made to Florida in May of
1989.5 Valles testified that Jose and Abigail Puig requested that
she accompany Abigail on a trip from Laredo to Florida. On May 22,
1989, Valles and Abigail Puig drove from Laredo to San Antonio,
Texas, where they picked up a load of marihuana. From San Antonio,
4
Section 1956 provides, in relevant part:
"(a)(1) Whoever, knowing that the property involved in
a financial transaction represents the proceeds of some
form of unlawful activity, conducts or attempts to
conduct such a financial transaction which in fact
involves the proceeds of specified unlawful activitySQ
(A)(i) with the intent to promote the carrying on
of specified unlawful activity." 18 U.S.C. §
1956(a)(1).
5
Abigail Puig does not challenge her conviction on count
twelve (12) charging a November 1988 violation of 18 U.S.C. §
1956(a)(1)(B)(i).
12
Valles and Abigail Puig continued on to Okeechobee, Florida. After
arriving in Florida, they rented a hotel room and contacted Jose
Puig. The next day, two buyers, Terry and Lettie Willis, came to
the hotel room and gave Abigail Puig $47,000 in exchange for the
marihuana. After the exchange, Valles and Abigail Puig returned to
Laredo with the money. Valles testified that the last time she saw
the money it was still in the possession of Abigail Puig. There
was no evidence of what, if anything, happened to the money
thereafter.
The Puigs contend that, under these facts, they cannot be
convicted of a violation of section 1956(a)(1)(A)(i) because the
government failed to establish all of the requisite elements of the
offense. Specifically, the Puigs argue that the government was
required to prove that they engaged in a financial transaction
involving the proceeds of an unlawful activity. And, although the
money Abigail Puig received in exchange for the marihuana was the
proceeds of unlawful activity, her mere subsequent transportation
of those proceeds by car does not constitute a "financial
transaction" within the meaning of the statute. We agree.
Section 1956 defines "financial transaction" as "a transaction
which in any way or degree affects interstate or foreign commerce
(i) involving the movement of funds by wire or other means or (ii)
involving one or more monetary instruments . . . ." 18 U.S.C. §
1956(c)(4)(A) (emphasis added). By definition, then, a "financial
transaction" must, at the very least, be a "transaction," i.e., "a
purchase, sale, loan, pledge, gift, transfer, delivery, or other
disposition" or some action involving a financial institution or
13
its facilities.6 18 U.S.C. § 1956(c)(3).
Although it is clear that the transportation of money by car
is not a "purchase, sale, loan, pledge, or gift," whether such
transportation is a "transfer" or "delivery" is less clear.
However, the statute makes plain that for something (not involving
a financial institution or its facilities) to be a transaction, it
must be a "disposition." "Disposition" most commonly means "a
placing elsewhere, a giving over to the care or possession of
another." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, 654 (1961).
Considering the facts adduced at trial, we are persuaded that
there was no showing of any action concerning the sales proceeds
related to a financial institution, and, further, that the
government failed to demonstrate that Abigail Puig effected a
disposition of the proceeds of the sale. Indeed, there is no
evidence that Abigail Puig did anything with the money after she
and Valles returned to Laredo. The only evidence offered in this
regard was the following exchange between the prosecutor and
Valles:
6
The full text of section 1956(c)(3) provides:
"(c) As used in this sectionSQ
* * *
(3) the term 'transaction' includes a purchase, sale,
loan, pledge, gift, transfer, delivery, or other
disposition, and with respect to a financial
institution includes a deposit, withdrawal, transfer
between accounts, exchange of currency, loan, extension
of credit, purchase or sale of any stock, bond,
certificate of deposit, or other monetary instrument,
use of a safe deposit box, or any other payment,
transfer, or delivery by, through, or to a financial
institution, by whatever means effected . . . ." 18
U.S.C. § 1956(c)(3).
14
"MR. MCCORMICK [the prosecutor]: After you got to
Laredo, what happened to the money if you know?
MS. VALLES: She kept the money. I don't know what
happened to it.
MR. MCCORMICK: The last time you saw it, where was it?
MS. VALLES: It was hidden in the car, under the dash of
the car.
MR. MCCORMICK: Did you take any of the money?
MS. VALLES: No, sir.
MR. MCCORMICK: Who was the last person that had control
SQthat you saw, that had control of that car when it had
the money in it?
MS. VALLES: Ab[igail Puig]."
The only permissible inference from the government's proof is that
Abigail was in possession of the proceeds of unlawful activity.
Nowhere is there any evidence that Abigail effected a disposition
of those proceeds; i.e., that she "g[ave] over to the care or
possession of another" the money she had received in exchange for
the marihuana. Without such proof, her mere transportation of the
proceeds of unlawful activity is not a transaction within the
statute. For this reason, the government failed to establish the
facts necessary to find that Abigail Puig engaged in a financial
transaction within the meaning of section 1956. As the only basis
for Jose Puig's conviction of this charge was that he aided and
abetted Abigail's asserted violation, his count seventeen (17)
section 1956 conviction is infirm for the same reason.
Accordingly, we reverse the Puigs' convictions under count
seventeen (17) for money laundering.
Our conclusion is consistent with that of the Sixth Circuit in
15
United States v. Samour, 9 F.3d 531 (6th Cir. 1993). In a case
factually analogous to the instant case, the Samour court held that
"merely transporting [drug money concealed in automobile] does not
meet the definition of 'financial transaction' for purposes of the
money laundering statute." Id. at 536.
Our conclusion is also in accord with our reasoning in United
States v. Ramirez, 954 F.2d 1035 (5th Cir. 1992), in which we
concluded that the government's proof of the possession of drug
proceeds was insufficient to establish a financial transaction
under section 1956. In Ramirez, the defendant was convicted of
money laundering after DEA agents searched a house used by the drug
trafficking ring of which the defendant was a part and discovered
a shoe box containing $132,980 in cash. We concluded that although
"the jury could infer that the money found [in the house]
represented proceeds from illegal activity," the evidence did not
"allow the inference that Sanchez transferred, delivered, moved, or
otherwise disposed of the money as required by statute." Id. at
1039-40.
