* The Honorable Wiley Y. Daniel, United States Dist rict 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 Unit ed States Attorney, with him on the briefs), Albuquerque, New Mexico, for Plaint iff-Appellee and CrossAppellant. Peter Schoenburg of Rothstein, Donatelli, Hughes, D ahlstrom, Cron & Schoenburg, LLP, Albuquerque, New Mexico, for Defen dant-Appellant and Cross-Appellee.

Before BALDOCKandBRORBY , Circuit Judges, and DANIEL , * District Judge.-2-

BRORBY , Circuit Judge.

A New Mexico federal jury convicted David Morales o n 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 t he appeals pursuant to 28 U.S.C. § 1291.

I. FACTUAL AND PROCEDURAL BACKGROUND Gabriel Rodriguez-Aguirre ("Mr. Aguirre") managed afamily-run organization ("the Aguirre organization") specializ ing 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 i n New Mexico, Arizona, Utah, Kansas, Massachusetts, and elsewhere throughout the United States. Id. The organization used narcotics proceeds to purchase re al property and other assets. Id

.-3-

Mr. Morales' wife is the niece of Mr. Aguirre. Evi dence at trial showed Mr. Morales was involved in the Aguirre organizatio n as a money launderer. The government's evidence revealed Mr. Morales purchase d a number of horses and trucks with drug proceeds. It also showed Mr. Mora les purchased a bar, the E & J Lounge, with drug profits. In total, the trial cou rt 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 Distri ct 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 andtwo counts of money laundering. Mr. Morales pled not guilty to the cha rges against him, and proceeded to trial with his co-defendants in January 1994.

The original trial of Mr. Morales and his co-defend ants lasted six months, becoming "the longest federal criminal trial ever h eld 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 co unts against Mr. Morales. Consequently, the trial judge declared a mistrial. Id.-4-

In August 1994, the United States obtained a supers eding indictment against Mr. Morales and nine of his co-defendants. The superseding indictment increased the charges against Mr. Morales. The sup erseding indictment charged Mr. Morales with investment of illicit drug profits , conspiracy to possess with the intent to distribute cocaine and marijuana, conspir acy to distribute cocaine and marijuana, and two counts of money laundering. Alt hough Mr. Morales moved to dismiss the superseding indictment on the grounds o f prosecutorial vindictiveness, the district court summarily denied his motion.

Mr. Morales also filed a motion for severance pursu ant to Fed. R. Crim. P. 14. Mr. Morales argued a joint trial would cause h im prejudice because the weight of the evidence against his co-defendants wa s much greater than the weight of the evidence against Mr. Morales. Notwit hstanding his contentions, the district court denied Mr. Morales' motion for sever ance.

The United States tried Mr. Morales and his co-defe ndants on the superseding indictment in November and December of 1994. Prior to trial, the court selected a jury panel of approximately 250 ju rors from voter registration lists for the Roswell Division of the District of N ew Mexico. The district judge excused 132 jurors sua sponte after reviewing the juror questionnaires; the court1 Pursuant to the court's order that "one motion ma de by one defense

counsel applies to all [defendants] unless specific ally excluded by that defendant," all of the defendants adopted the motio ns of Mr. Aguirre and Mr. Morales.

-5- only directed 115 jurors to report for jury service . Six days prior to trial, defense counsel were provided copies of juror questionnaire s for the panel that had been selected for service, and defense counsel learned t he 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 mo tion to quash the jury venire. 1 The motions alleged the jury venire panel seriouslymisrepresented the ethnic makeup of the District of New Mexico. Specifically , the defendants claimed persons of Hispanic origin and American Indian back ground were underrepresented. The defendants sought a stay of the trial to allow time for an investigation of the ethnic background of all the j urors. 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 clai med stood for the proposition that it is reversible error for a courtto exclude a juror prior to voir dire "simply because a juror knows a defendant." M r. Kennedy claimed it appeared the court had excused at least one juror b ecause the juror stated that he-6-

or she knew one of the defendants.

