UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10646
THE UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JORGE LUIS DOVALINA, also known as George,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
August 17, 2001
Before EMILIO M. GARZA, PARKER, and DENNIS, Circuit Judges.
ROBERT M. PARKER:
Appellant Jorge Luis Dovalina appeals the district court’s
denial of his motion to vacate or set aside his conviction pursuant
to 28 U.S.C. § 2255. Dovalina alleges that his former appellate
counsel was ineffective because the attorney failed to adequately
present an argument on direct appeal. Specifically, Dovalina
claims that his former attorney failed to brief his argument that
there was insufficient evidence to support his money laundering
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conviction.
I. Facts
A jury convicted Jorge Luis Dovalina for conspiracy to possess
with intent to distribute marijuana, distribution of marijuana,
money laundering involving the proceeds of marijuana distribution,
and conspiracy to commit money laundering. The jury concluded that
Dovalina and his coconspirators shipped marijuana from Texas to
Michigan and used the proceeds of the shipments to promote
additional marijuana sales. Among his various arguments on direct
appeal, Dovalina claimed that the evidence was insufficient to
support his conviction for money laundering. We affirmed, but
declined to address Dovalina’s money laundering argument because it
was inadequately briefed.
Dovalina filed a motion to vacate or set aside his conviction
pursuant to 28 U.S.C. § 2255. The district court denied the motion
on August 27, 1998. Dovalina filed a request for certificate of
appealability (“COA”), which the district court also denied.
Dovalina then filed a request for COA with this Court. We granted
his request, but limited our review to whether his counsel was
ineffective for failing to adequately brief the sufficiency of the
evidence argument.
II. Discussion
A criminal defendant is entitled to constitutionally effective
assistance of counsel on direct appeal. See Evitts v. Lucey, 469
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U.S. 387, 394 (1985); Goodwin v. Johnson, 132 F.3d 162, 170 (5th
Cir. 1998); Lombard v. Lynaugh, 868 F.2d 1475, 1479 (5th Cir.
1989). In order to prove ineffective assistance of counsel, a
petitioner must first show that his attorney’s performance was
deficient and, second, demonstrate that such deficiency caused him
prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984);
Jones v. Jones, 163 F.3d 285, 300 (5th Cir. 1998). For purposes of
this appeal, we need only focus on the prejudice aspect of the
analysis.
Prejudice results if the attorney’s deficient performance
would likely render either the defendant’s trial fundamentally
unfair or the conviction and sentence unreliable. See Goodwin, 132
F.3d at 176. Where an attorney failed to adequately brief an issue
on direct appeal, appellant must show initially that the appeal
would have had, with reasonable probability, a different outcome if
the attorney adequately addressed the issue. See Jones, 163 F.3d
at 302. “This requires that we counter-factually determine the
probable outcome on appeal . . ..” United States v. Williamson,
183 F.3d 458, 463 (5th Cir. 1999). Appellant must then demonstrate
that the attorney’s deficient performance led to a fundamentally
unfair and unreliable result. See Goodwin, 132 F.3d at 176. We
review an ineffective assistance of counsel claim de novo. See
Williamson, 183 F.3d at 461.
We turn first to whether there is a reasonable probability
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that, but for counsel’s deficient performance, Dovalina would have
established that there was insufficient evidence to support his
money laundering conviction. When reviewing a challenge to the
sufficiency of the evidence, we view the evidence in the light most
favorable to the jury verdict and affirm if a rational trier of
fact could have found that the Government proved all elements of
the crime beyond a reasonable doubt. See United States v. Puig-
Infante, 19 F.3d 929, 937 (5th Cir. 1994). To establish money
laundering under 18 U.S.C. § 1956(a)(1)(A)(i), the Government must
have shown that Dovalina (1) knowingly conducted a financial
transaction; (2) which involved the proceeds of an unlawful
activity; and (3) with the intent to promote or further unlawful
activity. See 18 U.S.C. § 1956(a)(1)(A)(i); United States v.
Sneed, 63 F.3d 381, 389 (5th Cir. 1995). Dovalina argues that
there was insufficient evidence to establish that he intended to
promote any further criminal activity by spending the money he
received from distributing marijuana.
Proof that financial transactions involving the proceeds of
unlawful activity merely promoted other criminal activity is
insufficient to support a conviction under section
1956(a)(1)(A)(i). See United States v. Brown, 186 F.3d 661, 670
(5th Cir. 1999). “[A]bsent some evidence that a dirty money
transaction . . . was conducted with the intent to promote . . .
