REVISED JULY 17, 2001
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-50635
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GUILLERMO DELGADO, also known as Enrique Hank Cervantes;
BARRY WAYNE ALBURTIS,
Defendants-Appellants.
Appeals from the United States District Court
For the Western District of Texas
June 26, 2001
Before JONES and DeMOSS, Circuit Judges, and BARZILAY,* District
Judge.
DeMOSS, Circuit Judge:
Defendants-Appellants Guillermo Delgado and Barry Wayne
Alburtis appeal their convictions and sentences for various charges
including conspiracy to distribute and possess with intent to
*
Judge of the U.S. Court of International Trade, sitting by
designation.
distribute in excess of 1,000 kilograms of marijuana. For the
following reasons, we affirm both Delgado’s and Alburtis’
convictions and sentences.
I. BACKGROUND
On June 17, 1998, a grand jury indictment was returned against
Delgado and Alburtis (cause number SA98-CR-233). Delgado and
Alburtis were both charged with conspiracy to distribute and
possession with intent to distribute in excess of 1,000 kilograms
of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1) and
(b)(1)(A) between January 1994 and February 1995 [Count One].
Moreover, Alburtis was charged with aiding and abetting others with
possession with intent to distribute more than 100 kilograms of
marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) on or
about December 21, 1994 [Count Two]; conspiracy to launder money in
violation of 18 U.S.C. § 1956(H) beginning on or about January 1995
and continuing for approximately six months thereafter [Count
Three]; and substantive money laundering in violation of 18 U.S.C.
§ 1956(a)(1)(A) [Counts Four, Five and Six].
Both Delgado and Alburtis were found guilty on each of their
respective counts after jury trials. Delgado received 235 months
imprisonment, five years of supervised release, and a $50 special
assessment. Alburtis was sentenced to a term of 365 months for
both Counts One and Two, and 60 months each for Counts Three
2
through Six. All the terms were to run concurrently and were to be
followed by five years of supervised release.
At the time of his prosecution, Delgado was serving a sentence
of 78 to 97 months in federal prison for conspiracy to possess with
intent to distribute marijuana in violation of 21 U.S.C. § 846
(cause number EP-97-CR-312-DB). That sentence related to a 1997
offense, while Delgado’s second prosecution, which is the subject
of his appeal, related to a conspiracy between 1994 and 1995.
Thus, his earlier conviction for which he was serving time actually
related to a later offense. The sentence for the second
prosecution is to run concurrent with the 78 to 97 month term for
the prior prosecution.
Similarly, Alburtis was in jail when the multiple-count
indictment was levied against him. At the time of his second
prosecution, which is the subject of his appeal, Alburtis had been
serving a 120-month term for conspiracy to distribute and to
possess with intent to distribute more than 1000 kilograms of
marijuana and for a substantive money laundering violation (cause
number SA-93-CR-285). He had been indicted in September 1993 for
those two counts (and others) and had plead guilty to those two
counts in September 1994. Because he was on bond pending
designation, he did not go to prison for the first prosecution
until February 1995. The 365-month term for the second prosecution
is to run consecutive to his first sentence of 120 months.
3
II. DISCUSSION
On appeal, both defendants raise a number of issues. We
review each defendant’s issues separately and in turn.
A. Delgado’s Appeal
In his brief, Delgado essentially raises two issues. First,
Delgado maintains that the conspiracy alleged in cause number SA-
98-CR-233 and the one that was alleged in cause number EP-97-CR-
312-DB (for which he was serving time) are part of one long-term
and extended conspiracy. Hence, he complains that his conviction
and sentence for the conspiracy alleged in cause number SA-98-CR-
233 violate the Double Jeopardy Clause of the Fifth Amendment
because he has already been convicted and sentenced for his role in
the drug conspiracy. Second, Delgado contends that the government
failed to produce material exculpatory information in violation of
Brady v. Maryland, 83 S. Ct. 1194 (1963), and the district court’s
pretrial order.
We first note that whether a prosecution violates the Double
Jeopardy Clause of the Fifth Amendment is a question of law and is
reviewed de novo. United States v. Deshaw, 974 F.2d 667, 669 (5th
Cir. 1992). We will accept the factual findings of the district
court unless they are clearly erroneous. Id. If a defendant comes
forward with a prima facie nonfrivolous double jeopardy claim, then
the burden of establishing that the indictments charge separate
crimes is on the government. United States v. Nichols, 741 F.2d
4
767, 770-71 (5th Cir. 1984) (quoting United States v. Stricklin,
591 F.2d 1112, 1118 (5th Cir. 1979)). “The defendant can establish
a prima facie non-frivolous double jeopardy claim through
indictments or other documentation to establish the earlier
charges, or even through his own testimony.” United States v.
Ellender, 947 F.2d 748, 759 (5th Cir. 1991) (citing Stricklin, 591
F.2d at 118).
