*

 The Honorable Wiley Y. Daniel, United States District Judge for the

District of Colorado, sitting by designation.

F I L E D

United States Court of Appeals

Tenth Circuit

MAR 11 1997

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee and Cross-Appellant,

v.

DAVID MORALES,

Defendant-Appellant and Cross-Appellee.

Nos. 95-2069 &

 95-2124

Appeal from the United States District Court

for the District of N.M.

(D.C. No. CR-92-486-14-JC)

Charles L. Barth, Assistant United States Attorney (John J. Kelly, United States

Attorney, and Laura Fashing, Special Assistant United States Attorney, with him

on the briefs), Albuquerque, New Mexico, for Plaintiff-Appellee and CrossAppellant.

Peter Schoenburg of Rothstein, Donatelli, Hughes, Dahlstrom, Cron &

Schoenburg, LLP, Albuquerque, New Mexico, for Defendant-Appellant and

Cross-Appellee.

Before BALDOCK and BRORBY, Circuit Judges, and DANIEL,

*

 District Judge.
-2-

BRORBY, Circuit Judge.

A New Mexico federal jury convicted David Morales on one count of

conspiracy to possess with intent to distribute controlled substances, and two

counts of money laundering. The United States District Court for the District of

New Mexico sentenced Mr. Morales to seventy months imprisonment. (Vol. 47 at

127-28.) Mr. Morales appeals his convictions and the United States appeals Mr.

Morales' sentence. We exercise jurisdiction over the appeals pursuant to 28

U.S.C. § 1291.

I. FACTUAL AND PROCEDURAL BACKGROUND

Gabriel Rodriguez-Aguirre ("Mr. Aguirre") managed a family-run

organization ("the Aguirre organization") specializing in the sale and distribution

of large amounts of marijuana and cocaine. United States v. Denogean, 79 F.3d

1010, 1011 (10th Cir.), cert. denied, 117 S. Ct. 154 (1996). Between 1984 and

1992, the organization sold more than 20,000 pounds of marijuana and over

20,000 pounds of cocaine to narcotics traffickers in New Mexico, Arizona, Utah,

Kansas, Massachusetts, and elsewhere throughout the United States. Id. The

organization used narcotics proceeds to purchase real property and other assets. 

Id.
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Mr. Morales' wife is the niece of Mr. Aguirre. Evidence at trial showed

Mr. Morales was involved in the Aguirre organization as a money launderer. The

government's evidence revealed Mr. Morales purchased a number of horses and

trucks with drug proceeds. It also showed Mr. Morales purchased a bar, the E & J

Lounge, with drug profits. In total, the trial court determined Mr. Morales was

involved in the laundering of drug proceeds in the amount of $831,514.37.

In October 1992, a federal grand jury in the District of New Mexico

returned a twenty-three count indictment against Mr. Morales and twenty-one

other defendants, including Mr. Aguirre. The bill of indictment charged Mr.

Morales with conspiracy to distribute marijuana and two counts of money

laundering. Mr. Morales pled not guilty to the charges against him, and

proceeded to trial with his co-defendants in January 1994.

The original trial of Mr. Morales and his co-defendants lasted six months,

becoming "the longest federal criminal trial ever held in the district of New

Mexico." United States v. Rodriguez-Aguirre, 73 F.3d 1023, 1024 (10th Cir.

1996). After deliberating for more than six weeks, the jury was unable to reach a

verdict on the majority of counts, including all counts against Mr. Morales. 

Consequently, the trial judge declared a mistrial. Id.
-4-

In August 1994, the United States obtained a superseding indictment

against Mr. Morales and nine of his co-defendants. The superseding indictment

increased the charges against Mr. Morales. The superseding indictment charged

Mr. Morales with investment of illicit drug profits, conspiracy to possess with the

intent to distribute cocaine and marijuana, conspiracy to distribute cocaine and

marijuana, and two counts of money laundering. Although Mr. Morales moved to

dismiss the superseding indictment on the grounds of prosecutorial vindictiveness,

the district court summarily denied his motion.

Mr. Morales also filed a motion for severance pursuant to Fed. R. Crim. P.

14. Mr. Morales argued a joint trial would cause him prejudice because the

weight of the evidence against his co-defendants was much greater than the

weight of the evidence against Mr. Morales. Notwithstanding his contentions, the

district court denied Mr. Morales' motion for severance.

The United States tried Mr. Morales and his co-defendants on the

superseding indictment in November and December of 1994. Prior to trial, the

court selected a jury panel of approximately 250 jurors from voter registration

lists for the Roswell Division of the District of New Mexico. The district judge

excused 132 jurors sua sponte after reviewing the juror questionnaires; the court
1

 Pursuant to the court's order that "one motion made by one defense

counsel applies to all [defendants] unless specifically excluded by that

defendant," all of the defendants adopted the motions of Mr. Aguirre and Mr.

Morales.

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only directed 115 jurors to report for jury service. Six days prior to trial, defense

counsel were provided copies of juror questionnaires for the panel that had been

selected for service, and defense counsel learned the court had excused the

remaining jurors.

On the first day of trial, prior to jury selection, Mr. Aguirre filed a motion

to stay the proceedings, and Mr. Morales filed a motion to quash the jury venire.1

The motions alleged the jury venire panel seriously misrepresented the ethnic

makeup of the District of New Mexico. Specifically, the defendants claimed

persons of Hispanic origin and American Indian background were

underrepresented. The defendants sought a stay of the trial to allow time for an

investigation of the ethnic background of all the jurors. In addition, Mr. Morales'

counsel, Paul Kennedy, advised the court orally of United States v. Calabrese,

942 F.2d 218 (3d Cir. 1991), which Mr. Kennedy claimed stood for the

proposition that it is reversible error for a court to exclude a juror prior to voir

dire "simply because a juror knows a defendant." Mr. Kennedy claimed it

appeared the court had excused at least one juror because the juror stated that he
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or she knew one of the defendants.