The government contends that "the delivery and transfer of
cash from [the Willises] to Abigail in Florida, and her subsequent
movement of these cash proceeds interstate, constitutes a financial
transaction." However, because the money did not become proceeds
of unlawful activity until the sale of the marihuana was completed,
what the government describes as one transaction is actually two
separate actions: the first, the sale by the Puigs of the
marihuana to the Willises and their payment to Abigail Puig for
same, is a transaction (and an unlawful one) but is not shown to
16
have been one which involved the proceeds of unlawful activity; the
second, Abigail Puig's transportation of the money from Florida to
Laredo, involves the proceeds of unlawful activity but is not a
transaction.
The government also contends that because the facts of the
case sub judice resemble those of United States v. Gallo, 927 F.2d
815, 822 (5th Cir. 1991), and United States v. Hamilton, 931 F.2d
1046 (5th Cir. 1991), we must follow the results of those cases and
affirm the Puigs' conviction. In Gallo, the defendant (Gallo) was
convicted of violating section 1956 following his arrest while
transporting a box containing approximately $300,000 cash in his
car on an interstate highway. Evidence offered by the government
suggested that the defendant had accepted delivery of the cash from
Cruz, a suspected drug trafficker, and that Cruz had been given the
money in exchange for twenty-five kilograms of cocaine. Based on
these facts, we concluded that the defendant's "transportation of
the proceeds of drug trafficking affected interstate commerce, and
that there is sufficient evidence to sustain his money laundering
conviction." Gallo, 927 F.2d at 823. The question whether the
evidence was sufficient to establish the "transaction" requirement
of the statute, however, was not addressed by the Gallo court.
In Hamilton, the defendant was convicted of money laundering
for mailing approximately $18,000 in drug activity proceeds to
Perez, a drug dealer in California. On appeal we concluded,
without discussion, that "the terms of the statute prohibit mailing
the proceeds of drug sales." Hamilton, 931 F.2d at 1051.
Accordingly, we affirmed the conviction.
17
Although the analysis of the transaction issue is minimal in
Hamilton and nonexistent in Gallo, unlike the case sub judice, both
Hamilton and Gallo clearly involve a "disposition" of the proceeds
of unlawful activity. In Gallo, proceeds of a drug sale were
delivered from Cruz to the defendant; in Hamilton, the defendant
attempted to deliver the proceeds of drug activity to Perez. We
conclude that Gallo and Hamilton are not controlling in the present
context.
B. Perla De Los Santos
Perla De Los Santos was convicted under section 1956(a)(1) for
purchasing an automobile with the proceeds of drug activity. She
appeals this conviction, claiming that the evidence was
insufficient to prove that the money used to purchase the
automobile was the proceeds of unlawful activity.
The evidence showed that Perla De Los Santos participated in
the conspiracy alleged in the indictment and that, in furtherance
of the conspiracy, she purchased a 1984 Oldsmobile Cutlass Sierra
for $3,180 on August 29, 1988. On November 28, 1988, the vehicle
was seized by the DEA when the driver attempted to cross the border
with a load of marihuana. Additionally, the government offered
evidence that for the years 1986 through 1990, Perla De Los Santos
and her husband, Emerico De Los Santos, filed only one income tax
return, that for 1990, filed April 15, 1991, claiming only $959.31
in income.
Although "proof of [a defendant's] limited income, by itself,
is insufficient to support" a conviction under section 1956, United
States v. Munoz-Romo, 947 F.2d 170, 178 (5th Cir. 1991), vacated on
18
other grounds, 113 S.Ct. 30 (1992), "[e]vidence of a differential
between legitimate income and cash outflow is sufficient for a
money-laundering conviction, even when the defendant claims income
from additional sources." United States v. Webster, 960 F.2d 1301,
1308 (5th Cir.), cert. denied, 113 S.Ct. 355 (1992) (citing United
States v. Jackson, 935 F.2d 832, 839-42 (7th Cir. 1991)).
Moreover, "the jury is entitled to consider such proof in
combination with additional evidence, such as 'evidence of [a]
defendant's drug trafficking.'" Munoz-Romo, 947 F.2d at 178
(quoting United States v. Blackman, 897 F.2d 309, 317 (8th Cir.
1990)). Viewing the evidence in the light most favorable to the
jury verdict, we will affirm Perla De Los Santos' conviction if a
rational trier of fact could have reasonably concluded that the car
was purchased with drug proceeds. See Ruiz, supra, 987 F.2d at
259.
Here, the jury was presented with evidence from which they
could infer that Perla De Los Santos had minimal legitimate income
in the years (1986 through 1990) surrounding her 1988 purchase of
the vehicle for $3,180 cash. The government also presented
substantial evidence that De Los Santos was involved in a
continuing, self-funded drug organization, the operation of which
began well before and continued after August 29, 1988. Considering
the "differential between legitimate income and cash outflow" in
connection with the ample evidence that De Los Santos was engaged
as a principal in on-going, large scale drug trafficking activities
at and well before the time of the cash purchase of the automobile
for use in the conspiracy, we conclude that a rational trier of
19
fact could reasonably infer that the funds used to purchased the
vehicle were the proceeds of unlawful activity. We therefore
affirm Perla De Los Santos' conviction under section 1956.
C. Araceli Castro
Araceli Castro was convicted of money laundering for payments
made to Gloria Valles in June and August of 1988. At trial, Valles
testified that she was to be paid $3,000 to provide a driver to
Juan Castro and Araceli Castro for a drug run between Monterrey and
Laredo on June 21, 1988. After the run was completed, Valles went
to the Castro residence, where she waited with Araceli Castro while
Juan Castro left to get her payment. Shortly thereafter, Juan
Castro called the Castro residence from the Puig residence and put
Abigail Puig on the line to speak with Valles. Abigail Puig told
Valles that she did not have the entire, agreed-upon payment, and
asked Valles if she would accept half of the money at that time and
the balance later. Valles agreed to accept partial payment.
Fifteen minutes later, Juan Castro returned to the Castro residence
and, in the presence of Araceli Castro, gave Valles $1,500 cash
with the understanding that the money came from Abigail Puig.