[unlawful] activity, a defendant may not be convicted of promotion
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money laundering . . ..” Id. See also United States v. Olaniyi-
Oke, 199 F.3d 767, 770 (5th Cir. 1999). Direct evidence of intent
is not necessary to support a defendant’s conviction. See Brown,
186 F.3d at 670. Where the proceeds of drug trafficking activity
are used to purchase items that were not necessary for the
defendant’s legitimate business or personal use and played an
important role in the drug trafficking scheme, a rational juror may
infer that the defendant intended to promote unlawful conduct. See
id. (discussing United States v. Jackson, 935 F.2d 832 (7th Cir.
1991)).
The evidence at trial showed that Dovalina and his
coconspirators packed marijuana into 55-gallon barrels and shipped
the barrels from Laredo, Texas to Southgate, Michigan. Dovalina’s
contact in Michigan, Keary Sarabia, would later deliver a cash
payment. At first, Sarabia sent the cash via Federal Express or
UPS to A.J.’s Paint Warehouse, Dovalina’s business in Laredo.
Later, Sarabia traveled to prearranged locations and delivered the
cash to Dovalina in person. Drug Enforcement Administration
officials estimated that Dovalina received well over $1 million in
cash proceeds.
The Government argues that the consignment arrangement between
Dovalina and Sarabia is by itself sufficient to establish each
element of money laundering. The Government claims that if Sarabia
neglected to pay the balance for each marijuana shipment, then
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Dovalina would suspend future shipments. In other words, the
Government contends that a series of illegal transactions between
a buyer and seller is sufficient evidence of promotion money
laundering.
In limited contexts, evidence showing that a dealer used the
proceeds of drug trafficking to pay for the drugs the dealer sold
is sufficient proof of money laundering. See United States v.
King, 169 F.3d 1035, 1039 (6th Cir. 1999); United States v.
Martinez, 151 F.3d 384, 389 (5th Cir. 1998); United States v.
Baker, 63 F.3d 1478, 1494 (9th Cir. 1995); United States v. Torres,
53 F.3d 1129, 1137 n.6 (10th Cir. 1995); United States v. Skinner,
946 F.2d 176, 177-78 (2d Cir. 1991). The evidence must establish
that a dealer used the proceeds of an illegal transaction to pay
for the drugs. See, e.g., King, 169 F.3d at 1039 (affirming money
laundering conviction based on evidence that the defendant
transferred the proceeds of drug sales to couriers in payment for
prior marijuana deliveries). A promotion money laundering offense
cannot be established merely by evidence of a single buyer’s
repeated payments to a distributor. The evidence at trial showed
that Dovalina shipped drugs to Serabia and that Serabia paid for
the shipments. The Government did not present evidence indicating
Dovalina’s source of the marijuana or that Dovalina used the
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proceeds of the transactions to buy more marijuana.1 While
Serabia’s payments may have ensured future marijuana shipments, the
Government was required to prove that Dovalina used at least part
of the proceeds in a subsequent financial transaction with the
intent to promote unlawful activity.
While the Goverment’s evidence fails to account for the
majority of the proceeds, the record shows several notebooks taken
from Dovalina’s home and A.J.’s Paint Warehouse that suggest
Dovalina periodically used a portion of the proceeds to pay himself
and his coconspirators. See United States v. Wilson, 249 F.3d 366,
378 (5th Cir. 2001) (stating that a payment to a coconspirator from
proceeds of illegal activity is sufficient to show intent to
continue the fraudulent scheme). Testimony at trial also revealed
that Dovalina gave a coconspirator cash to purchase several 55-
gallon barrels in which the marijuana was shipped. See Brown, 186
F.3d at 670 (explaining that intent to promote criminal activity
may be demonstrated through evidence of financial transactions
unrelated to defendant’s legitimate business operations). The
Government presented evidence of interstate financial transactions
including frequent payments for airline tickets, over $7,000 in
cellular phone bills, rental cars, lodging, materials needed to
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Serabia’s testimony at trial suggests that he sold the marijuana
and used the proceeds to pay Dovalina. This evidence may establish
that Serabia committed a money laundering offense, but it does not
support Dovalina’s conviction and does not by itself show that
Dovalina conspired in Serabia’s money laundering activity.
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ship the marijuana, and shipping services. The evidence shows that
each of these transactions were made with the intent to promote
drug trafficking activity. Viewing the evidence in the light most
favorable to the jury verdict, we conclude that the jury could have
found beyond a reasonable doubt that Dovalina and his
coconspirators intentionally used cash proceeds from the sale of
marijuana to promote additional marijuana sales. Because the
failure of Dovalina’s appellate counsel to adequately brief the
argument on direct appeal did not constitute prejudice, the
district court’s order denying Dovalina’s motion to set aside or
vacate his conviction is AFFIRMED.
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