Following Mr. Kennedy's comments, the court held an evidentiary hearing

at which Nancy Metzger, jury administrator for the Federal Court Clerk's office,

testified. Ms. Metzger stated the jury panel of approximately 250 jurors had been

selected randomly from voter registration lists. Ms. Metzger testified that the

district judge reviewed the juror questionnaires and directed her to excuse more

than 100 specific jurors. Ms. Metzger stated she did not know the ethnicity of

either the excused jurors or the jurors who reported for service.

The court then stated it had reviewed the individual juror questionnaires

and "retained the stack of those who, for some reason or other, claimed that they

couldn't serve." The court explained:

I think it goes without saying that the ones that were not summoned,

I never looked at the last name, whether it was [a] Hispanic surname

or whether it was not a Hispanic surname, or whether they were

American Indians or not. As a matter of fact, I'm not real sure that

that's part of the questionnaire --

Ms. Metzger confirmed the questionnaire forms did not direct the jurors to list

their ethnicity.

The district court denied the defendants' motion to stay the proceedings and
2

 Although Mr. Morales also filed a motion for a new trial based on jury

misconduct, his motion is not included in the record. Thus, we must focus on the

allegations raised by Ms. Gallegos in her motion for a new trial.

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the defendants' motion to quash the jury venire. However, the court allowed the

defendants to supplement the record within ten days of the completion of the trial

with information concerning the racial composition of the District of New Mexico

and the Roswell Division. None of the defendants chose to supplement the record

with such information.

The trial of Mr. Morales and his co-defendants lasted approximately one

month. On December 15, 1994, the jury returned a verdict against Mr. Morales 

on one count of conspiracy and two counts of money laundering. The jury did not

reach a verdict on the investment of illicit drug profits count, and the district

court declared a mistrial as to that count.

Thereafter, Ms. Sonia Gallegos, one of Mr. Morales' co-defendants who

was also convicted, filed a motion for a new trial, arguing, inter alia, she was

entitled to a new trial because of jury misconduct.2 Mr. Morales adopted Ms.

Gallegos' motion for a new trial pursuant to the district court's standing order that

"anything that anybody files the others adopt." Mr. Morales attached an affidavit
3

 The United States attached affidavits from jurors Ronnie Warmuth and

Kerry Romine to the United States' response to Ms. Gallegos' motion for a new

trial. Mr. Warmuth stated: 

On further reflection, I do not believe that a dictionary was used at

all. The only definition which was questioned regarded the word

"pontificate" as used by the witness John Henry Lee. Mr. Kerry

Romine, a fellow juror, knew the definition of this word and no

dictionary was consulted. 

Similarly, Mr. Romine testified that although a question arose during

deliberations as to the definition of the word "pontificate," "the jury did not at any

time consult a dictionary."

-8-

from defense investigator Kelly Owens to his motion. Mr. Owens testified that

following the trial, he questioned nine of the twelve jurors who convicted Mr.

Morales. Mr. Owens stated that one of the jurors, Linda Howard, admitted

looking up the dictionary definition of the word "distribution" on the first day of

deliberations and sharing its definition with the other jurors on the following day. 

According to Mr. Owens, Ms. Howard stated the jurors discussed the meaning of

"distribution" as it related to the guilt or innocence of Ms. Gallegos. Mr. Owens

also testified juror Ronnie Warmuth claimed he had knowledge of another juror

researching the dictionary definition of the word "hypothecate."3 In his post-trial

motion, Mr. Morales contended this improper juror conduct prejudiced him and

entitled him to a new trial.
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The district court denied Mr. Morales' motion for a new trial, rejecting the

defendants' claim of jury misconduct. The court concluded the word distribution

was one of common usage, and there was no showing any of the jurors relied

upon its dictionary definition or that it "made any difference at all in the jury

deliberations."

At sentencing, the district court adopted the factual findings and sentencing

guideline application in Mr. Morales' presentence report. The court concluded

Mr. Morales' guideline range should be calculated pursuant to his involvement in

money laundering, rather than pursuant to his conviction of conspiracy, because

his offense conduct did not "establish a quantity of narcotics reasonably

foreseeable to [Mr. Morales]." Thus, the court found Mr. Morales' guideline

range to be seventy to eighty-seven months, and sentenced him to a term of

seventy months imprisonment.

II. ISSUES RAISED ON APPEAL

Mr. Morales raises the following issues on appeal: (1) whether the district

court violated Mr. Morales' rights under the Constitution or the Jury Selection and

Service Act of 1968, 28 U.S.C. §§ 1861-1878 (1994), by excluding more than half

of the original jury panel sua sponte prior to voir dire; (2) whether the district
-10-

court violated Mr. Morales' Fifth and Sixth Amendment rights by failing to grant

his motion for severance; (3) whether the district court should have dismissed the

superseding indictment on the basis of prosecutorial vindictiveness; (4) whether

the evidence was sufficient to support Mr. Morales' conviction on count XII,

money laundering; and (5) whether the district court should have granted Mr.

Morales a new trial based on the jury's misconduct in researching the definition of

"distribution." The United States raises one issue in its cross appeal: whether the

district court erred in failing to sentence Mr. Morales to the mandatory minimum

sentence of ten years imprisonment for his conviction of conspiracy to distribute

controlled substances. Mr. Morales has filed a motion to dismiss the United

States' appeal, arguing the appeal should be dismissed because it is facially

inadequate and untimely.

III. ANALYSIS

A. Mr. Morales' Appeal

1. Jury Selection

Mr. Morales argues the district court's excusal of over half the original jury

panel, off the record and outside the presence of the defendants and counsel,

violated the Jury Selection and Service Act, as well as Mr. Morales' Fifth and

Sixth Amendment rights. 28 U.S.C. § 1867(d) requires all motions challenging
-11-

compliance with the Jury Selection and Service Act to be accompanied by a

"sworn statement of facts which, if true, would constitute a substantial failure to

comply with the [Jury Selection and Service Act]." In the recent appeal of Mr.