In August of 1988, when Valles requested that Abigail Puig pay
her the balance of the $3,000, Abigail Puig told Valles that she
and Araceli Castro had agreed to split the expenses for the June
21, 1988, drug run. After several requests for the rest of the
money, Valles was instructed by Araceli Castro to come to the
Castro residence for payment. When Valles arrived, however,
Araceli Castro was not home, but her maid gave Valles $1,000 cash.
Later in the same month, Araceli Castro called Valles again and
20
told her to come to her house to pick up a payment, and again the
Castros' maid gave Valles $1,000 cash.
In her appeal, Araceli Castro argues nothing more specific
than that the government did not offer evidence that "she did any
particular thing with proceeds from drug trafficking." Giving her
the benefit of the doubt, we construe her argument on appeal to be
that the government failed to prove that the cash payments made to
Valles were the proceeds of unlawful activity. Thus, we must
determine whether there was enough evidence presented to the jury
to allow for the inference that the source of the payments made to
Valles was profits from the marihuana trade.
In addition to Valles' testimony regarding these payments, the
government presented evidence that for the years 1986 through 1990,
neither Abigail Puig nor the Castros filed income tax returns.
Moreover, the government presented substantial evidence of Araceli
Castro's and Abigail Puig's involvement as principals in the on-
going, large scale conspiracy well before and after the payments
made in June and August of 1988. Thus, as was the case with Perla
De Los Santos, a rational trier of fact could infer from Abigail
Puig's and Araceli Castro's involvement in the conspiracy, coupled
with the differential between legitimate income and cash outflow,
that the cash payments made to Valles for her provision of a driver
for the conspiracy were the proceeds of unlawful activities.
Accordingly, we affirm Araceli Castro's conviction for money
laundering under section 1956.
Araceli Castro also complains that the district court erred in
failing to initially define "financial transaction" in its
21
instructions to the jury regarding the money laundering count. In
the initial charge, the court gave the jury the statutory
definition of "transaction," stating that the term includes
"a purchase, sale, loan, pledge, gift, transfer, delivery
or other disposition and with respect to a financial
institution includes a deposit, withdrawal, transfer
between accounts, exchange of currency loans, extension
of credit, purchase of sale of stock, bonds, certificate
of deposit or other monetary instrument or any other
payment, transfer or delivery by, through or to a
financial institution . . . ."
The accuracy of this instruction is not challenged. While the jury
was deliberating, the government submitted a supplemental
instruction defining "financial transaction" using the language of
section 1956(c)(4)(A). Araceli Castro's counsel joined in the
objection made by counsel for Jose Puig, who argued that the giving
of the supplemental instruction would confuse the jury's
deliberations and undermine his chance for reversal on appeal. At
the request of defense counsel, the district court denied the
government's supplemental instruction.
Because Araceli Castro did not request the instruction, and
indeed prevented the court from curing any inadequacy in the
initial charge, she failed to preserve the issue for appeal. Her
objection to the instruction's inclusion bars her present
contention under the doctrine of invited error. United States v.
Baytank (Houston), Inc., 934 F.2d 599, 606-607 (5th Cir. 1991).
Our review of this claim, therefore, is limited to plain error at
the most. Plain error is error so obvious and substantial that
failure to notice it would affect the fairness, integrity, or
public reputation of the judicial proceedings and would result in
22
manifest injustice. United States v. Carreon, 11 F.3d 1225, 1240
(5th Cir. 1994). Even without the charge's inclusion of the
specific language of section 1956(c)(4)(A), we conclude that the
instructions, taken as a whole, were at least minimally adequate to
reflect the law. In any event, in the present context the
requested instruction's absence did not so seriously impair Araceli
Castro's ability to effectively present any defense as to amount to
plain error. Hence, no reversible error is shown.
III. Sentencing Issues
Jose Puig, Perla De Los Santos, and Araceli Castro appeal the
district court's finding of the quantity of marihuana attributable
to each of them respectively under the Sentencing Guidelines (the
Guidelines). Under section 2D1.1(a)(3) of the Guidelines, the
offense level of a defendant convicted of a drug trafficking
offense is determined by the quantity of drugs involved. This
quantity includes both drugs with which the defendant was directly
involved, and drugs that can be attributed to the defendant in a
conspiracy as part of his "relevant conduct" under section
1B1.3(a)(1) of the Guidelines. The commentary to section
1B1.3(a)(1) defines relevant conduct for conspiratorial activity as
the "conduct of others in furtherance of the execution of the
jointly-undertaken criminal activity that was reasonably
foreseeable by the defendant." U.S.S.G. § 1B1.3(a)(1), comment.
(n.1) (Nov. 1991).7
7
The version of the Guidelines in effect from November 1,
1991, through October 31, 1992, applies to the appellants because
they were sentenced on June 22, 1992. United States v. Gross,
979 F.2d 1048, 1050-51 (5th Cir. 1992) (citing 18 U.S.C. s
23
For a particular defendant, however, "reasonable
foreseeability does not follow automatically from proof that [the
defendant] was a member of the conspiracy." United States v. Puma,
937 F.2d 151, 160 (5th Cir. 1991), cert. denied, 112 S.Ct. 1165
(1992). "The reasonable foreseeability required [under the
Guidelines] requires a finding separate from a finding that the
defendant was a conspirator." Id. (citing United States v.
Warters, 885 F.2d 1266, 1273 (5th Cir. 1989)). Thus, for a
sentencing court to attribute to a defendant a certain quantity of
drugs, the court must make two separate findings: (1) the quantity
of drugs in the entire conspiracy, and (2) the amount which each
defendant knew or should have known was involved in the conspiracy.
Id. at 159-60.
The sentencing court may make an approximation of the amount
of marihuana reasonably foreseeable to each defendant, and an
individual dealing in large quantities of controlled substances is
presumed to recognize that the drug organization with which he
deals extends beyond his "universe of involvement." United States
v. Thomas, 963 F.2d 63, 65 (5th Cir. 1992). When calculating the
amount foreseeable to a defendant, a court may consider the
defendant's relationship with co-conspirators and his role in the
conspiracy. United States v. Devine, 934 F.2d 1325, 1338 (5th Cir.