The government maintains that Delgado has failed to make out
a prima facie case. It observes that Delgado did not file a
special plea raising the double jeopardy issue, but raised the
issue only at sentencing. In addition, the government asserts that
Delgado has not tendered a copy of his indictment in the prior
conviction, that the indictment is not in the record, and that he
has not presented any evidence connecting the 1997 conviction with
the instant case.
Reviewing the record, we agree with the government that
Delgado has failed to establish his prima facie case. Although
Delgado suggested that the conspiracy alleged in cause number SA-
98-CR-233 and the one that was alleged in cause number EP-97-CR-
312-DB were the same during the trial, he never directly raised a
double jeopardy claim before the district court. Even his
objection to the pre-sentence report, which apparently forms the
basis for his preservation of error, merely argued that the prior
1997 conviction should be defined as a related case and that,
5
therefore, three criminal history category points should not be
assigned for that conviction. Consistent with that approach,
Delgado did not proffer a prima facie case for shifting the burden
to the government on the double jeopardy issue. A limited amount
of evidence, such as the judgment of conviction, supported the fact
that Delgado had been convicted in 1997 of a conspiracy to possess
with intent to distribute marijuana in violation of 21 U.S.C.
§ 846, but Delgado failed to proffer the indictment for the 1997
conviction or to testify with respect to that conviction.1 Without
the 1997 conviction’s indictment or testimony about that
indictment, we are unduly hampered in determining whether the
government in cause number SA-98-233 sought to prosecute Delgado
for the same offense as that stated in the 1997 indictment or to
obtain multiple punishments for the 1997 offense. By not
presenting the specific circumstances surrounding his 1997
conspiracy charge and the facts supporting it, we conclude that
Delgado has not satisfied his burden and, consequently, find his
double jeopardy claim unavailing.
Delgado’s second point of error concerns the government’s
alleged Brady violation and failure to comply with the district
court’s discovery order. He maintains that the government had
information from the debriefing of certain individuals that would
have demonstrated that the conspiracy charged in cause number SA-
1
At trial, Delgado rested without presenting any testimony.
6
98-233 and the conspiracy for which he was charged and convicted in
1997 were the same thing. Specifically, the debriefing information
indicated that some of the witnesses who testified about the
conspiracy alleged in SA-98-233 may have been involved in the 1997
conspiracy for which Delgado was previously convicted.
According to the government, Delgado never raised this issue
before the trial court. Furthermore, the government argues that
nothing in the record contradicts its pre-trial representation that
discoverable evidence and Brady material were provided to Delgado.
Even if the information were not divulged, the government believes
that nothing prejudicial occurred. It asserts that the result
would not have been different because the debriefing statements
about some of the witnesses only showed that those witnesses were
still involved in the drug business in 1997, not that the drug
conspiracy in 1997 was somehow the same as the one charged in cause
number 98-SA-233.
Under Brady v. Maryland, exculpatory evidence is discoverable
by the defendant where it is material to guilt or punishment.
Information is material if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result would
have been different. See United States v. Maloof, 205 F.3d 819,
827 (5th Cir.), cert. denied, 121 S. Ct. 176 (2000). “A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” Ellender, 947 F.2d at 756 (quoting United States v.
7
Bagley, 105 S. Ct. 3375, 3383 (1985)) (internal quotation marks
omitted).
Here, even if the government did not provide the debriefing
statements to Delgado, we do not believe that those statements were
material. Delgado’s apparent basis for asserting his Brady claim
is his belief that knowledge that some of the witnesses to the
conspiracy in cause number SA-98-233 were possibly involved in the
1997 conspiracy would have induced the jury to acquit him based on
double jeopardy. A double jeopardy claim, however, is a question
of law that is properly the province of the district court, not the
jury.2 Thus, we reject the argument that the debriefing statements
were Brady material, which should have been provided to Delgado.
Accordingly, Delgado’s conviction and sentence are affirmed.
B. Alburtis’ Appeal
Like his co-defendant, Alburtis initially challenges his
conviction in cause number SA-98-CR-233 for conspiracy to
distribute and possession with intent to distribute in excess of
1000 kilograms of marijuana, insisting that it violates the Double
Jeopardy Clause of the Fifth Amendment. He contends that the 1998
indictment in cause number SA-98-CR-233 and the 1993 indictment,
for which he was already convicted and serving time, pertain to the
same conspiracy. Second, Alburtis contests the sufficiency of the
2
As previously noted, we do not believe that Delgado has
established a prima facie case that the two conspiracies were the
same.
8
evidence to support his convictions for aiding and abetting others
with possession with intent to distribute more than 100 kilograms
of marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) on
or about December 21, 1994 [Count Two]; and substantive money
laundering in violation of 18 U.S.C. § 1956(a)(1)(A) [Counts Four,
Five and Six]. Third, he avers that the government constructively
amended Counts Three through Six of the indictment. Fourth,
Alburtis asserts that the district court failed to afford him the
right of allocution secured by Federal Rule of Criminal Procedure
32(c)(3)(C) prior to imposing his sentence. Fifth, he charges that
the government violated 18 U.S.C. § 201(c)(2), the federal gratuity
statute. Finally, Alburtis raises in a supplemental brief an error
predicated on Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).3 We
review Alburtis’ issues in turn.4
1. Double Jeopardy
In contrast to Delgado, Alburtis specifically raised his
double jeopardy claim in a pretrial motion before the district
court, and the particulars of the conspiracy charge alleged in the
1993 indictment and the basis for that charge were presented to
3
Alburtis moved for leave to file the supplemental brief, which
is hereby granted.