Morales' co-defendant Doloras Contreras, we determined Ms. Contreras' claim

under the Jury Selection and Service Act was barred by the defendants' failure to

accompany their motions challenging the district court's jury selection procedures

with an adequate sworn statement as required by 28 U.S.C. § 1867(d). United

States v. Contreras, __ F.3d ___ (10th Cir. Mar. 11, 1997). Here, as in

Contreras, Mr. Morales failed to file a sworn affidavit in support of his motion

challenging the district court's jury selection procedures. Consequently, Mr.

Morales' Jury Selection and Service Act claim is barred.

Also in Contreras, we denied Ms. Contreras' Fifth and Sixth Amendment

challenges to the jury selection procedures. See id. at ___. We determined Ms.

Contreras could not establish a prima facie case of a fair cross section violation

or an equal protection violation, and we concluded Ms. Contreras' Sixth

Amendment impartial jury claim was without merit. Id. For the reasons stated in

Contreras, we likewise find no merit in Mr. Morales' constitutional challenges to
4

 In Contreras, we also determined the district court did not violate Fed. R.

Crim. P. 43 or 28 U.S.C. § 753(b) (1994) by failing to dismiss the 132 jurors in

open court and in the presence of the defendants. See id. at ___. To the extent

Mr. Morales asserts claims under Rule 43 or 28 U.S.C. § 753(b), these claims are

rejected pursuant to our reasoning in Contreras.

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the district court's jury selection procedures.4

2. Severance

Mr. Morales argues the district court violated his Fifth and Sixth

Amendment rights to due process and a fair trial by denying his motion for

severance and forcing him to trial with "[five] co-defendants against whom the

[United States] had overwhelming evidence." Mr. Morales alleges the

government had substantially less incriminating evidence against him than it had

against his co-defendants. According to Mr. Morales, the overwhelming evidence

the government introduced at trial against his co-defendants resulted in a spillover

effect, which led to Mr. Morales' convictions.

A decision to grant or deny severance is within the sound discretion of the

trial court and will not be disturbed on appeal unless there is an affirmative

showing of abuse of discretion. United States v. Sanders, 929 F.2d 1466, 1469

(10th Cir.), cert. denied, 502 U.S. 846 (1991). To establish an abuse of

discretion, the defendant must show actual prejudice resulted from the denial. Id.
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Furthermore,

"[i]n deciding on a motion for severance, the district court has a duty

to weigh the prejudice resulting from a joint trial of co-defendants

against the expense and inconvenience of separate trials .... Neither

a mere allegation that defendant would have a better chance of

acquittal in a separate trial, nor a complaint of the "spillover effect"

from the evidence that was overwhelming or more damaging against

the co-defendant than that against the moving party is sufficient to

warrant severance."

United States v. Cardall, 885 F.2d 656, 668 (10th Cir. 1989) (quoting United

States v. Hack, 782 F.2d 862, 870 (10th Cir.), cert. denied, 476 U.S. 1184

(1986)).

We note as an initial matter that Mr. Morales was properly joined for trial

pursuant to Fed. R. Crim. P. 8(b). Rule 8(b) permits the joinder of two or more

defendants "if they are alleged to have participated in the same act or transaction

or in the same series of acts or transactions constituting an offense or offenses." 

Rule 8 is construed broadly to allow liberal joinder to enhance the efficiency of

the judicial system. United States v. Hopkinson, 631 F.2d 665, 668 (1980), cert.

denied, 450 U.S. 969 (1981). The evidence at trial revealed Mr. Morales was

involved with his co-defendants in a common scheme or plan to launder illegally

derived drug proceeds. Thus, the joinder of Mr. Morales was proper and in

accordance with Rule 8(b).
-14-

Under Fed. R. Crim P. 14, the district court may grant a severance of

defendants if it appears joinder results in a prejudice to a defendant. In Zafiro v.

United States, 506 U.S. 534, 539 (1993), the Supreme Court explained that:

a district court should grant a severance under Rule 14 only if there

is a serious risk that a joint trial would compromise a specific trial

right of one of the defendants, or prevent the jury from making a

reliable judgment about guilt or innocence. Such a risk might occur

when evidence that the jury should not consider against a defendant

and that would not be admissible if a defendant were tried alone is

admitted against a codefendant. For example, evidence of a

codefendant's wrongdoing in some circumstances erroneously could

lead a jury to conclude that a defendant was guilty. When many

defendants are tried together in a complex case and they have

markedly different degrees of culpability, this risk of prejudice is

heightened. Evidence that is probative of a defendant's guilt but

technically admissible only against a codefendant also might present

a risk of prejudice.

Rule 14 leaves the determination of risk of prejudice and any remedy for such

prejudice to the sound discretion of the district court. Id. at 541.

Having thoroughly examined Mr. Morales' arguments, we do not believe the

district court abused its discretion in denying Mr. Morales' motion to sever. The

evidence at trial revealed Mr. Morales was involved with co-defendants Gabriel

Aguirre and Doloras Contreras in the purchase of race horses with illegally

derived proceeds. Evidence also established Mr. Morales, Mr. Aguirre, and codefendant Eleno Aguirre purchased the E & J Lounge with illicit funds. Thus, the

evidence against Mr. Morales and his co-defendants was overlapping and
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intertwined.

Although the joinder of Mr. Morales may have resulted in the admission of

some evidence that would not have been admitted if the court tried Mr. Morales

alone, we do not find the district court's denial of severance caused Mr. Morales

unfair prejudice. The fact that the jury was unable to reach a verdict as to Mr.

Morales on the illicit investment count shows the jury carefully evaluated the

evidence presented as to each defendant and each count. In denying Mr. Morales'

motion to sever, the district court appropriately determined considerations of

judicial economy and expediency outweighed the potential prejudice to Mr.