3553(a)(4)). In the 1991 Guidelines, the above-quoted language
was in the commentary to section 1B1.3(a)(1). In the 1992
amendments to the Guidelines, this language was incorporated into
the body of section 1B1.3, which now reads in relevant part: "in
the case of a jointly undertaken criminal activity [the defendant
may be held accountable for], all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken
criminal activity." U.S.S.G. § 1B1.3(a)(1)(B) (Nov. 1993).
24
1991), cert. denied, 112 S.Ct. 954 (1992). In arriving at this
estimate the court may consider any information that has
"'sufficient indicia of reliability to support its probable
accuracy.'" Thomas, 963 F.2d at 64-65 (citations omitted).
We will uphold the factual findings made by a district court
in its determination of a defendant's relevant conduct for
sentencing purposes unless that figure is clearly erroneous.
United States v. Maseratti, 1 F.3d 330, 340 (5th Cir. 1993);
United States v. Buckhalter, 986 F.2d 875, 879 (5th Cir.), cert.
denied, 114 S.Ct. 203 (1993). A factual finding is not clearly
erroneous if it is plausible in light of the record read as a
whole. United States v. Sanders, 942 F.2d 894, 897 (5th Cir.
1991).
A. Araceli Castro
Araceli Castro was sentenced to a term of imprisonment of 292
months. Finding that she participated in an offense involving at
least 3,000 kilograms but less than 10,000 kilograms of marihuana,
the court calculated her base offense level at 34. Araceli appeals
her sentence on two grounds. First, she contends that the trial
court erred by accepting the assertions set forth in the PSR
regarding the quantity of marihuana attributable to her. This
argument, however, is not supported by the facts.
In the PSR for Araceli Castro, the probation department
concluded, inter alia, that a minimum of 4,046 kilograms of
marihuana was attributable to (and reasonably foreseeable by) her.
Prior to sentencing, she filed objections to the PSR, contending
that the amount attributed to her was based on unreliable
25
testimony. The district court overruled these objections and
adopted the factual statements contained in the PSR. At the
sentencing hearing, in response to an objection by Castro's
counsel, the court stated explicitly that it had not merely
accepted the assertions of the probation officer; the court
explained that it based its decision to overrule the objections and
adopt the PSR on "the testimony [the court] heard from the witness
stand." Hence, Castro's contention that the district court relied
solely on the assertions of the probation department is without
merit.
Next, Castro argues that the district court erred by failing
to make a specific finding regarding the amount of marihuana
foreseeable to her. On review of a sentence imposed pursuant to
section 1B1.3 of the Guidelines, we require the sentencing court to
make an express finding that the conspiratorial activity at issue
was reasonably foreseeable. Puma, 937 F.2d at 160; Warters, 885
F.2d at 1271-73. Moreover, Rule 32 of the Federal Rules of
Criminal Procedure "requires the court either to make specific
findings as to all contested facts contained in the PSR that the
court finds relevant in sentencing, or determine that those facts
will not be considered in sentencing." United States v. Hooten,
942 F.2d 878, 881 (5th Cir. 1991); FED.R.CRIM.P. 32(c)(3)(D). Rule
32 does not, however, "require a catechismic regurgitation of each
fact determined and each fact rejected," United States v. Sherbak,
950 F.2d 1095, 1099 (5th Cir. 1992); "instead, we have allowed the
district court to make implicit findings by adopting the PSR. This
adoption will operate to satisfy the mandates of Rule 32 when the
26
findings in the PSR are so clear that the reviewing court is not
left to 'second-guess' the basis for the sentencing decision."
Carreon, 11 F.3d at 1230-31.
In Araceli Castro's case, the district court expressly adopted
the facts set forth in the PSR. Additionally, after Castro's
counsel questioned the factual basis for the PSR's calculation of
the amount of marihuana attributable to her, the court explained
that its decision to adopt the PSR's determination was based on the
court's assessment of the testimony presented by the government.
In so doing, the court resolved the sole factual issue from the PSR
which was contested by Castro, satisfying the requirements of Rule
32.
B. Perla De Los Santos
Perla De Los Santos was sentenced to a total of 240 months'
imprisonment. Finding that she participated in an offense
involving at least 3,000 kilograms but less than 10,000 kilograms
of marihuana, the district court set her base offense level at 34,
with a 4-point upward adjustment for being an organizer/leader in
a criminal activity involving 5 or more participants. She appeals
both the determination of her base offense level and the adjustment
for her role in the offense.
The PSR for Perla De Los Santos concluded that a minimum of
4,046 kilograms of marihuana was attributable to her. De Los
Santos objected to this determination, contending that the trial
testimony supported a finding that only 400-700 kilograms of
marihuana should be attributed to her. Other than simply making
this assertion, however, she presented nothing to rebut the PSR's
27
findings.
Although a district court must resolve disputed issues of fact
if it intends to use those facts as a basis for sentencing, see
FED.R.CRIM.P. 32(c)(3)(D), the court can adopt facts contained in a
PSR without inquiry, if those facts had an adequate evidentiary
basis and the defendant does not present rebuttal evidence. United
States v. Rodriguez, 897 F.2d 1324, 1328 (5th Cir.), cert. denied,
111 S.Ct. 158 (1990). Furthermore, the defendant has the burden of
showing that information that the district court relied on in
sentencing is materially untrue. Id.
Here, the district court adopted the PSR, which made the
explicit finding De Los Santos could reasonably foresee the entire
amount of marihuana trafficked by the conspiracy. The court
underscored this finding, stating that all five of the defendants
could have reasonably foreseen the actions of the members of the
conspiracy done in furtherance of it. This conclusion is
adequately supported by the record and is reasonable given the
nature of the conspiracy, which was a family organization, run by
Perla De Los Santos and her sisters, each of whom had an intimate
understanding of the operation.
Perla De Los Santos next contends that the district court
erred in its conclusion that she was an organizer or leader of the
conspiracy. As best we can understand, her contention that she is
less culpable is based on her acquittal on the charge of
participating in a continuing criminal enterprise.
In determining whether a particular defendant is an organizer
or leader, a court should consider such factors as
28
"the exercise of decision making authority, the nature of
participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the
nature and scope of the illegal activity, and the degree
of control and authority exercised over others."