4
Alburtis also maintains in a separate section of his brief that
the district court clearly erred in determining his sentence. The
argument presented is nothing more than a challenge aimed to
preserve his objections to the sentence calculation if any of his
convictions are reversed. Thus, there is no need to separately
address those issues.
9
that court. Consequently, the government does not contend that
Alburtis did not establish his prima facie case, and we may proceed
to whether the government has satisfied its burden of establishing
by a preponderance of the evidence that the 1993 and the 1998
indictments charge separate crimes. See Deshaw, 974 F.2d at 670.
In Blockburger v. United States, 52 S. Ct. 180 (1932), the
Supreme Court laid out the general test for resolving issues of
double jeopardy. Under Blockburger, double jeopardy concerns are
not raised if each crime requires an element of proof not required
by the other crimes charged. United States v. Sharpe, 193 F.3d
852, 863 (5th Cir. 1999), cert. denied, 120 S. Ct. 1202 (2000). In
other words, Blockburger bars the conspiracy count alleged in the
1998 indictment unless the government can prove by a preponderance
of the evidence that the 1998 conspiracy count and the 1993
conspiracy count are factually distinct. Deshaw, 974 F.2d at 673.
That is colored by the fact that “[t]he essential issue in the
double jeopardy analysis respecting conspiracy is whether one, or
more than one, agreement existed.” Id. To determine whether the
alleged conspirators entered into more than one agreement, we
evaluate five factors: 1) time; 2) persons acting as co-
conspirators; 3) the statutory offenses charged in the indictments;
4) the overt acts charged by the government or any other
description of the offense charged that indicates the nature and
scope of the activity that the government sought to punish in each
10
case; and 5) places where the events alleged as part of the
conspiracy took place. Id. at 673-74 (citing United States v.
Marable, 578 F.2d 151, 154 (5th Cir. 1978)5). “No one factor of
the Marable analysis is determinative; rather all five factors must
be considered in combination.” United States v. Cihak, 137 F.3d at
252, 258 (5th Cir. 1998).
Applying the Marable factors, we conclude that the government
has satisfied its burden of establishing that the 1993 and the 1998
indictments charge separate crimes. The two indictments address
different time periods. The 1993 indictment concerned a conspiracy
that ranged from 1985 to 1993, while the 1998 indictment involved
a conspiracy from January 1994 to February 1995. In fact, the 1998
indictment concentrated on a conspiracy that Alburtis partook in
after he was arrested under the 1993 indictment and released on
5
Although a panel of this Court questioned the vitality of the
evidence-based standard for measuring double jeopardy claims in
United States v. Fisher, 106 F.3d 622, 633 n.11 (5th Cir. 1997),
abrogated on other grounds, Ohler v. United States, 120 S. Ct.
1851, 1853 (2000), the five-factor test for determining whether
separate conspiracies were involved remains a viable part of the
analysis with respect to double jeopardy claims involving
conspiracies. See United States v. Cihak, 137 F.3d 252, 258 (5th
Cir. 1998). Even United States v. Rodriguez, 612 F.2d 906 (5th
Cir. 1980) (en banc), overruled on other grounds, United States v.
Michelena-Orovio, 719 F.2d 738, 757 (5th Cir. 1983) (en banc), the
case that Fisher relied upon to challenge the Marable test, was a
limited holding and did not directly overrule Marable. See
Rodriguez, 612 F.2d at 919.
11
bond pending further proceedings.6 Furthermore, other than
Alburtis, there was no overlap between the individuals in the 1993
and the 1998 indictments. None of the individuals indicted with
Alburtis in the 1998 indictment were charged in the 1993
indictment, and vice versa. Although, as Alburtis suggests, the
affidavits in support of the search warrants in both SA-93-CR-285
and SA-98-CR-233 identified some of the same individuals as
possible conspirators, the vast majority of the individuals,
including many of the key conspirators, were named in only one of
the affidavits. And the evidence does not reveal that the sources
of marijuana for the 1985 to 1993 conspiracy were the same as the
ones for the 1994 to 1995 conspiracy. Admittedly, the statutory
offenses charged in the two indictments both related to conspiracy
to distribute and possess with intent to distribute more than 1000
kilograms of marijuana, but the two conspiracy charges specifically
targeted two different time periods and had dissimilar recitations
of where the conspiratorial activities occurred. For example, the
1993 indictment specifically mentioned the Western District of
Texas, the Northern District of Texas, the District of New Mexico,
6
The government maintains that, because of Alburtis’ arrest under
the 1993 indictment, even if the 1998 indictment pertained to the
continuation of the earlier conspiracy outlined in the 1993
indictment, “further operation of the old conspiracy after being
charged with that crime becomes a new offense for purposes of a
double jeopardy claim.” United States v. Stricklin, 591 F.2d 1112,
1121 n.2 (5th Cir. 1979). That statement from Stricklin is dicta,
and we do not address the merits of that statement in the present
case.