Morales. Given the considerable discretion afforded the district court under Rule

14, we cannot say it abused its discretion.

3. Vindictive Prosecution

Mr. Morales contends the district court should have dismissed the

superseding indictment because of prosecutorial vindictiveness. The United

States increased the charges against Mr. Morales in the superseding indictment

filed after the mistrial. Mr. Morales asserts the United States was aware of the

information giving rise to the increased charges prior to his first trial. Given this

prior knowledge, along with the negative publicity the United States suffered
5

 Unlike Ms. Contreras, Mr. Morales alleges he rejected a number of plea

offers from the United States prior to the filing of the superseding indictment. 

Mr. Morales ostensibly contends this is another factor establishing a reasonable

likelihood of vindictiveness. Assuming Mr. Morales' allegations are true, we are

not persuaded by his argument.

The Second Circuit denied an almost identical claim of vindictive

prosecution in United States v. Khan, 787 F.2d 28 (2d Cir. 1986). In Kahn, as in

the present case, the first trial of the defendant resulted in a mistrial caused by a

hung jury. Id. at 30. Neither the United States nor the defendant objected to the

mistrial. Id. at 33. Thereafter, the United States initiated plea discussions with

counsel for the defendant. Id. at 30. When the defendant refused to enter into a

plea agreement, however, the United States obtained a superseding indictment

that added charges against the defendant. Id. The defendant was tried on the

superseding indictment and found guilty on each count. Id.

On appeal, the defendant argued a presumption of prosecutorial

vindictiveness arose from the addition of new counts following the defendant's

rejection of a plea offer and assertion of his right to a jury trial. Id. at 30-31. 

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following the mistrial, Mr. Morales contends there is a reasonable likelihood the

increased charges were motivated by prosecutorial vindictiveness.

In Contreras, we decided a virtually identical vindictive prosecution claim

asserted by Ms. Contreras. __ F.3d at ___. Looking to the totality of the

circumstances, we determined there was no reasonable likelihood the increased

charges against Ms. Contreras stemmed from prosecutorial vindictiveness. Id. at

___. In the present case, based upon our reasoning in Contreras, we likewise

conclude there is no reasonable likelihood the enhanced charges against Mr.

Morales were motivated by prosecutorial vindictiveness.5
The Second Circuit disagreed, concluding the defendant did nothing likely to

inspire the wrath of the United States. Id. at 33. In discussing the defendant's

claim, the court noted "in the 'give-and-take' of plea bargaining there is no

element of retaliation so long as a defendant remains free to accept or reject the

offer." Id. at 31 (citing Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)). 

Consequently, the court held it was "unrealistic to assume that the government's

probable response to a defendant's choice to exercise his fundamental right to a

trial would be to seek to penalize and deter, even if that choice follows on the

heels of a mistrial." Id. at 33.

We agree with the Second Circuit. Notwithstanding Mr. Morales' rejection

of the United States' plea offers, we do not believe Mr. Morales engaged in any

conduct that was reasonably likely to "inspire the wrath of the prosecutor." See

id. Thus, Mr. Morales cannot prevail on his vindictive prosecution claim.

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4. Sufficiency of the Evidence

Next, Mr. Morales asserts the evidence at trial was insufficient to support

his conviction on Count XII, money laundering. In reviewing the sufficiency of

the evidence in a criminal case, "'[t]he evidence -- both direct and circumstantial,

together with reasonable inferences to be drawn therefrom -- is sufficient if, when

taken in the light most favorable to the government, a reasonable jury could find

the defendant guilty beyond a reasonable doubt.'" Sanders, 929 F.2d at 1470

(quoting United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir.), cert. denied,

475 U.S. 1128 (1986)). The evidence presented to support a conviction must be

substantial; "it must do more than raise a mere suspicion of guilt." Sanders, 929

F.2d at 1470 (internal quotation marks omitted).
6

 As noted, the government also charged Mr. Morales with violating 18

U.S.C. § 2. This statute provides: "Whoever commits an offense against the

United States or aids [or] abets ... its commission, is punishable as a principal." 

This statute is not relevant for our analysis on the sufficiency of the evidence

issued.

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The jury in this case convicted Mr. Morales of violating 18 U.S.C.

§ 1956(a)(1)(B)(ii) (Supp. 1996) and 18 U.S.C. § 2 (1994) by participating in the

purchase of the E & J Lounge. The jury determined Mr. Morales and two codefendants (Eleno and Gabriel Aguirre) purchased the lounge with fifty payments,

each in an amount less than $10,000.00, and each designed to avoid a federal

transaction reporting requirement. To obtain a conviction under 18 U.S.C.

§ 1956(a)(1)(B)(ii),6 the government must prove the following four elements

beyond a reasonable doubt:

(1) the defendant willfully conducted or caused to be conducted a financial

transaction;

(2) the defendant knew at the time of the financial transaction that the

money represented proceeds of some unlawful activity;

(3) the money involved was in fact the proceeds of specified unlawful

activity; and

(4) the defendant knew at the time that the transaction was designed in

whole or in part to avoid a transaction reporting requirement under federal

law.

On appeal, Mr. Morales contends the United States failed to establish
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beyond a reasonable doubt the first element of this statute -- that he willfully

conducted or caused to be conducted a financial transaction. According to Mr.

Morales, there is no evidence in the record to support the inference that Mr.

Morales was involved in any of the fifty payments made in connection with the

purchase of the E & J Lounge.

Our review of the record reveals Mr. Edward Lopez testified he entered

into an agreement to sell the E & J Lounge to Mr. Morales, Gabriel Aguirre, and

Eleno Aguirre for $434,000.00. The agreement to purchase, the commercial

lease, and the warranty deed were all signed by Mr. Morales.