U.S.S.G. § 3B1.1, comment. (n.3) (Nov. 1991).
Additionally, the commentary to section 3B1.1 notes that there can
"be more than one person who qualifies as a leader or organizer of
a criminal association or conspiracy." Id. We review a district
court's finding that a defendant was an organizer or leader under
the clearly erroneous standard. United States v. Watson, 988 F.2d
544, 550 (5th Cir. 1993), cert. denied, 114 S.Ct. 698 (1994).
Moreover, the district court need only determine factual findings
at sentencing by a preponderance of the evidence. United States v.
Angulo, 927 F.2d 202, 204 (5th Cir. 1991).
Here, there is ample evidentiary support for the finding that
Perla De Los Santos was an organizer of the conspiracy. Along with
her two sisters, Perla De Los Santos was a founding member of this
conspiracy. After Alejandro Acosta was arrested, Perla De Los
Santos and her sisters took over his position as overseer of
distribution. Additionally, there is evidence in the record that
Perla De Los Santos recruited participants, including Valles, into
the conspiracy; that she directed the actions of drivers and other
participants; and that she accepted some of the payments for
marihuana transactions. Thus, the district court's finding that
Perla De Los Santos was an organizer or leader is adequately
supported. See United States v. Peters, 978 F.2d 166, 170 (5th
Cir. 1992); United States v. Liu, 960 F.2d 449, 456 (5th Cir.),
29
cert. denied, 113 S.Ct. 418 (1992).
C. Jose Puig
Jose Puig was sentenced to a total of 285 months'
imprisonment. The district court set his base offense level at 34,
the level specified in section 2D1.1(a)(3) for participation in an
offense involving at least 3,000 kilograms but less than 10,000
kilograms of marihuana. Jose Puig appeals his sentence, contending
that the district court erred by attributing to him the entire
amount of marihuana trafficked by the conspiracy. He argues that
because he was incarcerated for a substantial portion of the life
of the conspiracy, he should be held accountable for less than the
4,086 kilograms attributed to him by the district court. Jose Puig
also argues that the district court failed to make specific
findings as to whether the conduct of his co-conspirators was
reasonably foreseeable to him.
When the conspiracy was formed, in December of 1987, Jose Puig
was incarcerated; when the conspiracy ended, in August of 1991,
Puig was also incarcerated. He was released from custody on
October 14, 1988, arrested again on June 15, 1990, and remained
incarcerated throughout the remainder of the conspiracy. After his
release in October of 1988, Jose and Abigail Puig married and Jose
became an integral part of the operation of the conspiracy. Jose
and Abigail Puig extended the distribution area of the conspiracy,
importing marihuana from Mexico into Georgia and Florida. Jose
Puig's direct and overt involvement in the conspiracy lasted until
June 15, 1990, when he was arrested in Houston while making a
delivery of 55 pounds of marihuana. At sentencing, the government
30
conceded that this delivery was part of the instant conspiracy.
Jose Puig's PSR concluded that the entire amount of marihuana
involved in the conspiracySQi.e., a minimum of 4,086 kilogramsSQwas
attributable to him. Jose Puig filed objections to the PSR, which
included, inter alia, an objection to attributing to him any amount
of marihuana involved in the conspiracy before he was released from
prison. At the sentencing hearing, Jose Puig's counsel again
asserted the objection that Puig could not reasonably foresee
marihuana trafficked before he joined the conspiracy. In response,
the district court stated that "the greater portion of this
conspiracy and conspiratorial conduct occurred after [Jose Puig]
was released [from jail on October 14, 1988]." Later, the court
stated:
"based on the evidence as I've heard it, the majority of
the marijuana, if thatSQif that is the way I need to
address it. I'm not sure that there was significant
testimony of loads of marijuana before 1988 that would
concern me in sentencing him fair and equitably because
the majority of the people who testified in this case as
to specific loads that they hauled occurred in 1988 up
through 1990 or there abouts . . . ."
The plain meaning of "majority" and "greater portion" is "a number
greater than one half of a total." WEBSTER'S THIRD NEW INTERNATIONAL
DICTIONARY, 1363 (1961). As the sentencing court found that the
instant conspiracy involved approximately 4,000 kilograms of
marihuana, it is impossible for this Court to determine whether the
sentencing court found anything more than that the quantity of
marihuana foreseeable to Jose Puig was "a number greater than 2,000
kilograms." Because the Guideline range at which Jose Puig was
sentenced is triggered by a relevant conduct determination of 3,000
31
kilograms, we must remand to allow the district court to clarify
its finding of the amount of marihuana attributable to Jose Puig.
Clearly, any amount of marihuana which was trafficked before
October of 1988 cannot be attributed to Jose Puig because
"'relevant conduct' as defined in section 1B1.3(a)(1)(B) is
prospective only, and consequently cannot include conduct occurring
before a defendant joins a conspiracy." Carreon, 11 F.3d at 1235-
36. However, Jose Puig also contends that the marihuana
trafficking activities of his co-conspirators which occurred after
his June 15, 1990, arrest should not be attributed to him either.
If we interpret Jose Puig's contention to be that by virtue of
his 1990 arrest and incarceration he terminated his involvement in
the conspiracy, his argument fails. Ordinarily, a defendant is
presumed to continue involvement in a conspiracy unless that
defendant makes a "'substantial' affirmative showing of withdrawal,
abandonment, or defeat of the conspiratorial purpose." United
States v. Branch, 850 F.2d 1080, 1082 (5th Cir. 1988) (citation
omitted), cert. denied, 109 S.Ct. 816 (1989). Indeed, "[a] member
of a conspiracy continues to be responsible for acts committed by
coconspirators even after the former's arrest unless he has
withdrawn from the conspiracy." United States v. Killian, 639 F.2d
206, 209 (5th Cir.) (citations omitted), cert. denied, 101 S.Ct.
3014 (1981). To withdraw from a conspiracy, a defendant bears the
burden of demonstrating that he has committed "[a]ffirmative acts
inconsistent with the object of the conspiracy [that are]
communicated in a manner reasonably calculated to reach
conspirators." United States v. U.S. Gypsum Co., 98 S.Ct. 2864,
32
2887 (1978); Killian, 639 F.2d at 209. Because a defendant's
incarceration is not an affirmative act on the part of a defendant,
it cannot, by itself, constitute withdrawal or abandonment. See
Branch, 850 F.2d at 1083; Killian, 639 F.2d at 209.