Following Mr. Kennedy's comments, the court held anevidentiary hearing at which Nancy Metzger, jury administrator for the Federal Court Clerk's office, testified. Ms. Metzger stated the jury panel of ap proximately 250 jurors had been selected randomly from voter registration lists. M s. Metzger testified that the district judge reviewed the juror questionnaires an d directed her to excuse more than 100 specific jurors. Ms. Metzger stated she d id not know the ethnicity of either the excused jurors or the jurors who report ed for service.

The court then stated it had reviewed the individua l juror questionnaires and "retained the stack of those who, for some reas on or other, claimed that they couldn't serve." The court explained: I think it goes without saying that the ones that w ere not summoned, I never looked at the last name, whether it was [a] Hispanic surname or whether it was not a Hispanic surname, or whethe r 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 n ot direct the jurors to list their ethnicity.

The district court denied the defendants' motion to stay the proceedings and2Although Mr. Morales also filed a motion for a ne w trial based on jury

misconduct, his motion is not included in the recor d. Thus, we must focus on the allegations raised by Ms. Gallegos in her motion fo r a new trial.

-7- the defendants' motion to quash the jury venire. H owever, 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 c hose to supplement the record with such information.

The trial of Mr. Morales and his co-defendants last ed approximately one month. On December 15, 1994, the jury returned a v erdict 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 p rofits 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 di strict court's standing order that "anything that anybody files the others adopt." Mr . Morales attached an affidavit3 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 dict ionary was used at all. The only definition which was questioned rega rded 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 que stion arose during deliberations as to the definition of the word "pon tificate," "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 twel ve jurors who convicted Mr. Morales. Mr. Owens stated that one of the jurors, Linda Howard, admitted looking up the dictionary definition of the word "d istribution" on the first day of deliberations and sharing its definition with the o ther jurors on the following day. According to Mr. Owens, Ms. Howard stated the juror s discussed the meaning of "distribution" as it related to the guilt or innoce nce 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 c onduct prejudiced him and entitled him to a new trial.-9-

The district court denied Mr. Morales' motion for anew trial, rejecting the defendants' claim of jury misconduct. The court co ncluded 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 factu al findings and sentencing guideline application in Mr. Morales' presentence r eport. The court concluded Mr. Morales' guideline range should be calculated p ursuant to his involvement in money laundering, rather than pursuant to his convi ction of conspiracy, because his offense conduct did not "establish a quantity o f narcotics reasonably foreseeable to [Mr. Morales]." Thus, the court fou nd 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 Consti tution 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 Amendme nt rights by failing to grant his motion for severance; (3) whether the district court should have dismissed the superseding indictment on the basis of prosecutoria l 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. Mor ales to the mandatory minimum sentence of ten years imprisonment for his convicti on of conspiracy to distribute controlled substances. Mr. Morales has filed a mot ion to dismiss the United States' appeal, arguing the appeal should be dismis sed 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 t he defendants and counsel, violated the Jury Selection and Service Act, as wel l as Mr. Morales' Fifth and Sixth Amendment rights. 28 U.S.C. § 1867(d) requir es 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 con stitute a substantial failure to comply with the [Jury Selection and Service Act]." In the recent appeal of Mr. Morales' co-defendant Doloras Contreras, we determi ned Ms. Contreras' claim under the Jury Selection and Service Act was barredby the defendants' failure to accompany their motions challenging the district co urt'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 s upport of his motion challenging the district court's jury selection pro cedures. 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' constit utional challenges to4In Contreras , we also determined the district court did not vio late 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

. -12- 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 bydenying his motion for severance and forcing him to trial with "[five] co- defendants against whom the [United States] had overwhelming evidence." Mr. Mo rales alleges the government had substantially less incriminating evi dence against him than it had against his co-defendants. According to Mr. Morale s, the overwhelming evidence the government introduced at trial against his co-d efendants 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 unl ess 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 prejudic e resulted from the denial. Id.-13-