12
the Middle District of Pennsylvania, and “divers[e] other places.”
The 1998 indictment was less specific, only stating the Western
District of Texas and “divers[e] other places.” The differences
with respect to the regions noted in the indictments may be due to
the fact that the scope of the activities and the locations
concerning the two conspiracies do not generally overlap. The 1993
indictment concerned large-scale marijuana smuggling from Mexico
into El Paso, with subsequent distribution to various locations,
mostly in Texas. The 1998 indictment also involved marijuana
smuggling into El Paso, but the ultimate destinations and the
individuals transporting and distributing, and quite possibly
providing, the drugs were different. Contrary to Texas locations,
the 1998 indictment concerned conspiratorial activity in Phoenix
and Oklahoma City. Accordingly, the combination of Marable factors
leads us to believe that the 1993 and 1998 indictments charged
separate crimes and that there was no double jeopardy violation.
2. Sufficiency of the Evidence
Alburtis makes two sufficiency of the evidence challenges. We
review a district court’s denial of a motion for judgment of
acquittal de novo. United States v. Myers, 104 F.3d 76, 78 (5th
Cir. 1997). The jury's verdict will be affirmed if a reasonable
trier of fact could conclude from the evidence that the elements of
the offense were established beyond a reasonable doubt. Id. In
assessing the sufficiency of the evidence, we do not evaluate the
13
weight of the evidence or the credibility of the witnesses, but
view the evidence in the light most favorable to the verdict,
drawing all reasonable inferences to support the verdict. Id. at
78-79.
In the present case, however, the government argues that
Alburtis failed to renew his motion after he presented his
evidence. “Where a defendant fails to renew his motion at the
close of all the evidence, after defense evidence has been
presented, he waives his objection to the earlier denial of his
motion.” United States v. Daniel, 957 F.2d 162, 164 (5th Cir.
1992). Although Alburtis indicates that he made his Rule 29 motion
after the government closed its case and after the close of all the
evidence, the part of the record that Alburtis refers to as
preserving his objection actually concerns Delgado’s renewed motion
for judgment of acquittal. Because Alburtis himself failed to
renew his motion and, thus, waived any objection to the sufficiency
of the evidence, our review is “limited to determining whether
there was a manifest miscarriage of justice, that is, whether the
record is ‘devoid of evidence pointing to guilt.’” Id. (quoting
United States v. Robles-Pantoja, 887 F.2d 1250, 1254 (5th Cir.
1989)).
Alburtis first contests the sufficiency of the evidence to
support his conviction for aiding and abetting others with
possession with intent to distribute more than 100 kilograms of
14
marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) on or
about December 21, 1994 [Count Two]. Count Two of Alburtis’ 1998
indictment alleges:
That on or about December 21, 1994, in the Western
District of Texas, Defendants
BARRY WAYNE ALBURTIS, AND
ROBERT BARRAGAN,
aided and abetted others known and unknown to the Grand
Jury to unlawfully, knowingly and intentionally possess
in excess of 100 kilograms of marijuana, a Schedule I
Controlled Substance, with the intent to distribute the
same, in violation of Title 21, United States Code,
Sections 841(a)(1) and Title 18, United States Code,
Section 2.
Both the government and Alburtis agree that this count refers to
the transportation of marijuana from El Paso to Oklahoma City,
i.e., the Oklahoma City load. Alburtis argues that there is
insufficient evidence to support Count Two because there is
insufficient evidence to show that he directed either Ronald
Levrier, the purchaser of the marijuana, or Bob Barragan, the
representative of the source of the marijuana, Ruben Cervantes.
Alburtis contends that the evidence, at most, indicates that he may
have facilitated the overall scheme when he introduced Barragan to
Ronald Levrier months before any business occurred.
The essential elements of possession with the intent to
distribute controlled substances in violation of 21 U.S.C. § 841
are 1) knowledge, 2) possession, and 3) intent to distribute the
controlled substances. United States v. Thomas, 120 F.3d 564, 569
(5th Cir. 1997). If a defendant is convicted for aiding and
15
abetting, actual physical possession is not necessary. United
States v. Chavez, 947 F.2d 742, 745 (5th Cir. 1991). Instead, the
government must establish that the defendant became associated
with, participated in, and in some way acted to further the
possession and distribution of the drugs. Id. “[T]o aid and abet,
a defendant must share in the intent to commit the offense as well
as play an active role in its commission.” United States v.
Lombardi, 138 F.3d 559, 561 (5th Cir. 1998). Often, the evidence
that supports a conspiracy conviction also supports an aiding and
abetting conviction. United States v. Drones, 218 F.3d 496, 505
(5th Cir. 2000), cert. denied, 121 S. Ct. 1095 (2001).