Although Jose Puig has failed to demonstrate that he withdrew
from the instant conspiracy, his incarceration may still have had
some effect on the foreseeability of the acts of his co-
conspirators occurring after his June 15, 1990, arrest. The
reasonable foreseeability required of section 2D1.4 requires a
finding separate from a finding that the defendant was part of the
conspiracy. United States v Puma, 937 F.2d 151, 160 (5th Cir.
1991); see also U.S.S.G. § 1B1.3, comment. (n. 1)(Nov. 1993) ("the
focus is on the specific acts and omissions for which the defendant
is to be held accountable in determining the applicable guideline
range, rather than on whether the defendant is criminally liable
for an offense as a principal, accomplice, or conspirator").
Hence, upon remand, the district court should consider specifically
whether (and, if so, to what extent) Jose Puig's incarceration
limited the foreseeability to him of any of the marihuana
transactions that took place after his June 15, 1990, arrest. The
court should consider this foreseeability in light of the nature of
the conspiracy, the nature of Jose Puig's involvement in the
organization prior to his arrest, and the relationship or nexus
between the conspiracy's transactions occurring before his arrest
of which he is charged with knowledge and those which took place
after his arrest. The temporal proximity of the arrest to the
termination of the conspiracy may also be important; the longer the
33
time between incarceration and termination, the more attenuated the
connection between the defendant and the conspiracy.
Thus the district court on remand will need to expressly find
the relevant amount of marihuana involved in the conspiracy after
October 1988 and the portion thereof reasonably foreseeable to Jose
Puig taking into account his June 1990 arrest.
IV. Enhancement For Prior Conviction
Jose Puig, Abigail Puig, and Juan Castro contend that the
district court erroneously enhanced their sentences for violation
of 21 U.S.C. § 841 (possession of more than 1,000 kilograms of
marihuana with the intent to distribute) and 21 U.S.C. § 960
(importation of more than 1,000 kilograms of marihuana). The
appellants claim that the court erred in concluding that they were
subject to a mandatory minimum sentence of 20 years for committing
a violation of the substantive provisions of sections 841 and 960,
involving 1,000 kilograms or more of marihuana, after one or more
prior felony drug convictions had become final. Specifically, the
appellants contend that the court was in error because the prior
convictions relied upon for enhancement by the district court were
not final at the time the appellants committed the substantive
offenses.8
With regard to Juan Castro and Abigail Puig, their argument
fails because the district court did not rely on the statutory
enhancement provisions in fixing their sentences; rather, the court
8
All three also contend that the government failed to timely
file a notice to enhance their sentences for prior convictions.
However, because we find that the district court did not
statutorily enhance the sentences, we need not reach this issue.
34
sentenced the appellants according to the range established by the
Guidelines. Juan Castro's offense level was set at 38, with a
criminal history of I, resulting in a Guideline range of 235-293
months. The district court sentenced Castro to a 285-month term of
incarceration. Abigail Puig's offense level was 38, with a
criminal history of II, resulting in a Guideline range of 262-327
months. The district court sentenced her to a 292-month term of
incarceration. The sentences imposed on both Juan Castro and
Abigail Puig were well within the Guideline range, and were
authorized by the "unenhanced" penalty provisions of sections 841
and 960, which provide for a term of imprisonment of anywhere from
10 years to life. See 21 U.S.C. § 841(b)(1)(A); 21 U.S.C. §
960(b)(1)(G). Hence, the district court did not use the statutory
enhancement provisions to establish the sentences imposed on Juan
Castro and Abigail Puig.9
The district court also sentenced Jose Puig to a term of
imprisonment that was within the Guideline range. Jose Puig's
offense level was 37, with a criminal history of IV, resulting in
a Guideline range of 292-365 months. As with Juan Castro and
Abigail Puig, the district court sentenced Jose Puig to a term of
imprisonment within the Guideline range: 292 months. However,
9
Abigail Puig also contends that enhancement of her sentence
based on the state conviction violates the Fifth Amendment
proscription against double jeopardy. Because we find that the
district court did not enhance her sentence, we need not address
this argument. We reject her implied contention (assuming,
arguendo only, that it has been adequately raised and preserved)
that double jeopardy prevents conduct for which she was convicted
under state law from being part of her continuing criminal
enterprise offense under 21 U.S.C. § 848(c). See, e.g., United
States v. Harrison, 918 F.2d 469, 474 (5th Cir. 1990).
35
because Jose Puig's offense level may be reduced on remand, we
discuss briefly his argument regarding enhancement. We note that,
upon remand, the district court could conceivably calculate for
Jose Puig a base offense level as low as 32, that applicable to
conduct involving at least 1,000 kilograms but less than 3,000
kilograms of marihuana. Adding 3 offense levels for the
uncontested finding that Puig was a supervisor or manager within
the conspiracy would produce a total offense level as low as 35,
resulting in a Guideline range of 235-293 months. Given the five-
month disparity between the bottom of this possible Guideline range
and the twenty-year mandatory minimum sentence for violating the
substantive provisions of sections 841 and 960 after a prior felony
drug conviction, we provide the following discussion for the
benefit of the sentencing court.
The only conviction available to enhance Jose Puig's sentence
is his July 16, 1990, conviction for possession of marihuana.10 As
set forth above, on June 15, 1990, Jose Puig was arrested when
Texas police discovered fifty-five pounds of marihuana concealed in
the car he was driving, and on July 16 he pleaded guilty in state
10
The only convictions the court may rely upon for enhancement
are those enumerated in the government's "Information of Prior
Conviction," filed pursuant to 21 U.S.C. § 851. Section 851
provides in relevant part:
"No person who stands convicted of an offense . . .
shall be sentenced to increased punishment by reason of
one or more prior convictions, unless before trial . .
. the United States attorney files an information with
the court (and serves a copy of such information on the
person or counsel for the person) stating in writing
the previous convictions to be relied upon." 21 U.S.C.
§ 851(a)(1).