Furthermore, "[i]n deciding on a motion for severance, the distr ict court has a duty to weigh the prejudice resulting from a joint trial of co-defendants against the expense and inconvenience of separate t rials .... Neither a mere allegation that defendant would have a bette r chance of acquittal in a separate trial, nor a complaint of t he "spillover effect" from the evidence that was overwhelming or more dam aging 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 p roperly joined for trial pursuant to Fed. R. Crim. P. 8(b). Rule 8(b) permi ts the joinder of two or more defendants "if they are alleged to have participate d in the same act or transaction or in the same series of acts or transactions const ituting an offense or offenses." Rule 8 is construed broadly to allow liberal joinde r 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 revea led 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. Mo rales was proper and in accordance with Rule 8(b).-14-

Under Fed. R. Crim P. 14, the district court may gr ant a severance of defendants if it appears joinder results in a preju dice to a defendant. In Zafiro v. United States , 506 U.S. 534, 539 (1993), the Supreme Court expla ined that: a district court should grant a severance under Rul e 14 only if there is a serious risk that a joint trial would compromi se a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Such arisk might occur when evidence that the jury should not consider aga inst a defendant and that would not be admissible if a defendant wer e tried alone is admitted against a codefendant. For example, evide nce of a codefendant's wrongdoing in some circumstances erro neously 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 ris k of prejudice is heightened. Evidence that is probative of a defend ant's guilt but technically admissible only against a codefendant a lso might present a risk of prejudice. Rule 14 leaves the determination of risk of prejudi ce and any remedy for such prejudice to the sound discretion of the district c ourt. 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 ra ce horses with illegally derived proceeds. Evidence also established Mr. Mo rales, 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-15-

intertwined.

Although the joinder of Mr. Morales may have result ed 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 o f severance caused Mr. Morales unfair prejudice. The fact that the jury was unabl e to reach a verdict as to Mr. Morales on the illicit investment count shows the j ury carefully evaluated the evidence presented as to each defendant and each co unt. In denying Mr. Morales' motion to sever, the district court appropriately d etermined considerations of judicial economy and expediency outweighed the pote ntial prejudice to Mr. Morales. Given the considerable discretion afforde d 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 vin dictiveness. The United States increased the charges against Mr. Morales inthe superseding indictment filed after the mistrial. Mr. Morales asserts the United States was aware of the information giving rise to the increased charges pr ior to his first trial. Given this prior knowledge, along with the negative publicity the United States suffered5 Unlike Ms. Contreras, Mr. Morales alleges he reje cted a number of plea

offers from the United States prior to the filing o f the superseding indictment. Mr. Morales ostensibly contends this is another fac tor 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 defendan t objected to the mistrial. Id. at 33. Thereafter, the United States initiated pl ea 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 cou nt. Id. On appeal, the defendant argued a presumption of pr osecutorial vindictiveness arose from the addition of new count s following the defendant's rejection of a plea offer and assertion of his righ t to a jury trial. Id. at 30-31. -16- following the mistrial, Mr. Morales contends there is a reasonable likelihood the increased charges were motivated by prosecutorial v indictiveness.

In Contreras , we decided a virtually identical vindictive prose cution claim asserted by Ms. Contreras. __ F.3d at ___. Lookin g to the totality of the circumstances, we determined there was no reasonabl e likelihood the increased charges against Ms. Contreras stemmed from prosecut orial vindictiveness. Id. at ___. In the present case, based upon our reasoning in Contreras , we likewise conclude there is no reasonable likelihood the enha nced charges against Mr. Morales were motivated by prosecutorial vindictiven ess. 5The Second Circuit disagreed, concluding the defend ant 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 p lea bargaining there is no element of retaliation so long as a defendant remai ns 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 exerci se 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 believ e 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.

-17- 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 the refrom -- 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 s upport a conviction must be substantial; "it must do more than raise a mere sus picion of guilt." Sanders , 929 F.2d at 1470 (internal quotation marks omitted).6As noted, the government also charged Mr. Morales with violating 18

U.S.C. § 2. This statute provides: "Whoever commi ts 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 th e sufficiency of the evidence issued.