Reviewing what was presented at trial with full knowledge of
the applicable law pertaining to possession with intent to
distribute and aiding and abetting, we do not believe that the
trial was devoid of evidence pointing to guilt. Undoubtedly,
Alburtis helped introduce Levrier to the source of the Oklahoma
City load. Moreover, Alburtis was to receive a commission on that
transaction. Although Alburtis insists that he did not introduce
Levrier to the others specifically to do the Oklahoma City load and
that the commission for that load was merely a continuation of the
general commission system established for all drug transactions,
and not just the Oklahoma City load, the evidence showed that when
problems arose regarding the Oklahoma City load, Alburtis attended
16
a meeting with the parties involved to smooth things out.7
Combining that fact with Alburtis’ role in introducing the Oklahoma
City load parties to each other and with his large financial stake
in that drug transaction, we see no manifest miscarriage of justice
in concluding that Alburtis associated with, participated in, and
in some way acted to further the possession and distribution of
marijuana on December 21, 1994, in the Western District of Texas.
Alburtis’ other sufficiency of the evidence challenge relates
to his convictions for substantive money laundering in violation of
18 U.S.C. § 1956(a)(1)(A)(i) [Counts Four, Five and Six].8 Count
Four of the 1998 indictment alleges that on or about February 8,
1995, Alburtis “aided and abetted by others, did knowingly and
willfully attempt to conduct a financial transaction affecting
interstate and foreign commerce, to-wit: the attempted transfer and
delivery of $432,000.00 in United States currency from another
individual, which involved the proceeds of a specified unlawful
activity.” Count Five is a similar charge but pertains to the
transfer and delivery of $250,000 on or about March 2, 1995.
Likewise, Count Six is another substantive money laundering charge
concerning the transfer and delivery of approximately $50,000 to
Barragan sometime in the spring of 1995. To prove money laundering
7
Additionally, when the police took $432,000 of the money that
Levrier was to pay Cervantes, Levrier notified Alburtis about the
loss.
8
Counts Five and Six also refer to the aiding and abetting
statute, 18 U.S.C. § 2.
17
under 18 U.S.C. § 1956(a)(1)(A)(i), the government must establish
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. United States v. Puig-Infante, 19 F.3d 929, 937
(5th Cir. 1994).
The $432,000 noted in Count Four resulted from the sale in the
Northeast of the Oklahoma City load. Levrier assigned that money
to Ed Moran to have him transport it to Texas. Ultimately, the
police stopped Moran and seized the money. Alburtis contends that
the government did not adduce any evidence that he ever handled,
transported, or in any other way attempted to dispose of the
$432,000, in violation of § 1956(a)(1)(A)(i).
We disagree. The evidence revealed that the $432,000 was the
product of the Oklahoma City load and that it was being transported
to Texas to pay off debts arising from that drug transaction.
According to Levrier, the money was to go to Cervantes, the drug
source, in El Paso. At a meeting to discuss some problems
associated with the drugs from the Oklahoma City load, Alburtis had
previously assured Cervantes of payment. Johnny Guy Aaron also
testified that Levrier, who was going to rendezvous with Moran and
the money in San Antonio, intended to meet with Alburtis concerning
the money. Indeed, Alburtis had some interest in the $432,000
because it was a part of the Oklahoma City load, from which he was
18
ultimately supposed to receive a commission. And Alburtis was with
Levrier at the Church’s Chicken restaurant the day after the
money’s seizure when Aaron met up with Levrier to discuss the
circumstances surrounding the seizure. According to Aaron,
Alburtis told Levrier that there was a snitch amongst them. All of
those facts support an inference that Alburtis knew about the
illegal nature of the proceeds and that he understood that the
proceeds were to pay off debts from the Oklahoma City load,
particularly the source of the drugs with whom the parties sought
to maintain a relationship. Moreover, Alburtis’ scheduled meeting
with Levrier in San Antonio about the money, his involvement with
the individuals associated with the money’s transportation
subsequent to its seizure, his own interest in the funds, and his
assurance to Cervantes that Cervantes would be paid support an
inference that Alburtis knowingly and willfully attempted to
conduct a financial transaction in violation of § 1956(a)(1)(A)(i)
and preclude a determination that the record is devoid of evidence
pointing to guilt.
With respect to Count Five, Alburtis was in jail at the time
of the transaction. Count Five pertained to commissions that
Alburtis was expecting from the drug transactions. Alburtis had
instructed Levrier to give his commissions to Mark Harris, who was
to hold those commissions for the benefit of Alburtis and his wife.
Alburtis told Harris to provide monthly payments to his wife.
Ultimately, Levrier delivered about $250,000 to Harris in March
19
1995. Over the next few months, Harris paid Alburtis’ wife some of
the money through money orders and cash.
Alburtis contends that all of the aforementioned facts are
insufficient to convict him of Count Five, even for aiding and
abetting. He asserts that the government’s evidence merely shows
that he created the circumstances that permitted the money
laundering to occur on March 2, 1995, but that the evidence does
not show that he affirmatively or consciously assisted in the
crime.