36
court to the charge of possession of more than five but less than
fifty pounds of marihuana, a second degree felony, and was
sentenced to fifteen years' imprisonment. Jose Puig was
incarcerated at all times from June 15, 1990, until his conviction
in the case sub judice.
For a sentencing court to enhance a defendant's sentence under
section 841, the defendant must "commit [] such a violation"
(involving the possession of more than 1,000 kilograms of marihuana
with the intent to distribute it) "after a prior conviction for a
felony drug offense has become final." 21 U.S.C. § 841(b)(1)(A)
(emphasis added).11 Similarly, section 960 requires enhancement for
one who "commits such a violation" (involving the importation of
more than 1,000 kilograms of marihuana) "after one or more prior
[felony drug] convictions . . . have become final." 21 U.S.C. §
960(b)(1)(G).12 A conviction becomes final when it is no longer
11
The enhancement provision of section 841 provides that, when
a person is convicted of knowingly or intentionally possessing
with the intent to distribute 1,000 kilograms or more of
marihuana,
"such person shall be sentenced to a term of
imprisonment which may not be less than 10 years or
more than life . . . . If any person commits such a
violation after a prior conviction for a felony drug
offense has become final, such person shall be
sentenced to a term of imprisonment which may not be
less than 20 years and not more than life imprisonment
. . . ." 21 U.S.C. § 841(b)(1)(A).
12
The enhancement provision of section 960 is similar to that
of section 841. Section 960(b)(1) provides that when a person is
convicted of knowingly or intentionally importing 1,000 kilograms
or more of marihuana
"the person committing such violation shall be
sentenced to a term of imprisonment of not less than 10
years and not more than life . . . . If any person
37
subject to examination on direct appeal. See United States v.
Morales, 854 F.2d 65 (5th Cir. 1988).
Jose Puig contends that because he was incarcerated from the
time of his June 15, 1990, arrest onward, and was thus unable to
commit an offense after his July 16, 1990, Texas conviction became
final, this state conviction may not be used to enhance his
sentence. The government argues that because Puig was part of a
conspiracy which continued after his July 16, 1990, Texas
conviction became final, and because he failed to affirmatively
withdraw from the conspiracy, Jose Puig continued to violate the
provisions of sections 841 and 960 while incarcerated pursuant to
his July 16, 1990, conviction. While we need not specifically
decide this issue, we note that the purpose of the recidivist
provisions of these statutes is the deterrence of future criminal
conduct and that it seems doubtful any deterrent purpose would be
served by enhancing Jose Puig's sentence without evidence that he
engaged in some conduct in furtherance of the conspiracy while
incarcerated after his state conviction became final.13 Cf. United
commits such a violation after one or more prior
convictions for an offense punishable under this
subsection, or for a felony under any other provision
of this subchapter or subchapter I of this chapter or
other law of a State, the United States, or a foreign
country relating to narcotic drugs, marihuana, or
depressant or stimulant substances, have become final,
such person shall be sentenced to a term of
imprisonment of not less than 20 years and not more
than life imprisonment . . . ." 21 U.S.C. 960(b)(1).
13
At the sentencing hearing, the government did not tender any
evidence of Puig's post-incarceration conduct, although it
asserted that:
"We have evidence we're prepared to go forward with to
38
States v. Rosenthal, 793 F.2d 1214, 1244 (11th Cir. 1986) (holding
that defendant's incarceration did not constitute withdrawal when
evidence showed that he was actively engaged in drug trafficking
operation while in prison), cert. denied, 107 S.Ct. 1377 (1987).
V. Employment of a Minor to Assist in Drug Trafficking
Juan Castro appeals his conviction under 21 U.S.C. §
861(a)(1), which makes it an offense for any person who is "at
least eighteen years of age to knowingly and intentionally . . .
employ . . . a person under eighteen years of age to violate any
provision of" the Controlled Substances Act. Juan Castro was
convicted for hiring Irma Gonzalez to transport and import into the
United States sixty-six pounds of marihuana. Juan Castro contends
that the government failed to prove (1) that he was over eighteen
years of age, and (2) that Irma Gonzalez was under eighteen years
of age.
Viewing the evidence in the light most favorable to the
verdict, Castro's contention is without merit. Gonzalez was
arrested while transporting a load of marihuana for Castro in
November of 1988. The government introduced, without objection,
the testimony of Border Patrol Agent Mario Rebolledo and the
the effect that after [he] . . . pled guilty to [the]
state offense and was transferred to the Texas
Department of Corrections that Jose Antonio Puig-
Infante continued actively in the conspiracy and did a
number of acts which indicated that he had not
withdrawn from the conspiracy even after his arrest."
Although on remand the government will have an opportunity to
substantiate these unsworn assertions of its counsel, without
some substantiation they should not be considered by the district
court in making its factual findings. See United States v.
Alfaro, 919 F.2d 962, 966 (5th Cir. 1990).
39
testimony of Officer Alberto Juarez of the Webb County Sheriff's
Department that Gonzalez was seventeen years old at the time of her
arrest. Moreover, Valles testified that she thought Gonzalez was
sixteen years old at the time she was driving for Juan Castro.
With regard to Juan Castro's age, the government introduced into
evidence an Internal Revenue Service form which listed Juan
Castro's birthdate as September 14, 1955. Given this undisputed
evidence, a rational jury could have easily concluded that Irma was
under, and Juan Castro over, eighteen years of age.
VI. Importation of Marihuana
Juan Castro also challenges his conviction for aiding and
abetting the importation of 99.8 kilograms of marihuana under 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2. To prove an importation
offense, "the government need only prove that the defendant
knowingly played a role in transporting contraband from a foreign
country into the United States." United States v. Gibson, 963 F.2d
708, 710 (5th Cir. 1992) (multiple citations omitted). To
establish that Juan Castro aided and abetted the importation, the
government must show that he "'willfully associated himself in some
way with the criminal venture and willfully participated in it as
he would in something he wished to bring about.'" United States v.
Stanley, 765 F.2d 1224, 1242 (5th Cir. 1985) (quoting United States
v. Phillips, 664 F.2d 971, 1010 (5th Cir. 1981)).