-18- The jury in this case convicted Mr. Morales of viol ating 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 th e lounge with fifty payments, each in an amount less than $10,000.00, and each de signed to avoid a federal transaction reporting requirement. To obtain a con viction under 18 U.S.C. § 1956(a)(1)(B)(ii), 6 the government must prove the following four eleme nts 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 transac tion was designed in whole or in part to avoid a transaction reporting r equirement under federal law.
On appeal, Mr. Morales contends the United States f ailed to establish-19-

beyond a reasonable doubt the first element of this statute -- that he willfully conducted or caused to be conducted a financial tra nsaction. According to Mr. Morales, there is no evidence in the record to supp ort the inference that Mr. Morales was involved in any of the fifty payments m ade in connection with the purchase of the E & J Lounge.

Our review of the record reveals Mr. Edward Lopez t estified he entered into an agreement to sell the E & J Lounge to Mr. M orales, Gabriel Aguirre, and Eleno Aguirre for $434,000.00. The agreement to pu rchase, the commercial lease, and the warranty deed were all signed by Mr. Morales.

The purchase of the E & J Lounge was effectuated th rough payments made directly to the law offices of Lloyd Bates, Mr. Lop ez'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 mad e 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 Mo rales as the remitter. Ms. Shirley Madrid, who issued the cashier's check on b ehalf of Silver Savings and Loan, testified she knew Mr. Morales and his wife, and she would not have-20-

allowed anyone other than Mr. Morales or his wife t o purchase the check.

Finally, the record reveals FBI Special Agent Sam M acaluso 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 testi mony 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 con flicting 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 evidenc e in the light most favorable to the government, a reasonable jury could have conclu ded beyond a reasonable doubt that Mr. Morales willfully conducted at leastone of the fifty financial transactions specified in Count XII of the supersed ing indictment.-21-

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 rece nt appeal of Mr. Morales' codefendant, Eleno Aguirre, we determined a presumpti on of prejudice arose from the jury's improper conduct in researching the dict ionary 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 definit ion, we concluded the jury's misconduct was harmless beyond a reasonable doubt t o Mr. Aguirre. Id. at ___. Based on our reasoning in Aguirre , we likewise conclude the jury's misconduct in researching the dictionary definition of distributi on was harmless to Mr. Morales beyond a reasonable doubt.

B. United States' Appeal The United States contends the district court erredin failing to sentence Mr. Morales to the mandatory minimum term of ten ye ars 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 juri sdiction to entertain the-22-

government's appeal.

1. Motion to Dismiss Mr. Morales claims the United States' appeal shouldbe 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 appe aling 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." H ere, although the United States seeks to appeal the sentence entered against Mr. Mo rales, 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 Judgm ent of Acquittal; Motion for New Trial Based Upon Jury Misconduct; Motion to Continue Bail Pending Appeal by David Morales." Because the notice of ap peal 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 sh ould 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 o f 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 designat ed a non-appealable order as the order being appealed. Nevertheless, we determi ned that: incomplete compliance with F[ed]. R. App. P. 3(c) s hould 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 st atement of issues similarly demonstrates an intent to challenge the j udgment. It would be contrary to the spirit of the Federal Rules of C ivil Procedure to deny appellant a decision on the merits because of a mere technicality. Id. (citations omitted). We therefore considered the m erits 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 gov ernment's motion to dismiss was appealable even though the appellant's notice o f appeal failed to designate that order. Importantly, we found the supporting p apers filed with the notice of appeal, including the docketing statement, indicate d the appellant was appealing the order of dismissal. Id. Because the government was not misled or prejudic ed-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 M r. Morales that the government sought to appeal his sentence. As Mr. Morales stat es in his brief in support of his motion to dismiss, the government "obviously" has n o 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 governme nt seeks to appeal Mr. Morales' sentence. The docketing statement unambig uously states the issue raised on appeal as follows: "whether the trial court's f ailure to apply the statutory minimum sentence under 21 U.S.C. [§] 841(b)(1)(A) c onstituted error." Like the appellees in Cooperand 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 r esult 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 appea l 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 no tice of appeal within thirty days of Mr. Morales' notice of appeal. Alth ough the record indicates Mr. Morales filed his notice of appeal on April 10, 199 5, we must look to Fed. R. App. P. 4(b) to determine the date on which Mr. Mor ales' 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 m otion outstanding."