The purchase of the E & J Lounge was effectuated through payments made

directly to the law offices of Lloyd Bates, Mr. Lopez's attorney. Ms. Patricia

Alvillar, Mr. Bates' secretary, testified that she issued a number of receipts for

payments made to David Morales. Although none of the employees of Mr. Bates'

law office could identify Mr. Morales as having made any of the payments, at

least one of the payments to the Bates law firm was made with a cashier's check

issued by Silver Savings and Loan, listing David Morales as the remitter. Ms.

Shirley Madrid, who issued the cashier's check on behalf of Silver Savings and

Loan, testified she knew Mr. Morales and his wife, and she would not have
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allowed anyone other than Mr. Morales or his wife to purchase the check.

Finally, the record reveals FBI Special Agent Sam Macaluso testified at

trial concerning a post-arrest statement made by Mr. Morales. Special Agent

Macaluso testified that Mr. Morales stated he was the owner of the E & J Lounge

and he believed a down payment on the bar was made with "the proceeds of drug

activity." Although Mr. Morales contends the testimony of Agent Macaluso was

"contrary to all of the other evidence in the case" and given with "little

confidence" by the agent,"'we may neither weigh conflicting evidence nor

consider the credibility of witnesses.'" United States v. Harrod, 981 F.2d 1171,

1174-75 (10th Cir. 1992) (quoting United States v. Darrell, 828 F.2d 644, 647

(10th Cir. 1987)), cert. denied, 508 U.S. 913 (1993); United States v. Torres, 53

F.3d 1129, 1134 (10th Cir.), cert. denied, 115 S. Ct. 2599, and 116 S. Ct. 220

(1995). Such assessments are within the exclusive province of the jury. United

States v. Davis, 965 F.2d 804, 811 (10th Cir. 1992), cert. denied, 507 U.S. 910

(1993). In our view, looking at the entire evidence in the light most favorable to

the government, a reasonable jury could have concluded beyond a reasonable

doubt that Mr. Morales willfully conducted at least one of the fifty financial

transactions specified in Count XII of the superseding indictment.
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5. Jury Misconduct

Finally, Mr. Morales contends the district court erred in failing to grant a

new trial based upon the jury's misconduct in using a dictionary to look up the

definition of the word "distribution." In the recent appeal of Mr. Morales' codefendant, Eleno Aguirre, we determined a presumption of prejudice arose from

the jury's improper conduct in researching the dictionary definition of

distribution. United States v. Aguirre, __ F.3d ___ (10th Cir. Mar. 11, 1997). 

Nevertheless, because there was no evidence any of the jurors relied upon or

attached any significance to the dictionary definition, we concluded the jury's

misconduct was harmless beyond a reasonable doubt to Mr. Aguirre. Id. at ___. 

Based on our reasoning in Aguirre, we likewise conclude the jury's misconduct in

researching the dictionary definition of distribution was harmless to Mr. Morales

beyond a reasonable doubt.

B. United States' Appeal

The United States contends the district court erred in failing to sentence

Mr. Morales to the mandatory minimum term of ten years imprisonment for his

conviction. Mr. Morales claims the United States' appeal must be dismissed

because it is facially inadequate and untimely. We first review Mr. Morales'

motion to dismiss to determine whether we have jurisdiction to entertain the
-22-

government's appeal.

1. Motion to Dismiss

Mr. Morales claims the United States' appeal should be dismissed for either

of two reasons: (1) the notice of appeal failed to give proper notice of from what

order the government's appeal was taken, or (2) the notice of appeal was untimely. 

First, Mr. Morales contends the government's notice of appeal is invalid because

the notice fails to state the United States is appealing the sentence of Mr.

Morales. Fed. R. App. P. 3(c) requires a notice of appeal to "designate the

judgment, order, or part thereof appealed from." Here, although the United States

seeks to appeal the sentence entered against Mr. Morales, the United States'

notice of appeal provides that it appeals from "an Order entered by the District

Court on May 19, 1995 which denied Motion for Judgment of Acquittal; Motion

for New Trial Based Upon Jury Misconduct; Motion to Continue Bail Pending

Appeal by David Morales." Because the notice of appeal does not indicate the

United States intends to appeal the sentence of Mr. Morales, the government

failed to comply with Fed. R. App. P. 3(c).

Nevertheless, our inquiry does not stop here. The Supreme Court has stated

that "the requirements of the rules of procedure should be liberally construed and
-23-

that 'mere technicalities' should not stand in the way of consideration of a case on

its merits." Torres v. Oakland Scavenger Co., 487 U.S. 312, 316 (1988). We

have applied this principle of liberal construction in situations where a party has

misdesignated the order appealed from in a notice of appeal. For example, in the

notice of appeal in Wright v. American Home Assurance Co., 488 F.2d 361, 363

(10th Cir. 1973), the appellant improperly designated a non-appealable order as

the order being appealed. Nevertheless, we determined that:

incomplete compliance with F[ed]. R. App. P. 3(c) should not result

in the loss of an intended appeal on the merits. Appellant's intention

to seek review of the judgment is manifest. Both appellant and

appellee briefed the merits, and the appellant's statement of issues

similarly demonstrates an intent to challenge the judgment. It would

be contrary to the spirit of the Federal Rules of Civil Procedure to

deny appellant a decision on the merits because of a mere

technicality.

Id. (citations omitted). We therefore considered the merits of the case as an

intended appeal from the final judgment. Id.

Similarly, in Cooper v. American Auto. Ins. Co., 978 F.2d 602, 607-09

(10th Cir. 1992), we held an order granting the government's motion to dismiss

was appealable even though the appellant's notice of appeal failed to designate

that order. Importantly, we found the supporting papers filed with the notice of

appeal, including the docketing statement, indicated the appellant was appealing

the order of dismissal. Id. Because the government was not misled or prejudiced
-24-

by the inclusion of the dismissal issue on appeal, we allowed the appeal of that

issue to proceed. Id. at 609.