“To prove that a defendant aided and abetted money laundering,
the government must show that the defendant ‘associated himself
with the unlawful financial manipulations, that he participated in
them as something he wished to bring about, and that he sought, by
his actions, to make the effort succeed.’” United States v.
Willey, 57 F.3d 1374, 1383 (5th Cir. 1995) (quoting United States
v. Termini, 992 F.2d 879, 881 (8th Cir. 1993)). A defendant
associates himself with the unlawful financial manipulations if he
shares in the criminal intent of the principal. United States v.
Sorrells, 145 F.3d 744, 753 (5th Cir. 1998). And he participates
in those manipulations if he engages in some affirmative conduct
designed to aid the conduct. Id.
20
Contrary to Alburtis’ assertions, he did not merely create the
circumstances for the money laundering to occur. Alburtis knew
that he would soon receive proceeds from illegal activity. Because
he could not receive them while he was in prison, Alburtis
affirmatively directed Levrier to deposit any sums with Harris and
instructed Harris to pay his wife in monthly installments. The
lack of knowledge regarding the specific amount of money and the
specific date of the transaction does not alter the fact that
Alburtis’ affirmative instructions facilitated the money laundering
and caused the transaction to occur. Therefore, we see no manifest
miscarriage of justice requiring reversal.
Finally, Count Six alleges that in the spring of 1995,
Alburtis and Barragan conducted a financial transaction in the
amount of $50,000, in the form of a delivery from an individual,
i.e., Harris, to Barragan, which were the proceeds of an unlawful
activity, in violation of § 1956(a)(1)(A)(i) and § 2. The evidence
indicates that the money constituted some of the $250,000 Harris
received on behalf of Alburtis and his wife. Before going to jail,
Alburtis introduced Harris to Barragan to provide a method of
paying Cervantes, the drug source, while Alburtis was in jail. As
previously noted, Barragan represented Cervantes. Alburtis had a
keen interest in making sure that Cervantes received his money
because Alburtis wanted to maintain his reputation among his
Mexican drug sources.
Similar to his challenge to Count Five, Alburtis argues that
21
apart from evidence indicating that he introduced Harris to
Barragan, the government has not shown that he was aware of the
$50,000 transfer or that he committed any affirmative act related
to this crime. And as with Count Five, we do not find the record
devoid of evidence pointing to guilt. Alburtis took the
affirmative step of arranging the meeting between Harris and
Barragan to ensure that future transfers of money would take place.
Alburtis knew that the money Harris received was from illegal
proceeds and that it was to go to Cervantes to further the drug
enterprise. Without Alburtis’ instructions, the delivery from
Harris to Barragan would not have occurred. Accordingly, there was
no manifest miscarriage of justice, and Alburtis’ Count Six
conviction is affirmed.
3. Constructive Amendment
In his third issue, Alburtis’ maintains that the government
constructively amended Counts Three through Six of the indictment.
Counts Three through Six of the 1998 indictment allege that
Alburtis conspired to, and did commit, money laundering under 18
U.S.C. § 1956(a)(1)(A)(i), the “promotion” prong of the statute.
That statutory provision reads:
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 activity –
(A)(i) with the intent to promote the carrying
on of specified unlawful activity . . .
shall be sentenced to a fine of not more than $500,000 or
22
twice the value of the property involved in the
transaction, whichever is greater, or imprisonment for
not more than twenty years, or both.
Although the government charged Alburtis under this promotion
prong, Alburtis contends that the government adduced substantial
evidence at trial indicating that he violated the money laundering
statute by structuring transactions to avoid a reporting
requirement, contrary to 18 U.S.C. § 1956(a)(1)(B)(ii).9 For
example, the postal inspector testified about post office
procedures with respect to reporting obligations and money orders.
Harris testified about how Alburtis told him to provide funds to
Alburtis’ wife via money orders purchased from the post office.
Moreover, Harris stated that Alburtis told him to structure the
transaction in such a way that no reporting would have to be done.
Finally, the prosecutor made certain comments that Alburtis insists
was an attempt to convict Alburtis for money laundering under the
reporting requirement prong as opposed to the promotion prong that
9
Section 1956(a)(1)(B)(ii) provides:
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 activity –
(B) knowing that the transaction is designed in whole or
in part–
(ii) to avoid a transaction reporting requirement
under State or Federal law,
shall be sentenced to a fine of not more than $500,000 or
twice the value of the property involved in the transaction,
whichever is greater, or imprisonment for not more than twenty
years, or both.
23
was stated in the indictment.10
“‘The Fifth Amendment guarantees that a criminal defendant
will be tried only on charges alleged in a grand jury indictment.’"
United States v. Threadgill, 172 F.3d 357, 370 (5th Cir. 1999)
(quoting United States v. Arlen, 947 F.2d 139, 144 (5th Cir.1991)),
cert. denied, 120 S. Ct. 172 (1999). After an indictment is
returned, the charges may not be amended or broadened except by the
grand jury. Stirone v. United States, 80 S. Ct. 270, 272-74
(1960). “‘[A] constructive amendment of the indictment occurs when
the jury is permitted to convict the defendant upon a factual basis
10
The prosecutor charged:
Look at the money orders. Look how they’re structured.