Here, Mr. Morales filed a motion for judgment of ac quittal and a motion for7Mr. Morales adopted Ms. Gallegos' motion for a ne w trial pursuant to the

court's "standing order." See supranotes 1 & 2.

-26- a new trial on January 13, 1995. 7The district court denied these motions on May 19, 1995. Thus, if Mr. Morales filed his motion fo r judgment of acquittal and motion for a new trial in a timely manner, Mr. Mora les' appeal did not become effective until May 19, 1995.

We must therefore determine whether Mr. Morales tim ely filed his motions for judgment of acquittal and for a new trial. A d efendant may filed a motion for judgment of acquittal within seven days after the j ury 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, Sund ays, and legal holidays are excluded from the calculation. See Fed. R. Crim. P. 45(a). In the present case, the jury returned its verdict againstMr. Morales on Thursday, December 15, 1994. On December 22, 1994, Mr. Moral es filed a motion for extension of time in which to file motions for judg ment of acquittal and for a new trial. On December 27, 1994, the district court gr anted co-defendant Sonia Gallegos' similar motion for extension of time, giv ing Ms. Gallegos until January8The district court's order granting Ms. Gallegos' motion for an extension

of time was filed within the seven-day period provi ded for in Rules 33 and 45(a). See Fed. R. Crim. P. 45(a) (intermediate Saturdays, Su ndays, and legal holidays excluded from calculation).

-27- 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 fora new trial. The court denied Mr. Morales' motions on May 19, 1995.

Because the district court never ruled upon Mr. Mor ales' motion for an extension of time, the timeliness of Mr. Morales' m otions 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 w e will deem Mr. Morales' motions for judgment of acquittal and for a new tri al to have been timely filed. Under Fed. R. Crim. P. 36, "errors in the record ar ising 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 ne cessarily 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)).-28-

On January 22, 1996, we partially remanded this cas e 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 err or," 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 distri ct judge found "the motion for extension of time was not presented to him for cons ideration." 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 m otion or a facsimile copy. Id. Consequently, the district court concluded no cleri cal error occurred. Id.

Notwithstanding the district court's findings, we b elieve 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 errorin the record "arising from oversight or omission." Fed. R. Crim. P. 36. In Pattiz , the Eighth Circuit examined the meaning of "clerical mistake" under Fe d. R. Civ. P. 60(a). 386 F.2d at 303. The district judge in Pattizreceived 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, oversight s 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 doc keted it. Here, the clerk entered the document on the docket, but the district judge never receive d 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 occurr ed within the meaning of Fed. R. Crim P. 36.

Ordinarily, we would remand a case involving a cler ical 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 wou ld 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.9Even if the court's failure to rule on Mr. Morale s' 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 ot her defendants. Thus, Mr. Morales adopted Ms. Gallegos' motion for an extensi on 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 ext ension of time, we believe the trial court implicitly granted an extension of time to Mr. Morales, as well.

10The thirtieth day from the date Mr. Morales' appe al became effective was June 18, 1995. However, because June 18 was a Sund ay, 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.

-30- Morales' motion would have received any less favorable treatment than the motion filed by Ms. Gallegos. Because Mr. Morales filed h is motion for judgment of acquittal and motion for a new trial within the tim e 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 becom e effective until May 19, 1995, the date the court denied Mr. Morales' post-t rial motions. See Fed. R. App. P. 4(b). Because the government filed its notice o f appeal on June 19, 1995, it did so within thirty days of Mr. Morales' appeal an d in compliance with Rule 4(b). 10 We therefore deny Mr. Morales' motion to dismiss the government's appeal.-31- 2. Mr. Morales' Sentence The United States contends the district court erredin 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) req uired the court to sentence Mr. Morales to the mandatory minimum sentence of te n 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 su bstitute 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 permissi ble in light of the-32-