Notwithstanding the wording of the notice of appeal in the present case, we

are confident the notice was sufficient to inform Mr. Morales that the government

sought to appeal his sentence. As Mr. Morales states in his brief in support of his

motion to dismiss, the government "obviously" has no basis to appeal the court's

order of May 19, 1995. That order was favorable to the government. Because

Mr. Morales was convicted on three counts, and the trial court declared a mistrial

without objection on the remaining count, the only issue the government could be

appealing is Mr. Morales' sentence.

Moreover, as in Cooper, the supporting papers filed in connection with the

government's notice of appeal indicate the government seeks to appeal Mr.

Morales' sentence. The docketing statement unambiguously states the issue raised

on appeal as follows: "whether the trial court's failure to apply the statutory

minimum sentence under 21 U.S.C. [§] 841(b)(1)(A) constituted error." Like the

appellees in Cooper and Wright, Mr. Morales was neither misled nor prejudiced

by the government's notice of appeal. Under these circumstances, "incomplete

compliance with F[ed]. R. App. P. 3(c) should not result in the loss of an intended
-25-

appeal on the merits." See Wright, 488 F.2d at 363. We therefore refuse to

dismiss the government's appeal on the basis of its failure to strictly comply with

Rule 3(c).

Second, Mr. Morales contends the government's appeal should be dismissed

because the government did not file its notice of appeal in a timely manner. Fed.

R. App. P. 4(b) requires an appeal by the government in a criminal case to be

filed in the district court "within 30 days after (i) the entry of the judgment or

order appealed from or (ii) the filing of a notice of appeal by any defendant."

The government claims it filed its June 19, 1995 notice of appeal within

thirty days of Mr. Morales' notice of appeal. Although the record indicates Mr.

Morales filed his notice of appeal on April 10, 1995, we must look to Fed. R.

App. P. 4(b) to determine the date on which Mr. Morales' appeal became

effective. Under Rule 4(b), "[a] notice of appeal filed after the court announces a

decision, sentence, or order but before it disposes of [a timely motion for

judgment of acquittal or a motion for a new trial] is ineffective until the date of

the entry of the order disposing of the last such motion outstanding."

Here, Mr. Morales filed a motion for judgment of acquittal and a motion for
7

 Mr. Morales adopted Ms. Gallegos' motion for a new trial pursuant to the

court's "standing order." See supra notes 1 & 2.

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a new trial on January 13, 1995.7 The district court denied these motions on May

19, 1995. Thus, if Mr. Morales filed his motion for judgment of acquittal and

motion for a new trial in a timely manner, Mr. Morales' appeal did not become

effective until May 19, 1995.

We must therefore determine whether Mr. Morales timely filed his motions

for judgment of acquittal and for a new trial. A defendant may filed a motion for

judgment of acquittal within seven days after the jury is discharged or within such

further time as determined by the court within the seven-day period. See Fed. R.

Crim. P. 29(c). A motion for a new trial "shall be made" within this same time

period. See Fed. R. Crim. P. 33. Intermediate Saturdays, Sundays, and legal

holidays are excluded from the calculation. See Fed. R. Crim. P. 45(a). In the

present case, the jury returned its verdict against Mr. Morales on Thursday,

December 15, 1994. On December 22, 1994, Mr. Morales filed a motion for

extension of time in which to file motions for judgment of acquittal and for a new

trial. On December 27, 1994, the district court granted co-defendant Sonia

Gallegos' similar motion for extension of time, giving Ms. Gallegos until January
8

 The district court's order granting Ms. Gallegos' motion for an extension

of time was filed within the seven-day period provided for in Rules 33 and 45(a). 

See Fed. R. Crim. P. 45(a) (intermediate Saturdays, Sundays, and legal holidays

excluded from calculation).

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13, 1995, to file post-trial motions.8 The court never ruled upon Mr. Morales'

motion for an extension of time. Nevertheless, on January 13, 1995, Mr. Morales

filed his motions for judgment of acquittal and for a new trial. The court denied

Mr. Morales' motions on May 19, 1995.

Because the district court never ruled upon Mr. Morales' motion for an

extension of time, the timeliness of Mr. Morales' motions for judgment of

acquittal and for a new trial are at issue. If the court's failure to rule upon the

motion was the result of a clerical mistake, then we will deem Mr. Morales'

motions for judgment of acquittal and for a new trial to have been timely filed. 

Under Fed. R. Crim. P. 36, "errors in the record arising from oversight or

omission may be corrected by the court at any time and after such notice, if any,

as the court orders." A clerical mistake is not necessarily limited to an error

committed by a clerk. United States v. Sides, 1994 WL 38640, at *2 (10th Cir.

1994) (unpublished decision) (citing Pattiz v. Schwartz, 386 F.2d 300, 303 (8th

Cir. 1968)).
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On January 22, 1996, we partially remanded this case to the district court

for the limited purpose of determining whether the failure to rule on Mr. Morales'

motion for an extension of time was a "clerical error," and, if so, to correct that

error. United States v. Morales, No. 95-2069 (10th Cir. Jan. 22, 1996) (order

partially remanding action). On remand, the district judge found "the motion for

extension of time was not presented to him for consideration." United States v.

Morales, No. 92-486 (D.N.M. Jan. 30, 1996) (order holding no clerical error). 

The court never received a "courtesy copy" of the motion or a facsimile copy. Id.

Consequently, the district court concluded no clerical error occurred. Id.

Notwithstanding the district court's findings, we believe the court's failure

to rule on the motion for an extension of time was, in fact, the result of a clerical

mistake. As stated, a clerical mistake is an error in the record "arising from

oversight or omission." Fed. R. Crim. P. 36. In Pattiz, the Eighth Circuit

examined the meaning of "clerical mistake" under Fed. R. Civ. P. 60(a). 386 F.2d

at 303. The district judge in Pattiz received the plaintiff's amended complaint,

but placed it in the court file without ever filing the document. Id. at 301. In

subsequent litigation, whether the amended complaint was filed became an issue. 