And I say structured. You heard the testimony of the postal
inspector. He said you can buy up to so many on a certain day
at any one post office and if you do more than that, the IRS
is going to find out about it. So you gotta go to different
post offices and structure these. You gotta do it in
different places so you don’t cause the filing of that
transaction report because if you’re dealing in proceeds of
marihuana, if you’re dealing in currency, you don’t want the
Government to know about it or you’re going to wind up in a
federal courtroom just like these two defendants.
. . . .
. . . .
Look at this exhibit, 342 or 341, whatever it is. Compare
this writing. Compare it. That’s Barry Alburtis that’s
putting his wife’s name on those [postal money orders] before
he goes to prison. That’s Barry Alburtis that’s completing
those money orders that he taught Mark Harris how to
structure. That’s money laundering. That’s a part of the
money laundering conspiracy that Barry Alburtis was – is
charged with. It’s the same money laundering conspiracy that
Mark Harris was convicted of up in Austin.
24
that effectively modifies an essential element of the offense
charged . . . .’” United States v. Parkhill, 775 F.2d 612, 615
(5th Cir. 1985) (quoting United States v. Young, 730 F.2d 221, 223
(5th Cir. 1984)). If a trial court constructively amends an
indictment, that is reversible error. Stirone, 80 S. Ct. at 274.
Here, however, Alburtis raises constructive amendment for the first
time on appeal. As a result, we review that claim for plain error.
“Under that doctrine, a defendant must show (1) the existence of
actual error; (2) that the error was plain; and (3) that it affects
substantial rights.” Threadgill, 172 F.3d at 370.
Reviewing the record, we see no plain error requiring
reversal. At trial, there was substantial evidence supporting the
convictions for Counts Three through Six, and the instructions
delivered to the jury specifically charged violations of
§ 1956(a)(1)(A)(i), not § 1956(a)(1)(B)(ii). Admittedly, the
prosecutor’s closing argument, and a very small part of the
testimony, discussed the structuring of money orders. But a
thorough review of the prosecutor’s closing remarks shows that the
basis for the prosecutor’s statements was to demonstrate that
Alburtis was involved with the money laundering counts, even though
he was in prison. The prosecutor never prodded the jury to return
a money laundering conviction predicated on the reporting
requirement theory. Accordingly, we do not believe that the jury
was permitted to convict Alburtis upon a factual basis that
25
effectively modified an essential element of the offenses charged
in the indictment.
4. Right to Allocute
Alburtis’ fourth issue refers to the district court’s alleged
failure to afford him the opportunity to allocute prior to imposing
sentence. Federal Rule of Criminal Procedure 32(c)(3)(C) secures
a defendant’s right to allocute. Under that rule, before imposing
sentence, the court must “address the defendant personally and
determine whether the defendant wishes to make a statement and to
present any information in mitigation of the sentence.” Failure to
afford a defendant his allocution rights necessitates remand and is
not reviewed for harmless error. United States v. Myers, 150 F.3d
459, 463 (5th Cir. 1998).
Here, we confront a unique set of circumstances. At a morning
sentencing hearing, the district court orally pronounced sentence
without addressing Alburtis to determine whether he wanted to make
a statement. Thereafter, the parties realized their mistake, and
in the afternoon, Alburtis was again brought before the district
court to be afforded his right to allocute under Rule 32(c)(3)(C).
The district court then reimposed the same sentence that was meted
out in the morning.
26
Under this circuit’s case law, if the district court had
failed to do the resentencing, then Alburtis’ sentence would have
had to have been vacated and remanded back to the district court.
See Myers, 150 F.3d at 463. But in the instant case, a
resentencing occurred, and it provided Alburtis his right to
allocute. Thus, the determinative issue is whether that
resentencing was proper.
A district court’s ability to resentence a defendant is
generally limited and available only in discrete circumstances.
Federal Rule of Criminal Procedure 35(c), however, allows a court,
acting within 7 days after imposition of sentence, to “correct a
sentence that was imposed as a result of arithmetical, technical,
or other clear error.” Although Rule 35(c) does not explicitly
state so, a Rule 35(c) correction may occur sua sponte. See Fed.
R. Crim. P. 35 advisory comm. notes (“The subdivision does not
provide for any formalized method of bringing the error to the
attention of the court and recognizes that the court could sua
sponte make the correction.”); see also United States v. Colace,
126 F.3d 1229, 1231 (9th Cir. 1997); United States v. Morillo, 8
F.3d 864, 868 n.5 (1st Cir. 1993). The record is not clear as to
whether the district court resentenced sua sponte or if it even
relied on Rule 35. But Rule 35(c) was the most appropriate
authority under which the district could resentence Alburtis and
correct the clear error of failing to afford him his right to
27
allocute. And whether the district court’s decision to resentence
was done sua sponte or after conference with the parties, who may
have orally moved for correction, is not determinative. See
Morillo, 8 F.3d at 868 n.5 (holding that Rule 35(c) corrections may
occur sua sponte or in response to post-judgment motions). Thus,
we find that the district court properly resentenced Alburtis to
afford him his right to allocu0te and conclude that Alburtis’
fourth issue is without merit.