entire record on appeal, remembering that we are no t free to substitute our judgment for that of the district ju dge. 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 man datory minimum sentence of ten years for any defendant convicted o f a conspiracy to distribute at least five kilograms of cocaine or at least 1,000 k ilograms of marijuana. Under U.S.S.G. § 1B1.3(a), relevant conduct for sentencin g purposes is assessed on the basis of: (1) (A) all acts and omissions committed, aided, a betted, counseled, commanded, induced, procured, or willfully caused b y the defendant; and (B) in the case of a jointly undertaken criminal a ctivity ..., 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 control led 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 a ctivity, all reasonably foreseeable quantities of contraband that were within the scop e of the criminal activity that he jointly undertook." U.S.S.G. § 1B 1.3 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.-33-

In the instant case, the trial court determined Mr. Morales was involved in the laundering of drug profits in the amount of $83 1,514.37. 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 didnot establish a "quantity of narcotics reasonably foreseeable" to him. Hence, t he 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 cocain e well in excess of the five kilograms necessary to invoke the mandatory minimumsentence." (Emphasis omitted.) Second, the government claims the court erred in determining Mr. Morales' conduct did not establish at least five ki lograms of cocaine were reasonably foreseeable to him. We address the gove rnment's contentions in turn.

We interpret the United States' first argument to b e that the trial court erred by failing to determine under U.S.S.G. § 1B1.3(a)(1 )(A) that Mr. Morales was11 To the extent the government contends Mr. Morales was "directly

involved" in more than five kilograms of cocaine un der U.S.S.G. § 1B1.3(a)(1)(A) simply by virtue of his involvement in money laundering (s ee Ape's brief at 46), we find this contention to be w ithout merit. Comment. 2 to U.S.S.G § 1B1.3(a) provides that a defendant is acc ountable under § 1B1.3(a)(1)(A) for "quantities of [controlled sub stances] with which he was directly involved." Commentary to sentencing guide lines is authoritative unless it violates the Constitution or a federal statute or i s 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 be lieve a defendant's mere involvement in money laundering is sufficient to en able a district court to conclude the defendant was directly involved with aquantity of controlled substances. The government has failed to provide the court with any authority to the contrary.

-34- directly involved with at least five kilograms of c ocaine. 11 As stated, a defendant "'is accountable for all quantities of contraband w ith 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 sent ence under 21 U.S.C. § 841(b)(1)(A), the quantity of drugs reasonably fo reseeable to the defendant is irrelevant. Lockhart , 37 F.3d at 1454 (trial court did not err in faili ng to determine whether quantity of drugs was reasonably foreseeable to defendant where defendant personally participated in transact ion involving more than five kilograms of cocaine).-35-

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 pre sent with his co-defendant at the scene of an attempted drug transaction involvin g $70,000.00 and 12 kilograms of cocaine, the district court determined the defen dant 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 i mprisonment under 21 U.S.C. § 841(b)(1)(A) was not applicable to the def endant. Id. at 242.

On appeal, the Second Circuit determined the distri ct 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 d id not constructively possess drugs or actually possess th em ..., he cannot be sentenced under [21 U.S.S.G. § 1B1.3(a)(1)(A)] f or 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 parti cular 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 argu e it presented any evidence tending to show Mr. Morales was personally involvedin 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 o f 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. Mo rales responsible for the amount of cocaine that generated the drug profits M r. Morales laundered. In other words, the government asserts the court shoul d 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 fores eeable to Mr. Morales.

Although the record may have permitted the districtcourt 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-37-

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 pre sent 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 transa ction. 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 clear ly erroneous.

Because the district court did not err in determini ng Mr. Morales was not directly involved in the distribution of cocaine an d no quantity of cocaine was reasonably foreseeable to Mr. Morales, the districtcourt's decision to sentence Mr. Morales pursuant to the money laundering guidel ines 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.-38-