Id. at 302. The district court determined a clerical error had been made under

Rule 60(a) and ordered that the record be corrected to show the filing of the
-29-

amended complaint. Id. The Eighth Circuit agreed, concluding Rule 60(a)

encompasses such things as "'misprisions, oversights and omissions, unintended

acts or failures to act.'" Id. at 303 (quoting 6A Moore's Federal Practice

¶ 60.06(1), p. 4042 (2d ed. 1966)).

The present case presents the converse of Pattiz. In Pattiz, the district

judge received the document but the clerk never docketed it. Here, the clerk

entered the document on the docket, but the district judge never received the

document. Neither of the parties in this case are responsible for the mistake. 

Obviously, the error stemmed from an oversight on the part of the clerk. 

Consequently, we conclude a clerical mistake occurred within the meaning of Fed.

R. Crim P. 36.

Ordinarily, we would remand a case involving a clerical mistake to the

district court for correction. See Fed. R. Crim. P. 36. However, such a remand

would serve no useful purpose in the present case. It would merely waste

valuable judicial time and resources. We conclude that if no clerical error had

occurred in the case at bar, the district court would have granted Mr. Morales'

motion for an extension of time on the same day the court granted Ms. Gallegos'

motion for an extension of time. There is nothing in the record to indicate Mr.
9

 Even if the court's failure to rule on Mr. Morales' motion was not the

result of a clerical error, we would still find Mr. Morales' post-trial motions to be

timely filed. The district court issued a standing order in this case that any

motion filed by one defendant was adopted by the other defendants. Thus, Mr.

Morales adopted Ms. Gallegos' motion for an extension of time to file a motion

for a judgment of acquittal and a motion for a new trial under the court's standing

order. In granting Ms. Gallegos' motion for an extension of time, we believe the

trial court implicitly granted an extension of time to Mr. Morales, as well.

10 The thirtieth day from the date Mr. Morales' appeal became effective was

June 18, 1995. However, because June 18 was a Sunday, it does not count for

computation of time purposes. See Fed. R. App. P. 26(a) (last day of time period

not included if it is a Saturday, Sunday, or legal holiday). Hence, the government

filed its appeal on time.

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Morales' motion would have received any less favorable treatment than the motion

filed by Ms. Gallegos. Because Mr. Morales filed his motion for judgment of

acquittal and motion for a new trial within the time allotted Ms. Gallegos, we

conclude Mr. Morales' motions were timely filed.9

Having determined Mr. Morales filed his motions in a timely manner, it

follows Mr. Morales' notice of appeal did not become effective until May 19,

1995, the date the court denied Mr. Morales' post-trial motions. See Fed. R. App.

P. 4(b). Because the government filed its notice of appeal on June 19, 1995, it

did so within thirty days of Mr. Morales' appeal and in compliance with Rule

4(b).10 We therefore deny Mr. Morales' motion to dismiss the government's

appeal.
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2. Mr. Morales' Sentence

The United States contends the district court erred in sentencing Mr.

Morales pursuant to the money laundering guideline range. The United States

argues 21 U.S.C. §§ 841(b)(1)(A) and 846 (1994) required the court to sentence

Mr. Morales to the mandatory minimum sentence of ten years in prison for his

conviction of conspiracy.

In general, "district courts have broad discretion in sentencing a defendant

within the range prescribed by Congress." United States v. Robertson, 45 F.3d

1423, 1448 (10th Cir.), cert. denied, 115 S. Ct. 2258 and 116 S. Ct. 133 (1995). 

"'"[I]t is not the role of an appellate court to substitute its judgment for that of the

sentencing court as to the appropriateness of a particular sentence."'" Koon v.

United States, 116 S. Ct. 2035, 2046 (1996) (quoting Williams v. United States,

503 U.S. 193, 205 (1992)). Although we review the district court's application of

the sentencing guidelines de novo, we review the sentencing court's factual

findings under a clearly erroneous standard. Robertson, 45 F.3d at 1444. Thus, a

sentencing court's determination of the quantity of drugs attributable to a

defendant is reviewed for clear error. Torres, 53 F.3d at 1144.

To constitute clear error, we must be convinced that the sentencing

court's finding is simply not plausible or permissible in light of the
-32-

entire record on appeal, remembering that we are not free to

substitute our judgment for that of the district judge.

Id. (citing Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)).

21 U.S.C. §§ 841(b)(1)(A) and 846 provide for a mandatory minimum

sentence of ten years for any defendant convicted of a conspiracy to distribute at

least five kilograms of cocaine or at least 1,000 kilograms of marijuana. Under

U.S.S.G. § 1B1.3(a), relevant conduct for sentencing purposes is assessed on the

basis of:

(1) (A) all acts and omissions committed, aided, abetted, counseled,

commanded, induced, procured, or willfully caused by the defendant;

and

(B) in the case of a jointly undertaken criminal activity ..., all

reasonably foreseeable acts and omissions of others in furtherance of

the jointly undertaken criminal activity ....

U.S.S.G. § 1B1.3(a) (1995). In the case of controlled substances, a defendant is

"accountable for all quantities of contraband with which he was directly involved

and, in the case of a jointly undertaken criminal activity, all reasonably

foreseeable quantities of contraband that were within the scope of the criminal

activity that he jointly undertook." U.S.S.G. § 1B1.3 comment. (n.2) (emphasis

added). The government must prove, by a preponderance of the evidence, the

amount of drugs attributable to each defendant. Torres, 53 F.3d at 1144.
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In the instant case, the trial court determined Mr. Morales was involved in

the laundering of drug profits in the amount of $831,514.37. However, the court

determined the mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A) was

inapplicable to Mr. Morales because his conduct did not establish a "quantity of

narcotics reasonably foreseeable" to him. Hence, the court sentenced Mr. Morales

pursuant to his involvement in money-laundering.