Juan Castro's conviction arises out of the December 10, 1988,
seizure of a marihuana load imported into the United States by
Bruce Coggins, a driver for the organization and a confidential
informant for the DEA. Coggins testified that while meeting with
40
Juan Castro at a restaurant in Cielo De Flores, Mexico, Juan Castro
instructed him that the load was not ready but that he should
return at a later date to pick up the marihuana. A few days later,
on December 9, 1988, Coggins returned to the restaurant in Cielo De
Flores. When he arrived, he was met by several persons who took
him to another location and loaded ninety-nine kilograms of
marihuana in the trunk of his car. He drove the load of marihuana
across the border and parked it at an apartment complex in Laredo,
where it was seized by law enforcement authorities. After he
dropped off the car, Coggins called Alfredo Castro, Juan Castro's
nephew, who then accompanied Coggins back to the apartment complex
to pick up the car. When Alfredo learned that the car was missing,
he called Juan Castro and Araceli Castro and told them what had
happened.
From this evidence, Juan Castro's substantial connection to
the load imported by Coggins could properly be inferred. A
rational jury could easily have found that Juan Castro "willfully
associated himself in some way with the [Coggins' importation of
marihuana] and willfully participated in it as he would in
something he wished to bring about." Hence, the evidence was
sufficient to support Juan Castro's conviction for aiding and
abetting the importation of 99.8 kilograms of marihuana.
VII. Explanatory Parentheticals in Transcripts
Perla De Los Santos, Juan Castro, Jose Puig, and Abigail Puig
complain that the district court committed reversible error by
allowing into evidence transcripts with parentheticals containing
the transcriber's interpretation of certain "code words." The
41
government contends that the transcripts provided to the jury were
redacted to eliminate the explanatory parentheticals pursuant to
the instructions of the district court at trial.
At trial, the government offered into evidence recordings of
the original telephone conversations between Valles and various
members of the conspiracy. At the pretrial conference, counsel for
Abigail Puig and Araceli Castro objected to admission of the
transcripts on the grounds that "the agent's analysis is contained
in the transcript" and that the transcriber had, throughout the
documents, defined several code words by placing the word
"marihuana" within parentheses. The district court responded that
the transcripts were not evidence and were only to be used to
assist the jury in its analysis of the tape recordings. The court
also noted that the defense had the right to "proffer what you
believe to be a different meaning for the particular [']code
word['] if you think it has a different meaning."
During the portion of the testimony of Valles when the
government offered the tape recordings into evidence, counsel for
Araceli Castro repeated her pretrial objection and argued that the
interpreter of the tapes should be subject to cross-examination.
Overruling her objection, the court explained that the defense
could question Valles about the translation in the transcript.
After further discussion, defense counsel made clear that the only
objection to the transcripts was the inclusion of the explanatory
term "marihuana." Sustaining this objection, the court ordered the
government to eliminate from the transcripts to be provided to the
jury the parentheticals containing the word "marihuana." The
42
record reflects that the government in fact removed the
parentheticals from the copies of the transcripts submitted to the
jury, and nothing presented by the appellants in this appeal
indicates otherwise. Hence, the appellants have no factual basis
for their appeal in this respect.14
VIII. Neutral Judge
Finally, Araceli Castro complains that the district judge
exceeded his role as a neutral magistrate during the direct
examination of Bruce Coggins. After Coggins was asked to identify
a photograph of the bundles of marihuana that were in the trunk of
his car, the transcript reflects the following exchange:
"Q: Does that show them after they have been unloaded,
sir?
A: Yes, sir.
Q: And does that accurately represent what they looked
like after they were unloaded?
THE COURT: Yes, sir, it does.
MR. HARRIS (prosecutor): If your Honor pleases, at this
time I would offer into evidence Government's Exhibit 5
and Government's Exhibit 211-A.
THE COURT: Any objection?
MR. MARTINEZ (counsel for Abigail Puig): No objection."
Both the wording and the context of the response to the
government's question suggests that Coggins, and not the court,
answered the question, and that the attribution to the court was a
14
Moreover, even assuming arguendo that not all of the
objectionable parentheticals were removed, given the overall
state of the evidence and the fact that Valles was available for
cross-examination on the subject, any error arising out of any
failure to remove all the parentheticals was harmless in this
case.
43
transcript error. This interpretation is reinforced by the fact
that no objection was made by defense counsel. This probability
notwithstanding, because no objection was made, we review the
matter for plain error.
Plain error occurs when the error is so obvious and
substantial that failure to notice and correct it would affect the
fairness, integrity, or public reputation of judicial proceedings
and would result in manifest injustice. Carreon, 11 F.3d at 1240.
Here, no such error has been demonstrated. Even if the statement
at issue was not the result of a transcript error, the question
asked by the government was asked for the purpose of laying the
evidentiary predicate for the admission of the photograph of the
marihuana and was actually repetitive of the prior question. Thus,
any effect on the defendant's case was negligible. Additionally,
any prejudicial effect of the statement was mitigated by the
court's instructions, which stated explicitly that the judge's
statements were not evidence. United States v. Gonzalez, 700 F.2d
196, 198 (5th Cir. 1983).
Conclusion
We affirm the convictions and sentences of Araceli Castro,
Perla De Los Santos, and Juan Castro. As to Abigail Puig, we
reverse her conviction as to count seventeen (17), and affirm her
conviction on all other counts; because of our reversal as to count
17, her sentences on all counts are vacated and the cause as to her
is remanded for resentencing on all the remaining counts of
conviction. As to Jose Puig, we reverse his conviction as to count
seventeen (17), and affirm his conviction on all other counts; his
44
sentences on all counts are vacated and the cause as to him is
remanded for resentencing consistent herewith on the remaining
counts of conviction.
As to Araceli Castro, Perla De Los Santos, and Juan Castro:
AFFIRMED.
As to Abigail Puig: AFFIRMED in part; REVERSED in part;
REMANDED for resentencing.
As to Jose Puig: AFFIRMED in part; REVERSED in part; REMANDED
for resentencing.
45
United States v. Puig-Infante
Court: Court of Appeals for the Fifth Circuit
Date filed: 1994-04-13
Citations: 19 F.3d 929
Copy CitationsCombined Opinion