5. 18 U.S.C. § 201(c)(2)
Alburtis’ fifth issue concerns whether the government violated
18 U.S.C. § 201(c)(2), the federal gratuity statute. Most of the
accomplice-witnesses who testified against Alburtis received
leniency in exchange for their testimony. They were first provided
a downward departure under U.S.S.G. § 5K2.1 and then through a
motion for further reduction under Federal Rule of Criminal
Procedure 35. Referring to United States v. Singleton, 144 F.3d
1343 (10th Cir. 1998), rev’d en banc, 165 F.3d 1297 (10th Cir.
1999), Alburtis asserts that such leniency for testimony violated
the anti-gratuity provisions of 18 U.S.C. § 201(c)(2).
The Tenth Circuit, however, reversed Singleton in an en banc
session. Notwithstanding that reversal, Alburtis attempts to
distinguish his case from the en banc decision by arguing that
Singleton did not address whether the government violates
§ 201(c)(2) when it files a Rule 35 motion for reduction in
28
exchange for a defendant’s testimony. Whether the leniency is
provided pursuant to Rule 35 or § 5K2.1 is a distinction without
merit. We have repeatedly rejected the argument that the
government violates the anti-gratuity provisions of 18 U.S.C.
§ 201(c)(2) by offering leniency to co-defendants in exchange for
testimony. United States v. Smith, 203 F.3d 884, 894 (5th Cir.
2000); United States v. Haese, 162 F.3d 359, 366-67 (5th Cir.
1998). Accordingly, Alburtis’ challenge predicated on the anti-
gratuity provisions of 18 U.S.C. § 201(c)(2) is unavailing.
6. Apprendi Error
In his supplemental brief, Alburtis contends that we should
vacate his sentences for Counts One and Two and remand his case for
a new sentencing hearing in light of Apprendi v. New Jersey.
Apprendi held that any fact, other than a prior conviction, that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury. Apprendi, 120 S. Ct. at 2363-
64. Alburtis asserts, and the government concedes, that his 365-
month sentences for Counts One and Two, which are to run
concurrently, exceeded the statutory maximum penalty for a
marijuana offense under 21 U.S.C. § 841(b)(1)(C) and (D). Because
those sentences exceeded the statutory maximums, he maintains that
the issue of drug quantity with respect to those counts should have
been submitted to the jury.
29
“[I]f the government seeks enhanced penalties based on the
amount of the drugs under 21 U.S.C. § 841(b)(1)(A) or (B), the
quantity must be stated in the indictment and submitted to a jury
for a finding of proof beyond a reasonable doubt.” United States
v. Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000). Here, the
indictment charged the amount of marijuana involved, but the jury
instructions failed to include the issue of quantity. Nonetheless,
because Alburtis failed to object to the district court as to the
absence of drug quantity in the jury instructions, we review for
plain error. United States v. Slaughter, 238 F.3d 580, 583 (5th
Cir. 2001). “Moreover, even assuming such error were otherwise
plain, the Supreme Court has expressly held that a jury instruction
that omits an element of the offense is subject to harmless error
analysis.” Id. That analysis for measuring harmlessness centers
around “whether the record contains evidence that could rationally
lead to a contrary finding with respect to the omitted element.”
Id. at 584 (quoting Neder v. United States, 119 S. Ct. 1827, 1839
(1999)).11
11
Alburtis contends that the Neder harmless error standard, which
Slaughter applied, should not be utilized in the instant case
because Slaughter involved an attempt to reverse a defendant’s
convictions while he merely seeks to vacate his sentence. This is
a meaningless distinction and is foreclosed by our recent decision
in United States v. Green, 246 F.3d 433 (5th Cir. 2001), which
applied the Neder standard for harmless error to a defendant’s
Apprendi claim to vacate his sentence. Furthermore, we note that
Slaughter itself applied the Neder standard in affirming the
defendant’s convictions and sentences. Slaughter, 238 F.3d at 584.
30
Having reviewed the record, we are convinced that it contains
no evidence that could rationally lead the jury to a conclusion
contrary to the quantities of drugs stated in the indictment. And
as was the case in Slaughter, the jury had with it during
deliberations a copy of the indictment setting forth the specific
quantities of drugs that could support the sentences imposed by the
district court. See id.; United States v. Green, 246 F.3d 433, 437
(5th Cir. 2001). Accordingly, the district court’s failure to
instruct was harmless, and we affirm Alburtis’ sentences.
III. CONCLUSION
For the foregoing reasons, Alburtis' motion to file a
supplemental brief is GRANTED, and both Delgado’s and Alburtis’
convictions and sentences are AFFIRMED.
31