The government argues the trial court erred in two respects. First, the

government contends the court erroneously applied the "reasonably foreseeable

standard" to Mr. Morales, even though Mr. Morales "personally laundered drug

profits generated from selling quantities of cocaine well in excess of the five

kilograms necessary to invoke the mandatory minimum sentence." (Emphasis

omitted.) Second, the government claims the court erred in determining Mr.

Morales' conduct did not establish at least five kilograms of cocaine were

reasonably foreseeable to him. We address the government's contentions in turn.

We interpret the United States' first argument to be that the trial court erred

by failing to determine under U.S.S.G. § 1B1.3(a)(1)(A) that Mr. Morales was
11 To the extent the government contends Mr. Morales was "directly

involved" in more than five kilograms of cocaine under U.S.S.G.

§ 1B1.3(a)(1)(A) simply by virtue of his involvement in money laundering (see

Ape's brief at 46), we find this contention to be without merit. Comment. 2 to

U.S.S.G § 1B1.3(a) provides that a defendant is accountable under

§ 1B1.3(a)(1)(A) for "quantities of [controlled substances] with which he was

directly involved." Commentary to sentencing guidelines is authoritative unless it

violates the Constitution or a federal statute or is inconsistent with the guideline

which it seeks to explain or is a plainly erroneous reading of the guideline itself. 

Stinson v. United States, 508 U.S. 36 (1993). Here, we find comment. 2 to

U.S.S.G. § 1B1.3(a) to be consistent with the statute it interprets. Based upon

the plain language of this commentary, we do not believe a defendant's mere

involvement in money laundering is sufficient to enable a district court to

conclude the defendant was directly involved with a quantity of controlled

substances. The government has failed to provide the court with any authority to

the contrary.

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directly involved with at least five kilograms of cocaine.11 As stated, a defendant

"'is accountable for all quantities of contraband with which he was directly

involved.'" United States v. Lockhart, 37 F.3d 1451, 1454 (10th Cir. 1994)

(quoting U.S.S.G. § 1B1.3, comment. (n.2)). Where the sentencing court

determines a defendant was directly involved in the distribution of a quantity of

drugs sufficient to invoke a mandatory minimum sentence under 21 U.S.C.

§ 841(b)(1)(A), the quantity of drugs reasonably foreseeable to the defendant is

irrelevant. Lockhart, 37 F.3d at 1454 (trial court did not err in failing to

determine whether quantity of drugs was reasonably foreseeable to defendant

where defendant personally participated in transaction involving more than five

kilograms of cocaine).
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In United States v. Chalarca, 95 F.3d 239, 240 (2d Cir. 1996), a jury

convicted the defendant of conspiracy to distribute and possess with intent to

distribute cocaine. Although the defendant was present with his co-defendant at

the scene of an attempted drug transaction involving $70,000.00 and 12 kilograms

of cocaine, the district court determined the defendant was not directly involved

in the drug transaction. Chalarca, 95 F.3d at 240-41. Accordingly, the court

found the mandatory minimum sentence of ten years imprisonment under 21

U.S.C. § 841(b)(1)(A) was not applicable to the defendant. Id. at 242.

On appeal, the Second Circuit determined the district court's findings of

fact were not clearly erroneous.

Because the involvement of Chalarca was not direct, ... and

because Chalarca was not aware that the purpose of his trip to the

scene was to purchase cocaine, ... and because he did not

constructively possess drugs or actually possess them ..., he cannot

be sentenced under [21 U.S.S.G. § 1B1.3(a)(1)(A)] for criminal

activity personally undertaken.

Id. at 244. The court also determined the defendant's "mere presence at the

scene" was insufficient to establish that any particular quantity of cocaine was

reasonably foreseeable to the defendant. Id. at 245. Consequently, the Second

Circuit affirmed the defendant's sentence. Id. at 245-46.

Here, unlike Chalarca, there is no evidence Mr. Morales was ever present
-36-

at the scene of any illicit drug transaction. The government's evidence at trial

simply established Mr. Morales was involved in the Aguirre organization as a

money launderer. The government does not even argue it presented any evidence

tending to show Mr. Morales was personally involved in the sale or distribution of

drugs. Consequently, the district court did not err in failing to determine Mr.

Morales was directly involved in the distribution of at least five kilograms of

cocaine.

The government also claims the district court erred in determining no

quantity of drugs was reasonably foreseeable to Mr. Morales. The government

contends the district court should have held Mr. Morales responsible for the

amount of cocaine that generated the drug profits Mr. Morales laundered. In

other words, the government asserts the court should have converted the total

amount of money Mr. Morales laundered ($831,514.37) into its value in cocaine

to determine the quantity of drugs reasonably foreseeable to Mr. Morales.

Although the record may have permitted the district court to have

undertaken such a conversion, we do not believe the trial court was obligated to

do so. Rather, we believe the record supports the court's finding that no quantity

of drugs was reasonably foreseeable to Mr. Morales. As stated, the record
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indicates Mr. Morales was simply a money launderer. Unlike Chalarca, where

the court also determined no quantity of drugs was reasonably foreseeable to the

defendant, there is no evidence Mr. Morales was present at the scene of any drug

transaction. In fact, the government does not even allege Mr. Morales had any

knowledge of the occurrence of a single drug transaction. In light of the Supreme

Court's admonition that "it is not the role of an appellate court to substitute its

judgment for that of the sentencing court as to the appropriateness of a particular

sentence," Koon, 116 S. Ct. at 2046 (internal quotation marks omitted), we

conclude the district court's determination that no quantity of drugs was

reasonably foreseeable to Mr. Morales was not clearly erroneous.

Because the district court did not err in determining Mr. Morales was not

directly involved in the distribution of cocaine and no quantity of cocaine was

reasonably foreseeable to Mr. Morales, the district court's decision to sentence

Mr. Morales pursuant to the money laundering guidelines was proper and in

accordance with law.

IV. CONCLUSION

Based on the foregoing reasons, we hereby AFFIRM the convictions of

Mr. Morales in all respects.
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